Throwback Thursday

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5 years ago this month:

  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for, during a felony criminal trial, loudly ordering his courtroom deputy in front of the jury to remove the defendant’s attorneys from a sidebar conference and then denying the defendant’s disqualification motion.  Inquiry Concerning Bailey, 267 So. 3d 992 (Florida 2019).
  • Approving the parties’ stipulation and the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for introducing partisan political activity into his re-election campaign by representing himself as a registered Republican while being interviewed by a newspaper’s editorial board and touting his endorsement by a partisan political organization affiliated with the Democratic Party.  Inquiry Concerning Kollra, 268 So. 3d 677 (Florida 2019).
  • Based on a settlement agreement, the Michigan Supreme Court suspended a judge for 45 days without pay based on her guilty plea to disorderly conduct–littering and her admission to careless driving, a civil infraction.  In re McDonald, 925 N.W.2d 829 (Michigan 2019).
  • Granting a joint motion for approval of the recommendation of the Commission on Judicial Performance based on stipulations of fact, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,683.34 for (1) failing to timely rule in 28 civil cases and (2) entering a judgment in favor of a plaintiff without holding a hearing on the merits of the case.  Commission on Judicial Performance v. McGee, 266 So. 3d 1003 (Mississippi 2019).
  • Based on a stipulation and agreement, the Mississippi Supreme Court publicly reprimanded a judge and fined him $500 for ordering a deputy clerk to rescind a warrant for the arrest of his former girlfriend that had been issued based on his own affidavit.  Commission on Judicial Performance v. Burton, 268 So. 3d 565 (Mississippi 2019).
  • Granting a petition to accept a stipulation agreement and consent to discipline, the New Mexico Supreme Court publicly censured a judge for, in a conversation with the county manager, threatening to have the governor veto funds for the county if the county did not provide the courthouse security measures the judge thought were necessary.  In the Matter of Mitchell, Order and public censure (New Mexico Supreme Court April 8, 2019).
  • Granting a petition to accept an agreement, the New Mexico Supreme Court publicly censured a judge for a conflict with his next-door neighbors.  In the Matter of Guthrie, Order and public censure (New Mexico Supreme Court April 8, 2019).
  • Adopting the findings of the Board on Professional Conduct based on stipulations of fact, the Ohio Supreme Court publicly reprimanded a judge for (1) presiding over numerous cases in which he had served as attorney of record and (2) failing to timely notify multiple clients that he was terminating his representation following his appointment to the bench.  Disciplinary Counsel v. Rusu, 128 N.E.3d 175 (Ohio 2019).
  • Based on stipulations, the Pennsylvania Court of Judicial Discipline severely reprimanded a former judge and fined him $5,000 for engaging in sexual relations with the girlfriend of a treatment court defendant, sending her salacious text messages, and presiding in cases in which the attorney representing him in the investigation appeared.  In re Shaw, 192 A.3d 350 (Pennsylvania Court of Judicial Discipline 2018), 207 A.3d 442 (April 2019).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for affirmatively allowing a photo constituting an endorsement of a candidate for county commissioner to be posted on his Facebook page.  Public Warning of Madrid (Texas State Commission on Judicial Conduct April 3, 2019).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for pulling traffic citations to have an assistant district attorney file a motion to dismiss and/or provide other preferential treatment; the Commission also ordered that he receive 20 hours of instruction with a mentor about traffic citations and warrants.  Public Reprimand of Trejo and Order of Additional Education (Texas State Commission on Judicial Conduct April 26, 2019).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former judge for being unnecessarily confrontational toward litigants during hearings on 2 petitions for anti-harassment orders on the same day, including criticizing a domestic violence survivor for her relationship choices.  In re Meyer, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 26, 2019).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for delays of 392 days and 132 days in deciding 2 family law cases.  In re Fennessy, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 26, 2019).
  • The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) failing to grant or deny a petition for a personal safety order but instead issuing an unauthorized “cooling off” order that had no force and effect and misrepresenting to the parties that, if they violated the order, they could be subject to criminal penalties, and (2) making inappropriate public comments about an unrelated family court matter after a disturbance related to that case in the hallway.  In the Matter of Williamson (West Virginia Judicial Investigation Commission April 26, 2019).

Candidate questionnaires

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In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the U.S. Supreme Court held that a prohibition on judicial candidates announcing their views on disputed legal and political issues violated the First Amendment, concluding:  “We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”

After White, constitutional challenges were filed against the prohibitions on judicial candidates making inappropriate pledges, promises, and commitments.  The version of the prohibition in the 1990 American Bar Association Model Code of Judicial Conduct stated:

A judge or a candidate for election or appointment to judicial office shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.

Rule 4.1(A)(13) of the 2007 model code provides:

[A] judge or a judicial candidate shall not . . . in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

Comment 15 notes that that rule does not specifically address how judicial candidates should respond to “questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues.”  It explains:

Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way.  To avoid violating paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected.  Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification.  See Rule 2.11.

Federal courts have held that the pledges, promises, and commitments clause does not violate the First Amendment if narrowly construed to allow judicial candidates to answer some but not necessarily all questions on some but not necessarily all questionnaires.

In Pennsylvania Family Institute v. Celluci, 521 F. Supp. 2d 351 (Eastern District of Pennsylvania 2007), the court concluded that, “it is hard to imagine a restriction more narrowly tailored to Pennsylvania’s compelling interest in protecting the due process rights of future litigants” than the pledges, promises clause, and commitments clause.  The clause was construed to prohibit a candidate from making only pledges, promises, or commitments to decide an issue or a case in a particular way and to allow a candidate to answer questionnaires sent out by the Pennsylvania Family Institute.

In Duwe v. Alexander, 490 F. Supp. 2d 968 (Western District of Wisconsin 2007), the court held that the pledges, promises, and commitments clause did not prohibit judicial candidates from responding to a questionnaire from Wisconsin Right to Life and was not unconstitutional on its face.  The court stated that, “whether a statement is a pledge, promise or commitment is objectively discernable,” and “people are practiced in recognizing the difference between an opinion and a commitment.”

In Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), the U.S. Court of Appeals for the 7th Circuit stated:

It is not clear to us that any speech covered by the commits clauses is constitutionally protected, as White I understands the first amendment.  How could it be permissible to “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office”?

The 7th Circuit acknowledged that “neither the commits clauses nor the Code’s definitions pin . . . down” what promises are inconsistent with the impartial performance of the adjudicative duties of judicial office, noting that “the principle is clear only in these extremes.”  However, the court concluded that advisory opinions are a more appropriate method for clarifying the provision than summary condemnation by a federal court, stating that the constitution allows those details to be fleshed out in an administrative system. 

Several advisory committees have interpreted the clause as applied to questionnaires directed to judicial candidates.

The Illinois advisory committee concluded that judicial candidates are free to answer questionnaires that seek their views on controversial topics based on their First Amendment right to announce their views on disputed moral, legal, and political issues.  Illinois Advisory Opinion 2021-3.  However, the opinion noted that judicial candidates are not required to make such announcements.

Further, the committee cautioned that a candidate’s response “must not contain statements that commit or appear to commit them to decide particular cases, controversies, or issues within cases that are likely to come before the court in a particular way.”  It added further caveats:

  • A candidate must carefully analyze “the likely impact of whether or how to answer the questionnaire.”
  • A candidate should consider whether they “have information that would suggest that any answers provided to a particular questionnaire are likely to be misused or misinterpreted,” raising a genuine concern that answering might undermine public confidence in the independence and integrity of the judiciary.
  • A candidate’s response should “include assurances that the candidate will keep an open mind and carry out adjudicative duties faithfully and impartially if elected.”

See also Arizona Advisory Opinion 2006-5 (although not required to, a judge standing for retention or election may respond to a political interest group questionnaire seeking their views on disputed political and legal issues or judicial philosophy if the responses do not constitute pledges, promises, or commitments that are inconsistent with the impartial performance of their adjudicative duties).

Some advisory opinions address specific questionnaires.

The Florida committee considered 2 questionnaires – one from the Florida Family Policy Council and one from the Christian Coalition of Florida – that sought “a combination of personal and political information.”  Florida Advisory Opinion 2006-18.  For example, the Family Policy Council questionnaire asked candidates “which United States and Florida Supreme Court Justices most reflect the candidate’s own judicial philosophy, whether the candidate believes that the Florida Constitution recognizes a right to unisex marriage, and whether the candidate agrees with federal or Florida Supreme Court opinions on such subjects as parental consent for abortion, school vouchers, and assisted suicide.”  The questions gave the candidates 5 options:  “agree,” “disagree,” “undecided,” “decline to respond,” and “refuse to respond.”  According to a footnote, “decline” would “be viewed as willing to answer but for a belief that such action is prohibited by the Florida Code of Judicial Conduct and/or that providing answers might subject a judge to disqualification in a future case.”  The opinion noted that “some of the Christian Coalition’s options are more extensive, but several questions ask for ‘yes,’ ‘no,’ or ‘refused.’”

The Florida committee declined to definitively permit or prohibit judicial candidates from answering the 2 questionnaires but did give general guidance about what “sorts of answers or comment are likely to run afoul of the Code of Judicial Conduct.”  It explained:

To the extent the questionnaires seek comment on the Florida Constitution or published judicial decisions, we note that the Code of Judicial Conduct does not impose a blanket proscription on expressions of a general judicial philosophy, including “views on constitutional or statutory construction.”. . .  The scope of such expression, however, should acknowledge the cardinal duty of a judge to follow the law whether the judge agrees with it or not.  Apart from this we know of no ethical impediment to analytical, informed, respectful, and dignified comment on past decisions.  Judicial opinions on most controversial legal issues will have been the subject of scholarly analysis (e.g., law review articles), from which endeavor judges are not barred. . . .  Moreover, the mere expression of an opinion does not necessarily mean the person giving the opinion has researched the issue exhaustively, or that the person would not be amenable to altering the opinion in the face of capable advocacy.  That is, expressing an opinion does not automatically indicate closed-mindedness.

The committee did caution that “the line between ’announcing’ and ‘promising’ can be a thin one” and even if a judicial candidate’s pronouncements are constitutionally protected speech that complies with the canons, the dispositive question in a motion for disqualification is “whether the individual ‘beholder’s’ fear of partiality is reasonable, reasonableness being determined by a neutral and objective standard.”

The committee also noted that the questionnaires did not leave “much room” for candidates to explain their responses, essentially calling “for ‘yes or no’ answers to their questions on substantive law” and that it was not clear whether candidates were prohibited from elaborating.  It noted that in a prior opinion it had stated:

[M]any responses may not necessarily fit into the “yes” or “no” or “undecided” boxes on the questionnaire.  Depending upon the subject matter of the question, some complex legal or political questions may not be able to be ethically answered at all.  Other questions may need a thoughtfully drafted explanation or elaboration to appropriately satisfy ethical considerations.

The committee left “to the candidates’ professional judgment whether such brevity is sufficient.”

The Kansas advisory committee stated that a judicial candidate may not answer a questionnaire from Kansas Judicial Watch that asked the candidate to state whether in their view the state supreme court had violated the state constitution in a particular opinion; whether the state constitution makes the power to tax and spend and to define marriage the prerogative of the legislature only, not the supreme court; their views on same-sex marriage, who should define pornography, and the rights of an unborn child; whether the death penalty should be determined by the state supreme court; and whether any portion of the state constitution is intended to protect a right to assisted suicide.  Kansas Advisory Opinion JE-139 (2006).  (However, the Kansas Commission on Judicial Qualifications added a disclaimer on the advisory committee website stating that it “respectfully rejects” the committee’s conclusion, citing White, andnoting that it is not bound by advisory opinions.)

The New York committee advised that a judicial candidate may not answer a candidate questionnaire from the Women’s Equality Party that asked 20 yes/no questions about the candidate’s support for legislation regarding reproductive rights, pay equity, and sexual harassment; their opposition to attempts to limit federal programs; and their support for campaign finance, health education in public schools, and other local and federal programs and legislation.  New York Advisory Opinion 2018-95.  The opinion noted that many of the questions expressly asked “the candidate to say yes or no to a specific pledge or promise, such as . . . ‘Will you pledge to fight any attempts to roll back the reproductive protections afforded women by Roe v. Wade?’”  Further, candidates were expected to check “yes or no for each question, without comment,” although they could provide “additional narrative” on a separate page.  The questionnaire did not “acknowledge a judge’s obligation to ‘decide all cases fairly and impartially and in accordance with governing law’” or “invite candidates to assert any caveats when responding ….”

The West Virginia committee stated that a judicial candidate may not answer a political party’s questionnaire about controversial issues because the questionnaire stated that it was not asking for the candidate’s personal opinions and did not give the candidate an opportunity to expound on their answers.  West Virginia Advisory Opinion 2024-3.  The questionnaire asked, for example, “(1) which of two U.S. Supreme Court Justices (Scalia or Breyer) the candidate agrees with in interpreting the U.S. Constitution; and (2) whether the candidate agrees with U.S. Supreme Court decisions overturning Roe v. Wade, 410 U.S. 113 (1973), protecting the right of an individual to possess firearms, and that a contraception mandate imposed by the federal government violated the Freedom Restoration Act.”

The opinion emphasized that the questionnaire stated that “it ‘requests [the candidate’s] opinion on settled legal precedent.  These questions do NOT ask for your personal opinions on specific issues.’”  (Emphasis added by the opinion.)  The questions were “multiple choice – asking the candidate to agree with a specific justice or agree/disagree with the legal reasoning of a decision or the majority/dissent,” with no option for the candidate to explain their answer.  The opinion noted that the questionnaire did not mention the code of judicial conduct.

The committee concluded:

The questionnaire by its own admission does not ask for the candidate’s personal opinions which would be perfectly acceptable as long as the responder was given the opportunity to explain that he/she could apply and uphold the law without regard to his/her own personal views.  Instead, the questionnaire claims that it is seeking “opinions on settled legal precedent.”  However, abortion rights, contraception and the right to bear arms, as of today, are still not truly settled, and the wording and format of the questionnaire . . . is such that candidate responses without any explanation might be viewed by the public however wrong it may be as a pledge, promise or commitment to perform his/her adjudicative duties of office other than in an impartial way.  This is particularly true when there is no mechanism for the candidate to assure the public that he/she will faithfully and impartially carry out his/her duties if elected or for him/her to explain why he/she answered in the way that he/she did.

The Maryland committee advised that a sitting judge who is a candidate for election may respond to a questionnaire from the League of Women Voters that is published to provide information to voters regarding candidates.  Maryland Advisory Opinion Request 2024-6.  The opinion noted that the League describes itself as non-partisan and does not endorse candidates.

The questionnaire asked:

  1. Qualifications:  How does your experience prepare you for the duties of this judgeship?
  2. Juvenile Justice:  How would you address the problem of large numbers of minority youth being imprisoned?
  3. Diversion Programs:  What are your views on diversion programs for behavioral problems and substance abuse?
  4. Challenges:  What are the greatest challenges facing Maryland’s Circuit Courts and how should they be addressed?

The judge who asked the committee about the questionnaire was particularly concerned that responding to question 2 would violate the code.

The opinion noted that the code does not prohibit “a candidate-judge from expressing their opinion on important matters of public concern, notwithstanding the disputed legal and political positions and issues it may generate as long as the statements do not violate the ethical rules.”

The committee explained that to the extent that an answer to question 2 “may be interpreted as advocating for a particular position, i.e., to reduce the number of minority youth being incarcerated,” the answer could constitute a statement “with respect to a case, controversy, or issue that is likely to come before the court” and, depending on the answer, “may be viewed as making a ‘pledge[] or promise that is inconsistent with the impartial performance of the adjudicative duties of the office.’”  However, the committee noted that there was “an alternative way to approach Question No. 2 that would not raise ethical problems:”  a candidate could treat the question as “an attempt to elicit a response to discrimination in society and the right of all to be afforded equal justice under the law” and could take “the opportunity to express their strictest fidelity to justice and equal justice under the law.”

The Pennsylvania Judicial Ethics Advisory Board simply answered “yes” to the question “May I respond to questionnaires?” and quoted the comment to the code. Pennsylvania General Guidance 2-2023.

Throwback Thursday

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10 years ago this month:

  • Based on a stipulation, the Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) failing to follow the law in 6 cases, (2) improper ex parte orders in 4 cases, (3) chronic tardiness and related misconduct, and (4) discourtesy to court staff; the Board also required the judge to submit a plan to address the causes of his misconduct and to work with a mentor.  In the Matter of Cahill, Public reprimand and conditions (Minnesota Board on Judicial Standards April 21, 2014).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) failing to supervise his law clerk and approving inaccurate time sheets, (2) refusing to allow a defendant to withdraw his plea, (3) trying a defendant in absentia, and (4) discourtesy to a psychologist; the Board also required the judge to complete an anger management program or therapy, work with a mentor, and write a letter of apology to the psychologist.  In the Matter of Walters, Public reprimand and conditions (Minnesota Board on Judicial Standards April 22, 2014).
  • Agreeing with the recommendation of the Commission on Judicial Qualifications, to which the judge consented, the Nebraska Supreme Court publicly reprimanded a judge for instructing jail personnel to release a friend who had been arrested on a felony drunk driving charge from jail on his own recognizance before arraignment.  In re Complaint Schatz, 845 N.W.2d 273 (Nebraska 2014).
  • Pursuant to an agreement, the New Hampshire Judicial Conduct Committee publicly reprimanded a former judge for statements in a meeting with public defenders about the risk that the legal profession will lose the respect of society because so many more women are becoming lawyers.  Lewis, Reprimand (New Hampshire Judicial Conduct Committee April 1, 2014).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) riding in a police car with a defendant after arraigning him, recommending that the defendant hire an attorney who was the judge’s business partner, giving him legal advice, and presiding over the case; (2) using his judicial title to promote his law firm and business; (3) imposing fines that exceeded the maximum authorized by law; and (4) making improper political contributions.  In the Matter of Burke, Determination (New York State Commission on Judicial Conduct April 21, 2014).
  • The Tennessee Board on Judicial Conduct publicly censured a former child support magistrate for changing a child’s name from “Messiah,” applying her own religious beliefs in her decision, and publicly commenting on her decision while the case was still pending.  In re Ballew, Opinion (Tennessee Board on Judicial Conduct April 25, 2014).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission order, based on a stipulation, publicly reprimanding a judge for yelling at a grandfather in an adoption hearing.  In re Andrus, Order (Utah Supreme Court April 23, 2014).

Abuses of power

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Agreeing with the findings and recommendation of the Judicial Standards Commission based on a stipulation, the North Carolina Supreme Court suspended a judge for 120 days without pay for (1) in a call to a county magistrate’s office, using her judicial title to inquire about the custody status of her son without disclosing their relationship, yelling at the magistrate, and demanding a bond reduction based on inaccurate information and (2) without notifying the chief judge, demanding that an assistant district attorney and a magistrate vacate a courtroom so that she could use it, resulting in over 100 cases being continued.  In re Inquiry Concerning Foster (North Carolina Supreme Court March 22, 2024).

(1) On March 2022, at 10:48 p.m., the Wake County Magistrates’ Office received a phone call from “Foster, Angela” according to the caller identification.  When Magistrate Lauren May answered the call, the caller identified herself, indicated that she was a Guilford County District Court Judge, and asked if a defendant named Alexander Pinnix was in Wake County custody.  After looking in the system, Magistrate May confirmed to the judge that Wake County had Pinnix in custody on a $1,000 secured bond.  The judge then began speaking loudly and requesting that Magistrate May change Pinnix’s bond to a written promise to appear.  The request confused Magistrate May because the judge was not a Wake County judge, but May did not want to come across as rude, so she asked to put the judge on a brief hold to look at the case file.  May found that Pinnix was being held on charges of resisting a public officer and misdemeanor breaking or entering that had been sworn out before a Wake County magistrate with a bond set by a different Wake County magistrate.

Before returning to the call, Magistrate May asked for the assistance of her 3 colleagues, who were near her cubicle.  The 4 magistrates concluded, based on their training and experience, that the judge had no reason to be involved with the case and that the situation sounded strange.

When Magistrate May returned to the call, she asked the judge to explain her involvement with Pinnix’s case and to provide a basis for changing the bond.  Based on the judge’s response, Magistrate May explained that she did not feel comfortable altering another magistrate’s bond.  The judge then requested the telephone numbers of the magistrates who had been involved with the case so that she could call them at home to ask them to change the bond.  Magistrate May declined to provide their numbers but suggested that the judge call the Wake County Chief District Court Judge.  The judge became extremely angry at this suggestion, indicated that she would never dream of calling a district court judge at that time of night, and again demanded that Magistrate May alter the bond.  Magistrate May suggested that the judge could wait until morning to call the chief judge.  This suggestion upset the judge even more; Magistrate May’s 3 co-workers could hear the judge yelling at her through the phone receiver.  The judge stressed that the bond needed to be changed that evening, explaining to Magistrate May that Pinnix had to be in court in Guilford County in the morning for a child custody case and that his children would be taken away if he was not present.

Magistrate May then muted the phone and requested the assistance of the other magistrates.  At their suggestion, Magistrate May offered the judge the phone number for the Chief Magistrate.  The phone call ended shortly thereafter.  The judge did not contact the Chief Magistrate regarding Pinnix’s bond that evening.

Due to “the strange nature of the phone call,” the amount of personal information the judge had about Pinnix, and how upset the judge had become, Magistrate May and her colleagues looked up the judge on the internet and learned that she was Pinnix’s mother.  During the phone conversation, the judge had not disclosed her relationship with Pinnix, but instead led Magistrate May to believe that Pinnix was a litigant in her courtroom.  Magistrate May wrote down her recollection of the call and reported the incident to her Chief Magistrate.

Court documents showed that Pinnix did not have a child custody case or any other case pending in Guilford County.

(2) On July 22, 2022, Chief District Court Judge Teresa Vincent issued an administrative order that stated:  “In High Point, administrative traffic court and 3B waiver court will be combined into courtroom 3B.  The Courtroom 3B shall be open Mondays and Fridays from 8:30 am until 12:30 pm.”  This order was distributed to all High Point Courthouse employees, including judges.

On November 1, the judge alerted Judge Vincent by text that the courtroom she had been assigned for November 7 would not meet the needs of her abuse, neglect, and dependency court session because there was a case scheduled in which 2 parents were charged with the murder of their child and could not be in the courtroom at the same time, which required extra security and staff.  In response, Judge Vincent suggested that Judge Foster take over courtroom 3B after traffic court concluded.  Judge Foster expressed concern that the traffic court would not be run “with the goal of finishing in an efficient manner;” Judge Vincent replied, “I am sure they will finish court as soon as they can in order to handle other tasks.”  No other contingency plans were discussed.

At approximately 8:30 a.m., on November 7, the judge went to courtroom 3B and informed the assistant district attorney there that she might need the courtroom.  The ADA told her how many cases were on his docket and reminded her of Judge Vincent’s administrative order that traffic court be open in courtroom 3B from 8:30 a.m. to 12:30 p.m.  After the judge left, the ADA told the magistrate presiding about the conversation and then began traffic court as usual.

After this conversation, Judge Foster returned to her assigned courtroom and informed everyone there that they would be moving to courtroom 4C, a superior court courtroom, without getting approval from Judge Vincent and the senior superior court judge.

While the judge was holding her district court session in courtroom 4C, the superior court administrator walked past and heard voices.  When the administrator realized what the judge was doing, she asked why the judge was there.  The judge replied, “Oh they didn’t tell you either. . . I needed to use this courtroom.”  The court administrator told the judge that she was not aware that anyone would be using the courtroom, then went to her office and called her supervisor, who told Judge Vincent.

At 9:37 a.m., Judge Vincent confronted Judge Foster by text about her use of the superior court courtroom without permission, stating that that was not the plan they had discussed and ordering the judge to vacate the courtroom.  In response, the judge claimed that the bailiffs had given her permission to use courtroom 4C; when Judge Vincent asked the sheriff’s office, they denied giving her permission.

At approximately 10:00 a.m., the judge left courtroom 4C, returned to courtroom 3B, and informed the ADA that she needed his courtroom.  The ADA told the judge that he still had a full courtroom, but she told him to vacate the courtroom.  The ADA and the presiding magistrate closed down the traffic court, finishing any case the ADA had already started to address but informing the remaining citizens that their cases would be continued.  As a result, more than 100 cases were not addressed, which frustrated “many members of the public.”

The Commission concluded that the judge had abused her power “by misleading and bullying a magistrate in an attempt to have her son released from custody” and, after being charged by the Commission for that incident, abused her power again by forcing more than 100 cases to be continued so that she could use a courtroom.  The Commission also stressed that the judge had committed these abuses after being publicly censured for abusing her power in the courtroom in 2019.  In that case, the judge had berated and threatened 15-year-old twins who refused to visit their father and directed the bailiff to handcuff and escort their mother out of the courtroom even though she had not displayed any contemptuous behavior and was not given an opportunity to be heard.  In re Foster, 832 S.E.2d 684 (North Carolina 2019).

Throwback Thursday

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20 years ago this month:

  • A special Alabama Supreme Court affirmed the judgment of the Court of the Judiciary removing the Chief Justice of the Supreme Court from office for failing to comply with a federal court order that he remove a monument displaying the Ten Commandments from the rotunda of the State Judicial Building.  Moore v. Judicial Inquiry Commission, 891 So. 2d 848 (Alabama 2004).
  • The California Commission on Judicial Performance publicly admonished a judge for repeatedly making misleading statements to the parties during a hearing about when an order declining jurisdiction in a custody dispute had been entered.  In the Matter Concerning Tisher, Decision and order imposing public admonishment (California Commission on Judicial Performance April 8, 2004).
  • Accepting the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a judge from office for falsely swearing on his declaration of candidacy and affidavit that he had not been convicted of a felony involving moral turpitude even though he had been convicted of larceny for selling military property while in the military.  In the Matter of Robertson, 596 S.E.2d 2 (Georgia 2004).
  • Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for (1) abusing her parole authority by releasing at least 900 adult detainees over whom she had no jurisdiction; (2) allowing individuals with extensive criminal backgrounds to frequent her courtroom, integrating them into the operation of her court, affording them access to the court’s computer system and to confidential juvenile records even though they were not employed by the court, and assigning a convicted felon to supervise children; (3) failing to administer her court in a competent manner including failing to assure that judgments were prepared in a timely manner; failing to observe regular hours; conducting “court by phone;” holding court without a court reporter present; and employing staff persons who either had criminal records or lacked qualifications; (4) repeatedly failing to file campaign finance disclosure reports within the statutory deadline during 15 campaigns for public office; (5) holding herself out as a notary public after her notarial commission had been suspended; and (6) failing to provide representation to several clients and refusing to account to them or return unearned fees.  In re Hughes, 874 So. 2d 746 (Louisiana 2004).
  • Based on the judge’s consent to the recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly censured a former part-time municipal judge for telling the police that he wished to be present during the interview of a juvenile who had been arrested for possession of marijuana and providing the father of another juvenile a letter indicating that the judge had observed the juvenile’s eyes and they were definitely not bloodshot.  In the Matter of Kohlhepp, Order (New Jersey Supreme Court April 27, 2004).
  • Based on the judge’s consent to the recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a part-time municipal judge for calling a prosecutor on behalf of a defendant.  In the Matter of Wright, Order (New Jersey Supreme Court April 27, 2004).
  • Based on the judge’s consent to the recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a part-time municipal court judge for advising a social acquaintance about how to have a traffic charge reduced and writing on the back of the business card he gave her:  “Please consider an amendment from N.J.S.A. 39:4-98 to N.J.S.A. 39:4-97.2 Unsafe Driving.  RE:  Yvonne Adams.  Thanks Lawson Mc Elroy,” which the defendant gave to the prosecutor.  In the Matter of McElroy, Order (New Jersey Supreme Court April 27, 2004).
  • Based on stipulations of facts and exhibits, the Ohio Supreme Court suspended an attorney’s law license for 6 months, staying the suspension with conditions, for deliberately misleading voters by using a deceptive name for his judicial campaign committee and circulating advertisements that would lead voters to believe that an independent organization had concluded that he was the best-qualified candidate for judge.  Disciplinary Counsel v. Kaup, 806 N.E.2d 513 (Ohio 2004).
  • Affirming the recommendation of the State Commission on Judicial Conduct, a Texas Review Tribunal removed a former judge from office and prohibited him from holding judicial office in the future for repeatedly using extremely obscene language in his courtroom.  In re Bartie, 138 S.W.3d 81 (Review Tribunal Appointed by the Texas Supreme Court 2004).
  • Affirming the recommendation of the State Commission on Judicial Conduct, a Texas Review Tribunal removed a non-lawyer justice court judge from office and barred her from holding state judicial office in the future for (1) incompetence in the law, as evidenced by defective citations, failure to follow the law of contempt, and exercising jurisdiction in a case in which her court had no jurisdiction, (2) attempting to use her status to influence the handling of a probationer’s status, (3) reducing a bail amount that she had set after learning that the defendant was related to a county commissioner.  In re Chacon, 136 S.W.3d 86 (Review Tribunal Appointed by the Texas Supreme Court 2004).

Recent cases

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  • Accepting the recommendation of the Commission on Judicial Conduct, based on uncontested facts, the Alaska Supreme Court publicly reprimanded a judge for failing to decide 2 matters for more than 6 months and executing 3 pay affidavits while one of the matters was outstanding for more than 6 months even after another judge brought one of the overdue matters to his attention.  In the Disciplinary Matter Involving Fallon, Order (Alaska Supreme Court March 8, 2024).
  • In a press release, the Arkansas Judicial Discipline & Disability Commission announced that the resignation of a judge served as a removal from office and resolved 4 complaints alleging judicial misconduct “related to Rules in Canons 1, 2, and 3 of the Arkansas Code of Judicial Conduct.”  Press release (Williams) (Arkansas Judicial Discipline & Disability Commission March 28, 2024).
  • Based on a stipulated resolution that included the judge’s resignation and agreement not to serve in judicial office, the Arizona Supreme Court publicly censured a former judge for (1) driving under the influence of alcohol, telling a police officer that he was a judge, and suggesting that the officer call his “chief;” (2) routinely receiving compensation for weddings conducted during court hours; and (3) driving a county-owned vehicle and using a county fuel credit card to purchase fuel for personal travel.  In the Matter of Guerrero, Order (Arizona Supreme Court March 15, 2024).
  • Based on the amended recommendation of the Commission on Judicial Discipline, which adopted the report of a special master following a hearing, the Colorado Supreme Court publicly censured a former judge for acting as counsel and exploiting his judicial position for the benefit of his brother-in-law following a domestic violence incident.  In the Matter of Kiesnowski (Colorado Supreme Court March 4, 2024).
  • Accepting a stipulation based on the judge’s resignation and his affirmation that he will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former non-lawyer judge; the Commission had filed a formal complaint alleging that the judge had (1) failed to disqualify himself from a criminal case despite being biased against the defense attorney, engaged in ex parte communications, and dismissed the charges without notice to or the consent of the prosecution as required by law, despite having been previously cautioned by the Commission for similar conduct; and (2) demonstrated bias and a hostile demeanor toward a defense attorney in retaliation for a complaint the attorney had filed with the Commission in 2019.  In the Matter of Friedmann, Decision and order (New York State Commission on Judicial Conduct March 14, 2024).
  • Agreeing with the findings and recommendation of the Judicial Standards Commission based on a stipulation, the North Carolina Supreme Court suspended a judge for 120 days without pay for (1) in a call to a county magistrate’s office, using her judicial title to inquire about the custody status of her son without disclosing their relationship, yelling at the magistrate, and demanding a bond reduction based on inaccurate information and (2) demanding, without notifying the chief judge, that an assistant district attorney and a magistrate vacate a courtroom so that she could use it, resulting in over 100 cases being continued.  In re Inquiry Concerning Foster (North Carolina Supreme Court March 22, 2024).
  • Based on the judge’s agreement, the Tennessee Board of Judicial Conduct suspended a judge without impairment of compensation based on his plea of guilty to driving under the influence.  In re Rogers, Order of suspension (Tennessee Board of Judicial Conduct March 6, 2024).
  • Based on the recommendation of the Judicial Hearing Board following a hearing, the West Virginia Supreme Court of Appeals publicly reprimanded a judge for making misrepresentations to disciplinary authorities regarding her involvement with a letter written by a member of the Board about a pending disciplinary matter and allegations of misconduct against Judicial Disciplinary Counsel.  In the Matter of Rock (West Virginia Supreme Court of Appeals March 18, 2024).

Throwback Thursday

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25 years ago this month:

  • Pursuant to the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for (1) failing to decide 56 cases for from 1 to nearly 3 years, (2) inaccurately and/or delinquently reporting 45 cases taken under advisement, and (3) failing to report that 7 cases were undecided.  In re Wimbish, 733 So. 2d 1183 (Louisiana 1999).
  • Pursuant to the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court publicly censured a judge for (1) maintaining a policy and practice of intentionally refusing to set status conferences or scheduling discovery cut off and trial dates, (2) failing and/or refusing to timely sign ex parte orders, (3) 1-year delays in deciding 2 cases, and (4) failing to report 1 case as under advisement.  In re Emanuel, 755 So. 2d 862 (Louisiana 1999).
  • Agreeing with the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined him $1,500 for sanctioning plea bargains that reduced DUI second offense charges to DUI first offense in 3 cases and reduced DUI charges to disorderly conduct in 1 case.  Commission on Judicial Performance v. Jones, 735 So. 2d 385 (Mississippi 1999).
  • Approving a statement of agreed facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for circumventing normal procedures and appointing 2 attorneys as law guardians in a disproportionate number of cases and failing to scrutinize their bills.  In the Matter of Ray, Determination (New York State Commission on Judicial Conduct April 26, 1999).
  • The Ohio Supreme Court publicly reprimanded a judge for speaking on at least 4 occasions at governmental meetings and before a planning commission on behalf of real estate partnerships in which he was a partner.  Ohio State Bar Association v. Reid, 708 N.E.2d 193 (Ohio 1999).
  • Adopting the recommendation of a panel based on the complaint of the Judicial Commission, the Wisconsin Supreme Court publicly reprimanded a judge for, when a woman told him that she would not be able to pay her fine because she had to care for her daughter’s 2 small children, stating “I suppose it was too much to ask that your daughter keep her pants on and not behave like a slut;” and in his letter of apology, manifesting a bias based on socioeconomic status.  In the Matter of Michelson, 591 N.W.2d 843 (Wisconsin 1999).

“Any forum”

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Based on the recommendation of the Commission on Judicial Discipline, which adopted the report of the special masters following a hearing, the Colorado Supreme Court publicly censured a former judge for acting as counsel and exploiting his judicial position for his brother-in-law’s benefit following a domestic violence incident.  In the Matter of Kiesnowski (Colorado Supreme Court March 4, 2024).

On May 31, 2023, the judge’s brother-in-law was admitted to intensive care for stab wounds received during a domestic violence incident with his girlfriend.  The following day, an investigator with the district attorney’s office sought to interview the judge’s brother-in-law, but the judge’s wife denied the request, indicating that her brother was in too much pain.

Later that day, the judge twice called the investigator.  During the first call, he disclosed that he was a district court judge and relayed what his brother-in-law remembered from the incident.  During the second call, he identified himself as “Judge Kiesnowski.”  The investigator told the judge that he would let the judge know before going to the hospital to interview the judge’s brother-in-law.

The next day, the investigator went to the hospital without first informing the judge.  The brother-in-law told the investigator that he did not want to consent to an interview without seeking advice from the judge, who he referred to as “his lawyer.”  The investigator then called the judge, who said that he wanted to be present for the interview and could be at the hospital in approximately 40 minutes.  Before leaving for the hospital, the judge reviewed the code of judicial conduct and concluded that it permitted him to represent his brother-in-law.

After the judge arrived at the hospital, he consulted privately with his brother-in-law and then consented to a formal interview, which was recorded.  In the disciplinary proceeding, the judge conceded that he told the investigator that he would be acting as his brother-in-law’s counsel.  He further admitted that during the interview, he called his brother-in-law’s girlfriend a “total disaster,” accused her of threatening to blame his brother-in-law for injuries she would inflict on herself, and described his brother-in-law as a “hard-working guy” who had been hit by his girlfriend in the past.  At the end of the interview, the judge signed a medical release for his brother-in-law, noting that he was acting as a legal representative and providing his Colorado bar number on the release.

Rule 3.10 of the Colorado code provides:

A judge shall not practice law except as permitted by law or this Code. . . .  The judge may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum.

The Court found “nothing erroneous or insupportable in the special masters’ conclusion” that the judge had represented his brother-in-law, noting that during the interview, he had explicitly told the investigator that he was “acting as [an] attorney” for his brother-in-law, directed his brother-in-law to wait to answer each question until he gave him the green light, stopped the interview twice to confer privately with his brother-in-law, invoked the Fourth Amendment when he refused to agree to a consensual search of his brother-in-law’s cell phone, and invoked the Fifth Amendment when he terminated the interview.

The judge did not dispute that he represented his brother-in-law but argued that, after quickly reviewing Rule 3.10, he believed that he was only prohibited from representing him in a “forum” and that after, consulting both Black’s Law Dictionary and Heritage Dictionary, he thought that “the word ‘forum’ in Rule 3.10 referred to a public, formal, adjudicatory setting and not to an interview in a private hospital room.”  The Court rejected that argument.

The language of Rule 3.10 is unambiguous.  The operative word here is “any” because by qualifying “forum,” it conveys broad inclusion of a variety of forums, both public and private.  Kiesnowski’s interpretation, on the other hand, is overly narrow and fails to give full effect to the word “any.” . . .  The rule’s prohibition regarding representation in “any forum,” when juxtaposed against the rule’s provision expressly allowing a judge to give free legal advice to family members and to draft or review their legal documents, suggests that a judge’s representation of family members is limited to a behind-the-scenes role.

The Court was “unmoved” by the judge’s request that it “account for his good-faith belief” that he was not representing his brother-in-law in a forum prohibited by the code and his assertion that “in his ‘hurry scurry’ to get to the hospital after the investigator showed up without warning, he did the best he could with his available research tools and limited time.”  The Court noted that the judge “was well aware that he could have simply directed his brother-in-law to refuse the interview—he admitted as much at the formal hearing,” which would have allowed him to more thoroughly research the code and secure appropriate representation for his brother-in-law.

The Court also agreed with the special masters that the judge had abused the prestige of judicial office to advance his brother-in-law’s interests “when he conveyed to the investigator his status as a judge” and then vouched “for his brother-in-law’s good character while disparaging the character and credibility of the girlfriend.”  The Court noted that the masters “did not take issue” with judge’s identification of himself as a judge in the first call, which he said was “purely for the sake of transparency,” but were troubled by his “additional reminders.  . . because they were irrelevant to the investigator’s attempts to conduct the interview.”  The Court also stated that, regardless of the judge’s “intent, his repeated use of his title resulted in favorable treatment,” noting that the investigator testified that the judge’s judicial status “increased his credibility and led the investigator to conduct the interview in a more deferential manner.”

Throwback Thursday

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for allowing at least 3 defendants to have their charges dismissed in exchange for donations to charities chosen by the judge and providing less than fully candid responses to the Commission during its investigation.  Yellowhorse, Order (Arizona Commission on Judicial Conduct March 29, 2019).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for threatening to hold 2 police officers in contempt for failing to comply with his order to arrest a woman for violating a harassment injunction entered in a proceeding from which the judge had recused himself; the Commission also directed the judge to complete a course offered by the National Judicial College.  Guerrero, Order (Arizona Commission on Judicial Conduct March 29, 2019).
  • The Colorado Supreme Court accepted the resignation of a court of appeals judge and publicly censured her for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague.  In the Matter of Booras, 500 P.3d 344 (Colorado 2019).
  • Adopting stipulated findings and based on the judge’s consent, the Michigan Supreme Court publicly censured a judge for citing cases to prosecutors in ex parte emails and after they disclosed the emails to defense counsel, referring to the prosecutors as unprofessional, “a fool that I suffered,” and a “cancer” in the prosecuting attorney’s office.  In re Filip, 923 N.W.2d 282 (Michigan 2019).
  • The Nevada Commission on Judicial Discipline publicly censured a judge for using an alternate judge whenever it was his turn to act as on-call search warrant judge for 4 years and failing to cooperate with 3 chief judges; the Commission also ordered the judge to attend a course at the National Judicial College.  In the Matter of Hastings, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 6, 2019).
  • Granting the Judicial Standards Commission’s motion to enforce a stipulation agreement, which the judge did not contest, the New Mexico Supreme Court suspended a judge without pay for 3 weeks for, during a radio interview, misrepresenting the grounds, extent, and nature of the judge’s admitted and uncontested misconduct detailed in a prior stipulation, violating that stipulation.  In the Matter of Walton, Order (New Mexico Supreme Court March 12, 2019).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for communicating his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees to the judge who was handling the case, the defendant’s attorney, and the district attorney’s office.  In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).
  • Based on an agreement, the West Virginia Judicial Investigation Commission publicly admonished a former magistrate for failing to perform his duties as the on-call magistrate, being routinely late for his on-call shift, and routinely giving personal recognizance bonds to defendants in exchange for their waiver of the right to an attorney.  In the Matter of Middlemas (West Virginia Judicial Investigation Commission March 22, 2019).

A sampling of recent judicial ethics advisory opinions

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  • A judge may be part of a court team that applies for grants for a behavioral health court.  Kansas Opinion JE-187 (2023).
  • A judge is not automatically disqualified from a case because one of the attorneys is a member of the board of supervisors that votes on the budgets for local courts.  Virginia Opinion 2023-1.
  • When a judge finds that an attorney’s failure to comply with a discovery order was based on misguided advice from the attorney’s supervisor and was not willful or in bad faith, the judge is not required to report the attorney to the State Bar, and the judge’s decision to declare a mistrial constitutes appropriate corrective action.  California Supreme Court Committee Formal Opinion 2024-25.
  • A judge is not required to report their own ethics violation to the State Commission on Judicial Conduct.  New York Opinion 2023-137.
  • A judge may not write a letter on behalf of a family member to a sentencing judge even if the sentencing judge is in a different judicial district, the letter would not be on judicial letterhead, and the judge would not include their job title.  Kansas Opinion JE-188 (2024).
  • A judge may not initiate a drive within a courtroom or courthouse to collect toys or dental hygiene products on behalf of non-profit, charitable organizations and may not partner with bar associations to initiate such drives.  New York Opinion 2023-136.
  • A judge may not promote local businesses and/or businesses operated by their friends, family, and classmates on social media.  A judge may not send out solicitation letters for a non-profit charitable organization; post announcements about the organization’s fund-raising activities or initiatives on social media; post a link to a page that solicits donations; sell raffle tickets; collect tickets at a fund-raising event; solicit, collect, or accept money for a “bounce house” rental or fund-raising dinner; or solicit bottles and cans to be converted to cash at a redemption center or collect cash for them at the center.  New York Opinion 2023-140.
  • A judge may attend an event hosted by a non-partisan business organization featuring a speech by the attorney general and accept a ticket to the event from a non-lawyer who will not appear before the judge.  Florida Opinion 2024-1.
  • A judge may not be the keynote speaker for a non-fund-raising event sponsored by a law center that is “dedicated to protecting the State of Israel.”  New York Opinion 2023-155.
  • To represent the judiciary’s interests, the chief judicial officer of the court system may speak at a legislative conference sponsored by a not-for-profit entity at a session about the judiciary’s operational needs and/or experience with developing technologies but may not otherwise attend or participate in the conference.  New York Opinion 2023-200.
  • A judge may participate in an elimination dinner that is a fund-raiser for a non-profit organization as long the organization does not regularly appear before them or any court and may allow their name to be placed on the handout, but not their title.  West Virginia Opinion 2024-1.
  • A judge may not serve as a paid coach for public middle school and high school sports teams.  A judge may serve as a paid referee for sports/summer activities.  West Virginia Opinion 2024-4.
  • A new magistrate may not continue to work for a realty company as a realtor.  A new magistrate may remain a co-owner of an LLC that owns rental properties.  West Virginia Opinion 2024-2.
  • A judge whose child is a student at a local public high school may not stand for election to or serve on the school board but may attend and participate in school board meetings as a parent.  New York Opinion 2023-159.
  • A judge may attend events for their child’s political campaign, including fundraising events, and appear in campaign ads and other materials, provided their title is not used or referenced and they appear only as a supportive parent.  South Carolina Opinion 1-2024.
  • A judge should strongly discourage their spouse from hosting a fundraiser for a judicial candidate at their residence.  Washington Opinion 2023-5.
  • A judicial candidate may not answer a political party’s questionnaire about controversial issues when the questionnaire says that it is not asking for the candidate’s personal opinions and does not give the candidate an opportunity to expound on their answers.  West Virginia Opinion 2024-3.
  • A prosecutor who is a candidate for circuit judge may not post about the outcome of criminal cases on their prosecutor website even if what is written is limited to the facts of the case but may post a sentencing order without further comment.  West Virginia Opinion 2024-5.
  • A judicial candidate may represent county and state political parties in lawsuits but must be careful not to use the representation to skirt the code of judicial conduct and should preface any statements, comments and media responses with the representation that they are speaking only as counsel for the parties.  West Virginia Opinion 2024-6.