Judicial Discipline Decisions

November-December 2008

Inquiry Concerning Tolby, Order (Arizona Supreme Court December 2, 2008) (www.supreme.state.az.us/ethics/Complaints/08161final.pdf) Based on an agreement for discipline by consent, the Arizona Supreme Court has publicly censured a judge for relating an inappropriate joke while chatting in the courtroom with a court clerk and another woman. On July 2, 2008, after the court calendar was complete, the judge and 2 women, one of whom was an African-American, were chatting and joking in the courtroom. The judge related a “joke” about a “colored” boy who wrote a 4-letter word on a wall and, in response to a question by a policeman about what he meant, responded that the initials stood for “Feed Us Colored Kids.”

Letter of Reprimand (Simes) (Arkansas Discipline & Disability Commission November 21, 2008) (www.arkansas.gov/jddc/decisions.html) The Arkansas Discipline & Disability Commission publicly reprimanded a judge for failing to promptly enter an order and to accurately calculate the time that the case had been ready for adjudication. The Commission noted that the matter arose from an election contest and a prompt, efficient decision was required. The Commission also noted that the judge had been publicly admonished in 2004 for putting on the cover of a music CD a picture of himself in his robes, holding a gavel, and identified as “Judge L.T. Simes” and in 2006 for personally soliciting campaign contributions from 2 attorneys.

Letter of Reprimand (McGowan) (Arkansas Discipline and Disability Commission November 21, 2008) (www.arkansas.gov/jddc/decisions.html) The Arkansas Discipline and Disability Commission publicly reprimanded a judge for failing to promptly decide several matters and to accurately reflect the time the matters had been ready for adjudication, failing to report 7 cases that had been pending for more than 90 days as required by an administrative order, and lapses of demeanor while on the bench on several occasions.

In the Matter Concerning Watson, Decision and Order (California Commission on Judicial Performance November 6, 2008) (cjp.ca.gov/pubdisc.htm) Pursuant to a stipulation, the California Commission on Judicial Performance publicly admonished a judge for (1) failing to be patient, dignified, and courteous with the parties and lawyers and becoming embroiled in a matter and (2) presiding over a bench trial in 3 consolidated unlawful detainer cases while he was a defendant in a lawsuit filed by tenants of apartment units he owned raising a similar issue. The order noted that the judge had previously resigned for health reasons and agreed not to seek or hold judicial office or seek or accept judicial assignment. . (1) The judge was presiding over a dispute between neighbors Michael Papadopoulos and Patty Hickok. There had been a nuisance lawsuit, a settlement, and reciprocal temporary restraining orders pre-dating his involvement. Papadopoulos requested a full adversary hearing, seeking a permanent injunction against Hickok. Papadopoulos was represented by Anthony Cosio. Hickok was represented by Vincent Goodwin. At the beginning of a 3-day hearing, the judge stated:

You know, counsel, both of you, what I am leading up to, what I am intimating, what I am implying, is maybe this case is no big deal. The people obviously are willing to devote a lot of their psychic energy and some of their money to doing this, but the end result, and I don’t intend to get to the bottom of it if I don’t have to, I would love to spend the rest of the day listening to these people calling each other names, but if it is to stay away from each other, to not be rude or something to each other, they have no reason to communicate, no surveillance, there is no reason for any of that. So far I haven’t heard one thing that is out of line. Why don’t we just draft an order that fits them both and I don’t have to figure out who is doing what?

While looking through the file, the judge found a booklet on safe driving, and sarcastically commented, “You might need it. Who knows. Driving safely could become pivotal with this case.” After Cosio stated that his client would not agree to any restraining order and wanted to prove that Hickok’s claims that he had a surveillance camera and used his vehicle as a weapon were fabrications, the judge engaged in the following exchange:

The Court: It is clear to me you intend to spend a lot of money on this for some -- Cosio: It is not the money. It is the principle. The Court: Could I finish my remarks. Intends to spend a lot of money on this to feel gratified, “I got her” or whatever. Like it proves something, and it doesn’t prove anything. I don’t feel like spending the afternoon listening to it. I probably will. When you two guys look me in the eye at the rates you are charging and say “we object to your ordering both parties to act with good manners and leave here,” that that won’t work for you. That is not good enough. We want to fight some more. Goodwin: Actually, I don’t object. The Court: You said that already. I am focusing on him [Cosio], and I can see by looking at his jaw he is not going to change his mind. Everybody will get a chance to name call and behave in a somehow base manner because somebody feels righteous. Cosio: May I respond to that? The Court: You could have waited until I got done. Cosio: I wasn’t sure when you were going to get done. The Court: I am irritated at this. I do not think this is good sense or good use of these resources that I govern. We have people that have real problems. People that get killed.

2 Cosio explained that the parties had attempted but failed to settle the case without the court’s assistance, that they had been ordered back for an adversary hearing, and that Papadopoulos was concerned about the safety of his children. The judge continued to press for a mutual stay-away order, and Cosio responded, “All I am saying … ” before the judge cut him off and stated:

You can call every witness you want. I think this is a great way to spend time and money. This is an example where the lawyer does not help the client, in my opinion, by trying to resolve this on a rational basis. I don’t like to be an accessory to it. I think it is a waste of time. These are the kind of lawsuits that make people mad when they get on jury service. Dumb cases in court. Cosio: If the court wants to pass the matter to hear these other matters, it is fine with me. The Court: The other matters are just as bad as this one. It is the same thing. The only thing I tell myself, the only reason I can sleep is that the only thing I accomplish is they probably don’t kill each other in the street. Mr. Papadopoulos, are you having a good time? Papadopoulos: No. The Court: You look like it. You have a big smile on your face. Now we will get to call each other names. I wish I had a sandbox.

When Goodwin objected that Cosio was attempting to get a police officer to validate another witness’s testimony, the judge sarcastically stated to Goodwin: “My estimation of you has gone way up. He is trying to get the policeman to corroborate what the witnesses have said. That is an interesting tactic. Maybe some other lawyers will learn it some way.” In response to an objection from Cosio, the judge spoke for a page and a half of transcript about the evidence and referred to a neighbor of Papadopoulos who was “a self-professed but unproven dog killer,” ending with the statement:

This is good stuff. This will help me. But I am inclined to overrule the evidentiary objection. We are going to have a mud throwing contest. Throw the mud. If it is all this weighty and this important, I say we do it. I just wonder if anybody had any authority.

When Cosio stated he would read from the deposition of a police officer, the judge stated:

Believe me, the last thing in the world I would look at unless somebody points a gun at my head is a deposition in this case. I don’t even want to hear this case, let alone read depositions. This is just kid’s day at the beach. People like to come to court and throw mud at each other.

Goodwin suggested that the next witness might be a priest, to which the judge commented, apparently to Goodwin, “Oh, he is. He is maybe praying for your salvation.”

3 After Mrs. Papadopoulos testified about an instance in which she drove past Hickok’s house and observed her running up and down waving her arms, yelling, screaming, and running toward her car, “barking and biting with her teeth,” which caused her to fear for her physical safety, the judge sarcastically characterized her testimony: “Like this other stuff, like this near death experience driving by the house with the Seal Beach Police there, I have taken that into consideration to understand her frame of mind.” Mrs. Papadopoulos testified about an instance in which she observed Hickok sitting in her idling car near the Papadopoulos’s new house (they had moved away from Hickok). On cross-examination, Goodwin asked her questions that might raise uncertainty about her observation. Cosio objected on relevance grounds to a question about the height of the house. In response, the judge sarcastically stated: “I assume it is going somewhere. If you are not interested in how high the house is, I certainly am. It is as important as anything else I have heard.” After Mrs. Papadopoulos testified that Hickok had an extra large grille in the front of her car that she could use as a battering ram and that Papadopoulos feared Hickok would use to run over her children, the judge commented, “For running children down? … I can see where they would provide that.” The judge then stated:

I mean, you were in a very dangerous situation when she tried to flag you down with the biting motion with the Seal Beach police officer and all that. You were in great fear. I was wondering why you would think of it for your children when she has some sort of child crushing thing in the front of her car and not think of it for yourself and your husband. Certainly you want him to live, don’t you?

After a witness testified about Mr. Papadopoulos’s driving abilities and the fact that he had never observed him try to run someone off the road (as Hickok claimed), the judge told counsel that he thought the testimony was not probative of anything and stated:

If you guys think it is worth my time, I am going to listen. Just because I don’t see how that is real important, I think you are going to tie it all together for me. You can call me as a witness. I have never seen him drive badly. Overruled. Is there a statue of him in Seal Beach as being a good driver or anything? The Witness: No. The Court: It is coming. Next question sir. Cosio: Have you ever seen a statue of Dr. Papadopoulos -- strike that question. Goodwin: Object to the comedy. The Court: That is my fault. Don’t blame him. If there is a statue, it is probably going to be filing a lawsuit at the counter. I need to stay alive and not have my brain turn to thick liquid to come out my ears. Goodwin: I want the record to show I don’t consider this comical and I am not happy to be here. The Court: I don’t consider it comical either. I consider the fact that we are doing it comedy. I think it is a serious misuse of public funds. It costs $10,000 a day to keep this courtroom going, and to devote it to this sort of egotism is a terrible thing. But we all try to stay sane in our own way, counsel.

4 The judge stated sarcastically to Cosio in response to an objection, “If I limited the evidence to that which was relevant, this hearing would have been over about three weeks ago.” While questioning a police officer witness, the judge engaged in the following exchange:

The Court: Sergeant Lavelle, did you say you thought this situation could be ended if they would both just agree to stay away from one another? The Witness: Yes, Your Honor. The Court: Holy cow. I wish I would have thought of that. U-turns are all life- threatening, as we know, especially in a neighborhood like this. Couldn’t the doctor have pulled into his own driveway and then backed out again and go the other way? The Witness: That seemed feasible. The Court: That is really interesting that this could all disappear if they would just agree to leave each other alone. I said that to them 100 times so far. Here it is, four o’clock, but, okay. Thank you, sir. You, unlike me, may leave.

While Papadopoulos was answering a question, Goodwin stated an objection. Papadopoulos simultaneously continued his answer, when the judge sarcastically interjected:

The Court: Could I squeeze a ruling in here? Did you hear my question? Papadopoulos: Yes. The Court: Would you answer it? Papadopoulos: Can you squeeze in a ruling? The Court: Yes. There was an objection and you started talking. I like to feel useful to the community. One of the things I am supposed to do is rule on those. Don’t you ever watch T.V.?

During his testimony, Papadopoulos explained that he had driven the same way (which also took him past Hickok’s house) when leaving his house for 12 years because it was the safest route, and he was very concerned with safety. He also said that his wife always drove that same route past Hickok’s house because the law required her to back out into the lane closest to the driveway and prohibited her from crossing the midline of the road, which would have been required to go the other way. As noted forth above, the judge had questioned the police officer about Papadopoulos’s ability to go the other way and gratuitously described such a U-turn as “life threatening.” This time, in response to Papadopoulos’s testimony about not crossing the midline when backing out, the judge said, “Your adherence to the Vehicle Code is commendable. I didn’t even know that.” The judge also later stated to Papadopoulos:

In the meantime, Doctor, I have great news. 22106 says no person shall start a vehicle, stop, standing or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety. My further research reveals your street, that residential street is not a highway, but

5 even if it was, you can do it if it is reasonably safe. So it is not like 12 years of caution is thrown out the window or anything, but you can kind of cut loose a little bit.

In response to counsel’s attempt to establish the dates of a sequence of events, the judge stated, “I know when Santa delivers. There are very few things I bring to this job, but one of them is the knowledge of the date of Christmas. I am not bragging. I just know it.” In response to an objection regarding the number of visits by Hickok’s gardener, the judge stated: “I don’t see its relevance, but I am hoping counsel is going to go somewhere with it. I am going to allow latitude which has colored this entire hearing to the point where the Evidence Code and logical relevance are but distant memories of mine.” In response to an objection from Goodwin concerning the scope of Cosio’s examination, the judge stated:

No, I’m just entertaining in my mind the thought that nothing -- none of my opinions have any affect on these proceedings anyway. I might as well not even rule on the objections. All right. Go ahead. You know, counsel, I am going to say this one time, then I am going to stop: Do you know of a judge in the State of California that wouldn’t suggest that these people stay away from one another after this hearing is over? Do you honestly know one? I don’t. I know hundreds of judges, and I don’t know a judge that wouldn’t do that. And, you know, we have another five witnesses, and I don’t know what the defense is going to be. Cosio: Your Honor, I just want to point out, put on the record I am just trying to put on my case, and that I’m just trying to elicit testimony from my client, and I would ask the court to be patient, dignified, courteous to my client. That’s all I’m asking. The Court: Well, let’s talk about that. Do you think I’ve done something this morning that’s been discourteous or impatient or unprofessional to your client? Cosio: Not this morning. The Court: Okay. I take it from that, you thought it was this -- yesterday -- last afternoon. Cosio: That’s correct, Your Honor. The Court: I thought so. First of all, let me make an admission to you counsel: In addition to being a judge, I’m also contemporaneously a human being. And as a result of that, I have certain feelings. And what I’m hearing now is what I consider to be a relatively minor dispute over barking puppies and gardeners who come before 7:00, and if you haven’t experienced that, it’s very irritating. And I have experienced it, and I know about barking puppies, as I think most of the general populous has. The reason that I got cross-ways with your client on Friday is he, in his mind, I believe, assumed some high status for some reason, because he has a Ferrari or he is a dentist or something. I don’t know. But that status is either just in his mind or it -- wherever it is, it exists outside this courtroom. In this courtroom, he is just a person, and I don’t think he appreciated that fact. He thought that I was going to be wow’ed or something, and I’m just listening to the

6 facts, which while you may not believe it, I think I can probably recite almost verbatim. … And at one point, may I remind you, your client was yelling at the top of his lungs on Friday afternoon. Do you remember that? And it was like a preacher calling for hell and damnation. This was righteous indignation. He was mad, and he wanted people to know it.

And I’m looking back at a Christmas puppy, and you can tell me about the five months if you want and the gardener that comes at 6:30 instead of 7:00. And the woman whose eyes bulged out and her teeth made an eating motion and her arms waved up and down. And maybe his wife said the grill, reinforced grill, was in order to run children down. I’ve heard all of the facts. I’ve heard this drive- around story until it’s coming out my ears. And I don’t treat it with the dignity that your client treats it. Your client treats it as [if] each one of these is a capital offense, and I don’t view it that way. I view it the way I think most people in the world would view it. It is a personality dispute and of a relatively minor nature, but to the participants, very, very aggravating.

The judge’s comments continued for several pages of transcript in which he critiqued the dispute, stating that nothing serious happened to the litigants (“in the sense of people injured or kidnapped or raped or burned houses, or I haven’t even heard a flat tire even”) and advised the litigants, “My personal advice to them is to pretend like the other party moved to New Jersey. They are just gone, and get on with it.” At one point during the judge’s comments Cosio stated:

Cosio: Your Honor, I’m just asking the court to reserve its comments until after the conclusion of this case, because the court’s comments give an appearance that you are not giving any deference to the testimony, and it also appears that you’re perhaps biased not against either one of the parties, but in general, over these kinds of cases. The Court: Well, you know, counsel, I’m not going to reserve my comments. I run this courtroom, in case you don’t know it, and I am going to continue to run it. What I am going to reserve is judgment. Cosio: Okay. The Court: And that’s all you’re entitled to.

The judge continued his comments for another page of transcript, in which he discussed why he called Papadopoulos “Mr.” instead of “Doctor,” and stated to Cosio:

You’ve made the record as well as you can make it. That I’m not being fair to you and if some appellate court reviews this transcript and says you didn’t get a fair hearing, and, you know, this was World War III and Judge Watson failed to recognize it, it was one of those incidents where it was a hundred percent wrong on one side, zero on the other, and keeping them apart was not a good solution, by mutual court orders, not a good solution, then I get reversed. So what? That doesn’t concern me. I’m calling balls and strikes up here, counsel, doing as well as I can.

7

At the end of these comments, Cosio asked for a recess so he could confer with his client, but the judge said, “No. Keep going. You said you wanted to keep going, and we’re going to keep going.” (2) Warranty of habitability was an issue in a case filed against Judge Watson by tenants of his apartment units. The case was settled while on appeal on July 28, 2006; the court of appeal entered the dismissal on August 23, 2006. In October 2006, the judge presided over 3 consolidated unlawful detainer cases in which warranty of habitability was an issue. An appellate panel concluded that his failure to disclose the lawsuit in which he was a party prevented the defendants from having a fair trial.

In the Matter Concerning McBride, Decision and Order (California Commission on Judicial Performance November 18, 2008) (cjp.ca.gov/pubdisc.htm) The California Commission on Judicial Performance publicly admonished a judge for (1) improperly advancing a trial date without notice to, or the consent of, the attorney assigned to the case; (2) improperly relieving the public defender and appointing new counsel for the defendants in several cases; and (3) making discourteous and disparaging remarks to attorneys in 3 cases. (1) At the defendant’s arraignment in a misdemeanor case of People v. Dennis Ogg on November 27, 2006, the case was set for trial on December 22, 2006. On December 20, while presiding over the master calendar, the judge assigned the Ogg case out to trial. Ogg’s trial attorney, Deputy Public Defender Michelle Tong, was not present in the judge’s court at the time. Deputy public defender Rebecca Young, the calendar deputy public defender in the judge’s court, stated she “could not accept a trial assignment on behalf of Miss Tong.” Nevertheless, the judge instructed Young to “get her [DPD Tong] up here” and assigned the matter to a trial department. The matter appeared back before the judge the following day because the defense filed a peremptory challenge against the judge who was assigned the trial. The judge assigned the case to another courtroom for trial over the objection of Young, who stated that Tong would be ready to try the case the next day – the originally scheduled trial date. When Young objected to having the trial date advanced, the judge told her that it was his prerogative to advance the case for trial. The judge contends that he advanced the trial date based upon his presumption that Ogg wanted a disposition of his case before Christmas, and the judge wanted to avoid the dismissal of the case for violating the defendant’s right to a speedy trial if the case was not tried within the statutory timeframe. In his response to the Commission’s investigation, the judge acknowledged that while presiding over the master criminal calendar, he advanced the trial date in a few other criminal cases in which the defendants had not waived their right to a speedy trial and a courtroom became available before the originally set trial date. The judge contends that he advanced the trial dates in those cases to avoid the possibility that the case would have to be dismissed if it had not been tried by the speedy trial deadline. The judge also contends that, in his role as supervising judge of the criminal courts, he had the judicial authority to manage the criminal trial docket for the proper and orderly administration of justice, and that he therefore had the authority to

8 advance a case to trial when a courtroom became available. The Commission noted that the judge cited no legal authority for this position. The Commission found that the judge’s “advancement of trial dates in disregard of the due process rights of the parties involved in the cases constituted an abuse of his judicial authority and warrants discipline.

Advancing a trial date before the scheduled trial date – especially with notice of the new trial date being given that same day – is contrary to fundamental principles of fairness and due process. The attorney assigned to the Ogg case received notice that Judge McBride had advanced the trial date on the morning of the advanced trial date. Judge McBride expected the attorney to be available for trial and the defendant to be present to commence trial even though they had not been notified of the new trial date. Moreover, witnesses had not been subpoenaed for that date.

(2) On Friday, December 1, 2006, while presiding over the master criminal calendar, the judge learned that deputy public defender Maria Lopez was not present in his courtroom that day for her assigned cases. The deputy public defender appearing on Lopez’s behalf informed Judge McBride that Lopez was in trial on another misdemeanor matter that was in recess that Friday but was to resume trial the following Monday, and she would not be available to start trial in new cases until that trial concluded. The judge contended that, if Lopez’s trial was not actually in session on December 1, 2006, she should have been present in his courtroom. One of Lopez’s matters that had been scheduled for Friday was a motion to suppress in People v. Magno. The prosecutor in that case was present with a law enforcement officer witness and represented to the court that Lopez had told him she would be available that morning. The judge was “understandably displeased,” the Commission found, that Lopez was not present and that the motion had to be continued. The following Monday, the judge called People v. Maxwell, to which Lopez was assigned. Maxwell had waived his speedy trial rights. Deputy public defender Nicole Solis appeared on behalf of the public defender’s office and told the judge that the case was trailing for trial that day. The judge responded that he was relieving the public defender in Maxwell because it was his “custom is to relieve the Public Defender if the Public Defender’s incapable of handling the Public Defender’s obligations.” While he continued to preside over the master criminal calendar, Judge McBride called other cases to which Lopez was assigned that were also trailing for trial until there was an available courtroom. Solis told him that Lopez was in trial in a different department that day but that she would stand by and the case could trail or, if no courtroom was available, there were other options, including continuing the trial date. The judge responded by relieving the public defender over Solis’s objection and appointing new counsel for Maxwell. Judge McBride then relieved the public defender and appointed conflicts counsel or private counsel on 4 additional cases that had been assigned to Lopez on which she had not appeared the preceding Friday, but on which another deputy public defender had appeared on her behalf. In another matter, People v. Black, the judge relieved the public defender because the deputy public defender assigned to the case, Stephanie Wargo, also had not been

9 present in court the preceding Friday. When deputy public defender Wargo appeared in court on the Monday calendar, she informed the court that her absence the preceding Friday was due to as a calendaring error by her office. Wargo objected to the judge’s relieving the public defender in Black and told the judge that she was present and ready to serve her client. The judge responded: “The Public Defender serves at the pleasure of the Court. If the Public Defender cannot serve the Court and the client on the day appointed, the Public Defender is relieved.” Although acknowledging that a judge has the discretion to relieve counsel on the court’s own motion over the objection of defense counsel, the Commission stated this discretion has been severely limited by California decisions and judges should exercise their power to remove defense counsel with great circumspection. Finding that there was no indication of any conflict, inadequate representation, or impairment of court proceedings caused by Lopez’s unavailability and that Wargo’s absence the preceding Friday was not “substantial enough to warrant the removal of the public defender’s office from their cases,” the Commission state that the judge’s action “in relieving the public defender in all of these cases created the appearance that he was acting out of pique and for the purpose of punishing the deputy public defenders for not appearing in his court the preceding Friday.” (3) In People v. Darryl Vaughn, the defendant was in custody when he appeared in court on December 20, 2006, having been arrested for impersonating a police officer while in a drug treatment program. When the prosecutor said he was planning to file a motion to revoke probation, the judge remarked in open court: “So we have a misdemeanor running around as a cop holding people hostage, right? That’s good. And somebody just woke up and decided to file a motion to revoke, huh?” Later in the proceeding, when a probation officer asked that a supplemental report be ordered, the judge remarked:

Judge: That’s a little difficult since he’s got a right to have a jury [trial] on the new case before that. I’m going to suggest that the district attorney get their act together by two o’clock this afternoon. How about that? Is that too much to ask? You either decide what the basis of the motion is, or not file a motion, or don’t or I’ll send this back for trial to Department 16. Public defender: Mr. Vaughn indicates he wants it to go to trial with [DPD] Razzaq. Judge: That would be a great thing to do, but – Public defender: Is that right, sir? The defendant: Yes. Judge: Now that the district attorney’s had the benefit of everybody explaining everything to them, maybe they’ll figure out what they want to do. Two o’clock?

In People v. Glenn and Battle, the co-defendants, husband and wife, were on probation for felony theft. The judge called their cases together during the December 20, 2006 criminal calendar. Glenn’s attorney asked that the 2 cases be severed and that Glenn be permitted to go to drug court. Although 1 of the prosecutors handling the case initially agreed to allow Glenn to go to drug court, a supervising prosecutor opposed severing the cases, which would have prohibited Glenn from going to drug court because

10 a drug court guideline provided that the cases of both defendants must be resolved before either defendant can attend drug court. When the judge granted the defense motion to sever, the following exchange occurred:

Prosecutor: Your Honor, it’s part and parcel of the same transaction, one’s handing the other the money from the transaction. Judge: Then why are you agreeing that she should go to drug court? Prosecutor: Well, your Honor, I am not punitive in nature, but if that’s the case, and the Court is intending to sever, maybe we won’t send her to drug court because the purposes of the [Memorandum of Understanding regarding drug court] are frustrated. Judge: A little light on this subject always reveals the truth. Motion to continue is granted. I’m so glad the public has a district attorney who’s not punitive and really sees the light here.

On January 5, 2007, while the judge was presiding over the master criminal calendar, People v. Speilman was called, and deputy public defender Young advised the judge that the defendant’s assigned public defender was in trial. There was a discussion of whether the defendant wanted to keep his attorney and go to trial later; the defendant told the judge that he did not want a new lawyer. Young told the court that 3 weeks remained before the speedy trial deadline and requested that the matter be continued for 1 week. The following exchange occurred in front of the defendant:

Judge: I’m going to ask him now. Deputy public defender: Well, he may not need to waive time. [The assigned public defender] Mr. Luce is in trial. Judge: He’s not waiving time, Ms. Young, if you understand the doctrine. Deputy public defender: I do understand the doctrine. Judge: He is balancing his right to a statutory limit to a speedy trial against his right – Deputy public defender: I understand. Judge: -- to the lawyer who has been appointed and works with him. I’m asking him now if he wants to find another lawyer or not? Deputy public defender: I am merely saying I would like him not to waive his last day yet. Judge: I don’t know if you have any business in it, but thank you for your – now I’m going to ask your clients. Do you want to come back and have me try and find you a lawyer, or Mr. Luce if possible – The defendant: No, I don’t want to waive no time. Judge: You don’t want to waive time. Then we’re back here on the 8th. We’re going to look for a lawyer. Deputy public defender: He said he doesn’t want to look for a lawyer. If the court reporter can read it back. Judge: If he’s going to assert his time waiver he’s going to be back here on the 8th.

11 Deputy public defender: He’s not asserting his time waiver. He’s asserting and he also wants Mr. Luce as his lawyer. Judge: January 8. Thank you.

Public Admonishment of Moruza (California Commission on Judicial Performance December 16, 2008) (http://cjp.ca.gov/) The California Commission on Judicial Performance publicly admonished a judge for her remarks in numerous cases and for appearing to set distant trial dates in 2 cases to reflect her view that the cases should not be tried. (1) In 1 one case, when a defendant complained about the public defender failing to submit a retest, the judge asked, “Well, are you paying her?” When the defendant said no, the judge responded, “You get what you pay for. If you want really good service, then you pay an attorney $10,000 to do this.” In a second case, a deputy public defender asked the judge to call 3 matters in which she had “quick progress reports,” but the judge declined to do so, asking instead if any private counsel were ready. When the judge did begin calling public defender’s cases, she told the public defender, “I understand your clients were on time, but those who have attorneys that they’re paying go first and those who have a free attorney go second and it’s just the way it works here. . . . That’s just the way it’s run here. You get what you pay for. You’re paying nothing here.” The Commission found that the judge’s remarks “suggested that she believed that indigent defendants were entitled to receive, and consequently did receive, legal services and court access inferior to that provided to defendants who could afford to pay attorneys.”

The judge’s comments conveyed the message that defendants who do not pay can expect to receive legal services inferior to those provided by private counsel, and that public defender clients get nothing because they pay nothing. The remarks could be expected to have a negative impact on the attorney-client relationship, and to undermine confidence in the criminal justice system. In addition, the comments reflected a lack of patience and courtesy, and conveyed bias.

(2) The judge commented that a domestic violence case was a “crazy waste of time” and that pursuing it amounted to “stupidity,” stating to a prosecutor that she had lived about 30 years longer than the prosecutor and knew “a lot more about relationships and life and the court system.” The Commission found that the judge’s statements “suggested abandonment of the judicial role and embroilment, and appeared impatient and discourteous. . . , inappropriately personal, undignified and demeaning . . , and suggested a bias in domestic violence prosecutions.” (3) In another domestic violence case, the judge asked “Is this another case where we’re going to ruin the relationship between the victim --?” (4) In another domestic violence case, the judge made a remark to counsel in chambers to the effect that she had tried to slap her husband once, that he had been quicker and slapped her back, and that she had never tried to slap him again. The context of her remark was her expression of the view that the prosecution should not be pursuing the case described in section 2, above. On another occasion, the judge told counsel that

12 she had once called the police on her husband for domestic violence. The Commission found that the judge’s remarks appeared inappropriate and undignified and suggested a lack of impartiality in domestic violence cases. The judge recognized that statements about her own life experience were not appropriate and assured the Commission that she would not in the future share personal information in her role as a judge. (5) In a felony assault case in which a defendant was accused of stabbing a 17- year-old in the arm in response to crude comments the victim and others shouted at him, the judge stated that her son might have reacted in a similar way in that situation. (6) In an assault case in which the defendant had beaten a man who was having an affair with his wife and had slept with his 16-year-old daughter, the judge stated that, in the past, if someone did what the defendant did, the matter “wouldn’t have gone any further,” there wouldn’t have been felony convictions or “all kinds of expenditures of taxpayers’ money;” and “Unfortunately, we have the system of criminal justice that you’re not allowed to do that anymore. Some people would say our system of criminal justice is immoral because of that.” The Commission found these comments suggested the view that prosecution of such cases is an unwise expenditure of public funds, suggested that the judge views the criminal justice system as “immoral” insofar as it requires punishments such conduct, and appeared to reflect disdain for the legal system. (7) In a case in which a man was charged with killing a mountain lion, the judge referred to the killing of unborn babies, made a statement to the effect that her father was also an ornery old guy, referred to her views of how animals might experience pain and to her personal experience, and stated to the prosecutor on the record, “I want to deal -- you can win your case maybe, maybe not, but let’s not take an old man and just rake him over the coals for something – I don’t know, maybe he didn’t know it was not okay, you know.” (8) During a contentious hearing on a motion to suppress, the judge questioned a police officer about his age, allergies, and smoking habits to gauge whether he had been able to smell from outside a vehicle a small amount of marijuana that had been found in a plastic bag in a closed area inside the vehicle. At sidebar, when the deputy district attorney said that he could smell the marijuana from approximately 15 feet away, the judge responded, “How old are you? Eighteen?” After the deputy district attorney expressed the view that the judge had taken an “amateurish” approach to making a factual determination, the judge responded, “You’re the amateur.” (9) At a hearing on a defense motion for continuance of a murder trial, friends and family of the victim sat in the courtroom, wearing T-shirts with a picture of the victim. As they filed out of the courtroom at the end of the proceedings, 1 of them turned in the judge’s direction and interjected, “Another wasted day.” The judge ordered the woman to stand before the bench and asked, “Did you graduate from high school?” When the woman said that she had, the judge asked whether she had taken any civics classes. When she said that she had not, the judge responded, “That’s why you’re ignorant.” The judge said, “The public’s safety has been ensured. This defendant is not getting out … if you want to go back to the days when we strung people up before a trial, you can go back there on your own.” The judge ordered the woman to apologize to the court, which she did. (10) On March 1, 2007, a domestic violence case that was approximately 10 months old and had been set for trial twice, came before the judge for pretrial conference.

13 The deputy public defender asked that the conference be continued for 2 weeks so that he could consult an immigration specialist. The judge noted a concern that the victim was using the criminal courts for advantage in a family law case. The judge then set the trial for November 19 although the prosecutor had asked for a date no later than June. The Commission found that the judge gave the appearance that she set the distant trial date because she thought the case should not be tried. (11) In the case involving the killing of the mountain lion, the judge set a trial date for over 8 months away while commenting about the prosecution’s taking an “old man” and raking him “over the coals” for something he possibly “didn’t know … was not okay.” The Commission found that the judge’s setting of the distant trial date appeared to reflect her view that the case should not be tried.

Inquiry Concerning Allen, 998 So.2d 557 (Florida 2008) Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court ordered a court of appeal judge to appear before it to be publicly reprimanded for filing a concurring opinion in which he accused a fellow appellate judge of judicial corruption based on unverified facts from outside the record and motivated by his dislike of the other judge. W.D. Childers, a former state legislator, appealed his conviction on charges of bribery to the First District Court of Appeal. The case was blindly assigned to a 3-judge panel, consisting of Chief Judge Kahn, Judge Ervin, and Judge Van Nortwick. After oral arguments, the 3-judge panel voted unanimously to reverse Childers’ conviction, and Judge Kahn was assigned to author the opinion. After his proposed opinion was circulated to all the judges on the court, Judge Allen sought out another judge to talk to Judge Kahn about recusing himself. Judge Kahn told that judge that he saw no reason to recuse himself. After further discussion within the court, a revised 2-to-1 opinion reversing the conviction was circulated to all the judges. Before the new opinion was released, 1 judge circulated a memorandum urging en banc review. Subsequently, in an en banc decision, the First District affirmed Childers’ conviction by a 10-to-4 vote. There were 9 different opinions because the judges disagreed about the decision to proceed en banc. Judge Kahn wrote 1 of the dissenting opinions, expressing his view that the court should not have granted en banc review. Following the release of the en banc decision, Childers’ attorney moved to certify certain questions to the Florida Supreme Court. Judge Allen filed an opinion concurring in the decision to deny certification. In the opinion, he wrote:

During his tenure as governor, Lawton Chiles appointed nine judges to this court. The very first of these appointments went to Fred Levin’s 39 year-old law partner, Charles Kahn. It is certainly possible that neither Judge Kahn’s senior law partner, Mr. Levin, nor Mr. Levin’s well-placed friend, Senator Childers, exercised their reputed considerable influence with their friend, Governor Chiles, in seeking Judge Kahn’s appointment to this court. It is even possible that Judge Kahn’s relationship with the governor’s friend, Mr. Levin, had nothing to do with the governor’s decision to appoint Judge Kahn. But a member of the public familiar with the reported relationships between these persons, and also familiar

14 with the realities of the political process, would not be considered unduly cynical to doubt these possibilities.

Less suspicious members of the public familiar with the information contained in the articles quoted above and also familiar with Judge Kahn’s former association with Mr. Levin and his firm would have found it inappropriate for Judge Kahn to have participated in the case. And more suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers, thus allowing them, once again, to “snooker the bastards.”

After Judge Allen circulated his proposed concurrence prior to its issuance, 1 judge told him that releasing the opinion would affect him more than it would Judge Kahn. Although 2 judges believed that the opinion was a reasonable explanation of why Judge Allen voted for an en banc consideration and was not a personal attack on Judge Kahn, a majority of the judges believed that the opinion was inappropriate and suggested that Judge Kahn was corrupt. 2 judges testified that they believed the opinion was also unnecessary because the case was, for all intents and purposes, over by the time Judge Allen wrote his concurring opinion. Another judge testified that he showed Judge Allen a proposed 1-sentence per curiam denial of Childers’ motion for certification. However, Judge Allen refused to sign the proposed order and said, “It’s time for them to get theirs.” The judge understood “them” to mean Judge Kahn and Judge Wolf, who had also dissented from the en banc review. Another judge believed that the opinion was an abuse of power and that Judge Allen wrote the opinion to “settle a score.” The court rejected the judge’s argument that there was no clear and convincing evidence to support the Commission’s findings that his opinion was motivated by his dislike of Judge Kahn, that the opinion was a personal attack on Judge Kahn, and that the opinion suggested that Judge Kahn was corrupt.

Although there is no direct evidence presented that animus was the motive for Judge Allen’s concurring opinion, motive and intent are generally proven through circumstantial evidence. Many of the judges who testified at the final hearing testified that Judge Allen had a genuine dislike for Judge Kahn and did not have respect for Judge Kahn. When it was Judge Kahn’s turn to become the chief judge, Judge Allen solicited other judges to run against him in an election instead of continuing the seniority system for determining the chief judge. In soliciting these judges, Judge Allen explained that he did not feel that Judge Kahn was fit to be a chief judge and did not have the proper character traits. Judge Allen even admitted at the final hearing that he does not have a lot of respect for Judge Kahn. Thus, even before the Childers case, it is obvious that Judge Allen harbored ill will towards Judge Kahn.

Rejecting the judge’s argument, the court concluded that the view of Judge Allen’s fellow judges about whether the opinion violated the code was not determinative of whether a violation occurred. The court noted that, at the time the concurring opinion was published, the en banc court had already affirmed Childers’ conviction by a vote of

15 10-to-4 and, thus, it was already assured that Judge Kahn would not cast a deciding vote reversing the conviction. The court also stated:

A review of the language of the concurring opinion further demonstrates that Judge Allen was motivated by his animus towards Judge Kahn and, based on this animus, he personally attacked Judge Kahn and accused Judge Kahn of corruption. In his concurring opinion, Judge Allen inserted three old newspaper articles that explained a connection between Childers, Fred Levin, and Governor Lawton Chiles. He brought Judge Kahn into the picture based on Judge Kahn’s prior relationship with Fred Levin in the practice of law. Judge Allen then creatively suggested corruption on the part of Judge Kahn by stating, in the third person, the possibilities of bias in the negative.

At the hearing, Judge Allen admitted that he did not have personal knowledge of the facts in the newspaper articles he included in his opinion, that those articles did not mention Judge Kahn’s name, and that he was not familiar with any relationship between Childers and Judge Kahn. In his opinion, Judge Allen failed to mention that Judge Kahn was appointed to the court well before Childers, Levin, and Chiles were involved in the tobacco litigation or that the Levin law firm did not represent Childers in the case, “merely assum[ing] that because Fred Levin, Childers, and Governor Chiles had professional relations and Judge Kahn had worked with Fred Levin before 1991, that Judge Kahn may have paid Levin back for past favors with his vote in Childers. The court concluded:

In essence, Judge Allen accused a fellow appellate judge of judicial corruption based on unverified facts that came from outside the record and were not a part of the Childers case. Although Judge Allen asserts that he wrote the opinion to simply explain why he voted in favor of an en banc consideration, we find that Judge Allen went beyond this explanation and launched an unnecessary personal attack on Judge Kahn based upon his dislike for him. Judge Allen may not have been solely motivated by his dislike for Judge Kahn, but it is obvious from the language of the opinion that his animus towards Judge Kahn played a significant part in his decision to write the opinion.

Like the JQC, we conclude that Judge Allen violated Canon 1 by using his opinion-writing power not only to personally attack another appellate judge of the same court, but also to accuse that judge of judicial corruption based on unverified facts that were outside of the record.

Judge Allen’s action of writing and releasing his concurring opinion was not only harmful to Judge Kahn because it accused him of corruption based on unverified facts, but it was also harmful to the integrity of the First District. The proliferation of newspaper articles and public commentary statewide after the publication of the Childers opinion was a clear indication that the opinion did not “promote public confidence” in the judiciary but instead had the opposite effect.

16 Finally, by not writing a reasonable explanation of why he voted for an en banc consideration and, instead, using his power of the pen to personally attack another appellate judge, Judge Allen violated Canon 3B(5). By writing and publishing this opinion, Judge Allen created an impression that he would have difficulty performing his judicial duties fairly and without bias.

Stating “while judicial independence is critical to the functioning of the judiciary, it is not unlimited,” the court rejected the judge’s argument that “to question by threat of sanction the reason for, the wisdom of, or the motive behind a decision constitutes a gross intrusion into judicial independence and will have a chilling effect on judges carrying out their duties.”

Generally, appellate judges are free to write almost anything in their opinions regarding the decision of the case or the facts and law involved in the case. However, the discussion must be germane to the case at bar and the facts that are within the record of the case. In the instant proceeding, Judge Allen did not confine his opinion to the facts that were within the record of the Childers case; instead he used extra-record materials to personally attack Judge Kahn’s decision to not recuse himself from the case and to accuse Judge Kahn of corruption. In addition, he failed to include vital facts that could have put doubt on Judge Allen’s assumption that Judge Kahn had cast a corrupt vote. This type of action in a judicial opinion cannot be condoned, nor can it be protected by judicial independence. An appellate judge cannot use his opinion-writing power to inappropriately personally attack another appellate judge by accusing him of a crime.

The court did caution that its opinion “should not be viewed as a license for the JQC to judge and evaluate judicial opinions.”

Often judges use intemperate or colorful language in their evaluation of a fellow judge’s opinion or reasoning. The choice of language used in such instances may not be subject to scrutiny. However, Judge Allen’s opinion was not one of intemperate or colorful language but crossed that line by falsely accusing Judge Kahn of corruption and using unverified statements from materials outside of the record of the case.

In the Matter of Scheibenberger, Order (Indiana Supreme Court November 20, 2008) Accepting a statement of circumstances and condition agreement for discipline, the Indiana Supreme Court suspended a judge for 3 days without pay for disrupting a sentencing hearing before another judge and confronting the defendant’s family. The order does not describe the misconduct; this description is based on the agreement. On November 30, 2007, the judge suspended his court session and proceeded to the courtroom of Judge Frances Gull to observe a sentencing hearing for a man sentenced as a felon in possession of a firearm, who was given a 4-years sentence to be served in work release. Judge Scheibenberger sat in the gallery wearing his judicial robe. After

17 the sentencing hearing concluded, Judge Scheibenberger moved to the front of the gallery where 2 deputy prosecutors were standing. In response to a statement during the sentencing about the defendant, the judge stated to the deputy prosecutors, “law-abiding citizen, my ass!” or words to that effect. He also told the deputy prosecutors that the defendant was a “drug dealer.” 3 members of the defendant’s family were seated in the front row of the gallery. Judge Scheibenberger turned to them and asked, “Are you related to that piece of shit? Law-abiding citizen, my ass! He’ll get what’s coming to him” or words to that effect. Judge Scheibenberger then left the courtroom. Judge Scheibenberger’s son Samuel had died accidentally on August 19, 2007. Judge Scheibenberger believed at the time that the defendant being sentenced in Judge Gill’s court had a tangential or indirect role in his son’s drug use, which use contributed to his death. Judge Scheibenberger did not attend the sentencing hearing with the intention of confronting the defendant to his family but only to observe. In mitigation, the agreement noted that the judge reacted as a grieving parent and had cooperated fully with the Commission, accepted responsibility for and was remorseful for his conduct, and had undertaken appropriate measures to address his grief.

Inquiry Concerning Mitchell, Order (Kansas Commission on Judicial Qualifications November 21, 2008) The Kansas Commission on Judicial Qualifications ordered a judge to cease and desist from voluntarily testifying as a character witness. The judge had testified as a character witness in a criminal proceeding. He acknowledged that it was a mistake to testify voluntarily and expressed regret.

Yost v. Stout (U.S. District Court for the District of Kansas November 16, 2008) In a judge’s challenge to several provisions in the Kansas code of judicial conduct, the U.S. District Court for the District of Kansas (1) upheld the clause prohibiting a judge or judicial candidate from publicly endorsing or opposing another candidate for public office but (2) held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. (1) The court disagreed with the plaintiff’s argument that whether a candidate should be elected is a disputed political issue and, therefore, an endorsement is an “announcement” protected by the U.S. Supreme Court decision in Republican Party of Minnesota v. White. The court stated that “the endorsement clause clearly restricts speech for or against particular parties,” not speech-related to issues. Applying strict scrutiny, the court concluded that “the endorsement clause serves the compelling state interest in a lack of bias toward particular parties to a proceeding, or the appearance of such bias.”

When a case arises in front of a judge who has endorsed one of the parties for public office, there is at least an appearance that the endorsed party is more likely to win based on favoritism toward that party. The endorsement clause is narrowly tailored to eliminate that scenario. The endorsement clause, while limiting the judge’s or judicial candidate’s ability to publicly endorse other candidates for

18 political office, still allows for private endorsements and for endorsements of candidates for the same judicial office in the election that the speaker is a part of.

The court also concluded that the endorsement clause was not overbroad, noting that other provisions in the code of judicial conduct allow judges and judicial candidates “a certain amount of free association in the context of judicial elections.” The court found that the state has a compelling interest in impartiality or the appearance of impartiality defined as openmindedness, noting that the U.S. Supreme Court had stopped short of doing so. (2) The court held that the solicitation clause is not “narrowly tailored to serve the state’s interest in lack of the appearance of bias toward parties because the public’s perception of judicial bias is unlikely to be highly affected by the use of a committee to solicit funds.” The court stated that eliminating judicial elections and the recusal canon were less restrictive alternatives that eliminate the potential for actual and apparent bias against parties without restricting content-based speech. The court also found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that the solicitation clause was overinclusive because “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”

Kansas Judicial Review v. Stout, 196 P.3d 1162 (Kansas 2008) The Kansas Supreme Court answered the 5 questions certified to it by the 10th Circuit Court of Appeals.

1. Does a judicial candidate violate Canon 5A(3)(d)(i) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues? Answer: Perhaps, depending on the questions asked.

2. Does a judicial candidate solicit “publicly stated support” in violation of Canon 5C by personally collecting signatures for his or her nomination petition? Answer: Yes.

3. Does the definition of “the faithful and impartial performance of the duties of the office” in Canon 5A(3)(d)(i) include all conduct relevant to the candidate’s performance in office? Answer: Yes.

4. Is the definition of “appear to commit” in Canon 5A(3)(d)(ii) limited to an objective appearance of a candidate’s intent to commit himself or herself?

19 Answer: Yes.

5. Does the definition of “publicly stated support” in Canon 5C(2) include endorsements of a candidate? Answer: Yes.

The 10th Circuit had certified the questions in an appeal from a preliminary injunction against enforcement of the pledges and commits clauses and the “publicly stated support” portion of the solicitation clause in the state code of judicial conduct. Kansas Judicial Watch v. Stout, 519 F.3d 1107 (2008). (1) Noting dictionary definitions of the terms, the court stated “there is a qualitative difference between stating or announcing one’s views on one hand and pledging or promising a particular course of conduct with respect to those views on the other.” The court held that the pledges and promises clause “prohibits a candidate for judicial office from making pledges or promises regarding a particular controversy or regarding certain results in a particular case that is bound to come before the candidate as judge.” The court concluded that “judges and candidates for judicial office may choose to answer issue-related questionnaires (though they are not in any way required to do so) to the extent that the questionnaires call for the candidate’s personal views on disputed legal or political issues,” but that they are prohibited “from answering issue-related questions . . . when giving responses would bind the candidate as a judge to a resolution of a particular case, controversy, or issue within a particular controversy.” The court stressed “that in answering any questionnaire, it is advisable -- as the code’s comments explain -- that a candidate who makes a public statement ‘should emphasize ... the candidate’s duty to uphold the law regardless of his or her personal views’ and to remain ever mindful of the impartiality that is essential to the judicial office.” The plaintiffs argued that the commits clause could not be interpreted to permit a judicial candidate to answer an issue-related questionnaire “without doing violence to the intent of this court in adopting the canon in question.” The plaintiffs further argued that, by prohibiting commitments on “issues,” the clause “essentially transform[ed] the commits clause into an announce clause, which was struck down by the United States Supreme Court in White.” The court rejected those arguments:

“Commit” connotes a similar meaning to “pledge” or “promise.” “To commit” means to “obligate or bind to take some moral or intellectual position or course of action” or “to pledge to some particular course or use: contract or bind by obligation to a particular disposition.” Webster’s Third New International Dictionary 457. If the term is construed in accordance with its common definition, it becomes clear that the term invokes more than the mere announcement of an opinion. Narrowly construed, the commits clause prohibits judicial candidates from making statements that bind them to a particular disposition with regard to a particular issue, a particular case, or a particular controversy bound to come before the candidate as judge.

Noting that other canons allow judges to “speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of

20 justice and non-legal subjects,” the court stated it was “ difficult to reconcile this provision of the code -- which encourages debate on substantive legal issues -- with the plaintiffs’ position that the commits clause prevents judges and judicial candidates from commenting on any disputed legal or political issues.” The court concluded its interpretation “strikes a balance between the canons’ encouragement of judges’ engagement and participation in important legal discussions with the judges’ primary responsibility of fair and impartial adjudication of disputes coming before them.” The court stated it was “virtually impossible” to definitely answer the first question because “questionnaires ask issue-related questions with various degrees of specificity and require various degrees of commitment from those who respond.”

For example, it would seem that a candidate’s decision to respond to a questionnaire asking, “What is your stance on abortion?” is qualitatively different under the code from a candidate’s decision to respond to a question, “Do you vow to overturn Roe v. Wade?” While an answer to the first of these questions would likely be a permissible announcement of a personal view on a disputed legal issue, an affirmative response to the second question would impermissibly bind a candidate to a particular legal action.

A second, perhaps less contentious example -- though of equal importance when considering a judge’s duties to decide cases fairly and impartially -- might involve a survey that asks whether a judicial candidate would ever grant a downward departure sentence in a criminal conviction for abuse of a child. If a candidate chose to respond to this question substantively -- and particularly if the candidate answered in the negative -- the candidate’s response would violate even our narrow interpretations of the pledges and commits clauses.

(2) The court stated, “that in the abstract, it may theoretically be possible that signatures on a nominating petition would not” constitute support because the signature could “mean that the signor generally supports people participating in the political process or running for a judicial office.” However, a Kansas statute requires that a nominating petition indicate that a signor “declare[s] that I intend to support the candidate herein named and that I have not signed and will not sign any nomination petition for any other person, for such office at such primary election.” The court concluded that, when read in conjunction with the solicitations clause, the plain language of the statute “makes it clear that by personally asking someone to sign a nomination petition, a judicial candidate is “personally solicit [ing] ... publicly stated support” in violation of Canon 5C(2). (3) The court rejected the plaintiffs’ argument that the “pledges clause prohibits judicial candidates from making any pledges or promises relating to judicial philosophy or anything else that would influence their actions as a judge.” The court noted the argument was inconsistent with its “conclusion that general statements relating to a candidate’s opinions as to disputed issues are permissible under the pledges clause” and with its holding in a 1975 case that candidates could make statements regarding their “health, work habits, experience and ability” because such matters were “of legitimate concern to the electorate who must make the choice.”

21

We emphasize that the types of statements that the plaintiffs claim to be barred by the pledges clause -- statements regarding judicial philosophy or statements that a particular candidate would be tough on crime -- are not inconsistent with a judge’s duty to faithfully and impartially perform the duties of judicial office. A judge’s identification of himself or herself as a strict constructionist does not mean that the judge cannot be impartial and does not guarantee a particular result in a case any more than any other judicial philosophy might. A statement that a judge will be tough on crime does not mean that the judge will not or cannot apply the law fairly and impartially. It is only when a judge’s or judicial candidate’s statements bind that person’s resolution of the cases that would come before him or her that the conduct becomes impermissible under the pledges clause.

The court concluded that the “faithful performance of the duties of the office” includes “all conduct relevant to the judge’s official actions -- from judicial philosophy when deciding cases to work habits to education and ability.” (4) The court rejected the plaintiffs’ argument that the commits clause involves a subjective analysis and is therefore unconstitutionally vague, concluding that the prohibition requires an objective analysis of whether the statement is a commitment from the perspective of a reasonable person with knowledge of all of the circumstances. The court noted that “taken to its logical end, the plaintiffs’ argument would imply that any regulation of judicial speech would violate the First Amendment, as a listener could always understand the speech in the wrong way,” an “extreme view unsupported by the case law.” (5) Concluding that “support” and “endorsements” are synonymous, the court held that, “because the solicitations clause explicitly prohibits judges and judicial candidates from personally soliciting ‘publicly stated support,’ the clause necessarily prohibits judicial candidates from personally soliciting endorsements. Such solicitations must be delegated to the candidate’s campaign committee.” However, the court did state that judges and judicial candidates may respond to requests from newspapers or other media sources regarding their viewpoints on disputed issues, as long as such responses do not otherwise violate the canons, even if the exchange results in an endorsement because “the candidate is not actively seeking support or endorsement in violation of the canons.”

In re Freeman, 995 So. 2d 1197 (Louisiana 2008) The Louisiana Supreme Court suspended a justice of the peace from office without pay until the end of his term for failing to resign his office when he became a candidate for the non-judicial office of police juror. The judge’s term ends on December 31, 2008. The court also found certain provisions of La. R.S. 42:39 unenforceable because they conflict with Canon 7I of the code of judicial conduct. The Judiciary Commission had recommended removal. The court also ordered the judge to pay the Commission $458.50 in costs. While serving as a justice of the peace, the judge qualified to run in the October 20, 2007, election for the office of parish police juror. At no time prior to or after

22 qualifying to run did the judge resign his position as justice of the peace. On September 12, the Office of Special Counsel received a complaint signed by an anonymous “concerned citizen” questioning whether the judge was “above the law” in running for a non-judicial office while still holding his judicial office with 3 photographs of campaign signs advertising the judge’s candidacy for the seat on the police jury. Special Counsel sent the complaint to the judge and invited him to submit a response. In his response, the judge admitted that he had been a candidate for the office of police juror in the October election, but stated he “was not aware of any violation” of the code of judicial conduct. At the hearing before the Commission, the judge testified that he did not win the primary election, but that, if he had, he would have resigned as justice of the peace. When asked about his knowledge of “a rule that required justices of the peace or judges to resign, Rule 7I of the code of judicial conduct,” he replied, “I didn’t understand it.” The Attorney General’s office conducts the training for justices of the peace. At Judge Freeman’s training, another justice of the peace had asked whether they could run for non-judicial office. The Attorney General’s representatives said it was not clear. The judge testified that, when he decided to run for the office of police juror, one of his friends discussed whether he needed to resign with a state representative, who was also an attorney, who reportedly said the justice of the peace did not have to resign. Further, the judge testified that he did not resign or withdraw his candidacy when he received the complaint from the Office of Special Counsel because he was “planning on winning” the police juror election and resigning as justice of the peace. The court noted that there was apparently some confusion over whether justices of the peace must resign when they run for non-judicial office because a statute purports to except justices of the peace from a statutory rule requiring other judges to resign when they become a candidate. Noting that the reasons for the resign-to-run rule in the code of judicial conduct apply with equal force to justices of the peace, the court held that Canon 7I applies with equal force to justices of the peace and that Canon 7I “is controlling and cannot be made to yield to a legislative enactment that conflicts with this authority.” The court agreed with the Commission that the judge should not be allowed to benefit from his misconduct by retaining his office when he should have resigned it but concluded that, considering that there was some ambiguity in the law, his misconduct did not warrant removal, which would preclude him from becoming a candidate for judicial office for at least 5 years.

In the Matter of Murphy, 897 N.E.2d 1220 (Massachusetts 2008) The Massachusetts Supreme Judicial Court publicly reprimanded a former judge for the 2 letters on judicial stationery he sent the publisher of the Boston Herald. In August, the court had entered an order in a different matter accepting the stipulation that the judge was permanently disabled and will not sit as a judge in Massachusetts. Prior to the finding about disability, the Commission had recommended that the judge be censured, suspended for 30 days, and fined $25,000 for the letters. The court also assessed costs. A jury found in the judge’s favor in a libel lawsuit, returning a verdict against the Boston Herald for $2,090,000 (reduced by the trial judge to $2,010,000). After the verdict, the judge sent Philip Purcell, the publisher of the Herald, 2 letters on court

23 stationery. The first letter told Purcell not to bring the Herald’s counsel to a proposed meeting and not to tell counsel about the meeting. The second letter stated, repeatedly and emphatically, that the Herald had no chance of prevailing on appeal. The defendants filed letters in the trial court in support of a motion to vacate the judgment. The next day, excerpts from the letters were published in the print edition of the Herald, and full copies of the letters were published in the Herald’s online edition. The court concluded:

It is beyond serious dispute that the letters sent by Judge Murphy do not promote public confidence in the judiciary. Judge Murphy concedes that he should not have used judicial letterhead. But more than stationery is at issue here. Although a judge is not prohibited from communications related to personal litigation, including those in pursuit of settlement, permissible communications must reflect the standards required to be followed by a judge both on and off the bench. . . . In sending the letters at issue, Judge Murphy did not meet the high standards required of judges. . . . To a reasonable person, this content, combined with the emphasis and the language selected by the judge, could be viewed as an attempt by a judge to exert inappropriate pressure. For a sitting judge to state with repeated emphasis that he knows with complete certainty what will happen in a case is a misuse of the power and prestige of judicial office; the judge’s use of an official court stationery envelope to mail the message exacerbated the misuse. Viewed as a whole, considering content and tone, the judge’s two letters plainly crossed the line between permissible and inappropriate communication.

Noting that both the hearing officer and the Commission found that Purcell did not feel threatened or intimidated by the letters, the court stated that the impact on Purcell was not determinative because “the test for imposition of sanction for violation of this Canon is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” The court agreed with the Commission and the hearing officer that any belief by the judge that the letters would be confidential was unreasonable and that, “even apart from their publication, the mere sending of letters with such content and tone fails to uphold the standard required of a judge.” The court concluded it was not necessary to reach several issues raised by the judge and the Commission, for example, the judge’s argument that, in finding willful misconduct, the Commission improperly substituted its judgment for that of the hearing officer who found that Judge Murphy had not engaged in willful misconduct, because these determinations would make no difference in the sanction we impose. The court stated it also took into account that the judge’s conduct, although inappropriate, was extra-judicial, did not involve dishonesty, corruption, or illegality; and both the Commission and hearing officer found that the judge and his family were under very substantial stress because of the articles in the Herald and their aftermath.

In re Steenland, 758 N.W.2d 254 (Michigan 2008) Based on a settlement agreement, the Michigan Supreme Court censured a judge and suspended her from office for 90 days without pay for driving while intoxicated. On

24 June 7, 2008, the judge was operating a motor vehicle while intoxicated after consuming beer. On July 17, the judge pleaded guilty to, and was convicted of, operating a motor vehicle while visibly impaired.

In re Hultgren, 758 N.W.2d 258 (Michigan 2008) Rejecting the recommendation of the Judicial Tenure Commission and adopting the findings of fact and conclusions of law of a master, the Michigan Supreme Court held that the judge had not committed misconduct meeting in chambers with a party in a case pending before another judge, drafting a letter about the case to counsel for the opposing party, and referring to the attorney as “a lawyer in a credit card collection mill” in a letter to the judge presiding over the case. The Commission had recommended that the judge be publicly censured and suspended for 60 days without pay Ali Beydoun telephoned the judge’s office and requested an appointment. The judge met in his chambers, for approximately 15 minutes, with Ali Beydoun, Hussein Dabaja, and Frank Dabaja (Hussein’s cousin). The judge had a casual relationship with Beydoun and did not know the Dabaja cousins. Hussein claimed that he was a victim of mistaken identity regarding a credit card debt that occurred before his entry into the United States. He presented the judge with documentation to support his claim, including a passport and social security card. The judge requested his secretary to search the court computer system for any cases involving Hussein Dabaja. The court record indicated a case titled Asset Acceptance Corporation v Hussein Dabaja that was assigned to Judge Mark Somers and marked “Closed.” The court record also indicated that the plaintiff was represented by Thomas Hocking. The judge telephoned Hocking’s office, spoke with Hocking’s litigation secretary, and faxed a letter and the documents presented to him by Hussein Dabaja to Hocking. The letter was written on the judge’s official court stationery. Several months later, the judge received 2 memos from Judge Somers. In response, he sent a letter to Judge Somers referring to Hocking as “a lawyer in a credit card collection mill.” The court agreed with the master’s finding that the relationship between the judge and Ali Beydoun, at best, was that of “acquaintances,” that he had no social, business, or other relationship with the Dabajas, that his meeting with his constituents was not misconduct or an ex parte communication violation, and by calling and writing Hocking’s office, he was acting as, not as an intervener, but as a conduit to prevent a miscarriage of justice. Also agreeing with the master, however, the court stated that the judge’s actions reflected poor judgment and cautioned him to more carefully conform his actions to the rules and provisions that guide judicial conduct. One justice dissented from the finding that there was no misconduct, although the justice argued that his actions merit no more than an admonition.

Commission on Judicial Performance v. Martin, 995 So.2d 727 (Mississippi 2008) Rejecting a petition of the Commission on Judicial Performance to dismiss a previous order of interim suspension pursuant to a memorandum of understanding with a judge, the Mississippi Supreme Court held that the Commission does not have the authority to settle a complaint without a recommendation to the court. Noting that the

25 judge had resigned, however, the court dismissed as moot the order of interim suspension. On September 18, 2007, the Commission filed a formal complaint against Judge Judy Martin, alleging that she had, in April 2007, in apparent association with a domestic dispute, issued a warrant for the arrest of Steve Harzog for the offense of “contempt of court and ordered that Harzog be held without bond with any probable cause by affidavit, or otherwise, evident in the record and refusing to set a bond for Harzog unless he agreed to allow the judge to hear several cases pending against him that had been assigned to another judge and “admonish[ing] and derid[ing] Harzog’s attorney for his failure to have Harzog testify so that [she] ‘could hear [his] voice.’” The Commission petitioned the court for an order of interim suspension, pending its continuing investigation. On October 16, 2007, the Commission petitioned the court to allow it to withdraw the petition for interim suspension, “since the filing of the petition, counsel for the Commission and the Respondent have entered into an agreement whereby the issues have been resolved in a manner satisfactory to all parties.” Finding insufficient the basis stated for the Commission’s motion to withdraw its petition for interim suspension, this Court, denied the motion and ordered the interim suspension of Judge Martin. The Commission and Judge Martin subsequently filed a joint motion, asking the court to reconsider its previous order denying the motion to withdraw the petition for interim suspension because they had entered a “memorandum of understanding” that settled the matter. The constitutional provision that creates the Commission (article 6, § 177A) provides that, “On Recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.” The court held that, pursuant to this provision, the Commission has no direct authority or power to order punishment or to enter into a settlement agreement or memorandum of understanding that by-passes its constitutional mandate to make recommendations for punishment to the court, although the court noted that the Commission is “free to agree to recommend to this Court approval of a memorandum of understanding which is supported by the facts.” The court noted that the Commission had stated that “counsel for the Commission and the respondent have entered into an agreement whereby the issues have been resolved in a manner satisfactory to all parties” and that the Commission and the judge had entered into a memorandum of understanding that “the Commission accepted by unanimous decision.” The court held that, where the Commission finds judicial misconduct within one of the 5 categories under Section 177A, “failure to report such findings to this Court, and disposal of the violation by agreement, settlement, or memorandum of understanding between the respondent and the Commission, are beyond the Commission’s constitutional authority.” The court stated that the “fault for the Commission’s unauthorized settlement and memorandum of understanding” lay, not with

26 the Commission, but with the lack of clarity in the language of Rule 6B of the Rules of the Mississippi Commission on Judicial Performance, which provides:

The Commission shall dispose of the case in one (1) of the following ways:

(1) If it finds that there has been no misconduct the case shall be dismissed. (2) If it finds that there has been misconduct for which a private admonishment constitutes adequate discipline, it shall issue the admonishment. The complainant shall be notified that the matter has been resolved. The Commission shall notify the Chief Justice of the Supreme Court of its action. (3) The commission may enter into a memorandum of understanding with the judge concerning his future conduct or submission to professional treatment or counseling. (4) If it is determined that probable cause exists to require a formal hearing, it shall so notify the judge by service of a notice and a formal complaint.

Because the constitution provides the Commission no authority to administer punishment through a memorandum of understanding, the court stated, it was in the process of amending Rule 6(B).

This Court has always guarded its ultimate and inherent authority to decide issues concerning judicial misconduct, including appropriate sanctions, whereas the Commission has the significant role of making recommendations on which we greatly rely.

On the other hand, Section 177A clearly imposes upon this Court the duty, responsibility, and authority (after considering the recommendation of the Commission) to determine and impose punishment on “any justice or judge of this state” who this Court finds has committed one of the enumerated offenses. That duty and authority is no more delegable than this Court’s duty to hear appeals from our trial courts. Stated differently, the only offenses for which a judge may be punished, and the only punishments which may be ordered, are those enumerated in Section 177A, and it is within the exclusive duty and authority of the Supreme Court to determine and order the appropriate punishments.

The court stated it did not view the Commission’s memorandum of understanding as requiring it to dismiss its previous order of interim suspension but did consider the contents of the memorandum of understanding. Noting that the judge had resigned, we the court dismissed as moot the order of interim suspension. In a special concurrence, 1 justice argued that Commission Rules 6(B)(2), 8(F), and 10(F) also needed to be amended because private discipline is not an option constitutionally available for sanctioning judges. The concurrence stated, “Judges of this state are publicly elected officials, and if a judge commits one of the foregoing offenses, he or she should be publicly sanctioned.” The concurrence argued that the court should overrule all prior cases that imposed private reprimands against judges.

27 While the Court understands it is necessary for the bench, bar, and in this case, the Commission on Judicial Performance, to rely on the principle of stare decisis, it is necessary that we overrule these cases to comport with the constitutional mandates under which we operate, and to remove an ill-advised cloak of secrecy. Only then can the public make an informed decision, should the judge or justice further seek the approval of the electorate.

In the Matter of Del Vecchio, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline November 6, 2008) (www.judicial.state.nv.us/Del%20Vecchio%20Findings.pdf) Based on a judge’s admission of some of the allegations in an amended formal statement of charges and his statement that he would not contest other allegations, the Nevada Commission on Judicial Discipline immediately removed the judge for (1) a sexual affair with a court employee, ensuring the employee was paid when she was absent from work attending their sexual trysts, allowing her to work “flex” hours even though the chief district judge had prohibited such an arrangement, retaliating after the employee ended the affair, attempting to entice her into returning to work for him in exchange for not pursuing her office of diversity complaint, violating instructions not to contact her, and destroying pictures that he should have known would be important after being contacted by the Commission; (2) sexual comments about or to court employees, his ex-wife, a fellow judge, and a female attorney; (3) inappropriate references to the race and ethnicity of employees; and (4) insulting his former law clerk. (1) The judge was sexually involved with Rebeccah Murray while she was his judicial executive assistant; he had previously been married to her mother. The Commission found that the judge met her for sexual liaisons during working hours and allowed her to be paid her normal wage for hours expended conducting the sexual relationship. The judge also allowed Murray to work a “flex-schedule” so she could attend law school classes even though the chief judge had informed him that a “flex- schedule” was impermissible. After Murray ended the sexual relationship, the judge refused to accommodate her law school schedule. During an investigation by the county office of diversity regarding Murray’s complaint against the judge, the judge met with an investigator, showed the investigator nude photographs of Murray, and offered to turn them over to the investigator. For reasons that are not known, the investigator declined to take them. After the Commission informed him that it had initiated an investigation, the judge destroyed the photographs before the Commission could obtain them. Contrary to the directive of the office of diversity not to have any contact with Murray while its investigation was pending, the judge asked an attorney to convey an offer to Murray that she could return to her job as his judicial executive assistant or be hired as a judicial law clerk in exchange for dropping the diversity complaint. (2) (a) In 2005, Imogene Serrano, the judge’s ex-wife and the mother of Rebeccah Murray, became employed as a law clerk for another judge in the family court. In the presence of other employees, Judge Del Vecchio discussed the couple’s sexual history and specific sex acts and tried to reinitiate a sexual relationship with her.

28 (b) The judge stared at a court employee’s breasts on multiple occasions and told her that he wanted her to wear tight t-shirts while campaigning for him. (c) The judge directly or indirectly referred to sex acts either with female attorney or litigants who appeared before him. (d) In the presence of his bailiff, the judge said that Judge Stefany Miley “had a fine ass and you wished you could get in there” or words to that effect. (e) The judge asked a female attorney who appeared in his court to lunch 3 times and told to his bailiff that he wanted to be sexually intimate with her. (3) The judge made inappropriate racial remarks to his bailiff, for example, referring to him as a “lazy Mexican bailiff” and a “fucking prick,” and referring to “low- down Latinos that walk in the courtroom.” While speaking to Murray, the judge mimicked the speech of an African- American court employee and stated “My shit be educated” or words to that effect. (4) The judge made derogatory remarks in public about his former law clerk, including but not limited to that he had failed to pass the bar examination. The Commission concluded:

Stated succinctly, the behavior to which Judge Del Vecchio has admitted cannot be tolerated. Judge Del Vecchio’s pervasive and unhealthy fixation on sex and sexual innuendo in the workplace is both evident and objectionable. His repeated behavior was so boorish and crude as to be unimaginable in any employment setting, much less a court of law. . . .

* * * [The judge] utilized his position of power to carry on a sexual affair with a subordinate employee with whom he claims he was in love. He ensured she was paid when she was absent from working attending their sexual trysts. He ensured she was allowed to work “flex” hours even though the chief district judge had prohibited such an arrangement. He acted in retaliation when the subordinate chose not to continue the affair. He attempted to entice her into returning to work for him in exchange for not pursuing her OOD complaint. In so doing, he violated instructions by attempting to contact her through an attorney, and in so doing he compromised the attorney’s integrity. He also attempted to subvert the investigative process designed to protect county employees and he also destroyed evidence in the form of pictures that he reasonably should have known would be of import in any investigation by the Commission.

Not satisfied with just one target of what his attorney accurately and candidly described as “locker room” behavior, Judge Del Vecchio made sexual comments about or to court employees, his ex-wife, at least one fellow judge and one female attorney whose duty it was to represent her clients in his court. His insulting behavior was supplemented with inappropriate references to the race and ethnicity of people directly subordinate to him as well as other employees that have absolutely no valid place in today’s American workplace, particularly a court whose purpose is to mete out justice to litigants without regard to such factors. Additionally, he chose to insult and/or publicly embarrass his former law clerk

29 notwithstanding the fact that the man had served Judge Del Vecchio in that role for a number of years. This suggests that Judge Del Vecchio was an equal opportunity offender insofar as he did not need to limit the basis for his improper behavior to matters of sex and race/ethnicity.

The judge had agreed to be removed from office at the end of his term in January. The Commission acknowledged that the judge’s decision to admit certain allegations and not contest others shielded “a significant number of people from having to discuss their own observations of Judge Del Vecchio’s conduct and comments,” saving them “from embarrassment if not outright humiliation,” and also “saved the Commission and thus the taxpayers – from incurring certain costs to conduct the evidentiary proceeding, which was scheduled to last for an entire week.” However, the Commission concluded that the judge’s decision not to contest the charges “while salutary, should not shield him from the sanction of immediate removal. . . . Now that he has actually admitted wrongdoing, the Commission has concluded that there is not a valid factual or legal basis to withhold its removal order while allowing the respondent to serve out his term through January 4, 2009, with full pay and benefits.” The Commission noted that the judge lost his seat in the August 2008 primary election.

In the Matter of Halverson, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline November 17, 2008) (www.judicial.state.nv.us/Halverson%20Findings%20of%20Fact%20Conclusions%20of %20law.pdf), on appeal The Nevada Commission on Judicial Discipline removed a judge from office for (1) sleeping during portions of 3 trials; (2) improper ex parte contacts with deliberating juries in 2 cases, improper public comments to the media while one of the cases was pending, and false statements to the media in a post-trial interview; (3) using obscene terms to refer to employees in the presence of her bailiff, flippantly giving the bailiff $20 at a luncheon for judges and telling him to “go play with the other bailiffs,” and requiring him to massage her feet, neck, and shoulders; (4) yelling at employees and using foul language in the presence of her assistant; (5) allowing 2 unauthorized individuals to gain access to the Regional Justice Center to serve as her body guards or security officers; (6) making several false statements to a print news reporter; and (7) requiring the chief judge to communicate only through her attorney, refusing to communicate or cooperate with the court administrator when he attempted to retrieve a rolodex from her office, and telling the police that “unauthorized personnel” were attempting to access her chambers. The Commission dismissed 5 counts in their entirety and 24 subsections of 3 other counts. The judge has appealed the decision. (1) Attorneys and others testified that the judge slept during portions of the trials in 2 criminal cases and 1 civil case. The Commission noted that “stated simply, a judge cannot hear matters when a judge is asleep.”

On occasion, any person, including a judge, can fall asleep in a public meeting or a trial. Such an occasional event, if brief in duration, likely would not be deemed to be a serious violation of the canons if it also is an isolated event. What makes

30 this series of three occasions more serious is that Judge Halverson fell asleep in front of juries who were already empanelled for trial under her supervision and she did so within months of taking office, not years after having presided over hundreds of trials. The act of falling asleep during a jury trial conveys to the jury members and the public that such proceeding are not important and that the judge does not have an important role to play.

A judge must be very aware of the minutiae of the proceedings before her and she must be able to rule on objections dozens if not hundreds of times during the course of any given trial. A judge must be able to sense and control the ebb and flow of a trial so that it is fair for fall the litigants. A judge must be attentive because even brief inattention can lead to a mistrial, new trial or multiple proceedings that are avoidable absent such unusual events. . . .

The Commission stated that, once she became aware during her first trial that she had fallen asleep, the judge had a duty to take steps to avoid repeating the event, by obtaining a medical assessment and intervention as necessary.

Instead, she apparently did little or nothing to deal with the problem. Indeed, she essentially continues to deny that a problem exits. . . . While we cannot conclude that she purposely (willfully) slept, we can conclude she willfully failed to take preventive action to minimize the chance of a repeat occurrence.

(2) The judge had improper ex parte contacts with deliberating juries in 2 criminal cases. The Commission stated: “Eating or chatting with a deliberating jury and answering their law-related and case-related question in an ex parte setting is so fundamentally wrong that even a first-year law clerk should know better, much less someone who had several years of experience as a law clerk within the court system.” What was “most egregious” about her behavior, the Commission found, was that, once her error became public, the judge tried to shift the blame to the attorneys by “going to the media to tell her side of the story when it simply did not need to be told and certainly should not have been told in such a forum.” (3) The judge referred to other employees in the presence of her bailiff Johnnie Jordan as “bitches,” “dumb fucks,” “fucks,” or dumb asses.” She flippantly gave Jordan $20 at a luncheon for judges and told him to “go play with the other bailiffs.” The judge required Jordan to massage her feet, neck, and shoulders. The Commission stated:

Suffice it to say that the testimony showed that Judge Halverson had a bizarre relationship with her immediate or personal staff (court clerk, judicial executive assistant, bailiff and court recorder/reporter) and that her treatment of them, as with so many others she encountered, was unnecessarily disrespectful. Judge Halverson should not take any solace in the refusal of the Commission to find that many of the counts had not been proved due to the high level of proof required. Instead, the Commission finds it regrettable that any of the many allegations had a foundation at all and it concludes that as to each of the three instances for which proof is adequate, each is considered willful.

31

It appears to the Commission that Judge Halverson does not have the ability to routinely treat subordinate staff with dignity and respect over a prolonged period of time, at least without the specter of investigating officials to “guide” her behavior. While a number of witnesses who replaced Judge Halverson’s original staff members testified that they were treated well during the time Judge Halverson remained on the bench in the late spring and early summer of 2007, the Commission concludes that she had an ulterior motive for behaving in a manner other than her normal manner. She obviously knew her behavior was being scrutinized and she belatedly tried to alter her socially and professionally unacceptable manner of dealing with people. Ironically , one could argue that her interactions during the short window of time in which Judge Halverson treated replace staff well showed that if she made an effort to treat people appropriately she could do so.

No employee, even those inured to a judge’s mercurial temperament and foul mouth, should have to experience what Judge Halverson made her immediate staff live and work through on a routine basis. The fact that all four left within a short period of time speaks volumes about the inappropriate way that Judge Halverson interacted with them on a daily basis.

(4) The Commission found that the judge yelled at other employees in the presence of Ileen Spoor, her executive assistant, and used foul language in the presence of Spoor, stating the judge’s “abusive language and her proclivity to yell at those whom she believed were there to do her bidding, official and unofficial, are simply not the acts of someone with good judgement and even moderately developed interpersonal skills. Staff members are paid by the taxpayers to discharge the lawful directive of judicial officers, not to put up with loud, offensive and boorish conduct by someone who believes that donning the judicial robe absolves them from behaving badly.” The Commission rejected the judge’s attempt to impeach Spoor by “her misplaced fixation of Ms. Spoor’s so-called ‘ticket fixing’ operation as a basis to under Ms. Spoor’s testimony.” The Commission noted that it was not convinced that there was anything illegal with Spoor putting people in touch with those who could render legal advice, although it added that it did not place an imprimatur on a judicial executive assistant or other employee handling such matters while on “county time.” (5) After her bailiff was removed, the judge brought 2 individuals into restricted areas and her chambers in the Regional Justice Center without obtaining the proper authorizations. The 2 individuals did not have proper credentials from the Private Investigator’s Licensing Board. Noting that the Eighth Judicial District is the largest judicial district in Nevada, the Commission stated, “of necessity, such a system requires internal security measure and the coordination of security activities through the elected chief judge and the court’s appointed administrator.”

There is simply no room in the system for a judge who wants to act as a “lone wolf” when it comes to security related matters. Judge Halverson breached the entire court’s security system by bringing in unauthorized and seemingly

32 unqualified individuals in a surreptitious manner. Judge Halverson created a potential security risk to everyone working within the court’s inner security area and within the courthouse itself.

Again, what this incident shows is Judge Halverson’s poor judgment. She willfully and foolishly utilized the power of her office to actively undermine wholly valid and unburdensome security measures, including preemployment hiring background checks, that were already in place and that must be followed if the phrase “court security” is to have any meaning at all.

(6) Chief Judge Kathy Hardcastle created a committee of judges to explore complaints by some of Judge Halverson’s immediate staff members. The 3 other judges were Judge Art Ritchie, Judge Stu Bell, and Judge Sally Loehrer. Judge Halverson met with the committee once. Judge Halverson told a reporter that Judge Bell yelled at her during the meeting and told her “We’re going to get rid of you right away,” that Judge Ritchie kept throwing his hands in the air, and that Judge Loehre was screaming. The Commission found that, at the hearing, Judge Bell testified accurately and truthfully that no such behavior occurred on the part of any of the other judges and that, by insisting that her fellow judges had engaged in inappropriate behavior, Judge Halverson lied under oath to the Commission. The Commission stated, “the version of fats related by Judge Halverson was not only false, it was preposterously false and designed to deflect well-earned scrutiny away from her and onto the chief judge and Judge Halverson’s three colleagues.” (7) Judge Halverson authorized her attorney to convey instructions in writing to the effect the chief judge and her staff could not communicate with his client. The Commission found that the judge’s decision “to pursue such an unconstructive course of conduct was designed to impede the operation of the court and it had that effect as well.” The Commission stated: “It strains credulity to think that in a ‘strong chief judge system’ that is in place in Nevada, any one or more of thirty-six district judges in Clark county can require the chief judge to routine day-to-day matters through the chosen legal representative of a judge who doesn’t like how the chief judge is conducting business.” When the court administrator attempted to retrieve a rolodex from Judge Halverson that Spoor claimed was her personal property, the judge locked herself in her chambers with her personal security officers and refused to provide the rolodex to the court administrator when he asked for it. The Commission stated that it was not within the judge’s purview to dispute the instructions the chief judge had given staff even though she disputed Spoor’s claim of ownership and suspected that the rolodex may have been evidence of a crime, finding that “the fact that Judge Halverson went to such extreme measure over such a trivial item demonstrates again the ridiculous lengths to which Judge Halverson was willing to go in order to joust with the chief judge and anyone else whom she suspected of acting in concert with the chief judge.” In a telephone report to the Las Vegas Metropolitan Police department, the judge stated that “unauthorized personnel” were attempting to access her chambers even though she clearly knew that the court administrator was on the premises and that he was authorized to be there. The Commission found that the court administrator conduced his mission appropriately and was not disrespectful or threatening to Judge Halverson.

33 Stating that “a reasonable person would not have called the police to report what she ultimately reported,” the Commission concluded that the judge “wasted the precious time of law enforcement officers who could have been doing much more important tasks than intervening in a ‘dispute’ created by Judge Halverson.” The Commission noted that, prior to her election, Judge Halverson’s legal career had been as a law clerk within the district court and that Chief Judge Kathy Hardcastle had terminated her when she became chief judge because she did not want to have a law clerk who had served for many years only as a law clerk. Judge Halverson had run against Chief Judge Hardcastle’s husband, an incumbent judge in the family division, in 2004 but lost. She was successful in her 2006 effort to fill a newly created seat. The Commission concluded that it appeared Judge Halverson “remained embittered about her termination” and that her termination apparently led to Judge Halverson’s “paranoid attitude” towards the chief judge so that she went out of her way to create a conflict with the chief judge where one could and should have been avoided. The Commission noted that Chief Judge Hardcastle had created a panel of unbiased judges to ascertain the basis for the personnel-related complaints that the judge’s immediate staff members had conveyed to court administrators and to ensure that whatever had gone on in the past between Chief Judge Hardcastle and Judge Halverson would not taint the panel’s inquiry. The Commission concluded:

Unfortunately, Judge Halverson did not view this as a constructive process nor did she seek to improve her own shortcomings related to personnel management and leadership. The evidence makes it clear that having been thrown a proverbial rope by the chief judge that could have been used to save her from professionally drowning in her own sea of inexperience as a litigator, her lack of technical knowledge in the area of criminal trial procedure and her limited and stilted interpersonal skills, Judge Halverson chose not to grab onto the rope. Instead, she chose to sink and she chose to try to pull the district court down with her.

The evidence is overwhelming that shortly after Judge Halverson was elected and took office in January 2007, her behavior and her failure to cooperate with other judges and court officials led to substantial problems for the Eighth Judicial District Court. She interrupted the workings of the court and her largely perceived conflict with the chief judge purposefully caused unnecessary problems for the chief judge, other judges, and the court’s administrative staff. This resulted in unnecessary costs to the taxpayers and her behavior undermined the confidence of the public in the court system. While a judge needs to be independent, and there are a myriad of styles in which judges may carry out their duties while retaining their independence, there is a basic level of judgment, cooperation and integrity which is required of judges. In a district the size of the Eighth Judicial District, which has a huge workload, it is absolutely essential that judges, including new ones who are prone to making technical mistakes that more experienced judges might not make, must cooperate with the lawful directives of the chief judge and the persons she task to carry out those directives.

34 The Commission noted that the judge’s own antics and demeanor, including her “combative style and imperial attitude,” during the proceedings held before it did not promote confidence in the integrity of the judiciary, stating that judge “spent a great amount of effort trying her case to the press and attempting to embarrass the entire Nevada judiciary prior to and during the evidentiary hearing.” The Commission noted that the judge refused to cooperate with the Commission by repeatedly refusing to submit to a physical examination and, after castigating the Commission for delaying her case, repeatedly took steps purposefully to delay it. The Commission found “she obtained legal counsel who, despite their ardent representation of her, were forced to withdraw,” and, representing her, chose to file frivolous writ and lawsuits trying to delay or dismiss the case even applying during the hearing to the federal district court to stop the proceedings. She was routinely late at the beginning of the hearing session and after almost every break, and “one afternoon, when she was given the opportunity to go home early due to health problems related to her diabetic condition, . . . Judge Halverson immediately conduct[ed] prolonged press interviews in the back of the courtroom.” The Commission also found that the judge inappropriately subpoenaed numerous members of the judiciary, including members of the Supreme Court, failed to provide the special counsel with any semblance of a witness list. This behavior appears to have been purposeful and taken with the intent to gain a tactical advantage rather than the mere oversight of an inexperienced and unprepared litigator, and failed to take the necessary steps in advance of the hearing to ensure that the witnesses she wished to call had been served with process and in some instances, a witness fee required by law.

Her behavior throughout the hearing was at times, variously and fairy to be described as agitated, combative and bordering on contemptuous. While there were times she remained outwardly respectful to the Commission, the Commission concludes that she deliberately decided to wreak as much havoc as possible upon the operation of the entire judicial system of the State of Nevada, including the Commission, without recognizing the severe impact and consequences of her at actions.

While some of the behavior found by the Commission . . . was a result of her inexperience, the most egregious behavior on her part was willful and persistent. Such behavior, particularly with regard to treating employees decently and disrupting the administrative operations of the entire court is not, in our collective estimation and experience, amenable to correction by education mentoring. Indeed, having been given the opportunity to learn from her mistakes and to obtain assistance from one or more of her fellow judges, it is beyond any reasonable argument that Judge Halverson threw away the opportunity and instead, lashed out at those judges thought to be her detractors and accusers.

Inquiry Concerning Aldaz-Mills, Order (New Mexico Supreme Court December 30, 2008) Granting a petition for discipline upon stipulation, the New Mexico Supreme Court ordered that a judge be reprimanded and placed on supervised probation and

35 formal mentorship for 12 months for warning a defendant that a bail bondsman was on the way to try to take him into custody. The order does not describe the conduct; the following description is based on the petition. On May 6, 2008, a bail bondsman arrived at the judge’s court to obtain a certified copy of the bond for Thomas Vigil. When the court clerk refused to provide the bail bondsman with the copy, the judge became involved, questioning the bondsman as to why he wanted a certified copy of the bond. The bondsman responded that he was investigating a possible probation violation by Vigil and that if there was a violation, he was going to revoke Vigil’s bond and take him into custody. The judge then authorized the clerk to provide the bondsman with a certified copy of the bond. Within 10 minutes of the bondsman’s departure, the judge called Vigil on his family cell phone. When Vigil did not answer, the judge left a voicemail message stating, “This message is for Thomas. I have an emergency message for you. Please call Barbara at 505-334-7641. Again, please call immediately. Trying to help you out on a situation.” Vigil returned the judge’s call very soon thereafter. The judge then told Vigil that the bail bondsman was on his way and may try to place him in custody. The judge also told Vigil to “try not to get arrested, and then come into [her] court [the following day] to straighten this out.” On May 7, Vigil appeared in the judge’s court, but the judge indicated that the press had been calling her and that, as a result, she could not help him. As a result of frequent encounters with Thomas Vigil as a defendant in her court, the judge has known both Thomas and Eva Vigil for 10 or more years and is on a first name with them.

In the Matter of Lehmann, Determination (New York State Commission on Judicial Conduct November 10, 2008) (www.scjc.state.ny.us) Based on an agreed statement of facts and argument on the issue of sanction, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a judge who (1) permitted her co-judge’s law partners and associates to appear before her and (2) failed to disqualify from cases in which her personal attorney appeared. (1) Robert Murphy became a part-time Binghamton City Court Judge on June 14, 2002. Throughout 2002, Murphy was of counsel to the law firm of O’Connor, Gacioch, Pope & Tait. On January 1, 2003, Murphy, Alan Pope, and Jeffrey Tait formed the law firm of Pope, Tait & Murphy, each as capital partners. On January 1, 2004, Murphy, Pope, and 2 other attorneys formed the law firm of Pope, Schrader & Murphy. Murphy, Pope, and Kurt Schrader were capital partners, and James Sacco was of counsel. From at least 2002 to about June 1, 2006, Judge Lehmann knew that Pope, Tait, Schrader, and Sacco practiced law with Judge Murphy but permitted Judge’s Murphy’s partners and associates to appear before her in 81 criminal cases and 9 civil cases. The judge also assigned Sacco and/or Schrader to represent defendants in 45 cases, although she did not participate in this process except to sign the assignment letter. Judge Murphy disqualified himself from RPI Construction, Inc. v. A. Anthony Corporation because the defendant ‘s principal had been represented by his partner. Judge Lehmann disqualified herself because she also knew the principal well, and Judge Pellela disqualified himself because they were neighbors. The district administrative judge designated Cortland City Court Judge Elizabeth Burns to hear the matter. On

36 March 22, 2006, Pope appeared before Judge Burns in RPI, representing the defendant. Also on March 22, Schrader appeared before Judge Burns on behalf of the plaintiff in Pope, Schrader & Murphy LLP v. Lown, a commercial claim. Judge Burns adjourned both cases to review whether attorneys from Pope, Schrader & Murphy could practice law in the Binghamton City Court in light of Judge Murphy’s status as a part-time judge of that court. On March 24, Judge Burns entered an order disqualifying Pope, Schrader & Murphy from representing the defendant in the RPI matter. Judge Burns directed the defendant either to appear pro se or to retain new counsel. Judge Burns also dismissed Pope, Schrader & Murphy LLP v. Lown, without prejudice. As a result of Judge Burns’ order in the RPI matter, by letter dated March 30, Judge Lehmann and Judge Pelella advised the attorneys at Pope, Schrader & Murphy that their firm was prohibited from practicing law in the Binghamton City Court, directed it to take steps to withdraw from any civil actions then pending in the court and to inform criminal defendants that the Pope firm could no longer represent them, and gave notice to the firm that new counsel would be assigned to criminal defendants whose cases had been assigned to the firm. Judge Lehmann reported Judge Murphy to the Commission for allowing his partners and associates to practice law in the Binghamton City Court. The Commission found that, “even without specific knowledge of the applicable law, it should have been readily apparent to Judge Lehmann that appearances by Judge Murphy’s partners and associates “not only would provide a direct financial benefit to her co-judge, but would create an unacceptable perception that parties represented by her co- judge’s partners might receive special treatment.”

It is noteworthy that a visiting judge assigned to handle two cases involving Judge Murphy’s firm immediately recognized the impropriety of such appearances, issuing an order disqualifying the firm from one case and dismissing the second case without prejudice. Moreover, as the Court of Appeals has stated, ignorance does not excuse violations of legal or ethical mandates since every judge is required to maintain professional competence in the law. . . .

As an experienced judge, respondent should have immediately questioned the practice, rather than participating in it for . . . four years. There is no indication in the record that, over that period, respondent ever considered whether the practice might be improper, notwithstanding that these attorneys personally appeared before her and corresponded with the court on law firm stationery that listed her co-judge as a partner.

(2) Judge Lehmann was represented during the Commission investigation by John Levene beginning in 2006. Between July 2006 and September 2007, Judge Lehmann allowed members of the Levene firm to appear before her on behalf of defendants in 6 criminal cases. In 2 cases of the 6 in which the firm appeared before her, the judge disclosed that the firm was representing her; in the remaining cases, she made no disclosure whatsoever of her relationship with the firm. The Commission rejected as a mitigating factor the suggestion that the judge believed that her disclosure in 1 case “was sufficient notice to the District Attorney’s office as to all cases that she was represented

37 by the Levene firm,” noting the disclosure occurred after the firm had already appeared before her, without disclosure, in 4 cases.

This misconduct occurred at a time when respondent, who was under investigation by the Commission, should have been especially sensitive to her ethical obligations. Given that the subject of the Commission’s investigation focused on potential conflicts with attorneys appearing before her and the appearance of bias which flows therefrom, this continuing lapse of judgment on respondent’s part is inexcusable and profoundly troubling.

Stating the case presented an extremely difficult and close decision between removal and censure, in mitigation, the Commission noted there was no indication that the judge conferred any preferential treatment upon Judge Murphy’s associates or their clients; when the impropriety of the appearances by the Murphy firm was brought to her attention, she took prompt action to bar the firm from appearing in the court in the future and reported Judge Murphy to the Commission; and the judge had been cooperative and contrite and forthrightly acknowledged her misconduct.

In the Matter of Pelella, Determination (New York State Commission on Judicial Conduct November 10, 2008) (www.scjc.state.ny.us) Based upon the agreed facts and arguments as to sanction, the New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who permitted his co-judge’s law partners to appear before him. Judge Lehmann has been an elected, full-time Binghamton City Court Judge since 1997. Judge Pelella has been an elected, full-time Binghamton City Court Judge since January 1, 2005. Robert Murphy was an appointed, part-time Binghamton City Court Judge on June 14, 2002. During that time, he was in private practice as an attorney. From January 2004 to about June 1, 2006, Judge Murphy, Alan Pope, and Kurt Schrader were law partners in, and James Sacco was of counsel to, the firm Pope, Schrader & Murphy LLP. Section 100.6 of the Rules Governing Judicial Conduct prohibits law partners and associates of a part-time judge from practicing law in that judge’s court, which reflects a statute. From in or about January 2005 to in or about March 2006, Judge Pelella permitted Pope, Schrader, and Sacco to appear before him in 14 criminal cases and 5 civil cases, knowing that they were law partners or associates of Judge Murphy. From March 15, 2005, to March 24, 2006, Judge Pelella assigned Schrader, while he was Judge Murphy’s law partner, to be counsel in 9 criminal cases although all he did was sign the assignment letter after court staff had determined which attorney from a list of attorneys who had declared themselves available for assignment was available to serve. The Commission found there was no indication that any of these assignments were made other than in the ordinary course or that Schrader was given preferential treatment or was reimbursed for his work in excess of reasonable and justifiable fees. Judge Murphy disqualified himself from RPI Construction, Inc. v. A. Anthony Corporation because the defendant ‘s principal had been represented by his partner. Judge Lehmann disqualified herself because she also knew the principal well, and Judge

38 Pellela disqualified himself because they were neighbors. The district administrative judge designated Cortland City Court Judge Elizabeth Burns to hear the matter. On March 22, 2006, Pope appeared before Judge Burns in RPI, representing the defendant. Also on March 22, Schrader appeared before Judge Burns on behalf of the plaintiff in Pope, Schrader & Murphy LLP v. Lown, a commercial claim. Judge Burns adjourned both cases to review whether attorneys from Pope, Schrader & Murphy could practice law in the Binghamton City Court in light of Judge Murphy’s status as a part-time judge of that court. On March 24, Judge Burns entered an order disqualifying Pope, Schrader & Murphy from representing the defendant in the RPI matter. Judge Burns directed the defendant either to appear pro se or to retain new counsel. Judge Burns also dismissed Pope, Schrader & Murphy LLP v. Lown, without prejudice. As a result of Judge Burns’ action, Judge Pelella and Judge Lehmann advised Pope, Schrader & Murphy LLP that the firm was prohibited from practicing law in the Binghamton City Court and directed it to withdraw from any pending civil actions then ending in the court and to inform criminal defendants that the firm could no longer represent them, and gave notice to the firm that new counsel would be assigned to criminal defendants whose cases had been assigned to the firm. Judge Lehmann reported Judge Murphy to the Commission for, inter alia, allowing his partners and associates to practice law in the Binghamton City Court. The Commission concluded:

Even without specific knowledge of the applicable law, it should have been readily apparent to respondent that such appearances not only would provide a direct financial benefit to his co-judge, but would create an unacceptable perception that parties represented by his co-judge’s partners might receive special treatment. In this regard it is noteworthy that a visiting judge assigned to handle two cases involving Judge Murphy’s firm immediately recognized the impropriety of such appearances, issuing an order disqualifying the firm from one case and dismissing the second case without prejudice. Moreover, as the Court of Appeals has stated, ignorance does not excuse violations of legal or ethical mandates since every judge is required to maintain professional competence in the law.

In early 2006, the judge had become concerned about the appearances of his co-judge’s firm, asked his staff to research the issue, and was advised that Judge Murphy’s firm was treated like any other attorneys. The Commission stated that Judge Pellela “should have done more, such as seeking an opinion from the Advisory Committee on Judicial Ethics, to determine whether he could preside over those attorneys’ cases.” In mitigation, the Commission noted that Judge Pelella’s behavior was cast in a “relatively less culpable light” because it was a widespread practice that pre-dated his tenure; there was no indication that he conferred any preferential treatment upon Judge Murphy’s firm or its clients; the judge was on the bench for a relatively short period before the misconduct was identified; that the judge knew that Pope was a member of the Commission and had become its vice chair in 2004; when the impropriety was brought to his attention, he and Judge Lehmann took prompt action to bar the firm from appearing in the court in the future; he was following and respected the practices of his mentor judge;

39 and he had been cooperative and contrite and had forthrightly acknowledged his misconduct.

In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct December 29, 2008) (www.scjc.state.ny.us) The New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who, while a candidate for another court, personally solicited the support of 2 attorneys who were in the courthouse and about to appear before her. Counsel for the Commission had recommended censure; counsel for the judge had recommended a confidential letter of caution. In 2005, the judge, a city court judge, was a candidate for nomination for supreme court justice. During her campaign, the judge communicated with between 100 and 130 attorneys asking for their support in the campaign. On July 13, the judge placed a telephone call to Eftihia Bourtis at her office with the intent of seeking Bourtis’ support for her campaign. Bourtis was on vacation, and the judge left a message that she had called. At the time, Bourtis did not have any cases pending before the judge. Bourtis received the judge’s message on July 25. On July 26, Bourtis was in the judge’s courtroom to represent the defendant in a criminal case. After the judge took the bench but before the case was called, the judge asked Bourtis to approach the bench where they had a brief conversation. Bourtis alluded to the judge’s telephone message, explaining that she had just returned from vacation. Stating that she was running for supreme court, the judge asked Bourtis for support in the campaign and whether she could use Bourtis’ name in connection with the campaign. Bourtis felt that she had to say yes, and she did say yes. After this conversation, the case was called, and Bourtis’ client rejected the plea offered by the district attorney’s office. The judge adjourned the case, which was later dismissed for failure to prosecute. The judge testified that, immediately after her conversation with Bourtis at the bench, she “felt terrible” and realized that it was inappropriate to have such a conversation under these circumstances. However, she acknowledged making a similar request of an attorney in the courthouse lobby a few weeks later. At no time did the judge ask an attorney or any other person for a monetary contribution to support her campaign. The Commission concluded:

By soliciting support for her candidacy for Supreme Court from an attorney in her court, moments before the attorney was scheduled to appear before her with a client, respondent engaged in conduct that compromised her impartiality and independence and promoted her political interests in the courtroom. Such behavior is inconsistent with the high ethical standards required of judges. . . .

By asking for political support from an attorney standing before her in court, respondent severely damaged any possibility that she could handle the attorney’s case without an appearance of bias. Regardless of the attorney’s response, respondent’s impartiality was compromised. (Indeed, if the attorney had immediately requested the judge’s recusal, respondent would have had little

40 choice but to grant the request.) Moreover, respondent should have recognized that her request would present the attorney with a serious professional conflict. Respondent, by her actions, impaired her impartiality and the judiciary’s independence.

A judge’s campaign activities must be strictly separated from the performance of judicial duties in order to avoid any appearance of using judicial authority to advance the judge’s private interests. . . . In her courtroom, wearing her robes, respondent was clothed not just figuratively but literally with the trappings of judicial status, which made her request for political support from the attorney particularly coercive. . . .

1 attorney member of the Commission filed a dissenting opinion, arguing that “the ambiguous and unrealistic rules that we impose upon judges facing election do not fairly and effectively address this and other compromising political scenarios” and stating the judge should be given a private caution. 2 other attorney members filed a concurring opinion, stating that while they did not agree with the entire thrust of the dissent, they did concur in the “overall critical observation of the quite incomprehensible application of New York’s rules pertaining to judicial political activity.”

In the Matter of Shkane, Determination (New York State Commission on Judicial Conduct December 29, 2008) (www.scjc.state.ny.us) Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who had improperly threatened to hold an agency and 2 police investigators in contempt after the investigators took a litigant from the courtroom’s waiting area into custody. 1 attorney-member dissented and voted to reject the agreed statement on the basis that admonition was too lenient. A second attorney-member dissented and voted to reject the agreed statement on the basis that the proposed disposition was too harsh. On the afternoon of September 6, 2007, in advance of a hearing, the judge directed her law clerk and attorneys representing a child, the child’s father, and the county department of social services to engage in a pre-hearing conference in a child neglect case. They did so in a conference room while the judge attended to other matters in her chambers. The child’s father (“Mr. H”) was in the building’s shared waiting area. While the conference was in progress, 2 officers of the county child advocacy center, investigator, John Dellerba and police investigator Edward D’Alessandro, entered the waiting area looking for Mr. H, whom they wished to arrest on charges of endangering the welfare of a child and sexual abuse in the third degree. They asked if he would accompany them to the police station. Mr. H agreed, indicating that he did not believe that his appearance in court was required. The officers informed 2 deputies in the waiting area that they would be taking Mr. H to the police department on charges. Without restraining him, the officers drove Mr. H to the police station. When the judge learned from her law clerk that Mr. H had left the building with law enforcement officials, she telephoned Child Advocacy Center Director Kevin Revere

41 and confirmed that the 2 officers had escorted Mr. H from the office building to arrest him. The judge then demanded that Mr. H be immediately returned to the court and that the incident never be repeated. She angrily threatened to hold the Child Advocacy Center in criminal contempt of court for the 2 officers’ actions. As a result of the judge’s call to Revere, Officer Dellerba issued appearance tickets to Mr. H and drove him back to the county office building. When the judge was informed that Mr. H had returned, she again telephoned Revere and angrily demanded that Officers Dellerba and D’Alessandro appear at her court in 1/2 hour or face an arrest warrant for contempt of court. Officer Dellerba arrived first. When he entered the courtroom, the judge went on the record and directed him to tell Officer D’Alessandro to be in the courtroom that afternoon or she would issue a warrant for his arrest. She told Officer Dellerba that he was potentially in contempt of court for interfering with the judicial process, which was punishable by 30 days in jail and a $1,000 fine. Officer Dellerba apologized and left the courtroom. Both Officers Dellerba and D’Alessandro were in the courtroom within an hour. The judge lectured them at length in an angry, impatient, and discourteous manner, repeatedly sought admissions of wrongdoing, and repeatedly threatened them with contempt, notwithstanding that Officer Dellerba apologized several times. The Commission found that, “under the circumstances, the threat of contempt or jail against the officers was excessive and inappropriate, notwithstanding that respondent did not act on her threat: and that it was an abuse of discretion for the judge “to force the officers to return to court so that she could bully, threaten and chastise them.” In mitigation, the Commission noted that the judge now recognized that her conduct was improper and that she should have accepted the officers’ early apologies and had committed to familiarizing herself with the mandates regarding contempt by attending at the earliest opportunity a judicial education and training program addressing the subject.

In re Waddell, Order (North Carolina Judicial Standards Commission November 18, 2008) (www.aoc.state.nc.us/www/public/coa/jsc/dismissed/07-136order.pdf) The North Carolina Judicial Standards Commission dismissed a statement of charges filed against a judge for signing an ex parte order. The Commission found by clear and convincing evidence that the judge signed an order directing any law enforcement officer to “take all steps necessary to return” the named children of the parties to the custody of the plaintiff-mother. At the time, no motion had been filed seeking the return of the children, and the judge heard no sworn testimony and or consider any sworn affidavit that would establish a basis for the relief granted by the order. The order was entered without notice to the defendant-father and was based on information related to the judge by Cindy Dickerson, his legal assistant, and Shelbie Hardison, a paralegal for Alfred Ward. Ward did not represent either party, was away from his office on vacation, and was unaware of Hardison’s actions. Hardison and Dickerson told the judge to the effect that, at the conclusion of an arranged visitation, the defendant-father had notified the plaintiff-mother that he would not return the children to her as had been arranged. The judge signed the order after instructing Hardison and Dickerson to contact the defendant-father’s attorney of record and after having been advised that office personnel in his office had told both Dickerson and Hardison that the

42 attorney was out of town and intended to withdraw from the case and that “the court can do what it has to do” or words to that effect. At the time, the order was signed, no order had been entered allowing the attorney to withdraw. The judge testified that he believed at the time that he signed the order that he had the authority to act ex parte to protect the minor children and that there were reasonable grounds to fear for their safety. The Commission concluded that the ex parte order was not authorized by law in that it was not based on any motion, sworn testimony, affidavit or other competent evidence and was issued without notice to parties or their attorneys. Thus, the Commission concluded that the judge violated the code but that, in light of the judge’s belief that he had the authority, his “conduct was not such as to warrant a recommendation to the North Carolina Supreme Court that respondent be censured, suspended, or removed from office . . . .”

Ohio State Bar Association v. Goldie, 894 N.E.2d 1226 (Ohio 2008) Accepting the findings and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a former judge Susan Goldie for denying due process to defendants in 3 criminal cases in flagrant disregard of the law. 1 justice dissented from the sanction, stating that in view of the judge’s repeated acts of misconduct, the case should be remanded to the Board to consider increased discipline. (1) 3 bears in David Walker’s charge escaped from their enclosures and had to be captured by law enforcement officers. The day after the escape, the judge summarily ordered Walker to remove the bears from the premises within 14 days. Walker moved the bears to different property. In early March 2004, however, some of the bears escaped again. A visiting judge ordered the bears seized and placed in the custody of county animal control. Within days and without providing Walker prior notice or the opportunity to present his defense, Judge Goldie ordered Walker and Bell to pay the county’s expenses incurred in transporting and caring for the bears. By February 8, 2005, the cost of the bears’ upkeep had reached $32,127. Again without providing Walker prior notice or an opportunity to present his defense, Judge Goldie ordered Walker to pay that amount in full by the end of the month, adding that if Walker did not, the bears would be forfeited and placed elsewhere. Walker appealed. The county court of appeals reversed the judge’s order, finding that she had had no authority to order restitution because Walker had not been convicted of any criminal conduct relating to the wayward bears, criticizing the judge’s failure to afford Walker even the pretense of due process. (2) The judge held a contempt hearing for Howard Webb, who had been arrested and charged with contempt of court for repeatedly violating previous agreements to pay fines and court costs in 9 criminal and traffic cases. The judge sentenced Webb to 30 days in jail for each contempt to be served consecutively, without separating the amount of the fines from the amount of the court costs and without determining Webb’s financial ability to pay the fine as required by law. (3) Anthony Brandon was convicted of vehicular manslaughter, a second-degree misdemeanor, after he lost control of his vehicle and caused the death of his young female passenger. He was sentenced to 90 days in jail, suspended, 5 years of probation, 500 hours of community service to be performed at the high school where he and the

43 victim had been schoolmates, and a $1,000 fine. The judge later denied Brandon’s request to perform his community service in Athens, Ohio. The court of appeals found that the judge had abused her discretion because she had offered no explanation for the denial. That court also ordered the judge to reduce Brandon’s 500 hours of community service to 200, the maximum allowed by statute for a second-degree misdemeanor. On remand, at a hearing held because Brandon had not paid the fine, the judge held Brandon in contempt and sentenced him to an unconditional 30 days in jail after learning that he was living out of state with his mother and not attending college in Athens as he had earlier represented and that he did not have a full-time job. Brandon had appeared without counsel. The court of appeals again reversed, finding a denial of due process. In mitigation, the court noted that, for the most part, the judge’s ill-advised rulings were rectified on appeal, that she did not act dishonestly or out of self-interest, readily conceded her wrongdoing, and submitted many letters recommending her character and reputation, and that her departure from the bench ensured that she would not engage in judicial misconduct again.

In re Lokuta, Opinion (Pennsylvania Court of Judicial Discipline October 30, 2008), Order (December 9, 2008), on appeal The Pennsylvania Court of Judicial Discipline removed a judge for (1) being habitually and egregiously late for court and frequently absent from the courthouse; (2) being impatient, undignified, and discourteous to court staff and hindering and obstructing the administrative responsibilities of other judges and court officials; (3) repeatedly engaging in lengthy recitations of her displeasure with the president judge on the record; (4) causing a commotion outside of a courtroom and, in a letter to the president judge, falsely claiming that a deputy court administrator had caused the incident; (5) ignoring directives of the president judge to report vacation and sick days of her staff, to provide copies of attendance reports for her employees, and to obtain approval for appointments of personnel; (6) consistently handling fewer cases and disposing of cases more slowly than other judges; (7) using a court employee to do personal work; and (8) instructing her law clerk to “cut [the plaintiff’s lawyer] a new asshole” in an opinion and, in a second case, to draft an opinion in favor of the plaintiffs because they had supported her politically and failing to disqualify from those cases. 1 judge-member of the court dissented from the sanction and would have suspended the judge for 1 year without pay, followed by a 3-year probation during which the Judicial Conduct Board would monitor her conduct and report monthly to the Court whether “she has behaved herself well.” (1) The judge was late for court sessions from 20 minutes to possibly an hour or more, many times with a packed courtroom of attorneys, a number of times a week, some weeks more often than not. The judge kept people waiting in the courtroom while she was talking with her staff in chambers and not working on judicial matters, instructing her law clerk to tell those waiting that the judge was engaged in legal research or had been delayed by traffic. The judge was frequently absent from the courthouse during normal working hours. The court concluded:

44 Respondent’s custom of arriving 15, 20 minutes, or a half hour or an hour or more late for scheduled court sessions is the quintessential discourtesy to litigants, jurors, witnesses, and lawyers. When it is commonplace, as here, it takes on the character of arrogance and disrespect for the judicial system itself, as well, of course, disrespect for those who, bidden by the court to be in court at a time chosen by the court, wait, sometimes in a “packed courtroom,” for the arrival of the judge.

(2) In the courtroom, the judge was impatient, undignified, and discourteous to court reporters, court administration, court clerks, deputy sheriffs, attorneys, witnesses, victims, parties, and probation officers. The Court found:

Respondent’s conduct in the courtroom created a tense and stressful atmosphere in her courtroom and had a serious negative effect on the ability of court personnel and attorneys to properly perform their duties. In addition, Respondent’s conduct made it difficult for the various judicial support offices of the Luzerne County Court of Common Pleas, as well as for the office of the district attorney, to staff her courtroom. In addition, Respondent’s treatment of the deputy sheriffs interfered with the performance of their duties and was so rude and upsetting that the sheriff had to rotate them out of Respondent’s courtroom every hour or hour and a half.

The Court gave numerous examples of “astonishing, recurrent violations of Canon 3A(3)” and listed the words the witnesses used to describe the judge’s attitude and demeanor: venom, combative, irrational, hostile, in your face, very agitated and loud, aggressive, rash, curt, brusque, sharp, witch, diabolical, demeaning, demanding, very harsh, short and curt, ranting, not good, condescending, arrogant, disrespectful, intimidating, unapproachable, vindictive, horrendous, whipping boy, angry, intense, accusatory, really rude, very nasty, tense, abrasive, cruel, terrible, abrasive, very volatile, out of control, completely out of proportion, brutal, oppressive, inescapable, very unkind, over the edge, very mean, very frantic, dark, evil, belittling, abusive, relentless, persistent, and sarcastic. The Court stated it was not “unmindful that all judges do not come to their office with the same allotment of equanimity – some have a lower threshold of intolerance than others; but, whatever their idiosyncratic predispositions, in the conduct of their judicial duties there is no place for discourtesy.” The Court noted that, because the proceedings in the judge’s courtroom were not videotaped, the best the Board could do was to ask the witnesses to describe the judge’s “demeanor, her tone of voice, her appearance, whether her manner was seemly or unseemly, decorous or indecorous, civil or uncivil,” finding that the witnesses’ “choice of adjectives . . . paint a picture of a judge whose behavior was entirely antithetical to standards of common decency as well as to the standards set out in the Code of Judicial Conduct. In our view her behavior qualifies as scandalous; it certainly is such that brings the judicial office into disrepute.” The Court found that witness after witness related how the judge’s conduct in the courtroom “seriously impaired their ability to perform the everyday duties of their jobs – court reporters, court clerks, ‘private’ attorneys, as well as assistant district attorneys and public defenders, and deputy sheriffs.” The Court stated:

45

Their ability to function was so severely affected by Respondent’s ill-treatment of them and by her volatile and unpredictable behavior in her courtroom that they developed an aversion to assignment to her courtroom. It was not infrequent that some were reduced to tears. Many begged that they not be sent to Respondent’s courtroom. Special protocols had to be put in place by the prothonotary and the court reporters for assignments to Respondent’s courtroom. Attorneys had to be taken off assignments to Respondent’s courtroom by the district attorney’s office. The primary function of the court administrator is assignment and scheduling of cases for all of the judges. Because of Respondent’s unrelenting complaints and never-ending difficulties in scheduling Respondent’s cases, this function was taken away from the court administrator’s office and shifted to Respondent who then scheduled her own cases – a radical departure from the established organization and system in place in Luzerne County. . . . Respondent habitually interfered with the deputies in the performance of their duties and, because of Respondent’ s rule and unpredictable behavior, the sheriff had to rotate his deputies out of her courtroom every hour to hour and a half.

The conduct described, far from facilitating the work of other judges and court officials, had the opposite effect. “Facilitate” means to help along, make less difficult, expedite; the conduct described accomplished the opposite. It hindered, obstructed and made more difficult the administrative responsibility of other judges and court officials, particularly those working in her courtroom and the offices of the court administrator and prothonotary and of the president judge.

The Court noted that the Board had not charged the judge with violating the code requirement that judge’s facilitate the performance of the administrative responsibilities of other judges and court officials but held that its finding that she had violated that canon did not derogate her right to due process because the underlying conduct was the same. (3) The judge was impatient, undignified, and discourteous to her staff with whom she dealt in her official capacity, including law clerks, legal interns, tipstaffs, and secretaries, creating “a tense and stressful atmosphere in her chambers” and causing “a serious negative effect on the ability for members of her staff to properly perform their duties.” The judge isolated herself and her office from the other court departments, including the prothonotary, the court administrator, and the president judges and “was ever-aggrieved and confrontational,” permitting communications only by written memorandum or if a “witness” was present. The Court stated that the day-to-day comportment of the judge and her tipstaff was “something out of Lewis Carroll or Dickens rather than of the chambers of a judge of the court of common pleas.”

Eight witnesses – five law clerks, two secretaries and one legal intern – who worked for Respondent at various times between 1996 and 2004 testified that the “loud,” “nasty,” “out of control,” “intimidating,” “oppressive” – indeed bizarre – conduct of Respondent, which was “inescapable” and, on some occasions, of her tipstaff, Maureen Gushanas, was distracting and severely hampered them in the performance of the duties for which they were paid to perform. We expect that it

46 would. We find that it did. Each one of these had an essential role in the operation of the Court of Common Pleas of Luzerne County. Each one of these had a job integral to the operation of Judge Lokuta’s courtroom, integral to the performance of her judicial duties, which, in turn is integral to the proper administration of justice in Luzerne County.

The evidence which fills this record establishes that Respondent failed to act in accordance with the directive of Canon 3B.(1) that she “facilitate” the other judges and court departments in the performance of their responsibilities, but, more than that, establishes that this Respondent had her chambers on a war footing, battle-ready for the warfare which she daily waged with the court departments and other judges, particularly the president judges of Luzerne County. She deliberately isolated herself and her staff from the rest of the courthouse and had standing orders that her staff was not to socialize, in or out of the courthouse, with other courthouse employees, particularly if they were deemed to be “enemies” or “not friends of this chamber.” Notably included in this category were the prothonotary, the court administrator and President Judges Toole and Conahan and anybody who happened to be employed in their offices. In her chambers animosity was in the air. Members of the staff were berated for being cordial, even civil, with those Respondent designated as “not friends.”

(4) The judge aired her dissatisfaction with the president judges and other court departments in public by repeatedly placing lengthy recitations of her displeasure on the record in court, complaining that they placed an unfair and discriminatory burden on her, and blaming them for the dysfunctions of their court.

These elocutionary excursions, embarked upon repeatedly by Respondent, commonly delivered upon the opening of court when courtroom occupancy normally peaks, were inappropriate, intemperate and uncalled for. They show no respect for the offices of the president judge and the court administrator and, more than that, they are frankly contemptuous of those offices. Probably the most important observation provoked by review of these speeches is that they show an abysmal lack of judgment. . . . We find that his conduct of Respondent is such that brings the judicial office into disrepute – not only that, it was designed to bring the judicial office, indeed the entire Common Pleas Court of Luzerne County, into disrepute.

. . . These digressions took public Respondent’s disaffection with the court system and the perceived discriminatory treatment she was receiving from the president judge. These digressions were delivered to captive audiences composed of people with business to do, and with such frequency that they became “routine.”

(5) One day, Gushanas told deputy court administrator P.J. Adonizio that the judge wanted to see him. He said he could not see her because he had to go with his wife for her first post-operative appointment after her mastectomy. The judge appeared in front of courtroom 4, which Adonizio would have to pass on this way to the elevator.

47 The judge angrily demanded that Adonizio meet with her. Adonizio asked her to step into a courtroom so he could explain why he could not meet with her right away. The judge continued to demand that Adonizio meet with her immediately and loudly proclaimed her displeasure at Adonizio’s failure to show her the respect she was due. The judge began running and jumping around, with arms waving, screaming “he is harassing me, get him away from me,” or words to that effect. This yelling and screaming attracted the attention of other people. She continued until the elevators doors opened, Gushanas shouted “clear the elevator,” and Gushanas and the judge got on the elevator. At no time did Adonizio shout or raise his voice or physically threaten or have physical contact with Gushanas or the judge. After returning to her chambers, the judge wrote a letter to President Judge Conahan complaining of Adonizio’s conduct, which she described as “inappropriate,” “unwarranted,” “physically intimidating,” “menacing and threatening,” “intentionally confrontive,” physically menacing,” offensive, unacceptable, and “unbefitting a public employee.” She claimed he publicly berated and screamed at Gushanas and herself. The Court found:

Two versions of this incident are presented and they are, in every respect, irreconcilable. Respondent’s version seeks to convince us that it was Adonizio who was yelling and screaming, threatening, and physically intimidating Respondent and Gushanas and who physically assaulted Gushanas causing bruising to her arm. On the other hand, Adonizio’s version seek to convince us that on that day, Respondent and Gushanas were yelling, shouting, screaming, out of control and causing a noisy commotion outside courtroom 4.

We find it happened as Adonizio and [4 other witnesses] said it happened, and not the way Resondent and Gushanas said it happened.

The Court also found that the judge’s false report to Judge Conahan “to be singularly dishonorable, exhibiting, as it does, an extraordinary level of malice.” (6) The judge ignored directives of the president judges to report vacation and sick days of her staff; provide copies of reports of the attendance of her employees as well as of any claimed accumulated sick or vacation time; and obtain approval for appointments of personnel. The judge consistently handled fewer cases and disposed of the cases she did handle more slowly than her fellow judges, requiring that cases be taken from her and re-assigned to other judges. Whenever the judges assigned to criminal court were unable to dispose of all the cases on their lists, the court administrator would ask the other judges to help with the criminal cases; all of judges helped except Judge Lokuta. When the court administrator, at the direction of President Judge Conahan, asked judges to take some of the cases of 2 judges who were ill, all of the judges of the court obliged, except for Judge Lokuta. (7) On numerous occasions comprising hundreds of hours, the judge diverted the services of Judith Flaherty, her law clerk, for her personal benefit. These services included companionship for an ill and elderly family member, grocery shopping, yard work, home maintenance and cleaning, organizing, wrapping, and packaging antiques and collectibles. Flaherty testified that gradually the bulk of her work time was spent away from the courthouse at the judge’s home. The Court found:

48

Respondent’s use of court employees to do personal work is repugnant to this Court and an affront to every judge and judicial employee within the Commonwealth. It is utterly disheartening from the perspective of the taxpayers and citizenry served by the Luzerne County Court of Common Pleas. Despite Respondent’s best efforts, she could not downplay to this Court the misappropriation of Judith Flaherty’s services as inadvertent or inconsequential. To the contrary, the scope of the misappropriation is broad, bold and impossible to overlook.

(8) In O’Brien v. Nesbitt Memorial Hospital, a medical malpractice case, the plaintiffs’ attorneys, Thomas and Michael Foley, filed a motion to recuse. When Ted Krohn, the judge’s senior law clerk, told her he did not know how he could draft an opinion denying the motion, the judge said to Krohn “I want you to cut [Foley] a new asshole.” The judge denied the motion based on a memo written by her junior law clerk. The Court noted that the Pennsylvania rule speaks of bias “concerning a party,” and the judge’s bias, if any, concerned the party’s lawyer. It held, however, that Judge Lokuta’s bias against Foley “was such that it undoubtedly affected his clients case.” The court stated that it was not holding that bias against a lawyer will necessarily be transferred to the client in every case, although it observed “that this commonly will be the case. Any lawyer with a few years experience in courtrooms knows that the only way a judge can ‘hurt’ a lawyer, if so inclined, is to hurt the client. After all, it’s not the lawyers’ case—it’s the clients’ case; and lawyers who asks a judge to recuse because of bias toward them are not doing so to protect themselves, but to protect their clients.” The court held that the judge’s statement to Krohn “established beyond any doubt that the judge’s personal bias against Foley was such that her impartiality might reasonably be questioned.” Noting that usually the evidence supporting recusal comes from surrounding circumstances, the court stated this case was “rare” because the evidence came “out of the mouth of the judge, i.e., by direct evidence. . . . This self- proclamation of partiality makes it unnecessary for us to undertake to evaluate the reasons for recusal advanced by the O’Briens.”

If Mr. or Mrs. O’Brien (or their lawyers) heard, or found out about, Respondent’s declaration, and the circumstances under which it was made, can it be imagined that they would not have instantly questioned Respondent’s impartiality? And, can it be imagined that it could seriously be contended that it would not have been eminently reasonable for them to do so?

In April 2003, the judge conducted a non-jury trial in a declaratory judgment action brought by State Farm against Neil and Carmelia Bonner. After the trial, Krohn told the judge that, from what he had heard in court, the facts in the case weighed heavily in favor of the insurance company. The judge told Krohn that she was going to decide in favor of the Bonners because they were a prominent Italian family in the area who had supported her politically, or words to that effect. The court found that the judge’s instructions to Krohn were a violation of the code of judicial conduct.

49 The Board’s complaint contained no allegations relating to the Bonner case. During the trial, the court permitted the Board to amend the complaint and to produce evidence relating to them. The judge objected, claiming that she had been denied due process because these allegations were not in the complaint. The court rejected the judge’s argument that she was surprised by the evidence, noting that she received notice of Krohn’ allegations related to the Bonner case in the Board’s supplemental notice of investigation, when she was asked about it at her deposition, and when the Board furnished the judge with the report of the interview of Krohn in pre-trial discovery. The court also concluded:

Prejudice is the key element; “surprise” without prejudice is no ground for excluding the evidence. “Surprise” without prejudice to the right to due process is no ground for excluding the evidence. . . . As it was, Krohn testified as to what she said to him about the Bonner case. She denied it. If reference to the Bonner case had been in the complaint, Krohn’s testimony would have been the same. And she would have denied it. Nothing would have been different.

Letter to Glover (Tennessee Court of the Judiciary February 19, 2008) (www.tsc.state.tn.us/sites/default/files/docs/gloverb_02-19-08.pdf) The Tennessee Court of the Judiciary publicly reprimanded a judge for (1) accepting a campaign contribution from a corporation in his 1998 campaign, in violation of election laws; (2) accepting a campaign contribution over $1,000 in his 2006 campaign, in violation of election laws; (3) misrepresenting in campaign advertising in 2006 that the incumbent judge was habitually absent from court; and (4) misrepresenting in campaign advertising in 2006 that he (Glover) had reduced juvenile crime by 25% during his prior term in office. The reprimand notes that the judge had refunded the contributions when contacted by Disciplinary Counsel.

Public Admonition of Gray (Texas State Commission on Judicial Conduct December 18, 2008) (www.scjc.state.tx.us/pdf/actions/FY09-PUBSANC.pdf) The Texas State Commission on Judicial Conduct publicly admonished a court of appeals judge for allowing his acrimonious relationship with his fellow justices to improperly influence his conduct and judgment and, in the process, failing to treat those with whom he interacted in an official capacity, including court personnel, in a patient, dignified, and courteous manner. The Commission noted that it had investigated numerous complaints “relating to the vitriolic language contained in several dissenting opinions written by Justice Gray, which opinions contained unprofessional personal attacks against the judge’s colleagues on the bench, Justices Bill Vance and Felipe Reyna, and against certain litigants . . . involved in cases before the Court.”

The increasingly acerbic opinions of Justice Gray became media fodder and were the subject of growing criticism and ridicule in editorials, on internet blogs, and at judicial conferences. Although the negative media coverage and denigration

50 among certain segments of the legal community likely had the effect of diminishing public confidence in the integrity and impartiality of the judiciary and cast discredit on the administration of justice, Justice Gray acknowledged during the course of the investigation that he appreciated the problems caused by the tone of his dissenting opinions and had taken appropriate corrective measures to avoid engaging in that conduct in the future.

However, the Commission “determined, in deference to the principle of judicial independence, that Justice Gray should not be disciplined for the content of his dissents.” During its investigation, the Commission received an additional complaint “that made it evident that the internal strife within the 10th Court of Appeals, and in particular the discord between Justice Gray and his colleagues, needed to be examined and addressed due to the detrimental effect it was having on court staff.” Justice Felipe Reyna and Justice Gray are Republicans; Justice Bill Vance is a Democrat. In March 2007, Justice Reyna introduced Justice Gray as the keynote speaker at a fund-raiser for a county Republican Club, stating “Please join me in welcoming my good friend, Chief Justice Tom Gray,” or words to that effect. Justice Gray thanked Justice Reyna for the introduction, but went on to state, “Really, we are not friends. He’s never been in my home. I’ve never been in his home. And furthermore, every time there’s a close vote on the Court, he always votes with Bill Vance,” or words to that effect. Later that evening, several attendees spoke to Justice Reyna, expressing displeasure with and apologizing for Justice Gray’s comments. Thereafter, Justice Gray initiated a “whisper campaign” against Justice Reyna. While attending Republican lunches and dinners, Justice Gray told party leaders “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 response to the Commission’s inquiry, Justice Gray said that he was simply answering questions people asked about specific dissents he had issued criticizing Justice Reyna. According to a security tape obtained during the Commission investigation, on or about June 16, 2008, Justice Gray unlocked and entered the private offices of Justice Vance without permission. In his appearance before the Commission, Justice Gray explained that he was searching for a file but acknowledged that, after determining that the file was not in Justice Vance’s 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 Gray never informed his fellow judges of his entry into their offices. Justice Vance and Justice Reyna testified that they would never enter Justice Gray’s office and that they would not have given Justice Gray permission to enter their private offices when no one else was present. Justice Vance and Justice Reyna testified about instances when Justice Gray has 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 in favor of firing 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.” Justice Gray

51 advised the Commission that, since no one has complained to him directly about his treatment of court staff, he was unable to respond to the allegations. Justice Gray explained that he has told the chief clerk and others that things would be different after January 1, 2009, and that he was referring to the tension that he would no longer experience after Justice Vance retired from the bench. Justice Gray denied that he intimated or suggested that anyone’s job was in jeopardy.

Public Reprimand of Abascal (Texas State Commission on Judicial Conduct December 18, 2008) (www.scjc.state.tx.us/pdf/actions/FY09-PUBSANC.pdf) The Texas State Commission on Judicial Conduct publicly reprimanded a judge (1) accepting during a $15,000 campaign contribution from a single individual or accepting $1,000 in cash from 15 individuals; failing to report the alleged loan of nearly $26,000 in personal funds to his campaign; and failing to report an approximately $5,000 balance, all in violation of the Texas Election Code and the Texas Penal Code and (2) pleading guilty to tampering with a governmental docket. The Commission noted the media attention surrounding the judge’s indictments and plea agreement. The judge was a candidate for re-election in the March 2002 Democratic primary election. On January 2, the last day for filing, a local attorney filed to run against the judge. The judge determined that he would need to quickly raise a large amount of money for his campaign. A large number of potential voters in the judge’s district are members of the Kickapoo Indian Tribe, who operate the Lucky Eagle Casino. Isidro Garza was the tribal administrator of the casino. The judge testified that he received 2 cash payments from Garza, a $10,000 payment on February 12 and a $5,000 payment on March 1. On December 7, 2004, a federal grand jury indicted Garza, his wife, Martha, their son, Timo, and the former general manager of the casino. According to the indictments, political contributions from Kickapoo Tribal leaders and Garza, in particular, were often cash payments. Because state law prohibits candidates from accepting more than $100 cash from a single individual in an election period, there were allegations that many of the cash payments had been pocketed by candidates without being reported or were reported falsely in their campaign finance reports. On October 27, 2005, as a direct result of having received and reported the $15,000 in campaign donations, the judge was indicted by a county grand jury for tampering with a governmental record with intent to defraud or harm another, a felony. The Commission suspended the judge with pay. On March 30, 2007, the judge was indicted by another county grand jury on 2 counts of aggravated perjury for allegedly lying to the previous grand jury. Pursuant to a plea agreement, the judge entered a plea of guilty to tampering with a governmental record without intent to defraud or harm, a class A misdemeanor. The judge agreed to pay a $4,000 fine and $15,000 in civil damages. Shortly thereafter, the Commission lifted the judge’s suspension. The Commission stated that, as a result of the plea to a lesser-included charge that did not include the intent to defraud or harm, the judge’s conviction did not qualify as “official misconduct” or a crime of moral turpitude, and, therefore, would not result in his automatic removal from the bench.

52 The Commission noted that, while under the first indictment and suspension, Judge Abascal was re-elected to his fifth term of office. According to his testimony before the grand jury and the Commission, Abascal informed Garza that he could not accept the $10,000 unless he received the names and addresses of the individual contributors because it was illegal for him to accept contributions from corporations and to accept contributions in excess of $1,000 from an individual or a married couple. According to the judge, because Garza assured him that the names and addresses of the contributors would be given to him, the judge “conditionally” accepted the $10,000 and stored the cash in an armoire in his bedroom. In a report completed, signed, and mailed by the judge to the Texas Ethics Commission, he identified 15 contributions of $1,000 each from different individuals. During their investigation in the Kickapoo Lucky Eagle Casino corruption case, federal authorities interviewed 10 of the 15 contributors identified in the judge’s campaign finance report. According to their testimony, not one of the alleged donors had contributed $1,000 to the judge. All but 2 of the straw donors were employees of the casino; several were either related to the judge or worked on his campaign as volunteers. Bank records show that the judge did not deposit any of the cash he received from Garza into his campaign account. According to the judge’s campaign finance reports, campaign workers were paid close to $36,000 in cash between January 1 and March 1, 2002. The campaign bank account records show that only $10,300 of the funds in the account were applied toward payments to campaign workers. The judge testified that the source of funds used to pay the campaign workers was cash accumulated over time from gifts from family members and other savings. This private source of funds, which Abascal testified he had loaned to his own campaign, was not disclosed in campaign finance reports as required by law.

Public Warning of Priddy (Texas State Commission on Judicial Conduct December 18, 2008) (www.scjc.state.tx.us/pdf/actions/FY09-PUBSANC.pdf) The Texas State Commission on Judicial Conduct publicly warned a judge for (1) knowingly failing to timely file campaign finance reports as required by law and (2) ignoring the Commission’s numerous requests and orders that he respond to its inquiries. (1) In 2007, the Office of the Texas Attorney General, acting on behalf of the Texas Ethics Commission, filed a lawsuit against the judge to recover delinquent civil penalties assessed for failing to file, or timely file, statutorily required campaign finance reports while a candidate for judicial office. A default judgment was entered against the judge for $38,000. The judge filed a notice of appeal. The Attorney General filed a second lawsuit to recover delinquent civil penalties assessed against the judge by the Ethics Commission for his failure to file, or timely file, additional statutorily required campaign finance reports as an officeholder. After filing an answer to the second lawsuit, the judge paid the civil penalties that were the basis of that action. The Commission noted that the judge’s campaign finance violations and the enforcement actions taken against him by the Attorney General received considerable media attention. In testimony before the Commission, the judge stated that his failure to timely file campaign finance reports with the Ethics Commission was a mistake due to his misunderstanding of the filing requirements.

53 (2) The judge failed to respond to an inquiry from the Commission about a complaint filed against him or to respond to a subpoena from the Commission. The judge testified that he had received the Commission’s inquiry, but decided not to respond in writing, citing undisclosed “procedural reasons.” Based on the judge’s testimony, the Commission voted to table the matters to obtain additional information not previously requested from the judge. The Commission sent the judge additional written questions and requested a prompt, thorough, and candid response. Again, the judge failed to respond to the Commission’s written inquiry. In subsequent testimony before the Commission, the judge acknowledged that he had received the Commission’s second inquiry, but declined to respond due to undisclosed procedural reasons. When asked by the chair if he would cooperate with the Commission and respond in writing to the second inquiry within 2 weeks, the judge represented that he would comply with the Commission’s request and would not require another subpoena to compel his cooperation. Based on the judge’s representations, the Commission voted to table the matters in order to allow the judge the opportunity to provide the additional written information previously requested by the Commission. The judge failed to provide the additional information as agreed.

Public Admonition of Boyett (Texas State Commission on Judicial Conduct December 18, 2009) (www.scjc.state.tx.us/pdf/actions/FY09-PUBSANC.pdf) The Texas State Commission on Judicial Conduct publicly admonished a judge who followed a driver who cut his car off, requested that she appear in his court, admonished her from the bench, and directed the bailiff to issue a citation after becoming annoyed with her father. The judge was cut off by a vehicle driven by a Texas A&M University student, who made an improper lane change. The student’s action caused the judge’s vehicle to run off the road. Although his car was not damaged, the judge was upset and decided to follow the student, according to the judge, merely to have a discussion with the student, in his role as a private citizen, about her unsafe driving. The judge followed the student several blocks to her apartment complex, waited for her to park and exit her vehicle, then pulled up next to her in his car. Through his car window, the judge began speaking to the student about the incident, asking if she was aware that she had forced him off the roadway. The judge then informed the student that he was a judge, displayed a badge containing his name and judicial title as he handed her his business card, and requested that she appear in his court the following day to continue the discussion. In his testimony before the Commission, the judge expressed no opinion as to whether the student may have believed that she was not free to decline his request. When the student and her father appeared in the judge’s court the next day, the court bailiff escorted them into the courtroom where the judge was sitting on the bench wearing his judicial robes. The bailiff immediately took the student’s driver’s license and handed it to the judge, who copied it on a printer that was located on his bench. The student and her father were directed to sit at counsel table while the judge remained on the bench. The judge testified that his intent was to meet with the student to admonish and/or discipline her and to ensure that she understood the nature of her infraction. According to the judge, because the student’s father began arguing with him and

54 questioning his authority to order the student to appear in court, he became annoyed and discussed having the bailiff issue a traffic citation to the student for making an improper lane change. At the judge’s direction, the citation was issued out of another judge’s precinct because that was where the alleged traffic violation had occurred and the judge was a fact witness. The judge testified about a similar incident in which he had followed a college student who had allegedly “spun out” in front of him, causing gravel to hit his windshield.

In re DeLeon, Voluntary Agreement to Resign from Judicial Office in Lieu of Disciplinary Action (Texas State Commission on Judicial Conduct December 15, 2008) (www.scjc.state.tx.us/pdf/actions/FY09-PUBSANC.pdf) Based on a judge’s resignation, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against the judge based on complaints that the judge, who is not an attorney, prepared wills for 2 people and accepted a fee, was sued by his construction business partner for forgery, and accepted a campaign contribution during a period that contributions cannot be accepted, failed to report that contribution properly, failed to file his campaign finance reports in a proper manner, failed to disclose to the Commission that his business partner was also a bail bondsman, failed to disclose the relationship to prosecutors, decreased his magistration and court dockets after he learned of the Commission’s investigation, failed to submit accurate reports to the Office of Court Administration, and was generally uncooperative with the Commission during its investigation and in an informal appearance before the Commission.

In the Matter of Hurtado, Stipulation Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct December 5, 2008) (www.cjc.state.wa.us/) Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for telling an assistant city attorney “Hey, shut up. Lower your voice” and interrupting a defense attorney’s pretrial motion and yelling at her in front of her client “Shut up. I’m telling you to shut up.” The Commission noted its investigation had shown that the judge generally maintains an appropriate and professional demeanor. In his answer to the statement of allegations, the judge acknowledged that he failed to treat the 2 attorneys with patience, dignity, and courtesy, agreeing that his comments and tone were inappropriate. The judge explained that personal stresses and his frustration with the attorneys contributed to his intemperate conduct. The judge had been frustrated with the assistant city attorney’s practice of negotiating cases, which the judge believed caused unnecessary delay in processing cases. The judge was frustrated with the defense attorney’s persistence in making arguments on the days leading up to a jury trial and with her request that he recuse from the case.

55 In the Matter of Morgan, Stipulation Agreement and Order (Washington State Commission on Judicial Conduct December 5, 2008) (www.cjc.state.wa.us/) The Washington State Commission on Judicial Conduct publicly reprimanded a judge for (1) yelling a profanity at the city chief of police and yelling in anger at the court administrator and a court employee; (2) taking action to enforce a policy that restricted the courthouse activities of a city employee, the timing of which gave the impression that the judge was retaliating against him for complaining about a comment made by the judge that the employee had found objectionable; (3) making comments to court staff that could reasonably be perceived as intimidating, including communicating that he would terminate them and replace them with clerks from the superior court system, questioning why a clerk would challenge his authority, noting “all the dead bodies” in his court, and raising his voice and slamming his office door; and (4) making jokes and comments to court staff that were or that could reasonably be perceived to be inappropriate, including, commenting about another judge’s alleged personal issues, referring to a former judge as a “moron,” and criticizing other judges, attorneys, and staff in derogatory terms. The judge indicated that he yelled at the city chief of police, court administrator, and court employee to convey that he was in charge and to assert the independence of the court. The judge maintained that some of his conduct had been taken out of context and was mitigated by the circumstances or even justified by his supervisory obligations as the court’s presiding judge. On a few occasions, he had discussed matters of a personal and sexual nature with court staff in the context of his investigation of a staff office party that was hosted by a former judge. The Commission concluded:

Respondent’s statements and actions, taking singly and out of the courthouse context, might be dismissed as isolated incidents or indiscretion the likes of which Respondent would acknowledge he ought not make again. But these are not isolated events and they do have a courthouse context, which raises the bar for decorum and propriety. Because of the position that judges hold in society, they are held to a high standards of conduct. Respondent recognizes that his lack of dignity and temperance in dealing with others undermined public trust in his integrity and the integrity of the judiciary. The Commission’s investigation indicates that there have been problems with the administration of this court that predate Respondent’s judgeship and that not all of the court’s problems are attributable to Respondent.

The judge also agreed to complete a course on judicial ethics and administrative training and obtain an evaluation by a Commission-pre-approved counselor and begin complying with the counsel’s recommendations. In mitigation, the Commission noted that the judge had assumed the bench without any formal administrative training, the conduct took place shortly after he took office, and the judge had self-reported some of the conduct and initiated at his own expense training pertinent to better management of his administrative duties.

56 In re Complaint of Judicial Misconduct (Real), Order and Memorandum (U.S. Court of Appeals for the 9th Circuit Judicial Council December 12, 2008) (www.ce9.uscourts.gov/misconduct/orders/07_ 89000_and_07_89020.pdf) Based on a report by a special committee, the 9th Circuit Judicial Council dismissed a complaint against a judge for a pattern and practice of not providing reasons for his decisions when required to do so. The Council had privately reprimanded the judge, but the U.S. Judicial Conference had remanded the case, requiring clear and convincing evidence of an “arbitrary and intentional departure from prevailing law” for a finding of misconduct. The Council stated it could not find clear and convincing evidence of misconduct because of the remand order’s “stringent requirements” for findings about the judge’s state of mind. However, the Judicial Council stated it was “troubled” by the judge’s failure “in many cases to give reasons for his rulings when the law requires that reasons be given, and by Judge Real’s obduracy in implementing many directives from the appellate court.” The Council warned the judge to “be especially vigilant concerning the subject matter of these complaints.”

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