Judicial Conduct Information Service

September-October 2004

Letter to Simes (Arkansas Discipline & Disability Commission October 15, 2004) The Arkansas Discipline & Disability Commission imposed an informal adjustment and decided no further action was necessary against a judge who was pictured on the cover of a musical CD in his robes, holding a gavel, and identified as “Judge L.T. Simes.” The CD was a collection of the judge’s inspirational musical performances. The judge explained that he was attempting to inspire young people from backgrounds similar to his to transcend what may have been difficult beginnings and was motivated by sincere religious beliefs. The Commission commended the judge’s efforts but “found that the CD and its cover constituted a technical, although unintentional, violation of the Code of Judicial Conduct.” In light of the judge’s explanation, the Commission accepted his promise that he would so employ his judicial office in the future and would not sell copies of the CD as a satisfactory and appropriate resolution of the complaint, noting the judge could distribute the copies without charge.

Inquiry Concerning O’Flaherty, Decision and Order (California Commission on Judicial Performance September 29, 2004) (cjp.ca.gov/pubdisc.htm), petition for review denied (California Supreme Court February 2, 2005) (www.courtinfo.ca.gov/courts/ supreme/actions/SL020205.PDF) Adopting a final report filed by masters, the California Commission on Judicial Performance publicly admonished a judge for telling potential jurors in two criminal cases that if, for racial reasons, they would not be able to give the defendant a fair trial, they should lie or violate their oath to tell the truth during voir dire. In December 1999, the judge presided over a jury trial in People v. Mello. Mello, an African-American, was charged with second degree robbery and false imprisonment. The prospective jurors were sworn to tell the truth during voir dire. According to the judge’s recollection, the jury panel was overwhelmingly Caucasian. Concerned that racial bias could effect the verdict, the judge instructed the panel:

Now, a touchy subject. Some of these voir dire issues are kind of touchy here. If you feel that an issue is so sensitive that you’d rather not answer it in front of all these people, we can arrange so that it would be the Court, myself, the two attorneys, the defendant and the court reporter, but some of these questions do need to be asked.

All right. Here’s a sensitive one. The defendant is African American. Okay. Almost everybody in this courtroom is white, Caucasian.

Now, race simply does not -- I don’t want any racism in my court, which most of you know by now, but I go a little further than that.

I recognize that most people in today’s age don’t want to raise their hand and say I am a bigot or I’m a racist. So what I’m going to do, if any of you have the slightest doubt that you might not, for racial reasons, be able to give this defendant a fair trial, I’m going to give you permission to lie.

I want you to tell me -- there’s plenty of other reasons, which you as intelligent people know that you can dream up, how you will not -- you can get out of sitting here.

Okay. I want you to come up with something so that you can get out of sitting here. I don’t want that issue to raise its head in this courtroom. All right. Can everybody assure me of that?”

The Commission noted that prior to instructing jurors that they could lie regarding racial animus, the judge had not consulted other judges regarding the propriety of the instruction, had not heard of any other judge giving a similar instruction, and was unaware of any cases, statutes, or other authority that allowed a potential juror to make up an excuse in order to be dismissed from the jury. It had never been suggested at a judicial education class attended by Judge O’Flaherty that judges should have jurors lie during voir dire; the established practice in the county, as throughout California, was to have jurors answer all questions truthfully during voir dire. Mello was convicted. In April 2002, the court of appeal, by unanimous vote, reversed Mello’s conviction on the grounds that the judge’s instructions violated the defendant’s constitutional rights to a fair and impartial jury and to due process of law. In February 2000, Judge O’Flaherty presided over a jury trial in People v. Abbaszadeh. Abbaszadeh, an Iranian immigrant, was charged with grand theft by false pretenses and sale of securities by means of false statements or omissions. After the prospective jurors were sworn to tell the truth during voir dire, Judge O’Flaherty told the jury panel:

Now, you probably all know that race and nationality have no place in this courtroom. The very integrity of the system that has developed in the last several generations depends on that we keep this social problem at least out of the courtroom.

Now, obviously being labeled a bigot or a racist, this sort of thing, is insulting to most people. And so it’s entirely possible that if you harbor these types of feelings that you may not want to raise your hand and basically put a sign on yourself saying: I am a racist, etcetera.

I don’t want somebody who harbors those types of feelings sitting on this jury, for obvious reasons.

So I would ask that you do whatever you have to do to get off the jury. And it’s much more important, in my opinion, that you get off the jury, even if, you know,

2 you have to answer my questions in such a way that you get off in some other way, then do it.

Does everybody understand that?

Is there anybody in the 18 who has a slightest doubt that they can give the defendant in this case a fair trial or in any way consider his nationality or race or this sort of thing?

Is there anybody who feels that way?”

Abbaszadeh was convicted. In February 2003, the court of appeal reversed Abbaszadeh’s conviction and remanded the matter with directions to reassign the case to a different judge. The Commission noted that while the instruction in Abbaszadeh did not give potential jurors direct permission to lie as in Mello, nevertheless it invited potential jurors to hide their racial bias. Noting that the court of appeal had described the judge’s instructions in Mello as “grave error” and “astonishing,” and in Abbaszadeh as “shocking” and “notorious,” the Commission stated, “arguably, such unquestionably alarming behavior” constitutes bad faith, that is, a judge’s reckless or utter indifference to whether judicial acts being performed exceed the bounds of the judge’s prescribed power.

Here, Judge O’Flaherty’s laudable objective of routing out bias seems to have blinded him both to his extra legal method of accomplishing the goal, and to the possible or even likely consequences of authorizing lying in his courtroom. However noble the goal, the ends cannot justify any and all means. At some point, a judge’s obliviousness to the consequences of the means to a given end may override, as a matter of law, a judge’s statement of subjective good intent.

The Commission stated, however, that it was willing to allow the masters’ acceptance of the judge’s testimony that he was acting in good faith to be dispositive and, therefore, accepted the masters’ conclusion that the judge had not committed willful misconduct. The Commission found that the judge had committed conduct prejudicial to the administration of justice that brings the judicial office into disrepute, which includes unjudicial conduct undertaken in good faith. The Commission stated that “it is incomprehensible to us that any objective person could observe, or later hear about, Judge O’Flaherty’s serious undermining of the jurors’ oath without it negatively influencing such person’s opinion of the entire ensuing process in the courtroom, including his or her esteem for the judge presiding.” The Commission also concluded that the judge’s conduct “was inconsistent with canon 2A, requiring judges to ‘respect and comply with the law’ and to ‘act at all times in a manner that promotes public confidence in the integrity’ of the judiciary, as well as canon 1, imposing a similar obligation on a judge to uphold the integrity of the judiciary.” Rejecting the judge’s argument that his conduct constituted “mere legal error” that could not be sanctioned, the Commission stated that by giving “a series of improper directives to the various jury panel members in two separate cases,” he had engaged in a

3 repeated course of broad-based wrongful conduct and noted that the appellate court had held that the instructions violated the defendants’ federal and state constitutional rights, were “structural,” and “irremediably tainted the trial by making it impossible for the parties to know whether a fair and impartial jury had been seated.” Noting that there was clear law from the state supreme court concerning the proper way to get bias out of the courtroom, the Commission concluded that even though the judge was not aware he was violating that law when he implemented his own procedures, the judge’s “generalized and serious lack of awareness or concern that the consequences” of his conduct constituted an intentional disregard of the law. The Commission rejected the judge’s argument that the two reversals by the court of appeal and the extensive news coverage of those decisions in the local press already have provided adequate notice to the public that he committed error. The Commission noted that the court of appeals had referred the matter to the Commission as “’the body best suited to determine whether Judge O’Flaherty’s actions constitute actionable judicial misconduct.’” The Commission acknowledged that the appellate court had vindicated the defendants’ rights by reversing the convictions but emphasized that its mandate is the ‘“enforcement of rigorous standards of judicial conduct’” and ‘“the maintenance of public confidence in the integrity … of the judicial system.’”

In our view, therefore, it is necessary for this commission publicly to express its views that the instructions to lie, however well intended, are incompatible with fundamental principles of the administration of justice. They constitute unjudicial conduct that is prejudicial to public esteem for the judicial office, and improper conduct by a judge that reflects an intentional disregard of the law, a disregard for fundamental rights and an abuse of judicial authority. This is different from the appellate court’s rulings concerning the defendants’ constitutional rights in the underlying prosecutions.

Rejecting the judge’s assertion that he should not be subject to discipline because he was condoning lying only in limited or narrowly-defined circumstances, the Commission stated, “We could not disagree more.”

Lying of any kind is never appropriate in a court of law, the very existence of which is the ascertainment of the truth. White lies, limited lying, carefully-defined permissible lying are at the edge of a slippery slope that we decline to even approach. We cannot conceive that any judicial complicity in any lying in any courtroom ever could be proper, no matter how laudable any other goal the lying may be thought to advance.

We repeat the masters’ apt summation here: “The public expects and embraces the concept that a judge shall be faithful to the law. This is so fundamental to a system of justice that it serves as a basic cornerstone of public confidence.” Where serious acts of misconduct that undermine public confidence take place in open court, public discipline is “appropriate to assure the public that such actions are not condoned.” Irrespective of the intended objective or any attenuating circumstances, judicial complicity in lying in a courtroom cannot be tolerated.

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In the Matter Concerning Klein, Decision and Order (California Commission on Judicial Performance October 21, 2004) (cjp.ca.gov/pubdisc.htm) The California Commission on Judicial Performance publicly admonished a judge who had materially departed from the court of appeal’s directions on remand after reversal of a judgment he had entered in a case. From 1999 through 2002, the judge presided over a case in which two tenants sued their landlord for injuries caused when a ceiling fell on them. After the defendant failed to obey certain discovery orders, the judge struck the defendant’s answer, and a default prove-up hearing was held to assess damages. At the beginning of the hearing, the judge denied the defendant’s request that the court hear a motion for reconsideration of its order striking her answer. Thereafter, testimony was given by one of the plaintiffs and an orthopedic surgeon; the surgeon testified that the cost of diagnosis and treatment of each plaintiff was approximately $3200. Because the defendant was in default, defendant’s counsel did not cross-examine the witnesses or otherwise participate. The judge found that fair compensation to the plaintiffs was $200 for medical expenses and $1050 for other damages, $300 of which was not compensable. The judge then ordered nominal damages of $1 to each plaintiff because the plaintiffs’ statement of damages was served on the defendant after she had committed the discovery violation that resulted in entry of a default as a sanction. The judge concluded, “I suppose this case illustrates adage, ‘Be careful what you ask for. You might get it.’” The judge then asked defendant’s counsel whether the motion for reconsideration of the court’s order striking the defendant’s answer was withdrawn; counsel said that it was. The plaintiffs appealed, and the court of appeal reversed the judgment. The appellate court found that the judge’s determination that $100 each would adequately compensate the plaintiffs for their medical expenses was arbitrary and capricious and that the defendant had received adequate notice of her potential liability prior to entry of the default judgment. The appellate court instructed the trial court on remand “to enter a new default judgment in accordance with the evidence [plaintiffs] presented at the prove-up hearing on October 24, 2000.” On August 2, 2002, the judge on his own initiative set a hearing on the defendant’s previously withdrawn motion for reconsideration of the order striking defendant’s answer. On August 5, plaintiffs filed the peremptory challenge. On the same day, the judge issued an order striking that challenge as untimely as to “any proceedings other than conduct of a new trial.” On August 8, plaintiffs filed a challenge for cause against Judge Klein. On August 13, Judge Klein issued an order striking the for cause challenge “because on its face, it discloses no legal grounds for disqualification.” On September 9, 2002, plaintiffs petitioned the court of appeal for a writ of mandate contesting the judge’s striking of the peremptory challenge. Although denying the petition as untimely, the court of appeal nonetheless expressed its view that the petition had merit and reminded the trial court of its inherent authority to reconsider the two challenges. On September 18, the plaintiff filed another peremptory challenge. On October 18, the judge granted the defendant’s previously withdrawn motion for reconsideration, which had been refiled on September 11. He went on to rule that the defendant could only call certain witnesses if she provided their names and addresses “at

5 least 60 days before the postreversal [sic] trial date.” The judge then accepted the plaintiffs’ peremptory challenge. The plaintiffs petitioned the court of appeal for a writ of mandate. The court of appeal issued a writ of mandate ordering Judge Klein to vacate his order granting reconsideration and compelling compliance with its remand directions. The appellate court stated that “logic leads to no other conclusion but that the trial court’s order materially departed from our directions on remand” and held that the order was “unauthorized and void.” The appellate court stated: “When an appellate court’s reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void.” The Commission found that Judge Klein’s actions after the appellate reversal of his judgment displayed abuse of authority, bias, and embroilment. The Commission concluded: “His actions were not simply legal error but reflected a flagrant disregard of the order of the Court of Appeal remanding the case for a redetermination of damages, as well as an abandonment of his role as a neutral arbiter.”

In the Matter of Kouros, 816 N.E.2d 21 (Indiana 2004) Based on the recommendation of the Commission on Judicial Qualifications, the Indiana Supreme Court removed a judge (1) who, over a substantial period, proved either unable or unwilling to issue timely and documented decisions and (2) whose representations to the court about measures taken to conduct the court’s business in accord with acceptable standards had proven unreliable. The court ordered that the removal be effective February 25, 2005, so that the judge will not lose her eligibility for the pension benefits when she reaches retirement age, finding the delay was appropriate given the judge’s years of service and the lack of moral culpability. The court also ordered that the suspension with pay it had previously ordered remain in effect until then. The court ordered that the judge would not be suspended from practicing law in Indiana and that she may practice law after her removal becomes effective. The court also assessed costs against the judge. During 1999-2001, in at least 35 felony cases, the judge pronounced sentence orally but did not promptly issue a written order. Most of the delays were between a few weeks to a few months; five of the delays were of five to six months; one involved delay of 10 months, three of 14 or 15 months, and one of 27 months. In a few cases, the chronological case summary, in which the trial court clerk records the judicial events, does not reflect the entry of an order at all. More than a few of the defendants jailed in the county during these delays became the subject of incident reports involving fighting and other rule violations. One case involving a 15-month delay led to a federal lawsuit by the defendant, who claimed that the delay in transferring him to the Department of Correction to serve his six-year sentence deprived him of educational opportunities not available at the jail. In early 2001, after receiving a report regarding the judge’s backlog, the supreme court directed the judges of the court to review the delays, report whether a large-scale problem existed, and, if so, submit a plan for addressing it. On February 5, 2001, the senior judge represented that there were 330 files in the judge’s office awaiting the entry of orders and return to the clerk’s office. The four criminal division judges, including

6 Judge Kouros, signed a report to the supreme court stating that Judge Kouros “has initiated a new method of transcribing and processing docket entries contemporaneously with the making of said entries in open court, so that the backlog dilemma should not occur in the future” even though the transcription equipment referred to was not installed until nearly two years later in February 2003. In January 2002, after an inquiry by the Commission into delays in the judge’s court, the Commission’s counsel wrote the judge reminding her of the importance of “housekeeping” in her court and to warn that an appearance of disarray leaves the impression that the court’s docket is in a similar state and directing her to address the issue to avoid criticism and concern over the management of the court. In February 2002, Commission’s counsel wrote to the judge again and advised her that although the Commission’s inquiry was being dismissed without prejudice, the Commission would reopen the matter if the problem recurred and advised the judge to “maintain scrupulous attention to the processing of cases and . . . not allow your office to appear to be in disarray.” On October 21, 2002, the supreme court instructed the division of state court administration to monitor the judge’s case processing and report to the court. On a visit to the judge’s court, court administration staff observed over 200 files for cases in which hearings or trials had occurred but no corresponding orders or chronological case summary entries had been made. In one, the judge continued a post-conviction relief hearing, but the defendant was transferred from the department of corrections for the hearing anyway because no order of continuance was issued. In another, the judge ordered that a defendant be held without bond, but did not reduce the order to writing, and the defendant posted bond five days later. In four cases, the judge authorized bench warrants for the arrest of defendants but failed, for periods ranging from four to 11 months, to transmit the orders to the clerk’s office. In three other cases, the judge had sentenced the defendant but the sentencing order was not issued for several months. Four other cases had assorted orders that were either not signed or not transmitted to the clerk’s office for months. The division of state court administration also observed that the surfaces of desks were covered with files, many of which were covered with “post-it” notes documenting the court’s decisions. The division of state court administration initiated a proceeding under a court rule that allows a petition for appointment of a judge pro tempore if the regular judge is unable because of physical or mental infirmity to perform the duties of her office, or fails, refuses, or neglects to perform the duties of office without good cause. On January 17, 2003, finding an unreasonable delay and backlog in processing cases, the court required the judge to prepare necessary orders in cases whose files were checked out from the clerk’s office, sign those orders, cause entries to be made on the chronological case summary, and return the case files to the clerk by March 6, 2003. The order also required the judge to take all measures necessary to eliminate her court’s backlog, including, at a minimum, instituting and continuing to use a dictation system for the contemporaneous recording and production of written orders and chronological case summary entries; ensuring that every order reflects the actual date that is signed by the judge and that each chronological case summary entry reflects the date that such entry was made on the court’s computerized case management system; within 48 hours of its announcement, reducing or causing to be reduced to a written order any decision the court announces

7 during a hearing, a trial, or in any other matter before the court, signing such order, and making or causing an appropriate entry to be made in the chronological case summary; within 24 hours, transmitting or causing to be transmitted to the clerk a written order reflecting any decision announced in open court in the vast majority of cases, or within a maximum of 48 hours in all cases; returning or causing to be returned to the clerk within 48 hours of being signed out, any file of a case on which a decision has been announced in open court; and ensuring that no more than 80 files are checked out from the clerk at any given time. Pursuant to the order, on March 4, 2003, the judge filed a report with the supreme court certifying, among other things, that “each and every minimum standard set out in of the order has been and will continue to be followed” and “every effort will be made to process cases in the manner outlined in this Court’s order.” On April 21, 2003, the division of court administration visited the judge’s court again and found approximately 171 case files checked out from the clerk’s office to the judge’s court, exceeding the ordered limit of 80, and learned that as of the date on which the judge filed her report certifying compliance with the order, the judge still had, contrary to the court’s order, possession of 11 files that had been checked out from the clerk’s office in January or February 2003. The division of court administration also found 13 cases in which the judge had signed orders but not returned the files to the clerk’s office within 48 hours and several cases in which sentencing orders were not timely issued. Those orders included a February 26 order revoking probation, which was not transmitted to the clerk until April 7; October 24, 2002 orders entering a conviction and discharging a defendant from probation, not transmitted to the clerk until April 21, 2003; a February 26 order allowing withdrawal of a petition to revoke probation and releasing a defendant, not transmitted to the clerk until April 21; a February 27 order discharging a defendant from probation, not transmitted to the clerk until April 21; a March 4 order revoking probation and an April 1 sentencing order, which were not transmitted to the clerk until April 21; a June 14, 2002 order extending probation not transmitted to the clerk until April 21, 2003; a March 7 order striking a contempt finding not transmitted to the clerk until April 21; a March 13 order granting a continuance to April 11, which was not transmitted to the clerk until April 21; and a January 31 sentencing a defendant to a suspended term of 18 months that should have resulted in the defendant’s release but for the judge’s failure to issue a timely order, resulting in the defendant remaining in jail until released by another judge on February 5. At the request of the division of state court administration, the supreme court issued an order that the judge appear and show cause why a judge pro tempore should not be appointed to her court. In a response filed June 16, 2003, the judge admitted a delay in processing cases that “reflects negatively not only on the Lake Superior Court, Criminal Division 3, but on the bench generally.” On June 27, 2003, the court found that the judge had failed to perform her duties without good cause and that significant improvement in the administration of her court had not been sufficiently demonstrated and appointed a judge pro tempore until the judge’s term ended or she became able to perform those duties. The court stated that the judge could petition to be allowed to resume the duties of her office after 90 days. When Senior Judge Kickbush assumed the duties as judge pro tempore, he found several files in the secretary’s office that had been checked out from the clerk’s office by the judge’s court for years. The chronological case summary entries for those cases had

8 not been made; those files had to be reconstructed by reviewing notes, the court reporter’s tapes, and contacting the attorneys on the case. During a visit by division of state court administration personnel to Judge Kickbush, they discovered storage boxes from Judge Kouros’s office containing not only newspapers, magazines, and phone notes, but also a letter from a defendant whose competency was in question that had not been noted on the chronological case summary or copied for the defendant’s file and an original HIV report. Judge Kickbush also discovered two motions for change of judge critical of the judge’s demeanor and/or inability to manage her court that had not been placed in the case files. On September 29, 2003, in a petition requesting permission to resume her office, the judge represented that she had discussed with the director of the division of state court administration the importance of recognizing “the specifics of this Court’s previous orders,” conferred with fellow judges from around the state to learn more about operating a busy urban court, attended conferences on time and case management, and worked with the division of state court administration to learn how to manage her court. The judge represented that if reinstated, she would transmit written orders to the clerk’s office and return the files to the clerk within 48 hours of when the decisions were announced in court and would have no more than 80 files checked out from the clerk at one time. The judge also wrote a letter in support of her request for reinstatement, stating that her “past problems are totally behind her.” On December 12, 2003, the supreme court ordered that the judge be allowed to resume her judicial duties based upon her conduct during the suspension and her assurances that she would manage her court effectively in the future. Meanwhile, on September 26, 2003, the Commission filed a notice of the institution of formal proceedings and statement of charges against the judge in 78 counts. On March 25, 2004, the court directed the three masters appointed to conduct the hearing to consider, among other things, the judge’s compliance with the order of January 17, 2003, following her reinstatement. Evidence about the post-reinstatement period showed that the judge’s office and bench were in substantial disorder on March 29, 2004. In 40 cases in which sentencing hearings were held during the post-reinstatement period, the judge failed to return files and sentencing orders to the clerk’s office within 48 hours, the delays ranging from seven days to over two months, with at least half of the 40 cases involving delays of two weeks or more. Also during this period, the judge issued three arrest warrants in cases whose files were not checked back into the clerk’s office within 48 hours of the warrant’s issuance. In another case, charges were dismissed, but the file was not returned to the clerk’s office for 10 days. Motions for psychiatric examinations were granted in one case on March 12, 2004, but orders remained in the file with the court as of March 29, 2004. On that same date, nine files with signed orders were found in the judge’s court, having not been returned to the clerk’s office within 48 hours of when they were checked out. Seven other files in the judge’s court that day had been checked out for weeks or more and contained unsigned orders bearing dates one to three weeks earlier. The judge’s office contained other signed orders dated weeks earlier with no file stamp and orders dated weeks earlier with no signature. Inspections of the clerk’s records indicated that, not counting files checked out to magistrates, there were at least 137 files checked out from the clerk’s office to the judge’s court on February 24 and March 29, 2004, and 163 checked out to the court on March 26, 2004. Having received stipulations and documentary evidence and heard testimony on

9 April 22, 2004, the masters filed their findings of fact, conclusions of law and recommendation. Pursuant to the Commission’s request, on July 22, 2004, the court suspended the judge with pay pending the resolution of the matter. A few days later, the court appointed a second judge pro tempore. The judge stipulated and the masters found that the judge had failed to issue sentencing orders promptly during 1999-2001. The Commission had also charged that the judge had stated in her report to the court on February 16, 2001, that she had initiated a new method of contemporaneously transcribing and processing entries when the transcription equipment was not actually installed until February 2003. The court concluded that by not providing it with full, accurate information, the judge had violated Canons 1 and 2 and committed conduct prejudicial to the administration of justice. The judge stipulated and the masters found that the judge had failed to dispose of judicial matters promptly based on some of the delayed orders that the division of state court administration personnel discovered during the visit to the judge’s court on October 24, 2002. The court agreed and further concluded that through such delays, the judge committed conduct prejudicial to the administration of justice, including but not limited to, the unnecessary transportation of a prisoner whose hearing had been continued, the posting of a bond by a defendant who had been orally ordered to be held without bond, and the belated transmission of warrants to the clerk’s office for issuance months after they were ordered. Agreeing with the masters, the court concluded that by allowing her office to return to a state of disarray (a condition about which the Commission had warned her), the judge violated Canon 2 and committed conduct prejudicial to the administration of justice. The court also concluded that by having such a large number of files checked out from the clerk’s office in violation of its order, the judge violated Canons 1 and 2 and committed conduct prejudicial to the administration of justice. Agreeing with the masters’ conclusions based on the judge’s stipulation, the court concluded that on the date the judge certified that she was in compliance with the court’s January 17, 2003 order, she possessed 11 case files in violation of that order, violating Canons 1, 2, and 3B(9) and constituting conduct prejudicial to the administration of justice. Agreeing with the masters’ findings based on the judge’s stipulation, the court concluded that by failing to prepare, sign, and return orders to the clerk’s office within 48 hours as required by the court’s order, the judge violated Canons 1, 2, and 3B(9) and committed conduct prejudicial to the administration of justice. In mitigation, the court noted that the judge had demonstrated an effort to improve her court-management skills during her approximately six-month suspension and presented uncontradicted testimony that she was working on weekends. The court noted that the judge has a history of public service that predates her assumption of the bench, her misconduct did not involve any moral turpitude or misuse of the judicial power to satisfy her personal desires or interests, and she had expressed remorse and apologized. The court also noted that the judge was diagnosed with multiple sclerosis 20 years ago and has undergone treatment, including several hospitalizations and weekly injections. She consulted mental health professionals during her first suspension and was diagnosed with obsessive-compulsive disorder for which she has sought and received therapy. The court stated that the need for the judge to monitor and manage these conditions may have some mitigating effect but concluded that effect is tempered by the statements of her

10 doctors and the judge herself that her health issues do not impact negatively or interfere with her ability to function as a judge. However, the court noted significant factors weighing against the judge: she was not a novice to the bench when the misconduct occurred, the misconduct was not isolated but included a persistent failure to perform judicial duties over a substantial period and involved acts and omissions in the judge’s official capacity rather than her personal capacity, her certifications to the court were not accurate, the misconduct affected not only the parties but also others interested in the efficient operation of the criminal justice system, and lesser, non-punitive attempts had failed to bring her performance to an acceptable level.

Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (U.S. District Court for the Eastern District of Kentucky 2004) The United States District Court for the Eastern District of Kentucky entered a preliminary injunction prohibiting the Kentucky Bar Association and Judicial Conduct Commission from enforcing the canon in the code of judicial conduct providing that a candidate for election to judicial office “shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [and] shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court,” which is Canon 5B(1)(c). However, the court held that the plaintiffs were not likely to prevail on their claim that the state’s recusal statute and canon have the effect of chilling speech by requiring judicial candidates to decline to announce their views on various issues for fear they may have to later recuse themselves if that issue later arises in a case before them. The plaintiff had distributed questionnaires to judicial candidates in Kentucky that included the statement: “Your responses indicate your current view on the legal issues and do not constitute any pledge, promise, or commitment to rule in any particular way if the legal issue involved comes before you for decision.” It asked questions such as:

In Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999), the Vermont Supreme Court held that the Vermont Constitution required that same-sex couples be permitted to enter into civil unions that encompass state rights that attach to legal marriage. I believe that the Kentucky Constitution does not require that same-sex couples be permitted to enter into civil unions that encompass those state rights that attach to legal marriage.

______Agree ______Disagree ______Undecided ______Decline to Respond

All candidates declined to respond to some or all the questions, citing the code of judicial conduct, and the Family Trust Foundation sued. The judge rejected the defendants’ arguments that the plaintiffs lack standing because the relevant ethical rules do not apply to them and because they have not suffered a direct, concrete, and particularized injury; that the case was not ripe because it is a pre-enforcement challenge; and that the court should abstain. The federal court did hold that, “to the extent that the promises and commit clauses attempt to prevent judicial candidates from promising to rule a certain way on cases,

11 controversies or issues likely to come before the court, the state has a compelling interest in such a restriction.”

It is an entirely different matter for a judicial candidate to announce a view on a legal matter than it is for him to promise or commit to rule in a certain way. It is neither customary nor encouraged for judicial candidates or judges to make such promises or commitments. While we do expect judicial candidates to both consider and discuss legal issues, White, 536 U.S. at 777-78, we do not expect them to pre-commit themselves to a particular outcome. There is a significant distinction between a predisposition to rule a certain way and a commitment to do so. A commitment to rule a certain way displays an unacceptable closed- mindedness, indicating that the candidate would not faithfully consider the arguments presented to him once an actual case is before him. A judge who has committed himself seriously erodes the public’s confidence in the judiciary.

Regarding the second issue, Canon 5B(1)(c) is not underinclusive, to the extent that it prohibits judicial candidates from promising to rule in a particular way on an issue likely to come before the court, because the only time a promise to rule a certain way has any meaning is in the context of a judicial campaign. If a lawyer simply announced one day “I promise to vote to overturn Roe v. Wade,” the state would not have a compelling interest to restrict that speech in furtherance of its goal of maintaining an “open-minded” judiciary because there would be no connection between the speech and the state’s goal. Such a promise only takes on meaning when made in a judicial campaign. Thus, unlike a general announcement of position, which has the same impact whether made before or during a judicial campaign, a promise to rule a certain way is only relevant when made during a judicial campaign.

However, the problem is, the court stated, “that the clauses are not so restricted and thus apply to a broad swath of promises that are not protected by any compelling government interest” because they are not limited to restricting campaign promises to rule a certain way on issues likely to come before the court but apply broadly to nearly all promises made during a campaign and any commitment about an issue likely to come before the court. The federal court noted that the Florida Supreme Court had restricted its canon to a candidate’s promises of “favorable treatment for certain parties and witnesses who would be appearing before her” (Inquiry Concerning Kinsey, 842 So. 2d 77 (Florida), cert. denied, 124 S. Ct 180 (2003)), and that the New York Court of Appeals had similarly limited the promises clause to allow promises about “future conduct provided such conduct is not inconsistent with the faithful and impartial performance of judicial duties” (In the Matter of Watson, 794 N.E.2d 1 (New York 2003)). The court noted that the Kentucky Supreme Court had previously applied the canon to a judicial candidate who had promised “not to let anyone walk away before justice is served” (Summe v. Judicial Retirement and Removal Commission, 947 S.W.2d 42 (Kentucky 1997)) and to a candidate who had announced that he was “pro-life” (Deters v. Judicial Retirement and Removal Commission, 873 S.W.2d 200 (Kentucky 1994)). Thus, the court concluded that “Kentucky is simply using the promises and commit clauses as a de facto

12 announce clause.” The court also held that the canon was not necessary to achieve the state’s objectives because Kentucky’s recusal rules ensure impartiality without restricting constitutionally protected speech. The court did reject the plaintiffs’ argument that the commit clause is impermissibly vague because, in addition to implicating actual commitments, it forecloses statements by judicial candidates that “appear to commit” them to a certain outcome.

It seems that a person of ordinary intelligence could determine most circumstances in which a statement might appear to commit him to an issue, even though the candidate did not consider it a commitment. There could be situations at the margins, however, in which reasonable people might disagree whether a candidate “appears to have committed” to a particular issue. In these situations, the determination might be made in the type of ad hoc and subjective manner that is typically disfavored when dealing with protected speech. As with overbreadth, however, a court can only facially invalidate a statute for vagueness if the statute chills a substantial amount of protected speech. While the “appear to commit” language may be overbroad, it does not appear to be impermissibly vague because the speech it implicates “at the margins” is insignificant.

With respect to the plaintiffs’ challenge to the recusal statute and canon, the court found that the recusal laws serve the state’s interest in impartiality in the sense of open- minded and that the laws are narrowly tailored to serve that interest. The court also rejected the plaintiffs’ argument that the laws are “unconstitutionally overbroad,” stating although they may “have the effect of chilling some speech, the Court cannot conclude that in light of the state’s compelling interest in maintaining the impartiality and appearance of impartiality of the courts that Canon 3E(1) and K.R.S. § 26A.015(2)(e) prohibits a ‘substantial’ amount of protected speech in relation to its many legitimate applications,” stating a judge can determine those circumstances in which a statement might appear to commit him to an issue and thus require recusal from a case involving that issue. The court also noted that “if the Court were to invalidate the recusal laws based on overbreadth, then the state’s ability to safeguard the impartiality or appearance of impartiality of the judiciary would be greatly compromised.”

Commission on Judicial Performance v. Gibson, 883 So. 2d 1155 (Mississippi 2004) Accepting the joint motion for approval of a recommendation filed by the Commission on Judicial Performance and a municipal court judge, the Mississippi Supreme Court publicly reprimanded the judge and fined him $330 for dismissing, without notice or hearing, a fine imposed by another judge. The court also assessed costs of $100 against the judge. The $330 fine was based on the amount lost by the city in fines and court costs as a result of the judge’s actions. In August 1994, Floyd Yates was charged with driving while his license was suspended. Yates failed to appear in court, and Judge Jimmy Vance continued the case until September. Yates again failed to appear in September, and Judge Vance found him guilty and fined him $200 plus $22.50 in court costs. In June 1997, Judge Vance cited Yates for contempt of court for failure to pay the fine and imposed an additional fine of

13 $107.50. In April 1998, a 10-day notice of failure to pay was sent to Yates, and the next month, the court suspended Yates’ drivers license. In February 2003, Judge Gibson set aside the judgments by Judge Vance without any notice or hearing. The court adopted factors to be applied in the determination of all sanctions in judicial misconduct proceedings: (1) the length and character of the judge’s public service; (2) whether there is any prior case law on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances. The court stated that moral turpitude “includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.

Commission on Judicial Performance v. Sheffield, 883 So. 2d 546 (Mississippi 2004) Accepting the joint motion for approval of recommendation filed by the Commission on Judicial Performance and a municipal court judge, the Mississippi Supreme Court publicly reprimanded the judge and fined him $192 for suspending fines to teach the county a lesson over lack of funding for a court bailiff. The court also assessed costs of $100. Upset over a lack of funding for a court bailiff in 2003, the judge stated words to the effect, “he would teach the county a lesson or would make the county pay.” Several days later, the judge suspended fines in 13 criminal cases, depriving the county of the funds. In four bad check cases, the judge not only suspended the fines but also suspended the state assessments, in violation of state law. The Commission had previously cautioned the judge about suspending such assessments in 2002.

In the Matter of Thomas, Findings of Fact, Conclusions of Law, Imposition of Discipline and Consent Order (Nevada Commission on Judicial Discipline October 7, 2004) (www.judicial.state.nv.us/decision%20index.htm) Pursuant to a stipulation, the Nevada Commission on Judicial Discipline censured a former judge for multiple convictions for misdemeanor driving under the influence of either alcohol, drugs, or both; the Commission also permanently barred the judge from serving as an elected or appointed judicial officer in Nevada. The judge had been convicted on January 29, 2004, February 2, 2004, and February 13, 2004, for DUI incidents that occurred on August 24, 2003, October 8, 2003, and November 26, 2003, respectively. (Two of the incidents took place in California.) The Commission had previously issued an interim order of suspension, and the judge had resigned.

In the Matter of Freitag, Findings of Fact, Conclusions of Law, Imposition of Discipline, and Consent Order (Nevada Commission on Judicial Discipline October 7, 2004) (www.judicial.state.nv.us/decision%20index.htm) Pursuant to a stipulation, the Nevada Commission on Judicial Discipline censured a former justice of the peace and fined him $2,000 for failing to decide 48 cases over a prolonged period; also pursuant to the judge’s consent, the Commission required the

14 judge to issue a written apology through the Commission to the effected litigants and barred him from serving as an elected or appointed judicial officer in Nevada. The judge agreed that the Commission, in its sole discretion, could deliver the apology to litigants and/or their counsel and allow other public distribution and public access. The judge had retired in the spring of 2003. At the time the judge retired, 12 criminal and criminal-related matters and 36 small claims and other civil maters were left undecided. Six of the criminal cases involved charges that had been tried by the judge between May 1996 and July 2001 and remain the subject of litigation before the judge’s successor judge, who has to decide whether to allow retrials or dismiss the charges due to the judge’s delay in issuing verdicts. In another case, the defendant had been assessed for mental competency no later than May 200, but was never litigated thereafter; the successor judge had to dismiss the charges due to the delay. Another case involved a bond forfeiture that had last been heard in January 1999, and had laid dormant since then despite more than $50,000 being in dispute. The judge tried 35 small claims or other civil cases between December 1993 and March 2003 for claims between $200 and $5000. There is no clear record of a verdict in 29 of those cases. In at least six cases, there may have been a decision or verdict but there is virtually no legible or otherwise sufficient record to show what the judgment may have been or who may have prevailed. There are cryptic notes in a few of the files suggesting that there were money judgments but no formal record showing what steps may have been taken to document the judgments and notify the parties. Despite inquiry letters by the successor judge, both litigants responded in one case, one or two litigants responded in only11 cases, neither litigant responded in 17 cases. There is a note in one file, apparently made by a court staff member when the plaintiff inquired about the case for the fifth time, “Please, please, please look at this file and give her your decision – she has been so nice and so patient.” The Commission concluded:

The respondent’s willful failure to decide so many cases over such a prolonged period denied the litigants their right to a fair adjudication at all, not to mention a prompt one. Nothing presented by the Respondent by way of mitigation or extenuation could begin to account for much less explain good reasons for this many cases to have been ignored. Given the Respondent’s failure to perform his duty at all, there is simply no step short of a permanent ban on his access to judicial office in Nevada that will protect the integrity of the system.

In re Unfair Election Practice (Hardcastle) (Nevada Standing Committee on Judicial Ethics and Elections Practices October 2004) (www.judicial.state.nv.us/ ethics.htm) In response to complaints by an incumbent judge’s re-election opponent, the Nevada Standing Committee on Judicial Ethics and Elections Practices Committee found that incumbent Judge Gerald Hardcastle has an affirmative obligation to encourage of his wife, Judge Kathy Hardcastle, to refrain from handing out campaign literature for him, from sitting at his campaign table, and from taking any action that may give the appearance of endorsing his candidacy. The Committee found, however, that the evidence did not support a finding that Kathy Hardcastle had solicited funds for Gerald Hardcastle by distributing invitations for his fund-raiser to other judges, noting evidence indicated that not all those who attend judicial fund-raisers make contributions to the

15 candidate hosting the event. Moreover, the Committee found that evidence did not support allegations that Kathy Hardcastle endorsed Gerald Hardcastle by handing out brochures for him and sitting at his campaign tables at several campaign events, noting there was no evidence she spoke on behalf of her husband or in opposition to his opponent at these events.

In the Matter of Bauer, 818 N.E.2d 1113 (New York 2004) Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) in many arraignments, failing to inform defendants of the right to counsel guaranteed by a state statute; (2) on many occasions, imposing exorbitant bail without considering the statutory criteria for determining bail and inducing some defendants to plead guilty without the advice of counsel after they were jailed for longer than the allowable maximum sentence; (3) imposing illegally excessive sentences in four marijuana possession cases; and (4) twice convicting defendants without pleas of guilty or findings of guilt. (For a summary of the Commission determination (In the Matter of Bauer, Determination (March 30, 2004) (www.scjc.state.ny.us/Determinations/ 2004_decisions.htm)), see the April 2004 judicial conduct information service.) Three justices dissented from the decision to remove the judge. The court rejected the judge’s contention that the Commission’s findings of fact “are in fact findings of non-fact,” stating the charges were fully borne out by the record.

The testimony reveals a pattern of abuse by which petitioner on numerous occasions not only failed to advise defendants of their rights but perverted [the statute] by telling defendants that they must engage their own attorneys -- concealing from them that the statute requires the court to assign counsel when warranted and to see to it that the right to counsel is protected. Rather than follow the law, petitioner, in a number of instances, engaged in verbal sparring with defendants and evinced an intent to defeat, not advance, the right to assigned counsel.

(1) Before the referee, the judge claimed it was unnecessary to inform defendants of their right to counsel if from their prior experiences they knew their rights; in some cases, he delayed advising defendants of their right to appointed counsel until he was satisfied that the defendants had first sought paid counsel; and the judge apparently believed the instructions were not necessary when defendants “were not alert enough to understand the advice.” The court held, however:

The law does not contemplate judicial assessments as to whether defendants are experienced enough to know their rights without being told, nor does it authorize judges to inform defendants selectively as to their right to assigned representation. Moreover, if a defendant is not alert enough to understand the advice, the judge should not forego it but must make sure the defendant does understand before proceeding, even -- if necessary -- briefly deferring the arraignment.

16 (2) The court found that the record established that on many occasions, the judge jailed defendants in lieu of bail, without regard for the statutory criteria for setting bail, stating that the judge “often set shockingly high bail and, in several cases, remanded defendants to jail for several days for failure to post bail on charges for which imprisonment was not a legally permitted penalty or upon legally insufficient accusatory instruments.” The court also found that the evidence established that, in some instances, the judge held defendants in lieu of bail for periods beyond the maximum sentence for the offense charged or beyond the period required by speedy trial rules and induced some defendants to plead guilty without the advice of counsel and without informing them that they were entitled to counsel -- and only after the judge had jailed them for longer than the allowable maximum sentence. The court acknowledged that bail is discretionary and that there may be a wide range in the amounts set by reasonable judges but rejected the dissenters’ position that excessive bail can never form the basis for removal. The court concluded that the judge’s conduct was not “an isolated instance of high or injudicious bail-setting, but a pattern of exorbitant bail so extraordinary that we must characterize it as abusive and coercive in the extreme, particularly when accompanied by petitioner’s withholding from defendants their right to assigned counsel.”

In 26 instances, and without regard to the statutory criteria, petitioner set bails ranging from $10,000 to $50,000 for defendants who were charged with petty crimes or violations. By jailing defendants (in lieu of bail) for offenses that rarely, if at all, carry jail sentences upon conviction, petitioner abrogated his duty and abused his position as a judge. Punishing people by setting exorbitant bail, particularly where the offense does not carry a jail sentence, demonstrates a callousness both to the law and to the rights of criminal defendants. Moreover, when coupled with a failure to advise these defendants of their right to assigned counsel, petitioner’s imposition of punitive bail all but guaranteed that defendants would be coerced into pleading guilty: it was the only way to get out of jail.

For example, in one case, without informing the defendant of his right to counsel or determining whether he needed appointed counsel, the judge set bail at $25,000 for a charge of riding a bicycle at night on a sidewalk and without appropriate lights. The maximum fine for the violations was $100, without the possibility of any incarceration. Nevertheless, the defendant suffered seven days in jail because he could not afford to satisfy the bail. The judge then secured a guilty plea from the defendant without any appearance by defense counsel. Finally, the court found that the judge (3) imposed illegally excessive sentences in four marijuana possession cases and (4) twice convicted defendants without pleas of guilty or findings of guilt. Rejecting the judge’s suggestion that the court “examine the credentials of the people who investigated this case, prepared this case, made this case and preferred charges on behalf of the Commission,” the court stated “impugning the integrity of the Commission staff and the Referee . . . does not distract us from the considerable proof against petitioner.” The court noted that the judge had received support asserting that he has generally behaved fairly, even admirably, from a number of sources including defense lawyers and the public defender. However, the court stated that proof that the judge could “behave appropriately when being monitored does not negate the abundant

17 evidence in the record that he has engaged in grievous misconduct when unmonitored” and that the public defender’s apparent ignorance of the judge’s bail practices was consistent with the evidence that the judge set excessive bail when the defendants lacked representation. Finally, the court noted that the judge has consistently maintained that he has done nothing wrong, stating that, while the judge’s “conduct was far from uniformly foul, his utter failure to recognize and admit wrongdoing strongly suggests that, if he is allowed to continue on the bench, we may expect more of the same.” One dissenting opinion arguing that the judge should be censured, in which a second judge joined, questioned whether the Commission’s authority extends to bail decisions even if the judge set “excessive bail,” finding no basis to conclude that the judge’s goal was jail time rather than the defendant’s appearance in court, stating there is no way to discern whether the 19 instances during two years of a 10-year judicial career were representative, and arguing that the Commission offered no evidence that the judge forced any defendant who wanted a trial to plea. The dissent also stated that nothing in the two occasions on which the judge allowed pleas without the presence of the defendant and the four occasions on which he entered inaccurate fines and sentences transformed them from ordinary judicial error into judicial misconduct. This dissenting opinion also noted that the record reveals no intemperate behaviors and no discriminatory comments or motivations and that the judge had never been cautioned that his conduct was inappropriate, noting the misdemeanors on which the judge conducted arraignments were not likely to result in an appeal. Finally, the dissenting opinion agreed that “contrition is important” but cautioned that “judges must be allowed to defend their actions before the Commission and at the same time express a willingness to change their practices,” which the dissent believed the judge had done. The second dissent was troubled by the judge’s practices in setting bail, noting “it is possible to infer from this record that petitioner used very high bail, improperly, to give a brief taste of jail to defendants he thought would benefit from it; and also that in so doing he inevitably made occasional misjudgments that caused severe and unjustified hardships.” However, the dissent concluded that a judge should not be removed solely or primarily because of bail decisions, stating “judges should not be disciplined for exercising their discretion, even where they have repeatedly exercised it poorly.” Although acknowledging that both the absence of contrition and the evidence indicating that Judge Bauer has been a good judge are relevant, the dissent maintained that the central issue must be whether the judge’s conduct was sufficiently bad to warrant his removal from the bench and concluded “by a narrow margin that it was not.”

In the Matter of Magill, Determination (New York State Commission on Judicial Conduct October 6, 2004) (www.scjc.state.ny.us/Determinations/2004_decisions.htm) The New York State Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who had (1) interjected himself and his judicial prestige into a case in which his wife was the complaining witness and (2) initiated a discussion about a pornographic movie in the courthouse with the daughter of a staff member. On January 1, 2001, the judge’s wife, Patricia Magill, received an allegedly harassing telephone call from Mary Abell making accusations concerning Ms. Magill’s

18 daughter. The judge listened to part of the call on an extension in their home. He called the police, and a sheriff’s deputy came to the judge’s home. The judge’s wife signed a complaint charging Ms. Abell with aggravated harassment, a misdemeanor. The deputy issued an appearance ticket to Ms. Abell, returnable on January 25, 2001, in the Maine Town Court where the judge sits. The district attorney moved for the removal of the case, and the case was transferred to the Endicott Village Court. The judge personally delivered the case file to the Endicott Village Court and gave the file to the court clerk, who noted on the file that it had been delivered by the judge, whom she knew to be a judge of the Maine Town Court. When he delivered the file, the judge gave the court clerk his judicial business card, on which he had written a request for an order of protection in favor of his wife and her daughter. The court clerk advised the Endicott Village Justice, Debra Jo Harter, that the judge had delivered the file and had left his business card with a request for an order of protection. On January 31, 2001, the judge telephoned the Endicott Village Court and asked the court clerk why an order of protection had not been issued. The court clerk informed the judge that Judge Harter does not normally issue orders of protection unless someone had been threatened and that Judge Harter had issued a strong verbal warning to the defendant not to have any contact with any member of the victim’s family. The judge strongly requested a written order of protection and said that he would contact the district attorney’s office. The clerk noted the judge’s reply on the case file. The Commission found that on two occasions, the judge interjected himself and his judicial prestige into a case in which his wife was the complaining witness. The Commission stated that, after the case was transferred from his own court, the judge should have refrained from any conduct that might convey an appearance that he was attempting to curry special treatment because of his judicial status. Under the circumstances, the Commission concluded, his personal delivery of the file to the other court could reasonably be construed as demonstrating his personal interest in the outcome of the case, which was reinforced by his use of his judicial business card on which he noted a request for an order of protection, a request that should have come from his wife or her attorney. The Commission noted that as a non-attorney, the judge could not act as his wife’s legal advocate, and even if he had been a lawyer, he could not act as an attorney in a case that had originated in his own court. Several weeks later, the Commission found, the judge again interjected himself into the case by calling the transferee court and expressing displeasure to the court clerk that an order of protection had not been issued. The Commission agreed with the referee’s conclusion that the judge’s call “was part of an overall transaction in which he made clear that he was a judge and was attempting to help his wife,” noting a court of appeals holding that “any communication from a judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office.” (2) In the fall of 2001, Michelle McPherson, who was then around 19 years old, and her fiancé visited her mother, the Maine court clerk, at the court offices. In the presence of Judge Magill and his co-judge, Michelle mentioned that she and her fiancé were planning to go to a local theater. The judge stated that the theater had been a “porn” theater, known for having shown the movie “Deep Throat.” In response to a question by Michelle about the movie’s plot, the judge described the movie in graphic terms. The judge also told Michelle to “watch out for the sticky floors” in the theater.

19 The Commission found that the judge’s comments were injudicious and are deserving of rebuke, stating the judge should not have initiated a discussion about the movie and should have recognized that his remarks might cause embarrassment and discomfort and thus were inappropriate for the work environment. Three members dissented from the Commission’s finding that the judge’s comments about the film and theater are misconduct, arguing the remarks (while in questionable taste) were made off the bench, and not in the judge’s official capacity, to a young adult with whom the judge was acquainted in the presence of her fiancé and others and the young woman was neither offended nor upset.

In the Matter of Simeone, Determination (New York State Commission on Judicial Conduct October 6, 2004) (www.scjc.state.ny.us/Determinations/2004_decisions.htm) Based on an agreed statement of facts stipulating that the Commission make its determination based upon the agreed facts and recommending that the judge be either admonished or censured, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a judge who had presided over numerous matters involving a youth services facility while he was romantically involved with the facility’s director. Two members of the Commission voted to accept the agreed statement of facts but dissented from the sanction and voted to admonish the judge. In December 2001, the judge began a romantic relationship with Suzanne Mitsos the director of Montfort House, one of two primary a residential youth services facility in the county in which the judge sat. From on or about December 21, 2001, to in or about May 2003, the judge continued to preside over matters involving persons in need of supervision who he had remanded to non-secure detention and who had been assigned to Montfort House by the department of probation. During that time, when she appeared in the judge’s court on matters related to Montfort House, Mitsos sat at the same table with and consulted with the law guardian representing persons remanded to Montfort House and sometimes addressed the court on the record to advocate positions in substantive cases on which the judge had to pass judgment. In some cases, Mitsos submitted behavioral reports. Her stated views sometimes opposed the recommendations of the county attorney, the probation department, child protective services, and the office of children and family services. The judge never disclosed to the parties and the attorneys his relationship with Mitsos. The Commission stated: “Each time his friend appeared in his court, respondent should have been reminded of the conflict presented and should have recognized his ethical obligation not to preside in cases involving the facility.”

In the Matter of Pajak, Determination (New York State Commission on Judicial Conduct October 6, 2004) (www.scjc.state.ny.us/Determinations/2004_decisions.htm) 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 pled guilty to driving while intoxicated. One member dissented on the grounds that the disposition is too lenient. On or about April 12, 2003, the judge operated a motor vehicle while under the

20 influence of alcohol and was involved in a accident with another motorist resulting in property damages; the judge was charged with driving while intoxicated. The judge pleaded guilty and paid a $500 fine and $125 surcharge. The judge completed an alcohol evaluation program that determined he did not suffer from an alcohol-related pathology and did not need treatment. The determination noted that there was no indication that, at the scene of the accident, in court, or otherwise, the judge exerted or appeared to exert the influence of his judicial office for his own benefit or for anyone else’s benefit or detriment. The Commission concluded:

In recent years, in the wake of increased recognition of the dangers of Driving While Intoxicated and the toll it exacts on society, alcohol-related driving offenses have been regarded with particular severity. We conclude, even in the absence of exacerbating factors, that public discipline is appropriate in this case. Such a result not only underscores the seriousness of such misconduct, but also serves as a reminder to respondent and to the public that judges are held to the highest standards of conduct, both on and off the bench.

In the Matter of Chapman, Determination (New York State Commission on Judicial Conduct October 6, 2004) (www.scjc.state.ny.us/Determinations/2004_decisions.htm) Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a non-lawyer judge for delays in depositing bail checks. On or about January 1, 2001, Brian Stasiak and Hugh Jenkins were charged with criminal mischief and criminal possession of stolen property in connection with damages caused to certain vehicles in the parking lot of a ski resort. The judge arraigned the defendants, set $1,500 bail for each defendant, and committed the defendants to the custody of the county sheriff’s department in lieu of bail. On or about January 4, the sheriff’s department forwarded to the judge two checks, each in the amount of $1,500, representing bail that had been posted on behalf of each defendant. The judge received both bail checks. On February 8, 2001, each defendant pleaded guilty to criminal mischief, 4th degree, in satisfaction of all charges and was sentenced to community service and restitution. At the conclusion of the plea proceedings, each defendant requested the return of bail. The judge did not return bail at that time, indicating that she was not then in possession of her court account checkbook. On February 12, 2001, the judge deposited into her court account the bail check received from the sheriff’s department concerning Stasiak. In March 2001 and June 2001, the attorney for Stasiak contacted the judge to request that she return the bail; he did not speak with the judge but left messages on her answering machine. On June 22, 2001, the county assistant district attorney assigned to the judge’s court sent a letter to the judge requesting that she return the bail for each defendant and advising the judge that only Stasiak’s check had been deposited. On September 20, Stasiak’s mother called the judge’s home and left a message on her answering machine requesting that the judge return the bail. On October 2, Stasiak’s attorney sent the judge a letter requesting the return of Stasiak’s bail. On October 23, the judge contacted the sheriff’s department and indicated that she had not received bail for Stasiak or Jenkins and requested that such monies be forwarded to her. On October 26, the sheriff’s department again sent the judge two checks for $1,500 each

21 for the defendants. The judge then “voided” the check from the sheriff’s department dated October 26, 2001, concerning Stasiak and returned it to the sheriff’s department indicating that she had received the original check. On October 30, 2001, the judge deposited into her court account the check from the sheriff’s department, dated October 26, 2001, concerning Jenkins. On October 30, the judge returned $1,500 bail to each defendant. On November 24, 2003, the judge deposited into her court account the original check issued by the sheriff’s department for Jenkins on January 4, 2001. In addition, in other cases from on or about January 8, 2001, to June 23, 2004, the judge failed to deposit into her court account within 72 hours of receipt, $6,750 in bail monies received from the county sheriff’s department for 12 defendants. The Commission found that numerous checks were not deposited until months or even years after they were received, noting that the judge’s poor record-keeping and mishandling of two $1,500 checks required the issuance of duplicate checks (notwithstanding that one of the checks had already been deposited), and the judge deposited both the duplicate check and the original check (35 months after receiving it) in the same matter. The Commission found that there was no indication that the judge used the funds for personal or otherwise inappropriate purposes, but that the failure to properly safeguard and deposit checks appears to have resulted from poor administration and record- keeping. The Commission also noted that the judge had taken action to improve her record-keeping and depositing practices, with the result that she has now deposited all bail checks received from the sheriff’s department and recognizes that any and all bail checks received must be deposited into her court account as required by rule.

In the Matter of Giese, 686 N.W.2d 382 (North Dakota 2004) Accepting the findings of fact, conclusions of law, and recommendation of the hearing panel of the Judicial Conduct Commission, the North Dakota Supreme Court censured a former judge who had engaged in a transaction with a client and unnecessarily delayed the litigation brought by the client against him. The court also imposed costs of $250. Giese had obtained a warranty deed from a client and recorded the deed; when the client filed suit to get the land back, Giese unnecessarily delayed the proper resolution of that action. Based on that conduct, while a municipal judge, Giese had been suspended from the practice of law for 90 days. In the Matter of Giese, 662 N.W.2d 250 (North Dakota 2003). Before the Commission hearing panel, the judge admitted the allegations but argued that he had already been punished because during the 90-day suspension, he could not perform his duties as judge. The hearing panel had concluded that the judge’s conduct violated Canon 2, which provides that a judge shall avoid impropriety and the appearance of impropriety in the judges’ activities; that public trust and confidence in the judicial office held by Giese was tested by his conduct; and that his defeat in the election was a direct result of that breach of trust. The judge did not file objections, which, under Commission rules, “constitutes acceptance of the findings of fact, conclusions of law, and recommendation for sanction.”

Disciplinary Counsel v. O’Neill, 815 N.E.2d 286 (Ohio 2004)

22 Pursuant to the findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge for two years for (1) repeatedly holding improper ex parte conversations, failing to appropriately exercise judicial discretion, and failing to follow the law in a variety of ways, including unwarranted bond revocation; (2) repeatedly making misrepresentations to lawyers, other judges, and court personnel in the course of her duties; (3) numerous acts of judicial intemperance toward judges, court personnel, counsel, litigants, and members of the public; and (4) personally soliciting campaign contributions through her staff attorney. The court stayed the second year of the suspension conditioned on the judge submitting to and fully cooperating in a mental health evaluation for a complete emotional, behavioral, and if necessary physical assessment and complying with the recommended course of treatment, if any; and, if reinstated to the practice of law, submitting to the supervision of a mentor to be appointed by relator upon reinstatement. The court also taxed costs to the judge. The court noted that the hearing before the Board had been conducted over 19 days during May, August, September, October, and November 2003, and February 2004. There were 99 witnesses, and 529 stipulated exhibits, and numerous other exhibits, in addition to the parties’ factual stipulations. The court noted that “this is an extraordinary case that is ‘complex and hotly contested’ and unprecedented,” and the Board had found that “there is no Ohio case similar in size and scope to the charges against Respondent.” Although the court noted that the case “involves countercharges that this proceeding was politically motivated and has been highly publicized,” the court concluded that the political context and highly publicized nature of these charges cannot distract us from the seriousness of the underlying conduct. (1) The court found that the judge had used a variety of coercive tactics to expedite dispositions in criminal cases, usually as a means to manage her docket. In three cases, the judge forced pleas from defendants by threatening to revoke or actually revoking their bonds, not for acceptable reasons such as that the defendants posed flight risks or safety concerns or had failed to appear, but because the defendants wanted to exercise their rights to refuse an offered plea and go to trial. Similarly, the judge improperly revoked the defendant’s bond in a fourth case because his counsel was not prepared for trial on the trial date. In a fifth case, the judge, after rejecting a misdemeanor plea offered by the parties, threatened to impose the maximum sentence if the defendant did not plead guilty as charged in the indictment and instead chose to exercise his right to a trial. In a sixth case, a criminal defendant who had been charged with felony sex offenses and kidnapping entered an Alford plea to a non-sex-offense misdemeanor, simple assault. The judge ordered the defendant into sex-offender counseling as a term of his probation, which, unknown to defense counsel, would require the defendant to admit that he had committed a sexual assault. When the defendant refused to make this admission, he was discharged from counseling programs, and the judge revoked the defendant’s probation for noncompliance. On appeal, the court of appeals invalidated the sex-offender- counseling condition of the defendant’s probation. On remand, the judge persistently attempted to enforce the condition and to treat the defendant as a sex offender and threatened on the record that if the defendant did not comply with the ordered counseling, the prosecution would file a motion for withdrawal of the guilty plea and that she would then set the matter for trial as a sexual offense. The court found that the judge failed to

23 act as an impartial arbiter, interfered as an advocate, by refusing to comply with the mandate of an appellate court, violated a basic judicial duty, and engaged in improper ex parte communications. In a seventh case, the judge refused to accept two co-defendants’ pleas of no contest to misdemeanors because the pleas were offered on the date of trial, and the judge had a policy that after pretrial, defendants could only plead guilty to the charges in the indictment or go to trial. The court concluded that the judge had “enforced her policy in this instance so vigorously that the co-defendants pled guilty to the indicted felony offense, notwithstanding that both stood to be deported for their crimes.” After their convictions were reversed on appeal because of the coercion, the judge contacted the prosecutor and encouraged her to appeal the reversal, saying, “We’re going to have to fight this,” which the court stated was “a blatant act of advocacy.” In an eighth case, immediately after accepting a defendant’s plea to corruption of a minor, the judge directed defense counsel to solicit “a better deal” from a supervising prosecutor. When the prosecutor refused, the judge attempted to prevail upon the prosecutor herself. The judge further refused the parties’ request for a pre-sentencing investigation that might have justified a community-control sanction for the defendant – an 18-year-old nearly homebound because of a liver transplant -- instead sentencing the defendant to prison. Thereafter, the court found, the judge misrepresented her reasons for the harsh sentence, initially blaming the assistant prosecutor for refusing to waive the pre- sentence investigation in a discussion with a supervising prosecutor, explaining during the disciplinary proceedings that she had already known what a pre-sentence investigation would have revealed, and testifying before the panel that she had wanted to employ a “scared straight” approach with this defendant and would not have considered probation. In a ninth case, on the day before sentencing, counsel for a defendant who had pled guilty asked the judge (with the prosecution’s consent to the ex parte communication) to order a pre-sentence investigation and to continue the defendant’s bond pending the investigation, and the judge agreed. The next day, defense counsel appeared for the 9:00 a.m. hearing, but the defendant was two hours late, explaining that he had been unable to get transportation. Summoning them to the bench, the judge lost her composure, slamming books and desk drawers and screaming about how the defendant had interfered with her intention to leave at 11:00 a.m. that day. The judge then proceeded to sentence the defendant to six months with jail credit, notwithstanding her consent to a pre-sentence investigation on the day before. His counsel was therefore not prepared to speak on sentencing or mitigation. The judge testified before the panel that she did not remember speaking with defense counsel but also insisted that she would not have had a conversation of that kind under the circumstances of that case. The Board credited defense counsel’s testimony and found the judge’s sentencing of his client to be retaliatory, a finding that the court adopted. In a tenth case, a defendant charged with bank robbery made an unexpected plea of guilty to the full indictment at a first pretrial, and the prosecutor requested a continuance until a bank teller was able to be present to make a victim-impact statement, a privilege guaranteed by the Ohio Rights of Victims of Crimes Act. The judge refused, saying “I want to get this case off my docket.” The prosecutor repeatedly refused to proceed until she was permitted to explain on the record why the victim had not been allowed to

24 testify, and the judge repeatedly refused to allow a record to be made. None of these discussions appeared on the record, and the judge did not grant a continuance until the county prosecuting attorney himself gave the judge a copy of the victims’ rights statute. The judge later falsely told the court reporter that the prosecutor was considering disciplinary action for the reporter’s failure to make the requested record. The judge insisted that she had adequate justification for her actions in these cases and that she had not attempted to force the defendants to plead to charges against their wishes. The court found that the judge’s explanations and denials were contradicted by virtually all of the witnesses and, at times, by the records she prepared to document them, accepted the Board’s credibility determinations, and found the judge’s accounts to be implausible. The court stated:

Judges must routinely exercise their discretion in a myriad of ways while executing their duties in the administration of justice, and the abuse of that discretion typically generates an appeal, not disciplinary proceedings. But as the board found, judicial discretion does not extend to these strong-arm measures that respondent used to compromise defendants’ right to trial. Thus, rather than classifying respondent’s actions as an abuse of legitimate discretion, we agree that respondent’s repeated use of the bond process and jail as leverage fell “outside any permissible discretion” and was “totally improper.” For such an egregious departure from the bounds of judicial discretion, professional discipline is warranted.

(2) The court concluded that the evidence established that the judge had engaged in a pattern of misrepresentations in her interactions with judges, litigants, attorneys, and court personnel. In one case, the judge misrepresented in a memorandum to the administrative judge, which she distributed to all of the common pleas court judges, that she had ruled on a petition for an emergency protective order, that she had found that the petitioner had not met her burden of proof, that she had advised the petitioner that she would grant the protection order if the petitioner could not obtain one from the municipal court, and that the petitioner’s non-attorney advocate had not answered her questions. In a second case, the judge falsely advised other judges at a meeting that she had never denied anyone the opportunity to make a record, although she had done so on at least two occasions. In a third case, the judge told a criminal defendant and defense counsel during sentencing that they had not timely appeared for trial at 9:00 a.m. while she had appeared before 9:00 a.m.; but court parking garage records proved that the judge had not arrived until 9:30 a.m. that day. In a third case, the judge misrepresented to court personnel that a court reporter was leaving work early without the judge’s permission and sought to have the court reporter disciplined. Finding “these misrepresentations were not innocuous,” the court concluded, “by misrepresenting events that occurred in court proceedings and in the court itself, respondent failed to treat other judges, litigants, attorneys, and court personnel with courtesy, respect, and honesty and thus undermined public confidence in the integrity of the judicial system.” (3) The court found that “the record shows a pattern of rude, undignified, and unprofessional conduct that included abusive verbal outbursts, unjustified expulsions from the courtroom, and berating or humiliating persons in the presence of others,” noting the judge’s actions were not random, isolated incidents. The court noted that

25 witness testimony painted a hostile work and courtroom environment in which court staff was constantly on edge and persons appearing before the judge were frightened and intimidated because of her volatile and unpredictable personality and that “personnel issues and simple differences of opinion and interpretation could not be resolved because of respondent’s inaccessibility and her steadfast refusal to engage in two-sided dialogue.” The court concluded that that hostile work environment created by the judge “unquestionably compromised the ability of court personnel to perform their important functions to the best of their ability, which directly affects the efficiency and effectiveness of the judicial process.” The court noted that in at least one instance, the judge decision to leave the bench and confront a deputy sheriff while the deputy was escorting an agitated criminal defendant to lock-up directly compromised the safety of every person in the courtroom. The court also noted an incident in which the judge ejected a victim of a brutal attempted murder from the courtroom for whispering to a companion, causing the victim to be absent from both the defendant’s plea and sentence. The court also concluded that the judge had no appreciation of the gravity of her actions or their effect on the integrity and operation of both her courtroom and the court as a whole and that she was completely indifferent to the effect of her actions on the public’s perception of the integrity, impartiality, and fairness of the justice system. (4) As a meagerly attended campaign fund-raiser in the judge’s honor drew to a close, the judge approached her staff attorney and demanded that both her future law firm and her husband’s law firm “step up to the plate and contribute to her campaign” in the maximum allowed amount. The judge stated that her staff attorney’s husband’s firm “owed her” for the favorable verdict it had received in a recent case. The court concluded that the judge had personally solicited campaign contributions through her staff attorney from both the staff attorney’s future employer and her husband’s law firm, while her staff attorney remained a public employee under her control. The Board had not found the judge’s denials credible, and the court deferred to the Board’s determinations on the facts. The court found that the judge’s misconduct had resulted in harm, most notably to criminal defendants who were subjected to the judge’s threats and revocation of bond if they chose to go to trial and the loss of respect for the judicial system caused by the judge’s demeaning treatment of judges, lawyers, litigants, and court employees. As aggravating circumstances, the court noted that the judge’s misconduct evidenced a selfish motive, a pattern of misconduct, multiple offenses, the submission of false statements in the disciplinary process, a refusal to acknowledge the wrongful nature of her conduct, and harm to vulnerable persons, e.g., criminal defendants and court personnel. In mitigation, the court noted it has never disciplined the judge in over 20 years of practice, including over 10 years as a judge and that since 1993, the judge has been actively involved in educating middle school and high school students about the legal system, visiting over 400 classes in 63 schools. The court stated it was persuaded that the judge’s “repeated volatile outbursts and unprovoked intemperate actions evidence a potential behavioral cause for her misconduct that would be best addressed by a mental health professional.” The court expressed the hope that with the suspension and conditions imposed, the judge “can learn to accord judges, lawyers, litigants, court employees, and the public the service, honesty, courtesy, and respect to which they are entitled and thereby once again earn the public trust that the judiciary should command.

26 Two justices reluctantly concurred in the judgment only. One justice argued that not all of the incidents relied on in the majority opinion’s (other than those relating to demeanor) were proven by clear and convincing evidence to constitute violations, argued some of the alleged behavior occurred as far back as 1997, and also criticized the majority for ignoring “the significant political aspects underlying the grievances” that were filed against the judge, stating “some amount of piling on appears to be occurring, in that specific alleged instances of misconduct that would not normally themselves be the basis for charges are being used to bolster unrelated charges based on other events to further the overall case against respondent.” The justice noted that the judge had been elected twice and argued “it seems strange to me that we often show more compassion to attorneys and judges who break the law than we seem to be showing here.” The second concurring justice argued that judges should not be placed under oath in a disciplinary setting to explain why a judicial determination was made years earlier and it is common for people to have different perceptions of an incident after the passage of time. The concurring justice also argued that to chastise the judge for denying the allegations and that mounting a vigorous defense should not be an aggravating factor because many of the counts were without basis. However, the second concurring decision conceded that “while all judges have bad days . . . Disciplinary Counsel has established a pattern of behavior by Respondent that exceeds the acceptable bounds of what must be demanded of the judiciary.”

O’Neill v. Coughlan (U.S. District Court for the Northern District of Ohio September 14, 2004) Entering a preliminary injunction, the United States District Court for the Northern District of Ohio has enjoined Disciplinary Counsel for the Ohio Supreme Court from investigating, or threatening to investigate, allegations of violations of three provisions of the code of judicial conduct related to judicial campaign conduct. The court deferred ruling on the motion for a permanent injunction and on Disciplinary Counsel’s motion to dismiss. The plaintiff is currently an appellate court judge and is running for a seat on the state Supreme Court. On July 21, 2004, the plaintiff received a letter from Disciplinary Counsel announcing that he was initiating an investigation against him due to a grievance filed by the county GOP chair. The court found that the plaintiff’s challenge was ripe for decision, noting that while no charge is pending against him, he must weather the investigation and bear the threat of prosecution and sanctions and is fearful of continuing to communicate his message to the voters. The court noted that the judge’s fear of discipline was not speculative because the defendant has no discretion whether to act upon the grievance and had already asked for the judge’s response and the Ohio Supreme Court had previously punished a judicial candidate for similar statements and rejected that candidate’s contention that the canons violated her constitutional right to free speech. The plaintiff’s campaign literature, advertising, and website identify him as a Democrat. The grievance alleged that the plaintiff’s campaign was violating a provision of the Ohio code of judicial conduct that provides “[a]fter the day of the primary election, a judicial candidate shall not identify himself or herself in advertising as a member of or affiliated with a political party” (Canon 7(B)(3)(b)). The court held that the canon is

27 “woefully underinclusive” because it allows candidates to advertise their party membership or affiliation before the primary election and to state their party membership or affiliation in person, both before and after the primary election. The court held:

Under the First Amendment as interpreted by White, judicial candidates are entitled to state their party affiliation or membership in any medium or venue, at any time, and voters are entitled to have that information and act on it as they see fit. The voters’ own beliefs, experience and reasoning may lead them to draw certain inferences from a judicial candidate’s party affiliation or membership. . . . Free discussion about candidates for public office is no less critical before a primary than before a general election. In both instances, the election campaign is a means of disseminating ideas as well as attaining political office.

* * * The drafters of Canon 7(B)(3)(b) may feel that the voters may draw illogical or incorrect inferences based on judicial candidates’ party affiliation or membership, or may place too much weight on the inferences they draw. It may be that voters will allow a judicial candidate’s party affiliation or membership to dictate their vote, obviating the perceived need for further analysis or inquiry into the candidate’s qualifications, temperament and views. But the First Amendment does not permit the State to dictate what information the voters may be “trusted” with. The First Amendment guarantees voters the right to obtain whatever information they like, and to decide what information is relevant to their decision on whom to elect to the bench. Conversely, for the voters’ First Amendment right to mean anything, judicial candidates must be allowed to impart whatever information they wish about their party membership or affiliation, their views on political and legal issues, and their personal philosophy – without restriction.

The judge’s literature identifies him as a member of the Eleventh District Court of Appeals, but not every mention of his status as a judge specifies the court on which he sits. Canon 7D(2) of the Ohio code of judicial conduct provides that judicial campaign materials and ads may not “use the term ‘judge’ when a judge is a candidate for another judicial office and does not indicate the court on which the judge currently serves.” The grievant argued that Canon 7(D)(2) required that every mention of his candidacy for Supreme Court must also state the court on which he currently sits. Holding it was unlikely to find that a compelling governmental interest is served by Canon 7(D)(2), the court stated:

Perhaps the drafters of this canon feared that if a judge running for another judicial office were allowed to advertise himself as “Judge Smith for Supreme Court,” the voters might wrongly infer that the Judge was already sitting on the higher bench. There is nothing false about a sitting Judge advertising himself as just that, “Judge Smith.” But the question is, does the State have a compelling interest in prohibiting truthful speech that it believes has the potential to mislead voters who have no other knowledge of the judicial candidate’s current position and do not inquire further into the matter? Absent binding precedent to the

28 contrary, the State has no such interest. So long as the judicial candidate does not lie about which court he sits on, any voter can easily find out which court he sits on without the State censoring the judicial candidate.

The plaintiff’s campaign literature, advertising, and website advance the theme “Money and Judges Don’t Mix” in connection with his call for judicial campaign finance reform and his policy of declining donations over $10. The grievance argued these statements violate the Canon 7B(1) requirement that judges and judicial candidates “maintain the dignity appropriate to judicial office.” The court held:

Even assuming arguendo that the State has a compelling interest in ensuring that judicial candidates conduct themselves in a dignified way, applying a sweeping and completely undefined requirement to speech chills judicial candidate speech out of fear that they will be disciplined by the State. Such a canon is the antithesis of a narrowly tailored measure that restricts the freedom of speech no more than absolutely necessary to achieve the compelling governmental interest.

Finally, the court concluded that, without an injunction, the judge will suffer deprivation of his right to speak and communicate freely without fear of punishment while the disciplinary counsel will suffer no harm if enjoined him from enforcing unconstitutional restrictions on freedom of speech and that “there is nothing more clearly in the public interest than the enforcement of every individual’s natural, constitutional rights, including the right to speak freely as recognized by the First Amendment.” However, the court did hold that the injunction did not apply to judicial conduct rules regarding obscene or defamatory speech or for non-speech conduct.

In re Pazuhanich, 858 A.2d 231 (Pennsylvania Court of Judicial Discipline 2004) Based on stipulation of fact in lieu of trial, the Pennsylvania Court of Judicial Discipline removed a former judge from office and held him ineligible to hold judicial office in the future following his nolo contendere plea to charges of public drunkenness, indecent assault, endangering the welfare of children, and corrupting the morals of a minor. The judge had been sentenced to five years probation each on the charges of endangering the welfare of a child, corruption of a minor to run consecutively, two years probation each for two counts of indecent assault to run concurrently, costs of prosecution, a fine of $300, and required to register as a sex offender and undergo drug and alcohol evaluation. Several days after sentencing the judge had resigned. Noting that the Pazuhanich had not been a judge when the criminal conduct took place, the court held “there is no room to argue here that the jurisdiction of this Court does not extend to this Respondent in this case.” The judge had not raised the issue.

In re Beason, Voluntary Agreement to Resign from Judicial Office in Lieu of Disciplinary Action (Texas State Commission on Judicial Conduct July 7, 2004) Pursuant to an agreement, the Texas State Commission on Judicial Conduct agreed to pursue no further disciplinary proceedings against a judge who agreed to resign; the Commission had received a complaint about judge’s sentencing practices and procedures

29 for handling misdemeanor cases, but no notice of formal proceedings had been filed. The agreement provides that the judge shall be disqualified from future judicial service, sitting or serving as a judge, or standing for election or appointment to judicial office.

In re Locke, Voluntary Agreement to Resign from Judicial Office in Lieu of Disciplinary Action (Texas State Commission on Judicial Conduct July 7, 2004) Pursuant to an agreement, the Texas State Commission on Judicial Conduct agreed to pursue no further disciplinary proceedings against a judge who had agreed to resign; the Commission had voted to institute formal proceedings following allegations that the judge had engaged in sexually inappropriate conduct toward several women with whom he dealt in his official capacity, although the judge not yet been served with the notice. The agreement provides that the judge shall be disqualified from future judicial service, sitting or serving as a judge, or standing for election or appointment to judicial office. The agreement notes that the judge does not, by his execution of the voluntary agreement, admit guilt, fault, or liability regarding the allegations.

In re Fitterer, Stipulation, Agreement and Order of Reprimand (Washington State Commission on Judicial Conduct ) (www.cjc.state.wa.us) Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a former justice of the peace who had pled guilty to negligent driving in the first degree, which had been reduced from a charge of driving under the influence. The judge also agreed to comply with the terms and conditions imposed by the court that had sentenced him and to recuse himself upon timely request of a party from charges of driving under the influence of alcohol for the year he is under the jurisdiction of the sentencing court. The judge had been charged with driving while under the influence of alcohol after being stopped by a law enforcement officer for speeding 73 miles an hour. The judge entered a plea of guilty to a reduced charge of negligent driving in the first degree following a court ruling that the blood alcohol concentration test in his case was inadmissible. The terms of the court’s sentence require him to comply with the results of a drug and alcohol evaluation, which he has completed. After he was arrested and charged, the judge had promptly reported the incident to the Commission, to the local media, to members of the defense bar and prosecution, and to the officers of the District and Municipal Court Judges’ Association, in which the judge is treasurer. The judge arranged for another judge to hear discretionary matters in DUI cases while his matter was pending and offered to recuse from any cases since it was resolved. Most attorneys declined that option, and both local prosecutors and defense counsel have expressed confidence in the judge’s ability to be fair in DUI cases despite his personal experience.

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