The same day the Florida Supreme Court decided to publicly reprimand a court of appeal judge for filing a concurring opinion in which he personally attacked a fellow appellate judge (see my previous post), the Texas State Commission on Judicial Conduct dismissed complaints about the “vitriolic language” and “unprofessional personal attacks” against his colleagues by Chief Justice Tom Gray of the 10^th Circuit Court of Appeals in several dissenting opinions.  Public Admonition of Gray (Dec. 18, 2008).  The attacks had “became media fodder and were the subject of growing criticism and ridicule in editorials, on internet blogs, and at judicial conferences.”  Noting that the judge had acknowledged the problems caused by the tone of his opinions and taken appropriate corrective measures to avoid that conduct in the future, the Commission “determined, in deference to the principle of judicial independence, that Justice Gray should not be disciplined for the content of his dissents.”

However, the Commission did publicly admonish Justice Gray for allowing his acrimonious relationship with his fellow justices to influence his conduct and judgment and failing to treat court personnel in a patient, dignified, and courteous manner.  The Commission found that Justice Gray began a “whisper campaign” against Justice Felipe Reyna by telling Republican party leaders that “somebody needs to talk to Felipe.  He’s not being a good Republican,” and that Justice Reyna “always votes with a liberal Democrat, [Justice] Bill Vance,” or words to that effect.  In addition, a security tape showed Justice Gray unlocking and entering Justice Vance’s private offices without permission and when no one else was present.  Justice Gray claimed that he was searching for a file but acknowledged that, after determining that the file was not in the office, he reviewed other papers on Justice Vance’s desk.  Justice Gray further testified that he has unlocked and entered the private offices of both Justice Vance and Justice Reyna in the past to look for files while the other justices were not present and had not given their permission.

Justice Vance and Justice Reyna testified about instances when Justice Gray treated court staff in a sarcastic, intimidating, and demeaning manner, including angry outbursts and personal attacks.  Justice Gray also commonly made statements implying that the chief clerk would be out of a job after January 1, 2009, and tried to convince the other justices to vote to fire the chief clerk and the accountant.  The Commission found that “mistreatment was sufficient to reduce some staff members to tears and has contributed to extremely low employee morale at the Court.”

by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society

Professor Elizabeth Thornburg (SMU) is on the verge of publishing one of the most (if not the most) comprehensive and analysis-heavy discussions of the (im)propriety of judges’ independent fact research.  The work will appear in The Review of Litigation (University of Texas School of Law).  Her catchy conclusion reads

like a movie with alternate endings: everything up to the end is the same, but the outcomes are very different. Accordingly, this article suggests that independent research (except from other people) should either be freely permitted in all areas, subject to the requirement that the judge give the parties advance notice, or should be generally prohibited, with judges calling on parties, amici, and the lower courts to supply missing information. The choice between alternatives should be based not on a fictional distinction between law and fact, but on explicit policy choices about the proper roles of parties and lawyers, judges and juries, and trial courts and appellate courts.  Any choice should focus on the need for public confidence in the judicial system, the benefits of transparency, and the requirements of due process.

Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 REV. LITIG. (forthcoming 2009), a link to which can also be found in Articles. 

To defend himself from disciplinary charges based on his orders requiring over 120 drug court defendants to make payments to organizations not authorized by statute, a Louisiana judge recently argued that “the ABA Canon Model Code of Conduct now says if there’s a conflict . . . , you don’t use the standard Canon of Conduct . . . .  It says you defer to the drug court practice and rules.”  That argument was misplaced because the revised ABA Model Code of Judicial Conduct adopted in 2007 does not give unbridled discretion to drug court judges.  (The Judiciary Commission rejected the judge’s argument; its recommendation that the judge be censured for this and other misconduct is pending before the Louisiana Supreme Court.)

A new Comment 4 added to the prohibition on ex parte communications (Rule 2.9A) in the 2007 ABA Model Code states:

A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts.  In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

Thus, the only special ethical rule for problem-solving judges in the model code relates to ex parte communications and then only insofar as “expressly authorized” by the rules or policies of the court.

So far five states have adopted revised codes of judicial conduct based on the 2007 model code.  Delaware has not adopted a provision similar to Comment 4 to Rule 2.9A.  Indiana and Montana have adopted the comment.  (The syntax is a little different in the Montana version, which also adds “water court” as an example of a problem-solving court.)  Hawaii has greatly expanded the exception by deleting the phrase “expressly authorized by law” so that the Hawaii allows a judge to “initiate, permit, or consider ex parte communications when serving on therapeutic or problem-solving courts, such as mental health courts or drug courts,” apparently without limitation.  In the revised Ohio code, effective March 1, 2009, an exception for judges presiding over “specialized dockets” is in the text of the rule, not the comment, and states “a judge may initiate, receive, permit, or consider an ex parte communication when administering a specialized docket, provided the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage while in the specialized docket program as a result of the ex parte communication.”

by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society