JUDICIAL CONDUCT INFORMATION SERVICE. June 1992

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1 JUDICIAL CONDUCT INFORMATION SERVICE June 1992 Beshear v. Butt, 966 F.2d 1458 (8th Circuit 1992) Reversing the district court s order granting summary judgment and remanding for further proceedings, the United States Court of Appeals for the 8th Circuit held that the district court did not have the power to treat the defendants motion to dismiss on abstention and comity grounds as one for summary judgment. In response to the defendants motion to dismiss and without the plaintiff filing a motion for summary judgment, the district court had held Canon 7B(1)(c) of the Arkansas Code of Judicial Conduct violated the First Amendment on its face and had permanently enjoined the Arkansas Judicial Discipline & Disability Commission from enforcing the canon. Beshear v. Butt, 773 F. Supp (U.S. District Court for the Eastern District of Arkansas September 19, 1991). The 8th Circuit found that the Commission was clearly taken by surprise when the district court granted the plaintiff summary judgment rather than limiting its decision to whether the court should exercise jurisdiction and that the Commission was deprived of the opportunity to raise possible factual and legal defenses and the opportunity adequately to address the merits of the complaint. Stating that the district court had not given adequate attention to the Commission s motion to dismiss on abstention and comity grounds and noting that the case implicates Arkansas s inherent and unique interest in regulating its judicial elections, the Court instructed the district court on remand to reconsider the jurisdictional question raised in the Commission s motion to dismiss. In the Matter of Hammock, 417 S.E.2d 129 (Georgia 1992) Approving and adopting the recommendation of the Georgia Judicial Qualifications Commission, the Supreme Court of Georgia suspended a chief magistrate, without pay for thirty days, for not giving a black associate magistrate a key to the office and forcing him to work out of the trunk of his car. Noting that the chief magistrate had not wanted a black associate but had been forced to hire one by a federal suit against the county, the court concluded that the chief magistrate had allowed her personal feelings to control her actions as a judge and had failed to use personnel effectively solely because of their race, which had resulted in repeated complaints about the operation of her court and in failure to honor commitments made to the Commission to improve the operation of her court. Although noting that the chief magistrate did not intend to seek re-election at the end of her present term, the court stated that her conduct was reprehensible and indefensible from either a moral or legal standpoint and deserved punishment. Judicial Council v. Becker, 834 P.2d 290 (Idaho 1992) The Supreme Court of Idaho denied the motion for leave to produce additional evidence and petition for rehearing filed by the Idaho Judicial Council. In its initial order, the Court had rejected the Council s recommendation of removal but suspended a judge for three months without salary for habitual intemperance, abuse of alcohol, and

2 driving under the influence of alcohol. Idaho Judicial Council v. Becker, No , Order (April 30, 1992). In denying the subsequent motions, the Court concluded that there is no showing that by the exercise of due diligence prior to the previous hearing, the special examiner for the Council could not have discovered the new evidence and that before issuing its initial opinion, the Court had considered all of the issues the Council raises in support of the petition for rehearing, except the request to present addition evidence. In re the Matter of Triplett, Order of Public Censure (Kentucky Judicial Retirement and Removal Commission January 24, 1992) The Kentucky Retirement and Removal Commission publicly censured a candidate for judge who had in campaign materials identified himself as a member of a politi cal party, noting that the candidate had cooperated with the Commission and agreed to the resolution adopted by the Commission. In the Matter of Hammons, 484 N.W.2d 401 (Michigan 1992) Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a magistrate who had represented a defendant in a jury trial. Noting that this was a blatant disregard of the prohibition against private practice but was an isolated incident arising from the magistrate s pro bono representation of a relative, the Commission had concluded that the appropriate sanction was public censure. The magistrate had agreed and acquiesced in the Commission s recommended disposition. Press Release regarding Porter (Minnesota Board on Judicial Standards May 28, 1992) The Minnesota Board on Judicial Standards reprimanded a district judge for statements made by him in a television broadcast concerning a defendant in two first degree murder cases pending before another judge in the county district court, noting that at the time of the telecast, the jury selection in the case had been completed, the trial was in progress, and the jury was not sequestered. According to newspaper reports, the judge, who had presided over the defendant s first murder trial, which had been reversed on appeal, stated [the defendant] does a good job of portraying himself as innocent.... I think his first conviction was amply supported by the evidence, and I think that... the facts that were brought in that case show that he is a dangerous person. Letter from Mississippi Commission on Judicial Performance to All Mayors Serving as Municipal Judge (March 17, 1992) The Mississippi Commission on Judicial Performance sent a letter to all mayors serving as municipal judges to advise them that a mayor serving as a municipal judge violates the Mississippi Constitution and the Code of Judicial Conduct. In the letter, the Commission gave notice that it intended to file at its April meeting a formal complaint against any mayor who is serving as municipal judge at that time and it would consider

3 recommending to the Mississippi Supreme Court that any such judge be suspended from office pending the outcome of the formal complaint. In the Matter of Almeida, 611 A.2d 1375 (Rhode Island 1992) The Supreme Court of Rhode Island removed an active retired associate justice of the superior court from the bench and terminated his pension as of the date the court issued its order. The justice had agreed with an attorney to appoint the attorney receiver, special master, or similar position in cases pending before him and in return the attorney paid him approximately 25% of the fees paid to the attorney (approximately $40,000 in 20 payments) and had paid for work performed at the justice s personal residence; the justice had also failed to notify all counsel of record in a criminal case that he had business deal ings with one of the attorneys of record and with one of the defendants, and although the justice was informed that the defendant in that case was asserting that he had bought the justice, the justice took no action to deny or discourage that statement. Although noting that the court did not have express statutory authority to suspend pension benefits, the court held that its inherent power to supervise the courts gave it the authority to do so. The justice had argued that, because the legislature has not conditioned pension benefits on exemplary or honorable service, the court s addition of this service as a condition would encroach upon the legislature s law-making power. Rejecting that argument, the court held that honorable and faithful service is implicitly required to receive a pension in all positions of public service, not a judicially formulated and imposed new exception to the statute. The court stated that a requirement of honorable service is common-sensical in relation to the trust and confidence vested in the judiciary and so fundamental to those individuals to whom it pertains that it need not be expressly stated to be required. The court held that forfeiture is not automatic upon committing misconduct but depended on varied factors, including the employee s length of service; the basis for retirement (i.e., age, service, disability, etc); the extent to which the employee s pension has vested; the duties of the particular employment; the employee s public employment history and record; the employee s other public employment and service; the nature of the misconduct or crime (including the gravity or substantiality of the offense, whether it was a single or multiple offense, and whether it was continu ing or isolated); the relationship between the misconduct and the employee s public duties; the quality of moral turpitude or the degree of guilt and culpability (including the employee s motive, personal gain, and the like); the availability and ade quacy of other penal sanctions; and other personal circumstances. The court found that termination of the justice s pension in the case before it was not disproportionate to the offenses committed. In the Matter of Grubb, 417 S.E.2d 919 (West Virginia 1992) The Supreme Court of Appeals of West Virginia held that it had the authority to suspend without pay a judge who had been indicted for or convicted for serious crimes pending the final disposition of the criminal charges against the judge or until the underlying disciplinary proceeding before the Judicial Investigation Commission has been completed, and that in the case before it, the judge should be suspended without pay

4 because the serious criminal charges filed against him and of which he had been convicted, and the public s knowledge of those charges, call into question his effectiveness as a judge and the integrity of the judiciary. The court noted that in the event that the judge is successful in having his conviction reversed following an appeal, he may maintain a cause of action for back pay. The judge had been indicted by a federal grand jury on eight counts of bribery, mail fraud, conspiracy, fraud, interference with commerce by threats or violence, and racketeering and was found guilty on all counts except that of interference with commerce. In re the Complaint against Nowlin, Order and Report (Judicial Council of the U.S. Court of Appeals for the 5th Circuit May 15, 1992) Adopting the findings and conclusions of the investigative committee it had appointed and approving and accepting the committee s recommendations, the Judicial Council of the United States Court of Appeals for the Fifth Circuit reprimanded a district court judge who, while a member of a three-judge panel hearing cases involving the reapportionment of the Texas legislature, had consulted a state representative and enlisted his assistance in drawing the court-ordered plan. The Council also admonished the judge that his actions were inconsistent with the Code of Conduct for United States Judges and deemed prejudicial to the effective administration of the business of the courts and directed him to exercise greater care in the future. Noting that, although the judge reviewed and approved the changes the representative made, the representative enjoyed latitude in deciding precisely what areas to move in the two districts involved and that the judge gave no instructions to his law clerk as to what changes should be made, the Council found that the judge made a mistake in judgment when he asked the representative to assist in making changes in a portion of the court s plan. Noting that as a member of the legislative body being redistricted, the representative had a keen interest in the process, the court stated that for a judge of the court panel faced with resolving this controversy to privately call upon an elected member of the legislature for assistance in that task, regardless of how limited, would clearly have the appearance of impropriety for any reasonable observer. The Council found, however, that whatever the representative s actual political intentions may have been, the judge did not regard him as a candidate for the state senate at that time, that the changes were initiated by the judge not by the representative, and that in agreeing to implement the judge s instructions, the representative was not enhancing his own chances of being elected. Stating that there was no evidence that the judge had a corrupt or evil motive, the Council concluded that the judge was rushing to get his proposed opinion in final form to present to his fellow panel members later that day so that it could be released before Christmas, that the judge had confidence in the representative who was very knowledgeable about computer redistricting and about the geography of the county, that it would have taken the judge s law clerks acting alone much longer to accomplish the changes the representative was able to complete in thirty minutes, and that by using the representative, the judge obtained the map of the new districts along with the statistical information in time for his meeting with his fellow judges. The Council stated it was refusing to infer impropriety from evidence of a large number of calls from 12 other state legislators and 22 calls from the representative s office to the judge s chambers, concluding that the calls were seeking

5 a progress report on the suit. Finding that conversations between the judge and the chief justice of the Texas Supreme Court did not relate to the merits of the litigation but were to coordinate hearings in the related litigation pending before the supreme court and to learn when the supreme court issued its opinion, the Council held that there was no impropriety in the contacts between the judge and the chief justice. The Council also found that in drawing the district boundaries, the judge had no intention to move any potential senate candidate s residence outside any particular district.