Saturday, April 17, 2021

A Stab In The Heart

The Colorado Supreme Court accepted a proposed public censure and resignation of a District Court judge on the following stipulation

In late January or early February 2020, Judge Chase, a Family Court Facilitator for the Eighteenth Judicial District, and Judge Chase’s former law clerk attended a Safe Baby Program in Pueblo. Judge Chase drove both court employees in her car to and from Pueblo.

Judge Chase is white and the Family Court Facilitator is Black. On the way back from Pueblo, Judge Chase asked the Family Court Facilitator questions about why Black people can use the N-word but not white people, and whether it was different if the N-word is said with an “er” or an “a” at the end of the word. During the conversation, Judge Chase used the full N-word a number of times.

The Family Court Facilitator was uncomfortable because she could not leave the car or leave the conversation. The Family Court Facilitator felt angry and hurt by the conversation. She has explained that Judge Chase’s use of the full N-word was “like a stab through my heart each time.” The Family Court Facilitator did not feel free to express her discomfort or emotions due to fear of retaliation by Judge Chase.

In early February 2020, Judge Chase was in court, wearing her robe on the bench during a break while two or three other people were in the courtroom. Two employees in the courtroom were Black. Someone brought up watching the Super Bowl. Judge Chase then stated, from the bench, that she would be boycotting the Super Bowl because she objected to the NFL players who were kneeling during the National Anthem in protest of police brutality against Black people.

On the Monday after George Floyd was killed in Minneapolis, Minnesota, in May 2020 and Black Lives Matter protests had occurred in Denver, two Black court employees were in Judge Chase’s courtroom. One of them asked the other if they had seen the George Floyd protests. Judge Chase then, while wearing her robe and sitting on the bench, told the employees some of her opinions regarding racial justice issues. Judge Chase asked one employee some questions about the Black Lives Matter movement. The employee tried to explain the Black Lives Matter movement, and Judge Chase stated that she believes all lives matter. Judge Chase also stated that the conduct of the police officers in the George Floyd matter should be investigated.

In early 2020, Judge Chase directed her law clerk to do some legal research related to a personal family legal issue that was unrelated to the Judge’s official case load.

On August 11, 2020, Judge Chase had a medical episode at the courthouse. After courtroom deputies came to her aid, Judge Chase declined an ambulance. She then asked one of the court employees to drive her to the emergency room. After arriving, Judge Chase asked the court employee to stay with her at the hospital. The employee missed a half day of work to accommodate Judge Chase.

Throughout 2020, Judge Chase forwarded personal emails to her clerk and then asked her clerk to edit or rewrite the emails so they sounded better before the Judge sent them off to the intended recipient.

Judge Chase repeatedly discussed personal and family matters while talking with staff and other employees in office work areas and as part of court business in a manner that was not dignified or courteous.

In the first half of 2020, Judge Chase told her clerk she was leaving briefly to meet with another judge. When she returned from the meeting, and the clerk asked how it went, Judge Chase replied with a derogatory reference to the other judge, calling her a “f****** b****.”

(Mike Frisch)

April 17, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 31, 2021

Judge Admonished For Facebook Posts

The New York Commission on Judicial Conduct has admonished a judge for his Facebook posts

The Formal Written Complaint alleged that from July 21, 2020 through October 16, 2020, respondent publicly displayed on his Facebook page: (A) two photographs of himself wearing an Ontario County Sheriff’s uniform, and (B) a post with his personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event, which was held to show support for law enforcement. The post and photos garnered hundreds of “likes” and comments from other Facebook users. It was also alleged that respondent engaged in this conduct notwithstanding having been cautioned by the Commission in April 2019 for an inappropriate Facebook post regarding a candidate then running for a law enforcement position.

The photo was taken at his daughter's graduation from the police academy and pictured him in uniform after he had retired

By July 21, 2020, respondent’s “cover photo” had garnered approximately 277 Facebook “likes,” two “shares,” and 37 comments from other Facebook users. His public post containing the text and the second photograph...had garnered approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users. Among the comments was one that identified him as “Judge!” 

Sanction

Respondent now recognizes that individuals viewing his Facebook posts, and seeing him in a law enforcement uniform, would reasonably question his ability to conduct himself in a fair and impartial manner while presiding over cases involving law enforcement. 

Respondent takes full responsibility for his actions and has been cooperative and contrite with the Commission throughout its inquiry. He regrets his failure to abide by the Rules in this matter. He pledges to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.

(Mike Frisch)

March 31, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 30, 2021

Probate Judge Charged

Ohio Disciplinary Counsel has filed a complaint against a Probate Court judge who was in practice with his daughter when he ascended to the bench.

According to the complaint, she is presently the managing shareholder of his former firm with an active probate practice.

In 2017 - 2018, respondent engaged in an unsuccessful year-long effort to convince the Greene County Board of Commissioners and the Greene County Common Pleas Court General Division that the probate court needed a full-sized courtroom. During the contentious dispute, respondent issued an order that attempted to take control of a courtroom that the general division was utilizing. 

In a probate matter

On January 1, 2018, Carolee Buccalo died. Carolee had named her granddaughter, Yvonne Martin (“Martin”), as executrix, and Martin retained [the judge's daughter] Brittany to represent her in administering the estate.

Carolee's son Grant signed three waivers of disqualification.

In May 2019, the Ohio Supreme Court ruled against Respondent in the courtroom dispute.

Then

On May 23, 2019, [Grant] Buccalo attended a public meeting of the Greene County Board of Commissioners and expressed his belief that respondent should recuse himself from cases in which “family members” represent parties. He stated that “justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system.” Buccalo further stated that people need to feel that they “got a fair shake” when they leave the courtroom, and that it “wasn’t rigged.”

At the meeting, Buccalo spoke before the commissioners regarding his concerns about respondent for approximately 2.5 minutes. He stated that he wanted to ensure that the commissioners were aware of this practice. Buccalo did not specifically mention his mother’s estate case or express concern about his own involvement with respondent, other than to say that he had never met respondent and wouldn’t recognize him. Buccalo concluded by stating that he planned to file a grievance with relator, and then moved on to speak about a second unrelated concern. The commissioners did not respond to Buccalo’s concerns.

Respondent then set a status hearing in the Buccalo matter after reviewing an audiotape of the remarks

On June 6, 2019, respondent presided over the status conference. Brittany, Martin, and Buccalo appeared in person. All parties were present in-person or by telephone. Buccalo was unrepresented and did not know the purpose of the status conference before attending.

Respondent thanked them “for showing up on such short notice” and explained that there was a “very disturbing incident that has taken place with the estate, and I need to get it today.

After playing the tape in open court

...respondent called Buccalo to the stand, placed him under oath, and informed him that any false statement constituted perjury, a criminal offense.

Respondent then cross-examined Buccalo for almost an hour on issues relating to the Waiver of Disqualification and Buccalo’s comments to the commissioners.

The examination allegedly brought Buccalo to tears.

Then

After questioning Buccalo for almost an hour, respondent turned the questioning over to Brittany.

Brittany asked, “Do you expect that I should have known that you had an issue even though I received a signed waiver from you?” Buccalo attempted to explain his concerns and eventually responded by stating, “I’m not trying to argue with you.” And Brittany replied, “I am.” Respondent still permitted Brittany to proceed with her questioning of Buccalo.

Brittany cross-examined Buccalo relating to conversations and information of which he had no knowledge. She marked her personal notes of a phone conversation with Buccalo’s attorney as an exhibit and questioned Buccalo regarding the conversation and her notes, despite Buccalo not being a party to the conversation. Respondent did not curtail Brittany’s questioning in any way.

Channeling Georgia

After being on the stand for over an hour, Buccalo asked for a glass of water. Respondent replied, “I don’t have any water.” He did not offer Buccalo a break or make any attempt to obtain water for him.

Respondent recused himself and allegedly made several statements 

Respondent stated that Buccalo chose to be:

[U]ntruthful to you and the public, to unjustly smear myself and my daughter. That is simply despicable. We do not have a problem in probate court, what we have is a problem with people improperly using this board as a public forum to lodge unfounded and false accusations. I’m disappointed the board even permitted him to proceed in light of the fact * * * that [he was] cautioned * to limit his comments to items that are or have been on the board’s agenda at a regular meeting * * * This is not the proper forum to wage personal vendettas against any public official.

The charge

Respondent’s conduct, as alleged above, violated Jud.Cond.R. 2.8(B) [A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control]. 

The complaint is linked here. (Mike Frisch)

March 30, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 29, 2021

Resignation Accepted

The New York Commission on Judicial Conduct has accepted the resignation of a non-attorney judge who faced an investigation into two allegations

Judge DiVietro was apprised by the Commission in July 2020 that it was investigating allegations that, inter alia, in the fall of 2018, he repeatedly sent text messages to his then-girlfriend that contained threats about a former girlfriend. Many of the text messages were allegedly vulgar, crude, demeaning and/or featured extreme gender-based slurs and profanity.

Judge DiVietro was also apprised by the Commission in July 2020 that it was investigating allegations that, after arraigning the defendant in People v Robert L. Brown on two felony charges and one misdemeanor charge in April 2019, he repeatedly engaged in unauthorized ex parte communications about the case with the defendant and multiple other individuals and, during one of the defendant's appearances in court, allegedly gave the defendant personal advice about how to avoid having his firearms confiscated by law enforcement.

The stipulation is linked here. (Mike Frisch)

March 29, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 24, 2021

Judge Charged With Improper Communications With A Court Employee

Ohio Disciplinary Counsel has filed a complaint alleging misconduct by a Hamilton County Municipal Judge.

The complaint alleges that the judge sent a Facebook friend request to a court reporter (not in his court) which she ("Jane Doe") accepted.

He posted photos of a court celebration, some of which she "liked."

He learned she was a court reporter and invited her to his chambers; after a lengthy Facebook conversation, she allegedly felt she had to give him her telephone number.

He texted and called her.

In one Saturday evening conversation he allegedly "sounded intoxicated, used profanity and talked about his divorce. He also asked Jane Doe to lunch, but she declined his invitation."

After he had asked her out, the conversations became "increasingly one-sided."

He sent her political messages (decidedly anti-Trump) and "messages linked to videos containing offensive and sexually-explicit content..."

She did not respond but advised her boss and a co-worker. The matter was then referred to Disciplinary Counsel by the court administration.

In his answer, the judge admits most but denies some of the allegations and admits that his conduct violated Rule 1.2 of the Code of Judicial Conduct

Respondent admits that on November 12, 2019, he sent a link to an edited version of a prayer session with President Donald Trump, wherein Trump begins to smoke and then catch on fire during the prayer.

The pleadings are linked here. (Mike Frisch)

March 24, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, March 14, 2021

Family Court May Disqualify Counsel

The West Virginia Supreme Court of Appeals upheld the authority of a family court judge to disqualify counsel

In this appeal, we are asked to decide whether a family court has the authority to disqualify an attorney appearing before it. Aaron W., the petitioner here and below, appeals from the Circuit Court of Kanawha County’s January 21, 2020 order denying his petition for writ of prohibition. In his request for prohibitory relief, Aaron sought to prevent the Honorable Robert M. Montgomery, Judge of the Family Court of Kanawha County, and respondent here and below, from holding a hearing on or otherwise deciding the motion to disqualify Aaron’s counsel that was filed in the family court proceedings by the other respondent here and below, Evelyn W. On appeal to this Court, Aaron contends that the limited jurisdiction of family courts does not allow them to consider disqualification motions, while Evelyn responds that family courts have the inherent authority to disqualify attorneys in cases over which the family courts preside. Upon a review of the parties’ briefs and oral arguments, the appendix record, and the pertinent authorities, we find that the family courts of this State have the authority to disqualify attorneys appearing before them. Therefore, we affirm the circuit court’s order reaching this same conclusion.

The issue arose in divorce litigation at a time when the wife was pro se

The husband’s counsel, Mr. Webb, previously had represented both the husband and the wife in a civil action against the Kanawha County Board of Education (“BOE”) in which the husband sought to recover for injuries he allegedly had sustained in an automobile accident; the wife joined the husband’s suit, seeking recovery for loss of consortium. Near, but prior to, the conclusion of the divorce proceedings, Mr. Webb obtained the wife’s waiver of her claim for loss of consortium based upon representations that the BOE case likely would not result in a recovery; shortly thereafter, and after the wife had been dismissed from the civil suit, the husband reached a confidential settlement with the BOE, which was not disclosed to the wife. The family court then held proceedings regarding the division of the parties’ property incident to their divorce, and the wife testified that she waived any claim she may have to proceeds of the husband’s BOE civil suit. On July 10, 2018, the family court entered its final divorce order equitably distributing the parties’ property, which did not include the husband’s BOE settlement proceeds. This order was not appealed by either party.

The wife then retained counsel, who sought a hearing on the alleged conflict of interest. The husband contended that the court lacked authority to hold a hearing.

The court here

Because the family court has the jurisdictional authority to hear and rule upon the wife’s disqualification motion, we find that the circuit court correctly denied the husband’s petition for writ of prohibition seeking to prevent the family court from hearing or deciding said motion.

(Mike Frisch)

March 14, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 4, 2021

Paid For By

The Arkansas Supreme Court reversed a finding by the state Ethics Commission against a judicial candidate for allegedly omitting a "paid for by" reference in a campaign print advertisement

The relevant facts are not disputed. During Weaver’s campaign for Circuit Judge—Division 1, Faulkner County, Weaver’s campaign worked with Faulkner Lifestyle to create a print ad to run in the magazine. LeAnn Livingston, a staff member from Weaver’s campaign, and Raegan Miller, a Faulkner Lifestyle employee, exchanged emails regarding the ad during the editing process. On April 22, 2018, Miller sent Livingston a copy of the ad, and Livingston emailed Miller the next day saying that she loved it but wanted to add Facebook, Instagram, and Twitter icons. Miller responded, “Sure thing!” Later that day, Livingston emailed Miller asking for an invoice so that she could pay for the ad. Critically, Livingston sent a final email to Miller the next day directing her to include the “paid for by” language. Unfortunately, Miller did not include the language, but nonetheless, ran the unsanctioned ad. The publication took full responsibility for the oversight.

No violation

In short, Weaver did not “place” an ad that violated Arkansas Code Annotated section 7-6-228(c)(1), and substantial evidence does not support the Commission’s decision. Because we reverse the Commission’s ruling that Weaver violated section 7-6-228(c)(1), we decline to consider her alternative argument that the Commission’s procedures are unconstitutional. We therefore vacate the Commission’s order as to Weaver’s constitutional arguments and dismiss her cross-appeal. It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions. Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602

A concurring opinion

The Court has issued two opinions, each joined by three justices, and each announcing the plain meaning of a statute. Both opinions miss the plain meaning of the statute. They do so because both parties base their arguments on the same false assumption as to the meaning of the statute that Susan Weaver was found to have violated; and both opinions issued by the Court, rather than correct that false assumption, have adopted it.

Weaver was charged with and found guilty of violating Ark. Code Ann. § 7-6-228(c)(1). In charging Weaver with violating that provision, the Commission staff assumed that subsection 7-6-228(c)(1) prohibits placing a printed political advertisement without the “Paid for by” disclosure. Weaver has accepted that assumption. The Commission likewise accepted that assumption, as did the Circuit Court. Now this Court, too, has accepted that assumption in order to avoid deciding the case based on an argument that was not made by the parties. But that assumption is false.

Chief Justice Kemp dissented 

The majority opinion reverses in part and vacates in part a decision by appellant Arkansas Ethics Commission (“the Commission”) that appellee Susan Weaver violated Arkansas Code Annotated section 7-6-228(c)(1) (Supp. 2019) by failing to include the requisite “Paid for by” disclosure in a campaign advertisement. The majority concludes that “[t]he record demonstrates that neither Weaver nor a member of her campaign staff ‘committed’ a violation or ‘placed’ an ad without the appropriate disclosure,” but the words “committed” and “placed” do not appear anywhere in section 7-6-228(c)(1)—a statute that this court must interpret on appeal. For the following reasons, I respectfully dissent.

Statutory interpretation

the Arkansas General Assembly has not seen fit to amend section 7-6-228(c)(1) to include either a political candidate’s intent to omit the requisite disclosure or her defense in failing to do so. In construing statutes, this court’s case law is replete with assertions that it will not add words to a statute to convey a meaning that is not there.

The Chief Justice would address the Constitutional claim. (Mike Frisch)

March 4, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 26, 2021

Salty And Suspended

The Kansas Supreme Court has suspended a judge for F-bombing court employees.

From the findings of the panel of the Commission on Judicial Qualifications

Respondent frequently used the word 'fuck' and its derivatives when speaking to or near employees and/or others at the courthouse.

Lance Carter served as a district court clerk in Independence for nearly 12 years. Mr. Carter regularly overheard Respondent's use of obscenities. He created a swear journal documenting multiple instances of Respondent's profanity. Mr. Carter did not intend the swear journal to document all of Respondent's profanity.

Mr. Carter received an unsatisfactory performance evaluation from a supervisor in August 2015. When Mr. Carter asked Respondent to discuss the evaluation, Respondent called Mr. Carter into  Respondent's office and said, 'Carter, go sit down in that fucking chair and don't you say a fucking word.' Respondent proceeded to yell and scream at Mr. Carter, using profanity.

Respondent did not give Mr. Carter an opportunity to address Mr. Carter's concerns about the evaluation. When Mr. Carter tried to speak, Respondent told him, 'Keep your fucking mouth shut. You don't have the right to defend yourself here. Don't say another fucking word. Go see Joni Pratt. Get the fuck out of my sight and shut the fucking door on your way out.' Mr. Carter left the room.

Ms. Platt had this encounter over a question she had asked the judge about a courthouse  remodeling project

In response to Ms. Pratt's question, Respondent became 'very angry' and told Ms. Pratt that 'he didn't give a fuck about the carpeting and that that wasn't our fucking building' and that she should call the city manager. Ms. Pratt described Respondent's tone as frightening, loud, aggressive and scary.

She resigned

In June 2018, Joni Pratt resigned from the clerk's office. She asked Judge Gettler to accompany her to Respondent's office as she tendered her resignation. After she told Respondent that she was giving two weeks' notice of her resignation, she left the office and started walking down the hall. Ms. Pratt heard Respondent yell 'Yahoo.' Judge Gettler heard the outburst. The Panel finds that Respondent knew or should have known that his comment would be overheard by Ms. Pratt and others.

And

Former Attorney General Curt Schneider, now a lawyer practicing in Coffeyville, heard Respondent use the terms '"bitch", "cunt", et cetera' in referring to females.

Tim Emert, a lawyer from Independence, heard Respondent's use of obscenities so regularly that it was 'just routine.' Mr. Emert heard Respondent use the words 'bitch' and 'cunt' in describing females. Mr. Emert also heard Respondent use both of these words in the same sentence in talking about the same women. 

Sanction

Respondent's behavior, as established by the Stipulations, Findings, and Conclusions, has been quite troubling. He has intimidated and publicly humiliated court employees. He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings. By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.

In mitigation, Respondent offers that he is efficient and fair in his hearings. He does not mean to hurt or harm. He is just "salty."

We conclude an appropriate discipline in this case is Respondent's suspension from sitting as a judge for one year. If Respondent wants us to consider a shorter suspension, he must formulate a plan that will address appropriate counseling and training for Respondent. Counseling must be more frequent than quarterly and should address more than "professional coaching." Training should include instruction on best practices for working with fellow employees, especially those one supervises, and also include workplace issues of harassment, retaliation, and hostile environment. The completed plan must be approved by the Office of Judicial Administration's Director of Personnel, currently Allyson Christman, before it may be presented to this court for consideration. If, after consideration, we approve the plan, then part or all of Respondent's suspension beyond 60 days will be stayed during compliance with the plan.

Successful completion of the plan must be certified by the OJA Director of Personnel. If that certification occurs, Respondent's successful completion of the plan, along with the days of suspension served, will be considered by us for possible waiver of Respondent's remaining suspension.

(Mike Frisch)

February 26, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 10, 2021

Dismissed With Advice

The Delaware Supreme Court affirmed the denial of relief based on an alleged undisclosed judicial conflict

In 2010, Appellants Meso Scale Diagnostics, LLC and Meso Scale Technologies, LLC (collectively “Meso”) filed suit in the Court of Chancery against Appellee entities Roche Diagnostics GmbH, Roche Diagnostics Corp., Roche Holding Ltd., IGEN LS LLC, Lilli Acquisition Corp., IGEN International, Inc., and Bioveris Corp. (collectively “Roche”), all of which are or were affiliates or subsidiaries of the F. Hoffmann -- La Roche, Ltd. family of pharmaceutical and diagnostics companies. Meso alleged two counts of breach of contract. Roche prevailed at trial, and this Court affirmed the judgment in 2014.

On February 28, 2019, Meso brought a new action asking the court to reopen the case, vacate the judgment entered after trial, and order a new trial. Meso alleged that the Vice Chancellor who decided its case four years earlier had an undisclosed disabling conflict, namely, that Roche’s counsel had been simultaneously representing him in an unrelated federal suit challenging the constitutionality of Delaware’s law providing for confidential business arbitration in the Court of Chancery, 10 Del. C. § 349 (“Section 349”). In that federal litigation, which ended in 2014, the Chancellor and Vice Chancellors of the Court of Chancery, as the parties responsible for implementing the challenged statute, were nominal defendants (hereinafter, the “Judicial Officers”).

The Court of Chancery denied relief and dismissed the action. Meso appeals.

For the following reasons, we AFFIRM the judgment of the Court of Chancery.

The court recited a number of trial court findings

As to extraordinary circumstances, the trial court found that granting relief would severely prejudice Roche by negating a long-settled judgment obtained after trial, while Meso had failed to allege any injustice that it would suffer. Likewise, the trial court found that “the ostensible judicial ethics violation Meso has identified is not remotely, much less conceivably, serious under the Rule 60(b) rubric.”

The court here

We start with the basic rules governing judicial disqualification and recusal and then consider other ethical considerations relevant to the unique circumstances presented here. We then address the Rule 60(b) issues Meso has raised on appeal.

After its survey of court and ethics opinions

the capacity in which a judicial officer is sued is an important factor to consider. On one end of that continuum is a lawyer representing a judge in highly personal litigation such as a divorce or personal injury case (as in In re Howes). On the other end might be, for example, a situation where a member of the Department of Justice (“DOJ”), pursuant to state statute,94 represents a judicial officer sued in her official capacity. Even when judges are sued in their official capacity, there are often other nuances...

In this case, the DelCOG Litigation asserted a cause of action under 42 U.S.C. § 1983.95 The record overwhelmingly shows that Vice Chancellor Parsons was named as a defendant in his official capacity as a Vice Chancellor of the Court of Chancery and was merely a nominal party in the DelCOG Litigation. He had no financial, reputational, or other personal stake in the suit at any time.

Result

The Vice Chancellor did not decide whether recusal was required in this case, and he concluded that he did not need to reach the constitutional questions “because, even if Meso has identified a due process violation, Meso very clearly has not satisfied the requirement of Court of Chancery Rule 60(b) to obtain relief from a final judgment.” We agree. We nevertheless have discussed the ethical principles at some length to reinforce that such dual representation situations should be avoided and that the need for vigilance at the outset of a case is imperative. A judge who finds herself in such a situation should follow the procedure set forth in Los — assuming the judge has no actual bias or prejudice, the judge must examine the facts and circumstances of the particular case to determine whether the judge’s impartiality might reasonably be questioned. We acknowledge Meso’s concerns, and we agree with Meso that even though it asserts noclaim of any actual bias or prejudice on his part, the Vice Chancellor, at a minimum, should have disclosed the representation on the record. Meso then would have had the option of waiving the conflict, or formally seeking the Vice Chancellor’s recusal thereby allowing the recusal issues to be addressed in the proceeding directly instead of years later in a collateral challenge to a final judgment after trial where additional issues come into play.

(Mike Frisch)

February 10, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 5, 2021

Double Dose Of Discipline For Bachelor Party Crimes

A part-time judge was subject to both bar and judicial discipline and has been suspended from his judicial office for two years with all but six months stayed by the Louisiana Supreme Court.

The sanction was imposed retroactively to the date of the bar discipline.

In January 2017, Judge Hardee attended a bachelor party in Park City, Utah celebrating his upcoming wedding. He visited a local bar and consumed excessive amounts of alcohol, becoming extremely intoxicated. It is undisputed that he grabbed the buttocks of a waitress without her consent, Park City Police were called, he did not immediately produce identification, and he failed to cooperate with police at the scene.

Judge Hardee was charged with the following crimes, all misdemeanors under Utah law: (1) Sexual Battery, in violation of U.C.A. 76-9-702.1; (2) Failure to Disclose Identity, in violation of U.C.A. 76-8-301.5; (3) Interference with Arresting Officer, in violation of U.C.A. 76-8-305; and (4) Intoxication, in violation of U.C.A. 76-9-701. He pled no contest to these charges and has fully satisfied all terms and conditions of the plea.

He was sanctioned as an attorney

The consent discipline resulted in Judge Hardee being suspended from the practice of law for one year with all but six months deferred, followed by probation coinciding with the remainder of his JLAP monitoring agreement. If successfully completed, JLAP monitoring will end on December 5, 2022.

This matter involves judicial discipline and the extent of necessary supervision 

Judge Hardee disputes his diagnosis and the need for additional monitoring. He has executed a five-year JLAP monitoring agreement and, assuming he remains compliant, monitoring will end on December 5, 2022. Nevertheless, the Commission, which did not act on this matter until after the ODC and Judge Hardee agreed to attorney discipline, now recommends extending monitoring through December 31, 2026. We reject that recommendation.

But on the merits, not by res judicata as the judge had argued

While under the circumstances of this case we find it appropriate that the probation period for judicial discipline be co-extensive with that for Judge Hardee’s attorney discipline, we emphasize this is not required. We can impose additional discipline. In fact, in the event Judge Hardee violates the terms of his probation, he will be suspended for two years as a judge as opposed to one year as an attorney. However, we find the length of probation and JLAP monitoring imposed for attorney discipline and the fact that Judge Hardee has remained compliant with all terms of that discipline does not warrant either extension of the probation period or additional monitoring. Nevertheless, we feel constrained to express Judge Hardee’s argument for the application of res judicata has no merit.

Judge Hardee’s criminal acts in this case are more serious because he is a judge. The fact that he broke the law erodes the integrity of the judiciary and the public’s confidence in it. His conduct was clearly prejudicial to the administration of justice and has brought disrepute upon his judicial office.

Chief Justice Weimer

Expert medical evaluators, all chosen by respondent, have diagnosed the respondent with some form of substance abuse disorder. The respondent’s denial of those diagnoses through lay testimony and his own belief that he does not meet the diagnostic criteria for a substance abuse disorder is meritless.

While I commend the respondent for the strides he has made, I agree with the Judiciary Commission’s recommendation that the respondent be subjected to an extended period of JLAP monitoring. Accordingly, I would require the respondent to execute a new five-year agreement with JLAP. Accordingly, I respectfully I concur in part and dissent in part.

(Mike Frisch)

February 5, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 4, 2021

Unhealthy Reaction

The New York Commission on Judicial Conduct has accepted a town court justice's resignation based on stipulated misconduct

On October 29, 2020, the Commission authorized an investigation of a complaint alleging that Judge Burker had been charged with criminal mischief for allegedly vandalizing a town official's vehicle by "keying" it while it was parked in a parking lot, apparently in reaction to the town's denial of his request to provide health insurance. Also on October 29, 2020, Judge Burker pied guilty to criminal mischief in the fourth degree, a misdemeanor, in connection with the incident.

The stipulation provides that he will not seek or accept future judicial office. (Mike Frisch)

February 4, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, February 2, 2021

Alternative Facts

A deferred discipline agreement that provides for a judicial commissioner to resign by February 14 has been approved by the Tennessee Board on Judicial Conduct.

The agreement recites an incident took took place in a sheriff's office after the commissioner was called in to review a warrant.

The discussion turned to a case involving a family member.

During the encounter with the officers, [she] was sarcastic, argumentative, raised her voice, and banged her hands on the table. She threatened to call the investigating officer's family, dared him to stop her in the street, and taunted him by commenting that he was afraid of her even though he had a gun. She made it clear that she did not believe his version of the facts, and she offered alternative facts pertaining to her family member's case.

In short, she injected herself into an active criminal case involving a family member and acted in a discourteous and intemperate manner inappropriate for a judicial officer.

(Mike Frisch)

February 2, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 30, 2020

Judge Censured For Advocacy Concerning Daughter's Education

The New York Judicial Conduct Commission has imposed an agreed public censure of a supreme court justice.

From the commission press release

From January 2018 through March 2018, Judge Panepinto publicly supported the teachers at Buffalo City Honors School (“CHS”) in connection with a lawsuit brought by their union (the Buffalo Teachers Federation) against the Buffalo Board of Education. Her daughter attended the school.

Judge Panepinto admitted to:
 making repeated public comments about the issues and people involved in the litigation, in person, by email and on social media platforms in which she was publicly identified as a judge;
 providing legal information and advice to parents of CHS students;
 signing advocacy letters;

 speaking about the pending and impending lawsuits with Board of Education members;
 joining the Federation’s lawyer in the courthouse and outside the courtroom prior to a case conference; and
 executing an affidavit in support of the Federation’s case, which was attached as an exhibit to court papers.

The Commission found that the judge’s “numerous violations of the Rules [Governing Judicial Conduct] during the relevant three-month period undermined public confidence” and that her conduct “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s  education.”

The judge had joined a Facebook group and gave legal advice to group members.

She "publicly criticized" the school principal and posted a Facebook comment to a newspaper editorial, which disclosed her judicial status

Respondent avers that she did not know that Facebook settings would automatically identify her by her judicial title. Respondent concedes that she should have familiarized herself with such Facebook protocols prior to posting the comments at issue.

Public advocacy

On or about February 14, 2018, respondent spoke to a group of more than 100 people at a BBOE meeting at Buffalo City Hall, where she criticized CHS’s plans to transfer teachers. Respondent did not identify herself by her judicial title, but respondent’s appearance and comments were reported in the Buffalo News, which identified her as “a state Supreme Court justice.”

Photographed with counsel in the courthouse hallway

Particularly troubling was respondent’s decision to stand with counsel for the union and two CHS parents in the Buffalo Supreme Court facility where respondent presides. Respondent stood with them in a hallway outside the courtroom of the judge presiding over the union’s case immediately before a case conference was held. By standing with union counsel in the courthouse where she serves, respondent, who spoke repeatedly and publicly in favor of CHS teachers, undermined confidence in the impartiality of the judiciary

There is no suggestion that the justice was motivated by anything other than a sincere interest in her daughter's education but

Respondent’s numerous violations of the Rules during the relevant three-month period undermined public confidence in the integrity and impartiality of the judiciary. The totality of evidence demonstrated that respondent’s extra-judicial conduct was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.

(Mike Frisch)

December 30, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 24, 2020

"Enough"

The Nevada Supreme Court affirmed the imposition of a public admonishment of a hearing master

During juvenile court proceedings, Hearing Master Henry questioned a minor about her cell phone. When the minor's attorney, Aaron Grigsby, refused to answer the question on his client's behalf and interfered when Hearing Master Henry attempted to question the juvenile directly, Hearing Master Henry shouted "enough" at Grigsby several times. Hearing Master Henry also threatened to call the attorney who assigned Grigsby's conflict cases based on his continued objections to Hearing Master Henry's questions and his request to transfer the case to another judge. Hearing Master Henry then increased her probation recommendation regarding the minor from six months to nine months because the minor would not answer her question.

The court affirmed the misconduct findings and evidentiary rulings below.

The case is In The Matter of the Honorable Jennifer Henry. (Mike Frisch)

 

December 24, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 22, 2020

Tolerating Toxicity Gets Court Of Appeals Judge Censured

A public censure has been imposed on a Court of Appeals judge by the North Carolina Supreme Court.

The judge had hired a longtime and close personal friend to supervise his law clerks, resulting in a toxic work environment

Mr. Tuite also regularly used profanity during the workday, belittled others and used fear and intimidation while interacting with and supervising the law clerks. Mr. Tuite frequently used the word “fuck” and referred to female law clerks on more than one occasion as “bitch” or “bitching.”

The judge knew about and implicitly condoned the behavior as well as Tuite's dishonesty and lack of diligence

After learning of Mr. Tuite’s dishonesty and lack of diligence on multiple occasions, Respondent failed to address these issues directly with Mr. Tuite...

during a cold workday while outside with Ms. Suber, Mr. Tuite stated that he would like to see her in a “wife beater” tank top and shorts on a cold day. Mr. Tuite, on or about the following day, asked Ms. Suber to come into Respondent’s office (when Respondent was away from the office), kept the lights off and sat down beside her and told her that he “was married but not blind” or similar words in an apparent attempt to apologize for the inappropriate sexual remark from the previous day. Ms. Suber was offended and upset by the inappropriate and suggestive sexual remarks and non-apology when they occurred, felt unsafe as a result and feared it would occur again.

And

On another occasion, during the summer of 2017, while reviewing a female law clerk’s application, Mr. Tuite intentionally and in the presence of Respondent, Ms. Suber and Ms. Scruggs, repeated derogatory and belittling online comments about the female applicant comparing her breasts to “fun bags.”

Several other workplace transgressions are described by the court.

In response to the complaint

Respondent downplayed, minimized and mischaracterized Mr. Tuite’s workplace misconduct in his December 3, 2017 email to Ms. Jabbar. Respondent did so because his conduct and judgment were influenced by his close personal friendship with and loyalty towards Mr. Tuite...

Notwithstanding Respondent’s knowledge of Mr. Tuite’s extensive workplace misconduct, from the period from December 1, 2017 until January 5, 2018, Respondent regularly assured his close personal friend Mr. Tuite and indicated to others that his employment at the Court of Appeals would continue. On December 1, 2017 and prior to ascertaining if Mr. Tuite had made any sexually inappropriate comments to Ms. Suber, Respondent assured his friend Mr. Tuite that his job was secure. Mr. Tuite again texted Respondent on or about December 4, 2017 and stated to Respondent that he was “glad you have my back.” On Tuesday, December 5, 2015, Mr. Tuite texted Respondent, to whom he referred to as “Dude,” and expressed concern for his job security. Respondent texted back and again reassured his close friend: “You are not losing your job. This sucks tremendously for everyone, especially given what I expect to be an easy resolution when the smoke clears.” On December 11, 2017, Respondent contacted Ms. Jabbar and informed her that he wanted Mr. Tuite to return to the office, to which Ms. Jabbar replied that Mr. Tuite “should not return to the office for any reason” until the investigation is complete. On January 4, 2018, Respondent also advised his chambers that he was planning for Mr. Tuite’s return to work and intended to move Mr. Tuite’s desk from the EA area into Ms. Scruggs’ private law clerk office in the hallway.

The court rejected the judge's sufficiency of evidence contentions as well as his suggestion that he was being sanctioned for the conduct of Tuite

Respondent’s vindictive behavior toward Mr. Cooper immediately before and after his resignation violates these canons. Respondent was neither courteous nor dignified, nor did he require courteous or dignified behavior from his staff. Similarly,  respondent’s failure to address Mr. Tuite’s inappropriate comments about a female applicant, angry outbursts, and frequent use of profanity against law clerks in the chambers amount to violations of Canons 3A(3) and 3B(2).

The Court recognizes that respondent was not immediately made aware of the entirety of Mr. Tuite’s misconduct in chambers. The incidents for which respondent was present, however, were sufficient to warrant corrective action with regard to Mr. Tuite. Instead, respondent continued to turn a blind eye. This shortcoming is not, as respondent contends, simply a matter of managerial style. Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward respondent’s law clerks and the impact on the law clerks of such unprofessional behavior.

Progressive Pulse reported on the decision. (Mike Frisch)

December 22, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Making A Point

The North Carolina Supreme Court has publicly reprimanded a judge who held a probable cause hearing in the absence of counsel, who was late for a scheduled 2 pm hearing.

The judge held the hearing at the end of his calendar at about 2:50

Unlike the trial court in Simpkins, respondent rushed to hold a hearing without counsel present, he failed to explore other options regarding counsel prior to commencing the proceeding, and he made comments about “making a point” after the proceeding. This conduct demonstrated a disregard for the defendant’s statutory and constitutional rights, and that disregard undermines public faith and confidence in the judiciary.

The court adopted the recommendation of the Judicial Standards Commission.

Justice Earls dissented 

Because it is not clear to me that respondent’s conduct, while misguided, was so egregious as to be prejudicial to the administration of justice, I would have remanded to the Judicial Standards Commission for the issuance of a private letter of caution rather than issue a public reprimand from this Court

Justices Newby and Davis joined the dissent. (Mike Frisch)

December 22, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, December 18, 2020

The Scream

The Ohio Supreme Court has suspended a former magistrate for six months, rejecting the Board on Professional Conduct's proposed stay of the suspension

In a December 5, 2019 complaint, relator, disciplinary counsel, alleged that Bachman engaged in judicial misconduct in conjunction with an incident involving a woman who had disrupted a trial in his courtroom by screaming in the hallway. Bachman left the bench to locate the woman, brought her into his courtroom, summarily held her in direct contempt of court, and when she protested his actions, increased her three-day jail sentence to ten days.

The alleged contemnor came to the courthouse seeking a civil protection order and was told by the clerk's office to return on the following day.

She went to the courtroom in the hope of being heard that day and had a conversation with the magistrate's law clerk.

She exited the courtroom and 

K.J. then screamed so loudly that it was heard in the courtroom and captured on the audio system that was recording the proceedings. Bachman immediately said, “Okay, time-out” and stopped the trial. He then left the bench and exited the courtroom.

He directed her to return 

She complied and began to walk back to the courtroom with Bachman following her. When K.J. turned toward the main entrance of the courtroom, Bachman placed his hand between her neck and her shoulder and redirected her to a side entrance. With his hand still firmly between her neck and her shoulder, Bachman directed her into the courtroom and into the jury box.

Her "trial" followed

K.J. became upset, started crying, and yelled, “No! No!” Bachman stated, “Don’t make it worse ma’am.” After K.J. resisted the deputies and screamed several times, Bachman said, “Ten days.” While the deputies wrestled with K.J., she yelled, “Why every time I come here to get help, you always send me to jail? You didn’t even hear what it was that I had to say and now I got to go to jail for three days.” Bachman, replied, “Now it’s ten, ma’am.” As deputies dragged K.J. from the courtroom at Bachman’s direction, Bachman addressed one of the deputies to congratulate him on an award that the deputy had received; according to Bachman, he was attempting to “inject some humanity” into the situation. Later that day, Bachman signed an order finding K.J. in direct contempt of court.

The court presiding judge viewed a video of the incident and ordered K.J. released after two days.

He resigned from the bench in the wake of the incident.

The court here called the video "revealing and disturbing"

The next 20 minutes of the video are difficult to watch. While K.J. resists being arrested and pleads with Bachman to explain why she is being jailed for three days, she is physically subdued by two deputies, threatened with being tased, and ultimately dragged from the jury box by several deputies. Bachman’s only response is to increase her jail sentence to ten days. Not only is the chain of events set in motion by Bachman’s misconduct physically and emotionally harmful to K.J., the incident exposed the sheriff’s deputies and other court personnel to harm from a violent and unnecessary arrest on full display in front of a courtroom full of people who have no other choice but to sit silently and witness such a disturbing sight. Bachman then congratulates a deputy on an award the deputy had recently received and resumes the proceeding as if nothing out of the ordinary has just transpired. Meanwhile, the video footage shows, while K.J. continues protesting her arrest, she is dragged, yanked, pinned to a wall, and handcuffed to a chair. Before the video ends, over 20 deputies and members of the court staff are involved in jailing K.J.—all because of a scream of frustration in the hallway that lasted one second.

The court on sanction found he lacked insight into his wrongful conduct

Sending someone to jail is not the adult equivalent to sending a child to his or her room for a time-out.

...the board recommends that we impose a sanction of a six-month suspension stayed in its entirety. However, we find that a stayed suspension is not commensurate with the judicial misconduct in this case. When a judicial officer’s misconduct causes harm in the form of incarceration, that abuse of the public trust warrants an actual suspension from the practice of law

(Mike Frisch)

December 18, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 17, 2020

The Judge Is Not A Witness

The Tennessee Court of Appeals has affirmed the denial of a recusal motion filed by a defendant law firm in a legal malpractice case.

The trial judge had handled the underlying class action settlement that led to the malpractice allegations.

The law firm contended that he was a necessary witness in the present matter.

This lawsuit was brought against attorneys who had represented Ms. Hawthorne and others in a prior class action case in Chancery Court, one that concerned the mishandling of human remains at the Galilee Memorial Gardens cemetery. In her first amended complaint in the Malpractice Suit, Ms. Hawthorne asserted that the named Defendant attorneys, “along with their corporate affiliates, recklessly consider[ed] themselves to be infallible . . . [and] wielded total control of the Galilee Class Action . . . and egregiously and inexcusably refused to entertain, respond to, and accept over $25 million dollars in settlement offers made by the Funeral Home Defendants during the trial of the Galilee Class Action.”

The amended complaint alleged over $11 million in damages.

The law firm's position

In this matter, the Defendants contend that they will be calling Chancellor Kyle as an essential witness to prove the falsity of Ms. Hawthorne’s allegation that the Galilee Class Action would have settled for huge sums but for alleged malpractice. Chancellor Kyle will be a key witness, they suggest, due to the requirement that settlements in class actions must garner the consent of the trial court.

The court here

No doubt, the assertion here is that favorable settlements in the underlying lawsuit would have been achieved absent the Defendants’ negligence.  Clearly, therefore, that is part of the case Ms. Hawthorne must establish in her “trial within a trial.” In our view, however, the jury is not in a position to make the determination of whether any alleged settlements would have been approved in the underlying litigation. That question is for the court, not the jurors as factfinders, and therefore, there is no basis to solicit supposed factual testimony from Chancellor Kyle on the question. He does not need to testify.

(Mike Frisch)

December 17, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 16, 2020

Judge Reprimanded For COVID Guideline Disobedience

The Tennessee Board of Judicial Conduct has reprimanded a judge for violation of the state Supreme Court COVID guidelines

your courtroom has at times been filled to capacity, even to the point of members of the public having to stand shoulder to shoulder along the walls because all seats are taken.

Also a courtroom comment

you wished that Chief Judge Jeff Bivens would win an award so that the COVID-19 mandates from the Supreme Court would end.

The judge acknowledged the misconduct.

The board letter noted that the judge's courtroom is small and that he sought to address the backlog on the docket.

However, the court guidelines are not "mere suggestions" and compliance is "not optional." (Mike Frisch)

December 16, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, December 14, 2020

Answer No

An opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2020-26
Date of Issue: December 10, 2020

ISSUE

Whether an outgoing judge may authorize a prospective employer to advertise the judge’s anticipated post-judicial employment at the firm

ANSWER: No

Facts

The inquiring judge will be leaving judicial office in the next few months. The judge has secured prospective post-judicial employment at a private law firm. The firm has indicated that it would like to immediately begin advertising the judge’s affiliation with the firm with respect to the anticipated post-judicial employment. The inquiring judge’s term ends on January 5, 2021.

The inquiring judge wishes to know whether the law firm’s advertising would be prohibited by the Code of Judicial Conduct.

Reasoning

Our Committee has not squarely addressed the specific issue the inquiring judge has raised. However, our federal counterpart, the Committee on Codes of Conduct of the Judicial Conference of the United States, has. In Committee on Codes of Conduct Advisory Opinion No. 84: Pursuit of Post-Judicial Employment, the federal committee observed:

Questions also may arise concerning a future employer’s desire to announce or otherwise advertise a judge’s post-judicial employment. On these questions, the Committee has advised that once the judge has actually resigned and joined the new employer, it is not improper for the employer’s formal announcement of affiliation to identify the office and court from which the judge retired or resigned. However, that guidance assumes the announcement is made after the judge has left the bench. A post-resignation announcement avoids the appearance of impropriety because, after a judge has left the bench, the judge has no judicial position, and therefore no position to exploit. However, while a judge remains in office, this risk remains. In addition, the Committee has advised that by allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer. Similarly, the prospect of a pre-resignation announcement raises Canon 2 concerns for the judge. Although the judge may not enjoy any immediate profit from the announcement, the judge’s future employer likely benefits from its association with a sitting judge, and the judge arguably stands to gain indirectly from the public advertisement of the judge’s post-judicial employment. It follows that announcements of the judge’s future employment made through interviews or contacts with the media are subject to the same restrictions.

We agree that by “allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer.” Accordingly, we answer the inquiring judge’s question in the negative.

(Mike Frisch)

December 14, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)