JUDICIAL DISCIPLINE DECISIONS. March-April 1995

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1 JUDICIAL DISCIPLINE DECISIONS March-April 1995 Letter from the California Commission on Judicial Performance to Judge Michael Kanner (November 21, 1994) (cjp.ca.gov/pubdisc.htm) The California Commission on Judicial Performance publicly reproved a judge who had maintained a policy of issuing no-bail bench warrants for all defendants who failed to appear on misdemeanors, despite constitutional and penal code provisions giving individuals a right to bail before conviction, with only limited exceptions. Over approximately two years, the judge issued no-bail warrants for one hundred to two hundred individuals. One individual, who had failed to appear on a charge of failing to have his dog licensed and vaccinated, was arrested on the warrant and spent four days in jail. The judge stated that he now realized that the policy was wrong and recognized that it had resulted in failure to exercise judicial discretion in individual cases. The judge consented to the reproval. Letter from the California Commission on Judicial Performance to Judge Thomas Breen (February 28, 1995) (cjp.ca.gov/pubdisc.htm) The California Commission on Judicial Performance publicly reproved a judge for a continuing pattern of failure to dispose of judicial matters promptly and efficiently. The judge has received an advisory letter in 1986 for a 17-month delay, a private admonishment in 1987 for long delays in two cases, and an advisory letter in 1989 for failure to recognize or take steps to correct serious problems in the clerk s office involving the misfiling and loss of legal documents. There were five cases that were the subject of the public reproval, involving issues of child and spousal support, marital property dissolution, and corporate dissolution, that were ready for disposition but remained undecided for from three years to one year. The Commission stated that, although inordinate delay is unacceptable in all cases, the judge s failure to promptly decide family law matters was particularly egregious in light of the harm to the parties caused thereby. The Commission noted that, while the cases remained undecided in excess of 90 days, the judge had executed salary affidavits representing, under penalty of perjury, that he had no cases under submission in excess of 90 days and had received his salary in violation of the state constitution. In mitigation, the Commission noted the judge s agreement to submit monthly reports to the Commission for three years of all cases remaining undecided. The judge consented to the public reproval. Letter from the California Commission on Judicial Performance to Judge Thomas Kelly (February 28, 1995) (cjp.ca.gov/pubdisc.htm) The California Commission on Judicial Performance publicly reproved a justice court judge who (before justice court judges were prohibited from practicing law) abandoned a client for whom he was attorney of record. The plaintiff in the case had sued the judge and a Nevada attorney, and the judge had been found liable for malpractice; the court had also determined that by agreeing that the Nevada attorney would handle the management of the lawsuits and signing complaints prepared by the Nevada attorney, the judge had aided and abetted the unauthorized practice of law.

2 Letter from California Commission on Judicial Performance to Judge Kenneth Vassi (February 28, 1995) (cjp.ca.gov/pubdisc.htm) The California Commission on Judicial Performance publicly reproved a judge for abuse of the contempt power, interference in an attorney-client relationship, and refusing to exercise his discretion to consider traffic school as a possible disposition in traffic matters. In a driving under the influence case, the judge had spoken directly to the defendant, held defense counsel in contempt when he objected, and jailed him immediately, with no hearing or written order of contempt. Noting that the judge had been a judge for 26 years, the Commission stated he was obligated to know or research proper contempt procedures. In mitigation, the Commission noted that the judge had acknowledged that he handled the matter improperly. In addition, the judge had told traffic litigants requesting traffic school that he did not give traffic school because it was a joke and that he would not give traffic school until the traffic school system, which the judge characterized as corrupt, was cleaned up. The Commission noted, in mitigation, that the judge had changed his policy and now considered traffic school as a possible disposition, exercising his discretion to grant or deny traffic school on a case-by-case basis. Zeller v. The Florida Bar, 909 F. Supp (U.S.N.D. Florida 1995) In a suit brought by judicial candidates, their supporters, and the American Civil Liberties Union, the United States Court of Appeals for the Northern District of Florida declared unconstitutional a provision of the Florida Code of Judicial Conduct, adopted by the Florida Supreme Court, effective January 1, 1995, that provided: A candidate should not expend funds in furtherance of his or her judicial campaign or establish a committee to solicit contributions or public support earlier than one year before the general election. The defendants were the Florida Bar and the Florida Judicial Qualifications Commission. During oral arguments on the plaintiff s motion for injunctive relief, the defendants conceded that the prohibition on expenditure of judicial campaign funds earlier than one year before the general election and the prohibitions on solicitation of public support and establishing a committee to solicit such support earlier than one year before the general election were facially unconstitutional. The remaining issue was the constitutionality of the prohibition on solicitation of campaign contributions earlier than one year before the election. The court concluded that prohibiting solicitation for contributions to judicial campaign more than one year prior to an election unconstitutionally limited political expenditure by candidates, thereby restricting the ability of the public to receive access to information about candidates campaigns. The court also found that the canon unduly restricted supporters rights to associate themselves with their chosen judicial candidate and to engage in protected political expression with the public through the solicitation of funds. The court held that the defendants had failed to establish a sufficient nexus between the state s interest in avoiding the actuality and appearance of corruption and the blanket prohibition on solicitation and collection of judicial campaign contributions for a lengthy period of time, noting that contributors can give the same sum of money within the one year period prior to an election. The court concluded that numerous less restrictive means of furthering the state s interest in preventing judicial corruption already exist, noting the proscription on judicial candidates participating in partisan political activity or accepting the assistance of partisan political 2

3 organizations, the prohibition on judicial candidates making pledges or promises of conduct in office, or statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court, the prohibition on judicial candidates personally soliciting campaign funds, the requirement that judicial candidates comply with state campaign finance disclosure laws, and the requirement that sitting judges disqualify themselves in a proceeding in which the judge s impartiality might reasonably be questioned. Inquiry Concerning O Neal, 454 S.E.2d 780 (Georgia 1995) Accepting the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed a magistrate from office for an uncooperative working relationship between the and the county board of commissioners. The magistrate had issued orders to the sheriff and each of his deputies ordering them to comply with the statutory provisions that require a sheriff to perform the duties of constable if no provision is made for appointment of constables. When a sheriff s deputy and the coroner refused to serve the orders, the magistrate issued a rule nisi to determine whether the deputy should be held in civil contempt and a rule nisi for criminal contempt against the coroner. At the civil contempt hearing, the magistrate stated she was the plaintiff and called and cross-examined the deputy, verbally issued the orders to the sheriff s deputies, the majority of whom were in attendance, and stated that the deputy was purged of contempt. The magistrate issued an indefinite stay with respect to the coroner s hearing. The county board, at a meeting, publicly read a letter to the magistrate that stated: We have decided to give you 30 days to see if you can get your act together. If you continue with your present attitude, causing problems and conflict in the county government, we will have no choice but to rescind your salary increase and return you to the original salary granted to you by the previous commissioners. The magistrate obtained felony warrants from a magistrate in a distant county, against the members of the board for intimidation of a court officer. After a special prosecutor dismissed the warrants, the magistrate issued a lengthy public statement justifying her actions in seeking the warrants and detailing her dispute with the board and the sheriff. The magistrate contended that the orders addressed her concern over a lack of courtroom security and delays by the sheriff in serving warrants and in turning over money collected by the sheriff s department. Noting that the magistrate s orders directed the sheriff and his deputies to perform duties imposed by law, the court stated that the appropriate remedy would have been to seek a writ of mandamus but that a magistrate court does not have the power to issue writs of mandamus nor was the required notice given or hearing held. The court concluded that the inherent power of a court should not be used as a weapon in a political power struggle and that reliance upon a court s inherent power was inappropriate and unnecessary where specific remedies exist. With respect to the contempt hearing against the sheriff s deputy, the court found that the magistrate had become personally embroiled in the matter and another magistrate should have held the hearing. The court held that using the power of the judicial office to issue orders and to exercise the contempt power in order to intimidate and coerce other elected officials violated the code of judicial conduct and demonstrated willful misconduct. The court also held that the magistrate s public statement to the local paper appeared to be an attempt to influence public opinion in her favor and against other county officials, including the sheriff and board of commissioners, which violated the code, was prejudicial to the administration of justice, and undermined public confidence in the impartial 3

4 functioning of judicial officers. The court noted the magistrate s refusal to acknowledge that any specific action was improper or to accept personal responsibility for the difficulties she experienced with the other elected county officials. In the Matter of Goodman, 649 N.E.2d 115 (Indiana 1995) Accepting the agreement of a judge and the Commission on Judicial Qualifications, the Indiana Supreme Court publicly reprimanded the judge for nepotism and entering into a contract that gave rise to a perception that the court s business was based upon the exchange of favors. While the judge was presiding judge, several close relatives of court employees were hired by the court, including the court administrator s daughter, the daughter s fiance, and the fiance s brother (for whom the court administrator was allowed to approve raises); three family members of the assistant court administration; and the daughter of the head of the probation department. The judge s son had worked for the court occasionally on school vacations, although the amounts he was paid were reimbursed to the court. Furthermore, the judge had contracted with a corporation to provide certain services for a court program even though the owner of the corporation was a close personal friend of the court administrator. The owner hired the court administrator s son-in-law, who left his employment with the court and was subsequently put in charge of the court program for the corporation. The judge became engaged to marry the in-house accountant for the corporation, and the owner hosted an engagement party for the judge and his fiance. The court noted that, although the parties agreed the judge did not profit or intend to profit from the court s program or the corporation s providing services to the court, the parties also agreed that these circumstances gave rise to a perception that the court s business was based upon the exchange of favors. Inquiry Concerning Stewart, Order (Kansas Commission on Judicial Qualifications April 23, 1995) The Kansas Commission on Judicial Qualifications ordered a judge to cease and desist from any act that could be found to violate the laws including those laws relating to the consumption and use of alcoholic beverages. The judge had been arrested and charged with driving under the influence of alcohol, had entered into a diversion agreement, and had complied with all conditions of the diversion agreement and paid all fines. The case was dismissed. The order noted that the Commission s investigation had not revealed a pattern of substance abuse, and the case against the judge was handled by law enforcement and the courts as any other similar case involving a private citizen would have been handled. The judge approved and accepted the order. In the Matter of Yusko, Determination (New York State Commission on Judicial Conduct March 7, 1995) ( The New York State Commission on Judicial Conduct determined that removal was the appropriate sanction for a non-lawyer judge who had failed to successfully complete the training course required by statute before he could assume the duties of office. The Commission noted that, notwithstanding his failure to obtain certification to act as a judge pursuant to law, the judge handled 365 cases between August 1, 1993, and August 31, 1994, and committed defendants to jail in 36 cases during that period. The Commission found that the judge had known that he was not 4

5 permitted to preside in cases, noting that the office of court administration had warned him in several letters that he would not be certified to sit as a judge if he did not attend training sessions and pass the required examinations. In the Matter of Backal, Determination (New York State Commission on Judicial Conduct March 7, 1995) ( The New York State Commission on Judicial Conduct determined that removal was the appropriate sanction for a former judge who counselled a man known by her to be involved in illegal drug dealing and money laundering as to how to safeguard the money and how to mislead FBI investigators and accepted for safekeeping a large sum of money, accepting $1,500 of it when she returned the cash. For example, the judge had told Selwyn Wilson to tell the FBI that he was unable to recall the identities of certain passengers whom he drove as the judge s chauffeur; not to mention that he drove certain persons, including a certain judge, to the Inner Circle; and to tell the FBI only that it was possible that that certain judge was a passenger, even though Wilson indicated that he clearly recalled having driven that judge; and to keep it very loose without pinpointing dates. After Wilson told the judge that he had been involved in illegal drug and money laundering activities and that he and an associate named Lance recently had brought in 300 kilos of cocaine, the judge said to make sure [Lance] lays low, and that Wilson had a duty to tell Lance about news articles concerning a pending FBI investigation. There were other, similar conversations. At a subsequent meeting at her home, the judge accepted for safekeeping from Wilson a large sum of cash, and a week or two later, the judge returned the money to him but accepted $1,500. The judge failed to report the $1,500 to the clerk of her court as required by the code of judicial conduct and on her financial disclosure statement as required by law and the rules of the chief judge. In the Matter of Bradigan, Determination (New York State Commission on Judicial Conduct March 10, 1995) ( The New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a judge who had presided while intoxicated and had engaged in ex parte communications. The Commission also authorized the Commission s staff to observe periodically the judge s public court sessions after three months, noting that it would consider a new investigation and additional charges upon any observation that suggested that the judge was presiding while under the influence of alcohol. Presiding over a bench trial while intoxicated, the judge had questioned the defendant, who was seated at counsel table, about the circumstances of his arrest, even though the defendant had not been called as a witness and had not been sworn, and precluded the defendant s attorney from concluding his case. In two small claims cases, the judge had spoken with litigants outside of court and entered judgments based on those conversations. The Commission noted that the judge had submitted evidence that his conduct may have been the result of alcoholism and averred that he had undertaken a detoxification program and abstained from alcohol since March

6 In the Matter of Austria, Determination (New York State Commission on Judicial Conduct March 10, 1995) ( Pursuant to an agreed statement of facts, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a judge who at a number of arraignments had failed to advise the defendants on their rights, elicited potentially incriminating statements, made remarks that presumed guilt, and made sarcastic and inappropriate statements. The Commission noted that the judge had agreed to enroll in and complete the next available basic training program offered by the office of court administration for part-time judges. Seven of the cases involved defendants charged with patronizing a prostitute. The judge failed to advise them of their right to communicate free of charge, by letter or telephone, for the purpose of obtaining counsel; failed to accord them the opportunity to exercise the right to counsel, the right to an adjournment to obtain counsel, and the right to have counsel assigned by the court if they were unable to afford a lawyer; and failed to take affirmative steps to effectuate such rights. The judge announced in advance that bail would be set at $750 in each case; set bail at that amount in all but one of the cases as a deterrence and a warning to potential defendants; and made his decision to set bail and his decision as to the amount of bail on factors other than the kind and degree of restriction necessary to secure the defendants attendance in court. The judge asked one of the defendants why he was in the town, and when the defendant replied that he worked there, the judge asked what time he finished work. The judge asked a second defendant why he was in the town and when the defendant replied that he was visiting his brother, the judge asked where the brother lived, asked whether he was lost since he was far from the brother s home when he was arrested, and asked whether he had forgotten doing jail time on previous convictions. In arraigning a third defendant, the judge announced: I see the police officers here. Get word out in the street, gentlemen, that we mean business. Bail started out at $250, went up to $500 for the johns on the second sweep. Bail will be set at $750. This is the third such sweep. The next time $1,000 and, if we continue on it, it will be one weekend to two weekends in jail, and the community service will escalate proportionately. That is my position on this. There has got to be a stop making Newburgh the sewer of Orange county and the Northeast. When a fourth defendant said that he lived on John Street in New Windsor, the judge said, that is appropriate. When another defendant said that he was 73 years old and retired, the judge replied, I am going to comment on that one with a ten-foot pole, and after ascertaining that another defendant was married and that his wife was in the courtroom, the judge asked, Do you want to come up and stand by your husband? The judge also granted an interview to a reporter from the local newspaper in which he commented on the merits of the seven cases and made statements that presumed the defendants guilt. The judge subsequently recused himself from the cases but in doing so made statements that presumed the guilt of the defendants and cast doubt on his ability to impartially decide similar cases in the future. In the Matter of More, Determination (New York State Commission on Judicial Conduct March 13, 1995) ( The New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who dismissed a series of cases without according the prosecutor the opportunity to be heard and in three cases initiated and considered ex parte communications on the merits. In one case, after oral argument on a motion to dismiss, the judge called the assistant 6

7 district attorney by telephone and asked how he should rule on the motion; the judge also called defense counsel and asked how he should rule. In a second case, the judge called a department of social services caseworker and discussed facts that were relayed to the caseworker by the complaining witnesses and the merits of the complaining witnesses request for an order of protection. In a third case, the judge discussed the merits of a case charging public lewdness with someone from the home for children where the alleged incident occurred and spoke outside of court with the attorney representing the defendant. In the Matter of Menard, Determination (New York State Commission on Judicial Conduct March 13, 1995) ( The New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who, after receiving an inquiry from the Commission concerning his handling of a criminal case, had told the defendant in that case to lie to the Commission. The judge had called John Weightman, the defendant, and told Weightman that Weightman should tell the Commission that he had pleaded guilty to driving while intoxicated and speeding and that he had been represented by counsel, even though Weightman had had no lawyer and he had been convicted of driving while ability impaired, rather than driving while intoxicated. In re Gentile, Order (Pennsylvania Court of Judicial Discipline January 27, 1995) Unable to garner the majority vote required by the constitution, the Pennsylvania Court of Judicial Discipline dismissed a petition to implement automatic forfeiture of judicial office that the Judicial Conduct Board had filed regarding a judge who had been convicted of obstructing the administration of law or other governmental function. The judge had been charged with repeatedly requesting the chief of police to alter a traffic citation, demanding, in a heated conversation with the chief, that local drivers be given special consideration, and threatening to have the individual charged in the citation called for a hearing and found not guilty. The constitution provided for automatic forfeiture of office for misbehavior in office, which had been defined in common law as performance of a discretionary duty with an improper or corrupt motive. Three members of the court concluded that the record was sufficient to permit the conclusion that judge s conduct evidenced improper or corrupt motives in the performance of his discretionary duty to decide cases and the conviction satisfied the elements of the common law crime of misbehavior in office. However, three members concluded that the constitutional section providing for automatic forfeiture for conviction of the crime of misbehavior in office was not self-executing but required legislation to define the crime of misbehavior in office. One member concurred in the result. In re Daghir, 657 A.2d 1032 Opinion (Pennsylvania Court of Judicial Discipline 1995) The Pennsylvania Court of Judicial Discipline publicly reprimanded a judge and suspended him for 7 calendar days without pay for accepting and using 4 tickets to a college football game from a husband involved in divorce proceedings pending before the judge and who had engaged in a pattern of unreasonable and unjustifiable delay in the disposition and decision of cases. The judge and the Judicial Conduct Board had stipulated that the husband s intention in making the gift of the 7

8 tickets was to seek favorable treatment from the judge in the divorce proceedings but that the Board could not prove that the husband received any favorable treatment. The judge recused himself from the divorce proceedings a year and a half after taking the tickets, before ruling on the master s report that addressed the question of equitable distribution in the divorce, and then filed a self-report with the Board. The pattern of delay involved delays of almost 7 years, over 1 year, 53 months, 44 months, 23 months, 38 months, and 21 months. The court found that the delay in each of the cases was not justified by the factual or legal complexity of the issues. The Court also concluded that the judge s laudable act of reporting his improper acceptance of the tickets did not excuse his conduct, noting with disapproval his delay in making the report. The Court expressed its concern that the judge s decision to merely take a leave of absence rather than resign from the board of law examiners reflected a lack of appreciation for the adverse impact his continued connection must have on the work and image of that board. The judge was directed to appear before the Court for imposition of an oral reprimand. In the Matter of Edwards, 459 S.E.2d 837 (South Carolina 1995) Agreeing with the recommendation of the Board of Commissioners on Judicial Standards and a panel of hearing masters, the South Carolina Supreme Court publicly reprimanded a judge who had issued a bench warrant against a process server who had served a summons and complaint on the judge after the judge had been named as a defendant in a civil action. The bench warrant had resulted in the arrest of the process server for contempt of court and her detention for 3-4 hours. The Board and the hearing masters had found that the process server had properly served the judge with the summons and complaint without any disruption of the court and, therefore, that the judge had no cause to issue the bench warrant. In re Mackin, Stipulation and Order of Closure (Washington State Commission on Judicial Conduct April 7, 1995) ( Pursuant to a stipulation, the Washington Commission on Judicial Conduct closed an investigation against a former judge pro tempore and court commissioner after she agreed that she would neither seek nor serve in any judicial office in the state unless and until she had completed an alcohol evaluation and received prior approval of the Commission on Judicial Conduct. The former judge had been arrested twice for driving while intoxicated. In the Matter of Means, 452 S.E.2d 696 (West Virginia 1994) Reversing the judgment of the Judicial Inquiry Board that dismissed a complaint filed by the Judicial Investigation Commission, the West Virginia Supreme Court of Appeals publicly reprimanded a judge for presiding over a case in which one of the parties was represented by an attorney with whom the judge had continuing financial and business dealings. The judge and the attorney equally owned all the shares of a corporation that owned 106 acres of land, and the judge and his family lived in a home located on the property, for which he paid no rent. 8

9 In the Matter of Atkinson, 456 S.E.2d 202 (West Virginia 1995) The West Virginia Supreme Court of Appeals suspended without pay a judge who had been charged in an 18-count indictment with violation of statutes regarding bribery in official matters, unlawful rewarding for past behavior, gifts or gratuities to public servants, and state tax evasion. The court found that the indictment, charging several felony offenses, established that serious charges were pending, and that, although the judge contended that he had meritorious defenses, his interests were subordinate to the court s responsibility to preserve the integrity of the judiciary and to maintain public confidence in the court system. In the Matter of Starcher, 457 S.E.2d 147 (West Virginia 1995) The West Virginia Supreme Court of Appeals publicly reprimanded a judge for initiating ex parte communications with an assistant prosecuting attorney concerning an on-going criminal trial. The Judicial Hearing Board had recommended the lesser sanction of admonishment, to which the judge had consented. The judge admitted calling the assistant prosecuting attorney concerning a trial in which the defendant was accused of sexually assaulting several West Virginia University coeds. The judge also admitted advising the assistant prosecuting attorney (1) to have some supporters present in the courtroom during closing argument, e.g., the victims, a police officer and some female attorneys, (2) to use the term serial rapist frequently, and (3) to be more emotional before the jury. In the Matter of Hey, 452 S.E.2d 24 (West Virginia 1995) Ratifying, adopting, and accepting a settlement agreement between the Judicial Investigation Commission and a former judge, the West Virginia Supreme Court of Appeals censured the judge for (1) on a number of occasions, approaching a court employee, speaking to her with lewd and vulgar language, touching and kissing her without her consent, and using language and behavior toward her that were offensive and sexual in nature; (2) on a number of occasions, making comments to another court employee of an offensive nature that may be reasonably construed to be sexual harassment; and (3) on at least two occasions, being under the influence of alcohol while on the bench and, at that time, making offensive and inappropriate remarks to litigants and/or attorneys appearing before him. The former judge had agreed to petition the court to accept his resignation from the practice of law, to pay a fine of $10,000, and to pay the costs of the disciplinary proceedings, including the cost of special counsel for the Judicial Investigation Commission, which may amount to almost $20,000. He explicitly waived any appeal with regard to the fine amount, which was in excess of the maximum amount allowable under the Rules of Judicial Disciplinary Procedure. The judge also apologized for any embarrassment and indignity that he may have caused to individuals, to the judiciary, or to the people of the state. The court noted that the agreement was acceptable to the victims. In re Charge of Judicial Misconduct, 47 F.3d 399 (U.S. 10th Cir. Judicial Council 1995) The Judicial Council of the United States Court of Appeals for the 10th Circuit dismissed charges that a judge who had held a press conference in chambers, granted interviews, and appeared 9

10 on several television news shows to comment on a matter before him. Rejecting the judge s explanation that the purpose of the comments was to obtain compliance with a judicial decree, the council stated that obtaining compliance with a judicial order should be accomplished through traditional judicial enforcement procedures. The court found that the judge s public comments presented the risk of involving the judge as an actor in the events, and, at least in the public s perception, could present the appearance that the judge s impartiality and objectivity had been compromised. The council noted that the judge s comments had led the 10th Circuit to vacate and remand several of his decisions relating to the case because the court found an appearance that the judge was biased and the cases had to be reheard in front of a new judge. The council also noted that considerable time and events had elapsed since the conduct complained of occurred, that the cases before the judge presented extraordinary challenges and pressure, and that the judge s responses were calculated to preserve the peace and to uphold the law. The council concluded that all of the objectives of the disciplinary proceeding had reasonably been accomplished through the public comments of the court in the published opinions reversing the judge s orders involving the controversy and through the comments in the order of dismissal. [The order dismissing the complaint does not identify the judge, describe his conduct in detail, or even cite the 10th Circuit decisions on which it relies. However, apparently, the underlying case had involved charges against individuals who had blocked access to abortion clinics, and the judge had appeared on Nightline, where he made numerous prejudicial remarks including these people are breaking the law. See United States v. Cooley, 1 F.3d 985 (U.S. 10th Cir. 1993).] 10