The well-regarded New York State Commission on Judicial Conduct recommended censure for family court Judge Gerard Maney after the judge performed an illegal u-turn to avoid a sobriety checkpoint and repeatedly informed the officers of his judicial position.  The Judge requested that the officers give him a “professional courtesy” as a result of his judgeship.  The Commission found this conduct to be in violation of the New York Rules Governing Judicial Conduct §100.2(C), which states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  (The Commission also found the judge to have violated Rules 100.1, 100.2(A), 100.4(A)(2), and 100.4(A)(3).)  Despite the judge’s twenty-year-long-incident-free record, the Commission determined that a censure was appropriate.   

In addition to the “professional courtesy” bit, the case is interesting in two further ways.  First, three members concurred in the result, but wrote separately to express remorse about the Commission’s decision to draw negative inferences from the judge’s decision not to testify at the hearing.  That is indeed a controversial inference, but the New York Court of Appeals has blessed it.  See, e.g., In re Reedy, 475 N.E.2d 1262 (N.Y. 1985).  The second interesting feature of the case is the point of the two-member dissent.  As the dissent noted, the Commission can decide either to (as here) censure a judge or remove a judge (suspension is not an option).  All members seemed to agree that a censure was too lenient, but the majority apparently believed that the next step up (removal) was too harsh.  For middle-ground conduct, then, the majority assumed that the Commission should round down (to censure), while the dissent argued that the Commission should round up (to removal). 

The full opinion can be read here.

Judge Ray McKoski has just published a thorough work on the ever-controversial appearance of impropriety standard.  Here is the abstract: 

Judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the misuse of office, public commentary on prohibited topics, and participation in certain social, religious, and political activities.

In addition to specific rules barring actual improprieties, it is commonly believed that a broader disciplinary standard is necessary to fully safeguard the public’s faith in the judiciary. As a result, under virtually every state judicial code, discipline may be imposed upon a judge for conduct which may not violate a particular rule but which is thought to create “an appearance of impropriety.”

This Article examines the disciplinary use of the appearance of impropriety standard from a theoretical and practical standpoint. The history and development of the standard is explored together with the most debated aspect of the rule—whether the “appearance of impropriety” prohibition can survive a vagueness challenge. The inescapable conclusion is that it cannot. A cost-benefit analysis further discloses that the disadvantages of the rule clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is proposed that the use of the appearance standard as a disciplinary rule should be discontinued or, in the alternative, that a limiting construction should be placed on the “appearance of impropriety” thereby supplying the specificity needed to meet due process requirements.

Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets, 94 Minn. L. Rev. 1914 (2010).

In a recent judicial discipline decision, the Louisiana Supreme Court gave a persuasive description of the importance of respectful judicial demeanor in the courtroom, particularly in cases involving pro se litigants. In re Ellender (Louisiana Supreme Court July 1, 2009). Based on a statement of stipulated uncontested material facts and stipulated conclusions of law, the Court suspended a judge for 30 days without pay for his treatment of the petition at a hearing on a petition for protection from abuse for suggesting that the pleading alleging domestic abuse was inconsequential, suggesting approval of the infliction of severe corporal punishment on a child, and acknowledging he did not appropriately address the father’s statement about whipping his child.

Most of the current justices on the court have experience on the trial bench so they understand the challenges faced by trial court judges.

Judges are called upon to render difficult decisions in sensitive and emotional matters. . . . Often a judge’s patience is tested when simultaneously confronted with crowded dockets to be managed and countless difficult decisions to be made. Litigants occasionally lash out at the judge if their side does not prevail, inappropriately casting aspersions on the judge. . . .

In donning the judicial robe, judges are not suddenly cloaked with faultlessness. Thus, judges cannot be subjected to discipline merely because someone mistakes decisiveness, forcefulness, or sternness for a lack of patience, dignity, or courtesy.

However, the justices were also able to empathize with those on the other side of the bench.

Being in court is a common occurrence for judges, but for litigants, especially pro se litigants, a courtroom appearance can be an immensely difficult experience. Litigants appear before judges to have their disputes resolved. Judges serve the public, in part, by setting an example in how to resolve these disputes in a patient, dignified, and courteous manner. If a judge acts belligerently, those before the judge believe belligerence is acceptable. Judges have an opportunity to teach by example and demonstrate those attributes which all should strive to possess.

* * * The lack of patience exhibited in this matter prevented a full consideration of the legitimacy of the allegations in the pleading, especially considering some of the complaints in the pleading were not addressed before the matter was summarily dismissed. There was a potential risk of serious harm stemming from this judicial misconduct in that the complainant was seeking protective relief from threatened violence in a domestic matter. Mrs. Warren appeared before Judge Ellender, unrepresented by counsel, asking the court for protection based on allegations of domestic abuse. The record is clear that Judge Ellender not only failed to treat this matter seriously, but he also acted in a condescending and demeaning manner toward Mrs. Warren and treated her with a lack of patience. While such behavior should not be tolerated with respect to any litigant, or attorney, the impact on domestic abuse litigants, and others who allege a need for the court’s protection, can be devastating.

The controversy about Supreme Court nominee Judge Sonia Sotomayor’s membership in several organizations prompts a review of what the code of judicial conduct does and does not prohibit.  Canon 2C of the Code of Conduct for U.S. Judges provides:  “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  As the commentary to Canon 2C explains, “membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired.”

Not all discrimination is “invidious” discrimination, however, and not all groups are organizations subject to Canon 2C.  As the 1984 ABA report on which the original version of Canon 2C was based explained, the crux is discrimination “on a basis that is odious and in historical context was a stigma or badge of inferiority.”

As an example of organizations that do not practice invidious discrimination, commentary to Canon 2C cites organizations “dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members.”  The Indiana Judicial Qualifications Commission, in an advisory opinion, stated:  “Some groups exist for the legitimate purpose of the perpetuation or celebration of cultures, historical events, and ethnic or religious identities and traditions.  They tend to be inclusive of an entire group, rather than exclusive of certain groups. . . .  Their membership limitations, rather than unfair or stigmatizing, are secondary to but inextricable from that which is being legitimately preserved or celebrated.”  Indiana Advisory Opinion 1-94.  As examples of groups with permissible membership limitations, the Indiana Commission identified the Daughters of the American Revolution, the Knights of Columbus, and the Sons of Italy, while the ABA report cited a Jewish Community Center or Polish-American Society.

The Arizona Judicial Ethics Advisory Committee stated that the victims of invidious discrimination were themselves justified in forming discriminatory organizations only to compensate for disadvantages currently suffered as a result of previous discrimination.  Arizona Advisory Opinion 94-13.  The committee stated that discrimination, for example, by a women’s organization, was legitimate if an organization could demonstrate that:  (1) there is a sex-based disadvantage suffered by its membership; (2) the intention in forming or continuing the organization is to compensate for this disadvantage; (3) the organization’s programs and policies are not based upon and do not perpetuate archaic and stereotypical notions of the abilities or roles of the sexes; and (4) the organization’s single-sex policy and programs directly and substantially help its members compensate for the previous disadvantage.

Canon 2C creates an exemption for groups that are so intimate and private that the U.S. Constitution protects them from government interference.  The Indiana Commission listed a number of factors that distinguish “organizations” from protected groups:  a more or less constant membership; professional, social, recreational, charitable, educational, or civic purposes; selectivity in membership; membership controlled by ballot or some other type of approval; by-laws or other written rules; dues, assessments, or other support; size; advertising or publicity; whether the organization has subjected itself to governmental regulation, such as a liquor license; whether it sells retail goods or services; whether it offers its services or facilities to non-members; and whether it has developed a public identity through civic or charitable activities or participation in public events.  The Commission identified mother-daughter banquets, men’s support groups, college fraternity and sorority alumni groups, girls’ basketball, or single sex fitness facilities as groups that are exempt from Canon 2C and may not even constitute “organizations” within the meaning of the prohibition.

The Committee on Codes of Conduct of the U.S. Judicial Conference (the advisory committee for federal judges) has not issued an opinion interpreting Canon 2C, but it has two opinions on membership in organizations that advance policy positions.  See U.S. Advisory Opinion 40 (1998); U.S. Advisory Opinion 82 (1998).

Mark Harrison and Keith Swisher just published a lengthy (perhaps the lengthiest) article analyzing extrajudicial comments on pending cases.  Here is the abstract:

This work explores the ethical boundaries of judges speaking to the media and others concerning their impending or pending cases. We ultimately take a rather dim view of the practice, with particular scrutiny applied to instances in which judges defend or explain their rulings in the press in response to criticism.

The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media — contacts that are unknown to (or at least practically uncorrectable by) the parties. Furthermore, a regime of extrajudicial speech fails properly to incentivize judges to explain their official actions where it counts, namely, in their rulings and opinions, not to the media or other external outlets. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially comments on anything close to the merits, the outspoken judge regrettably buys herself a one-way ticket off of the case. Therefore, unless the commenting judge has some (better) proof that the comment will benefit (or mitigate a detriment to) some legitimate cause other than herself, she generally should leave the extrajudicial commenting to third parties.

Mark I. Harrison & Keith Swisher, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 N.Y.U. Ann. Surv. Am. L. 559 (2009).  A link to the piece can be found in Articles as well. 

Given the ubiquity of the social networking web-site, it was probably inevitable, and two years after it became available to the general public, Facebook became the medium for ex parte communications between a judge and lawyer appearing in a case before him.  In September 2008, while presiding over a child custody and child support hearing, the judge and the father’s attorney designated themselves as “friends” on their “Facebook” accounts so that they could view each other’s account.  During an in-chambers meeting, the judge and the attorneys for both parties were reviewing prior testimony that suggested one of the parties had been having an affair.  The father’s attorney asked the judge if he thought the father was having an affair.  The judge stated he believed the allegations were true, but that it did not make any difference in the custody dispute.  The father’s attorney stated, “I will have to see if I can prove a negative.”

That evening, the judge checked the father’s attorney’s “Facebook” account and saw that he had posted “how do I prove a negative.”  The judge then posted on his “Facebook” account that he had “two good parents to choose from” and “feels that he will be back in court,” referring to the case not being settled.  The attorney responded by posting on his “Facebook” account, “I have a wise Judge.”  During a break in the proceedings the next day, the judge told the mother’s attorney about the exchanges on “Facebook.”  The next day, the judge wrote on his “Facebook” account that “he was in his last day of trial.”  The father’s attorney then wrote, “I hope I’m in my last day of trial.”  The judge responded, “you are in your last day of trial.”

In addition, the judge used “Google” to find the mother’s photography business where he viewed samples of photographs she had taken and found numerous poems.  In court prior to announcing his findings in the case, the judge’ recited a poem he had found on the mother’s website, with minor changes.  The judge later told the Judicial Standards Commission’s investigator that he quoted the poem because it gave him “hope for the kids and showed that [the mother] was not as bitter as he first thought.”  The judge may have visited the mother’s site four times but did not disclose his visits during the hearing.  After orally entering his order, the judge requested a bailiff to summon both attorneys to return to the courtroom and then disclosed that he had viewed the mother’s site and quoted a poem he found thereon.  On the mother’s later motion, he subsequently disqualified himself, his order custody was vacated, and a new trial was ordered.

The North Carolina Judicial Standards Commission publicly reprimanded the judge.  Public Reprimand of Terry (April 1, 2009).

In the 2007 revisions to the Model Code of Judicial Conduct, the American Bar Association added a new comment to the prohibition on ex parte communications that provides:  “The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”  The reporters’ notes explain:  “Given the ease with which factual investigation can now be accomplished via electronic databases and the Internet, the risk that a judge or the judge’s staff could inadvertently violate Rules 2.10(B) and (C) has heightened considerably.  The need for vigilance on the part of judges has increased accordingly.”

The Maryland Judicial Ethics Committee has issued an opinion advising that a judge may not ask a criminal defendant to divulge the defendant’s immigration status at sentencing or a bail hearing. Maryland Advisory Opinion 2008-43. The Committee emphasized that it was not rending an opinion on whether asking about immigration status violated substantive law. The Committee assumed that, as a matter of substantive law, a judge can consider a defendant’s immigration status if properly presented to the court. However, the Committee stated that asking about immigration status may implicate the privilege against self-incrimination, noting that “the general practice of Maryland trial judges is not to inquire of a defendant at sentencing except to clarify a matter presented and to invite the defendant to exercise the right of allocution.” The Committee also noted that a state statute requires that, before a guilty plea, the court, the state’s attorney, or the defense attorney must advise the defendant that, by entering the plea, the defendant, if not a United States citizen, “may face additional consequences of deportation, detention, or ineligibility for citizenship.” A note to that statute states that “the court should not question defendants about their citizenship or immigration status” to clarify that the statute “was not intended to put any burden on the judiciary to ascertain a defendant’s immigration status and that the advice of rights provision was added to aid the defendant in making a decision as to whether to plead guilty.” The Committee concluded:

It is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and are perceived by members of the public as involving national origin, race, and socioeconomic status. Based on the above considerations, we conclude that reasonable minds could perceive an appearance of impropriety based on a judge’s inquiry as to immigration status, at sentencing or at a bail hearing.

Lawyers can get judges in trouble and vice versa as recent synchronized lawyer and judicial discipline cases from Indiana and Ohio illustrate.

The Indiana Commission on Judicial Qualifications publicly admonished Judge Daniel Banina for entertaining and granting an ex parte petition for temporary custody without prior notice to the custodial parent or an opportunity for her to be heard.  On the same day, the Indiana Supreme Court publicly reprimanded attorney Jeffrey Price, the attorney who filed the petition with Judge Banina.  The petition had not alleged an emergency or certified the petitioner’s efforts to give notice to the mother or reasons why notice should not be required.  Public Admonition of Banina (Ind. Comm’n on Judicial Qualifications Jan. 20, 2009); In the Matter of Price (Ind. Sup. Ct. Jan. 20, 2009).  The Judicial Qualifications Commission stated: 

In the Commission’s view, there is perhaps no greater injustice than to strip a parent of custodial rights without an opportunity to be heard and in the absence of an emergency.  The Commission calls upon all judges and lawyers in Indiana to respect this fundamental notion, one the Commission and its counter-part, the Supreme Court Disciplinary Commission, attempted to convey now for several years, only to repeatedly address the same violation.

Also in January, the Ohio Supreme Court publicly reprimanded Judge John Stuard and assistant prosecutor Christopher Becker for ex parte collaboration on a sentencing order.  Disciplinary Counsel v. Stuard (Ohio Sup. Ct. Jan. 29, 2009).

After a jury found a defendant guilty of two counts of aggravated murder and recommended a sentence of death, Judge Stuard asked Becker to prepare the court’s opinion sentencing Roberts to death, gave Becker his notes on the aggravating and mitigating factors, reviewed the 17-page draft opinion written by Becker and left on his desk, and relayed corrections to Becker. 

During the sentencing hearing, defense counsel noticed that one of the prosecutors seemed to be silently “reading along” as Judge Stuard read his opinion from the bench, turning pages of a document in unison.  The defense objected.  In the sidebar discussion, Judge Stuard acknowledged that he had given his notes to the prosecution and instructed counsel to draft the sentencing order.  On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion.

By: Cindy Gray, Center for Judicial Ethics, American Judicature Society

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