Thursday, February 24, 2022

Mazel Tov!

The New York Commission on Judicial Conduct admonished a judge for misuse of a court employee's time and issues relating to her daughter's regular presence at the court's magnetometer station

From the fall of 2015 to May 2016 when the Bat Mitzvah [of the judge's daughter] took place, [secretary] Ms. Ritter provided assistance on a regular basis in the planning of respondent's daughter's Bat Mitzvah. Using her New York State Unified Court System email address, Ms. Ritter sent numerous Bat Mitzvah related emails to various Bat Mitzvah vendors and to respondent.  Many of Ms. Ritter's emails to vendors identified Ms. Ritter at the end of the email as "Secretary to Honorable Jill S. Polk" and included the address of the Schenectady County Family Court. Ms. Ritter sent most of the Bat Mitzvah related emails during non-lunch hours on weekdays. In addition, respondent and some of the Bat Mitzvah vendors sent Ms. Ritter emails regarding the Bat Mitzvah, most of which were sent only to Ms. Ritter.

Also involved was her daughter's distracting officers from their duties

Respondent's daughter's presence at the magnetometer station created a complication for the court officers which was the concern that respondent's child would be injured if there was an altercation among litigants in that area. At times, respondent's daughter's presence at the magnetometer impeded the security work of the court officers.

(Mike Frisch)

February 24, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, February 19, 2022

Judicial Misconduct Bars Retrial On Double Jeopardy Grounds

Do findings of judicial misconduct create a double jeopardy bar to retrial?

The New Mexico Supreme Court answered yes  on the law and facts of a felony conviction

The State belatedly filed its witness list on March 1, 2017, and eight days later, on March 9, 2017, filed an amended witness list to correct an address. That same day, nine days after the discovery deadline and five days before trial, the State provided Defendant with a CD containing audio recordings of statements made by the State’s witnesses and Defendant in interviews with the police.

The day after receiving the CD, on Friday, March 10, 2017, [defense counsel] Seeger filed a motion to continue the jury trial. Seeger argued that he needed more time to review the CD in order to adequately prepare for trial and that, without more time to prepare, Defendant would be denied his right to effective assistance of counsel. That same day, the parties appeared before the judge for a pretrial conference.

At the pretrial conference, the judge denied the motion for continuance without hearing any argument. From that point forward, Seeger remained determined to get a continuance, and the judge remained committed to proceed with trial as scheduled. Their intransigence forms the root of the issue in this case.

When the effort failed

During the trial, Seeger refused to participate in voir dire, challenge any jurors, examine any witnesses, or participate in the selection of jury instructions. Seeger also declined to proffer an opening statement or a closing statement. However, he made three motions for mistrial—all based on assertions of ineffective assistance of counsel resulting from the State’s late disclosures, and, consequently, his asserted inability to prepare for trial.

While the attorney did not speak, the jury did

The jury found Defendant guilty of felony aggravated battery against a household member with great bodily harm, and Defendant appealed to the Court of Appeals.

Which reversed on ineffective assistance but rejected the claim of double jeopardy

Defendant petitioned this Court for a writ of certiorari to review the Court of Appeals’ conclusion that Breit does not apply, and even if it does, the judge’s conduct did not meet Breit’s criteria to bar retrial.

The Breit holding on double jeopardy applies to judicial misconduct

In fact, the reference to the “official” and “official misconduct” is certainly broad enough to include judicial conduct. This was no accident.

Guidance

we echo the guidance offered to our district courts by the Court of Appeals as to how to respond when an attorney is threatening to withdraw from participation in a criminal trial. “[T]he district court can order new counsel to represent the defendant,” it can “impose a sanction on the culpable attorney while at the same time granting a continuance,” or, should “the attorney still refuse[] to participate in the face of a clear order to do so, the court can invoke its contempt powers against the obstructionist attorney.”

Here, double jeopardy bars retrial

we conclude that under the narrow facts of this case, the judge acted in willful disregard of the resulting reversal thus satisfying the third prong of Breit. Retrial is barred.

(Mike Frisch)

February 19, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 10, 2022

Bus Story

The Washington State Supreme Court has dismissed judicial misconduct charges

The Commission on Judicial Conduct (Commission) ruled that Judge David S. Keenan, a King County Superior Court judge, violated the Code of Judicial Conduct (CJC or Code) when he approved a bus advertisement for North Seattle College. The ad pictured him and stated, in part, “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities.” North Seattle College is a nonprofit community college where Judge Keenan received both his high school and his associate’s degrees. The ad ran for three weeks as part of North Seattle College’s fall enrollment campaign.

Judge Keenan’s conduct did not violate Rules 1.1, 1.2, or 1.3 of the Code. He did not violate his duty to be, and to appear, impartial, and he did not abuse the prestige of his office. We therefore reverse the Commission’s decision and dismiss the charges.

Conclusion

Judge Keenan did not violate the Code when he approved a bus ad to support his nonprofit alma mater, North Seattle College. The language that he “got into law in part to advocate for marginalized communities” did not violate his duty to be, and to appear, impartial; thus, he did not violate Rule 1.2. The ad did not violate Rule 1.3 because the rules, read as a whole, permit judges to promote nonprofit educational institutions that they credit for their success, in an effort to attract the most qualified people to the legal profession. As a result, Judge Keenan did not violate Rule 1.1, either.

(Mike Frisch)

February 10, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, January 30, 2022

Pandemic Exception And Judicial Fiat

The Louisiana Supreme Court declined to impose judicial discipline and to remove  a judge who was sworn in after age 70 due to pandemic-related delays, despite an impediment in the state Constitution

The sole issue before us is whether this Court should accept the recommendation of the Commission and remove Judge Matthews from office. Article V, § 25(C) of the Louisiana Constitution vests this court with exclusive and original jurisdiction in judicial disciplinary proceedings and provides the substantive grounds for disciplinary actions against a judge.

The Commission argues that Judge Matthews is constitutionally barred from remaining in office pursuant to the plain and unambiguous language of La. Const. art. V, § 25(B), having reached the mandatory retirement age of seventy prior to the commencement of her term. Her continued retention of judicial office is therefore in violation of Canons 1 and 2A of the Code of Judicial Conduct. See Small v. Guste, 383 So. 2d 1011, 1014 (La. 1980) (a judge who remains in office past the mandatory retirement age is guilty of misconduct). However, the Commission suggests a judicially created exception to La. Const. art. V, § 23(B) may be appropriate given the unique circumstances present and that this issue has arisen due to the executive branch’s action in delaying a judicial election.

Judge Matthews had qualified to run for the office prior to reaching 70

Exercising this discretion, we find that judicial discipline is not warranted in this matter. The facts in this case are driven by the pandemic and subsequent proclamations issued by the governor which delayed the elections. But for these delays, Judge Matthews would have taken office prior to attaining the age of seventy.

For the foregoing reasons, the Commission’s recommendation is rejected and no discipline is imposed. We emphasize that this decision is limited to the individualized circumstances surrounding this case and election.

Chief Justice Weimer dissented

By clear and unambiguous language, the Louisiana Constitution prohibits anyone over the age of 70 to serve as a judge unless that individual began serving a term of office as a judge prior to turning 70.

...When the language of the constitution is clear and unambiguous, it must be applied as written. This court is not free to create an ambiguity where none exists, or to revise or rewrite the language of the constitutional provision under the guise of interpretation. City of New Orleans v. Louisiana Assessors’ Ret. and Relief Fund, 05-2548, p. 30 (La. 10/1/07), 986 So.2d 1, 22. Thus, the constitution cannot be altered or amended by judicial fiat.

With regrets

By all accounts, Judge Matthews has served well and is a respected jurist. The Judiciary Commission indicated in brief to this court, and I agree, that her character and her right to initially qualify to seek judicial office are not in question. The facts of this case dictate an unfortunate result. I have devoted significant time and effort to evaluating the law to determine if there was a legal path to enable Judge Matthews to continue to serve. This nation prides itself on being a nation of laws, and not of men or women.   The constitution emanates from the people. The people expect judges to apply the law as written. Although I dislike the result in this case, ultimately I am constrained to apply the law as it is written, despite the equities in Judge Matthews’ favor.

Justice Crain also dissented and finds no basis for a pandemic exception

I am sympathetic to Judge Matthews’ situation. Through no fault of her own, the election for this judicial seat was postponed due to Covid-19 until after Judge Matthews turned seventy. She did nothing wrong to create the predicament that now disqualifies her from serving. Sympathy, however, is not a basis for disregarding or amending the constitution.

Justice McCallum agreed

I respectfully dissent. This case presents yet another example of an unfortunate consequence of the pandemic and the government’s reaction to it; namely, the decision to change the date of the election. Through no fault of her own, Judge Matthews became a casualty of this decision. Although empathetic to Judge Matthews’ situation, I do not find any circumstance by which this Court may ignore the express and unambiguous terms of the Louisiana Constitution and, in my view, her age at the time of the election prevents her from remaining on the bench.

 

January 30, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 28, 2022

Consenting Adults And Judicial Junk

The Kansas Supreme Court has censured a former magistrate based on the below findings

"1. Respondent used the social media website known as Club Foreplay ('C4P') which he described as 'a dating website for couples.'
"2. Respondent maintained an account on the C4P website on and off for a couple of years.
"3. Respondent used the website to give access to other users to view nude and partially nude photos of himself, including a picture of Respondent standing in water with his penis visible.
"4. Respondent sent sexually revealing photographs of himself to the complainant's wife.
"5. Respondent requested that complainant's wife send sexually explicit photos to him.
"6. The parties stipulated that the sexually revealing photographs were not available to be viewed by any C4P subscriber without permission from the Respondent. He also claims the photographs were not available to the general public. However, as with any social media posting, the photographs could be disseminated to the general public once they are released.

Sanction

Ultimately, the question whether a respondent violated a rule is a question for this court and subject to de novo review. The non-filing of exceptions does not bind this court. However, in these unique circumstances concerning a complaint against a retired lay magistrate judge and where neither party has filed exceptions and each has affirmatively accepted the hearing panel's conclusions and resolution, we accept the respondent's stipulations and take no additional action. While we appreciate the concurring opinion's point of view, it reflects a position that no one in the proceeding has taken or argued before us. An inquiry panel concluded there were rule violations, a hearing panel unanimously concluded there were two rule violations, and even the respondent has accepted the determination that there were violations of Canon 1, Rule 1.2 and Canon 3, 3.1(C), and the panel's recommendation of public censure. Because everyone involved in this case has come to the same conclusion, we see no need to  further question their resolution.

STEGALL, J., concurring:

I concur in the result reached by the majority to take no further action in this matter. But in my judgment, while Judge Marty K. Clark's behavior was embarrassing, foolish, and grossly immoral, it was not a violation of any of our rules governing judicial conduct. Because—let us be clear—the behavior we are talking about consists entirely of the lawful, private, consensual sexual practices of Judge Clark. Behavior that was only discovered by the Examiner [of the Commission on Judicial Conduct]  and the Commission because it was disclosed by a disgruntled participant in that behavior.

To be sure, there was a time in our society when private, consensual sexual practices were not deemed off-limits to government regulation. For good or ill (or good and ill), that time has passed. Through a slew of judicial decisions, society has by now clearly decided that sexual conduct between consenting adults is none of the government's business.

The concurrence decries the faux outrage and the rise of the surveillance state

So who has really been scandalized? As with the excessive rhetoric, the legal justifications given by the Examiner and panel in this case are thin cover for the naked embarrassment—and the accompanying need to close ranks and restore a facade of judicial superiority—felt by all.

...I may be an unexpected defender of "consensually non-monogamous" judges— and I have no difficulty condemning adultery as morally destructive—but above all else, the rule of law condemns the arbitrary and unaccountable power of the state to pick winners and losers, reward friends and punish enemies, and protect its own interests above the public's. Such abuses and the hypocrisy they reveal are the real threat to the legitimacy and integrity of the judiciary. The rule of law is not so weak it will collapse in the face of a few bedroom peccadillos or the occasional clownish, embarrassing episodes of official misadventure. But it is not so strong it can long endure the misrule of arbitrary double standards—which amount to a special kind of breach of the social contract.

An objection may be quickly raised that the moral content and quality of the personal character and integrity of our public officials matter. And more, that if a person becomes a public official like a judge, that person has agreed to make his or her private life a matter of public interest. There is real truth to this. But it is a grave mistake to think that either the Commission, the Examiner, or this court represent the mores of the
public—mores which, as every honest political observer would admit, prove to be inscrutable at times. Indeed, even if such mores were knowable, by what right would we claim the authority to enforce the moral qualms of the public of its behalf?

As to rhetoric of the former judge's adversaries

The Examiner and panel in this case have acted as grand inquisitors on behalf of an allegedly scandalized public. The Examiner's filings below passionately decry Judge Clark's behavior—quoting In re Singletary, 61 A.3d 402, 412 (Pa. Ct. Jud. Disc. 2012), for the claim that the public does not want its "judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person—thereby placing that person in a position to further publish the photos to anyone he or she may deem deserving." At oral argument, the Examiner likewise denounced Judge Clark's behavior. Judge Clark was described as "grooming his private organs for purposes of taking a photograph . . . not for him to look at himself" but to "give to other people." Which "in my opinion," the Examiner continued, "does nothing to enhance the integrity of the judiciary."

And a shout out to Austin Powers 

Swinger, baby, yeah!

Beneath the robes

We are all sinners. Acknowledging this truth is one of the pillars supporting the rule of law itself...

Judges are not "angels"—to put it in Madisonian terms. See The Federalist No. 51 (Alexander Hamilton or James Madison) ("If men were angels, no government would be necessary."). And the purpose of the Code of Judicial Conduct is not to protect or project an illusion of judges as angelic demigods or Mosaic lawgivers. It is quite the opposite—to guard against the very real danger of judges as ordinary human beings tempted to abuse their power in vain and self-interested ways. The Code protects very practically against official and public misdeeds—it is not concerned with preserving judicial authority grounded in moral superiority. To the contrary, the legitimate exercise of judicial authority flows from the people acting under a constitutional process, not from any innate moral qualities possessed by the judge.

Concluding

Given all of this, I concur in judgment because I find no violation of the judicial codes of conduct. Of course, no one should read in this conclusion a defense of judges-gone-wild or of any other misdeed or lapse in character. After all, "go, and sin no more" (John 8:3-11) remains an apt and fitting conclusion to every story like this one.

(Mike Frisch)

January 28, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, January 22, 2022

No To Stoned Judges

An opinion issued last year by the Maryland Judicial Ethics Committee

Issue: May a judicial appointee obtain and use medical marijuana?

Answer: No

The committee considered ethics opinions from other states, particularly California on a judge's proposed grow license as well as its own prior opinion

The Committee concluded that as long as “federal laws make the possession, use, manufacturing and/or distribution of marijuana (cannabis) illegal, a judicial [employee] may not participate in the growing, processing, or dispensing of the substance regardless of the purpose.”

The California Committee on Judicial Ethics Opinions reached a similar result in California Judicial Ethics Formal Opinion 2017-010, citing this Committee’s Opinion No. 2016-09 and the Washington Judicial Ethics Advisory Committee Opinion 15-02.

Just say no

In short, the applicable legal landscape on which that opinion was based has not significantly changed since 2016. The facts here differ only in that the Requestor would be a user rather than a grower, processor, or dispenser of medical cannabis. We are not persuaded that that difference supports a different result.

(Mike Frisch)

January 22, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Spouse May Appear But Not As Judge

A recent opinion of the Maryland Judicial Ethics Committee permits the use of a family photograph with the judge-spouse of a political candidate so long as no judicial connotation derives therefrom

In balancing the requirements of the Code and the candidate spouse’s interest in mounting an effective campaign, we believe that the Requestor’s photograph may be used in family photographs so long as the Requestor’s title or office is not mentioned, there are no visual elements identifying the Requestor as a judge, and no explicit endorsement is featured. We
recognize that family photographs are important fixtures in political campaigns and the absence of a spouse in such a photograph would invite speculation and misrepresent to voters the candidate spouse’s family situation.

(Mike Frisch)

January 22, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 28, 2021

Knuckleheads

Disciplinary charges have been filed by Ohio Disciplinary Counsel alleging misconduct by a Cuyahoga County Court of Common Pleas judge.

In one matter, he allegedly browbeat a defendant into pleading guilty

Respondent told Heard that if he exercised his constitutional right to a jury trial and was convicted, Heard would be sentenced to “at least double, perhaps triple or more time. * * * And this Court, given your record, will run the record consecutively.”

Essentially, respondent threatened to punish Heard for exercising his right to a trial by promising to impose a prison sentence of at least 28 years—and possibly in excess of 42 years—if Heard was convicted after trial, as opposed to 14 years if he pled guilty.

While considering the judge's 14 year "offer"

At one point, respondent stated, “I don’t know what happened, they may have arrested  the wrong six-foot-five-inch guy, maybe the victim was confused. Who knows? Maybe the dog ate your homework, right? Anything is possible in today’s world.”

Respondent then told Heard and his family a story about two “knuckleheads” who took their case to trial after they rejected a similar plea deal that respondent offered to them.

Respondent said that the two “knuckleheads” were found guilty and “both got sentenced to 78 years [in prison].”

On appeal

Heard’s plea was vacated and the judgment was reversed and remanded, with instructions that the administrative judge assign the case to a different trial judge.

Heard was acquitted of all charges.

In a bench trial

While respondent’s questions for [witness]] J.C. only focused on the childhood fight and the April 2016 incident, respondent took the position of a biased advocate when questioning [defendant] W.S., interrogating him on matters, not only inadmissible, but wholly immaterial to the case.

Allegedly improper questioning is set out at length

During the trial, respondent also improperly questioned W.S. about his relationship with his parents, prior DUI convictions, and a felony charge for sexual imposition.

The conviction was reversed

In 2019, W.S. appealed his conviction in the Eighth District Court of Appeals, alleging that the trial court abused its discretion by considering inadmissible and prejudicial evidence and questioning him in a confrontational manner. State v. W.S., Eighth District Court of Appeals, Case No. CA-17-10XXXX. W.S. also alleged that his felonious assault conviction was based on insufficient evidence.

The Eighth District Court of Appeals agreed...

He is charged with improper comments in two other matters including

Hey, Michael, I don’t want to be a pawn in your game with your soon to be ex-wife. I don’t want to traumatize the children. I don’t want to be around your former wife. That’s not cool. We know that. Anybody knows that. Instead of getting in the car, go over there, roll your eyes, flip your hair, tell her to fuck herself, tell her you’re going to fuck her up.

And a letter on judicial stationary to a defendant acquitted in a jury trial he presided at

Viola attached respondent’s letter to the writ and wrote, “The federal judiciary has denied Petitioner’s post-conviction requests for relief, and no evidentiary hearing has ever been held, prompting Judge Daniel Gaul, who presided over the second trial, to take the extraordinary step of stating in writing that the Petitioner is innocent and wrongfully incarcerated, Exhibit A.”

Cleveland.com had a report on the fight matter

The victim, James Caraballo, got the better of Skerkavich during a junior-high fight a decade earlier, records show. Skerkavich threw a snowball at Caraballo when he recognized him that night, and the two fought. Caraballo went to the hospital the next day for treatment. Skerkavich was not hurt.

Skerkavich waived his right to have a jury hear his case and instead chose to allow Gaul to render a verdict. Caraballo testified during the two-day trial that Skerkavich was the aggressor and both punched and kicked him during the fight.
 
Skerkavich took the stand and testified that Caraballo charged him first and was the instigator. Gaul called Skerkavich back to the stand after his attorney and an assistant Cuyahoga County prosecutor finished questioning him.
 
Gaul did not ask any other witnesses who testified more than 15 questions, but peppered Skerkavich with 85 questions, the appeals court wrote. The prosecutor and Skerkavich’s defense attorney only asked Skerkavich a combined 92 questions, the court noted.

The judge was the subject of a Serial podcast entitled You've Got Some Gauls. "(Mike Frisch)

December 28, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, December 26, 2021

What To Do When A Litigant Calls

Two ex parte communications have resulted in a censure of a magistrate court judge by the New Mexico Supreme Court

It is understandable that Respondent might receive an ex parte phone call from a litigant or the representative of a litigant from time to time. New Mexico is a sparsely populated state with many close-knit communities within its counties and judicial districts. New Mexico judges face additional challenges when working in these close-knit communities, including in avoiding individuals who attempt ex parte communications.

Here

In this matter, Respondent received the first ex parte phone call on his personal cell phone on Friday, April 3, 2020. Respondent should have interrupted the caller, should have told the caller it was improper to call the judge about this matter, and then should have redirected the caller to consult with an attorney and/or to have the defendant file a motion. Essentially, once it was apparent the call concerned Respondent’s upcoming review of Danielle Gallegos’ conditions of release, after being charged and arrested on serious felony charges, Respondent should have ended the call, and then promptly notified the District Attorney’s Office and the defendant of the ex parte phone call and what was discussed.

The next day, Saturday, April 4, 2020, Respondent received and engaged in a second ex parte phone call on his personal cell phone from the defendant’s father,Fernando Gallegos--the same individual that called him the night before. Upon recognizing the telephone number, Respondent should have ignored the second phone call. When Respondent answered the call, however, he should have advised Mr. Gallegos that he could not speak about the case without the prosecutor present, and then should have ended the phone call and notified the prosecutor of it. Respondent should not have taken any judicial action in Danielle Gallegos’ pending matter without notifying the prosecutor of the two separate ex parte phone calls and affording the prosecutor the right to be heard.

As a result

After the second ex parte phone conversation with the defendant’s father, Respondent entered an order setting conditions of release for Danielle Gallegos, pending her trial for violent offenses. Respondent’s issuance of the release order following the ex parte communications from defendant’s father violated an established Santa Fe County Magistrate Court protocol requiring the judge on call for weekend arrest determinations to not set conditions of release for alleged violent offenders until the next business day. The specific stated purpose of the protocol is to afford the District Attorney’s Office an opportunity to review the charges and determine if a motion for pretrial detention is needed in the case.

Sanction

We...accept the stipulation agreement presented by the Commission and Respondent and issue this public censure to Respondent as an assurance to the public we serve and as a clear reminder to all judges under our supervisory authority that improper judicial behavior will not be tolerated. Furthermore, this censure affirms the steadfast commitments of our judiciary to all persons lawfully coming before our courts that they shall receive fair and impartial justice under the law.

(Mike Frisch)

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

Tuesday, December 21, 2021

No Speaking Objection

A Staff Report on the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued two advisory opinions that replace six previous opinions interpreting the former Code of Judicial Conduct.

Advisory Opinion 2021-11 provides guidance to judges engaging in the extrajudicial activities of teaching or speaking.

The board concludes that teaching and public speaking are permissible activities under the Code of Judicial Conduct, provided the activities do not interfere with the proper performance of judicial duties and the compensation does not exceed that paid to someone who is not a judge.

The opinion reminds judges that they may not receive compensation for giving a speech due to a state law that prohibits a public official from receiving an honorarium. This opinion replaces Advisory Opinions 1986-02, 1989-28, 1994-12, and 1995-9.

Advisory Opinion 2021-12 affirms the ability of a judge to provide a letter of recommendation or serve as a reference when the judge has personal knowledge of an individual.

The board advises that a judge’s requisite personal knowledge should be based on more than a mere acquaintance or occasional social interaction. This opinion replaces Advisory Opinions 1995-05 and 1998-04.

(Mike Frisch)

December 21, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 16, 2021

"More Like A Circus"

A 58 page report of the Ohio Board of Professional Conduct recommends the two-year suspension without pay of a Cleveland Municipal Court judge who had agreed to "virtually all" of the allegations and had submitted "lengthy stipulations of both fact and rule violations" brought against her.

Findings of misconduct include violations of coronavirus protocols and that she "arbitrarily imposed or waived fines for ludicrous reasons and then created false journal entries to conceal her actions."

The report describes "four examples out of 34 incidents...In each of the 34 incidents [the judge] engaged in similar behavior ,i.e. inappropriate humor, frivolous and often demeaning dialogue with defendants, the arbitrary imposition or waiver of penalties and the creation of false journal entries."

Cleveland.com reported

 State disciplinary attorneys recommended that Cleveland Municipal Judge Pinkey Carr serve a two-year suspension after an investigation accused the judge of committing an “unprecedented” amount of misconduct.

Attorneys for the Ohio Disciplinary Counsel, an arm of the Ohio Supreme Court that investigates attorney misconduct, recommended the suspension in a Friday filing with the state’s Board of Professional Conduct following a two-day hearing.

Carr is accused of issuing arrest warrants to people who didn’t show up to her court despite the court being closed due to the coronavirus pandemic, among a myriad of other issues.

Carr “lacks the judicial temperament required to function as a jurist,” disciplinary counsel attorneys Joseph Caligiuri and Michelle Hall wrote. “And her callous dishonesty casts serious doubt on her ability to serve in a profession grounded on the principles of truth and integrity. The severity and scope of respondent’s judicial misconduct are unprecedented in Ohio.”

The board will make a recommendation to the Ohio Supreme Court, which ultimately makes decisions on how to punish attorneys or judges for misconduct.

Carr’s attorney Nicholas Froning argued in a Friday filing that Carr should receive a stayed two-year suspension, meaning she wouldn’t be suspended unless she violated terms set by the supreme court, including continued mental health treatment and no further misconduct

Froning wrote that Carr suffered from a mood disorder due to several factors, including untreated sleep apnea, and an anxiety disorder. She is now receiving treatment and has made significant strides, Froning wrote.

He argued that she had no prior discipline in 27 years as an attorney and nearly a decade as a judge. Fifty-seven people, including court staff and attorneys, wrote letters praising Carr and sent them to the board.

“Judge Carr engaged in the misconduct while suffering from undiagnosed physical and mental health conditions which contributed to her actions and once diagnosed by a qualified mental health provider, she engaged and continues to engage in a sustained course of successful treatment which actions engaged in by her, has caused her therapist to opine that she can currently competently and ethically engage in her duties,” Froning wrote.
 
Carr during a two-day hearing in front of the board stipulated to committing the misconduct, records say.
 
The disciplinary counsel launched an investigation into Carr after cleveland.com/The Plain Dealer published a story about Carr issuing arrest warrants for people who didn’t show up to court, despite the court being closed for in-person hearings due to the coronavirus pandemic.

Carr later lied in interviews a reporter for WJW-TV and Administrative Judge Michelle Earley about issuing the warrants, the disciplinary records said.

The investigation culminated in a 118-page complaint that, among other things, found Carr since 2017 illegally issued arrest warrants in order to make people pay fines and costs in order to generate revenue for the court.
 
Carr also once sentenced a woman to 15 days in jail for rolling her eyes and another man 60 days in jail for an offense that didn’t warrant any jail time, according to the filing. The disciplinary counsel also wrote they found a daily pattern of Carr making false journal entries, improper plea-bargaining, improperly speaking to only one side during a case, making “arbitrary” decisions and rude treatment of staff, lawyers and defendants.
 
“All the while, respondent ran her courtroom more like a circus than a respected hall of justice, presiding over cases with no regard for the law, due process, judicial impartiality, or professionalism,” Caligiuri and Hall wrote.
 
(Mike Frisch)
 

December 16, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, November 20, 2021

Home Search Gets Judge Censured

A judicial discipline matter has led to a censure by the West Virginia Supreme Court of Appeals.

In this judicial disciplinary proceeding, a family court judge searched a selfrepresented party’s home for marital property. When the homeowner protested, the judge responded to the homeowner’s resistance by threatening to jail him for contempt. This interaction was recorded, and the recording soon appeared on the internet.

The judge was reported to the West Virginia Judicial Investigation Commission, and after investigation, the Judicial Investigation Commission charged the judge with violating the West Virginia Code of Judicial Conduct (“Code of Judicial Conduct”). The judge professed remorse and entered into a settlement agreement with Judicial Disciplinary Counsel. Under the agreement, the judge admitted to both the conduct in question and to the fact that it violated the Code of Judicial Conduct; both parties agreed to recommend that the judge be censured and fined $5,000. The Judicial Hearing Board, however, rejected the parties’ recommendation. The Hearing Board recommended that the judge be admonished and fined $1,000, and—believing that a judge’s “inherent authority” to conduct “judicial views” is “uncertain”—requested guidance from this Court.

Both Judicial Disciplinary Counsel and the judge object to the Judicial Hearing Board’s recommendation. Seizing on the Judicial Hearing Board’s uncertainty about “judicial views,” the judge now attempts to persuade us that her search of the residence was lawful—even as she professes to remain bound by the settlement agreement. After considering the record and the parties’ written1 and oral arguments, we reject the judge’s attempt to reframe her conduct. We find that she led a search of the homeowner’s residence, not a “judicial view,” and that, in so doing, she exercised executive powers forbidden to her under the West Virginia Constitution. We find, further, that the judge compounded her error by the manner in which she conducted the search. Accordingly, we disagree with the Judicial Hearing Board and publicly censure the judge for her serious misconduct. In addition, we order the judge to pay a total fine of $1,000.

The conduct took place in a contempt proceeding

The search that led to this disciplinary matter happened on March 4, 2020, in the context of a contempt hearing. One of the parties, an ex-wife, claimed that her former husband had damaged items of property and had refused to turn over other items of sentimental value that she was entitled to receive.

For this proceeding the ex-wife was represented by counsel. The ex-husband was not represented by counsel. During the ex-wife’s testimony, Judge Goldston asked the ex-husband for his address. Upon learning his address, Judge Goldston stopped the hearing, sua sponte, and ordered the parties to meet her in ten minutes at the ex-husband’s house. Judge Goldston admits that she failed to tell the ex-husband why the parties were going to his home and that she gave the ex-husband no opportunity to object.

At the ex-husband's home

Faced with these threats, the ex-husband relented, and Judge Goldston agrees that the ex-husband felt he had no choice to do otherwise. Judge Goldston brought with her into the house the bailiff, the ex-wife, and the ex-wife’s attorney and personally supervised the search for and recovery of items. Several items were located and recovered, including photographs, yearbooks, DVDs, recipes, and a chainsaw. While the home was being searched, a dispute emerged about an umbrella stand. After a brief colloquy with the ex-husband, the judge awarded the stand to the ex-wife, who removed it from the home with the other items.

Judge Goldston, herself, made no arrangement to record what went on inside the home (or outside the home). Indeed, when she found out afterward that her bailiff had made his own cell-phone recording of the search inside the home, she believed that making the recording was improper and told him not to do it again.

After the search, the parties reconvened in the courtroom. On the record, Judge Goldston listed the items that had been recovered and some items that remained to be exchanged. However, no written order was entered regarding either the search of the home or the items recovered.

It was a search, not a view

As we have stated herein, Judge Goldston’s conduct constituted a search, rather than a mere view, of the ex-husband’s home. The parties appeared in court for a hearing before Judge Goldston. Undoubtedly, the ex-husband could not have anticipated that the hearing would proceed to an unannounced invasion of the sanctity and privacy of his home. Regardless of whether the ex-husband had failed to provide belongings he was previously directed to provide, Judge Goldston failed to use the appropriate tools available to her under the law to address such failure because she felt such procedures were ineffective. Instead, she, along with her bailiff, the ex-wife, and the ex-wife’s attorney, proceeded to enter the ex-husband’s home, over his strenuous objections, directed that he stop recording the incident, and began searching for items on the list of items he was to produce. Such an invasion of the ex-husband’s home was an egregious abuse of process.

Moreover, Judge Goldston clearly left her role as an impartial judicial officer and participated in an executive function when she entered the ex-husband’s home to oversee the search.

Justice Wooton dissented and  would admonish

I reiterate the foregoing to explain my reluctance to assent to the majority’s full-throated condemnation of Judge Goldston’s actions on the whole. I do not disagree that her entry into Mr. Gibson’s home creates obvious Fourth Amendment issues which any judicial officer should have recognized, if not beforehand, at least when Mr. Gibson demanded a search warrant. Her response to Mr. Gibson’s Fourth Amendment objection— to repeatedly threaten to jail him unless he relented in the warrantless entry and search— plainly warrants discipline. And while her conduct demands reproach, one cannot turn a blind eye to what was clearly Judge Goldston’s good faith belief in her authority to undertake the “home visit” in the first instance.

In this regard, I believe the majority has unfortunately squandered an opportunity to clarify the precise legal errors committed under the contempt statute and provide much-needed guidance as to the authority of a family court judge to conduct proceedings outside of his or her courtroom. To hold merely that judges cannot perform “searches” is too blunt a tool to be useful...

Further, as to Judge Goldston’s position that the “home visit” was a mere continuation of the proceedings, her failure—and refusal to allow Mr. Gibson—to record the proceedings was fatal to her effort. There is nothing which prohibits Judge Goldston from conducting proceedings outside of her courtroom; however, those proceedings must still comply with the applicable procedural rules.

The dissent would defer to the Hearing Panel's proposed sanction. (Mike Frisch)

November 20, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, November 18, 2021

Winners of Zacharias Prize announced

We are happy to report from Sam Levine that "the committee has made our selections for the twelfth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  This year's winners are:

  1. Bradley Wendel, Lawyer Shaming, 2021 U. Ill. L. Rev. (forthcoming 2021) , and 

2. Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)Framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052 (2021) 

Thanks,

Samuel J. Levine
Professor of Law & Director, Jewish Law Institute
Touro Law Center

[posted by Alan Childress]

November 18, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Is Entirely Private Behavior Of A Judge Sanctionable?

The Kansas City Star reported on a judicial misconduct oral argument held last month before the Kansas Supreme Court

The Kansas Supreme Court is trying to decide whether it is disqualifying for a judge to share nude photos of their private life online.

The question was raised Thursday in a disciplinary hearing for retired Russell County Magistrate Judge Marty Clark.

Clark, who resigned from the bench in May, shared nude photos of himself with another couple on Club Foreplay, a dating website for swingers.

The Kansas Commission on Judicial Conduct became aware of the photos when the husband in the other couple filed a complaint last year.

Todd Thompson, of the judicial conduct commission, said Thursday that Clark and his wife met the couple once before sharing photos. In addition to sharing photos, he said, Clark exchanged “salacious” text messages with the wife in the couple that included discussion of having sex in his chambers.

In March the Kansas Commission on Judicial Conduct concluded Clark had violated the ethical standards by failing to “avoid impropriety or the appearance of impropriety in (his) personal life” and protecting the public impression of the judiciary.

Thompson argued Clark should be barred from ever being a judge again unless he receives significant education on the role and integrity of the judicial branch.

“We all have standards that we think is appropriate or inappropriate behavior,” Thompson said. “Just taking pictures of your genitals and distributing them in any way to the public in my opinion does nothing to enhance the integrity of the judiciary.”

Clark’s attorney, Chris Joseph, argued the court would set a dangerous precedent by punishing Clark for sending nude photos in a private channel, on his own time.

“I don’t think you look at morality as a basis for discipline … unless there is a connection to the job,” Joseph said.

He argued that any communication or photos sent in a private channel could become public if the receiving party chose to place it on social media.

Justice Caleb Stegall said it would be “troubling” if judges could be censured for private communication.

The Supreme Court justices questioned where the line was between appropriate and inappropriate and public and private.

“Are you suggesting it’s just you know it when you see it?” asked Justice Kenyen Wall of determining inappropriate conduct.

Justice Melissa Standridge argued that taking the photos and using the social media platform may have inherent consequences on the perception of the judiciary.

“If you post something it’s out there,” Standridge said. “It’s the old adage of don’t write anything down you wouldn’t want on the front page of the Wichita Eagle.”

An earlier of this story mistakenly referred to the Kansas Commission on Judicial Conduct as the Kansas Judicial Council.

As he is no longer a judge and is not an attorney, the court raised questions as to its jurisdiction to impose sanction.

There were also questions about the extent to which the private behavior of a judge should be sanctionable. (Mike Frisch)

November 18, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, November 10, 2021

It's Business, Not Personal

An oral argument scheduled this morning before the Ohio Supreme Court

Disciplinary Counsel v. Hon. Thomas M. O’Diam, Case No. 2021-0971
Greene County

A Greene County probate court judge faces a six-month suspension without pay because of his treatment of a man who publicly questioned whether the judge should preside over cases in which his daughter represents a party in the matter.

Prior to his 2013 appointment as Greene County probate judge, Thomas O’Diam practiced estate planning and probate law for 27 years as a member of the O’Diam, Steck & Sove Law Group. While he was still in private practice, Judge O’Diam’s daughter, Brittney, was admitted to practice law and joined the firm.

After Judge O’Diam took the probate court bench, the firm reorganized and arranged a plan to buy out the judge’s interest through payments that ended in 2021. Brittney continued to work at the new firm and gained an ownership interest.

Daughter Represents Family in Probate Matter
In 2018, Carolee Buccalo died and her granddaughter, Yvonne Martin, was named executor of Buccalo’s estate. Martin hired Brittney to represent her in administering the estate in the probate court in which Judge O’Diam is the sole judge.

After opening the estate, Brittney presented waivers of disqualification to participants in the Buccalo estate, including three that required the signature of Grant Buccalo, a son of the deceased.

All the waivers stated that “circumstances exist that may disqualify Judge O’Diam from presiding over this proceeding” and that his prior law firm is indebted to the judge under a stock-redemption agreement. The waivers also stated that Brittney O’Diam is the daughter of Judge O’Diam, and noted those signing “acknowledge that these circumstances may lead someone to reasonably question Judge O’Diam’s impartiality,” but that the signers “trust that Judge O’Diam will act impartially and fairly.”

Buccalo signed the waivers, and Brittney worked on probating the will.

Judge, County Commissioners, and Beneficiary Intersect
While the Buccalo probate matter was pending, Judge O’Diam was engaged in a legal dispute with the Greene County Commissioners regarding courthouse space for the probate court. The matter escalated to the Ohio Supreme Court, which in early May 2019 ruled that Judge O’Diam couldn’t force the county to designate that a courtroom be reserved exclusively for probate cases three days a week.

About two weeks after the Supreme Court decision, Buccalo called the county commissioners and requested to speak on matters at their weekly meeting, which was granted. At the meeting, Buccalo expressed his belief that Judge O’Diam should recuse himself from cases in which “family members” represent parties. Buccalo 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 spoke for about two-and-a-half minutes, stating he wanted to make sure the commissioners were aware of the practice. He didn’t specifically mention’s his mother’s estate case or express any concern about his own involvement with Judge O’Diam. He concluded by stating he intended to file a grievance against the judge with the Office of Disciplinary Counsel.

Judge O’Diam became aware of Buccalo’s comments and requested a recording of the meeting. Buccalo submitted his grievance, which the disciplinary counsel’s intake division dismissed without investigation.

Judge and Daughter Grill Beneficiary on Stand
Judge O’Diam spoke to his daughter and arranged a status conference on the estate. The judge ordered Martin, Buccalo, and three other beneficiaries of the will to appear and stated that failure to appear “will be deemed contempt.”

Judge O’Diam discussed the matter in advance with Brittney, and each prepared exhibits and questions for the conference. Buccalo wasn’t informed by the court about the conference’s purpose and didn’t know he would be called to testify under oath. Buccalo didn’t request his lawyer to appear at the proceeding.

At the conference, Judge O’Diam explained a “very disturbing incident” had taken place and it needed to be resolved that day. He played the recording of Buccalo at the commission meeting. Judge O’Diam then placed Buccalo on the witness stand and proceeded to question him for more than an hour.

Judge O’Diam accused Buccalo of slandering him at the commissioners’ meeting and accused Buccalo of telling the commissioners the judge was behaving inappropriately. He asked Buccalo if he understood the waivers and, if he didn’t, questioned why he would sign them. Buccalo told the judge he did not see his comments to the commissioners as something Judge O’Diam should take “personally.” Judge O’Diam replied, “Oh, I see this as very personal.”

After an hour, Judge O’Diam turned the questioning over to Brittney, who also questioned if Buccalo had any concerns signing the waivers. She also accused Buccalo of impugning her character at the county commission meeting.

At the end of the status conference, Judge O’Diam recused himself from the estate matter and announced he was asking the Supreme Court to appoint a visiting judge. Judge O’Diam told Buccalo his actions were going to delay the case. Brittney informed Buccalo the matter created additional legal work and increased the costs the estate would have to pay to settle the estate.

In September 2019, an anonymous grievance was submitted to the disciplinary counsel regarding the judge and his daughter’s questioning of Buccalo. Judge O’Diam stated he believed Buccalo filed the grievance.

A week after the status conference, Judge O’Diam and Brittney appeared at a county commission meeting and told the commissioners that Buccalo was being untruthful when he spoke to them the month before. The judge told the commissioners that Buccalo’s accusations were “despicable.”

Board Rules Judge Behaved Inappropriately
The disciplinary counsel filed a complaint against Judge O’Diam with the Board of Professional Conduct, charging that the judge violated the Ohio Rules of Judicial Conduct. Nearly two years after Buccalo made his comments, and weeks before a three-member board panel was to consider the matter, Judge O’Diam sent a letter to Buccalo apologizing for the way he treated Buccalo during the status conference.

The panel found Judge O’Diam violated the rule requiring judges to be “patient, dignified, and courteous” to those involved in legal matters and require similar conduct of lawyers and others “subject to the judge’s direction and control.” The board indicated the way Judge O’Diam conducted himself and allowing his daughter to grill Buccalo violated the rule.

Judge O’Diam and the disciplinary counsel agreed the matter was a one-time occurrence and that the judge had no prior disciplinary record. They jointly proposed that the board recommend a public reprimand.

However, the panel maintained that the judge’s actions were not an isolated incident. The panel noted the judge arranged and prepared materials for a status conference without giving Buccalo any warning of the nature of the proceeding and then “interrogated him for over an hour in a disparaging manner.” Coupled with allowing his daughter to also interrogate Buccalo without restriction, then going to the county commission meeting to complain, constituted a pattern of misconduct. The panel recommended that Judge O’Diam receive a fully stayed six-month suspension with the condition that he not commit further misconduct.

The board amended the panel’s recommendation and suggested the Supreme Court suspend Judge O’Diam for six months without pay, and that he completes six hours of continuing judicial education focused on judicial demeanor, civility, and professionalism.

Judge Objects to Sanction
Judge O’Diam objects to the proposed sanction, noting that he admitted to violating the rule and expressed remorse for his actions. In his brief, he maintains the proposed “punishment is overly punitive and unprecedented.” The judge has cited several cases where similar judicial misconduct resulted in a public reprimand or a fully stayed suspension.

Judge O’Diam notes that during the disciplinary proceedings and after the conclusion of the panel hearing, the disciplinary counsel shared his assessment that this matter was an isolated incident, and not a pattern of misconduct that warrants a reprimand. He argues that none of the board findings that would justify increasing the sanction were supported by the necessary clear and convincing evidence.

Suspension Appropriate, Disciplinary Counsel Asserts
The disciplinary counsel acknowledges it recommended a public reprimand, but states that based on the board’s findings and conclusions, it agrees that a six-month suspension, at a minimum, is the appropriate punishment.

The office maintains that the judge was wrong to berate Buccalo for expressing concerns at a county commission meeting and argues in its brief that any member of the public “should be assured that they are able to express concern with their elected officials without fear of retaliation from that public official.”

The disciplinary counsel maintains that considering the aggravating factors, the case law supports imposing a six-month suspension, with the only question being whether the suspension should be stayed. The office also supports the conditions proposed by the board that Judge O’Diam would have to meet to lift the suspension.

 Dan Trevas

(Mike Frisch)

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

Tuesday, November 9, 2021

Contempt Against Spectator Draws Judicial Sanction

The Ohio Supreme Court has ss ued an opinion described by Dan Trevas

The sole judge of the Tiffin-Fostoria Municipal Court was suspended for one year without pay today by the Ohio Supreme Court for holding a court spectator in contempt for refusing to take a drug test.

In a unanimous per curiam opinion, the Supreme Court ruled that Judge Mark Repp violated four rules governing the professional conduct of Ohio judges and lawyers, including failure to perform all his judicial duties fairly and impartially. When the spectator, who was the girlfriend of a defendant before the court, refused to take a drug test, Judge Repp held her in contempt of court and sentenced her to 10 days in jail.

The Court’s opinion stated that Judge Repp’s “undignified, improper, and discourteous manner” was directed both to the boyfriend and girlfriend, and the woman “suffered great personal indignities and emotional distress as the result of the security and medical screenings she had to endure during her incarceration, on top of the anxiety regarding the care and well-being of her two young children.”

Judge Suspects Spectator Abused Drugs
Judge Repp was elected to the Tiffin Municipal Court in 2002. In 2013, Tiffin and Fostoria combined into one municipal court, and Judge Repp has been the sole judge of that court since its inception. The court also operates a drug-court program called Participating in Victory of Transition (PIVOT).

In March 2020, a man identified in court records as “T.D.” was arrested for violating the terms of his probation for failing to appear at PIVOT. T.D. was to appear in Judge Repp’s court via video from the Seneca County Jail, where he was held.

T.D.’s girlfriend, identified as “A.O.,” went to Judge Repp’s courtroom to observe T.D.’s arraignment and hearing. She arrived before his case began. T.D. and A.O. have two young children together, and A.O. left the children in her car with T.D.’s mother while she attended the court proceedings.

A.O. sat in the back row of the courtroom. While other cases were proceeding, Judge Repp addressed A.O. on several occasions, suggesting she might be using drugs. Court video showed A.O. sitting quietly and bringing no attention to herself. A.O. did not have a case before Judge Repp, was not on probation, and had never been charged with or convicted of a drug-related case. However, Judge Repp had read the police report regarding T.D.’s case and noticed A.O. was in the car with T.D. when he was arrested.

Woman Jailed for Refusing Drug Test
Judge Repp paused hearing other cases and announced to the court that he thought A.O. was under the influence. He stated, “I want her drug tested.”

The bailiff directed A.O. out of the courtroom and to the probation department. A.O. then texted T.D.’s mother to let her know she was afraid to leave the courthouse and that she thought the judge would have her arrested if she did. She also texted her sister to retrieve her daughters from the car because T.D.’s mother had to leave to go to work.

When told by a probation officer she would have to take the drug test, A.O. requested a lawyer. The officer told her she was not eligible for a court-appointed lawyer because she had not been charged with a crime. When she refused to take the test, she was ordered back to Judge Repp’s courtroom.

During A.O.’s absence, Judge Repp called T.D.’s case and told T.D. he was looking for him to appear at PIVOT. He scolded T.D. for being defiant and not following through on his treatment. He asked T.D. if he had overdosed while on probation and if he and A.O. had overdosed together. He told T.D. that A.O. “was probably going to jail.” Judge Repp sentenced T.D. to 11 months in jail.

When A.O. returned to the courtroom, she told the judge she refused to take the test because she did not think she had done anything to be in trouble. Judge Repp stated, “Well, you come into my courtroom, I think you’re high, you’re in trouble.” A.O. responded, “OK, I’m not, though.”

When she again refused to be drug tested, Judge Repp found her in contempt of court and told her that she was sentenced to 10 days in jail and that they could “talk about this again” if she took a drug test. The court entry stated she was sentenced for contempt to 10 days in jail or until she submitted to a drug test. However, the entry did not specify the conduct that led to his finding her in contempt.

Woman Subjected to Invasive Screenings
The Court’s opinion stated A.O. “experienced several indignities” while in custody. She was required to take a pregnancy test, and then a female officer conducted a full-body scan that allegedly detected anomalies that the officer believed could have been contraband in A.O.’s body. A male officer then viewed the nude scans of A.O. She was handcuffed and transferred to Tiffin Mercy Hospital for a second pregnancy test and body scan.

The hospital’s scan found no contraband, and she was returned to jail. At the jail, she saw T.D. in passing and said she was scared and worried about her children.

A.O. told a correctional officer she would take the drug test. The officer replied that she could not and that she already “had her chance.” She became upset after speaking to the officer, believing she would have to spend the full 10 days in jail. She hired attorney Dean Henry that evening.

Authorities Dismiss Case
The next morning Henry filed a notice of appeal and requested A.O.’s sentence be stayed during the appeal. He also requested that the Seneca County Common Pleas Court order her immediate release from jail. Judge Repp set a hearing on the request to stay the sentence that day.

Before the hearing, Judge Repp met with Henry, Seneca County Prosecuting Attorney Derek DeVine, and Seneca County Common Pleas Court Judge Michael Kelbley. DeVine stated he was unaware of any legal authority that would permit the judge to hold a courtroom spectator in contempt for refusing a drug test. Judge Repp offered no legal authority to support his conduct, but stated he had a right to control his courtroom.

DeVine then requested that Judge Repp’s contempt order against A.O. be vacated because it was not supported by law and violated the U.S. and Ohio constitutions. Judge Repp agreed to vacate the contempt order if A.O. agreed to a drug test. However, because the decision had been appealed, he lacked jurisdiction over the case. A.O. was released from jail that day.

Subsequently, the Third District Court found Judge Repp’s decision “was devoid of any specific observations or findings” to support his belief that A.O. was under the influence of drugs while observing court proceedings. The Third District ruled his order “was an invalid exercise of his contempt power.” When the case was remanded, Judge Repp dismissed the charges.

Supreme Court Considers Sanction
Based on Judge Repp’s conduct toward A.O. and T.D, the Office of Disciplinary Counsel filed a complaint with the Board of Professional Conduct, charging the judge with four ethical violations.

At his disciplinary hearing, Judge Repp stated his misconduct was motivated by a desire to help A.O. The board found that the audio and video recording of the in-court statements to A.O. and T.D. “exhibited arrogance and a desire to prove that his suspicions about A.O.’s impairment were accurate and consistent with unsubstantiated rumors that he had heard about her and T.D.’s past drug use.” At the hearing, Judge Repp demonstrated he was frustrated with T.D. and channeled that frustration at A.O.

The Supreme Court’s opinion noted that it has ruled an abuse of judicial power that deprives a person of his or her liberty is a significant violation of the public trust.

The board also noted that while Judge Repp acknowledged the wrongful nature of his misconduct, his “expressions of remorse and acceptance of responsibility were tempered by other statements” that suggested he had not completely done so. At one point, he stated he had “tried” to take responsibility for his actions.

While the board’s hearing panel recommended Judge Repp receive a one-year suspension with six months stayed, the full board suggested the Court suspend him for one year from the practice of law and immediately suspend him from the bench for one year without pay.

“We agree with the board’s assessment and concluded a one-year suspension with no stay will best protect the public and send a strong message to the judiciary that this type of judicial misconduct will not be tolerated,” the Court stated.

Judge Repp also was required to pay the cost of the disciplinary proceedings.

2021-0757Disciplinary Counsel v. ReppSlip Opinion No. 2021-Ohio-3923.

(Mike Frisch)

November 9, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, November 3, 2021

Family Ties

A recent opinion of the South Carolina Judicial Ethics Advisory Committee notes inconsistency in prior opinions concerning judicial disqualification where a familial relationship with a law enforcement officer.

Facts

An Associate Municipal judge is married to a lieutenant in the Department of Public Safety (DPS) for a local university. The City has concurrent jurisdiction with the County over the university property. The judge’s spouse is a Watch Commander for the night shift and the Field Training Manager of the university’s DPS. The judge inquires as to the propriety of adjudicating cases that arise from the university’s DPS.

Prior advice

This Committee has struggled with the issue of relationships between judges and persons in law enforcement, and as a result, previous opinions are inconsistent.

Here

Obviously, a judge’s familial or other relationship with persons in law enforcement creates a thorny issue. In this case, the judge is married to a lieutenant for the university’s DPS. The City and the County have concurrent jurisdiction over charges arising from the DPS. Because the judge’s spouse is not the Chief or Director of the DPS, persons that appear on behalf of the DPS in magistrate court proceedings would not be the spouse’s employees. However, the employees may have been trained by the judge’s spouse as the spouse serves as Field Training Manager for the university’s DPS. Clearly, the judge should not preside if the judge’s spouse appears as a material witness in a proceeding. In other proceedings arising from the university DPS, the judge should disclose on the record the spouse’s role with DPS, thereby providing a chance for the parties to request recusal.

(Mike Frisch)

November 3, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Stayed Suspension For Harassing Judge

The Ohio Supreme Court ordered a stayed suspension with conditions of a judge who sexually harassed a court employee

In August 2019, Jane Doe working as a court reporter for the Hamilton County Municipal Court. Sometime thereafter, Berry sent her a friend request on Facebook. At the time Doe accepted the request, she and Berry did not know each other, as she was not a court reporter assigned to his courtroom. In October 2019, Doe “liked” some pictures that Berry had posted on Facebook relating to the courthouse, and he sent her a private message asking about her connection to the courthouse. They exchanged messages, and Berry invited her to stop by his chambers to meet in person.

About a week later, Berry sent Doe a Facebook message wishing her a good weekend and stating, “You’re ‘Lurking’ and didn’t come down to my Chambers to visit.” Doe responded that she would stop by soon. After Doe and Berry exchanged several more messages—on various topics, including their respective divorces—he asked for her cell-phone number and suggested that they talk over the weekend. The parties stipulated that if Doe had been called to testify at Berry’s disciplinary hearing, she would have stated that she gave the judge her phone number because she felt like she could not refuse, considering his status as a judge.

Berry called Doe on a Saturday. According to Doe, Berry sounded intoxicated and used profanity, although Berry denied that he was drunk and had no specific recollection of using profanity. Also during the call, Berry asked Doe out to lunch but she declined.

 A few days later, Berry sent Doe a Facebook message asking her to stop by his office and stating that he had “an ‘Offer you can’t Refuse’!!” Doe did not stop by and later advised him in a message that she had gotten busy with work. At his disciplinary hearing, Berry testified that he had intended to offer Doe tickets to an event for her and her children.

A couple days after asking Doe to stop by his office, Berry sent her a Facebook message stating that he was on a “Staycation” and asking her out for lunch or drinks. Specifically, his message stated:

I’d like to invite you to accompany me for lunch or for drinks after work. I Hope I’m not being too forward or pushy in inviting to do something. So, simply le[t] me know if you’d like to meet for lunch or drinks this coming week or otherwise. I’m a “Big boy” so I know how to accept and respect the word, “NO”. So please be Honest in your response. Again, I hope you’re not offended because this is not my intent whatsoever. So, kindly RSVP either way. TY!!

Doe did not respond to the message, and their Facebook communications thereafter became increasingly one-sided. After sending the message quoted above, Berry sent Doe 72 messages; she replied to only 15.

 A majority of the 72 messages were images, memes, or links to videos that Berry had forwarded from the Internet. Many of those messages were overtly partisan and vulgar. For example, Berry sent Doe a video showing smoke and then flames emanating from the body of former President Donald J. Trump while he attended a prayer session. Berry also sent Doe a profane cartoon image of Santa Claus appearing to defecate down a chimney of United States Senator Mitch McConnell’s house. With the cartoon image, the judge sent a message stating, “A Special Delivery to ‘Moscow Mitch’ for Christmas, and for his upcoming, predetermined ‘Shit Show’ in the Complicit, pre-determined, pre-Judged, Senate Impeachment ‘Trial’!!” In addition, Berry forwarded Doe a video from a comedian playing a character known as the “Liberal Redneck,” who used profanity while insulting supporters of former President Trump.

Some of Berry’s messages contained links to videos containing offensive and sexually suggestive content—though Berry did not personally create the content. For example, he sent Doe a link to a video entitled “How to Build a Resume for a Hoe,” in which a well-known actress used crude language while joking about assisting female prostitutes with building a resume. Berry also sent Doe a link to a viral video entitled “How To End A First Date,” in which a woman and a man used sexually explicit language while purporting to be honest with each other at the end of their first date. For example, the woman agreed to engage in certain sex acts, and in exchange, the man agreed to buy her gifts.

Doe complained to her boss.

Sanction

Theodore Newton Berry is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed on the conditions that he (1) complete a minimum of eight hours of continuing judicial education on the subject of sexual harassment within 90 days of our disciplinary order and (2) refrain from committing any further misconduct. If Berry fails to comply with either condition of the stay, the stay will be lifted and he will serve the entire six-month suspension.

(Mike Frisch)

November 3, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 20, 2021

Friends

The Michigan Attorney Discipline Board reduced the one year suspension of a tri-county hearing panel to 180 days and until further order for misconduct as a judge

After proceedings held pursuant to MCR 9.115, the hearing panel found that while respondent was a judge at the 15th District Court, he engaged in numerous ex parte communications with his friend, an attorney that routinely appeared in front of him, and failed to disclose his personal friendship or disqualify himself from matters in which his friend was involved. The hearing panel found multiple violations of Canons 2A and B; and Canon 3A(4)(a) of the Code of Judicial Conduct; MRPC 3.5(b); 8.4(a)-(c); and, MCR 9.104(1)-(4) and ordered that respondent’s license to practice law in Michigan be suspended for one year, effective November 22, 2019.

Sanction

After review proceedings held pursuant to MCR 9.118, the Board issued an order that affirmed, in part, modified, in part, and reversed, in part, the hearing panel’s findings of misconduct, as set forth in an accompanying opinion. The Board’s order also reduced the discipline imposed from a one-year suspension to a 180-day suspension, effective October 16, 2021, and until further order of the Supreme Court, the Attorney Discipline Board, or a hearing panel, and until respondent complies with the requirements of MCR 9.123(B) and (C) and MCR 9.124. Costs were assessed totaling $5,660.63.

The board opinion is linked here.

We find that the particular messages referenced in the hearing panel’s report, (pp 3-6) support the panel’s conclusion that respondent violated Canons 2 A and 3A(4)(a). While most of the text messages involved here did not deal with substantive matters or issues on the merits, the fact remains that some clearly did. Furthermore, the colorful, and at times offensive language of some of the messages supports the panel’s finding that respondent failed in his duty to exercise good judgment, and avoid impropriety.

Michigan Live reported on his resignation. (Mike Frisch)

October 20, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 14, 2021

Reaching Higher Ground

A consent 18 month suspension from judicial office has been ordered by the South Carolina Supreme Court

In September 2018, Respondent posted the following on his Facebook page: "For my birthday this year, I'm asking for donations to American Red Cross. I've chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC." In the introduction of Respondent's Facebook page, Respondent identified himself as a Probate Judge and stated that he managed the Oconee County Probate Court. Respondent admits that his conduct violated the following provisions of the Code of Judicial Conduct, Rule 501, SCACR: Canon 2(B) (prohibiting the use of the prestige of judicial office to advance interests of the judge or others); and Canon 4(C)(3)(b)(iv) (prohibiting a judge from personally participating in the solicitation of funds or other fundraising activities).

A second count

On October 18, 2017, Respondent prepared a certification for submission in litigation pending in the Superior Court of New Jersey. In the certification, Respondent personally attested to the character of a South Carolina resident stating, "[i]ncidentally, [Mr. S.] has a reputation for truth, honesty, reliability and trustworthiness, and the court even waived bond because of this and its trust of [Mr. S.]." Respondent further attested in the certification, "I am aware of the fact that there is a claim in New Jersey that [Mr. S.] has made fraudulent conveyances of his mother's money. THIS IS A COMPLETE AND UNADULTERATED LIE, AND COMPLETELY UNTRUE. There is NO VALIDITY TO THAT STATEMENT AT ALL." (emphasis in original).

The statement violated provisions of the Code of Judicial Conduct.

An aggravating factor was prior discipline for Facebook posts and his promise to refrain 

Despite these assurances, Respondent restored the reference in his Facebook profile identifying himself as a Probate Judge with the Oconee County Probate Court and again used social media for fundraising purposes.

Also ordered

As a condition of discipline, Respondent agrees to complete the National Judicial College's online judicial ethics course, "Ethics and Judging: Reaching Higher Ground."

(Mike Frisch)

October 14, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)