Judicial Conduct Information Service

May-June 2007

In re Landry, 157 P.3d 1049 (Alaska 2007)

Accepting a stipulation and adopting the findings, conclusions, and

recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court

publicly censured a former judge for (1) making pre-signed bail orders available for

prosecutors to use for out-of-custody arraignments; (2) lack of diligence in tracking

speedy trial time frames; (3) engaging in improper ex parte communications and

presiding over a matter where he should have disqualified himself; and (4) making

inappropriate sexual comments to female court employees in the workplace. The judge

was not retained in the November election, and the judge agreed not to seek or hold a

position as a judicial officer in the state. The judge also agreed to take no action, directly

or indirectly, against any person for providing information in connection with the

investigation of the Commission or the Judicial Council.

(1) Beginning in approximately December 1, 2004, until April 2006, the judge

made pre-signed bail orders available for use by prosecutors for all out-of-custody

arraignments. The judge’s practice was to leave the bench and allow the prosecutor to fill

in the blanks on the pre-signed orders, which then would be filed with the court.

(2) Prior to April 2006, the judge controlled the tracking of speedy trial time

frames although the customary court procedure was to have court staff track those time

frames. Due to the judge’s lack of diligence, at least 14 criminal cases were required by

law to be dismissed in 2005.

(3) While serving as a magistrate, the judge engaged in improper ex parte

communications and presided over a criminal matter where he should have disqualified

himself, thus giving rise to circumstances suggesting that he gave preferential treatment

to the defendant.

(4) The judge made inappropriate sexual comments to female court employees in

the workplace. These included a note to a female employee that her “Hillbilly

thermometers are distracting;” a note to a female court clerk, stating, “I think Ms. _____

wants me,” referring to a juror; describing a court clerk as a “shameless hussy;” and

commenting on other physical attributes and the attire of court clerks and other persons

who appeared before the court.

The court had asked the Commission and the judge how a public censure was to

be administered as the judge was no longer in office. The Commission responded; the

judge did not. The court stated it was administering the censure by issuing the order and

requiring that it be published in the Pacific Reporter, adding no public appearance at a

court session would be required.

Inquiry Concerning Gastelum, Public Reprimand (Arizona Commission on Judicial

Conduct May 8, 2007) (www.supreme.state.az.us/ethics/Complaints/2006%20

Complaints/06-250%20Final.pdf)

Based on a stipulated agreement, the Arizona Commission on Judicial Conduct

publicly reprimanded a judge for a campaign flyer that failed to maintain the dignity

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appropriate to judicial office by using multiple exclamation points, a bold font, and

capital letters and that made insinuations about his opponent.

The judge had mailed out a flyer that stated, among things:

On March 7, 2006, my Opponent called “Joe” at “Habitat for Humanity” to

replace his cabinets at 4708 N. 63rd Ave. For Free!!!” “My Opponent is

supported by REPUBLICANS and Family & Friends of REMOVED JUDGE

Miranda, CRIMINALLY CHARGED with defrauding his clients. He associates

even now with the same people as does the Criminally Charged & REMOVED

JUDGE Miranda. Do we TRUST him to be an honest judge when he associates

with people who still associate with the criminally Charged Miranda? NO!!!

No!!!. Do we really want a FALSE DEMOCRAT as JP? NO!!! NO!!! NO!!.

The flyer included the underlining, capitalization, and punctuation indicated. The font

used was larger than 14 points, and the print was bold.

Parks, Order (Arizona Commission on Judicial Conduct February 20, 2007)

(www.supreme.state.az.us/ethics/Complaints/ 2006%20Complaints/06-253%20Final.pdf)

The Arizona Commission on Judicial Conduct reprimanded a court commissioner

for becoming angry with one of the parties during a default dissolution hearing, arguing

with him from the bench in a condescending and accusatory manner, and raising her

voice in a manner inconsistent with the obligation to be patient, dignified, and courteous.

The commissioner had self-reported her conduct as instructed by her presiding judge.

In the Matter of McVay, 158 P.3d 198 (Arizona 2007)

Rejecting a recommendation by the Commission on Judicial Conduct based on an

agreement with a judge, the Arizona Supreme Court held that the Commission should not

have considered the effect a suspension would have on the judge’s retirement benefits in

approving agreed-upon sanctions. Because the court rejected the Commission’s

recommendation, the agreement’s terms precluded the court from using the conditionally

admitted facts to impose a sanction, and the court remanded the matter to the

Commission for further proceedings.

As part of an agreement, the judge had conditionally admitted that she violated

the code of judicial conduct by her habitual tardiness, failure to reform her behavior in

response to previous discipline for tardiness, and her treatment of court staff. Under the

agreement, the judge would have paid a $6,300 fine, been re-assigned for 2 months to

court duties to be determined by the presiding judge, and attended courses “in time

management and . . . human resources management.” The hearing panel had initially

“questioned the appropriateness of the proposed sanction” in light of the seriousness of

the charges and the court’s 2005 censure of the judge for being habitually tardy. After

further deliberations, the panel unanimously agreed to accept an amended agreement that

incorporated additional provisions, including the judge’s agreement to retire at the end of

her term in December 2008. The primary reason the judge was not suspended for 2

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months was that, absent a suspension, at the end of her current term, she will be eligible

to receive her full retirement benefits for 20 years of judicial service.

The court held that the Commission should not have considered collateral

financial consequences in determining the appropriate sanction, stating that doing so did

not serve the objective of guarding the public’s interest.

If financial consequences were permitted to be considered in determining

sanctions for judicial misconduct, many judges could avoid appropriate sanctions.

The Commission, and this Court, must be guided by the goals of protecting the

public and fostering judicial integrity, and not the collateral consequences a

sanction may have on a judge.

The Commission had believed it could recommend a fine under a rule that

provides that “the commission may recommend the imposition of other formal sanctions

consistent with these rules, including, but not limited to, the assessment of attorney fees

and costs.” The court noted that it was not deciding, given the judge’s consent, whether

the Commission would have the power to impose a fine on a non-consenting judge.

Carroll v. Commission on Judicial Conduct, 160 P.3d 1140 (Arizona 2007)

Vacating an informal reprimand issued by the Commission on Judicial Conduct,

the Arizona Supreme Court held that the Commission’s rules entitle a judge, upon timely

request, to a hearing when the Commission imposes an informal sanction such as a public

reprimand. The court remanded the matter to the Commission for further proceedings.

The Commission publicly reprimanded a judge who continued to complain about

an administrative decision in an e-mail message after being asked to stop and withdrew

from a court committee, claiming that he had philosophical differences with the presiding

judge and that he no longer respected her. The judge filed a timely motion for

reconsideration or for a formal hearing and then a special action challenging the

Commission’s denial of his request for a hearing. Noting that its special action review is

discretionary, the court explained that it was exercising jurisdiction “because this case

presents a legal issue of statewide importance that is likely to recur” and the judge has no

“equally plain, speedy, and adequate remedy by appeal.”

Commission Rule 23(c) allows a judge, within 15 days after the issuance of an

order imposing informal sanctions, to “file a request for a hearing conducted pursuant to

Rule 27,” which is the rule governing formal hearings before the Commission. The

Commission contended that Rule 23(c) merely allows a judge to request a hearing that

the Commission may grant or deny in its discretion.

The court concluded that Rule 23(c) “affords a judge the right to a hearing and not

merely the right to ask for one to be granted or denied at the Commission’s discretion.”

The court noted that Rule 23(b) allows a judge to file a “motion” for reconsideration and

directs the Commission to “promptly notify the judge and the complainant of its

decision.” In contrast, the court stated, “Rule 23(c) allows the judge to request a hearing,

and rather than suggesting that the Commission may issue a ‘decision’ granting or

denying such a request, the Rule states that such a hearing ‘shall be conducted before the

commission’ itself.” Further, the court held that its conclusion “finds support from the

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fact that a judge, as Commission Rule 8 recognizes, is entitled to due process in

connection with disciplinary proceedings.” The court stated that the imposition of

informal sanctions has significant consequences because it may be used as an aggravating

factor in future disciplinary proceedings and the Commission’s finding of improper

conduct and its resulting informal sanction are made public, possibly affecting “the

judge’s reputation among other judges, the legal profession, and the public.” The court

stated that, “under the Commission’s interpretation of Rule 23(c), these consequences

could result without the judge having any opportunity to appear in person before the

Commission or to directly present or confront evidence on disputed facts. This outcome

would raise potential due process issues, which are obviated by interpreting Rule 23(c) as

entitling a judge to a hearing upon timely request.”

The court noted that the judge had not challenged the Commission’s general

authority to impose informal sanctions, which are not expressly authorized by the

constitution.

Public Admonishment of Petrucelli (California Commission on Judicial Performance

May 22, 2007) (cjp.ca.gov/pubdisc.htm)

The California Commission on Judicial Performance has publicly admonished a

judge for a pattern of discourteous and sarcastic comments to attorneys and litigants.

(1) On September 26, 2005, attorneys Brian Tatarian and Paul Lerandeau

appeared before the judge to put a stipulation on the record. On a form the clerk uses to

locate files, Tatarian wrote the calendar line item number rather than the case number.

The judge called “Tatarian and Lerandeau’s cases,” reminded them that they needed to

write the case number, then called a case that was not theirs. When Tatarian said that the

case called was not theirs, the judge responded, “That’s because you didn’t bother to

write the case number on there. You’ll go to the bottom of the line.” The judge handled

one other stipulation before calling Tatarian’s case a few minutes later. When Tatarian’s

case was called, he said that the “green sheet” should have listed their case as number 2,

and that he “was sorry the court had a hard time finding out what the case number was.”

The judge responded angrily in an elevated tone of voice:

Well, you know the circumstances. Mr. Tatarian, don’t chastise the court, and

then esteem that you can talk over the court. I have asked and I have requested

many times from you and other attorneys, it says case number. It does not say

number 2, Mr. Tatarian, it says case number. So don’t think that you can stand

there and chastise the court because you write a two on there. Okay? Yes, the

court is very busy today. This is a hectic day, and your lack of cooperation is not

assisting. And if you think you can talk over me once you’ve chastised the court,

you’re wrong, Mr. Tatarian, fair enough? Now, if you’d like to proceed, fine; if

not, you can take a break and cool off. What’s your preference, Mr. Tatarian?

(2) The judge presided over a hearing regarding visitation in which Linda

Richardson represented the mother. After Richardson took a position with which the

judge disagreed, he stated words to the effect of, “If your client persists in this behavior, I

will do everything in my power to see that custody is taken away from her.”

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(3) Beth Best made an oral motion to disqualify the judge that he denied as

untimely. Best asserted that it was not untimely, and the judge told her that she could

provide a written motion and then he would make a ruling, “since you believe that you

are more correct than I am, Ms. Best.” She responded that she would file it under a

section requiring “actual prejudice” because the judge had failed to disclose that he was

presiding over her divorce proceedings. The Commission found hat the judge became

embroiled.t

Judge: Ms. Best, you certainly -- you certainly don’t want to go there. You are

still a litigant in front of me, Ms. Best.

Best: That’s true, Your Honor.

Judge: And you have previously waived any conflict. I have made a perfect

record of this in the past, Ms. Best, that I have asked you if you wanted me to sit

on your cases, because I knew this was going to be a problem. Your conduct is

deplorable and I am insulted by it at this juncture. So you bring whatever motion

you need to bring appropriately, but I have asked you previously if you wanted

me to sit on your cases, because you said, and I quote, “that it would be

prejudicial to my clients if I let my case come in the way of their rulings.” Now,

Ms. Best, that’s what the record would reflect. If you want to bring a motion, you

bring that, but you make sure you include a transcript of that hearing where I

initially said that the very first time you appeared in front of me, because I was

more than willing to disqualify myself on all of your cases until your matter was

resolved. Do you remember that, Ms. Best?

Best: You actually were in the process of doing that and then began hearing my

cases again.

Judge: That is not correct, Ms. Best.

Best: That is correct and I do have your transcripts. I also have several other

transcripts that have you –

Judge: Ms. Best, your conduct in court today is amazing to me. Your conduct

with these two litigants in the settlement conference that I was part of is amazing

to me. These two people are trying to get their life on track. These two people

could do much better without you today. I will disqualify myself on this case. I

certainly hope that these two people can talk in spite of you, and settle their minor

differences because you have caused them a lot of grief today, Ms. Best. Yes, I

will disqualify myself. I will disqualify myself pursuant to 170.1 and

furthermore, I will disqualify myself on all of your cases, Ms. Best, because I

think you are not an appropriate counsel for people in this situation. These people

could have settled this case today. You were the party that caused this case not to

be settled today even with my assistance. So, good luck to you, Ms. Best.

The Commission found that, while making the comments, the judge intermittently used a

loud, angry, and abrasive tone of voice. The Commission concluded that the judge’s

comments disparaged the attorney in front of her clients and were demeaning and

belittling and that the comment that he would “disqualify myself on all of your cases …

because I think you are not an appropriate counsel for people in this situation,” were

“gratuitous and an improper response to an attempt to disqualify him.”

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(4) At one point during a hearing regarding custody modification, when the

attorneys were arguing as to whether one attorney had prevented the father from

communicating directly with the mother, the judge said, “I wonder how well these

parents would do without their lawyers.” The Commission found that the comment

improperly disparaged the attorneys in front of their clients and was demeaning and

belittling to the attorneys.

(5) The judge presided over a hearing at which a former wife, who was

represented by counsel, was seeking to have an agreement regarding spousal support set

aside on grounds of duress. Her former husband, Tovsrud, was appearing in propria

persona. Near the outset of the hearing, after questioning Tovsrud, the judge asked him

to go ahead and say what he wanted to say. Tovsrud responded, “Sir?” The judge then

said, “Is there a language problem here?” in a loud and angry tone of voice. According to

information presented at the hearing, the litigants had divorced after a long marriage

following Tovsrud’s affair with a translator while they were working as missionaries in

Mongolia. At the time of the hearing, Tovsrud apparently was married to the Mongolian

woman with whom he had had the affair and had returned to his former occupation of

selling cars. He testified that he was earning about $36,000 per year. During the hearing,

Tovsrud testified in a rambling fashion about various matters, including the affair. In

expressing confusion as to what Tovsrud was saying was the cause of the affair, the judge

referred to the possibility that “it was cold and so you needed someone to stay warm

with.” The Commission found that this comment was gratuitous and sarcastic. Later, the

judge asked Tovsrud whether he had anything to add specifically about the support issue.

Before he had a chance to respond, the judge said, “You’ve got to be the lowest car

salesman … maybe you ought to consider doing something else. I mean, I don’t know of

anybody that makes $40,000 selling cars.” The Commission found that these comments

were belittling. Shortly thereafter, Tovsrud commented that he was “not that

employable.” The judge reassured him that he was and that he could be a great salesman

and added, “You’ve got a new, young wife apparently. That’s wonderful. Is it the

Mongolian lady I hope …. Did she make it back? ... Okay … so she made it to America.

I hope you’re happy. That’s wonderful. We should all be happy. So, anything else you

want to tell me about the support issue?” The Commission found that the comments

about Tovsrud’s new wife appeared to be sarcastic.

(6) The judge and attorney Rodney Rusca were discussing a family law matter in

chambers during a break in the hearing. Another attorney was also present. The judge

became involved in a heated argument with Rusca that lasted for approximately five

minutes; the judge’s voice was raised to such an extent that he was yelling.

(7) On February 21, 2006, highway patrol officer Trejo had been subpoenaed to

testify in certain traffic matters, but was not present in court when called. The following

exchange occurred:

Judge: Okay, let’s get Officer Trejo up here. Officer Trejo?

Unidentified Officer: Officer Trejo has a DUI trial in Fresno today.

Judge: He did? ... So I have a question. Does somebody in your office set

priorities on these things? He’s got a subpoena here, there’s a subpoena there.

Unidentified Officer: I don’t know, Your Honor.

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Judge: You don’t know anything? Do you have a sergeant here? I’m having

lunch with your commander. He wants to meet me. I’ve got a mouthful for him

already here.

A highway patrol officer told the judge that Officer Trejo was now assigned to the Fresno

office. The judge made the following remarks:

Judge: ... So let me see if I understand this. Somebody gets transferred and just

ignores the subpoena, that’s it? How does that work, does anybody know? I’m

asking, does anybody know?

Officer: I was transferred, but I’m here. Your Honor. I think he thought a DUI

was more important.

Judge: Than speeding over 100?

The judge later told a defendant that he was going to dismiss her case because the officer

was not there, stating: “You got lucky. You won the lottery. Officer Trejo doesn’t think

this is important, so you go ahead and go.” The judge also dismissed the speeding case

of another defendant because Officer Trejo was not present and said to the waiting

officers, “This is another over 100, so you can let your supervisors know.” When the

defendant thanked the judge, the judge said, “Don’t thank me, thank Officer Trejo.”

The Commission found that the judge’s remarks were disparaging to Officer

Trejo, discourteous to the officers who were there to testify, and created the appearance

of a lack of impartiality by publicly indicating that the judge was attempting to ensure the

presence of officers to testify for the prosecution.

(8) Defendant Tsang appeared before the judge on a charge of speeding over 100

miles per hour. Tsang said that she wanted to “plead guilty with an explanation.” At one

point during the discussion, Tsang said, “Well –” and the judge interrupted with, “What

could you possibly explain, that you think the radar was wrong or what? The fine is

going up by the minute, so you understand. I mean, just tell me what you think you could

possibly say to make me lower the fine?” The Commission found that the judge created

the appearance that he was improperly trying to discourage the litigant from speaking

before she was sentenced.

(9) The judge presided over a trial for speeding during which the highway patrol

officer testified that the defendant Alvarenga was driving his tomato truck 74 miles an

hour as determined by radar. The judge said to Alvarenga that he did not see how he was

going to talk him out of going by the radar, adding, “If you want to try and embarrass

yourself by telling me that you weren’t going 74, I guess you are more than welcome to,

but go ahead.” The Commission found that the comment created the appearance that the

judge was improperly trying to discourage the litigant from arguing his case.

(10) On February 7, 2006, defendant Baracas appeared before the judge for a trial

on a charge of speeding over 100 miles an hour. The judge said to Baracas, referring to

the highway patrol officer, “I have another question for you. How is it that you didn’t

notice him in your back window? They drive those really funny looking cars, you know,

they’re different colors. Usually they have lights on top – .” After the defendant

responded, the judge asked, “Didn’t you notice that his car was keeping up with you?

See, that rear view mirror is for something besides fixing your hair and stuff, you know.”

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In 2001, the judge had received an advisory letter concerning his response to the

filing of a peremptory challenge; the judge assigned the case to a series of family law

commissioners rather than sending it back to the master calendar and disparaged the

attorney and his client for exercising the right to refuse to stipulate to a commissioner and

peremptorily challenge a judge. In 2002, the judge received an advisory letter about his

practice regarding disqualification and disclosure as to an attorney employed by his

former law firm and an incident in which he raised his voice at county employees who

had inadvertently deleted certain Internet folders while installing new software on his

chambers computer and accused them of calling him a “liar.”

Inquiry Concerning Freedman (California Commission on Judicial Performance June 26,

2007) (cjp.ca.gov/pubdisc.htm)

The California Commission on Judicial Performance severely censured a judge

for (1) failing to decide 21 causes submitted to him for decision within 90 days, (2)

executing and submitting numerous salary affidavits falsely stating that he had no causes

under submission for more than 90 days, and (3) failing to act on over 200 fee waiver

applications within the time allowed by law.

(1) Under California law, judges are expected to decide matters submitted to them

within 90 days and are prohibited from receiving their salaries when they have undecided

matters under submission for more than 90 days. The Government Code requires judges

to regularly execute affidavits declaring they are in compliance with the law and entitled

to salary.

The judge delayed rulings over 90 days in 21 cases. The cases were decided

between 3 and 485 days past the deadline. One was 343 days overdue; 3 were between

254 and 299 days overdue; 6 were between 104 and 179 days overdue; 10 were between

3 and 87 days overdue. In some instances, Judge Freedman simply failed to keep track of

the matters and, despite warnings by several presiding judges, failed to implement any

meaningful tracking system or to take advantage of the court’s computerized case

management system. In other instances, the judge erroneously believed that some

matters were not submitted until certain tasks he alone had in mind were performed. In

some instances, the judge knew the delayed matters had been pending for a long time, but

simply failed to act within 90 days of submission even after being reminded by counsel

or parties that the matters were pending. The judge explained that in some instances his

other commitments interfered with his ability to decide pending matters. The judge was

an active participant in numerous voluntary administrative activities with both the county

superior court and the statewide Judicial Council. The Commission stated: “While these

activities may be laudable in the abstract, they do not excuse or mitigate his failure to

attend to his first duty, to resolve the matters brought before him for judicial decision. To

the extent Judge Freedman was distracted from his duty by these activities after he had

been chastised by [a presiding judge], they tend to aggravate rather than mitigate his

misconduct.”

The Commission found that the judge’s “persistent and unjustified failure to rule

in numerous cases, sometimes for long periods of time and after he had been counseled

about excessive delay by two presiding judges, fell well below the high standards of

conduct expected of the judiciary, and injured public confidence in the judiciary.” The

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Commission noted that, in several of the cases, litigants directly pointed out to the judge

that the delays were actually or potentially harming their interests and requested

decisions.

(2) The judge regularly signed and submitted salary affidavits falsely stating that

he had no causes under submission for decision for more than 90 days when he did have

such matters under submission. The masters concluded that the judge’s falsification of

salary affidavits was prejudicial misconduct, reasoning that because he was not thinking

about whether he had overdue cases when he signed the affidavits, signing in a “rote,

unthinking way,” the evidence did not show “actual malice or that he acted recklessly or

with utter indifference to the accuracy of the statements. . . .” The Commission agreed

with the masters’ conclusions except as to those instances in which the judge executed

the affidavits when he was aware he had delayed matters. In those instances, the

Commission found, he committed willful, not prejudicial, misconduct because he acted

with utter indifference to whether the affidavits he executed were true or false.

The judge had argued that the charge was not proven because he did not execute

the affidavits under penalty of perjury, and, therefore, the documents cannot be

“affidavits,” as that term is defined by law and charged in the notice of formal

proceedings. The Commission noted that the form required the signer to “declare” he or

she has no cases under submission and pending for more than 90 days, but does not

require any oath that the declaration is true. However, the Commission emphatically

rejected this “technical objection to the language” of the notice, stating regardless

whether “the statement is made under penalty of perjury, it is clearly and obviously

unjudicial to falsify it.” Noting that he typically post-dated the document to a date about

30 days after he signed the affidavit, the judge argued that it is technically impossible to

swear to the truth of a future state of events. Finding the argument without merit, the

Commission stated, “if accepted, Judge Freedman’s claim would mean a judge who has

matters that are actually overdue could truthfully execute a state affidavit and obtain

salary based on an unenforceable promise that the judge would be in compliance with the

law by the time the affidavit was effective. The argument also implies that by making

that promise successively, the same judge could continue to execute similar affidavits

(and receive salary) indefinitely, without ever clearing his or her backlog of delayed

cases. That position is both patently specious and contrary to the clear intent of the

Constitution that judges who have overdue matters are not to be paid their salaries until

they have decided them. Moreover, it is contrary to the general understanding among

judges of the salary affidavit procedure.

(3) When litigants file fee waiver applications to proceed with their cases without

paying filing and other fees, the application is granted automatically if a judge or clerk

fails to rule on the application within five days of filing. The judge fell behind, and a

“substantial number” of applications were denied after the five days had elapsed.

Litigants complained, and the presiding judge ordered a refund to the litigants whose

applications were denied late. More than $9,000 was refunded pursuant to the order.

Noting that court fees are a significant burden, especially to individual litigants of

limited means, and a significant source of revenue for the courts, the Commission

concluded that “an objective observer would tend to hold the judiciary in lower esteem if

informed that a supervising judge of the superior court failed to act on over 200

applications for fee waivers, with the result those applications were automatically granted

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whether meritorious or not. Moreover, the same observer would have the same reaction

upon learning the court had failed to follow the law, and had denied the applications even

though the judge’s inaction and the law required the court to grant them.”

The Commission “emphatically” rejected the judge’s contention that it should not

remove him from office because no other judge has been removed for the same or similar

misconduct and stated it would not limit the scope of discipline to be imposed in future

cases involving similar misconduct. The Commission emphasized that the judge had

“committed serious misconduct that taken alone might warrant removal from office,” but

“in view of the unique circumstances of this case, including exceptional mitigating

evidence,” issued a “severe public censure.”

He is a respected and talented jurist who was strongly supported in this

proceeding by a significant number of attorneys and colleagues, including two

former presiding judges and the present presiding judge of the court in which he

sits. Two of those former presiding judges were called as witnesses by the

examiner, and testified not only to their high opinion of Judge Freedman and their

confidence in him, but to facts that support this decision to censure him. Counsel

for parties in a number of the delayed matters supported Judge Freedman in these

proceedings and testified that they would not hesitate to appear before him in

future cases. Other than the subject misconduct, there was no evidence presented

that called Judge Freedman’s abilities as a jurist or his suitability for the bench

into question. Judge Freedman has not been the subject of any relevant prior

discipline, he has acknowledged his wrongdoing and is contrite, and we are

satisfied he is unlikely to offend again.

Public Reprimand of May (Georgia Judicial Qualifications Commission May 21, 2007)

The Georgia Judicial Qualifications Commission publicly reprimanded a judge

for failing to perform administrative duties carefully and precisely.

The Commission found that the judge’s multi-year failure to implement the

standards and procedures recommended by the county auditors showed a lack of

understanding of the requirement to maintain meticulous records of the monies entrusted

to her. The Commission noted its investigation was initiated by a complaint from the

county commissioners that the judge had failed to properly account for magistrate funds

and to remit them to the proper parties, failed to remit monies due to the county, failed to

properly deposit and account for court funds, repeatedly failed to follow practices

recommended by the county auditor for the proper management of the magistrate court,

handled matters that were beyond the scope and jurisdiction of the magistrate court, and

had improper ex parte communications and discussions with individuals who had

appeared before the judge.

In the Matter of Hanley, 867 N.E.2d 157 (Indiana 2007)

Based on a statement of circumstances and conditional agreement for discipline,

the Indiana Supreme Court reprimanded a judge who pleaded guilty to operating a motor

vehicle with an alcohol concentration above the limit, a class A misdemeanor. The judge

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had been arrested on December 4, 2006. He had been sentenced to one year in jail,

suspended but for one day served, and to one year of probation. The trial court accepted

additional terms of the plea agreement that included the suspension of the judge’s

driver’s license for 90 days and the payment of fines, costs, and fees totaling $509.50.

Yost v. Stout (U.S. District Court for the District of Kansas June 6, 2007)

The United States District Court for the District of Kansas denied the defendants’

motion to dismiss on standing, ripeness, and abstention grounds a judge’s suit

challenging the endorsement clause and solicitation clause in the code of judicial

conduct. The court also denied the defendants’ motion to certify to the Kansas Supreme

Court the question “whether Kansas Code of Judicial Conduct, Canons 5A(1)(b) and (e)

and Canon 5C(2) are constitutional on their face and as applied?”

The court found a credible threat of prosecution for purposes of standing, based

on the plain language of the canons. The court stated: “Certainly the activities sought by

plaintiff -- personal solicitation of money and support as well as public endorsement or

opposition to other candidates for public office other than his own -- are proscribed by

the challenged canons and defendants have set forth no evidence to suggest that they

would not discipline plaintiff if he were to engage in this activity.” Similarly, the court

held that the plaintiff had alleged sufficient facts to meet the requirements for ripeness,

stating the plaintiff is placed in “the dilemma of subjecting himself to disciplinary action

if he exercises political expression under the challenged canons” and noting the

“defendants do not disavow any intention of bringing charges against plaintiff” or

indicate that the challenged canons would not apply if the plaintiff pursues his intended

course of action. On the question of abstention and certification, the court stated the case

presents a federal constitutional question, not a question of state law. “While a

determination of how the Kansas Supreme Court would enforce the challenged canons in

the context of a specific disciplinary proceeding could inform this Court’s determination

of the constitutional issue, it would not be a controlling precedent, at least on the facial

challenge to the canons.”

In re Alfonso, 957 So.2d 121 (Louisiana 2007)

Based on the findings of the Judiciary Commission based on stipulated facts, the

Louisiana Supreme Court suspended a judge from office for 30 days without pay for

issuing an arrest warrant against a neighbor with whom she had a poor relationship. The

Commission had recommended a 15-day suspension.

The judge, the Nunezes, and Larry Thedens live on the same dead-end street. The

Commission found a long-standing, poor relationship between Thedens and his

neighbors, including the judge. Thedens has repeatedly complained about the older

children who live on the street (one of whom is the judge’s son) riding dirt bikes and all-

terrain vehicles at “excessive” speeds. Several times, he has complained to the animal

control department that the Nunezes’ dog “strayed” onto his property and attacked his

cats. On April 27, 2004, based upon complaints made by the Nunezes, the judge issued a

warrant for the arrest of Thedens for DWI, contributing to the delinquency of a juvenile,

disturbing the peace, and extortion. Following the arrest, the judge set bond at $50,000,

12

allegedly an unreasonable amount considering the crimes for which Thedens had been

arrested. Thedens was held in jail overnight before another judge reduced the bond to

$5,000. Subsequently, the district attorney’s office concluded that the arrest warrant did

not provide sufficient facts to support the charges against Thedens.

The Nunezes’s affidavit stated that Thedens had committed the crimes on “the

1st-30th day of every month for 2-4 years, 2002-2004.” The Commission found that this

statement, “even without the other stipulated circumstances of which Justice of the Peace

Alfonso was aware, was sufficient to place Justice of the Peace Alfonso on notice that

probable cause did not exist to believe Mr. Thedens had committed these offenses.” The

court agreed that the affidavit contained an obvious exaggeration but also stated that the

affidavit provided additional specific information. (The affidavit also stated that: “Larry

Thedens on many occa[sions] has driven down Nicosia Place drunk, speeding and stops

his car to curse the children who live there on Nicosia Place. He (Larry Thedens) has

threaten [sic] to kill Mr. Nunez’s dog. Larry Thedens call[s] the animal control and lies to

them about dog being out of his pen. Also calls the police with false statement [sic] about

all the children and resident [sic] on Nicosia Place.”) The court concluded that “the

affidavit as a whole contains a recitation of facts which could establish probable cause of

criminal activity,” but that “the obvious exaggeration related to the criminal activities

being committed daily for two to four years should have put the justice of the peace on

notice to more carefully evaluate the affidavit.” The court concluded the matter was

“subsumed into the charge related to the fact JP Alfonso acted in this matter with bias and

prejudice toward Thedens when she should have recused herself.”

The stipulation between the parties also addressed a prior complaint alleging the

judge had not paid $80 for the filing of a lawsuit, but never contacted the complainant

concerning the suit, would not return the complainant’s telephone calls, and did not

refund the money paid. The complainant was told that the judgment had been rendered;

however, he did not receive a copy of the judgment. In October 2004, the Commission

closed the file with a letter of caution.

Noting that “among the greatest dangers posed by a biased judge is a threat to

liberty,” the court found that when the judge “inappropriately exercised her judicial

authority, that threat was realized when Thedens was incarcerated overnight.” As

mitigating factors, the court noted that the charge involved only one incident; the judge

had entered into an extensive stipulation of facts, evidence, and conclusions of law and

cooperated with the Commission; and she made a commitment to the Commission that

she would not take judicial action in the future based on bias against any individual.

In re Adams, 959 So.2d 474 (Louisiana 2007)

Based on the findings of the Judiciary Commission and stipulations, the Louisiana

Supreme Court suspended a judge for 15 days without pay for setting an excessive bond

to retaliate against opponents of the mayor. The Commission had recommended

suspended without pay for 5 days, fully deferred, subject to a 1-year period of probation.

The court also ordered the judge to pay the Commission’s costs. One justice dissented as

to sanction and would have suspended the judge for 30 days.

Mark Dupont and John Hebert had attempted to enter a float in the Simmesport

Mardi Gras parade with posted signs stating: “Recall Boo” and “No More Boo.” “Boo”

13

is Mayor James Fontenot’s nickname. Based on the mayor’s affidavits, the judge issued

warrants for the arrests of Dupont and Hebert and set their bond amounts at $50,000

each. Dupont and Hebert were arrested and jailed for over 24 hours until they appeared

before another judge who reduced the bond amounts to $2,500.

The judge’s actions resulted in a newspaper story. The judge’s remarks in that

article make it clear he set Dupont’s and Hebert’s bonds at $50,000 based on incidents

other than allegations contained in the charging affidavits of Mayor Fontenot and to

retaliate against them for being critical of Mayor Fontenot. The article stated, “Adams

agrees with Fontenot. He set the bail bonds at $50,000 because the arrests were ‘not due

to just one incident.’” It further stated, “The anti-Fontenot forces ‘have plastered signs

all over town,’ Adams said, ‘and made obscene remarks about the mayor.’”

Concluding that the Commission’s recommended discipline was not

commensurate with the seriousness of the violation, the court noted that the judge’s

actions resulted in two members of the public being arrested and incarcerated for over 24

hours for a permit violation for a Mardi Gras parade float, that the misconduct occur in

performance of his judicial duties, and that the deprivation of liberty suffered by Dupont

and Hebert caused a seriously adverse effect on the integrity and respect of the judiciary.

The court noted that, in May, in In re Alfonso, it had suspended a judge for 30

days for wrongfully issuing a warrant and setting an excessive bond of $50,000, which

resulted in a person being arrested and incarcerated overnight without legal cause. The

court distinguished that case because Judge Alfonso, unlike Judge Adams, was not a new

justice of the peace, having served one complete term, and had one prior complaint

against her, while Judge Adams has had no prior complaints. Moreover, the court stated,

while Judge Adams acted for political reasons, Judge Alfonso exploited her position to

satisfy personal desires, adding neither are acceptable motivation for judicial action.

One justice dissented from the sanction, arguing there was no rational basis for

distinguishing the case from Alfonso.

In re Sassone, 959 So.2d 859 (Louisiana 2007)

Based on the findings of the Judiciary Commission, the Louisiana Supreme Court

suspended a judge without pay for 60 days for abusing her contempt power in 2 matters,

abusing and exceeding her authority by revoking the defendant’s bond in 2 matters, and

treating an attorney in a rude, impatient and sarcastic manner. The court also ordered the

judge to reimburse the Commission’s costs. One justice dissented with respect to the

sanction and would have suspended the judge for only 30 days. One justice dissented as

to the finding of misconduct.

(1) The judge held Troy McCloud, a defendant in a criminal case, in direct

contempt of court on two separate occasions and sentenced him to three consecutive six-

month prison sentences in both incidents. McCloud was before the judge on a motion to

suppress evidence in his drug case. During the hearing, the following colloquy occurred:

THE COURT: Be quiet, McCloud.

McCLOUD: Hold up, Your Honor.

THE COURT: McCloud, let me just tell you one thing; all right? If you make

one more statement to the Court, I’m going to find you in contempt. Do you

14

understand that? You have a lawyer to speak for you. You are not to speak. One

more --

McCLOUD: But my lawyer isn’t doing what he’s supposed to be doing.

THE COURT: All right, Mr. McCloud. I’m going to find you in contempt of

court and sentence you to serve six months in the parish prison; all right?

McCLOUD: All right, then. I can go back to jail, then?

THE COURT: McCloud, I’m going to find you in contempt of court and give

you another six months in the parish prison. It will be consecutive with the

sentence I just imposed.

McCLOUD: What I’m saying, Ms. Sassone --

THE COURT: McCloud, I’m going to find you in contempt of court and give

you another six months. So now you have 18 months in the parish prison. Do not

say one more word, Mr. McCloud.

The hearing was then continued to May 15. During that hearing, McCloud attempted to

inform the judge that he had retained private counsel to defend him and that he did not

wish to be represented by Calvin Fleming, his court-appointed attorney. The following

colloquy occurred:

FLEMING: On a motion to suppress evidence. This was held open at my

request. Mr. McCloud has asked me to inform the Court that Mr. -- is it James

Thomas?

McCLOUD: Thomas.

THE COURT: That who?

FLEMING: -- Thomas, John Thomas, has been paid, either by Mr. McCloud or

his family, to represent him. I do not believe Mr. Thomas --

THE COURT: Has Mr. Thomas signed the record?

THE CLERK: I know he came to court Monday, but I’m not aware-

THE COURT: He hasn’t signed the record. I think he was here on another

defendant. He hasn’t signed the record, Mr. --

McCLOUD: He was here for both of us Monday. He’s supposed to be in trial in

Judge Zeno’s court right now.

THE COURT: Oh, well. Mr. Fleming’s your attorney as it stands now. Mr.

Thomas hasn’t signed the record. And we have police officers here. We’re going

to go forward with the motion hearing.

McCLOUD: What I’m saying is I already retained Mr. Thomas to be-

THE COURT: And I’m also going to set a hearing for you to pay IDB and

reimburse the Indigent Defender Board for all the time they’ve spent representing

you. Because if you can afford to pay Mr. Thomas, how much-

McCLOUD: I can’t afford it. My family’s paying for it.

THE COURT: Okay. Well, somewhere, the funds came from somewhere.

* * *

McCLOUD: So you’re telling me that I can’t have the counsel of my choice?

THE COURT: I’m not telling you anything, Mr. McCloud.

15

McCLOUD: You’re saying he’s my attorney. I’m telling you he’s not my

attorney.

THE COURT: You don’t need to address the Court, Mr. McCloud; all right?

You have a lawyer sitting here.

McCLOUD: No, I don’t.

THE COURT: Mr. McCloud, if you say one more word, I’m going to find you in

contempt of court. Do you --

McCLOUD: So you denying me my right to have my counsel of my choice.

THE COURT: I’m going to find you -- I’m going to find you in contempt of

court, Mr. McCloud, and sentence you to serve six months in the parish prison.

The minute entry on April 8 reflects a “disturbance in the court room,” while the minute

entry on May 15 reflects that McCloud made a “loud outburst in Court.”

Noting that, although the judge told the Commission that McCloud indicated

disrespect for her because he referred to her as “Ms. Sassone,” and did not use her title as

a judge, the court stated it had “discerned no disrespect in Mr. McCloud’s tone or manner

in referring to her as ‘Ms. Sassone.’” The court also rejected the judge’s contention that

McCloud posed a security risk, noting that the judge did not cite security concerns as

justification for her contempt rulings in her response to the Office of Special Counsel’s

preliminary inquiry letter and that McCloud was seated in the jury box and shackled to

other prisoners. The court concluded, after listening to the audiotapes of the proceedings,

that it was clear that McCloud was not belligerent and did not pose any security threat.

The court also found that the judge failed to follow the requirements of the code of

criminal procedure relative to the procedure for punishing direct contempt and that the

procedures the judge used amounted to an abuse of her contempt power. The court found

that the total contempt sentence of two years imposed by the judge was an abuse of her

authority and discretion. The court rejected the judge’s contention that her contempt

holdings were essentially harmless because McCloud subsequently got credit for time

served for contempt against his sentence on the underlying charges, noting that the judge

could not know with certainty, at the time she held McCloud in contempt, that a future

sentence would be imposed that would exceed the jail time she imposed for contempt.

(2) The judge held Dung Tran, a criminal defendant, in direct contempt of court

three times and sentenced him to three consecutive 90-day sentences in prison. Tran was

charged with possession of two Darvocet pills. The magistrate set his bond at $10,000,

and Tran posted bail in that amount. When Tran appeared in the judge’s court for

arraignment, the judge increased his bond to $100,000. The following colloquy occurred:

THE COURT: What kind of rap sheet does Mr. Tran have?

TRAN: Bad.

THE COURT: Bad; huh?

SCHLOSSER: Yes, ma’am. Our records show he’s got one conviction back in

′88 for PCP. He’s got ten felony arrests, 14 misdemeanors, seven city, one traffic.

A lot of them are aggravated battery and resisting arrest. He’s got -- they’re

presently screening another matter, Jay Adair.

THE COURT: Domestic violence?

GRISBAUM: Uh-huh (affirmative response).

16

THE COURT: And you just have a $10,000 commercial bond; is that what I’m

seeing here?

DAUME [defense counsel]: That’s my understanding, Your Honor.

THE COURT: We have to increase his bond. What’s this, on this schedule for

possession of CDS, what’s the deal on that?

DAUME: It’s my understanding it’s one pill, Your Honor.

SCHLOSSER: It’s Darvocet. I think it’s two pills, Your Honor. Yeah, two

Darvocets.

GRISBAUM: I think with his history, his bond is woefully inadequate.

Especially with --

THE COURT: He’s going to be a bill obviously; huh?

GRISBAUM: Absolutely, Your Honor.

THE COURT: We’ll set $100,000 cash or property bond; okay?

Following a recess, a new case was called.

THE COURT: The defendant’s here?

THE PROBATION OFFICER: Yes, ma’am.

THE COURT: Where is he? You all need to go outside and do that. We’re

trying to get some order in the court, please.

THE BAILIFF: Quiet, please.

THE COURT: Okay. On Mr. Crowden.

THE PROBATION OFFICER: Judge, we had a wrong address, Your Honor.

THE COURT: Wait. Wait one second.

TRAN: Your Honor, in the --

THE BAILIFF: Will you sit down and be quiet. Don’t say another word.

THE COURT: Mr. Tran, let me say something. If you say one word -- you speak

English, Mr. Tran?

TRAN: Ma’am --

THE COURT: Sit down, Mr. Tran.

* * *

GRISBAUM: I’ll be back in about 20 minutes, Your Honor.

THE COURT: Come back at 2:00, if you have enough time to grab lunch.

TRAN: Ma’am, I only need --

THE COURT: Mr. Tran -- Mr. Tran, I’m going to find you in contempt of court,

and I’m going to sentence you-Nick, I’m going to sentence him. You’re going to

serve 90 days in the Correctional Center; all right?

TRAN: But, but --

THE COURT: Mr. Tran, if you say another word, you’re going to get another 90

days.

TRAN: Ma’am --

THE COURT: Oh, Jesus. All right. All right. I’m going to give you 90 days

more. So that’s 180 days, Mr. Tran.

TRAN: But, ma’am --

THE COURT: Be quiet.

17

Tran’s subsequent rambling was inaudible to the court reporter.

THE COURT: Nick, put the cuffs on him, Nick.

TRAN: I was bailed out and --

THE BAILIFF: I’m about to take him over as soon as Rose gives me the

paperwork. I’m ready.

THE COURT: Can somebody tell him to be quiet. I mean --

TRAN: Ma’am, my lawyer didn’t say anything --

THE COURT: Mr. Tran --

TRAN: -- on my behalf.

THE COURT: Mr. Tran, do you understand what I’m telling you?

TRAN: Yes, ma’am.

THE COURT: Be quiet.

TRAN: But I was bailed out --

THE COURT: Mr. Tran, I’m going to give you another 90 days; okay? So how

many is that?

THE COURT REPORTER: 270.

The judge steadfastly maintained to the Commission that she did not act

inappropriately or violate the law or code of judicial conduct. The judge further indicated

that she did not regret her actions and denied that the 270-day sentence for contempt was

excessive or unreasonable. The judge testified that Tran presented a security risk in that

every time she instructed him not to speak, he “blurt[ed] things out on the record.” The

judge observed that her courtroom was very crowded at the time and that her criminal

docket is very large, reiterating that “it is dangerous to allow someone to take over the

courtroom.” The court stated that its review of “the transcripts and the audiotapes make

it clear that Mr. Tran was clearly confused about what had transpired in Court that

morning, and that he was merely trying to get information, or clarification, from Judge

Sassone,” respectfully addressing the judge with respect at all times. The court agreed

with the Commission that, although Tran may have had numerous arrests, he had

exhibited no indications that he was a danger to the judge in the courtroom, noting that he

was handcuffed and in the jury box and that a defendant who disrupts a court proceeding

may be removed from the courtroom or dealt with in some way other than holding him in

contempt that the judge could have used if she “had exhibited more patience.”

“Pretermitting” the issue whether Tran’s actions were contemptuous, the court found that

the procedures the judge used in holding him in contempt did not comport with the

procedures required by law and therefore amounted to an abuse of her contempt power.

The court also found that, even if Tran’s behavior constituted direct contempt, based on

these facts, the judge’s “sentence of 270 days in jail is clearly excessive, and

demonstrated an abuse of her power and discretion.”

(3) The judge revoked the defendant’s bond in State v. Adams after the following

colloquy with his counsel, Philip Belancio:

THE COURT: What’s the bond?

18

BELANCIO: I understand that he’s got a $7,500 PSBU [personal surety bond

undertaking].

THE COURT: I think we need to test the surety. Probably you need to request an

increase in the bond.

SCHNEIDER: Yes, Your Honor.

THE COURT: We’ll test his surety when, tomorrow?

BELANCIO: Your Honor, I have a trial in the morning in Cusimano’s court.

THE COURT: Okay. And that’s in the same building, so you can walk over at

some point.

BELANCIO: Yes, okay.

THE COURT: 3/19, 10:00. Check in with us.

BELANCIO: Okay.

THE COURT: Go to Division “L” and figure out what’s going on. You have to

notify the surety to be here tomorrow morning at 10:00.

BELANCIO: Your Honor, he’s been here four times already.

THE COURT: Okay. Good. Just -- I’m going to revoke the bond; how about

that?

BELANCIO: We’ll be here tomorrow.

THE COURT: No, too late. No bond. He doesn’t have a bond. I’m going to

hold him without a bond; okay?

At the Commission hearing, the judge denied that she acted contrary to law,

abused her authority, or violated the code of judicial conduct, indicating she did not

regret her actions. The judge testified that she believed Adams’ attorney, Belancio, was

“being disrespectful” to her, but she adamantly denied that she revoked Adams’ bond

because she was angry with Belancio. The judge maintained that she revoked the bond

because it was invalid on its face, as the surety did not live in the parish, and thus she was

allowed to remand Adams until a proper surety was substituted. The court found nothing

in the transcripts, or otherwise in the record, gave any indication that the judge held a

contradictory hearing or made the requisite findings to revoke Adams’ bail, noting the

judge did not state anything on the record regarding the bond being invalid or any other

facts as the basis for her revocation of the bond. The court stated that the transcript

revealed the judge’s action to be retaliatory.

(3) The following colloquy occurred between Judge Sassone and Belancio on

April 14, 2003:

THE COURT: Who else is sitting in the courtroom? Sir, what are you here for,

sir? ... The gentleman in the back with the glasses.

BELANCIO: They’re the witnesses for our trial.

THE COURT: They’re what?

BELANCIO: They’re the witnesses for our trial that was set for today. Those are

the two witnesses.

THE COURT: You don’t put your witnesses on standby?

BELANCIO: I have them here.

THE COURT: They’re your witnesses?

BELANCIO: Yeah. They’ve been here all day, and the last trial date too.

19

THE COURT: Well, why are you making witnesses come sit in the courtroom?

BELANCIO: Because I don’t know when we’re going to trial.

THE COURT: Well, you need to talk to the DA before you come over here.

Have you ever thought of putting your witnesses on standby?

BELANCIO: I have them here. So they don’t have to be on standby if they’re

here.

THE COURT: Well, it’s a waste of time for them to keep sitting in the courtroom

all day.

BELANCIO: I feel the same way.

THE COURT: We have a million clients on our docket. Your client’s not going

to go to trial ahead of other people. And it might be better, for these people to not

miss whatever they do during the day, to put them on standby next time. All

right. What’s left? Is that it? Thomas, we need to go through the docket, then?

THE TRANSPORTING DEPUTY: Yes, Judge.

THE COURT: Let’s -- you want to take the people in the box?

THE TRANSPORTING DEPUTY: Adams.

THE COURT: Mr. Adams. May 12th.

BELANCIO: Your Honor, I need to put a few things on the record too.

THE COURT: Wait one second. Just have a seat. We’ll do that last. Who’s

after Adams?

BELANCIO: Your Honor, I’m due in court at 3:00 in Orleans. Is there any way

we can take that now? I’ve lost my whole day here today. You know, I’ve got to

be in court-

THE COURT: You know, you really -- can we have quiet in the courtroom,

please.

BELANCIO: I’m due in Division “C” over in Orleans.

THE COURT: Mr. Belancio, you whine a lot. So just sit down. You’re not any

different than anybody else who hasn’t been here all day.

BELANCIO: All right. Thank you.

THE COURT: All right? I mean I hate to tell you that-

BELANCIO: That’s all right.

THE COURT: -- but you’ve been complaining all day long. If you don’t want to

be here, don’t practice law; okay? All right. Who’s next to Mr. Adams?

When questioned at the hearing, the judge denied that she was rude,

condescending, or demeaning to Belancio. The judge maintained that Belancio acted

inappropriately and disrespectfully, talking back and trying to have his case called ahead

of the others. The court agreed with the Commission that, considering the consequences

of Adams’ surety having left the March 18 proceeding early, and that his client’s bail was

revoked, Belancio would not have risked having his witnesses absent again at whatever

time the judge called the case. The court also stated it was clear from the transcript that

the judge went out of her way to move the Adams case to later in the day, directing her

court personnel to take Adams last. The court agreed with the Commission that these

actions were retaliatory and a violation of the rule that a judge conduct judicial duties

with dignity, patience, and courtesy.

20

(4) Vincent and his co-defendant were before the judge after being charged with 6

counts of distribution of a controlled dangerous substance. On March 17, 2003, Vincent

moved to recuse the judge. On March 24, the following occurred:

THE COURT: Okay. We’ll pre-try it later. Who’s next?

THE CLERK: Judge, he filed a motion to recuse.

THE COURT: Who did?

THE CLERK: Kenneth Vincent.

THE COURT: Kenneth Vincent, a motion to recuse. All right. Good. How

about that? Where are you Mr. Proctor?

PROCTOR (Vincent’s attorney): Yes, Your Honor.

THE COURT: See what he says. Okay. That’s fine. Everybody will just have to

wait their turn. Okay. Good. Just set this -- I’m not recusing myself in this case.

Just set it for a hearing; okay? See you. Bye.

PROCTOR: Thank you, Your Honor.

After the transcript of the hearing concluded, the audiotape reflects that the judge stated:

“Who’s next? Mr. Vincent is held without bond, without date. All right. Go ahead.”

The minute entry of the proceeding reflects that: “The Court ordered that this case is to

be reallotted to another division for recusal hearing. If recused, this case is to be reset for

trial in reallotted division. The Defendant was remanded to Jefferson Parish prison. The

Court ordered that this Defendant is to be held without bond.”

At the Commission hearing, the judge claimed that she had not revoked Vincent’s

bail but was merely “reiterating” his bond status for the benefit of the transporting

deputy. The court agreed with the Commission that the judge’s assertion that she did not

revoke Vincent’s bond was not credible. The court stated that, after a review of the

record, transcript, and audiotapes, it found that the judge revoked Vincent’s bond without

holding a contradictory hearing or making the required findings after she referred his

motion to recuse to another section of court and after Vincent’s counsel had left the

courtroom. The court noted that, once a motion to recuse has been filed, a judge has no

power to act, and any action taken by that judge is an absolute nullity.

In November 1999, the Commission filed formal charges alleging the judge

engaged in misconduct during her 1996 campaign for office and her 1998 campaign for

the court of appeal. In response, the judge and the Commission entered into a deferred

recommendation of discipline agreement on August 29, 2000. In the current proceedings,

the Commission found that the judge violated the conditions of her agreement, but opted

to issue a private admonishment, rather than submit the misconduct to the court with a

recommendation of discipline. Rejecting the judge’s argument, the court stated that it

could consider the private admonishment when determining the appropriate sanction.

The court found that the judge’s actions were contrary to clear and determined

law and were part of a pattern or practice of legal error. The judge argued that “four

quick and close bail/contempt calls made by a district judge from the bench in a crowded

courtroom with a lengthy docket” does not constitute a pattern. The court stated, “while

admittedly the frequency of the misconduct is not substantial if viewed over the course of

her entire judicial career, . . . Judge Sassone’s actions reflect a pattern of refusing to

follow the law. In both her contempt rulings and bond revocations, Judge Sassone failed

21

to follow the clear mandates of the law, and subsequently has refused to acknowledge

this failure.” The judge argued that she had exhibited contrition, pointing to one instance

in the hearing wherein she agreed that during the relevant time frame she was

experiencing “a very difficult time” in connection with her cooperation with the Wrinkled

Robe investigation, that there were some things she wishes she had “done differently,”

and that some of the things she did during that time “were perhaps not good judgment.”

The court concluded that the judge had refused to admit to any wrongdoing and conjured

up explanations for her conduct after the fact that do not comport with the record.

Finding no remorse or acknowledgment on behalf of the judge that her actions were

either contrary to law, or constituted misconduct, the court stated it could “only assume

that Judge Sassone has no intention of modifying her conduct in the future.”

With respect to the effect the misconduct had upon the integrity of and respect for

the judiciary, the judge argued “that this factor typically applies when there is

demonstrable evidence that a judge has engaged in publicized or widely-known

misconduct” and that “there is no evidence that the public, the legal community, or the

press had any exposure to the isolated instances of conduct at issue -- at least until the

Commission publicly lodged its allegations of misconduct with this Court.” The court

found that the judge’s refusal to follow the law during official court proceedings

negatively impacted the respect for and integrity of the judiciary.

The judge told the Commission she ran her court as she did in order to move a

heavy criminal docket and because she had concerns about security. However, the

Commission stated that the audio tapes and transcripts suggested that the judge was

highly sensitive to any comment that she perceived to be disrespectful of herself or her

office, taking punitive actions and reacting in the extreme to McCloud, Tran, Belancio,

Adams, and Vincent. The judge argued that the Commission’s “diagnosis” of her was

absurd. With respect to whether the judge exploited her position to satisfy her personal

desires, the judge argued that this factor typically relates to misconduct arising out of

monetary greed, political grandstanding, or efforts to satisfy prurient interests. The court

agreed with the Commission’s statements regarding the judge’s demeanor and treatment

of those she perceived to be disrespectful, but stated it did not find sufficient evidence to

prove that the judge’s actions were taken to satisfy her personal desires.

One justice dissented and argued that the charges were not proven by clear and

convincing evidence. The dissent noted there is no clear definition of “contumacious,

insolent or disorderly” conduct or “breach of peace, boisterous conduct, or violent

disturbance” in the code of criminal procedure for assessment of contempt. Therefore,

the dissented concluded, the Commission’s interpretation of the law relative to contempt

and the assessment of those facts peculiar to defendants McCloud and Tran contrary to

that of the judge cannot constitute the basis for a finding of judicial misconduct because it

has not been shown the judge improperly determined a law that is not subject to

interpretation and about which there is neither confusion or question. The dissent also

stated that the majority opinion substituted a disciplinary proceeding for appellate review

that the defendants did not pursue. Considering the exceptions and argument McCloud

made about the judge’s rulings and Tran’s repeated violation of warnings to sit down and

to remain quiet, the dissent found that the judge properly found them in contempt and

was justified in immediately imposing sentence as the acts of contempt occurred.

22

To the extent that a contradictory hearing was required before the judge revoked

Adams’s bail, the dissent found that the bond was revoked in open court when the state,

the defendant, and his attorney were present and had an opportunity to address the

judge’s actions, noting Adams neither appealed the ruling nor sought a supervisory writ

application. The dissent also found that the judge’s treatment of defense counsel should

not be viewed in a vacuum, stating that although he did “not condone the ultimate,

unfortunate colloquy” between the judge and defense counsel, defense counsel acted

disrespectfully and repeatedly attempted to obtain priority consideration. With regard to

Vincent, the dissent stated, if there was legal error, the appropriate forum to correct the

error was by appellate or supervisory review and it was not egregious, in bad faith, or part

of a pattern or practice of legal error.

One justice dissented with respect to the sanction and would have suspended the

judge for only 30 days. That dissent noted that the misconduct occurred while the judge

was confidentially assisting the FBI to expose a corrupt bail bonds system within the

jurisdiction she serves and that she experienced security concerns for herself and her

family as a result. The justice also noted that the judge’s district is one of the more active

jurisdictions in the state with lengthy dockets and crowded courtrooms.

Commission on Judicial Performance v. Gordon, 955 So.2d 300 (Mississippi 2007)

The Mississippi Supreme Court suspended a judge for 30 days without pay for

“passing” 14 traffic tickets to the file over the objections of the issuing officer. The

Commission on Judicial Performance and the judge had filed a joint motion for approval

of a recommendation of a public reprimand.

On or about July 20, 2005, the judge approached Officer Melody McNall prior to

a court session to discuss a number of speeding tickets issued by McNall, explaining that

several upset residents had contacted him, the police chief, and the clerks of the court

about the citations. The judge informed the officer that he intended to “pass” all of the

citations to the files and issue warning letters instead. Although the officer expressed her

disagreement, the defendants were advised not to appear in court.

Noting that it has taken a firm stance on ticket fixing in previous judicial

discipline cases, the court concluded:

The harm caused by Judge Gordon’s behavior extended beyond injuries to the

integrity of his judicial office. His conduct compromised in multiple ways the

integrity of Officer McNall, as well as our system of justice. For instance, Judge

Gordon’s actions gave the impermissible (but apparently correct) impression to

some Union residents that they had sufficient influence over him to deny the

prosecution a fair opportunity to present its case against the defendants at trial.

Finally, as stated by the Commission, “the residents of Union, Mississippi, were

deprived of the municipality’s legitimate interest in punishing drivers who violate

the [city’s speed limits].”

The court held that fixing tickets” willfully subverts justice, and, therefore, the judge

“crossed the line of moral turpitude.” Finding that the judge’s conduct was egregious, the

23

court concluded that the Commission’s recommendation should be enhanced to a 30-day

suspension.

State v. Clark, 924 A.2d 542 (New Jersey 2007)

The New Jersey Supreme Court held that the chief investigator of the Advisory

Committee on Judicial Conduct must comply with a subpoena to testify in the criminal

trial of a former judge about the Committee’s investigation of the judge.

In March 2003, while serving as a municipal court judge, Joseph Clark allegedly

issued a fictitious warrant that transferred an inmate from the county jail to the custody of

the police under the guise that the inmate would be appearing in the municipal court;

instead, the inmate attended his father’s funeral, unguarded, in violation of several

statutes. The Committee began an investigation. Subsequently, a state grand jury

indicted Clark and two co-defendants on charges of falsifying or tampering with public

records. Prior to the start of the criminal trial, the state served a subpoena ad

testificandum on the investigator who had interviewed Clark and his co-defendants in the

Committee’s investigation. The Committee filed a motion to quash the subpoena, citing

its confidentiality requirements. The motion was granted by the trial court, but, on the

state’s motion for leave to appeal, the appellate division reversed.

Noting that confidentiality during the Committee’s investigation protects judges

from unfair allegations that may never lead to formal disciplinary charges, the court

concluded that “the concern about prevention of ‘reputational injuries’ evaporates once a

grand jury has handed up an indictment” and “has been superseded by the criminal justice

system’s needs in this instance.” The court also stated that the Committee’s “need for

flexibility -- to conduct a thorough investigation that might result in the crafting of a

remedy that might not necessitate a public hearing -- has evaporated,” noting the

Committee’s investigation has been stayed until the criminal charges are resolved, the

judge no longer has the option of retiring prior to a public hearing, and the Committee

retains the power to subpoena witnesses, take depositions under oath, and demand the

cooperation of attorneys and judges in future investigations. The court concluded:

“Compliance with the subpoena, after an indictment has issued and a criminal trial is

poised to commence, will not harm the ACJC’s investigatory flexibility or risk unfairness

to the judge involved. More important, however, the interests of respect for and public

confidence in the judiciary require that public disclosure not be denied in this instance.”

In the Matter of Gordon, 924 A.2d 512 (New Jersey 2007)

Adopting the findings of the Advisory Committee on Judicial Conduct, the New

Jersey Supreme Court admonished a former judge for (1) failing to tell a defendant of his

right to be represented by an attorney during a hearing on an outstanding fine; (2) finding

a woman in contempt when she paid a parking fine with a check that had “assholes”

written in the memo area; (3) paying a fine to his own court clerk when his failure to

respond to a parking summons led to the suspension of his license and asking a member

of the court staff to fax a request to the motor vehicle commission to have his license

reinstated; and (4) refusing to release a defendant on bail until the defendant produced

valid identification or verified he was not being sought by federal immigration officials.

24

The Committee had recommended a reprimand. The court noted that the Committee had

found that the judge suffered from a previously undiagnosed illness that undoubtedly

affected his judgment. At the Committee hearing, the judge had offered in evidence a

report from his treating psychiatrist, who concluded that he had long suffered from a

bipolar disorder that led to much of the conduct covered by the complaint. The court’s

order does not describe the judge’s conduct; the Committee’s findings are available at

www.judiciary.state.nj.us/pressrel/GordonPresentment.pdf.

(1) In May 2003, the judge presided over a case in which a defendant had been

arrested for failing to pay a traffic fine of $1,017 levied almost 10 years earlier. (The

defendant had obtained a time payment order but made only one $45 payment and failed

to respond to several delinquent payment notices.) After the judge informed the

defendant that he owed $972, the defendant said he could pay about $150 in cash and

could write a check for another $300, and the judge replied: “No, it’s nothing.” He told

the defendant he was also imposing a penalty of $100 for each year that the fine had

remained unpaid and that, although he would normally add 30 days in jail for contempt

for each of those years, he could not do so because that would exceed the six-month

maximum he was able to impose. The judge told the defendant that he owed a total of

$2,072 and would be sentenced to jail for six months for contempt. The defendant

protested that he wanted to stay out of jail. The judge said that he would suspend the

sentence of confinement if the defendant paid $2,072. The defendant replied that his wife

was outside and could write a check, and the judge said that he would not accept a check.

The judge told the defendant that he should have said at the start that he could pay the

entire amount instead of offering $150 in cash and $300 in a check. The judge closed the

hearing by saying that a police officer would inform the defendant’s wife that she had to

present $2,072 in cash to have the defendant released from jail.

The Committee found that the judge became annoyed because the defendant

claimed at first to be able to pay only part of the fine but then turned out to be able to pay

the entire amount on the spot, which the judge made clear when he said, “Once

somebody pulls that on me it’s cash.” The Committee also found that the judge

sentenced the defendant to incarceration without advising him that he was facing a

consequence of that magnitude, that he had a right to be represented by counsel, and that

counsel would be appointed if he could not afford one, and held a summary contempt

proceeding when the alleged contempt did not occur in the face of the court.

(2) A defendant mailed a check to the court to pay a fine for a parking summons

with “assholes” written on the memo line of the check. The check was not accepted, and

the defendant was instructed to report to court. The judge held a summary contempt

proceeding and fined the defendant $500, but then reduced the fine to $100. The

Committee found that, by holding a summary contempt proceeding when there was no

contempt in the face of the court, the judge violated an administrative directive that

specifically instructs judges that summary contempt proceedings are not appropriate in

response to remarks written on checks sent to pay fines. When the defendant had brought

the directive to the judge’s attention, the judge told her: “I ignore it. I ignore it because

[the chief judge of the municipal court] ignores it. And I don’t care if I get in trouble for

what I said. I’m not going to allow anybody to write this kind of stuff on a check that’s

going to offend anybody.”

25

(3) On May 10, 2003, a parking summons was placed on a vehicle registered to

the judge. The judge did not pay the fine, appear in court, answer a computer-generated

failure to appear notice, or respond to a notice of proposed suspension of his driver’s

license. A notice of suspension of driver’s license was sent to him on August 18. The

judge testified that he had not received the initial summons and that he did not become

aware of the matter until the failure to appear notice was issued. Wishing to contest the

ticket, he told a deputy court administrators that he was going to plead not guilty and that

venue should be transferred to another court. Shortly thereafter, the judge received a

notice that his driver’s license was subject to suspension for his failures to respond. The

judge discussed the matter with a deputy court administrator, who told him the matter

would be taken care of. The judge then received a notice that his license had been

suspended. The judge went to the clerk’s office shortly before closing, asked what he

owed, and wrote a check in that amount. He then asked a member of the court staff to

send a fax to the division of motor vehicles to have his driver’s license reinstated.

The Committee found that the judge’s “informal and essentially off-handed

approach to have the venue changed demonstrates poor judgment on his part. As a judge,

he had an obligation to respond in proper fashion to the various official notices he

received. He chose instead to take advantage of the access he possessed to approach

court staff informally.” His most serious violation, the Committee stated, was “his

direction to a member of the court staff to send a faxed notice to reinstate his driving

privileges. He used his unique access to have someone subject to his supervision take

action that was of personal benefit to him.”

(4) On July 6, 2002, police arrested Paul Rojas and charged him with presenting a

fraudulent social security card to a police officer. At first, he was denied bail, but bail

was later set for $500,000. Rojas was unable to make bail and remained in custody. On

July 19, Ida Cambria made an emergent bail application on Rojas’s behalf. A superior

court judge lowered bail to $2,500, with a 10 % option. Bail was then posted, but Rojas

was not released even though the Immigration and Naturalization Service verified that

they were not seeking him. On October 23, Rojas appeared before Judge Gordon.

Because Cambria was otherwise engaged, she arranged for Gail Belfert to represent

Rojas. The judge asked if Rojas had any identification, but Belfert refused to answer,

saying that Rojas was asserting his privilege not to reply under the Fifth Amendment.

The judge said he was entitled to see valid identification and that it was not a Fifth

Amendment issue. Belfert replied that it was a Fifth Amendment issue if there was an

immigration issue. The judge then ordered Rojas to produce identification immediately.

Belfert told the judge that Rojas did not have identification, adding that it was not “a

crime to be an illegal alien.” The judge continued to insist that Rojas produce some form

of identification to which Belfert said that Rojas could not produce identification if he

were illegal. The judge said: “Then I’ll have him held for the INS.” Belfert replied that

she would seek an interlocutory appeal. When the judge said that he would not grant a

stay pending an interlocutory appeal, Belfert replied: “See you in the Appellate Division,

Your Honor.” The judge directed that Belfert sit down, and he told her that he would

deal with her later during the court session, saying that it was disrespectful for her to

walk out of his courtroom with her back to him and to say that she would see him in the

appellate division. Belfert said that she wanted a hearing and the opportunity to call her

attorney, and the judge replied that she could have both. Cambria appeared in response

26

to Belfert’s call and sought to have the judge take the matter up at that point. When the

judge said that he would get to it after dealing with his calendar, Cambria replied that she

would have no choice but to call the emergent-duty superior court judge. The judge gave

Cambria his cell phone number and said that he would speak to the emergent-duty judge

if that judge called him. The emergent-duty judge called Judge Gordon who took the call

on the bench and told the emergent-duty judge that his practice was to turn such

defendants over to the correctional center, which would contact the INS. The judge

added: “And the INS may very well pass off -- pass off on him. They tend to do it on

most of the -- and they will, but they can do it. They can be responsible for that, not me.

I’m not going to be responsible for that.” He added: “I’m not going to accept that

responsibility unless somebody wants to give me a lifelong appointment.” The judge

continued saying that he would not take the responsibility of releasing Rojas: “I will not

let him go. I can tell you that now because I’m -- all he has to do is do something bad

and then it’s all over the world.” After additional colloquy, Cambria told the judge that it

had been inappropriate for him to question Rojas about his identification when that was

the ultimate issue to be tried. She said that she knew Rojas, had met with him, had

spoken with members of his family, and had seen photographs of him and his family.

The judge asked where Rojas worked. Cambria replied that she did not think that was an

appropriate question. The judge replied that he just wanted to establish that Rojas had

“some ties” to the community. Cambria replied that Rojas had a tie to the community

and that she knew where he worked but would not name the establishment because Rojas

was not required to give any evidence against himself that could be used to prove the

charge of false identification. The judge asked Cambria if Rojas had ever shown her any

identification. Cambria replied that she did not think she should be required to answer

that, but she told the judge that Rojas’ wife had shown her his birth certificate. Cambria

told the judge that it was inappropriate for him to have asked Belfert about Rojas’

immigration status “because it violates the separation of powers clause of our state and

federal constitution.” The judge replied:

I don’t know whether it does or doesn’t, but I know in today’s environment I want

the answer to that question. I think that if there’s -- if there are people in this

country illegally, considering what’s happened in this country especially over the

last year and a half and it comes to the Court’s attention or the Court has a reason

to make an inquiry relative to that, especially someone who we have a level of

concern with concerning his I.D. and the nature of the charge, that it makes sense

for me to make that inquiry. I’ll stand on top of the Constitution and make that

inquiry every time considering what has happened in this country, especially what

happened starting September 11th. And I don’t care whether the person is from

China, from Austria, or Russia. It doesn’t matter to me, I’ll make the inquiry.

After additional colloquy, the judge heard other matters. At the end of the court session,

the judge announced that the emergent-duty judge had authorized Rojas’ release because

Cambria had informed the judge that she knew Rojas and had seen his birth certificate.

The judge testified that he wanted to ensure that the person appearing before him was

“truly the defendant” in the case.

27

The Committee stated that “a judge may properly question the identity of an

individual to make such a determination, but the identification of the defendant by

counsel is sufficient for that purpose,” noting that, unfortunately, Belfert, who could have

defused the situation early on, did not identify the defendant, and when the judge insisted

on seeing valid identification, understandably objected on Fifth Amendment grounds.

The Committee found that “by basing Rojas’ legal rights on his immigration status,

Respondent gratuitously inquired into matters that were not properly before the court,”

violating Canons 2A and 3A(1) and engaging in conduct prejudicial to the administration

of justice that brings the judicial office into disrepute. The Committee also found:

By his remarks during his telephone conversation with the emergent-duty

Superior Court judge, Respondent made it clear that his motivation in holding

Rojas, when there was no legal justification for his doing so, was his own fear of

the consequences to him and his reputation if he were to release Rojas and if

Rojas were then to engage in terrorist activity. Such concerns are understandable,

especially so soon after the events of September 11, 2001, but they are not

excusable when they influence the exercise of the judicial office. Respondent

gave the appearance of reacting to Rojas on the basis of a stereotype. He

appeared to equate illegal immigrants with terrorists, which is a manifestation of

impermissible bias.

Inquiry Concerning Vincent, Order (New Mexico Supreme Court May 1, 2007)

Granting the petition of the Judicial Standards Commission based on stipulated

findings of fact, the New Mexico Supreme Court ordered that a judge be formally

reprimanded for endorsing a mayor for re-election and authorizing the use of his name in

an endorsement that was published in the local newspaper. The court also held that the

prohibition on endorsing other candidates was not unconstitutional.

Inquiry Concerning Locatelli, 161 P.3d 252 (New Mexico 2007)

Denying a petition for discipline, the New Mexico Supreme Court held that the

Judicial Standards Commission had failed to prove that a judge committed willful

misconduct when he issued criminal contempt complaints to two attorney for their role in

an appeal from his court and failed to recuse himself from the contempt proceedings.

The judge accepted an uncounseled guilty plea from an 18-year-old defendant for

stealing a box of tampons and sentenced her to 90 days in jail, 88 of which were

suspended, and imposed a $500 fine, $300 of which was suspended. Subsequently,

Marcia Milner filed an appeal on behalf of the defendant for a trial de novo. When the

judge received notice of the appeal, he forwarded the record to the district court with a

cover sheet informing the district judge that the defendant had entered a guilty plea. The

city attorney, Richard Jacquez, made an oral motion to dismiss on the basis that the

defendant was not entitled to appeal because she had entered a guilty plea and, therefore,

was not aggrieved. The district court denied the motion based on Milner’s argument that

her client’s plea was uninformed. The district judge allowed the defendant to enter

another guilty plea and sentenced her to a 6-month deferred sentence with 6 months

28

unsupervised probation. When Judge Locatelli received the district court judgment, he

was concerned that the district judge had been misinformed about the case. He

discovered that no written motion to dismiss had been filed by Jacquez, who had not

entered an appearance or filed a witness list until 8 days before the hearing. The judge

suspected that Jacquez had been unprepared and may not have asked the court to dismiss

the case. He subsequently researched the “novel question of what [he] as an inferior

court judge could do if [he] believed [his] decisions were being nullified by inaction of

the City Attorney.” Shortly before the sentencing hearing, the judge was told that

Jacquez had not challenged the district court judge’s assumption that the defendant had

not been informed of her rights or the defense attorney’s representation that the defendant

was not aware of the consequences of her decision to enter a guilty plea. He

acknowledged that he became angry and decided to have both Jacquez and Milner

“charged with indirect contempt for deliberately misrepresenting procedures employed at

the municipal court.” At the sentencing hearing, the judge served both Milner and

Jacquez with criminal complaints charging them with contempt. The basis of the

contempt charge against Milner was that she had filed a notice of appeal in district court

knowing that the defendant had entered a guilty plea. The basis of the contempt charge

against Jacquez was that he had signed the district court judgment knowing that the

appeal was contrary to law. The judge acknowledged that he charged the attorneys with

contempt without actually reviewing the transcript of the district court hearing and that he

would need to recuse himself from contempt proceedings because his anger had created

an appearance of impropriety. After reviewing the transcript of the district court

proceedings, the judge decided to dismiss the charges against the attorneys. He informed

the city attorney’s office of his decision, but neglected to inform Milner who appeared for

a scheduled pre-trial conference and trial only to discover nothing was happening.

The court emphasized that negligent violations of the code of judicial conduct are

not willful misconduct that justifies discipline or removal. (The New Mexico

constitution does not identify conduct prejudicial to the administration of justice as one of

the grounds for discipline.) The court noted that the judge testified that before charging

the attorneys with contempt, he had researched what action he could take if he discovered

that Jacquez had entered into a plea agreement because he was unprepared and he

believed that he could hold the attorneys in indirect contempt if they had attempted to

confer jurisdiction on the district court by stipulation. He consulted with attorneys from

the Municipal League and the attorney general’s office. The judge testified that the

attorney from the Municipal League told him that he did not “think it was out of line” to

issue a contempt citation and that the attorney from the attorney general’s office

discussed the possibility of filing a petition for a writ. The court found that “because he

failed to procure the transcript of the district proceedings to ascertain the facts before

acting on his suspicions that the attorneys were ignoring or attempting to circumvent his

order, his actions were negligent.” However, the court stated it was not persuaded that

clear and convincing evidence demonstrated that the judge’s actions constituted willful

misconduct in office. The court also concluded that the Commission’s findings did not

show that the judge’s anger was expressed in a manner that constituted a willful violation

of his duty to be dignified and courteous. Although the Commission found that the

judge acknowledged that he had been angry and upset in open court, the Commission did

not find that the judge was abusive, had shouted, or appeared disrespectful. The court

29

also concluded that the judge did not act in the case after he knew he should have

recused, noting that although additional hearings were set automatically, none actually

occurred and “while a better course of action would have been to enter an order

dismissing the case immediately upon deciding to do so.” The court did find that

challenging a judgment by appeal is not the same as disobeying a court order, even if

there is no right to such an appeal. The court clarified that “in circumstances like those in

this case, when a judge suspects that an attorney has violated a duty of competence,

diligence, or candor toward the court, the preferred course of action is to report the

attorney to the Disciplinary Board.”

In the Matter of Honorof, Determination (New York State Commission on Judicial

Conduct April 18, 2007) (www.scjc.state.ny.us)

Based on an agreed statement of facts and joint recommendation, the New York

State Commission on Judicial Conduct determined that admonishment was the

appropriate sanction for a judge who failed to make payments he owed under a

confession of judgment and settlement of a claim related to his former law practice and,

in the litigation the creditor was forced to commence, filed a verified answer that

contained defenses he acknowledges were invalid. One member dissented.

In 1998, two former clients sued the judge based on advice he gave related to the

purchase of shares in a company. In or about April 2000, the parties reached an

agreement, and the judge signed a confession of judgment, agreeing to pay $55,000, in

one lump sum of $25,000 followed by 60 monthly installments of $500. After November

2001, the judge stopped making the payments required by the settlement. After sending

the judge several demand letters, in or about July 2004, the former client filed a

complaint demanding judgment in accord with the terms of the settlement. In or about

September 2004, acting on advice of counsel, the judge verified an answer denying the

allegations and stating that the settlement and confession of judgment had been procured

by “fraud and duress.” The judge acknowledges that those defenses were invalid and that

he owes the remaining debt under the settlement. He has arranged to pay $22,000 by

May 15, 2007 in full satisfaction of the debt.

The Commission concluded that “as a judge and officer of the court, respondent

was especially obliged to be candid in the litigation process and not to verify assertions in

a pleading unless he was reasonably certain, after due diligence, that such assertions were

accurate,” noting judges are held to stricter standards than “’the morals of the market

place’” and society as a whole to preserve the integrity and independence of the judiciary.

One member dissented and voted to dismiss the charges and reject the stipulation,

stating that the record did not support a finding that the judge, at the time he raised the

defenses, knew that his defenses were “invalid” or frivolous. The member argued that

“the stipulated facts leave gaps that make it difficult to render an appropriate sanction.”

The member also expressed concern that the Commission was being manipulated by the

judge’s creditors “to exert pressure on a judge who appears to be in financial distress.”

In the Matter of Appel, Determination (New York State Commission on Judicial Conduct

May 14, 2007) (www.cjc.ny.gov)

30

Based on an agreed statement of facts and joint recommendation, the New York

State Commission on Judicial Conduct determined that admonishment was the

appropriate sanction for a non-lawyer judge who presided over the sentencing of two

defendants represented by an attorney just before announcing that she was barring the

attorney from appearing before her in the future and who barred the attorney from

appearing before her based on unsubstantiated hearsay information.

On November 30, 2005, the judge’s court clerk told the judge about a

conversation the clerk had overheard between a state trooper and the deputy town

attorney about a traffic stop for speeding involving attorney Juliane Massarelli and

another motorist, during which Massarelli provided the other driver with her business

card. The judge concluded from this hearsay information that Massarelli had acted

unprofessionally. The judge also concluded that Massarelli believed she should receive

special treatment in the adjudication of her speeding ticket, which was heard by the

judge’s co-judge because of her friendship with the deputy town attorney. The judge

developed a personal bias against Massarelli.

About seven weeks earlier, the judge had been presented with plea agreements in

two speeding cases. On December 7, 2005, Massarelli appeared before the judge to

supply the judge with proof the two defendants had completed defensive driving courses.

After finalizing the charges, the judge informed Massarelli, in open court, that for

personal reasons she did not explain, she would not permit Massarelli to appear before

her in future cases. The judge refused Massarelli’s request for an explanation at that

time. Massarelli never reappeared before the judge again, and the judge never explained

to Massarelli why she refused to allow Massarelli to appear before her.

The Commission concluded that, by presiding over the sentencing of two

defendants represented by an attorney just before announcing that she was barring the

attorney from appearing before her, the judge violated the rules requiring disqualification

in matters where the judge’s impartiality might reasonably be questioned. The

Commission stated that, while the record does not indicate that the judge’s handling of

those two matters was influenced by her bias against the attorney, the judge should not

have presided in the cases in view of her evident bias. The Commission found that the

judge barred the attorney from appearing before her based solely on unsubstantiated

hearsay information about a purported overheard conversation. The Commission stated

that the judge effectively punished the attorney, without explanation, by announcing in

open court that she was barring the attorney from appearing before her in the future. The

Commission found the judge’s conduct was irresponsible, undignified, and demeaning,

and that, by refusing to explain the reason for her precipitous action, the judge never gave

the attorney an opportunity to refute the scurrilous information the judge had received.

In the Matter of Merrill, Determination (New York State Commission on Judicial

Conduct May 14, 2007) (www.scjc.state.ny.us)

Based on an agreed statement of facts and argument on the issue of sanctions, the

New York State Commission on Judicial Conduct determined that censure was the

appropriate sanction for a non-lawyer judge who (1) in 2 matters, engaged in ex parte

communications and made biased statements about the parties, notwithstanding that he

had previously been admonished for similar conduct and (2) failed to disqualify himself

31

in 7 cases when his personal attorney appeared. Two members dissented as to sanction

and would have admonished the judge.

On or about September 1, 2004, Wayne Sparling and William Sprague argued at

Sprague’s premises regarding $2,919 Sprague had charged Sparling for auto-body repair

work he had done on two cars. Sprague refused to release one of the vehicles until the

outstanding balance was paid in full. During the dispute, when Sprague tried to call his

lawyer, Sparling allegedly shoved Sprague and ripped the telephone from the wall. A

sheriff’s deputy was called to the scene and issued Sparling an appearance ticket charging

him with assault and returnable in the judge’s court. Sprague required medical attention.

The judge and Sparling own adjacent farms. The sheriff’s office informed

Sparling to contact the judge about getting access to his vehicle. Shortly after the

incident, Sparling visited the judge at his hayfield and told him about the incident,

mentioning that Sprague had been on the phone with his attorney at the time of the

altercation. The judge told Sparling, who was very agitated and upset, that he did not

want to discuss the matter. After Sparling persisted, the judge replied that he would

speak with Sprague’s attorney. That afternoon, the judge telephoned the attorney and

discussed an interim resolution in which Sprague would accept $800 and release the car

to Sparling, and Sprague could pursue the remainder of his claim in small claims court.

The judge recognizes in retrospect that he should not have contacted the attorney and that

by doing so he created the impression that he was using his judicial position on behalf of

Sparling to promptly resolve the matter.

The judge next telephoned the sheriff’s office so that they would be aware of the

proposed agreement and an officer would convey the information to the parties. The

judge expressed concern that the two parties would have a second altercation when

Sparling paid the $800 and picked up his car and called both Sprague and Sparling “hot

heads,” saying they “don’t have brains enough to pour piss out of a boot with instructions

on the heel and a hole in the toe.” The judge stated that he made these remarks to ensure

that the deputy was aware of the potential for a second altercation. Later that day, a

sheriff’s deputy informed Sprague that the judge had recommended that Sprague accept

$800 for the repairs, release the vehicle to Sparling, and pursue his claim for damages in

small claims court. Sprague agreed because he believed that he could be arrested if he

did not do so. He later commenced a civil proceeding in another court to recover the

unpaid balance due for the automotive repairs, as well as for damage to his property and

reimbursement of his medical bills.

On or about September 6, 2004, Sparling appeared before the judge for

arraignment on the assault charge, waived counsel, and was released on his own

recognizance by the judge. The judge offered to disqualify himself, as he had previously

in matters involving Sparling, because he had knowledge of the dispute between the

parties. Both Sparling and the assistant district attorney declined the offer. When

Sparling again appeared before the judge on or about October 11, the judge dismissed the

assault charge in the interest of justice at Sparling’s request with the consent of the

assistant district attorney, who indicated that he did not have a viable case due to

conflicting accounts of the incident. The judge did not set forth on the record or in an

order the basis for the dismissal as required by law.

Finding that the judge overstepped the boundaries of his judicial authority, the

Commission stated “it is the proper role of a judge to preside in court proceedings, not to

32

mediate disputes out of court.” Although the judge offered to disqualify himself and he

presided with the consent of both sides, the Commission stated, with two decades of

experience, the judge “should have recognized that out-of-court misconduct is not cured

by an offer to recuse and that he should avoid any involvement in impending matters that

might compromise his impartiality as a judge.”

On or about April 1, 2005, Ronald Panzica was arrested and charged with assault

and trespass for allegedly injuring his neighbor, Raymond Iris, during an argument over

their property boundaries. The arresting officer issued an appearance ticket requiring the

defendant to appear on April 11. On or about April 2, Iris telephoned the judge at his

residence and asked the judge to issue a protective order against Panzica. The judge told

Iris that he could not issue a protective order because he had not yet received any

paperwork from the sheriff. Iris was very persistent, frustrated, and frequently

interrupted the judge’s attempt to explain the process. The judge had no prior contact or

relationship with either Iris or Panzica. After his conversation with Iris, the judge

telephoned the sheriff’s department and indicated to a dispatcher that he had just received

a telephone call from Iris about an incident the previous evening and asked when he

would receive the paperwork. The dispatcher said that the matter was returnable April

11, and the judge asked if he could nevertheless have the paperwork by April 4. On or

about April 4, the judge telephoned Iris and told him to appear in court that evening

regarding the order of protection. The judge then telephoned the sheriff’s department and

spoke to dispatcher. The judge said that he had not yet received the paperwork for

People v. Ronald Panzica, that Iris was scheduled to appear that evening to request an

order of protection, and that he needed the paperwork as soon as possible. The dispatcher

indicated that Iris had just contacted the sheriff’s office and complained about the

sheriff’s handling of his case, and she expressed her disdain for Iris. In response, the

judge commented that he needed the paperwork so he would “have something more to

base my refusal to give him an order of protection on.” The judge now recognizes that he

should not have made such a statement, which created the impression that he had

predetermined he would not issue the order of protection. When Iris appeared in court on

April 4, the judge told him that he could not grant the order of protection because he still

had not received the paperwork from the sheriff. When Iris attempted to describe the

altercation, the judge told Iris that he had seen many disputes between neighbors and

usually both were at fault. While Iris was still in court, the judge again telephoned the

sheriff’s department and spoke to a deputy, who informed him that the papers were in the

mail. The judge told the deputy that he had not yet received the paperwork and that “one

of the parties is here and starting to get irritated with me and everybody else.” When the

judge completed his calendar that evening, he again telephoned the sheriff’s department

and told another dispatcher that he had been frustrated when he telephoned earlier that

night, and he said he wanted assurance from the sheriff’s department that a deputy had

told the defendant “that his ass will be in jail the next time” he went near Iris, even

without an order of protection. On or about April 5, the judge telephoned Iris and

informed him that he had issued a temporary protective order. Several days after the

judge issued the order of protection, the judge received a telephone call from the district

attorney informing him that the temporary order of protection was defective because the

form was not properly completed due to an incorrect name inserted into the order and that

the temporary order of protection would not be enforced by his office. On April 11,

33

Panzica was scheduled to be arraigned at 6:30 p.m. The judge conducted the arraignment

at approximately 6:15 p.m. when Panzica and his attorney, Terence O’Leary, arrived,

prior to the arrival of the assistant district attorney. At the arraignment, the judge did not

offer to disqualify himself and failed to disclose that O’Leary had previously represented

him. Prior to the arrival of the assistant district attorney, the judge informed Iris that he

had rescinded the temporary order of protection because it was defective and that he

would not issue another order. Instead, the judge “orally” ordered Iris and Panzica to

stay away from each other. The judge acknowledges that he should have waited until the

assistant district attorney appeared, that he should have disclosed on the record that

O’Leary had previously represented him, and that he should have inquired as to whether

the assistant district attorney objected to his presiding. When the assistant district

attorney arrived at 6:30 p.m., Panzica was leaving the courthouse. The judge notified the

assistant district attorney about the arraignment, and the assistant district attorney advised

that he was recusing himself from the matter because he realized, in passing Panzica, that

they both attended the same church. At the next court appearance, the judge requested

that the Panzica case be transferred to another court because he had “too much contact”

with Iris and because the defendant’s attorney had represented him.

The Commission found that, while the judge’s calls to the sheriff may have had a

proper, even commendable, purpose, his comments during these conversations were

inappropriate and conveyed the appearance that he had pre-judged the merits of the case.

Noting that the judge eventually issued the requested order, notwithstanding his earlier

comments suggesting that he would not do so, the Commission concluded that “despite

conveying the appearance of prejudgment, the record suggests that respondent made a

decision that was based on the merits.”

The judge had been admonished by the Commission in 1998, for, inter alia,

engaging in improper ex parte communications with both parties in a landlord/tenant

dispute, acting as an advocate for one of the parties, using the prestige of his judicial

office to advance that party’s position, telling the tenants they would be evicted if legal

proceedings were commenced, and thereafter presiding over the matter when eviction

proceedings were commenced. The judge was represented in that disciplinary proceeding

by O’Leary. Starting in 2002, O’Leary appeared before the judge in 4 criminal cases and

2 civil cases, but the judge failed to disclose his prior relationship with O’Leary.

Although the attorney-client relationship had ended more than 4 years earlier, the

Commission found that the disclosure was required, stating “it is no excuse that in a small

community, the district attorney and others may have been aware of the relationship.”

In re Balance, 643 S.E.2d 584 (North Carolina 2007)

Accepting a recommendation of the Judicial Standards Commission based on

stipulated facts, the North Carolina Supreme Court removed a former judge from office

for his conviction for failing to file federal income tax returns. The judge does not

dispute the facts or the recommendation and waived formal hearing before the

Commission. He resigned in October 2005.

The judge pled guilty to one count of failure to file federal income tax returns on

March 29, 2005, and, as a result of the plea agreement, was sentenced to 9-months

imprisonment, a $5,000 fine, and supervised release for one year from his release from

34

imprisonment. The judge acknowledges that his conviction was for a crime involving

moral turpitude and constituted conduct prejudicial to the administration of justice that

brings the judicial office into disrepute. The judge represented to the Commission that he

will not seek judicial office nor accept any appointment as an emergency judge or special

judge nor serve in any position that would require him to perform in any judicial capacity

in North Carolina in the future.

In re McCullough, Public Reprimand (North Carolina Judicial Standards Commission

June 27, 2007)

The North Carolina Judicial Standards Commission publicly reprimanded an

court of appeals judge who had entered a plea of guilty to impaired driving. The judge

had been stopped on October 7, 2006. Following his plea, he was placed on 24 months

unsupervised probation, ordered to obtain a substance abuse assessment and complete

any recommended education or treatment, pay a $100 fine, court costs, and community

service fee, to complete 24 hours of community service, and comply with other

conditions of probation. The reprimand noted that the judge had paid all court-ordered

financial obligations, completed the court-ordered substance abuse assessment and

recommended education/treatment, and completed the court ordered community service.

The judge self-reported his conviction to the Commission.

Pennsylvania Family Institute v. Celluci, 489 F. Supp. 2d 447 (U.S. District Court for the

Eastern District of Pennsylvania 2007)

Entering a preliminary injunction, the United States District Court for the Eastern

District of Pennsylvania enjoined enforcement of the provisions of the state code of

judicial conduct prohibiting judicial candidates from making “pledges or promises of

conduct in office other than the faithful and impartial performance of the duties of the

office” and making “statements that commit or appear to commit the candidate with

respect to cases, controversies or issues that are likely to come before the court.” The

plaintiffs were judicial candidates and organizations that sent out questionnaires. The

defendants were members of the Judicial Conduct Board and the Chief Counsel of the

Office of Disciplinary Counsel.

The court noted that it was not bound by the five federal district court decisions

that had already held the provisions unconstitutional in other states (Alaska, Indiana,

Kansas, Kentucky, North Dakota) but concluded that “the force of their thorough

reasoning compels this court to conclude that Plaintiffs have met their burden of showing

that they are likely to succeed on the merits of their First Amendment claims.” The court

concluded:

The public interest will be served greatly by a preliminary injunction against the

enforcement of the pledges and promises and commits clauses of Canon 7B(1)(c),

because allowing Plaintiffs and others similarly situated to speak freely regarding

their own and other judicial candidates’ political views will contribute to a more

informed electorate and more vigorously contested judicial elections. . . . To the

extent that fewer restrictions on judicial candidates’ political speech might

35

threaten the public’s interest in an open-minded, impartial judiciary, the court

finds that Pennsylvania’s recusal canon – Canon 3C(1) – neutralizes this threat.

Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Circuit 2007)

Affirming an order dismissing a challenge to campaign speech restrictions, the

United States Court of Appeals for the 3rd Circuit held that an organization that sent

questionnaires to judicial candidates lacked standing because it had not established the

presence of a willing speaker.

The court stated that to establish third-party standing, a party must at least

demonstrate that, but for a regulation, a speaker subject to it would be willing to speak.

The court concluded that “the plaintiff failed to prove at trial that the Canons and Rules

played any actual causal role in candidates’ choice to ‘decline to answer.’” Rejecting the

plaintiff’s argument that “everyone would agree” that a judge who believes that a canon

prohibits certain activity would “certainly” be deterred, the court stated “there are other

equally plausible reasons why a judge might choose to forgo speech in the course of a

campaign for elected office.”

First, it hardly needs to be said that those running for public office may wish to

avoid committing themselves to positions on controversial issues. As PFI itself

points out, judicial candidates might be using the Canons and Rules as a “pretext”

to mask other reasons to remain silent. . . . Additionally, as theorized by

Professor Schotland, the role of the judge is different from the role of officials

who run for office in the historically political branches, and candidates for the

judiciary may feel that announcing their views on legal issues would hinder their

ability to effectively dispense justice once they are on the bench. Our point is not

that these are the only, or even the dominant, theories explaining why a judge

might not speak, but rather that they are plausible ones that do not turn on the

Canons and Rules.

Noting that, despite a trial on the merits, the plaintiff had “not brought forward one

statement by a judicial candidate indicating that he or she was otherwise willing -- and

yet declined to speak -- for any reason connected to the Canons and Rules,” the court

declined the plaintiff’s “invitation to infer the existence of such a statement through the

boilerplate language of the questionnaire’s footnote.”

The court also rejected the plaintiff’s argument that it is “chilled in exercising its

own right to free speech [since] it fears publishing affirmative candidate responses it

received because this might expose responding candidates to discipline under the canons

and rules.” The court stated, that the plaintiff’s “lawful and constitutionally protected

actions might expose to liability other distinct individuals, with whom the organization

has no relationship, is too speculative to constitute a cognizable injury necessary for the

organization to have standing under Article III.”

In the Matter of Davis, 645 S.E.2d 243 (South Carolina 2007)

36

Accepting an agreement for discipline by consent in which the judge consented to

any sanction authorized by rule, the South Carolina Supreme Court suspended the judge

from office for 6 months for setting a bond for the friend of a sheriff’s officer even

though he was not the magistrate on call, did not seek permission to conduct the special

bond hearing, did not conduct hearings for any other inmates awaiting bond hearings, and

failed to inform the chief magistrate that a hearing had been conducted.

The judge was contacted at 8:00 p.m. at his residence by a sheriff’s officer and

informed that one of the officer’s friends had been arrested that afternoon, that bond court

had closed for the day, and that the friend needed to be released so he could attend work

the following day. The judge instructed the officer to bring the necessary bond

paperwork to his residence. Later that evening, the judge set a $2,500 personal

recognizance bond, and the officer’s friend was released. The victim was not notified of

the bond hearing even though he had requested to be present. The judge was not the

magistrate on call that evening, did not seek permission to conduct the special bond

hearing, failed to ascertain whether other inmates were waiting bond hearings, did not

conduct bond hearings for any other inmates awaiting bond hearings, and failed to inform

the chief magistrate that a special bond hearing had been conducted.

The judge indicated that his misconduct was not intentional and that he would not

engage in similar misconduct in the future. The court noted, however, that the judge has

a prior disciplinary history of similar misconduct. In the Matter of Davis, 630 S.E.2d 281

(2006) (public reprimand for presiding over uncle’s bond hearing and giving preferential

treatment to uncle and second defendant).

Public Admonition of Gomez (Texas State Commission on Judicial Conduct June 15,

2007)

The Texas State Commission on Judicial Conduct publicly admonished a judge

for privately meeting with witnesses in a criminal case to discuss the merits of the

allegations outside the presence of the defendant and a prosecutor; conducting her own

independent investigation of the allegations; failing to take a plea from the defendant;

failing to advise the defendant of his constitutional rights; proceeding to trial in the

absence of a prosecutor; finding the defendant guilty with no prima facie proof presented

by a prosecutor; ignoring the defendant’s rights to a jury trial, to confront and cross-

examine his accuses and witnesses, and against self-incrimination; failing to render her

judgment in open court; and failing to reduce the judgment of conviction to writing. In

addition, the Commission ordered the judge to obtain 8 hours of instruction with a mentor

and to observe at least 2 to 3 criminal trial in a justice of the peace court with the mentor.

In September 2005, a criminal complaint was filed in the judge’s court against

Erasmo Ramon, a local police officer, charging him with assault. Over several weeks,

the judge summoned witnesses, including the complaining witness, to appear in her

office, where she met with each individual privately to “gather” information pertaining to

the allegations.” Neither a prosecutor nor Officer Ramon was present during these

meetings. On September 19, the judge issued a summons ordering the defendant to

appear in her office at 10:00 a.m. the following day to answer to the charge of assault.

On September 27, Officer Ramon and his wife appeared before the judge, at which time

he was shown a copy of the complaint against him. No other witnesses or the prosecutor

37

were present at the proceeding. During the proceeding, the judge questioned Officer

Ramon about the allegations. There is no evidence that Officer Ramon entered a plea,

was advised of his constitutional rights, or knowingly waived any of those rights. On

October 24, the judge sent a letter to law enforcement officials in which she stated that

after reviewing the reports and paperwork filed in her court and interviewing some of the

witnesses, she was unable to rule on the case due to lack of evidence. She then requested

further investigation by police officers. In a letter dated October 7,the sheriff’s

department informed the judge that it had completed its investigation into the charges

against the defendant. On October 10, based upon her review of the complaint, the

offense report, and her private discussions with the various witnesses in the case, Judge

Gomez found Officer Ramon guilty of assault. On October 12, Officer Ramon received a

certified letter from the judge containing a copy of the complaint against him. On that

complaint, the judge had made a hand-written notation indicating that he had been found

guilty. The notation also stated that a $250 fine was to be paid by November 9, 2005.

Through an attorney, Officer Ramon filed an application for a writ of certiorari with the

county court, but his attempts to challenge the conviction were unsuccessful because the

judge never entered a final judgment. The attorney filed a motion for a new trial that the

judge eventually granted on August 24. The judge recused herself from the case.

In re Cox, Order (Utah Supreme Court June 13, 2007)

Based on a stipulation and agreement, the Utah Supreme Court approved the

implementation of an order of censure for a former judge who (1) submitted forms to the

administrative office of the court misrepresenting the continuing education he had

attended and (2) failed to make unemployment insurance contributions required by law

for a company he owned. In November 2006, voters voted to not retain the judge.

(1) Justice court judges are required to complete 30 hours of continuing education

each year. They report the hours to the administrative office of the courts on a form

describing the courses completed. The judge did not submit a form to the administrative

office of the courts in 2004. In December 2005, the administrative office of the courts

asked the judge to complete a form for 2003. On a form signed and returned to the

administrative office of the courts in January 2006, the judge stated that he had attended

30 hours of continuing education in 2003; that statement was incorrect as he did not

complete 30 hours of continuing education in 2003. In February 2006, the judge

submitted a signed form stating that he had completed 30 hours of continuing education

in 2005 and that he had attended four hours of continuing education at the 2005 Winter

Workshop; those statements were incorrect as the judge had not completed 30 hours of

continuing education in 2005 and had not attended the Winter Workshop in 2005.

(2) In 2002 and 2003, the Utah Department of Workforce Services obtained three

judgments against a company owned by the judge for failure to make unemployment

insurance contributions, as required by law, during the first, third, and fourth quarters of

2002. The judgments were for $519.13, $736.95, and 654.80 respectively. The judge

satisfied the first judgment in September 2002 and the other two judgments in May 2003.

38

In the Matter of Odell, Stipulation, Agreement, and Order (Washington State

Commission on Judicial Conduct June 8, 2007) (www.cjc.state.wa.us/)

Based on a stipulation and agreement, the Washington State Commission on

Judicial Conduct publicly reprimanded a judge for failing to properly advise criminal

defendants of their constitutional and procedural rights at arraignment and probation

review hearings; failing to accept guilty pleas in accordance with court rules; and

engaging in a practice that appeared to coerce criminal defendants to waive their right to

a jury trial.

Prior to being contacted by the Commission, the judge’s standard arraignment

practice was to provide each defendant a written form entitled “Statement of Defendant’s

Rights at Arraignment” that identified criminal defendants’ fundamental rights. When

the judge called an individual defendant’s case, the defendant provided the signed form to

the clerk. Without inquiring whether the defendant had read and understood the form or

wished to waive the right to counsel, the judge would note the crime charged and ask the

defendant how he or she wished to plead. The judge instructed those defendants who

pleaded guilty to get “some paperwork” – a guilty plea form – from the prosecutor, fill it

out, and wait until the end of the calendar. At that time, the judge would re-call the

defendant’s case, confirm that it was still the defendant’s intention to plead guilty, and, if

so, find him or her guilty and impose sentence. The Commission found that “the

inadequate dialogue between the court and the defendants created the impression of a

mechanical process that may have undercut the public’s respect for the judiciary.”

In probation review hearings, until being contacted by the Commission, the judge

routinely failed to advise defendants of their rights to be represented by counsel during

the probation review proceeding and to contest at a review hearing any allegation of non-

compliance.

Prior to being contacted by the Commission, the judge consistently required any

criminal defendant who had two pre-trial bench warrants to choose between being taken

into custody with bail being set or waiving their right to jury trial and not being required

to post bail. The judge explained that, if the defendant wished to have a bench trial, there

would be no need for bail, as the judge was required to be in court regularly anyway, and

the defendant’s absence from a bench trial would not result in wasted jury fees. The

Commission found that, while a judge may impose bail based on a defendant’s failure to

appear in court, the judge’s “practice set up a choice that may have coerced waivers of

the right to jury trial.”

In the Matter of Cruickshanks, 648 S.E.2d 19 (West Virginia 2007)

Denying reconsideration, the West Virginia Supreme Court of Appeals affirmed

the suspension without pay of a judge who had been indicted on charges she participated

in a conspiracy with her son to retaliate against a fellow inmate who was a witness

against her son by delivering to her son certain documents which he used to show other

inmates that the witness was a “snitch.” Two justices dissented.

The judge’s son, Jordan Grubb, was incarcerated following his conviction for

delivery of a controlled substance. On or about February 7, 2007, Grubb contacted his

mother by phone and asked her to provide him with copies of certain legal documents

that, allegedly, contained the statement of Philip Dailey who had testified against Grubb

39

as part of a plea deal with the state. Dailey is also an inmate at the jail. The criminal

complaint alleges that Grubb told the judge that he intended to get Dailey moved out of

the pod in which he was currently housed and into the protective custody pod “where all

the baby rapers and snitches were” by showing the other inmates the statements that

Dailey had made to authorities, apparently to prove that Dailey was a “snitch.” The

judge obtained the documents from Grubb’s attorney and delivered them to Grubb during

a visit with him at the jail. Grubb distributed the information his mother had given him to

other inmates in the area where Dailey was housed. Dailey, who had apparently been

having trouble with his fellow inmates at the jail since Grubb’s arrival, then reported to

his mother that he was fearful that he was “going to get jumped” after Grubb had slipped

the documents under the door of Dailey’s pod. Dailey reported that the other inmates in

the pod “called him out” and “told him that he needed to go.” Dailey was subsequently

moved elsewhere in the jail for his own safety. Grubb then called the judge from the jail,

apparently to tell her of the success of his plan. In accordance with the jail’s policy, the

call was monitored and recorded. On the recording, the judge is allegedly heard to say,

“Well that was your plan, wasn’t it?” Upon Grubb’s affirmative reply, the judge said,

“Well, that’s what he gets.” On March 12, the judge was arrested and charged with

conspiracy to retaliate against a witness.

The court declined “to create a bright-line rule for determining when a suspension

should be with pay as opposed to without pay,” noting “that members of the judiciary, as

elected public figures, may become the target of malicious and unwarranted accusations

and prosecutions or of politically-motivated charges, especially in the time prior to

elections, which may never prove to be true, but which may lead to a member of the

judiciary being forced to defend his or her name.” The court did list factors it would

consider in determining whether to suspend a judicial officer with or without pay: (1)

whether the charges of misconduct are directly related to the administration of justice or

the public’s perception of the administration of justice, (2) whether the circumstances

underlying the charges of misconduct are entirely personal in nature or whether they

relate to the judicial officer’s public persona, (3) whether the charges of misconduct

involve violence or a callous disregard for our system of justice, (4) whether the judicial

officer has been criminally indicted, and (5) any mitigating or compounding factors

which might exist.

The court stated that, though the misconduct alleged, does not involve the

disposition of any of the cases assigned to the judge, “it is still directly related to the

administration of justice and, arguably, reveals a callous disregard by Magistrate

Cruikshanks of the system of justice she took an oath to uphold.” The court rejected the

judge’s argument that the nature of her visit and phone conversations with her son were

entirely personal.

Magistrate Cruikshanks, a judicial officer, cannot so conveniently shed the

obligations of her office. To permit a judicial officer to simply pick and choose

when he or she wishes to be subject to the obligations of his or her judicial

position would result in an unworkable system where ethics are subject to

personal whims. The charges against Magistrate Cruikshanks present a disturbing

allegation of a judicial officer who abused her position in order to benefit her son

or to retaliate against a witness against him. And while the charges of misconduct

40

do not involve violence on the part of Magistrate Cruickshanks, the consequences

of her alleged actions could easily have brought violence on Dailey and

endangered his safety. Indeed, Dailey had to be moved into protective custody

after the documents that Magistrate Cruickshanks allegedly delivered to her son

were made available to Dailey’s pod mates.

The court stated it was not insensitive to the judge’s pleas that she not be deprived

of her only source of income but noted that should she prevail in the criminal case and

disciplinary investigation, “she is entitled to seek backpay to make her whole again” and

that if “she is unable to hire an attorney to defend the charges against her, she can file a

pauperis affidavit and seek court-appointed counsel as any indigent defendant can.”

The two dissenting justices argued that, at the time the court examined the

complaint, the only facts of which it was aware was that the judge had been arrested

pursuant to a criminal complaint and no consideration was given to the possibility that the

magistrate could have had a meritorious defense. The dissent agreed that, following an

arrest on serious criminal charges. a judge should be suspended from duty until the matter

is fully resolved in order to maintain public confidence in the judiciary but that “the

additional sanction of taking away the officer's income based on no more information

than a bald allegation is simply overkill. It mutates the regulatory function this Court

should perform in addressing disciplinary matters into a punitive one at the very

beginning of the case.” The dissent suggested that the determination about withholding

pay should not be made “until after the evidence has either been examined by an

independent body, for example, when the officer has been indicted, an information has

been filed by a prosecuting attorney on his oath of office after review of the evidence, or

it otherwise becomes apparent that the charges have some sound basis and are not

motivated by politics, retaliation or other improper intent.” The dissent also stated it was

“troubled with the cursory manner in which the majority opinion dismissed the

magistrate's concern of losing her only source of income, especially since magistrates are

among the lowest paid members of the judiciary.”

Another justice wrote an opinion “to refute the partial dissent’s accusation that a

majority of this Court arbitrarily suspended Magistrate Cruickshanks’ pay without a

shred of evidence to support our decision.”

As noted in the majority opinion, Magistrate Cruickshanks was arrested and

charged with conspiracy to retaliate against a witness. Obviously, this arrest

required a finding by a judicial officer of probable cause. Thereafter, the Office

of Judicial Disciplinary Counsel presented its report to this Court after it

conducted an investigation into this matter, and this Court found probable cause

to believe that Magistrate Cruickshanks violated certain canons of the Code of

Judicial Conduct. Far from constituting “unsubstantiated,” “unvarnished” and

“bald” accusations, the facts and circumstances of this case raise a reasonable

belief that Magistrate Cruickshanks likely committed the crime and violations

charged. To suggest otherwise is to demean the impartial operation of the judicial

system.

41

Duwe v. Alexander, 490 F. Supp. 2d 968 (2007) (U.S. District Court for the Western

District of Wisconsin 2007)

The United States District Court for the Western District of Wisconsin held that

the prohibition on “a judge, judge-elect, or candidate for judicial office [making] . . . with

respect to cases, controversies, or issues that are likely to come before the court, pledges,

promises, or commitments that are inconsistent with the impartial performance of the

adjudicative duties of the office” was not unconstitutional on its face and did not prohibit

judicial candidates from responding to a questionnaire from the plaintiff Wisconsin Right

to Life. Further, the court held that the requirement that “a judge shall recuse himself or

herself in a proceeding when . . . the judge, while a judge or a candidate for judicial

office, has made a public statement that commits, or appears to commit, the judge with

respect to any of the following: 1. an issue in the proceeding. 2. the controversy in the

proceeding” was unconstitutionally overbroad and vague and indistinguishable from the

announce clause held unconstitutional in Republican Party of Minnesota v. White.

Plaintiff Wisconsin Right to Life is a non-profit organization that wishes to gather

information from judicial candidates by sending them surveys and publishing the

candidate responses. The individual plaintiffs are voters who wish to see the results of

the surveys. The court found that the plaintiffs had standing because it was “probable

that candidates for judicial office were willing to answer the survey at the time this action

was commenced,” noting a judge’s testimony that he would have answered all questions

on the survey but believed he was precluded from doing so by the rules at issue.

The court found that Wisconsin Advisory Opinion 06-1R is relevant as a possible

indicator of the Wisconsin Supreme Court’s interpretation of the rule. The advisory

opinion stated that a judge may not publicly express a personal opinion as to the fairness,

efficacy, and wisdom of the death penalty but may discuss the death penalty on an

objective basis. The opinion was based in part on the provision prohibiting a judge from

being “swayed by partisan interests, public clamor or fear of criticism.” The federal court

found that part of the opinion “is very limited and entirely unpersuasive.”

It can be summarized as follows: a judge expressing an opinion on the death

penalty might be viewed as swayed by public opinion. Of course, this could be

said of any statement on any issue or indeed any ruling on an issue in a case, since

there is by definition conflicting public opinion and choosing one side leaves open

the possibility that the decision was swayed by that interest. It is not a reasonable

application of the rule, and almost certainly would not be adopted by the

Wisconsin Supreme Court.

The advisory opinion also relied in part on the rule providing “a judge shall conduct all of

the judge’s extra-judicial activities so that they do [not] cast reasonable doubt on the

judge’s capacity to act impartially as a judge.” Concluding “the language of the

provision itself is directed not toward impartiality in a particular case but to a general”

lack of prejudice or bias against a person or class of people who might come before the

court, the court found that, properly understood, that rule “poses no threat to a

candidate’s interest in expressing a personal opinion on legal issues or plaintiffs’ interest

in hearing such speech” but “protects a fundamental interest in protecting state courts

from the appearance of inherent bias against a party.” The court stated that the discussion

42

of the rule in the advisory opinion “is unpersuasive and contradicted by the comment

language” and would probably not be adopted by the Wisconsin Supreme Court.

The Wisconsin code provides: “A judge, judge-elect, or candidate for judicial

office shall not make, ... with respect to cases, controversies, or issues that are likely to

come before the court, pledges, promises, or commitments that are inconsistent with the

impartial performance of the adjudicative duties of the office.” The court found that

“there is little ambiguity in the language of this provision” and that the Supreme Court

implied that the state’s interest in judicial openmindedness is a compelling one. The

court also held that the provision “on its face is narrowly tailored to serve this

openmindedness interest,” avoiding vagueness, overbreadth, under inclusiveness, and

over inclusiveness, and, therefore, not unconstitutional on its face.

Whether a statement is a pledge, promise or commitment is objectively

discernable. It requires affirmative assurance of a particular action. It is a

predetermination of the resolution of a case or issue. It is not a statement of belief

or opinion. Absent a statement committing the speaker to decide a case,

controversy or issue in a particular way, the speaker can be confident that the rule

is not violated. The rule differs in a critical way from the predecessor ABA rule

invalidated in [Indiana Right to Life v. Shepard, 463 F. Supp. 2d 879 (2006)]: it

eliminates the phrase “appears to commit.” The vagueness of that phrase converts

the provision into an alternate version of the announce clause condemned by

White, because while a forceful opinion on an issue may “appear to commit”

someone to an outcome, it is not a true commitment. The difference is not merely

semantic. People are practiced in recognizing the difference between an opinion

and a commitment (which explains why politicians typically stop short of the

latter). A promise, pledge or commitment typically includes one of those three

words or phrases like “I will” or “I will not.” Phrases like “I believe” or “It is my

opinion” signal the absence of commitment.

The distinction between a commitment and an announced position on an issue is

relevant to the health of the judiciary. One presumes that a person is likely to

decide in accordance with an opinion or belief, but will only rely upon an actual

commitment. As a result, reaction to breaking a commitment or promise is far

stronger than to a decision that contradicts an opinion or belief. A genuine

commitment creates a different expectation and poses a far greater threat to the

impartiality and appearance of impartiality of the judiciary.

The rule is neither over or under inclusive because it is appropriately directed

only to judges and candidates. These are the only categories of persons who are

in a position to make a promise to decide a case in a particular way. It makes no

sense for individuals who are not judges or candidates to promise to decide cases

in a particular way. The rule applies only to commitments which are inconsistent

with the “impartial performance of adjudicative duties.” Impliedly, a

commitment to decide a case or issue in a particular way is offered in exchange

for votes, a process which makes no sense for a non-candidate. Additionally, a

non-candidate statement simply does not pose the same threat to the judiciary. An

43

attempted regulation of hypothetical commitments by lawyers to rule a certain

way if they were judges would be beyond the legitimate interest of the state to

regulate and would unconstitutionally impinge on free speech rights.

However, the court noted the apparently conflicting provisions of the comments to the

canon and the advisory opinion “present the possibility that the rule might be applied

against those who respond to plaintiffs’ survey.” The official comment uses the phrase

“may reasonably be viewed as committing,” “leaving open the possibility that the Rule

might be applied in an unconstitutionally overbroad manner.” Thus, the court held:

“Responses to the Wisconsin Right to Life survey do not constitute promises, pledges or

commitments such that they could be constitutionally restricted or sanctioned in the

interest of judicial openmindedness. Responses to these questions are announcements

constituting speech protected by the First Amendment as applied in White.”

The Wisconsin code provides “a judge shall recuse himself or herself in a

proceeding when . . . the judge, while a judge or a candidate for judicial office, has made

a public statement that commits, or appears to commit, the judge with respect to any of

the following: 1. an issue in the proceeding. 2. the controversy in the proceeding.”

Stating that the phrase “appears to commit” in the rule “has the effect of requiring recusal

in any case where a judge previously announced a position on an issue in the case,” the

court concluded that “the inclusion of the phrase in a direct regulation of speech renders

the provision unconstitutionally overbroad and vague, and indistinguishable from the

announce clause condemned by White.”

While it is true that the recusal requirement is not a direct regulation of speech,

the chilling effect on judicial candidates is likely to be the same. Although a

candidate would not fear immediate repercussions from the speech, the candidate

would be equally dissuaded from speaking by the knowledge that recusal would

be mandated in any case raising an issue on which he or she announced a position.

Because the commit clause and the recusal requirement do not contain parallel language,

the court concluded that “it must be presumed that they were intended to have a different

reach. It would not be irrational to permit a judge to speak, but to require recusal in the

event the issue came before him or her. In any event, this Court is without authority to

rewrite the language of the rule and as it is written it is unconstitutionally vague and

overbroad.”’