“Ill-advised, improper, and damaging”

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Adopting the findings of a special investigative committee, the Judicial Council for the U.S. Court of Appeals for the 9th Circuit publicly reprimanded a District Judge for the Southern District of California for ordering a Deputy U.S. Marshall to handcuff a defendant’s 13-year-old daughter during a hearing.  In re Complaint of Judicial Misconduct (Benitez), Order (Judicial Council for the U.S. Court of Appeals for the 9th Circuit May 1, 2024).

On February 13, 2023, the judge presided over a sentencing hearing for Mario Puente for violating the terms of his supervised release.  Puente’s daughter, who was 13 years old at the time, had submitted a written statement in support of her father before the hearing and during the hearing was sitting in the back of the courtroom with a relative and a family friend. 

Puente’s counsel, a Federal Public Defender, joined the recommendation from the probation office for a sentence of 10 months of detention followed by a termination of supervised release.  While discussing the recommendation, Puente’s counsel noted that Puente’s daughter was seated in the courtroom.  When the judge asked why ending supervised release was appropriate, Puente’s counsel discussed the circumstances of Puente’s violations, including an incident in which Puente’s daughter found him unconscious after he accidentally overdosed on fentanyl.

The judge asked Puente if he had anything to add.  Puente said he hoped to leave San Diego, in part because his daughter was “following the same footsteps as I am right now,” and “had run-ins with smoking some weed and doing some things, hanging out with people,” adding, “The only thing I can do for her is try to get her out, try to get her out.”

The judge asked one of the Deputy U.S. Marshals in the courtroom, “[y]ou got cuffs?  Do you?”  The judge then asked, “[w]hat’s that young lady’s name?” and requested that Puente’s daughter “com[e] up for just a second and stand next to that lawyer over there.”  After Puente’s daughter approached, the judge told the deputy marshal, “Do me a favor.  Put cuffs on her.”  The deputy marshal handcuffed Puente’s daughter.  The judge then instructed the marshal, “[n]ow, would you mind escorting her and putting her over there in the jury box for me for just a minute.”  After Puente’s daughter was placed in the jury box, where her father sat, the judge stated, “[t]hat’s good enough.”

After between a few seconds to 4 minutes – witnesses’ recollections varied – the judge told the deputy marshal, “Okay.  You can take the cuffs off,” and the marshal removed the handcuffs.  The judge then had the following dialogue with Puente’s daughter:

Judge Benitez:  Now, don’t go away.  Now, don’t go away.  Look at me.  Look at me for just a second.  You see where  your dad is?

Puente’s daughter:  Yes.

Judge Benitez:  How did you like the way those cuffs felt on you?

Puente’s daughter:  I didn’t like it.

Judge Benitez:  How did you like sitting up there?

Puente’s daughter:  I didn’t like it.

Judge Benitez:  Good.  That was the message I was hoping to get to you.  So your dad’s made some serious mistakes in his life, and look at where it’s landed him.  And as a result of that, he has to spend time away from you.  And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.  And then some day, you’ll look back and you’ll say to yourself, “Where did my life go?”  And the answer will be that you spent most of your life in and out of jail – in and out, in and out, in and out, in and out – and it will be, probably, because of drugs.  You’re an awfully cute young lady, and I have a feeling you have a wonderful life ahead of you.  But from what I just heard about your dad – from your dad causes me to be very troubled.  You can go back and sit with your – with your mom.

The judge proceeded to discuss in some detail his feelings about drugs.

He then sentenced Puente to 10 months of detention and 2 years of supervised release.  While setting forth the conditions of Puente’s supervised release, the judge again addressed Puente’s daughter:

I hope the next time you’re tempted to use drugs, even weed, okay, even weed, you’ll remember what happened here today.  I hope you remember this mean, old face.  Look at it carefully.  Remember that some day, those drugs may land you in a courtroom just like this.  I don’t want that to happen to you, young lady.  I want you to have a wonderful – you got so much life ahead of you.  I want you to have a wonderful life.  I want your dad to get over his addiction.  I want him to come home, be a good dad to you, and keep you out of trouble.  If you’re ever, ever, ever, ever tempted to use drugs, make sure you tell your mom.  Make sure you tell someone.  Okay?  Don’t do it, please.  Please, I beg you.  Okay?  Great.

The committee found:

  • Numerous witnesses stated that Puente’s daughter was crying when the marshal handcuffed her and while she remained handcuffed.
  • The judge’s tone with Puente’s daughter “was stern and calm but not loud.”
  • The mother of Puente’s daughter recalled that her daughter spoke little and had “puffy eyes” from crying after returning home from the hearing and that she became depressed and was reluctant to go to school because of the hearing.
  • “Most witnesses recall the reactions in the courtroom as shock and surprise when Mr. Puente’s daughter was handcuffed.”
  • Several lawyer witnesses recalled looking to Puente’s counsel and the 2 Federal Public Defender supervisors to see if they would object to the judge’s actions.  The transcript reflects that no objections were made.  Several witnesses explained that no objection was raised due to concerns that an objection would make the situation worse.
  • According to multiple witnesses, the judge appeared to be trying “to provide, in the general words of the witnesses, a ‘scared straight’ experience” for Puente’s daughter.

In his responses and arguments in the discipline proceedings, the judge explained that he had felt that he had an opportunity “to possibly alter the destructive trajectory of two lives” during the hearing, stressing his strong concerns about the dangers of drug use, his experiences with drug offenders, and statistics and studies related to drug use, specifically as to adolescents and youth.  The judge acknowledged that he is aware that counseling, therapy, and mental health treatment are the best ways to help young people overcome issues such as drug use but noted “that kind of intervention was not in the inventory of actions within my control.”

The judge also highlighted that no one in the courtroom objected to his actions and that he never raised his voice, called Puente’s daughter or Puente names, berated Puente’s daughter, or said anything that would demean or shame her.  The judge accused Puente’s counsel of trying to “[g]am[e] the system,” and using Puente’s daughter to “obtain a desired result.”  The judge indicated that he would be willing to apologize to Puente’s daughter “if I could also briefly explain why I did what I did.”

The Council found that the judge “took it upon himself to order Mr. Puente’s daughter to be handcuffed for the purpose of teaching both the girl and her father a lesson about the consequences of drug use” and emphasized “the physical and emotional impacts of shackling and the lack of any basis for handcuffing Mr. Puente’s daughter in these circumstances.”

In this case, Mr. Puente’s daughter was present in court for the purpose of supporting her father.  Under these circumstances, Judge Benitez had no authority to order her to be physically restrained.  Judge Benitez cites no persuasive legal authority in his written submissions to the Committee or in his written response to the Committee’s report to justify his actions.  Further, the Judicial Council is not aware of any legal authority even arguably authorizing the handcuffing and detention of a spectator at a criminal hearing who has not engaged in any behavior that threatens the dignity and order of the proceedings.

The Council also explained that “judicial actions that exclude or discourage the presence of supportive family members may infringe the rights of both defendants and their loved ones.”

The Council emphasized:

At no point during this investigative process has Judge Benitez accepted that his actions were ill-advised, improper, and damaging to the public’s trust in the judiciary.  Judge Benitez has in fact placed blame on others, particularly the Federal Defenders, for his actions that day.  Judge Benitez accuses the Federal Defenders of using the letter from Mr. Puente’s daughter “as leverage,” but criminal defendants are well within their rights to solicit and submit letters of support.

Noting that the judge has “maintained that he acted only with the best intentions,” the Council emphasized that his good intentions did not excuse his “misguided and inappropriate methods that exceeded the authority vested in him.  His actions not only harmed Mr. Puente’s daughter, but also impaired the public’s trust in the institution.  Judge Benitez’s arguments for why his conduct was justified in the circumstances are not persuasive . . . .”

The Council noted that there had been “significant publicity and media coverage” about the incident.  Rejecting the judge’s suggestion that its “finding of judicial misconduct is a result of public pressure,” the Council explained that, “On the contrary, reinforcing the public’s trust in the judiciary is within the scope of the Council’s duties.”

Throwback Thursday

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25 years ago this month:

  • Pursuant to a stipulation, the Utah Judicial Conduct Commission publicly censured a judge for failing to recuse from cases involving an attorney who had assisted in the settlement of a civil dispute in which the judge had been involved before becoming a judge and failing to disclose the relationship.  Inquiry Concerning Glasmann, Informal resolution (Utah Judicial Conduct Commission May 25, 1999).
  • The West Virginia Supreme Court of Appeals publicly censured a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid about the 2 charges.  In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999).
  • Adopting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly admonished a judge for personally soliciting campaign contributions.  In the Matter of Tennant, 516 S.E.2d 496 (West Virginia May 1999).

“Rising above the chaos “

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In 2 recent cases, Washington State judges were sanctioned for outbursts in response to comments by litigants.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for angrily criticizing and demeaning an African-American defendant, cutting him off before he could fully explain his motion, and angrily berating him for suggesting that the judge was racially biased.  In the Matter of Brown, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 19, 2024).

On May 5, 2023, the judge presided over a hearing about a potentially dangerous dog citation received by S.D., who was not represented.  After the prosecutor and S.D. presented their respective cases, as the judge began to rule, S.D., who is African-American, asked the judge to recuse himself, noting that the judge had been the judge on S.D.’s other cases in which there had been “racial bias.”  S.D. was referring to 2 prior cases in which he had been called the N word by the opposing party.  Before S.D. could finish explaining his motion to recuse, the judge replied, “shut your mouth.”  When S.D. attempted to finish, the judge repeated that S.D. should shut his mouth or the judge would take him into custody for contempt of court.

The judge then told S.D. he had a “big mouth” and said, “You expect to come in here and just run your mouth and say your dog’s not dangerous and say I’m biased against you because every time you come in here, you’ve screwed up.  You’re a screw up, plain and simple.”  The judge also accused S.D. of “mad dogging” him.  In a footnote, the Commission cites Wiktionary, a free dictionary:  “A rabid dog. (figuratively, by extension) Someone who is aggressive and fanatical; an aggressor who cannot be reasoned with. mad dog.”

At the end of the hearing, the judge mocked S.D. for asking the judge to recuse while the judge was ruling on the matter, saying in a condescending tone, “It has to be before the hearing starts, smart guy.  You think you’re so smart, keep on running your mouth.”

In his answer to the statement of allegations, the judge acknowledged making impatient, undignified, and discourteous statements:

I was contentious, argumentative, angry, and when I left the bench, I was immediately ashamed of my actions. … My words, my demeanor, were inappropriate toward any human being. … I was clearly wrong in my behavior towards [S.D.].  I deeply regret it.  I do hope my stipulations, and acknowledgment of disgraceful behavior, might grant [S.D.] some measure of relief. … Whether I ‘appeared to demonstrate bias’, I cannot say.  I don’t believe I did; however, the other allegations are egregious and embarrassing enough.  The [Statement of Allegations] stated explicitly that the complainant was African American, as if race played a part in this incident.  Maybe it does appear that way, though I never in any way intended it to be so.”

The judge also described multiple devastating personal challenges that may have contributed to his “disastrous interaction with” S.D.

The Commission concluded that, regardless of the judge’s “intentions, the impact of his comments was hurtful and demeaning, created an appearance of prejudice and partiality and detracted from the dignity of judicial office.”

Respondent angrily criticized and demeaned S.D. when he tried to reference a separate incident where the judge did not take into account that S.D. had been called by the N word.  Instead, Respondent cut S.D. off before he could fully explain.  Respondent berated S.D. for suggesting Respondent was racially biased, expressing angry hyper-reactivity that S.D. would even voice the possibility. While Respondent may well consider himself free of any racial animus, his reaction from the bench on this occasion was to insult and demean S.D. for even speaking of the bias S.D. experienced.  The nature of inherent, unconscious bias requires the actor to consider the impact of their actions and not just their subjective intent.  Conduct such as this is detrimental to the integrity of and respect for the judiciary.

Although the stipulation was about 1 hearing, the Commission stated that the judge’s conduct in the hearing with S.D. “cannot properly be considered an isolated incident” because its investigation had revealed additional incidents of intemperance that it had not investigated because the judge had left the bench, although his conduct toward S.D. was “the most egregious instance and the only one which was racially charged.”  Also in aggravation, the Commission noted that the judge’s “treatment of S.D. was traumatizing to S.D. and may have signaled to others who viewed the conduct, including law enforcement officers present in the courtroom, that S.D. was somehow deserving of such disrespect and led them to believe they could also treat him poorly.”  The Commission explained that although the judge “has consistently stated he did not consciously intend to express bias toward S.D. based on race,” “a reasonable person in S.D.’s position . . . would experience Respondent’s comments toward him as biased.”

The judge had served as a district court judge for over 13 years.  The Commission noted that immediately after the hearing with S.D., the judge “recognized that his conduct had been so inappropriate that he should no longer be a judicial officer;” he resigned effective August 8, 2023, and helped to prepare the court for his departure.  The judge also resigned from the Washington State Bar Association and told the Commission that he will no longer practice law or attempt to serve in any judicial capacity.  He has had no other public disciplinary history and cooperated with the Commission, immediately acknowledging that his conduct violated the code and demonstrating responsibility for his behavior by entering into the stipulation.

* * *
Based on a stipulation and agreement, the Washington Commission publicly admonished a judge for directing a profane comment at a defendant in court.  In re the Matter of Cruz, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 20, 2024).

On December 4, 2023, the judge presided over the arraignment of a defendant on charges of vehicle trespass and criminal trespass.  The hearing was conducted remotely, and the defendant appeared virtually from jail.  During the hearing, the defendant used profanity in most of his comments and responses.  After the judge announced the defendant’s case, the public defender indicated that the defendant did not want the public defender to represent him and that the matter could be set over to the next day for the new attorney.  The defendant objected to a continuance, but the judge said that she was going to set the matter over to the next day based on the behavior she had seen from the defendant.  The judge and the defendant then had the following exchange.

Defendant:  It’s like we’ve done that for the last three f**king dates, let’s not keep doing that.
Judge:  Well, sir…
Defendant:  And you refused last time.  What they did was a shut off and they wouldn’t reconnect it.
Judge:  Okay, sir …
Defendant:  No, listen up and listen to what the f**k I have to . . .
Judge:  No, no, f**k you then.  Okay, no.
Defendant:  F**k you, b**ch, what’s up?

After the exchange, the judge promptly recused herself from the case, promptly verbally self-reported the incident to the Commission, and filed a written complaint, which was received on December 19.

The incident became the subject of conversation in the local legal community.

In her written response to the statement of allegations, the judge admitted that she violated the code and stated that she was deeply sorry and took full responsibility for her actions.  The judge explained that at the time of the incident, she was engaged in a full-time non-judicial position and multiple pro-tem judicial positions and had overscheduled herself and was handling 2 calendars in 2 different courts, one on Zoom and one in person.  The judge said that her behavior was completely out of character and that she has not used such language in court before or since the incident.  Since the incident, the judge has, voluntarily, at her own expense, participated in continuing legal education courses focused on judicial demeanor, dealing with challenging litigants, managing stress, and avoiding burn out.

In mitigation, the Commission noted that this was an isolated incident, the judge’s action was inappropriate and spontaneous, “there is no basis to believe she intentionally or flagrantly violated her oath of office,” and the judge has no prior public discipline history.

However, it also stated:

Profanity has no place in a court proceeding, least of all when used by a judge who has an affirmative duty to maintain order.  As this Commission has previously emphasized, being a judicial officer means being civil even to those who are uncivil and rising above the chaos that sometimes occurs in court to set an example for others.

The Commission noted that an admonishment is a written action of an advisory nature that cautions a judge not to engage in certain proscribed behavior and is the least severe disciplinary action the Commission can issue, adding that “in this instance, an admonishment may help to alert other judges to the risks of unguarded comments damaging public confidence in the impartiality’ integrity and independence of the judiciary’.”

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).