Legal Profession Blog

Insurance Claim And Recusal

The Florida Judicial Ethics Advisory Committee has issued an opinion

Civil judge who presides over insurance-related cases and who filed an insurance claim following Hurricane Michael should 1) disclose to all insurance-related litigants in their division of the judge’s filing of a hurricane-related insurance claim; and 2) recuse themselves from any cases involving the same insurance company with whom the judge’s claim is pending.  If the judge’s claim settles, there should be disclosure of the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company. If the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the representation ends.

Issue

Issue 1: Under what circumstances must judges disclose and/or recuse themselves from hurricane-related cases when they have filed an insurance claim with an insurance company that also has cases coming before them?

ANSWER: Pursuant to Canon 3E and its commentary, the inquiring judge(s) should 1) disclose that they have a filed a pending hurricane-related insurance claim to all parties or their attorneys with  hurricane-related insurance claims in their division; and 2) recuse themselves from any cases involving the insurance company with whom the judge has filed their claim.

Issue 2: What if the case settles?

ANSWER: If the case settles, the inquiring judge must disclose the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company.

Issue 3: What if the insurance case proceeds to litigation?

ANSWER: If the case proceeds to litigation, and the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the litigation ends.

(Mike Frisch)

N-Word At Home No Basis For Discipline Per Louisiana Hearing Committee

A Louisiana Hearing Committee has found no ethical violation in a (now former) judge's use of the "n" word in her home.

The report - filed today - involves an incident that took place after an attempted burglary incident of vehicles outside the judge's home.

While at home and reviewing a video surveillance tape on her home security system, she was joined by her son and his friends and was overheard saying

We have a n*****, it's a n*****, like a roach.

The recorded video was posted on the interest and "widely circulated."

The judge resigned several days later.

According to the committee

There is no ground for discipline under the Louisiana Rules of Professional Conduct for profanities or uncivil language used by a lawyer in their own home.

The committee noted that the self-imposed sanction of resignation to be "more onerous than any discipline sought by the ODC such that any requested discipline is superfluous."

The Acadiana Advocate reported on the resignation.

More than 100 people filed complaints with the Louisiana Judiciary Commission after seeing the video. Even Saturday Night Live mentioned the judge after news of the slurs traveled worldwide.

(Mike Frisch)

A Tale Of Two Chancellors

The Tennessee Court of Appeals ordered recusal of a judicial officer in a matter where the client (doing business as Doghouse Computers) is represented by the opponent he defeated (and unseated) in a recent election

This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee from the chancery court’s denial of a motion to recuse. A new chancellor, during the course of a judicial election and shortly after the election was held, made extremely critical comments regarding the personal and  chancellor, who has returned to practice, is now representing a party before the new chancellor. The former chancellor moved for the new chancellor’s recusal in cases in which the former chancellor is appearing as counsel as well as recusal from cases involving the law firm which the former chancellor joined after losing the judicial election. The new chancellor denied the motion. On appeal, we conclude that, even in the absence of actual bias, based upon concern about the appearance of bias toward the former chancellor, recusal is warranted. This concern does not extend to the law firm the former chancellor has joined. Accordingly, we reverse the denial of recusal insofar as it concerns the former chancellor but affirm the denial of recusal insofar as it concerns the law firm.

The story

Then-attorney now-Chancellor Ben Dean ran against Mr. McMillan and defeated him in the August 2022 election. Mr. McMillan asserts that, during the course of the election, Chancellor Dean made extremely derogatory remarks about his character through public Facebook postings and that these remarks warrant recusal under Tennessee Supreme Court Rule 10B.

As an illustration, Mr. McMillan notes that during the campaign, when drawing a sharp distinction between the candidates over the question of character, the “Committee to Elect Ben Dean Chancery Judge” posted the following:

. . . My opponent keeps saying the mantra “Experience Matters,” yet he has little to nothing to say or show about anything positive he has accomplished professionally or personally in 18 years as Chancellor.

Let me tell you my mantra: “Character Matters!” More importantly, how you treat people matters. All the experience in the world means nothing if you can’t be nice and kind to people or if you are a morally bankrupt soul….

Similarly, after Mr. Dean won the election, Mr. McMillan’s stepson posted on Facebook that the politicization of the race was “a loss for the moral integrity” of the court. The “Committee to Elect Ben Dean Chancery Judge” responded:

Surely you are not suggesting his loss will result in the loss of the moral integrity of the judiciary in these two counties. I haven’t broadcasted or laid bare his many past moral failings and deep character flaws, and ran a fairly positive campaign with an actual platform of change versus attacking him and telling all the sordid details of his own personal failings. The voters have spoken and character matters!

The former Chancellor sought recusal of his successor 

In ruling on the motion to recuse in this case, Chancellor Dean declared he held “no ill will, personal bias or prejudice against Attorney McMillan.” We do not doubt either the sincerity or accuracy of Chancellor Dean’s declaration. In other words, in considering this appeal, we do not conclude that Chancellor Dean is actually biased against Mr. McMillan and do not doubt that he would be impartial in any matter in which Mr. McMillan served as counsel. The standard, however, directs courts to consider appearances and whether a reasonable, disinterested person would believe that there is a reasonable basis for questioning the judge’s impartiality.

But that appearance does not extend to the law firm

We come to the opposite conclusion, however, regarding the recusal of Chancellor Dean in cases involving Mr. McMillan’s law firm. The motion for recusal itself contains no specific allegations of bias with regard to Mr. McMillan’s law firm; it merely proceeds on a theory of taint by association. On appeal, Mr. McMillan cites to the trial court’s order as evidence of a “metastasizing cancer of bias” against the firm, asserting the trial court considered extraneous material and made a “veiled threat.” However, the record contains no objective evidence from which bias or appearance of bias against the law firm could be reasonably inferred. Having reviewed the materials appended to the motion to recuse, we conclude there is simply nothing in the record to support an inference of bias against the law firm. Compare Bean, 280 S.W.3d at 801, 806 (the judge called the attorney’s partner “the worst excuse for a lawyer that there has ever been” and requested an investigation of members of the law firm for alleged criminal conduct). Accordingly, we affirm Chancellor Dean’s denial of the motion to recuse with respect to Mr. McMillan’s law firm.

(Mike Frisch)

The Scoop

The Indiana Supreme Court has suspended a judge for one week without pay

We find that Respondent—the Honorable Jeffrey F. Meade, Judge of the Gibson Circuit Court—engaged in judicial misconduct by making intemperate comments from the bench; by holding an off-the-record, unrecorded child-in-need-of-services (“CHINS”) hearing in which he ruled on various substantive motions; and by failing to provide all parties to those CHINS proceedings with sufficient notice, an opportunity to be heard, and an opportunity to fairly participate in the hearing. Not only were Respondent’s actions prejudicial to the administration of justice in those specific cases, but they also damaged the public’s confidence in the integrity and impartiality of the judiciary more generally. For the reasons set forth below, we agree with the parties that Respondent’s misconduct warrants a seven-day unpaid suspension from office.

Intemperate remarks

During the November 2019 hearing and a hearing in May 2021, Respondent also made disparaging statements to and about the parties, including:

• Telling Father to “be quiet,” “zip it,” to “shut [his] mouth,” and to “shut up,” even after Father apologized and indicated he understood.
• Referring to Father as “Bud,” “Buddy,” “Bro,” and “Man.”
• “And then what you don’t have is, see, you don’t have the child being passed off like a football. Oh, I’ll pick—let me run for ten yards with it because I don’t want that child to go over ten extra— over ten extra yards, and then the handoff.”
• “This is just bullshit. I’m sorry, I’m a farm boy. I was raised—I’m older than you. I was scooping hog shit long before you, man. I’m going to tell you what, this is crap. It stinks. This kind of behavior stinks. Okay?”
• “Now, I’m not playing with this. Okay? This is the 10th freaking day of this hearing. Okay? And again I’m not prejudging nothing. I’m going to hear this case out and we’ll let the attorneys do their findings. Okay? But I’m going to tell you what, you best be calling daddy up to get some money coming, I’m telling you that right now, because you have intentionally interfered with this woman’s parenting time. Okay? And it’s going to cost you a bundle. Okay?”
• “This is one of the most egregious, okay, egregious interference of parenting time that I’ve ever seen. Okay? You do not follow my order again you bring your toothbrush, you’re going to be over there for days and weeks and months. Is this crystal for you, man?”

(Mike Frisch)

Casey On The Bench

A Tennessee General Sessions Court Judge has been reprimanded by the Board of Judicial Conduct for comments made to a litigant in his court.

The judge called the litigant a "tough guy" and asserted that he "hoped he would run into him someone like [him] someday."

The complainant alleged the following statement was directed to him

"If somebody called [your] grandfather an SOB we would probably in more than a cuss fight, we would be in a fist fight, and probably to the death."

The judge acknowledged the "tough guy" and "hope" remarks and further agreed that he had told the litigant's daughter to "shut up."

The judge had responded to the complaint by stating the the conduct was a reaction to a rude litigant.

The Board noted that a judge cannot deal with a rude litigant by reciprocating. Rather, "the more tense or difficult the situation, the more important it is for the judge to remain dignified and composed and not be drawn into an escalating situation."

The letter noted a previous warning for "lack of self control in raising your voice and using intemperate words in court." (Mike Frisch)

Judge Resigns

The New York Commission on Judicial Conduct reports that a Surrogate's Court judge has resigned in the face of pending misconduct allegations

Judge Thompson was charged in May 2022 with a Formal Written Complaint, alleging that she made inappropriate comments to and about employees and judges of the Unified Court System; displayed bias against various individuals and ethnicities; failed to administer Surrogate Court matters in a timely manner, leading to substantial delays; and, as a candidate for Surrogate in 2018, failed to complete mandatory campaign ethics education in a timely manner.

A formal hearing was scheduled to commence on January 17, 2023, before a Commission referee, Mark S. Arisohn.

After Judge Thompson produced a letter from her physician on November 30, 2022, claiming she was “not medically fit to stand trial at this time” and that further medical procedures were likely, the Commission authorized a Second Formal Written Complaint against her, dated December 16, 2022, alleging that she was medically unfit to remain in office.

In lieu of filing an Answer to the Second Complaint, Judge Thompson agreed to leave office permanently due to her medical situation. She also agreed to discontinue any lawsuits she had commenced against the Commission. Judge Thompson waived the statutory provision of confidentiality applicable to Commission proceedings, to the limited extent that the stipulation and the Commission’s order accepting it would be public.

Judge Thompson has served as a Judge of the Surrogate’s Court since 2019. Her current term would have expired on December 31, 2026. She previously served as a Judge of the New York City Civil Court from 2011 to 2018.

The City had reported on the matter

In December 2021, after a court inspector general’s report documented hateful statements that Brooklyn Surrogate Court Judge Harriet Thompson allegedly made in front of court staff about Hispanics, whites, gays, West Indians, the overweight and the ill, the state’s Office of Court Administration blocked the judge from hearing new cases. She was also made to surrender her keys and access cards to court facilities.

The inspector general referred the matter to the state’s judicial commission and Thompson remained on payroll during the still ongoing probe of the claims about her remarks.

On one occasion, the inspector general accused Thompson of insulting various members of the judiciary for their sexual orientation, allegedly saying, “Being gay is an abomination to mankind. Man shall not lay with man.”

On another occasion, the inspector general alleges, Thompson declared that she did “not like Hispanic people,” continuing: “They have a deceitful trait that goes way back to biblical times ... The men are always stealing, and the women are no better, they lie, steal, and use their vaginas for anything they want.”

The stipulation reached in the matter is linked here. (Mike Frisch)

Scooping Hog Sh*t: "It Stinks"

An Indiana Circuit Court Judge has been charged by the state Commission on Judicial Qualifications

At all times pertinent to these Charges, Respondent presided over a general jurisdiction docket that included criminal and civil cases. Respondent's docket includes Children In Need of Services ("CHINS") cases, guardianship cases, paternity cases, and dissolution cases.

In a paternity matter

During Father's cross-examination on November 7, 2019, Respondent exhibited impatient, undignified, and discourteous behavior with Father.

During Father's cross-examination, Respondent interrupted the cross-examination at various times, making statements that included but are not limited to:

a. Telling Father to "be quiet," "zip it," to "shut [his] mouth," and to "shut up," even after Father apologized and indicated that he understood.
b. "And then what you don't have is, see, you don't have the child being passed off like a football. Oh, I'll pick - let me run for ten yards with it because I don't want that child to go over ten extra - over ten extra yards, and then the handoff."
c. "This is just bullshit. I'm sorry, I'm a farm boy. I was raised - I'm older than you. I was scooping hog shit long before you, man. I'm going to tell you what, this is crap. It stinks. This kind of behavior stinks. Okay?"

During the November 7, 2019 hearing, Respondent also made statements about his own divorce and custody proceedings, comparing the situation with that of Mother and Father in Paternity of HL.

At a later hearing

a. Referring to Father as "Bud," "Buddy," "Bro," and "Man."
b. "Now, I'm not playing with this. Okay? This is the 10th freaking day of this hearing. Okay? And again, I'm not prejudging nothing. I'm going to hear this case out and we'll let the attorneys do their findings. Okay? But I'm going to tell you what, you best be calling daddy up to get some money coming, I'm telling you that right now, because you have intentionally interfered with this woman's parenting time. Okay? And it's going to cost you a bundle. Okay?"
c. "This is one of the most egregious, okay, egregious interference of parenting time that I've ever seen. Okay? You do not follow my order again you bring your toothbrush, you're going to be over there for days and weeks and months. Is this crystal for you, man?"

In a CHINS matter, he is alleged to have held chambers conferences off-the-record and failing to provide notice and the opportunity to be heard to all parties. (Mike Frisch)

Hold The Humor But OK To Preside At Retrial

A prosecutor's motion to disqualify the judge from presiding in the retrial of a capital murder case has been denied by Ohio Supreme Court Chief Justice O'Connor

“Tension between a judge and a county prosecutor is bound to occur in our adversary system. Both sides seek to attain justice, but they do not always agree on what that means. However, principles of professionalism require judges and prosecutors to give proper respect to each other and to treat each other with the dignity and courtesy that each office deserves.”

Alleged bias

In October 2022, Judge Howard presided over a 12-day jury trial. After two days of deliberations, Judge Howard found that the jury was deadlocked and declared a mistrial. In his affidavit of disqualification, Mr. Gmoser avers that for three reasons, Judge Howard is biased against the state of Ohio and should not preside over the retrial. First, Mr. Gmoser alleges that Judge Howard “steer[ed] the jury into a deadlock” by, among other things, giving a Howard charge despite no indication of a deadlock, denying the jury’s request to review the transcript of a witness’s testimony, and failing to remove two jurors for misconduct. Second, Mr. Gmoser alleges that throughout the first trial, Judge Howard repeatedly held off-the-record conferences in his chambers about material issues. Third, Mr. Gmoser avers that Judge Howard displayed an offensive sign in his office, made crude and sexual jokes to counsel, and failed to conduct the first trial with the decorum required for a capital case.

Judge Howard submitted a response to the affidavit and denies any bias against Mr. Gmoser or the prosecution. The judge disputes that he “steer[ed]” the jury into a deadlock and explains why he declared a mistrial. Judge Howard further notes that the state never objected to holding unrecorded conferences in his chambers and never complained about the alleged lack of decorum in the courtroom. With respect to the other allegations, Judge Howard says that he removed the sign from his office and that he never intended to offend anyone with his comments or stories—although the judge denies making any “sexual jokes.” The judge says that in the future, he will refrain from any similar attempts at humor.

No joking matter

Although some types of humor may have a place in the courtroom, a judge’s use of undignified language degrades the decorum of the court and diminishes public confidence in the judiciary. Judge Howard has recognized that his attempts at humor, including his comments about other judges, were unnecessary or ill-advised. The issue in this disqualification matter, however, is not whether Judge Howard should be disciplined for making offensive comments or displaying inappropriate signage in the judge’s chambers. The issue is whether Judge Howard should be disqualified from the underlying case due to bias against Mr. Gmoser or his office.

Law

Here, Judge Howard has apologized for his “comments or stories in chambers with counsel” and affirms that he will refrain from such comments in the future. Mr. Gmoser has not established that those comments—or any of the other behavior alleged in the affidavit—require the judge’s disqualification from presiding over the retrial.

WLWT 5 reported on the controversy (Mike Frisch)

Party Affiliation Does Not Warrant Disqualification

An elected judge's political affiliation did not warrant disqualification from a case involving a litigant with whom he is affiliated, per a decision of Ohio Supreme Court Chief Justice O'Connor

Mr. Morris has sued the Ohio Democratic Party (“ODP”) and some of its individual officers. He claims that Judge Miller has a conflict of interest because he is a member of the Franklin County Democratic Party—which Mr. Morris describes as an affiliate of the ODP—and because the judge’s campaign committee has contributed to the county party. In addition, Mr. Morris alleges that Judge Miller has demonstrated bias by ignoring some of Mr. Morris’s motions and by ruling in favor of the defendants on other matters.

Judge Miller submitted a response to the affidavit and denies any bias against Mr. Morris or in favor of the defendants. The judge acknowledges that he is a member of the ODP and the Franklin County Democratic Party and that his campaign committee has made yearly contributions to the county party.

Ruling

Judge Miller affirms that his political relationship with the ODP will not influence his decision-making. The judge’s current term expires in February 2027, and it does not appear that he is actively campaigning for reelection. Although Judge Miller personally donates a small amount each month to the ODP, there is no evidence that he holds any office in the ODP or that he is currently receiving any tangible benefit from the organization. Further, Mr. Morris claims that he seeks only injunctive relief against the ODP—that is, he seeks to get his temporary job back; he does not seek damages. We elect judges in Ohio, and just as we must ordinarily assume that an attorney’s support of a judge will not cause the judge to favor that attorney when he or she appears before the judge, see In re Disqualification of Osowik, 117 Ohio St.3d 1237, 2006-Ohio-7224, 884 N.E.2d 1089, ¶ 6, we must assume that a judge’s endorsement by or support of a certain political party will not affect the judge’s decision-making if that political party later appears before the judge. Based on this record, there is no evidence to call that general assumption into doubt.

(Mike Frisch)

Suspension Proposed For Long-Sitting Judge

A Cuyahoga County judge should be suspended for a year according to a report and recommendation of the Ohio Board of Professional Conduct.

Cleveland.com reported

The Ohio Supreme Court should remove long-sitting Cuyahoga County Common Pleas Court Daniel Gaul from office and suspend his license for one year, a disciplinary panel recommended on Friday.

A panel of attorneys for the court’s Board of Professional Conduct held that Gaul committed misconduct in eight cases spanning five years, cases that featured him coercing a man to plead no contest to charges of which he would later be acquitted, ordering a man to spend 30 days in jail for talking back to him in court, and calling multiple Black defendants “brother.”

The hearing also was the subject of reporting by the same source

Tuesday’s hearing was in response to a complaint filed by the Office of Disciplinary Counsel, a division in Ohio’s judiciary branch that pursues allegations of misconduct against lawyers and judges. Gaul, who has spent nearly 32 years on the bench, is accused of misconduct and violating the Ohio Code of Judicial Conduct and Ohio Rules of Professional Conduct.

 

Some of Gaul’s courtroom actions were featured in an episode during the third season of the Serial podcast, which focused on the criminal justice system in Cuyahoga County.

A Stationary Offense Draws Admonition

A press release from the New York Commission on Judicial Conduct describes a recent admonition

In May 2020, Judge Aronian completed two Character Reference Letters on behalf of his court clerk and her husband, who were his neighbors and were applying for unrestricted pistol licenses. Although he is a practicing attorney as well as a part time justice, he identified his occupation as “Judge” on each letter. After his court clerk’s application was denied by the Westchester County Court, Judge Aronian personally called the court to inquire about the appeals process. He then wrote a letter to the judge handling the matter, on court stationery identifying himself as a town justice. The appeal was denied.

In admonishing Judge Aronian, the Commission noted that when the judge “invoked his judicial status and used his judicial stationery to write to the County Court judge to advocate for reconsideration of the denial…[Judge Aronian] created the improper appearance that he expected special treatment and deference because of his status as a judge.”

Judge Aronian, who is an attorney, has been a Justice of the North Salem Town Court since 2016. His current term expires on December 31, 2023.

(Mike Frisch)

Tennessee Judge Suspended

The Tennessee Supreme Court has ordered a 30-day suspension of a General Sessions Court judge who had been arrested on August 17, 2022 for driving under the influence as well as possession of a handgun while under the influence when a handgun was found in the glove box of his car.

The judge promptly self-reported the arrest and entered into an inpatient rehabilitation program. He successfully completed that program. 

He pleaded guilty to the driving offense and other charges were dismissed. He was required t o surrender the firearm, prohibited from driving for a year, and had an ignition interlock device on his vehicle. (Mike Frisch)

Bike Rental Dispute Leads To Judicial Misconduct Charges

A dispute over rented bicycles has led to charges of judicial misconduct before the Michigan Judicial Tenure Commission

Respondent attended a judicial conference on Mackinac Island on August 20, 2019.

Respondent rented bicycles from the Mackinac Island Bike Shop on Main Street for herself and a colleague.

Respondent Brue provided her credit card number to the staff of the bicycle rental shop before she was given bicycles for herself and the colleague.

When they returned their bicycles to the shop, respondent and her colleague explained to the bicycle shop staff that the colleague had a problem operating the bicycle.

Respondent did not want to pay full price for the rentals and asked a staff member for an accommodation. The staff member summoned his supervisor.

Respondent Brue spoke with the supervisor and again asked for an accommodation. The request was denied.

Respondent Brue told at least one of those two employees that she and the colleague were judges.

One of the employees summoned Ira Green, the proprietor of the bike shop.

Mr. Green and respondent spoke for approximately 20 minutes but were not able to resolve their disagreement over how much to pay.

During her discussion with Mr. Green respondent Brue said words to the following effect:
You’re going to call the police on two black judges. . . We’re trying to explain to you the situation with the bikes and so now you want to call the police officers on us.
****
I am absolutely a judge.

During her discussion with Mr. Green respondent reached over the cash register and forcibly attempted to take the bike rental paper out of Mr. Green’s hand, ripping the paper.

Respondent Brue then said to Mr. Green words to the effect:
You assaulted me. Did you just assault me? You took my receipt and tore it up. I want the police. Now we need the police. I am going to call them. Because you just assaulted an elected official who is here. . . who came here by invitation for a conference. You assaulted me. I asked you for my receipt back. You snatched my receipt back from me. You snatched my receipt and threw it away and grabbed my hand and you hurt me. You touched my hand with force and violence. I am a female. I am a judge. I am here for a conference and you --- . . . --- I am an African America female. That was racist, and it was disrespectful and it was violent.

No, you settle down. You touched me. I am afraid, I’m shaken. I’m in fear of my safety. --- With violence.” Do you know what is now going to happen to you, a Caucasian man that’s found guilty of striking an African American female judge?

The police responded and, allegedly, the judge made false statements

When Officer Hardy returned from watching the video of the incident, he told respondent Brue words to the effect of “it looks like you did the assault.” He demonstrated multiple times what he saw respondent Brue do that was captured on the video.

Then

Respondent Brue eventually admitted to Officer Hardy that Mr. Green had not assaulted her, and that she had reached across the counter and attempted to take the paper from Mr. Green.

Trooper Bergsma negotiated a settlement whereby respondent Brue and her colleague did not pay for their bicycle rentals, Mr. Green provided respondent Brue a receipt showing that she did not owe any money, and respondent Brue and Mr. Green would not seek to prosecute the other.

The judge also is alleged to have made false statements to the Commission concerning the incident.

Editor's note: The Michigan Judicial Tenure Commission web site is first rate. Highly informative with easy access to case information. (Mike Frisch)

Urine Trouble

The Kentucky Supreme Court has removed a judge from office for a host a violations including involvement in her son's criminal matters

Prior to her election in 2016, Judge Gordon was an attorney and served as a Guardian Ad Litem (GAL) in Daviess County. She served as GAL for a child named Dalton since he was a young child, approximately a decade. After years of Dalton being moved around the state with no permanent home or family, Judge Gordon resigned as his GAL and she and her husband Sale adopted him in 2013, just after he turned eighteen. Dalton suffers from substance abuse and mental illness issues. He also has criminal history dating back to 2017.

Throughout 2021 and 2022, the Commission received a series of complaints alleging Judge Gordon engaged in numerous instances of judicial misconduct. Between 2017 and 2021, Judge Gordon inappropriately inserted herself into at least three of her son’s Daviess County criminal cases. Judge Gordon was the complaining witness or victim in each of those cases, placing her in the difficult position of concurrently being a parent, victim and judge in the same county in which Dalton’s criminal cases were adjudicated. Given the nature of the accusations, the Commission authorized a preliminary investigation pursuant to Kentucky Supreme Court Rule (SCR) 4.170(1). The Commission notified Judge Gordon of the allegations on July 6, 2021, and she responded with a twenty-seven page sworn statement.

An unusual directive

Judge Gordon took it upon herself to administer drug tests using her secretary, her case manager, and others to conduct such testing, creating conflict and calling her impartiality into question. The validity of the drug testing was questionable as urine tests were stored in chambers in a refrigerator Judge Gordon purchased and on occasion the samples left the courthouse with Judge Gordon’s staff overnight, compromising the chain of custody.

The court rejected her claim that her conduct was permissible under a victim's right provision

Although Judge Gordon argues that she was permitted to participate in the proceedings, she completely overlooks the fact that her ex parte communications were wholly inappropriate and, as a member of the judiciary, she should have known they were inappropriate. SCR 4.020, Canon 2, Rule 2.9(A). While Marsy’s Law gives victims the ability to speak at pleas and sentencing, it certainly does not give victims a direct line for ex parte communications with the presiding judge.

The court quoted the Judicial Conduct Commission

Judge Gordon’s conduct violating the Canons was not isolated but was a pattern of repeated conduct over an extended period of time and over her entire tenure as a judge and in a variety of ways. Her conduct violating the Canons was extensive and frequent and provided personal benefits to her and her adult son. The conduct occurred inside and outside the courtroom, and in her official capacity. . . . Based on the totality of the evidence presented, including acts admitted by Judge Gordon and conduct she cannot deny she engaged in, and based upon a reasonable and reasoned application of the Rules, it is clear that Judge Gordon lacks fitness to continue on the Bench.

Based on Judge Gordon’s numerous violations of the Code of Judicial Conduct, we hold that the sanction of removal was appropriate.

(Mike Frisch)

The Judge Wore Spandex And "Conducted Business [Like] A Game Show Host"

The Ohio Supreme Court has suspended a judge from office and the practice of law.

The judge had received attention for refusing to comply with court orders regarding the  COVID pandemic

Respondent, Pinkey Suzanne Carr, of Cleveland, Ohio, Attorney Registration No. 0061377, was admitted to the practice of law in Ohio in 1993. Since January 2012, she has served as a judge of the Cleveland Municipal Court. She previously served for 13 years as an assistant prosecuting attorney for Cuyahoga County.

In a March 2021 amended complaint, relator, disciplinary counsel, charged Carr with five counts of judicial misconduct. Each count set forth numerous instances of misconduct that occurred over a period of two years and shared common elements that fall into one or more of the following categories: (1) issuing capias warrants and making false statements, (2) engaging in ex parte communications and improper plea bargaining and rendering arbitrary dispositions, (3) using capias warrants and bonds to improperly compel payment of fines and court costs, (4) exhibiting a lack of decorum and dignity in a judicial office, and (5) abusing contempt power and failing to recuse herself from contempt proceedings in which she had a conflict.

The parties entered into 583 stipulations of fact and misconduct that span 126 pages and submitted more than 350 stipulated exhibits. The hearing before a three-member panel of the Board of Professional Conduct was bifurcated to afford Carr additional time to develop mitigating evidence.

The panel accepted the parties’ stipulations of fact and misconduct and issued a 58-page report recounting limited—but representative—examples of Carr’s admitted misconduct. The panel found that Carr “ruled her courtroom in a reckless and cavalier manner, unconstrained by the law or the court’s rules, without any measure of probity or even common courtesy” and that she “conducted business in a manner befitting a game show host rather than a judge of the Cleveland Municipal Court.” The panel concluded that Carr’s actions “could not help but seriously compromise the integrity of the court in the eyes of the public and all who had business there.” After weighing the applicable aggravating and mitigating factors, the panel recommended that Carr be suspended from the practice of law for two years and that certain conditions be placed on her reinstatement to the profession. The board adopted the panel’s findings of fact, conclusions of law, and recommended sanction. The board further recommended that, in accordance with Gov.Jud.R. III(7)(A), Carr be immediately suspended from judicial office without pay for the duration of her disciplinary suspension.

Carr raises three objections to the recommended sanction. She argues that the board applied the wrong legal standard and failed to accord proper mitigating effect to her mental-health disorders. She further contends that the circumstances here support the imposition of a two-year suspension with 18 months conditionally stayed.

We adopt the board’s findings of misconduct. For the reasons that follow, we overrule Carr’s objections, reject the two-year suspension recommended by the board, indefinitely suspend Carr from the practice of law, and immediately suspend her from judicial office without pay for the duration of her disciplinary suspension.

Improper use of warrants

Carr admitted at the disciplinary hearing that her use of capias warrants and incarceration as a means to compel the payment of fines and costs by tying the bond to the amount of the fine and costs essentially created a modern-day debtors’ prison. The board found that Carr eventually discontinued this approach to enforcing the payment of fines and costs and that she gave a “characteristically colorful explanation for doing so” in open court:

You notice I’m no longer the bill collector for the Clerk’s Office. I’m not your b-i-t-c-h. See, you get it? Collect your own money. There you go, player, mm-hmm. Collect your own money, player, mm-hmm. I’m not your b-i-t-c-h. Run tell that, mm-hmm. Mmhmm. How you like them apples? Suckas.

Courtroom attire

Despite the dress and decorum expectations for the general public, Carr presided over her courtroom wearing workout attire, including tank tops, t-shirts (some bearing images or slogans), above-the-knee spandex shorts, and sneakers.

Popular culture

During a series of proceedings in open court, Carr maintained a dialogue with her staff and defendants about the television series P-Valley, which is set in a Mississippi strip club. Carr routinely referred to one of her bailiffs, Alicia Gray, as “Ms. Puddin” (or some variation thereof) in open court, and she asked one defendant if he knew “Ms. Puddin from P-Valley.” She teased another bailiff about driving to P-Valley to “find him that little girl with the curly blonde hair.” And in another display of inappropriate humor, she announced from the bench in open court, “You know what my P-Valley, my name gonna be Passion. I got to go to that class though so I can learn how to climb that pole.

Stand up 

On multiple occasions, Carr joked that she would be amenable to some form of bribe in return for a lenient sentence. In open court, she engaged in dialogues with defendants about accepting kickbacks on fines and arranging “hookups” for herself and her staff for food and beverages, flooring, and storage facilities.

A misdemeanor assault case that blossomed into a contempt is described at length

During her disciplinary hearing, Carr admitted that charging A.B. with the first contempt for rolling her eyes in court and cursing in lockup was an abuse of her discretion. She further admitted that she had antagonized A.B. from the bench, acted in a rude and discourteous manner, and instigated the incident that led her to cite A.B. in contempt for the second time. Carr offered no real explanation for failing to recuse herself from the contempt cases.

Sanction

On the facts presented here, we conclude that Carr’s refusal to comply with Judge Earley’s administrative order during the COVID-19 pandemic, improper ex parte communications, improper plea bargaining and issuance of arbitrary dispositions, improper use of capias warrants and bonds to compel the payment of fines, falsification of entries, failure to recuse herself from a case in which she became personally embroiled with a defendant, and lack of proper courtroom decorum—namely, her dress, her unkempt bench, her undignified and demeaning treatment of defendants, and her efforts to obtain free or discounted goods and services—warrant a greater sanction than the 18-month partially stayed suspensions that we imposed in Medley and Parker.

...Carr’s unprecedented misconduct involved more than 100 stipulated incidents that occurred over a period of approximately two years and encompassed repeated acts of dishonesty; the blatant and systematic disregard of due process, the law, court orders, and local rules; the disrespectful treatment of court staff and litigants; and the abuse of capias warrants and the court’s contempt power. That misconduct warrants an indefinite suspension from the practice. of law

The court rejected mental health issues as a basis for mitigation, noting that a character letter from a court employee opined that her depression was the result of the adverse publicity, rather than the cause of the misconduct. (Mike Frisch)

Public Reprimand For Proactive Judge

A decision of the Ohio Supreme Court is summarized by Dan Trevas

A Portsmouth judge was publicly reprimanded by the Supreme Court of Ohio today for independently investigating a juvenile court matter, failing to recuse himself from the case, and failing to perform the duties of judicial office fairly and impartially.

On Jan. 12, 2017, D.M., a father of five children, was arrested on a charge of corrupting a juvenile with drugs and held in the Scioto County Jail. At the time, D.M. had legal custody of his three oldest children. A grandfather also lived with them. Another relative had custody of the two youngest children. The children’s mother was incarcerated.

Childrens Services Agency Says Children Should Remain at Home

When D.M. was arrested, a caseworker for Scioto County Children Services Board (SCCSB) visited the home where D.M. lived and, as an alternative to removing the children from the home, made an in-home safety plan for the children.

The following day, a school resource officer contacted a staff member of Scioto County Probate and Juvenile Court Judge Richard Lemons. The resource officer expressed concern for the well-being of the children. The member of the judge’s staff and a probation officer went to the home. The staff member reported the water was turned off, the toilet was overflowing with human waste, the floor was littered with dog feces, the refrigerator was not working, and the children had no beds. He reported his concerns to the judge and SCCSB, which sent a caseworker to the home. SCCSB did not remove the children from the home.

Judge Visits Children’s Home
The next day, Judge Lemons, accompanied by law enforcement officers, conducted his own investigation of D.M.’s residence. In addition to confirming what his staff member saw, the judge observed the grandfather had a wall heater with an open flame within a few feet of his oxygen tanks and a child was using the oven to warm himself, among other concerning conditions.

Judge Lemons returned to his chambers and issued an entry, “[u]pon the court’s own motion” and without a case number, finding that two of the children in D.M.’s home were in imminent danger and ordering SCCSB to place the children in its temporary custody and to investigate the matter. Court staff notified SCCSB of the emergency order but did not notify D.M. or the children’s mother, whose notification is required by statute.

Within the week, SCCSB filed a new complaint alleging all five of D.M.’s children were dependent because their parents were incarcerated, and no other relatives could care for them.  SCCSB’s filing said the relative who had legal custody of the two youngest could no longer care for them. The agency asked for an ex parte order giving it custody of the children until the cases were resolved.

Judge Fails to Disclose Actions
Judge Lemons granted the order and presided over the probable cause hearing , where no evidence was presented about the conditions of the home. Both parents, though incarcerated, appeared for the hearing. Judge Lemons mentioned the conditions of the home but did not inform the parents he had been there.

Judge Lemons continued to preside over the hearings involving custody of the children in 2017 and 2019 and never informed the parties or their counsel he had personally visited their home, triggering the entire custody action.

During his disciplinary hearing, Judge Lemons said he investigated because he did not trust SCCSB’s judgment. He was upset with SCCSB for refusing to remove the children and wanted to “force [SCCSB] to do their job.” He explained that as the opioid epidemic worsened in Scioto County, he felt the agency was not investigating or filing enough cases and its inaction had the court flooded with calls from grandparents, schools, and hospitals asking the court to act. Judge Lemons said his frustration got the better of him.

Judge Violated Conduct Rules
The Board of Professional Conduct found Judge Lemons violated three rules of the Code of Judicial Conduct, including prohibiting a judge from independently investigating facts in a matter, rather than considering only the evidence presented, and requiring a judge to disqualify himself from any proceeding in which his impartiality might be reasonably questioned. And the board found Judge Lemons usurped SCCSB’s legal authority by disregarding its decision and conducting his own investigation, violating the rule against failing to apply the law and perform his duties fairly and impartially. The board concluded that no matter how well intentioned the judge was, he “could not be both the source of a private referral based on his knowledge and an impartial arbiter of the issues as a judge.”

The board found Judge Lemons engaged in multiple disciplinary offenses, which was an aggravating factor. However, Judge Lemons had a clean disciplinary record, lacked a dishonest or selfish motive, and cooperated with the board’s investigation, which were all mitigating factors.

In a 7-0 decision, the Supreme Court concluded that the judge’s good intentions do not excuse him from complying with the Code of Judicial Conduct.

Chief Justice Maureen O’Connor, in a concurring opinion, wrote that she agreed with the public reprimand, which will remain a part of the judge’s disciplinary record. She wished to “go a step further and observe that his actions ultimately benefited D.M.’s children by removing them from a dangerous environment devoid of capable caregivers that left the children at risk of a tragedy occurring at any minute.” And the chief justice emphasized that, standing alone, Judge Lemons’s disciplinary record will not inform the public that Judge Lemons was not acting in self-interest but in the best interests of D.M.’s children.

The chief justice noted that the judge felt compelled to act only when others neglected their duty to the children, which was the responsibility of the children services board.

The SCCSB has since disbanded, and there is a new children’s services agency in Scioto County. Judge Lemons agreed to recuse himself from any remaining dependency cases involving D.M.’s children.

The Court ordered Judge Lemons to pay the costs of the disciplinary proceedings.

2022-0713.Disciplinary Counsel v. Lemons, Slip Opinion No. 2022-Ohio-3625.

(Mike Frisch)

Linked Out

A censure has been imposed on a town court justice by the New York Commission on Judicial Conduct on agreed facts

Charge I of the Complaint alleged that from September 2020 through July 2021, on his LinkedIn profile which identified him as a judge, respondent liked, shared and/or commented on publicly-visible LinkedIn posts that cast doubt on his ability to be impartial in matters involving law enforcement; related to partisan politics; commented on matters of public controversy; constituted public comment about a pending or impending proceeding in another court within the United States; and appeared to lend the prestige of his judicial office to advance a private fundraising appeal. Charge II of the Complaint alleged that from 2012 until April 2022, when he received the Complaint in this matter, respondent cast doubt on his ability to act impartially in matters involving law enforcement by serving as a “peer support member” of the Ulster County Sheriff’s Office’s Critical Incident Stress Management (“CISM”) Team.

The stipulation sets out his Back the Blue views.

In November 2021, respondent promptly removed the LinkedIn posts after receiving a letter from the Commission inquiring into the matters herein...

Respondent avers that during the time he liked, shared and/or commented upon the LinkedIn posts, he was inexperienced with LinkedIn’s privacy settings. He further avers that he did not, at the time, realize or consider how others could perceive his activities as casting doubt on his ability to be impartial as a judge. He now recognizes the appearance of impropriety created by his actions and regrets having ever participated in it.

(Mike Frisch)

Hiring Spouse Violates Judicial Canons

An elected judge may not employ a spouse as the judicial assistant according to the Florida Judicial Ethics Advisory Committee

The inquiring judge’s judicial assistant position is vacant. The judge asks whether the Code of Judicial Conduct would allow the judge to hire the judge’s spouse as the judicial assistant.

That's a "no"

The inquiring judge maintains that since the Legislature did not include “judge” under the example of public officials covered under §112.3135(1)(c), the judge is not subject to the Statute’s prohibition. The inquirer feels Fla. JEAC Op. 15-09 wrongly assumed that a judge was covered by the Statute. The inquirer’s interpretation of the application of the Statute is not correct. It is clear that the above Statute applies to any “office, agency, or other establishment in the judicial branch.” § 112.3135(1)(a)(3), Florida Statutes. When the Florida Statutes refer to an “office or officer,” such reference “includes any person authorized by law to perform the duties of such office.” § 1.01(6), Florida Statutes (emphasis added). Additionally, Article V, § 8 of the Florida Constitution provides that “[n]o person shall be eligible for office of justice or judge of any court unless...” Therefore, a judge is unquestionably an officer of the judicial branch. As such judges qualify as “an officer ... in whom is vested the authority by law, rule, regulation ... to employ ...” § 112.3135(1)(c), Florida Statutes. Moreover, the Legislature’s choice to use the word “including” to list some of the “officers” to whom the definition of “public official” applies, does not mean that other persons or entities, like judges, would be excluded. “Generally, it is improper to apply expressio unius to a statute in which the Legislature used the word ‘include.’ [citations omitted]. This follows the conventional rule in Florida that the Legislature uses the word ‘including’ in a statute as a word of expansion, not one of limitation. [citations omitted].” White v. Mederi Caretenders Visiting Service of Southeast Florida, LLC, 226 So. 3d 774, 781 (Fla. 2017).

Lastly, independent of the above discussed statute, Canon 3C(4), Florida Code of Judicial Conduct, clearly prohibits the inquirer from employing the spouse as the judicial assistant. This Canon requires judges to “avoid nepotism and favoritism.” The commentary to Canon 3C(4) specifically lists “secretaries” as a type of appointee the judge should refrain from appointing or employing if nepotism would be involved. And to make it very clear that this Canon’s prohibition is analogous with the above statute, the Commentary to Canon 3C(4) alerts judges to “see also Florida Statute § 112.3135 (1991).” Therefore, judges are prohibited from employing or appointing any relatives and are subject to the prohibitions contained in Florida Statute § 112.3135 (1991).

(Mike Frisch)

Going By The Book (Of Discipline)

The South Carolina Advisory Committee on Standards of Judicial Conduct  blesses a Supreme Court Justice's limited participation in a church matter

The inquiring judge is a Supreme Court Justice who also is a member of a local church. The Justice is the chairperson of the church council, which is essentially an administrative board. The church’s Book of Discipline sets forth the duties of the church council and its chair. The Book of Discipline is also the authority for the governance of each local church, as well as national governance.

The church now faces a potential split over issues pertaining to the ordination of clergy who are practicing homosexuals and pertaining to clergy presiding over same-sex marriages inside or outside the walls of the church. The Book of Discipline currently prohibits these practices. If a local church disagrees with the foregoing prohibitions in the Book of Discipline, and if the local church wants to “disaffiliate” from the national church organization, there is a very involved process the local church must follow. There is a great degree of confusion among local churches in South Carolina and nationwide as to the ability of local churches to “disaffiliate” from the national church organization when a local church disagrees with the provisions of the Book of Discipline regarding the foregoing particulars.

The Justice believes that the responsibility of the chair of church council is not to take sides in the merits of the disputes between the members of the church who have competing views, but rather to educate the congregation (and the church council) about what the Book of Discipline says about the procedure of disaffiliation. In other words, the Justice intends to merely read and explain the procedure as set forth in the Book of Discipline. The Justice seeks an opinion as to the propriety of communicating with the congregation, without taking a position on the merits, as to what the Book of Discipline says about disaffiliation or whether the Justice should abstain from involvement in this issue.

That's a "yes"

A Supreme Court Justice serving as chairperson of a church council may inform other council members and inquiring church members about the procedure for disaffiliation from the national church organization.

(Mike Frisch)

Judge Removed

The Michigan Judicial Tenure Commission has ordered the removal of a judge on multiple findings of misconduct

In the Commission’s view, maintaining the integrity of the judicial process requires that Respondent be removed. As set forth in this Decision and Recommendation, Respondent’s multiple and distinct acts of pervasive on-the-bench misconduct comprising the first five counts of the seven-count Second Amended Formal Complaint (“SAFC”) are each egregious in their own right. Respondent incorrectly and incompetently applied contempt law, abusing her power and, in the process, ordering thousands of dollars to be unjustly paid and jailing another who was later released by the Chief Judge of the 36th District Court after spending a night in jail and ultimately acquitted. (Count I.) Respondent developed the personal opinion that a particular process server (Myran Bell) was untrustworthy, so, in prejudice of the actual administration of justice, Respondent formulated a process of dismissing or adjourning each and every case brought before her in which Mr. Bell was the process server irrespective of the merits of the plaintiffs’ cases, even after Chief Judge Blount ordered Respondent to stop, at which time Respondent began using thinly veiled pretexts to continue her obstinance. (Count II.) Respondent’s routine tardiness, missed days of work, and poor job performance resulted in the State Court Administrative Office (SCAO) stepping in with assistance from 36th District Court Chief Judge Blount and others to address the issues and make a performance plan for Respondent’s improvement, but Respondent defensively refused participation and instead attacked those assigned to help her with discourteous and unprofessional written threats and barbs, including biblical quotes insinuating that her colleagues and the administrators should or would go to Hell. (Count III.) Respondent further prejudiced the actual administration of justice by intentionally disabling the video equipment in her courtroom because she did not want those aforementioned colleagues or court administrators watching her, even though she had no court reporter, meaning that she knowingly conducted court proceedings with no official record and, in most cases, no record at all. (Count IV.) Respondent’s incredible “backup” plan was to unofficially record some (but not all) proceedings with her personal cell phone, which she improperly published on Facebook Live on at least one occasion. (Count V.)

These first five counts of the SAFC regard Respondent’s on-the-bench conduct, but there was more. When Respondent was not prejudicing the actual administration of justice or missing work or incorrectly applying the law or disrespecting her colleagues and administrators or conducting unrecorded proceedings, Respondent tried using her status as a judge while out in the public for improper personal gain, including to illegally park in a handicap loading and unloading zone at her gym (blocking the driver’s side door of a disabled person’s car who was legally parked in a handicapped spot), while also displaying a Detroit police “official business” placard (falsely) and showing her judge’s badge to the responding officer when the citizen whose car was blocked rightfully complained. (Count VI.)

And if all of this, as alleged and proven through the first six counts of the SAFC, was not bad enough, Respondent repeatedly lied under oath about her intentional disabling of her courtroom’s video equipment necessary for making official recordings of the proceedings in her courtroom and her motivations for doing so. (Count VII.) Besides these lies, the Commission learned during these proceedings that Respondent submitted a sworn but false affidavit of identity in support of her candidacy for reelection as a judge, which resulted in the Secretary of State being prohibited by statute from certifying Respondent’s name for inclusion on the general election ballot pursuant to MCL 168.558(4).

Hell is in fact a place in Michigan.

I know, having been to Hell and back. (Mike Frisch)