Friday, June 18, 2021
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 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)
Tuesday, June 15, 2021
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
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.
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.
Sunday, June 6, 2021
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).
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)
Tuesday, June 1, 2021
An opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct
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.
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.
Thursday, May 27, 2021
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.
Thursday, May 20, 2021
The Ohio Supreme Court affirmed a public reprimand of a judicial candidate.
The court rejected application of the New York Times v. Sullivan standard
We disagree, however, with Falter’s assertion that Jud.Cond.R. 4.3(A) incorporates the subjective actual-malice definition employed in public-figure defamation cases. Although the language of Jud.Cond.R. 4.3(A) resembles the actual-malice standard established in New York Times Co. v. Sullivan, id. at 280 (defining “actual malice” as acting “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not”), there are important differences between the interests served by defamation law and those served by ethical rules for judges and judicial candidates. As the Supreme Court of Michigan concluded, the subjective actual-malice standard is inappropriate in this context and adopting it “ ‘would immunize accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth.’ ” In re Chmura, 461 Mich. 517, 543, 608 N.W.2d 31 (2000), quoting In re Holtzman, 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991). Instead, the determination whether a judicial candidate recklessly disregarded the truth or falsity of campaign material is an objective one.
the limits on a judicial candidate’s speech are not necessarily coextensive with the limits of the First Amendment. The United States Supreme Court has recognized that “[s]tates may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 446, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015); see also Disciplinary Counsel v. Tamburrino, 151 Ohio St.3d 148, 2016-Ohio-8014, 87 N.E.3d 158, ¶ 17 (noting that First Amendment principles in other contexts do not apply “to disciplinary sanctions for knowingly false or recklessly false statements by judicial candidates”); O’Toole at ¶ 22-29.
Thus, Ohio’s interest in preserving public confidence in the integrity of its judiciary supports applying a standard in judicial-candidate discipline proceedings different from that applicable in defamation cases. And an objective standard for determining violations of Jud.Cond.R. 4.3(A) strikes a balance between a judicial candidate’s First Amendment rights and the state’s compelling interests. Falter’s argument in this case fails to account for the fact that “judicial elections fundamentally alter the constitutional calculus,” Platt v. Bd. of Commrs. on Grievances and Discipline of the Ohio Supreme Court, 894 F.3d 235, 267 (6th Cir.2018). Therefore, whether Falter subjectively had serious doubts about the truth of her allegations is not the sole determinative factor in analyzing whether she acted with the requisite mens rea. We accordingly overrule this objection.
As to falsity
Falter admitted that she had personally typed the February 2020 campaign letter stating that Hartman had “moved to Hamilton County 3 years ago to take a judicial appointment from Governor John Kasich in March, 2017.” (Underlining sic.) She also admitted that prior to sending the letter, she had not researched Hartman’s voting history or his property ownership. And she admitted that her statements about Hartman turned out to be untrue.
As her defense, Falter claimed that the information in her letter came from her campaign consultants and that she expected the consultants to ensure the accuracy of her campaign messages. But Falter also testified that she did not know how her consultants allegedly knew this information about Hartman and that she never specifically asked them to confirm the accuracy of the allegations or to research his voting history. And one of Falter’s campaign consultants testified that the letter was “technically one of [Falter’s] projects;” that at the time the letter was being prepared, he did not know when Hartman had moved to Hamilton County; that he did not know where some of the information in the letter came from; and that although there had been discussions about the validity of Hartman’s residency, there was “never really a specific time given nor did [the consultants] actually do the full research on it.” The campaign consultant also testified that he had reviewed Falter’s letter for “grammatical errors,” and he explained that “when a client does something on their own, I trust that they have good knowledge of what they’re putting in there,” especially when his consulting firm had no part in creating the campaign material.
the panel concluded that Falter “chose to believe what was essentially courthouse and party-insider gossip or rumors without making any effort to check the truthfulness of the allegation.” The panel also found that Falter’s contract with her consultants did not expressly require them to do “fact checking” of her campaign materials. Because Falter’s statements were the type that must be verified and because she failed to take any action to do so, the panel concluded that she acted with reckless disregard of whether or not the statements were false.
The panel's proposed sanction
we commend Falter for issuing a retraction letter shortly after Hartman’s campaign notified her that the letter was inaccurate. But that fact does not mean that her public reprimand should be vacated. Nor has she established that the panel’s weighing of the other aggravating or mitigating factors should have any impact on her sanction.
And social media publicity does not supplant the need for sanction
Falter next argues that her disciplinary sanction should be vacated because she “has been sufficiently reprimanded in public.” She claims that although she quickly retracted her campaign letter, she received negative media attention, which culminated in her loss in the primary election. With her objections, Falter submitted screenshots of social-media posts criticizing her for the false campaign letter. She argues that in light of the damage to her reputation, the commission’s public reprimand was excessive.
...No exceptional circumstances exist here that would allow Falter to introduce evidence for the first time in her objections. Nor has she otherwise established why alleged critical comments in the media or on social media could somehow substitute for a public reprimand from this court.
The per curiam opinion’s insistence that “[n]egligently made false statements or negligent misstatements are not prohibited by” Jud.Cond.R. 4.3(A), majority opinion at ¶ 18, cannot therefore be reconciled with the fact that this court has adopted and applied an objective reasonableness test.
Thursday, May 13, 2021
The Florida Supreme Court has reprimanded a judge
According to the stipulation, Judge Cupp admits that the conduct described in the Notice of Formal Charges occurred. Judge Cupp admits that in the lead up to the 2020 election for Hendry County Court Judge, he began contacting individuals he knew in Hendry County to inform them that he was supporting the incumbent judge’s opponent, because of concerns he had heard about the incumbent. Judge Cupp’s preference for the incumbent’s opponent eventually became widely known in the community. Judge Cupp admits that his conduct in making unsolicited contact with many influential members of the Hendry County community, during which he expressed his preference for a certain candidate in a judicial race, and in some instances requested that the community member support his favored candidate, was not only inappropriate, but violated Canons of Judicial Conduct 1, 2B, and 7A(1)(b) and damaged the integrity of the judiciary, by creating the appearance that he was interceding in a judicial election. Judge Cupp also admits that he violated canon 7 and chapter 106, Florida Statutes, during his 2020 reelection campaign by failing to officially designate a campaign account and treasurer with the Division of Elections prior to receiving any contributions or issuing any funds, and that his conduct damaged the public’s perception of the judiciary.
The judge must appear in person to be administered the sanction. (Mike Frisch)
Friday, April 30, 2021
The New Jersey Supreme Court rejected a disbarment recommendation of its Disciplinary Review Board and imposed a three-year reciprocal suspension based on a sanction imposed in Pennsylvania.
From the DRB report
This case arises from respondent’s repeated engagement in ex parte communications with a fellow municipal court judge, and her associated misconduct in the administration of her court, motivated by her belief that the other judge’s political connections could personally benefit her and secure her re-appointment as a judge. The OAE asserted that respondent failed to report the other judge’s misconduct; unethically entertained and ruled on his requests in cases in which she presided; failed to recuse herself in those cases; and ruled favorably for his position in order to curry his political favor, for her own benefit.
Specifically, in 2009, respondent was a judicial candidate for the Philadelphia Municipal Court. During her campaign, she became familiar with Joseph C. Waters, a fellow candidate. Respondent viewed Waters as politically well-connected and knowledgeable about the political process. Conversely, respondent considered herself an outsider to Philadelphia politics. Both Waters’ and respondent’s campaigns were successful and, on January 4, 2010, respondent became a municipal court judge. As a result of her own perceived outsider status, however, respondent had concerns that the Democratic Party would not support her retention, in 2015.
On September 30, 2011, the Philadelphia Inquirer published an article, quoting a Democratic Party leader, who stated that the Philadelphia judges running for retention in the November 2011 election would have to contribute money to the Democratic Party. On the same day the article was published, Waters contacted respondent by telephone. Unbeknownst to respondent and Waters, the Federal Bureau of Investigation (FBI) had obtained a wiretap warrant on Waters’ telephone, was recording their conversation, and would record subsequent telephone conversations between the two of them.
During the September 30, 2011 conversation, respondent expressed her concerns about her retention election, despite the fact it was still four years away, and disclosed to Waters that the Democratic Party leader quoted in the newspaper article previously had threatened her for not supporting the party. Waters reassured respondent that he had the backing of twenty-one ward leaders who would support her retention campaign. He then began an ex parte communication with respondent about a case pending before her. Specifically, Waters told respondent that he had “something in front of [her] at 1:00 today.” Respondent directly asked Waters what the matter was and “who do we need?” Waters told respondent the name of the case and the name of the two attorneys who would be appearing for the matter, and stated that it concerned an alarm company. Moreover, Waters stated “we got the defendant,” thus, telegraphing to respondent that she should assist the defendant, Donegal. Respondent replied, “say no more. Say no more. Alright.”
Waters pled to mail fraud; Respondent resigned from the bench and was sanctioned in Pennsylvania
The joint petition cited, as mitigation, respondent’s admission to the misconduct; her cooperation with the investigation of the Judicial Conduct Board, by giving grand jury testimony against Waters without any promise of immunity or legal protection; her presentation of strong character witnesses; her removal from the bench; and her ineligibility to hold judicial office in the future. The ODC advanced, as an aggravating factor, respondent’s status as a judge when she engaged in misconduct. On April 9, 2019, the Supreme Court of Pennsylvania suspended respondent for one year and one day.
The DRB here considered the lamentable wealth of prior precedent of judicial misconduct cases
After considering the above precedent, we determine that respondent’s conduct was so egregious and so hostile to the integrity of the judicial system that any sanction less than disbarment would fail to protect the public.
...She willingly, without hesitation, engaged in open, public corruption solely for self-gain, to curry Waters’ political favor in pursuit of her desire to be retained as a Philadelphia municipal judge. In other words, in respondent’s courtroom, justice was for sale, if the price was right. As the Court warned in Verdiramo, misconduct that “takes deadly aim at the public-at-large” and “directly poison[s] the well of justice” will be met with disbarment
The court disagreed. (Mike Frisch)
Wednesday, April 28, 2021
On June 23, 2020, the Commission authorized an investigation of a complaint alleging that Judge Miller had been charged with criminal contempt in the first degree, a felony, and stalking in the fourth degree, a misdemeanor, for violating a stay-away order of protection held by a former girlfriend.
On October 23, 2020, Judge Miller pled guilty to criminal contempt in the second degree, a misdemeanor under Section 215.50(3) of the Penal Law, in satisfaction of the first-degree contempt and fourth-degree stalking charges. On March 5, 2021, he was sentenced to three years' probation. The sentence included a five-year, no-contact, final order of protection for the victim, a waiver of appeal, a requirement that he attend domestic violence and mental health counseling, and a mandated payment of both the DNA Data Bank Registration Fee ($50.00) and the mandatory surcharge/Crime Victim Assistance Fee ($200.00).
Times of Wayne County reported on the arrest
It is alleged that Miller violated the Court Order and engaged the ex-girlfriend’s neighbors into allowing him to go into the neighbor’s backyards and observe the ex-girlfriend’s residence. He also reportedly used his secretary’s house, walking into her neighbor’s yards to further observe the ex-girlfriend.
It is also alleged he was seen observing the ex-girlfriend at her workplace and at her home.
Several witnesses confirmed the violations of the court orders during an investigation and the victim contacted Newark Police Chief, Mark Thoms.
The Times has learned that the ex-girlfriend was initially afraid the legal community would not go after, or prosecute Miller due to his position. The Times also learned several individuals in the law profession warned Miller about further pursuing the victim over the last several weeks.
The Wayne County District Attorney’s Office was contacted and instructed Newark Police to arrest Miller on the two charges.
Saturday, April 17, 2021
The Colorado Supreme Court accepted a proposed public censure and resignation of a District Court judge on the following stipulation
In late January or early February 2020, Judge Chase, a Family Court Facilitator for the Eighteenth Judicial District, and Judge Chase’s former law clerk attended a Safe Baby Program in Pueblo. Judge Chase drove both court employees in her car to and from Pueblo.
Judge Chase is white and the Family Court Facilitator is Black. On the way back from Pueblo, Judge Chase asked the Family Court Facilitator questions about why Black people can use the N-word but not white people, and whether it was different if the N-word is said with an “er” or an “a” at the end of the word. During the conversation, Judge Chase used the full N-word a number of times.
The Family Court Facilitator was uncomfortable because she could not leave the car or leave the conversation. The Family Court Facilitator felt angry and hurt by the conversation. She has explained that Judge Chase’s use of the full N-word was “like a stab through my heart each time.” The Family Court Facilitator did not feel free to express her discomfort or emotions due to fear of retaliation by Judge Chase.
In early February 2020, Judge Chase was in court, wearing her robe on the bench during a break while two or three other people were in the courtroom. Two employees in the courtroom were Black. Someone brought up watching the Super Bowl. Judge Chase then stated, from the bench, that she would be boycotting the Super Bowl because she objected to the NFL players who were kneeling during the National Anthem in protest of police brutality against Black people.
On the Monday after George Floyd was killed in Minneapolis, Minnesota, in May 2020 and Black Lives Matter protests had occurred in Denver, two Black court employees were in Judge Chase’s courtroom. One of them asked the other if they had seen the George Floyd protests. Judge Chase then, while wearing her robe and sitting on the bench, told the employees some of her opinions regarding racial justice issues. Judge Chase asked one employee some questions about the Black Lives Matter movement. The employee tried to explain the Black Lives Matter movement, and Judge Chase stated that she believes all lives matter. Judge Chase also stated that the conduct of the police officers in the George Floyd matter should be investigated.
In early 2020, Judge Chase directed her law clerk to do some legal research related to a personal family legal issue that was unrelated to the Judge’s official case load.
On August 11, 2020, Judge Chase had a medical episode at the courthouse. After courtroom deputies came to her aid, Judge Chase declined an ambulance. She then asked one of the court employees to drive her to the emergency room. After arriving, Judge Chase asked the court employee to stay with her at the hospital. The employee missed a half day of work to accommodate Judge Chase.
Throughout 2020, Judge Chase forwarded personal emails to her clerk and then asked her clerk to edit or rewrite the emails so they sounded better before the Judge sent them off to the intended recipient.
Judge Chase repeatedly discussed personal and family matters while talking with staff and other employees in office work areas and as part of court business in a manner that was not dignified or courteous.
In the first half of 2020, Judge Chase told her clerk she was leaving briefly to meet with another judge. When she returned from the meeting, and the clerk asked how it went, Judge Chase replied with a derogatory reference to the other judge, calling her a “f****** b****.”
Wednesday, March 31, 2021
The New York Commission on Judicial Conduct has admonished a judge for his Facebook posts
The Formal Written Complaint alleged that from July 21, 2020 through October 16, 2020, respondent publicly displayed on his Facebook page: (A) two photographs of himself wearing an Ontario County Sheriff’s uniform, and (B) a post with his personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event, which was held to show support for law enforcement. The post and photos garnered hundreds of “likes” and comments from other Facebook users. It was also alleged that respondent engaged in this conduct notwithstanding having been cautioned by the Commission in April 2019 for an inappropriate Facebook post regarding a candidate then running for a law enforcement position.
The photo was taken at his daughter's graduation from the police academy and pictured him in uniform after he had retired
By July 21, 2020, respondent’s “cover photo” had garnered approximately 277 Facebook “likes,” two “shares,” and 37 comments from other Facebook users. His public post containing the text and the second photograph...had garnered approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users. Among the comments was one that identified him as “Judge!”
Respondent now recognizes that individuals viewing his Facebook posts, and seeing him in a law enforcement uniform, would reasonably question his ability to conduct himself in a fair and impartial manner while presiding over cases involving law enforcement.
Respondent takes full responsibility for his actions and has been cooperative and contrite with the Commission throughout its inquiry. He regrets his failure to abide by the Rules in this matter. He pledges to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.
Tuesday, March 30, 2021
Ohio Disciplinary Counsel has filed a complaint against a Probate Court judge who was in practice with his daughter when he ascended to the bench.
According to the complaint, she is presently the managing shareholder of his former firm with an active probate practice.
In 2017 - 2018, respondent engaged in an unsuccessful year-long effort to convince the Greene County Board of Commissioners and the Greene County Common Pleas Court General Division that the probate court needed a full-sized courtroom. During the contentious dispute, respondent issued an order that attempted to take control of a courtroom that the general division was utilizing.
In a probate matter
On January 1, 2018, Carolee Buccalo died. Carolee had named her granddaughter, Yvonne Martin (“Martin”), as executrix, and Martin retained [the judge's daughter] Brittany to represent her in administering the estate.
Carolee's son Grant signed three waivers of disqualification.
In May 2019, the Ohio Supreme Court ruled against Respondent in the courtroom dispute.
On May 23, 2019, [Grant] Buccalo attended a public meeting of the Greene County Board of Commissioners and expressed his belief that respondent should recuse himself from cases in which “family members” represent parties. He stated that “justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system.” Buccalo further stated that people need to feel that they “got a fair shake” when they leave the courtroom, and that it “wasn’t rigged.”
At the meeting, Buccalo spoke before the commissioners regarding his concerns about respondent for approximately 2.5 minutes. He stated that he wanted to ensure that the commissioners were aware of this practice. Buccalo did not specifically mention his mother’s estate case or express concern about his own involvement with respondent, other than to say that he had never met respondent and wouldn’t recognize him. Buccalo concluded by stating that he planned to file a grievance with relator, and then moved on to speak about a second unrelated concern. The commissioners did not respond to Buccalo’s concerns.
Respondent then set a status hearing in the Buccalo matter after reviewing an audiotape of the remarks
On June 6, 2019, respondent presided over the status conference. Brittany, Martin, and Buccalo appeared in person. All parties were present in-person or by telephone. Buccalo was unrepresented and did not know the purpose of the status conference before attending.
Respondent thanked them “for showing up on such short notice” and explained that there was a “very disturbing incident that has taken place with the estate, and I need to get it today.
After playing the tape in open court
...respondent called Buccalo to the stand, placed him under oath, and informed him that any false statement constituted perjury, a criminal offense.
Respondent then cross-examined Buccalo for almost an hour on issues relating to the Waiver of Disqualification and Buccalo’s comments to the commissioners.
The examination allegedly brought Buccalo to tears.
After questioning Buccalo for almost an hour, respondent turned the questioning over to Brittany.
Brittany asked, “Do you expect that I should have known that you had an issue even though I received a signed waiver from you?” Buccalo attempted to explain his concerns and eventually responded by stating, “I’m not trying to argue with you.” And Brittany replied, “I am.” Respondent still permitted Brittany to proceed with her questioning of Buccalo.
Brittany cross-examined Buccalo relating to conversations and information of which he had no knowledge. She marked her personal notes of a phone conversation with Buccalo’s attorney as an exhibit and questioned Buccalo regarding the conversation and her notes, despite Buccalo not being a party to the conversation. Respondent did not curtail Brittany’s questioning in any way.
After being on the stand for over an hour, Buccalo asked for a glass of water. Respondent replied, “I don’t have any water.” He did not offer Buccalo a break or make any attempt to obtain water for him.
Respondent recused himself and allegedly made several statements
Respondent stated that Buccalo chose to be:
[U]ntruthful to you and the public, to unjustly smear myself and my daughter. That is simply despicable. We do not have a problem in probate court, what we have is a problem with people improperly using this board as a public forum to lodge unfounded and false accusations. I’m disappointed the board even permitted him to proceed in light of the fact * * * that [he was] cautioned * to limit his comments to items that are or have been on the board’s agenda at a regular meeting * * * This is not the proper forum to wage personal vendettas against any public official.
Respondent’s conduct, as alleged above, violated Jud.Cond.R. 2.8(B) [A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control].
The complaint is linked here. (Mike Frisch)
Monday, March 29, 2021
The New York Commission on Judicial Conduct has accepted the resignation of a non-attorney judge who faced an investigation into two allegations
Judge DiVietro was apprised by the Commission in July 2020 that it was investigating allegations that, inter alia, in the fall of 2018, he repeatedly sent text messages to his then-girlfriend that contained threats about a former girlfriend. Many of the text messages were allegedly vulgar, crude, demeaning and/or featured extreme gender-based slurs and profanity.
Judge DiVietro was also apprised by the Commission in July 2020 that it was investigating allegations that, after arraigning the defendant in People v Robert L. Brown on two felony charges and one misdemeanor charge in April 2019, he repeatedly engaged in unauthorized ex parte communications about the case with the defendant and multiple other individuals and, during one of the defendant's appearances in court, allegedly gave the defendant personal advice about how to avoid having his firearms confiscated by law enforcement.
The stipulation is linked here. (Mike Frisch)
Wednesday, March 24, 2021
Ohio Disciplinary Counsel has filed a complaint alleging misconduct by a Hamilton County Municipal Judge.
The complaint alleges that the judge sent a Facebook friend request to a court reporter (not in his court) which she ("Jane Doe") accepted.
He posted photos of a court celebration, some of which she "liked."
He learned she was a court reporter and invited her to his chambers; after a lengthy Facebook conversation, she allegedly felt she had to give him her telephone number.
He texted and called her.
In one Saturday evening conversation he allegedly "sounded intoxicated, used profanity and talked about his divorce. He also asked Jane Doe to lunch, but she declined his invitation."
After he had asked her out, the conversations became "increasingly one-sided."
He sent her political messages (decidedly anti-Trump) and "messages linked to videos containing offensive and sexually-explicit content..."
She did not respond but advised her boss and a co-worker. The matter was then referred to Disciplinary Counsel by the court administration.
In his answer, the judge admits most but denies some of the allegations and admits that his conduct violated Rule 1.2 of the Code of Judicial Conduct
Respondent admits that on November 12, 2019, he sent a link to an edited version of a prayer session with President Donald Trump, wherein Trump begins to smoke and then catch on fire during the prayer.
The pleadings are linked here. (Mike Frisch)
Sunday, March 14, 2021
The West Virginia Supreme Court of Appeals upheld the authority of a family court judge to disqualify counsel
In this appeal, we are asked to decide whether a family court has the authority to disqualify an attorney appearing before it. Aaron W., the petitioner here and below, appeals from the Circuit Court of Kanawha County’s January 21, 2020 order denying his petition for writ of prohibition. In his request for prohibitory relief, Aaron sought to prevent the Honorable Robert M. Montgomery, Judge of the Family Court of Kanawha County, and respondent here and below, from holding a hearing on or otherwise deciding the motion to disqualify Aaron’s counsel that was filed in the family court proceedings by the other respondent here and below, Evelyn W. On appeal to this Court, Aaron contends that the limited jurisdiction of family courts does not allow them to consider disqualification motions, while Evelyn responds that family courts have the inherent authority to disqualify attorneys in cases over which the family courts preside. Upon a review of the parties’ briefs and oral arguments, the appendix record, and the pertinent authorities, we find that the family courts of this State have the authority to disqualify attorneys appearing before them. Therefore, we affirm the circuit court’s order reaching this same conclusion.
The issue arose in divorce litigation at a time when the wife was pro se
The husband’s counsel, Mr. Webb, previously had represented both the husband and the wife in a civil action against the Kanawha County Board of Education (“BOE”) in which the husband sought to recover for injuries he allegedly had sustained in an automobile accident; the wife joined the husband’s suit, seeking recovery for loss of consortium. Near, but prior to, the conclusion of the divorce proceedings, Mr. Webb obtained the wife’s waiver of her claim for loss of consortium based upon representations that the BOE case likely would not result in a recovery; shortly thereafter, and after the wife had been dismissed from the civil suit, the husband reached a confidential settlement with the BOE, which was not disclosed to the wife. The family court then held proceedings regarding the division of the parties’ property incident to their divorce, and the wife testified that she waived any claim she may have to proceeds of the husband’s BOE civil suit. On July 10, 2018, the family court entered its final divorce order equitably distributing the parties’ property, which did not include the husband’s BOE settlement proceeds. This order was not appealed by either party.
The wife then retained counsel, who sought a hearing on the alleged conflict of interest. The husband contended that the court lacked authority to hold a hearing.
The court here
Because the family court has the jurisdictional authority to hear and rule upon the wife’s disqualification motion, we find that the circuit court correctly denied the husband’s petition for writ of prohibition seeking to prevent the family court from hearing or deciding said motion.
Thursday, March 4, 2021
The Arkansas Supreme Court reversed a finding by the state Ethics Commission against a judicial candidate for allegedly omitting a "paid for by" reference in a campaign print advertisement
The relevant facts are not disputed. During Weaver’s campaign for Circuit Judge—Division 1, Faulkner County, Weaver’s campaign worked with Faulkner Lifestyle to create a print ad to run in the magazine. LeAnn Livingston, a staff member from Weaver’s campaign, and Raegan Miller, a Faulkner Lifestyle employee, exchanged emails regarding the ad during the editing process. On April 22, 2018, Miller sent Livingston a copy of the ad, and Livingston emailed Miller the next day saying that she loved it but wanted to add Facebook, Instagram, and Twitter icons. Miller responded, “Sure thing!” Later that day, Livingston emailed Miller asking for an invoice so that she could pay for the ad. Critically, Livingston sent a final email to Miller the next day directing her to include the “paid for by” language. Unfortunately, Miller did not include the language, but nonetheless, ran the unsanctioned ad. The publication took full responsibility for the oversight.
In short, Weaver did not “place” an ad that violated Arkansas Code Annotated section 7-6-228(c)(1), and substantial evidence does not support the Commission’s decision. Because we reverse the Commission’s ruling that Weaver violated section 7-6-228(c)(1), we decline to consider her alternative argument that the Commission’s procedures are unconstitutional. We therefore vacate the Commission’s order as to Weaver’s constitutional arguments and dismiss her cross-appeal. It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions. Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602
A concurring opinion
The Court has issued two opinions, each joined by three justices, and each announcing the plain meaning of a statute. Both opinions miss the plain meaning of the statute. They do so because both parties base their arguments on the same false assumption as to the meaning of the statute that Susan Weaver was found to have violated; and both opinions issued by the Court, rather than correct that false assumption, have adopted it.
Weaver was charged with and found guilty of violating Ark. Code Ann. § 7-6-228(c)(1). In charging Weaver with violating that provision, the Commission staff assumed that subsection 7-6-228(c)(1) prohibits placing a printed political advertisement without the “Paid for by” disclosure. Weaver has accepted that assumption. The Commission likewise accepted that assumption, as did the Circuit Court. Now this Court, too, has accepted that assumption in order to avoid deciding the case based on an argument that was not made by the parties. But that assumption is false.
Chief Justice Kemp dissented
The majority opinion reverses in part and vacates in part a decision by appellant Arkansas Ethics Commission (“the Commission”) that appellee Susan Weaver violated Arkansas Code Annotated section 7-6-228(c)(1) (Supp. 2019) by failing to include the requisite “Paid for by” disclosure in a campaign advertisement. The majority concludes that “[t]he record demonstrates that neither Weaver nor a member of her campaign staff ‘committed’ a violation or ‘placed’ an ad without the appropriate disclosure,” but the words “committed” and “placed” do not appear anywhere in section 7-6-228(c)(1)—a statute that this court must interpret on appeal. For the following reasons, I respectfully dissent.
the Arkansas General Assembly has not seen fit to amend section 7-6-228(c)(1) to include either a political candidate’s intent to omit the requisite disclosure or her defense in failing to do so. In construing statutes, this court’s case law is replete with assertions that it will not add words to a statute to convey a meaning that is not there.
The Chief Justice would address the Constitutional claim. (Mike Frisch)
Friday, February 26, 2021
The Kansas Supreme Court has suspended a judge for F-bombing court employees.
From the findings of the panel of the Commission on Judicial Qualifications
Respondent frequently used the word 'fuck' and its derivatives when speaking to or near employees and/or others at the courthouse.
Lance Carter served as a district court clerk in Independence for nearly 12 years. Mr. Carter regularly overheard Respondent's use of obscenities. He created a swear journal documenting multiple instances of Respondent's profanity. Mr. Carter did not intend the swear journal to document all of Respondent's profanity.
Mr. Carter received an unsatisfactory performance evaluation from a supervisor in August 2015. When Mr. Carter asked Respondent to discuss the evaluation, Respondent called Mr. Carter into Respondent's office and said, 'Carter, go sit down in that fucking chair and don't you say a fucking word.' Respondent proceeded to yell and scream at Mr. Carter, using profanity.
Respondent did not give Mr. Carter an opportunity to address Mr. Carter's concerns about the evaluation. When Mr. Carter tried to speak, Respondent told him, 'Keep your fucking mouth shut. You don't have the right to defend yourself here. Don't say another fucking word. Go see Joni Pratt. Get the fuck out of my sight and shut the fucking door on your way out.' Mr. Carter left the room.
Ms. Platt had this encounter over a question she had asked the judge about a courthouse remodeling project
In response to Ms. Pratt's question, Respondent became 'very angry' and told Ms. Pratt that 'he didn't give a fuck about the carpeting and that that wasn't our fucking building' and that she should call the city manager. Ms. Pratt described Respondent's tone as frightening, loud, aggressive and scary.
In June 2018, Joni Pratt resigned from the clerk's office. She asked Judge Gettler to accompany her to Respondent's office as she tendered her resignation. After she told Respondent that she was giving two weeks' notice of her resignation, she left the office and started walking down the hall. Ms. Pratt heard Respondent yell 'Yahoo.' Judge Gettler heard the outburst. The Panel finds that Respondent knew or should have known that his comment would be overheard by Ms. Pratt and others.
Former Attorney General Curt Schneider, now a lawyer practicing in Coffeyville, heard Respondent use the terms '"bitch", "cunt", et cetera' in referring to females.
Tim Emert, a lawyer from Independence, heard Respondent's use of obscenities so regularly that it was 'just routine.' Mr. Emert heard Respondent use the words 'bitch' and 'cunt' in describing females. Mr. Emert also heard Respondent use both of these words in the same sentence in talking about the same women.
Respondent's behavior, as established by the Stipulations, Findings, and Conclusions, has been quite troubling. He has intimidated and publicly humiliated court employees. He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings. By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.
In mitigation, Respondent offers that he is efficient and fair in his hearings. He does not mean to hurt or harm. He is just "salty."
We conclude an appropriate discipline in this case is Respondent's suspension from sitting as a judge for one year. If Respondent wants us to consider a shorter suspension, he must formulate a plan that will address appropriate counseling and training for Respondent. Counseling must be more frequent than quarterly and should address more than "professional coaching." Training should include instruction on best practices for working with fellow employees, especially those one supervises, and also include workplace issues of harassment, retaliation, and hostile environment. The completed plan must be approved by the Office of Judicial Administration's Director of Personnel, currently Allyson Christman, before it may be presented to this court for consideration. If, after consideration, we approve the plan, then part or all of Respondent's suspension beyond 60 days will be stayed during compliance with the plan.
Successful completion of the plan must be certified by the OJA Director of Personnel. If that certification occurs, Respondent's successful completion of the plan, along with the days of suspension served, will be considered by us for possible waiver of Respondent's remaining suspension.
Wednesday, February 10, 2021
The Delaware Supreme Court affirmed the denial of relief based on an alleged undisclosed judicial conflict
In 2010, Appellants Meso Scale Diagnostics, LLC and Meso Scale Technologies, LLC (collectively “Meso”) filed suit in the Court of Chancery against Appellee entities Roche Diagnostics GmbH, Roche Diagnostics Corp., Roche Holding Ltd., IGEN LS LLC, Lilli Acquisition Corp., IGEN International, Inc., and Bioveris Corp. (collectively “Roche”), all of which are or were affiliates or subsidiaries of the F. Hoffmann -- La Roche, Ltd. family of pharmaceutical and diagnostics companies. Meso alleged two counts of breach of contract. Roche prevailed at trial, and this Court affirmed the judgment in 2014.
On February 28, 2019, Meso brought a new action asking the court to reopen the case, vacate the judgment entered after trial, and order a new trial. Meso alleged that the Vice Chancellor who decided its case four years earlier had an undisclosed disabling conflict, namely, that Roche’s counsel had been simultaneously representing him in an unrelated federal suit challenging the constitutionality of Delaware’s law providing for confidential business arbitration in the Court of Chancery, 10 Del. C. § 349 (“Section 349”). In that federal litigation, which ended in 2014, the Chancellor and Vice Chancellors of the Court of Chancery, as the parties responsible for implementing the challenged statute, were nominal defendants (hereinafter, the “Judicial Officers”).
The Court of Chancery denied relief and dismissed the action. Meso appeals.
For the following reasons, we AFFIRM the judgment of the Court of Chancery.
The court recited a number of trial court findings
As to extraordinary circumstances, the trial court found that granting relief would severely prejudice Roche by negating a long-settled judgment obtained after trial, while Meso had failed to allege any injustice that it would suffer. Likewise, the trial court found that “the ostensible judicial ethics violation Meso has identified is not remotely, much less conceivably, serious under the Rule 60(b) rubric.”
The court here
We start with the basic rules governing judicial disqualification and recusal and then consider other ethical considerations relevant to the unique circumstances presented here. We then address the Rule 60(b) issues Meso has raised on appeal.
After its survey of court and ethics opinions
the capacity in which a judicial officer is sued is an important factor to consider. On one end of that continuum is a lawyer representing a judge in highly personal litigation such as a divorce or personal injury case (as in In re Howes). On the other end might be, for example, a situation where a member of the Department of Justice (“DOJ”), pursuant to state statute,94 represents a judicial officer sued in her official capacity. Even when judges are sued in their official capacity, there are often other nuances...
In this case, the DelCOG Litigation asserted a cause of action under 42 U.S.C. § 1983.95 The record overwhelmingly shows that Vice Chancellor Parsons was named as a defendant in his official capacity as a Vice Chancellor of the Court of Chancery and was merely a nominal party in the DelCOG Litigation. He had no financial, reputational, or other personal stake in the suit at any time.
The Vice Chancellor did not decide whether recusal was required in this case, and he concluded that he did not need to reach the constitutional questions “because, even if Meso has identified a due process violation, Meso very clearly has not satisfied the requirement of Court of Chancery Rule 60(b) to obtain relief from a final judgment.” We agree. We nevertheless have discussed the ethical principles at some length to reinforce that such dual representation situations should be avoided and that the need for vigilance at the outset of a case is imperative. A judge who finds herself in such a situation should follow the procedure set forth in Los — assuming the judge has no actual bias or prejudice, the judge must examine the facts and circumstances of the particular case to determine whether the judge’s impartiality might reasonably be questioned. We acknowledge Meso’s concerns, and we agree with Meso that even though it asserts noclaim of any actual bias or prejudice on his part, the Vice Chancellor, at a minimum, should have disclosed the representation on the record. Meso then would have had the option of waiving the conflict, or formally seeking the Vice Chancellor’s recusal thereby allowing the recusal issues to be addressed in the proceeding directly instead of years later in a collateral challenge to a final judgment after trial where additional issues come into play.
Friday, February 5, 2021
A part-time judge was subject to both bar and judicial discipline and has been suspended from his judicial office for two years with all but six months stayed by the Louisiana Supreme Court.
The sanction was imposed retroactively to the date of the bar discipline.
In January 2017, Judge Hardee attended a bachelor party in Park City, Utah celebrating his upcoming wedding. He visited a local bar and consumed excessive amounts of alcohol, becoming extremely intoxicated. It is undisputed that he grabbed the buttocks of a waitress without her consent, Park City Police were called, he did not immediately produce identification, and he failed to cooperate with police at the scene.
Judge Hardee was charged with the following crimes, all misdemeanors under Utah law: (1) Sexual Battery, in violation of U.C.A. 76-9-702.1; (2) Failure to Disclose Identity, in violation of U.C.A. 76-8-301.5; (3) Interference with Arresting Officer, in violation of U.C.A. 76-8-305; and (4) Intoxication, in violation of U.C.A. 76-9-701. He pled no contest to these charges and has fully satisfied all terms and conditions of the plea.
He was sanctioned as an attorney
The consent discipline resulted in Judge Hardee being suspended from the practice of law for one year with all but six months deferred, followed by probation coinciding with the remainder of his JLAP monitoring agreement. If successfully completed, JLAP monitoring will end on December 5, 2022.
This matter involves judicial discipline and the extent of necessary supervision
Judge Hardee disputes his diagnosis and the need for additional monitoring. He has executed a five-year JLAP monitoring agreement and, assuming he remains compliant, monitoring will end on December 5, 2022. Nevertheless, the Commission, which did not act on this matter until after the ODC and Judge Hardee agreed to attorney discipline, now recommends extending monitoring through December 31, 2026. We reject that recommendation.
But on the merits, not by res judicata as the judge had argued
While under the circumstances of this case we find it appropriate that the probation period for judicial discipline be co-extensive with that for Judge Hardee’s attorney discipline, we emphasize this is not required. We can impose additional discipline. In fact, in the event Judge Hardee violates the terms of his probation, he will be suspended for two years as a judge as opposed to one year as an attorney. However, we find the length of probation and JLAP monitoring imposed for attorney discipline and the fact that Judge Hardee has remained compliant with all terms of that discipline does not warrant either extension of the probation period or additional monitoring. Nevertheless, we feel constrained to express Judge Hardee’s argument for the application of res judicata has no merit.
Judge Hardee’s criminal acts in this case are more serious because he is a judge. The fact that he broke the law erodes the integrity of the judiciary and the public’s confidence in it. His conduct was clearly prejudicial to the administration of justice and has brought disrepute upon his judicial office.
Chief Justice Weimer
Expert medical evaluators, all chosen by respondent, have diagnosed the respondent with some form of substance abuse disorder. The respondent’s denial of those diagnoses through lay testimony and his own belief that he does not meet the diagnostic criteria for a substance abuse disorder is meritless.
While I commend the respondent for the strides he has made, I agree with the Judiciary Commission’s recommendation that the respondent be subjected to an extended period of JLAP monitoring. Accordingly, I would require the respondent to execute a new five-year agreement with JLAP. Accordingly, I respectfully I concur in part and dissent in part.