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)

Thursday, September 16, 2021

Podcasts And Linked In

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2021-14
Date of Issue: September 1, 2021

ISSUES

1. May a family division judge participate in a podcast presented by the judge’s spouse, for which the spouse receives compensation, to speak on subjects related to family law?

ANSWER: Yes, provided the participation is on a limited basis and the judge’s comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.

2. May a judge post a congratulatory message on the web site LinkedIn when a book written by the judge’s spouse is released?

ANSWER: No.

Analysis

The first question raised in this inquiry falls squarely at the intersection of two provisions in the Code of Judicial Conduct that may seem to point in different directions. Canon 4 encourages Florida’s judges to “engage in activities to improve the law, the legal system, and the administration of justice.” More specifically, Canon 4B permits judges to “speak, write, lecture [and] teach” about these subjects as well as on “the role of the judiciary as an independent branch within our system of government.”

The activities authorized in general terms by Canon 4 are, however, circumscribed by Canon 4A. For example, they must not be of such a nature as to cast reasonable doubt upon the judge’s capability of ruling impartially, demean the judge’s office, lead to frequent disqualification, or interfere with the performance of the judge’s duties – that is, consume an inordinate amount of the judge’s time. In Fla. JEAC Op. 2019-02, this Committee provided a “laundry list” of eight factors that a judge should consider before agreeing to speak publicly:

1. Whether the activity will detract from full time duties. Since this judge contemplates infrequent appearances on the podcast, there should be no likelihood that the judge’s professional duties will be overlooked.

2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice. The inquiring judge clearly understands this restriction, and does not plan to comment on pending cases or offer legal advice.

3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage. The judge does not plan to receive compensation for the proposed appearances on the podcast, nor are the appearances connected in any way with a campaign for re-election or other efforts to advance the judge’s career. While it is certainly possible that listeners may come away with a favorable opinion of the judge, this is inherent in any situation wherein a judge’s talents are exposed to members of the public at large. It is an inescapable fact that judges can do well when they do good;

4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters. If the judge merely provides neutral, factual, non-case specific information there should arise no danger of other judges being improperly influenced by it, nor should it open the judge to possible undue influence in cases the judge will be handling.

5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation. We discuss this question in greater detail below.

6. Whether the activity will create any other conflict of interest for the judge. Given the judge’s understanding of the limitations upon what can be discussed in the podcast, there appears to be no potential for meaningful conflicts of interest. The judge could not oversee legal matters involving the spouse in any event, and the potential for litigation involving the sponsor of the podcast should be minimal, particularly if the judge remains assigned to the family law division.

7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court. The inquiry does not lead the Committee to suspect that the sponsor engages in, or is potentially likely to engage in, frequent litigation. Further, since the judge plans to speak only on factual matters, and neutrally, we see no chance of the judge’s remarks being parroted back to the judge in some future family law setting.

8. Whether the activity will lack dignity or demean judicial office in any way. This consideration should not be implicated by discussing the nuts and bolts of family law. Again, as noted, the judge does not plan to discuss specific cases that might involve salacious details.

In sum, the subject matter about which the judge envisions speaking appears to be purely informative, so long as the judge does not go beyond explaining statutory family law procedures by attempting to apply those procedures to specific factual situations. Were the judge to do so, this might to intrude into giving legal advice, which judges are not permitted to do. See Canon 5G. Cf. Fla. JEAC Op. 2018-23, which approved a judge’s plan to write “an informative article about the divorce process” to be published on a for-profit web site, so long as the judge did not “comment on pending cases . . . answer hypothetical questions in a way that appears to commit to a particular position, [or] make any other remarks that could lead to the Judge’s disqualification, or be construed as an indication as to how the Judge would rule in a particular case.”

We now turn to the second provision of the Code that could impact the judge’s ability to appear on the podcasts. Canon 2B prohibits judges from “lend[ing] the prestige of judicial office to advance the private interests of the judge or others.” In the context of personal media appearances, we addressed this provision most recently in Fla. JEAC Op. 2021-10, in which the inquiring judge was a regular guest on a local public radio station’s talk show. The judge’s appearances were brief and informative in nature, and involved neither questions from the public, pending cases, nor the giving of legal advice. Additionally, the judge did not receive compensation for these appearances, an area the Committee described as “often problematic.”

Having dispensed with any significant concern that the judge’s personal interests were advanced by the radio appearances, the Committee then turned to the potential effect of the Canon 2B language “or others.” In the context of Fla. JEAC Op. 2021-10, the “other” was the radio station that frequently hosted the inquiring judge. In the present case, the judge’s proposed conduct would implicate not only the broadcaster, but the judge’s spouse as well.

With regard to the radio station, the Committee found that “[s]everal variables could potentially inform that question’s resolution, including how the station receives financial support, whether it advertises the judicial officer’s appearance and in what manner [and] whether the judge’s appearance is considered a public service/informative aspect of the station’s operation or whether it is a potential source of advertising funding for the station.” Fla. JEAC Op. 2021-10 was not unanimous in concluding that the judge’s continued radio appearances were not violative of Canon 2B. The dissent relied upon Fla. JEAC Op. 1996-25, which in turn placed great reliance upon In re the Inquiry of Evan W. Broadbelt, J.M.C., 146 N.J. 501, 683 A. 2d 543 (1996), cert. denied, 520 U.S. 1118 (1997).2

The judge’s activities in Broadbelt would certainly have caused concern if they had involved a Florida judge. Judge Broadbelt regularly appeared on commercial television programs such as Geraldo Live and Court TV to provide “guest commentary” on high-profile cases, even though, more innocently, he also appeared on a local program “to discuss generally the jurisdiction and procedures of the municipal courts.” He did not receive compensation for any of these appearances. Even so, Judge Broadbelt was found in violation of several canons, the language of which is similar to Florida’s Code of Judicial Conduct. First, the New Jersey court found that judges should not comment on cases in any jurisdiction, and not solely those likely to come before their courts. Second, and more to the point of our discussion, the judge’s regular television appearances “allowed the prestige of his judicial office to advance the private interests of commercial television.”

Broadbelt discussed in some detail two 1961 opinions by the American Bar Association, the first of which “barr[ed] judges from appearing on commercial television programs that simulate or recreate judicial proceedings,” but “did not consider whether other programs such as panel discussions or interviews would be improper.” The second opinion “approved of a judge's appearance on Meet the Press because it was ‘distinctly . . . a public service type [of show]’ similar to a news report dealing with matters of general public interest.” Notably, in the second opinion the ABA committee stated that “the nature of the program and the nature of the appearance of the lawyer or judge on it is the important thing and whether or not it is commercially sponsored is secondary.” This suggests that purely informational, neutral contributions by judges are likely to satisfy ethical standards even if delivered via a commercial medium.3

Fla. JEAC Op. 1996-25, which cites other authorities in addition to Broadbelt, offered several explanations why a judge’s regular participation in a commercial talk show could run afoul of the Code of Judicial Conduct. Canon 5A concerns itself directly with extrajudicial activities. Under this rule, “a judge's extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties.” The Committee finds reason for concern that each of these considerations under Canon 5A is implicated by the present inquiry.

“A judge must ensure that extrajudicial activities do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Here the inquiring judge proposes to comment extensively on issues arising, and have actually arisen in other courts around the United States. In this context, it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue. On the question of demeaning the judicial office, the Committee recognizes that, in view of many, television news is largely a commercial endeavor. As recent experience with several high publicity legal proceedings has demonstrated, issues that come before courts are often not conducive to exposition in the ‘soundbyte’ format of television news. Unfortunately, the extremely limited time available to a commentator on a television news show is not conducive to full and fair explanation of complex legal proceedings. Accordingly, the Committee has serious concerns that the commercial and entertainment aspects of a regular judicial appearance on a television news show might well outweigh the legitimate public information aspects.

“Finally, with regard to the third consideration under Canon 5A, an extrajudicial activity must not interfere with the proper performance of judicial duties. Here, the judge proposes regular appearances on a local television news broadcast. Such an arrangement could well lead to a public perception that the judge has priorities other than proper performance of judicial duties. Moreover, Article V, Section 13 of the Florida Constitution mandates that all judges shall devote full time to their judicial duties. Again, the very real risk is the perception that the inquiring judge would be viewed as devoting a substantial amount of their productive time to a very public commercial endeavor unrelated to judicial duties.”

“In addition to the canons discussed above, Canon 5D(1)(b) may well be implicated. Members of the electronic media are frequently litigants in the courts of this state. Under this portion of the Code of Judicial Conduct a judge must avoid engaging in continuing business relationships with persons likely to come before the court.”

Our impression is that a judge’s infrequent appearances on a podcast, limited to providing nonjudgmental information about the family court system, is a situation qualitatively different than the practices engaged in by the judge in Broadbelt and contemplated by the inquiring judge in Fla JEAC Op. 1996-25. However, this does not end the inquiry. While it may be that sporadic appearances on the podcast may have little effect on the broadcaster’s bottom line, we must not overlook the fact that the inquiring judge’s proposal will necessarily provide some benefit to the judge’s spouse, who, as noted, receives compensation for the podcasts. “A judge shall not allow family â€¦ relationships to influence the judge’s judicial conduct” (emphasis added). The Commentary to Canon 2B provides only a single example of what this provision seeks to avoid: “[A] judge must not use the judge’s judicial position to gain advantage in a civil suit involving a member of the judge’s family.” In addition to making rulings that might benefit a family member, other examples would include judges hiring a relative or lobbying law firms or court administration to do so. 4

The question posed in the current inquiry appears to be unique in this Committee’s history. For one thing, podcasts are a recent innovation, though it would not surprise us to learn of judges whose spouses may have performed on radio talk shows or worked as reporters seeking an interesting story for the newspapers or magazines that employed them. We just have not been asked, until now, to consider whether or to what extent judges may lend their time and experience when it is a spouse, and not a stranger, who wishes to elicit comment that a judge otherwise would be within the graces of the Canons to furnish.

An analogy perhaps may be drawn to books, articles, and scholarly papers written by judges. While this Committee has often written on such questions as the content of writings and how extensively their judicial authors may promote them, even though writing is often a collaborative effort we have less frequently addressed the question whether a judge may partner with someone else – colleague, fellow lawyer, friend – to write something and then advertise it. To do so inures to the benefit of not only the judge, but the other author as well. Fla. JEAC Op. 1998-1 is not directly on point – it involved a judge who wished to write a crime novel with assistance from an Assistant State Attorney, but did not contemplate co-authorship – but the opinion also includes a review of earlier opinions including some wherein judges contemplated joint projects. While the trend is generally favorable to co-authorships, many of our prior opinions focus on disqualification/disclosure more so than lending judicial prestige to the co-authors. Most directly on point is Fla. JEAC Op. 1978-12, in which three Committee members dissented, believing the proposal to co-author a procedure manual with a lawyer would intrude into lending judicial prestige, while the majority concluded the joint authorship was ethically permissible.

Though the distinction may be a fine one, the Committee finds it relevant that the judge’s spouse is already involved in the process of recording and airing the podcasts, and would continue to do so regardless of whether the judge made an occasional contribution – that is, we are not dealing with the situation where the judge is intervening with a broadcaster in order to obtain a position, contract, or extra compensation for the spouse. Thus, we do not believe the inquiring judge would run afoul of the Code by occasionally appearing on the podcast to provide non-case-specific information about the family court system.

It must be noted that two members of the Committee dissent from this conclusion, expressing their belief that the judge’s proposed activity would lend the prestige of office to the podcast.

Issue 2

As for the inquiring judge’s second question, we begin our discussion by excerpting the following information from the web site LinkedIn.com itself: LinkedIn is “the world's largest professional network with 756 million members in more than 200 countries and territories worldwide.” Its vision is to “[c]reate economic opportunity for every member of the global workforce” by “connect[ing] the world’s professionals to make them more productive and successful.” The site, which is a subsidiary of Microsoft, “leads a diversified business with revenues from membership subscriptions, advertising sales and recruitment solutions.” 5

As indicated above, this Committee has received many inquiries from judges who have written books. In Fla. JEAC Op. 2020-21, we acknowledged that a judge who had written a biography of a noted attorney should be allowed to promote the book, including on web sites like Facebook, provided the judge operated within guidelines established by the Code of Judicial Conduct (essentially those discussed in this opinion under Issue 1). But see Fla. JEAC Op. 2019-18, cautioning against “endorsement of any products, persons, services, or materials.” The Committee has not addressed such issues as whether a judge may publish a review of a book written by someone else, even if intended as a scholarly criticism.

Similar to the position this Committee has taken on vetting judicial candidates’ campaign literature, we have not asked the inquiring judge to provide the exact language of the proposed congratulatory message. We believe that it is enough that the message will draw readers’ attention to the book’s publication, which is likely to be perceived as an endorsement and promotion of the book. Moreover, there is a substantial likelihood that the judge’s posting will come to the attention of attorneys, court staff, fellow judges, and other persons whom the judge is in a position to influence. There is also potential for persons desirous of currying favor with the judge to purchase the book and make it known that they did so. This is particularly so given the nature of the LinkedIn web site – designed for networking among professional people such as lawyers - and the uses to which it is put. We conclude that the judge should err on the side of caution and let the book – and its author – speak for themselves. We trust that the judge’s spouse is already aware of the judge’s pride in this achievement.

One member of the Committee disagrees with this conclusion, having the opinion that the proposed activity is permissible under the Code.

(Mike Frisch)

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

Thursday, September 9, 2021

An Absolute

The Mississippi Supreme Court has reprimanded a judge who did not wind up his private practice within the required six months

The Commission found no evidence that Judge Watts had acted in bad faith; it found that Judge Watts’s violations resulted from his misinterpretation of the effect of filing motions to continue or withdraw. He acknowledged an awareness of the six-month winddown period. The Commission further found that in one matter in which he appeared at a contested hearing after the wind-down period, his violations resulted from acts of charity, motivated by a desire to help impecunious clients avoid hiring new counsel and paying legal fees they could not afford. They found Judge Watts’s conduct demonstrated error in judgment and an unacceptable lack of diligence. The record is devoid of any evidence that Judge Watts’s violations resulted from any intention to satisfy personal desires, such as receiving money or favors, or that he otherwise acted in a manner indicating any improper personal motive. They found no evidence that Judge Watts received any fees for his filings and, in at least one instance, he paid another lawyer the entire fee he had received so that the case could be concluded.

His ill-advised attempt to offer aid to clients blinded him to his duty to the law, to other jurists, and to parties opposite.

Sanction

Judge Watts’s failure to abide accordingly requires sanctioning. The Commission found by clear and convincing evidence that Judge Watts violated Mississippi Code Section 9-9-9 by continuing to practice law after the six-month wind-down period and that his violations constituted conduct prejudicial to the administration of justice which brought the judicial office into disrepute. See Miss. Cons. art. 6, § 177-A. The Commission further found by clear and convincing evidence that Judge Watts’s conduct did not warrant removal from office but that he should be publicly reprimanded and fined $2,500.00. We agree. The six month wind-up period is an absolute. Any action of any nature on behalf of litigants after that deadline is prohibited. Judge Watts has agreed to the Commission’s determination and acknowledged his wrongdoing. This Court thus finds that the Commission’s proposed sanctions are appropriate. Judge Watts should be publicly reprimanded and fined.

(Mike Frisch)

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

Wednesday, September 8, 2021

Calling BS

The Tennessee Board of Judicial Conduct has ordered a 30-day suspension of a General Sessions Court Judge.

In a divorce and custody matter, he stated in open court that

Judge Spitzer would wade through the bullshit.

And in the same proceeding that the parties  were putting their dispute

"in the hands of a guy who wears a costume" to work, a reference to his judicial robe.

Sanction

Telling a litigant seeking an order of protection that her "bullshit" would be considered by another court does not inspire...confidence.

...while Judge Hinson may not have intended to be disrespectful or demeaning to any litigant or to the legal process, those who heard his comments have no way of determining his intent apart from the words used. Once such comments are made, the damage is done.

He must complete at his own expense a course in judicial ethics before resuming duties.

WKRN.com has a report and video interview with the judge. (Mike Frisch)

September 8, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 17, 2021

Ex Parte Facebook Contacts Lead To Stayed Suspension Of Judge

Dan Trevas summarizes a decision on the web page of the Ohio Supreme Court

The Ohio Supreme Court today sanctioned an Ottawa County common pleas court judge for engaging in Facebook conversations over a six-month period with an offender who had both civil and criminal matters pending before the judge.

In a unanimous per curiam opinion, the Supreme Court issued a fully stayed six-month suspension to Judge Bruce Winters, the sole judge for the Ottawa County Common Pleas Court’s general and domestic relations divisions since 2008.

The Ohio Board of Professional Conduct recommended the stayed sanction, with conditions, after finding Judge Winters violated several provisions of the Code of Judicial Conduct when engaging in ex parte communications on social media with Keith Blumensaadt.

Between July and December 2019, Judge Winters and Blumensaadt used Facebook Messenger for written and audio conversations regarding matters before the court in which Blumensaadt had an interest. The Office of Disciplinary Counsel charged that Judge Winters violated judicial conduct rules by having undisclosed conversations with Blumensaadt concerning:

  • Criminal charges against a man whom Blumensaadt claimed had sold his daughter heroin
  • Alcohol-related criminal charges of a man whose vehicle struck and injured Blumensaadt, and the subsequent personal-injury case Blumensaadt intended to file
  • Modification of a civil stalking protection order (CSPO) secured by Blumensaadt’s family so that Blumensaadt could attend his mother’s funeral and other functions
  • Modification of a divorce decree that granted Blumensaadt custody of his son.

Judge and Probationer Reacquainted
Before Judge Winters began his law career, he was a probation officer for the Ottawa County Juvenile Court. In the early 1980s, he served as Blumensaadt’s probation officer. Judge Winters testified he had minimal contact with Blumensaadt for nearly 30 years until he presided over Blumensaadt’s 2017 criminal case.

In June 2017, Blumensaadt was indicted on 12 felony counts and one misdemeanor. At the time of the charges, Judge Winters disclosed to the prosecutor and Blumensaadt’s attorney the prior relationship the two had had decades ago. The attorneys agreed that the judge could still preside over Blumensaadt’s case.

In June 2019, Judge Winters approved a plea agreement in which Blumensaadt pleaded guilty to two felonies and the misdemeanor. Blumensaadt had been in jail more than a year when he was sentenced, and Judge Winters agreed to limit his felony sentence to the time already served and issued a 180-day jail sentence for the misdemeanor.

The jail sentence was suspended on the condition that he not travel to Put-In-Bay for one year. At the time of the sentencing, Blumensaadt’s movements were limited by a 2016 CSPO granted to his brother Todd Blumensaadt Sr. and nephew, Todd Blumensaadt Jr., both of whom lived on South Bass Island in Put-In-Bay Township.

Editor's note: Put-in-Bay Township is a small island in Lake Erie north of Sandusky.

Judge Engaged in Social-Media Exchanges
Within in 30 days of Blumensaadt’s release from custody, he and Judge Winters became Facebook “friends” and regularly communicated through Facebook Messenger.

In August 2019, a man identified as A.M. in court records was charged with possession of cocaine and tampering with evidence. Days before A.M.’s arraignment, Blumensaadt messaged Judge Winters and asked the judge not to give A.M. “a bond he can make.” Blumensaadt complained to the judge about A.M. moving into the neighborhood where he lived and alleged A.M. sold heroin to his daughter.

A jury convicted A.M. of one charge, and Judge Winters sentenced A.M. to two years in prison with credit for time served while awaiting his trial. Judge Winters never disclosed to the parties in A.M.’s case that he had been discussing the matter with Blumensaadt.

The disciplinary counsel and Judge Winters stipulated, and the board agreed, that the judge violated three judicial conduct rules, including the requirement that a judge who receives an unauthorized ex parte communication bearing on a matter before the court notify the parties in the case and give them an opportunity to respond.

The disciplinary counsel and Judge Winters also stipulated that he violated the rules by failing to disqualify himself from several cases because his conversations with Blumensaadt “might reasonably have drawn his impartiality into question.”

Conversations Continue during Matters Involving Facebook Friend
In August 2019, Blumensaadt sent Judge Winters a Facebook message informing him his ex-wife agreed to transfer custody of their son to Blumensaadt, but neither could afford an attorney. He asked the judge if there was a form they could use, and the judge directed Blumensaadt to the court’s website and told him it would cost $1,000 to hire an attorney to handle the matter.

Throughout the months as the matter was pending, the two had several Facebook conversations, and at one point Judge Winters advised Blumensaadt to finish the custody matter before “your personal injury case gets filed.”

Weeks prior to filing the custody matter, Blumensaadt was injured when a man identified as D.F. struck Blumensaadt when he was riding his motorcycle. D.F. was charged with operating a vehicle under the influence, aggravated vehicular assault, and other charges.

Blumensaadt became aware the prosecutors and D.F.’s lawyers were discussing a plea agreement in which D.F would be placed in a pretrial diversion program. Blumensaadt complained to Judge Winters that the plea could allow D.F to escape liability and influence his personal-injury lawsuit.

The judge granted D.F. entrance to the diversion program, and Blumensaadt sent Judge Winters a note stating he understood the difficult position of a judge in a small county and that he respected the decision.

Protection Order Modified without Notifying Family
In addition to the pending matters before the common pleas court, Blumensaadt messaged Judge Winters to tell him Blumensaadt’s mother had less than a year to live and was seeking a modification to the protective order so he could attend a funeral, even though his brother, nephew, and other protected persons would be there.

When Blumensaadt sought a modification of his CSPO, the brother and nephew filed objections. Judge Winters assigned the matter to a magistrate and continued to have Facebook conversations with Blumensaadt about the matter.

Judge Winters resolved the matter by telling Blumensaadt a sheriff’s deputy would accompany him to the funeral so there would be no need for the family’s consent to the change or a hearing. The judge then granted the modification without hearing the objections of the brother and nephew.

Supreme Court Reviewed Misconduct   
The board found Judge Winters engaged in inappropriate communications with Blumensaadt, failed to promptly notify the parties of the communications, and did not give them opportunities to respond in all four matters.

In disciplinary cases, the Court considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.

The board noted that Judge Winters engaged in a pattern of misconduct that involved multiple offenses. The board also found the judge had no prior discipline, acted without a dishonest or selfish motive, fully disclosed his misconduct, cooperated in the investigation, and expressed genuine remorse for his actions. He also closed his social-media accounts.

The Court’s opinion noted that while Judge Winters’ impartiality could be questioned because of his actions, the record did not indicate the judge’s misconduct “led him to reach any improper or biased outcome.”

The Court stayed the suspension with the conditions that Judge Winters complete three hours of continuing judicial education on the subject of ex parte communications or appropriate use of social media by judicial officers in addition to any required continuing judicial education, commit no further misconduct, and pay the costs of the proceedings. 

2021-0442Disciplinary Counsel v. WintersSlip Opinion No. 2021-Ohio-2753.

(Mike Frisch)

August 17, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, August 11, 2021

The Growing Body Of COVID Anger Discipline Law

A magistrate has been suspended for six months with anger management counseling by the South Carolina Supreme Court 

On May 14, 2020, the Chief Magistrate for Florence County scheduled a meeting with the magistrates and clerks to discuss the Covid-19 safety plan for re-opening magistrates' courts to the public in accordance with this Court's April 30, 2020 Order concerning Statewide Evictions and Foreclosures. During the meeting, Respondent began asking questions repeatedly, speaking in a loud voice and challenging the Chief Magistrate's Covid-19 safety plan for reopening. As the meeting continued, Respondent became visibly agitated, reading aloud portions of the April 30, 2020 Order and challenging the Chief Magistrate's implementation plan. At one point during the meeting another magistrate in attendance told Respondent to follow the Chief Magistrate's direction. Due to Respondent's continued disruptions, the Chief Magistrate apologized to the other meeting attendees and adjourned the meeting prematurely without completing the agenda.

After the meeting concluded, Respondent exited the meeting room and confronted the magistrate who suggested he follow the Chief Magistrate's directions. Respondent expressed his displeasure and told the other magistrate not to disrespect him again. Respondent then returned to the meeting room where the Chief Magistrate had begun to gather her personal belongings. When the Chief Magistrate turned to leave the room, she was startled to see Respondent, who was hitting his hands together and loudly requesting that going forward the Chief Magistrate should show him respect. The Chief Magistrate grew concerned for her physical well-being. The following day, she reported the incident to the Office of Disciplinary Counsel.

Approximately a month later, Respondent told a Florence County clerk that the Chief Magistrate "does not know who she is dealing with and she will regret doingn this," in reference to the complaint submitted to Disciplinary Counsel. Thereafter, Respondent was placed on interim suspension. In re Rivers, S.C. Sup. Ct. Order dated July 10, 2020.

Respondent admitted the misconduct.

Respondent should complete at least fifteen hours of anger management counseling; however, should Respondent's chosen counselor determine that more than fifteen hours of counseling are necessary, Respondent shall complete the number of hours recommended by the counselor.

(Mike Frisch)

August 11, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, July 14, 2021

The Third Degree

The South Carolina Advisory Committee on Standards of Judicial Conduct opines  "as to the propriety of presiding over cases involving the Department of Social Services (“DSS”) where the judge’s first cousin is director of the DSS in a county within the judge’s circuit."

In Opinion 10-2004, we considered a similar situation. In that case, a circuit court judge inquired as to the propriety of presiding over matters in which the judge’s first cousin appeared as an attorney or a witness. We noted that the judge’s first cousin did not fall within the category of “third degree of relationship” and that the judge was not required to disqualify himself or herself. However, we stated that the “judge should disclose on the record information that the  judge believes the parties or their lawyers might consider relevant to the disqualification, even if the judge believes that there is no real basis for qualification.” Commentary to Canon 3E. We concluded that if any party objected after such disclosure and offered reasons beyond the relationship, the judge would have to consider those factors and, using his or her discretion, determine if they warranted disqualification. We believe the reasoning of Opinion 10-2004 applies here.

Here, the judge’s first cousin/DSS director is not an attorney or an individually named party in the DSS cases, nor is it likely that he or she will be a material witness in proceedings before the judge. The first cousin/DSS director does not have more than a de minimis interest in each individual proceeding. Therefore, a family court judge is not required to disqualify himself or herself in DSS cases where the judge’s first cousin is the director of DSS. However, the judge must disclose the relationship on the record and if any party objected after such disclosure and offered reasons beyond the relationship, the judge must consider those objections in determining whether disqualification is appropriate.

(Mike Frisch)

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

Judges, Guns And The Thin Line

Findings of judicial misconduct by a circuit court judge led to a seven day suspension by a majority of the Wisconsin Supreme Court.

Judge Woldt has been a circuit court judge since his appointment to the bench in 2004. He was subsequently elected to six-year terms in 2005, 2011, and 2017. He has never before been the subject of public or private judicial discipline.

In response to the allegations

At the same time that it filed its complaint, the Commission also filed the Joint Stipulation, in which Judge Woldt not only agreed that the factual allegations in the Commission's complaint were true, but also that those facts demonstrated that his conduct in each of the six incidents described in the complaint "violated the Code of Judicial Conduct" with respect to the particular provisions of the Code set forth in the complaint.

The case drew a sharp disagreement whether the judge's conduct in displaying his handgun in open court and to visiting high schoolers violated the Code of Judicial Conduct.

After sentencing a defendant, the judge addressed the victim

And ma'am, if you come in here and tell me that you just want a fine, everything's fine, then don't pick up the phone and dial 911, don't call the cops. I mean if you think you want to handle it, then you handle it; but if you want to pick up the phone and call the police, we're going to get involved and we're going to make him get the counseling which he needs. I'm just sick and tired of victims coming in here and they call the cops when they need 'em but then later on they come and say: Oh, no, this person's an angel. I'm sick and tired of hearing it.

To a defense counsel in a criminal matter (excerpts below)

Judge Woldt interrupted defense counsel with the following exchange:
The Court: I know when I'm paralyzed by fear the first thing I want to do is stick my "dick" in some girl's mouth.
Mr. Edelstein: Well –
The Court: Everyone else the same way? (No response.)
The Court: I mean that's a stupid argument.
. . .
Mr. Edelstein: I'm not saying it wasn't a two-way street, but it's not as if we have an individual who set out in a predatory fashion to meet up with someone knowing that his friend was going to a party with these young girls here. That's not what happened.

During a sentencing "[h]e...proceeded to give a rather lengthy soliloquy about his views on courthouse security before returning to what an appropriate sentence should be"

This excerpt indicates that at one point during his lengthy statement, Judge Woldt held up a handgun. The Commission's complaint alleged, and the Panel found, that during the hearing, Judge Woldt had a Glock Model 43 handgun in a holster on his right hip concealed under his judicial robe. The gun was loaded with a round in the chamber and a full magazine.

During a courthouse visit by high school students

As with Judge Woldt's display of his Glock handgun during the Shaffer sentencing hearing described in Incident Three above, he also displayed his handgun to the students.

Another

The Court: Counsel, there's a thin line between being an advocate and being a "dick" – thin line – and you're blurring it.
Mr. Stillings: Can you be more specific? I'm not understanding –
The Court: I'm not going to play your games with you, okay? I'm not going to play your games with you. You're being very argumentative with this witness, and you're playing games.

The court

We have no hesitation in concluding that Judge Woldt's comments, when combined with the unnecessary display of his personal handgun during the sentencing proceeding, constituted a failure to observe "high standards of conduct" "so that the integrity and independence of the judiciary will be preserved." SCR 60.02. A judge who displays a personal gun as a "prop" during a court proceeding and then immediately threatens to use it to kill the defendant if he ever broke into the judge's residence is not demonstrating the integrity of the judiciary, SCR 60.02, and is not "promot[ing] public confidence in the integrity and impartiality of the judiciary." SCR 60.03(1)...

We begin with the nature of Judge Woldt's misconduct, which we view to be serious and to have a significant detrimental impact on the public's view of the judiciary. We have already discussed how Judge Woldt used undignified, discourteous, and disrespectful language unbecoming a judge and essentially threatened a young defendant with cognitive impairments in the Shaffer sentencing. In the Krebs sentencing, he again used profane language and imagery to demean what he believed defense counsel's argument to be. He displayed irritation with counsel's attempt simply to make arguments on behalf of his client and made clear that he wanted Krebs' counsel, as well as all other attorneys who appear in his court, to "get to the point" or "jump to the chase" because he does not wish to hear extended arguments. Indeed, he said that when proceedings are taking longer than he would like, attorneys should know that the best thing they can do is to "shut their pie holes." A highly distressing part of Judge Woldt's conduct during the Krebs hearing was his fairly blatant attempt to intimidate the defendant into waiving his right to speak in allocution. Equally distressing, he referred to the 13-year-old victim in the case as a "so-called victim," thereby questioning in open court whether the young girl had really suffered a second-degree sexual assault despite the fact that he had accepted the defendant's plea to that crime. Finally, in the first incident at issue here, the 2009 sentencing in the Williams case, Judge Woldt mischaracterized the in-court statement of the victim in a domestic violence case  and then castigated her for having the temerity to express her opinion of her current relationship with the defendant, essentially discouraging her from calling the police in any future domestic violence situations. These are all serious violations of a judge's ethical duties and show an open and callous disregard of Judge Woldt's obligation to serve the public in a fair, reasoned, impartial, and courteous way.

Sanction

Having considered all of the facts of this proceeding, including all of the appropriate aggravating and mitigating factors, we conclude that a short suspension is necessary in this situation to assure the members of the public that judges will treat them with dignity, fairness, and respect when they enter the courtrooms of this state, and to impress upon Judge Woldt the seriousness of his misconduct and the need for him to
change how he treats the jurors, lawyers, litigants, witnesses, victims, and staff with whom he interacts. Given Judge Woldt's lengthy history of service on the bench, the fact that he has not previously been the subject of a disciplinary complaint, and the fact that five years have passed since the last incident at issue here, we conclude that a seven-day suspension will be sufficient to ensure that there will not be a repetition of this misconduct by Judge Woldt.  We remind him and the other judges in this state that how justice is dispensed is often just as important as the substance of the legal ruling.

Justice Bradley concurred and dissented in part

In this matter, a three-justice majority ignores the Code's Preamble and distorts the text of the Code provisions it invokes to justify a legally unsupportable finding of misconduct premised on a judge's display of a handgun he lawfully carried. In doing so, three justices establish a precedent that may be wielded unscrupulously against other judges in the future.

A zinger

The majority seemingly attributes its own firearm phobias to the high school students, suggesting they were frightened, scared, or otherwise discomforted by Judge Woldt's conduct. There is no evidence of this either.

The majority expands its hyperbole when it moralizes, "it was not necessary for any valid judicial purpose to display the gun and introduce an element of force into the sentencing hearing."  The majority then misstates that Judge Woldt "threaten[ed]" to "kill" the defendant if he ever broke into the judge's home.  Judge Woldt issued no threat.

Suggested reading

A summary of a principle in the recent best seller, The Coddling of the American Mind, hits at the very heart of the problem with the majority's hyperbolic statements: "There is a principle in philosophy and rhetoric called the principle of charity, which says that one should interpret other people's statements in their best, most reasonable form, not in the worst or most offensive way possible." Greg Lukianoff & Jonathan
Haidt, The Coddling of the American Mind  (2018). The majority assumes the worst of Judge Woldt, so it reads into his statements an insidious intent that is not facially or impliedly present. When this court exercises its extraordinary power to discipline elected judges, it should apply the principle of charity, resolving doubts about the intended meaning of a judge's statement in favor of the judge. After all, the Judicial Commission bears the burdens of proof and persuasion.

...On a final note, the majority raises a red herring by insinuating that my conclusions are grounded in the statutory right to concealed carry and the constitutional right to keep and bear arms. They aren't. It is the text of the Code that governs this matter and nothing in the actual text of the Code prohibits the display of a firearm. While the comment to SCR 60.03 counsels against reading the Code in a manner that permits "onerous" depravations of judges' "fundamental freedoms," the majority errs because it declines to undertake any textual analysis of the Code and utterly fails to connect a judge's display of a handgun to the text of any of its provisions. Judge Woldt's display of a firearm offends the sensibilities of three justices of this court, so they deem it unethical. Allowing subjective feelings to color the construction of the Code subjects Wisconsin's judges to sanctions based on the personal ideals of three or four justices rather than actual breaches of written rules. Unreasonably broad and unexplained constructions of the Code's rules are "antithetical to the rule of law" because "[s]uch rules place ipse dixit powers . . . in
the hands of disciplinary boards and courts applying such rules."

Justice Roggensack joined Justice Bradley's opinion.

Chief Justice Ziegler and Justice Haggedorn did not participate. (Mike Frisch)

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

Wednesday, June 23, 2021

Recusal In Kentucky: The Green Canoe And Law Clerk Spouses

The Kentucky Supreme Court noted that a judge of the Court of Appeals should have recused himself in a property dispute

We are less troubled by the circumstances, perhaps even in the aggregate, that Judge Johnson happened to live in the same gated community, that his wife and Rosquist were officers in a non-party HOA, and that the judge may have overheard but then forgot when this case was mentioned at an HOA meeting two years before. We ultimately require disqualification of Judge Johnson in this case because an uncontroverted affidavit stated Rebecca Johnson gave Rosquist the judge’s personal number to discuss this case, that the order describes the judge and his wife as “friends” with Rosquist, the affidavit states they are “obviously friends,” not merely acquaintances, and where the judge or his wife seemingly allowed Rosquist to keep case-related belongings, a green canoe removed pursuant to an order, for storage at the judge’s home. Given his denial, we need not question whether Judge Johnson actually spoke with Rosquist about the case or even knew about the canoe on his property, or whether this was in fact Rosquist’s canoe, although such inferences could reasonably arise. We need not wonder whether Judge Johnson actually possessed material knowledge or recollection of the facts of this case, because the circumstances reasonably support that inference. We need not find Judge Johnson harbored an actual bias, strong or subtle, simply because this case arose from a neighborhood dispute, he was friends with the party-neighbor, and his wife presumably had some discretion in enforcing the covenants allegedly violated. We need not necessarily conclude Judge Johnson himself was party to an “ex parte transaction” to store Rosquist’s green canoe on his property, because, again, that reasonably appears to be a possibility.

Judge Johnson’s assurance of impartiality might have sufficed under the more subjective standard of KRS 26A.015(2)(a). But the totality of circumstances permitted a reasonable conclusion of bias in Rosquist’s favor, so Judge Johnson was required to recuse under KRS 26A.015(2)(e).

The court also issued an opinion concerning recusal when a law clerk's spouse appears as counsel

Our opinion is that the judge’s isolation of the law clerk plus disclosure of the marital relationship dictate that a reasonable observer, being aware of all the facts and circumstances, would NOT reasonably question the judge’s impartiality. In other words, the trial judge would not be required to recuse. The other inquiry addressed whether
this procedure, isolation plus disclosure, would extend to other attorneys working out of the same office as the spouse attorney. We hold that this procedure should be followed for the particular Legal Aid of the Bluegrass office out of which the spouse attorney works but is not required with respect to the other three Legal Aid of the Bluegrass offices.

(Mike Frisch)

June 23, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 18, 2021

No "F" In Justice

The Kansas Supreme Court has reinstated a suspended judge based on a training and counseling plan 

After careful consideration, the court approves the Plan and grants Judge Cullins' motion to stay the remaining term of the suspension of his judicial duties as long as he remains compliant with the Plan. A minority of the court dissents from this order.

KMBC 9 reported on the sanction

A foul-mouthed Kansas judge accused of bigotry who cursed at courthouse employees so often that a trial clerk kept a “swear journal” documenting his obscene outbursts was on Friday suspended from the bench for one year.

The Kansas Supreme Court called Montgomery County Judge F. William Cullins’ behavior “quite troubling” while meting out a punishment that was harsher than the censure and coaching that a disciplinary panel recommended last year.

“He has intimidated and publicly humiliated court employees. He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings. By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary,” the court said in its decision.

The ruling is effective immediately, but the court said it would consider waiving the remaining suspension after 60 days if Cullins enters into an approved plan for training and counseling. It also ordered Cullins to pay all the costs of his disciplinary proceeding.

His attorney did not immediately respond to an email seeking comment.

The court agreed with the disciplinary panel that Cullins' conduct violated judicial canons of decorum, integrity and impartiality. The panel also found he harmed public confidence in the integrity of the judiciary and that his conduct exhibited unfairness and unsound character.

Cullins acknowledged during his December 2019 disciplinary hearing that he frequently cursed in his conversations with employees and attorneys, and was sometimes unprofessional in his conduct, but he insisted he didn’t abuse court staff or direct vulgar and sexist terms at female workers. He called his profanity a lifelong habit, saying he has a “salty” personality that some people see as “down to earth.”

The high court affirmed the disciplinary panel's finding that Cullins’ use of foul, derogatory words directed at women manifested a clear gender bias.

It also addressed an instance in which Cullins was recorded in court referring to an out-of-state Black athlete as “not even a Kansas boy” and telling a Black male resident, “you’re a Kansas boy” - language that could be considered demeaning to an African American man.

Although the panel found credible Cullins’ testimony that he was referring to geographic origin and didn't intend racial derision, it said the term could be interpreted as bias and therefore violated judicial rules. The high court agreed.

“Regardless of inflection, tone, or local custom, this court has little trouble finding there was clear and convincing evidence to support the panel's conclusion that the statements made by (Cullins) during these bond hearings created a reasonable perception of racial bias,” according to the ruling.

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

Facebook Statements Lead To Resignation

A press release from the New York Commission on Judicial Conduct

Kenneth C. Knutsen, a Justice of the Schoharie Town Court and an Associate Justice of the Schoharie Village Court, Schoharie County, resigned while under investigation by the New York State Commission on Judicial Conduct for anti LGBTQ posts on Facebook and other misconduct.

The Commission apprised Judge Knutsen in April 2021 that it was investigating complaints alleging anti-LGBTQ bias and content on his personal Facebook page. His Facebook page also revealed numerous other posts containing: partisan political content; expressions of bias in favor of law enforcement and against criminal defendants; expressions of anti-Muslim bias; and prohibited public commentary on pending cases, including the murder trial of former Minneapolis Police Officer Derek Chauvin. The Facebook posts no longer appear publicly visible.

The decision is linked here; the stipulation here. (Mike Frisch)

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

When Push Comes To Shove

The New York Commission on Judicial Conduct accepted the resignation of a village court justice

The Commission apprised Judge Fishkin in April 2021 that it was investigating complaints alleging that she: (1) shoved or pushed a Suffolk County Assistant District Attorney (ADA) outside her courtroom, while court was in session and the courtroom was full of lawyers, litigants, and others; (2) accused a different ADA of being “anti-Semitic” when the ADA would not offer a lenient plea to an associate of the judge’s husband in a Vehicle and Traffic Law (VTL) matter; (3) inappropriately turned court audio recording equipment on and off in the middle of court proceedings; (4) presided over and took pleas in VTL matters without an ADA present; (5) locked the court while she was away to prevent the Associate Village Justice from presiding over matters in her absence; and (6) exhibited inappropriate demeanor on the bench and in interactions with Suffolk County prosecutors, other attorneys and litigants.

In May 2021, the Commission apprised Judge Fishkin that it was also investigating a new matter brought to its attention concerning an audit of the court’s finances by the Office of the State Comptroller.

Judge Fishkin, who left office on May 6, 2021, agreed never to seek or accept judicial office at any time in the future. The Commission accepted a stipulation to that effect signed by the judge and the Commission’s Administrator and closed its investigation.

The Commission's press release (quoted above) is linked here.

The stipulation is here. (Mike Frisch)

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

Tuesday, June 15, 2021

Retired Judge Censured For Facebook Sex Talk And More

The North Carolina Supreme Court has censured a district court judge for stipulated misconduct on Facebook, where he identified himself as a judge and had "thousands" of friends

Although some of Respondent’s FB messages have been deleted, a review of Respondent’s existing FB messages during the period from November 2018 to May 2019 shows that Respondent, who is married, knowingly and willfully initiated and engaged in conversations with at least 35 different women that ranged from inappropriate and flirtatious to sexually explicit. In some cases, Respondent and the female also had telephone conversations, exchanged texts and had personal meetings (including in some cases sexual encounters).

Respondent knowingly and willfully engaged in FB conversations of a sexual nature with 12 women during the period from at least November 2018 through July 2019.

The stipulation further sets forth that the judge's social media activities interfered with his judicial duties.

The Judicial Standards Commission had filed other charges not addressed in the stipulation, including

(1) by engaging in sexual misconduct while serving as and exploiting his position as Chief Judge of his judicial district through a pattern of predatory sexual advances towards numerous women in Respondent’s community, many of whom were involved in matters pending in the district where Respondent served as Chief Judge

The judge

Prior to the incidents described herein that began in or about 2017, Respondent had enjoyed a long and distinguished career as a judge of his district for almost twenty years. As Chief District Court Judge, Respondent made a number of significant contributions to the administration of justice during his 13 years in that position.

On sanction

the Commission also considered the fact that respondent “is no longer a sitting judge of the State of North Carolina and has agreed that he will never serve in such capacity again,” that he “had served for approximately 18 years as a judge, and for over a decade as chief judge of District 29A, without any disciplinary matters before the Commission,” that he “had contributed to improvements to the administration of justice in his district,” and that he is in “the early stages of frontotemporal dementia.” Based on the conclusions of law and these mitigating factors, the Commission recommended that respondent be censured.

(Mike Frisch)

 

June 15, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, June 6, 2021

Pulpit For A Bully

The Arkansas Supreme Court accepted a recommendation for judicial discipline

Judge Sims is a circuit court judge for Pulaski and Perry Counties in the Sixth Judicial District of Arkansas and has served in that capacity since 2003. Previously, he served as a district court judge in North Little Rock, Arkansas. In his judicial career, he has presided over criminal, civil, probate, and domestic-relations cases. The report of uncontested sanction arises from complaints filed with the Commission concerning Judge Sims’s courtroom comments and conduct toward members of the Bar.

These matters were resolved without a formal disciplinary hearing. On advice of counsel, Judge Sims has agreed that the sanction of suspension is appropriate for his actions in JDDC case #19-264. The investigation panel approved the disposition and the regular members of the Commission approved the recommendation of suspension without pay for ninety (90) days with sixty (60) of those days held in abeyance for one year on the condition that Judge Sims complete or adhere to the following remedial measures:

1. Attend a class on mindfulness, patience, or civility through the National Judicial College, National Center for State Courts or other reputable judicial training organization and provide proof of attendance no later than December 31, 2021;
2. At his own expense, hire a counselor or life coach to help consult with him about how he treats professionals appearing in his court. Judge Sims or his representative must provide information to the JDDC about his cooperation and progress. No personal details need to be submitted;
3. Have no more complaints that result in public charges or agreed discipline; and
4. Be on notice that future complaints concerning intimidation, bullying, retaliation, or harassment will be investigated as the failure to learn and change from the remedial measures in this agreement will be included as evidence of intent and lack of mistake.

The court majority adopted the recommendation

SHAWN A. WOMACK, Justice, dissenting. Because the constitutional authority by which the Arkansas Judicial Discipline and Disability Commission was created ceased to exist after the passage of Amendment 80, I respectfully dissent from the court’s decision to ratify the actions of an unconstitutional entity. See In re Ark. Jud. Discipline & Disability  Comm’n Appointments, 2021 Ark. 27 (per curiam) (Womack, J., concurring).
I dissent.

Fox16.com noted

A Pulaski County Circuit Judge faces suspension from the bench state after he admits to bullying and intimidating at least three female attorneys in his courtroom.

KATV.com reported on the matter and links to the recommendation. (Mike Frisch)

June 6, 2021 in Judicial Ethics and the Courts | Permalink | Comments (1)

Tuesday, June 1, 2021

The Bondsman's Unrequited Toil

An opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct

FACTS

A full-time municipal judge is seeking to hire a part-time associate municipal judge. The part-time judge would set bonds, issue warrants, release prisoners from custody, accept fine payments, etc. The candidate for the position has a brother who is a bondsman in the same municipality. The inquiring judge seeks an opinion as to whether this familial relationship would create a conflict that violates the Code of Judicial Conduct.

CONCLUSION

A conflict of interest is created when a part-time judge who issues warrants and sets bonds has a brother that acts as a bondsman in the same municipality. At the very least, an appearance of impropriety arises.

(Mike Frisch)

June 1, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 27, 2021

From This Moment On

A losing candidate for judicial office has been reprimanded by the Florida Supreme Court.

The Bar’s complaint pertained to Respondent’s conduct in running for Marion County Judge against incumbent Judge Robert E. Landt in the August 28, 2018, primary election. Specifically, it was alleged that Respondent attempted to impugn Judge Landt’s integrity, citing his record in criminal cases presided over, while repeatedly implying that Respondent was biased in favor of state prosecutors and law enforcement.

With a warning

However, we write to place future candidates for judicial office on notice that this Court takes misrepresentations that cast a sitting judge in a false light seriously because of their potential to undermine confidence in the rule of law. With respect to candidates who have won judicial elections using similar misrepresentations, and related campaign-related misconduct, we have removed the newly elected judges from office. See, e.g., In re Santino, 257 So. 3d 25 (Fla. 2018); In re Renke, 933 So. 2d 482 (Fla. 2006); In re McMillan, 797 So. 2d 560 (Fla. 2001). Accordingly, in the future, similar misconduct presented in the posture of this type of case should be expected to result in a more severe sanction,  including suspension.

There were dissents

CANADY, C.J., dissenting. Because I conclude that a reprimand is an insufficient sanction for Respondent’s misconduct, I would reject the stipulation. In my view—based on the stipulated facts—a nonrehabilitative suspension would be appropriate in this case.

LABARGA, J., dissenting. I concur with the majority that the referee’s findings are sufficient to support Respondent’s culpability for violating numerous Rules Regulating the Florida Bar and several sections of Canon 7 of the Code of Judicial Conduct. However, I disagree with the majority that the referee’s recommended discipline—a public reprimand via publication of the majority opinion—is an adequate sanction for Respondent’s egregious conduct during a judicial campaign. I therefore respectfully dissent.

Quoting the referee

The evidence presented was clear and convincing to establish that respondent expressly and intentionally implied that the incumbent judge favored criminals, disfavored law enforcement, disfavored the state attorney, and that he, as a candidate, would do differently.

The need for a strong response

Unfortunately, in situations such as in Santino where the candidate who utilizes the “win-at-all-costs-and-pay-the-fine-later” tactics actually wins the election, a lengthy suspension, even without pay, may be viewed as worth the prize of a guaranteed commission for a six-year term in office.

...Here, because Respondent did not take office, the question of removal or suspension from office is not an issue. The only question is the appropriate Bar discipline to be imposed. Given the similarities of Respondent’s actions to those in Santino, his Bar discipline should be a suspension from the practice of law for at least sixty days, in addition to a public reprimand to be administered by The Florida Bar.

(Mike Frisch)

May 27, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)