Judicial Conduct Information Service January-February 2008 Inquiry Concerning Shull, Order (Kansas Commission on Judicial Qualifications February 19, 2008) The Kansas Commission on Judicial Qualifications ordered a judge to control his temper and cease and desist from using inappropriate language in court; the judge accepted the order. The order noted that it had received an anonymous citizen complaint alleging that, in court proceedings on October 27, 2007, the judge got mad, yelled, and used inappropriate language, including profanity. The judge had no recollection of any such event on that date, but he admitted that he lost his temper and used profanity in the courtroom on October 23, although he judge denied using the exact profanity that was set forth in the complaint. A witness in the courtroom on October 23 concurs that the judge did yell and use profanity in front of a courtroom full of people. The judge indicated he was embarrassed and ashamed of his actions and apologized for losing his temper and expressing himself in an inappropriate manner.

In re Frederic-Braud, 973 So. 2d 712 (Louisiana 2008) The Louisiana Supreme Court suspended a judge for 15 days without pay for (1) failing to give proper notice to a litigant of a judgment debtor examination trial and then finding the litigant in contempt of court without conducting a hearing or allowing the litigant to be heard in his defense and issuing an arrest warrant for the litigant without signing a judgment of contempt; and (2) permitting her constable to use her judicial authority to collect worthless checks on behalf of local merchants. The court also ordered the judge to pay costs. The judge and the Office of Special Counsel had jointly filed stipulated facts and conclusions of law. The Commission had recommended a censure. (1) The judge had entered a default judgment against Marvin Ziegler, the defendant in A & M Heating v. Ziegler. When A & M Heating filed a motion for judgment debtor examination, the judge set the examination for July 14, 2003. This date was subsequently continued at the request of Ziegler’s counsel of record. After a discussion with the attorney’s paralegal, the judge re-set the judgment debtor examination to August 13, but the notice of the resetting was never served on Ziegler or his attorney by either registered or certified mail or by personal or domiciliary service, although it was faxed to the attorney. Ziegler did not appear for the judgment debtor examination. As a result, the judge ordered Ziegler to show cause why he should not be adjudged in contempt of court. The rule to show cause was served on Ziegler’s attorney on August 15. Notwithstanding the show cause order, on August 13, the judge signed a warrant for Ziegler’s arrest on the contempt charge. When the constable and other law enforcement officials tried executing the arrest warrant, Ziegler was not home. On August 14, Ziegler filed a motion seeking the recall of the arrest warrant. On August 15, the judge recalled the arrest warrant. The judge testified that she never intended for Ziegler to be arrested or incarcerated and that she was unaware of the constable’s conduct.

Ziegler was a defendant in Gonzales Chevron v. Ziegler, set for trial in the judge’s court on August 13, 2003. The notice of trial was not properly served by registered or certified mail or personal or domiciliary service, as required by statute, but was faxed and/or mailed by ordinary U.S. mail to Ziegler’s attorney. Ziegler did not appear for trial. On August 13, the judge entered a default judgment against Ziegler and in favor of Gonzales Chevron for $3,000 plus interest and costs. The judge testified that she has now implemented a policy that will avoid any improper service issues. (2) On March 11, 2002, Murray Alexander submitted a worthless check report listing NSF checks written by Pamela Deslatte to Murray’s Supermarket. Based on this report, Constable James LeBlanc generated 7 notice of returned check forms addressed to Deslatte. The judge authorized the constable to use her signature stamp. In addition to the amount of the NSF check, each of the 7 forms imposed a $25 “service charge fee,” a $3.94 “certified letter fee” even though the 7 notices were sent together in one envelope by ordinary mail, and a $60 “court costs fee,” even though no case was pending before the court. Deslatte was charged $622.58 in fees on worthless checks of $282.66, for a total of $905.24. On April 7, 2004, Deslatte met with the judge and the constable and secretly recorded the meeting. During the meeting, the constable announced that he had 3 warrants for Deslatte’s arrest stemming from her failure to pay approximately $450 that was then due on the NSF checks and that she would go to jail if she did not pay that amount the same day. The 3 warrants, prepared by the constable, had not been signed by the judge; at the time of the meeting, there was no criminal matter pending against Deslatte in the judge’s court. On April 7, Deslatte made a payment that cleared her of all the NSF checks with the constable’s office. The judge testified before the Commission that she followed the procedure for the collection of NSF checks utilized by the previous justice of the peace “until we found that everything was incorrect and made the changes we are enacting today.” In response to the formal charges, the judge acknowledged the deficiencies in the practices and procedures she employed in conducting her court, but suggested that she had little formal training. She testified that other than having conversations with the previous justice of the peace and being instructed by the constable, who worked 12 years with the previous justice of peace, she received only a “stack of forms that was passed down . . . from the Attorney General’s office.” In 2001, the Commission had issued the judge a letter of caution based upon a complaint that she was frequently absent from and unavailable at her court office and that she appointed her father as “ad hoc judge” to perform notarial duties. In March 2004, the Commission issued the judge a letter of admonishment based upon a complaint that she became personally involved in a dispute between the complainant and her ex-boyfriend, including storing some disputed property at her own house, and speaking intemperately to the complainant. In August 2004, the Commission issued a letter of caution to the judge based upon a complaint that during the trial of a dispute between Kathy Breaux and the owners of a local garbage service, the judge told Breaux that she had known the defendants for many years and, because she did not know Breaux, Breaux had the greater burden of persuading her with regard to her position in the suit. Noting that the judge did not intentionally violate the code of judicial conduct, the court concluded it was “clear that her actions or inactions (i.e., her failure to employ the

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proper procedures for collecting worthless checks; her allowance of the Constable to use her signature stamp in his attempts to misrepresent judicial authority; her failure to properly serve notice of hearing dates, and conduct hearings, before holding a party in contempt and issuing an arrest warrant) are absolutely prohibited by the Judicial Canons Code of Conduct.” The court also stated that “the public could construe her actions as an abuse of power, with a resulting belief that anyone could be subjected to similar unlawful conduct by the justice of the peace. As a consequence, the respondent created a lack of confidence and respect for the judiciary as a whole. The misconduct at issue has the potential to erode public confidence in the integrity of the judiciary.”

In re Alford, 977 So.2d 811 (Louisiana 2008) Based on the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed a judge from office for (1) physical and psychological dependence on prescription medications that seriously impaired her judgment and mental faculties while performing judicial duties; (2) a pattern of absenteeism and appearing late for court; (3) detaining a juvenile in a holding cell at the court facility; (4) use of court staff to handle personal matters; and (5) ex parte communications with an attorney who was seeking a peace bond with regard to his nephew and other irregularities in the matter. The court noted that the investigation was initiated by an anonymous complaint. The Commission had applied for the interim disqualification of the judge in November 2005. At the judge’s request, the court delayed consideration of the recommendation for several months while the judge underwent a substance abuse evaluation. In the face of the conflicting medical testimony, on February 1, 2006, the court remanded the matter to the Commission for an evidentiary hearing. The Commission conducted a hearing on February 17. After Judge Alford testified, a recess was called, and an agreement was reached that she would voluntarily seek substance abuse treatment. The judge did not enter a treatment facility at that time, citing health problems and financial difficulties related to her desire to be treated at an out-of-state facility, for which her insurance coverage would be limited. The Commission reconvened the hearing on March 31. On April 13, the Commission again requested interim disqualification of the judge. Within days of the Commission’s recommendation, the judge’s counsel informed the court that the judge had been examined by a psychiatrist and, on April 3, had been admitted to a behavioral medicine unit for evaluation and treatment, if indicated, of substance abuse or addiction. No evidence was found that she was addicted to or abused any substance, and she was discharged on April 7. The court disqualified the judge from exercising any judicial function during further proceedings on April 25. In re Alford, 927 So. 2d 270 (2006). Following the conclusion of the subsequent hearing on formal charges, the Commission suggested to Judge Alford that she seek further treatment and agree to and establish a record of objective monitoring. The court noted that, “by the time the hearing ended, Judge Alford had made no such proposal, and still has not.” (1) The judge did not dispute the types, amounts, and frequency with which she took certain prescription drugs but did dispute that her use was so excessive that she was impaired. Numerous lay witnesses, including employees of both the Shreveport City Court and the marshal’s office, testified. The court noted that the testimony of these witnesses was generally very consistent, nearly all noting that Judge Alford took

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prescription medications throughout the day and while she was on the bench, all testifying that they thought the judge was medicated on these occasions because she seemed confused, disoriented, and drowsy, even to the point that she appeared to be asleep, and nearly all commenting that her speech became “slurred” after she took medication. On occasion, Judge Alford required assistance to stand or to walk while she was at court. Dr. Lonald Daughtry, an expert in psychopharmacology, testified based on the judge’s medical and pharmaceutical records that she was regularly consuming what is known as the “Trinity Cocktail,” a highly addictive combination of the prescription drugs Xanax (Valium or clonazepam can be substituted for Xanax), Soma (Zanaflex or Flexeril can be substituted for Soma), and Vicodin (Lortab is another name for the drug Vicodin). In addition, Dr. Daughtry observed that Judge Alford was regularly using Duragesic, a narcotic usually administered in patch form, and Stadol, a narcotic usually administered in nasal form, both of which are highly addictive. When asked about the effects of taking the Trinity Cocktail with Stadol and the Duragesic patch, Dr. Daughtry explained that the patient would experience “a major debilitation” of cognitive ability and motor function, as well as memory loss and syncope (blackouts or a brief loss of consciousness). Moreover, Dr. Daughtry testified that long-term polysubstance abuse can cause a host of physiological problems. Dr. Daughtry testified that Judge Alford’s case was the most severe he had seen in terms of the volume of prescription narcotics, doctor shopping, and use of multiple pharmacies. Dr. Daughtry explained that he would expect that Judge Alford’s cognitive abilities would be impaired as the result of her drug use and that she would experience problems with judgment, insight, and memory. When asked how cognitive deficits could be manifested, Dr. Daughtry gave as examples laughing inappropriately during a serious situation, speaking in “word salads,” or “talking at angles and not focusing on the issue.” Dr. Daughtry testified that the transcripts from Judge Alford’s jail clearance docket clearly show “some cognitive [dissonance],” as when she sentenced traffic offenders to attend family violence counseling and sentenced defendants charged with simple battery to attend driving school. In August 2005, Judge Alford sentenced a defendant to do a report on why guns are so dangerous in America, then stated, “And the possession of dry or dealing in what friends firearms I’m sorry quite obsolete. So I’m not sure what that one is about position of dealing okay this is some kind of possession case which should have gone to the district so disregard the possession case it is at a district okay. You free to go.” Although recognizing that Dr. Daughtry had not examined Judge Alford, and that he based his opinions about her condition on the record of the prescription medications she purchased, her medical records, and upon the sworn statements of persons who had observed her behavior, the court agreed with the Commission that Dr. Daughtry’s extensive training and knowledge of prescription drug abuse made him an extremely credible witness. The court found that the evidence was overwhelming that Judge Alford’s excessive use of prescription drugs over a lengthy period impaired her judgment on the bench on occasion. Most compelling are the audio tapes of proceedings conducted by Judge Alford that convincingly proved that she was impaired while performing judicial duties in 2005. Numerous witnesses gave credible testimony, with examples, of Judge Alford’s inability to handle her docket competently. The symptoms Dr. Daughtry described as to cognitive impairment by a person who combined narcotic and

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other potent drugs were consistent with witness testimony and documentary evidence in the record as to Judge Alford. Taking into account the narcotic and other potentially addictive drugs Judge Alford used over a lengthy period and the testimony, the Commissioners did not err in concluding that the public is at risk so long as there is no mechanism in place to assure that Judge Alford is not impaired by drug use. The fact that drug use may be necessitated by a physical problem does not justify the adverse consequences to the public of a judge presiding while impaired. (2) The Commission had concluded that Judge Alford’s absences from and/or lateness to court were part of the problems that resulted from taking very large quantities of prescribed drugs and that the extent of the judge’s absences from court negatively impacted the functioning of the court. Several witnesses testified concerning Judge Alford’s frequent absences from work (according to one witness, “at least maybe once or twice during the week”) and her pattern of arriving late for court (“anywhere from 30 minutes [late] to two to three hours [late]”). Both the absences and the tardiness were noted by the witnesses to occur more regularly with respect to Judge Alford than any of the other judges on her court. The chief judge testified that the judges of the Shreveport City Court have always tried to fill in for each other when needed, particularly to avoid canceling a court docket unnecessarily but that, in 2004 or 2005, the court began requesting the appointment of an ad hoc judge to sit in for Judge Alford because of concerns over “how much and how frequently we were filling in for her.” The judge admitted that she had been absent from court on occasion but maintained that her absences were not “extraordinary or unusual” and were attributable to her medical condition and denied that her absenteeism had had any negative impact on court staff, other judges, litigants, or attorneys. The judge testified that other judges did not understand the health problems of a woman and/or the difficulties of a single working mother and that many of her problems at the court were the result of a hostile work environment, alluding to problems with “white deputies.” The court said it would not address the validity or invalidity of Judge Alford’s perceptions of gender and/or race bias or pressures that may have created a hostile work environment for her, noting that some of the credible witnesses who testified against her were both African-American and female and that Judge Alford did not call as a witness the other African-American judge on her bench, and so the court did “not have the benefit of his views about a possible hostile work place as the result of racism.” The court did note that if it could “determine that a hostile workplace existed, over and above annoyances and personality conflicts that are routinely found in work relationships, such a determination could mitigate the discipline to be imposed for proven ethical misconduct.” (3) In 2002, Judge Alford presided in a criminal case in which G.S.’s mother was charged with battery upon G.S. G.S. was 15 and was not charged with any offense, and the judge knew she lacked jurisdiction over G.S. because he was a juvenile. At a hearing in February 2002, Judge Alford was informed that G.S. had been “kicked out of school.” In response, Judge Alford began to yell at G.S.: Okay. Look, let me tell you something. As far as I’m concerned, your mama can beat you until you get on your own. That’s how I feel about that. You’re fifteen

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(15) years old. You are supposed to jump when she says jump. You are supposed to be in the house when she says be in the house, and the fact that you haven’t been going to school, you must be out of your mind. I don’t know what you think is going to happen to you. But what I will tell you is that you will go to Juvenile Court so fast, and you will be in juvenile detention so fast, and by the time your lawyer get [sic] to you, you would have been raped by somebody else. I’ve seen it happen too many times. You think you’re going for bad, honey there are some people that are badder [sic], ... So, all of this disobedience, the Bible says disobedient children don’t live long. That’s why all these young people are dying because they don’t listen to their mothers. They don’t listen to their fathers. So, if you think that you can make it, get out, move out today. You can stay out all night, smoke weed all you want to, get you a crack piper [sic], lay on Sprague Street, do whatever you want, be a male prostitute, let your mama drive by and see you without any skin on your bones, if that’s what you want to do. But if you are going to live in your mother’s house, and she’s going to pay the bills, then as far as I’m concerned, she can hit you every day. *** That’s how I feel about that, until you straighten up. I hope you get seventeen and get in front of me, and I have jurisdiction over you. I hope you turn your life around, and if you miss one more day of school I’m going to have a problem with that. I will call Juvenile Court, I will have you picked up. I will call the judges over there and I will have you picked up as a truant if you miss one more day.... Do you understand me? The judge then told G.S. and his mother that she wanted them to return in 3 months to present a “progress report.” When they returned on April 12, Judge Alford gave the mother symphony tickets for herself and G.S., and then inquired about his progress. When the deputy marshal said that his report card did not look good, the following exchange took place: The court: Why is [sic] his grades bad? “F”. “D”. What’s going on? He’s flunking reading. [G.S.], what is going on with you in your reading class? G.S.: Nothing. *** The court: ... Why aren’t you studying? [The mother]: He’s hanging out. The court: Mr. Peck (Deputy Marshal). Peck: Yes, ma’am. The court: Show him ... go lock him up in that cell back there for a minute. Not realizing that G.S. was a juvenile, the deputy marshal complied with the judge’s instructions and placed G.S. in a holding cell at the court. Upon learning that G.S. was only 15, the deputy marshal attempted to contact Judge Alford, but she was not available.

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The deputy marshal then informed his supervisor, who contacted another judge who ordered that G.S. be released from the holding cell. In her testimony, the judge acknowledged that she told the deputy marshal to “lock up” G.S., but she stated that she merely intended that he show G.S. the holding cell. The judge maintained that she wanted to do “a scared-straight on this young man [G.S.] and show him that if he didn’t correct his behavior, that this is what was in store for him.” The judge testified that she felt compelled to act in this manner “as a mother, as a citizen,” and that if doing so “costs me my robe and I saved his life, the price is small.” The court concluded: While Judge Alford’s intent with regard to a problem teenager may have been commendable, her execution of that intent by having her bailiff lock the child in a cell was both deplorable and illegal according to the Children’s Code. Judge Alford could have escorted the juvenile to the detention section of her court and talked with him about the risks he faced if he broke the law or did not complete his education. There were a host of acceptable choices available to her to try to alter a negative turn in the life of the 15-year old. We agree with the Commission that Judge Alford’s lecture to G.S. was excessive and demonstrated her failure to be patient, dignified, and courteous. We agree with the Commission that the overreaching conduct of Judge Alford was also willful misconduct relating to her official duty. (4) The Commission had found that Judge Alford improperly used staff to perform many personal errands for herself, her mother, and her son. The judge maintained that she never required anyone to perform personal errands and only asked staff to pick up lunch for her when she was detained at court. Stating that the judge’s responses “reflected that she did not appreciate the relative weaker position of employees who depended upon her to remain employed,” the court concluded that testimony “from her secretaries/assistants was clear and convincing that the personal errands they performed far exceeded their picking up lunch for the judge.” 2 secretaries testified they felt they had to perform the personal tasks in order to keep their jobs. Noting that the judge’s witness said that the secretaries worked on church bulletins for their own churches, the court stated that “even if they did, that does not justify the judge, their supervisor who had the power to discharge them, having them work on church materials not only for herself, but for her mother as well, all at taxpayer expense.” Noting that the work performed for the judge’s mother was extensive, the court stated that the use of public employees to perform work for a judge’s parent cannot be excused. 1 of the judge’s secretaries and a deputy marshal both testified they were glad to do certain personal favors for the judge because they liked her. However, the court stated, “this misses the point that so far as errands performed during work time, whether the court employees wanted to perform personal duties or not is immaterial -- to do so is misuse of public funds.” The court agreed with a witness “that colleagues may do favors for each other from time to time, as a courtesy,” for example, “for a secretary to pick up lunch for the judge so that the judge can continue with work or for an employee to perform minor services so that the judge can continue on the bench or with judicial duties is not questioned as unethical.” However, the court stated, “the degree to which Judge

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Alford used staff for personal services is the problem.” The court noted that the record reflects that the judge reimbursed some staff on some occasions for expenses they incurred, but that she did not do so on every occasion. Shirley Brown, an administrative assistant for the judge, testified she was involved in an automobile accident with her personal vehicle while working on the judge’s campaign for reelection, resulting in potential liability to the court. The assistant testified, and Judge Alford did not refute, that the judge directed her not to tell anyone that she was involved in a personal errand for the judge when the auto accident occurred, indicating Judge Alford knew the secretary should not have been undertaking that duty Several witnesses testified that they worked on the judge’s campaign for judicial office and that they felt compelled to do so. Brown testified that she had collected checks that were campaign contributions, which was fund-raising that Judge Alford herself was not permitted to do. The court stated that whether the employees wanted to assist was immaterial, noting that the court employee handbook expressly prohibited employees from any public involvement in political activities. The court found that failure to observe the rules of court and causing an employee to actually violate court policy violates the code of judicial conduct. (5) On July 27, 2004, the judge advised Michael Jones about the procedures for filing a peace bond complaint to require his nephew to leave the home of Hazel Jones, Michael’s mother. The judge had known Michael Jones since childhood. The judge instructed a deputy court clerk to accept the complaint, to set a special session for the hearing, and to assign the case to her, in violation of the rules of random allotment. On July 29, the judge held a special session peace bond hearing during which she failed to ensure that any of the participants were sworn to testify; none of the documents presented by the plaintiff were marked as exhibits, admitted into evidence, or retained in the record; and she considered hearsay evidence without securing an agreement or stipulation from the parties. The judge disregarded the wishes of the parties in the case and improperly asserted her judicial authority, prohibiting Darnell from having any contact with his grandmother for 6 months even though Hazel Jones had had protested several times that she did not want him to leave her home. The court stated that, because of her prior relationship with Michael Jones, the judge should have recused herself and found that she discussed the merits of the case with Jones ex parte, noting it was unlikely that the judge could have determined that a peace bond procedure was appropriate without Michael Jones having explained the family’s concerns and the factual basis for the issue. The court also found, as a matter of basic law, that the judge should not have allowed Jones to act on behalf of his mother in a court proceeding when his mother was actually present and opposing his stance without an order of interdiction and, “perhaps most significantly,” should not have taken the extraordinary measure of excluding Darnell “from his grandmother’s home without taking any medical testimony, based purely upon documents presented by Mr. Michael Jones that were not authenticated.” The court also found that the judge was not patient, dignified, or courteous in her treatment of Darnell and Hazel Jones. The judge maintained that one of the reasons she determined Darnell should be out of the house was his conduct during the hearing, but the court noted that, the judge announced at the beginning of the proceeding that she was “not inclined to have him continue to stay.” In a sworn affidavit, a deputy clerk stated that the judge pressured her to say that Darnell

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appeared dangerous at the hearing, which the clerk said was untrue. The court concluded: The entire handling of the Jones v. Darnell case reflects that Judge Alford was ignoring established procedures of law and of her court, all to do a favor for a family friend. While there may have been merit to removing Mr. Darnell from Mrs. Jones’ home, we will never know the truth because Judge Alford permitted a distortion of the legal procedures. The court noted that the judge’s misconduct was the subject of extensive media attention in the Shreveport area. The court also noted that the judge “has never admitted that her drug use caused an impairment that created violations of the Code of Judicial Conduct,” “minimized her role in using public employees for personal purposes,” “continued to insist that her actions with regard to the juvenile, G.S., were correct, despite being illegal,” and “would not admit that her conduct in manipulating a peace bond proceeding was wrong.” The court also found many instances of bad faith, including directing the systems manager for the court to delete 2 paragraphs from a memo that clarified that the court did not have definitive attendance records, and then sending the misleading memo to the Office of Special Counsel, contacting court employees who had given sworn statements during the investigation seeking changes or clarifications, trying to prevail on a deputy clerk to give a false affidavit regarding the peace bond matter, and being less than forthcoming to her physicians and treatment facilities concerning her drug use and medical history. 1 justice filed a concurring opinion, disagreeing with the majority’s finding that the judge was addicted to or abused prescription medications. The concurrence noted that none of the multiple reports from experts found evidence of drug dependency and that the Commission had relied solely on the testimony of Dr. Daughtry. Stating that the Dr. Daughtry was not a physician and had not examined or treated Judge Alford, the concurring justice concluded it was clear legal error to allow Dr. Daughtry to give an opinion, based on Judge Alford’s medical and prescription drug record, that she poses a substantial threat of serious harm to the public or the administration of justice and that his testimony to be unreliable on the issue of Judge Alford’s addiction. However, the concurring opinion stated that it was clear, based on the testimony of numerous lay witnesses, that Judge Alford’s performance was affected by medications on numerous occasions and that her ability to perform her job had been adversely impacted by the medications she is taking. Thus, the opinion concluded, “while I am sympathetic to the fact that Judge Alford suffers from numerous medical conditions for which these medications are necessary, I must agree with the majority that Judge Alford’s conduct poses a substantial threat of serious harm to the public or the administration of justice.

In re Krake, 976 So.2d 162 (Louisiana 2008) The Louisiana Supreme Court revoked the probation of a judge and suspended him without pay through the remainder of his term, which end on December 31, 2008, after finding that he was not in compliance with the terms of his probation, specifically, that he had failed to comply with the terms of his contract with the Lawyers Assistance

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Program. In October 2006, the court had found that the judge had persistently and publicly abused alcohol, including being severely hung over or appearing to be hung over while on the bench or in chambers. Although the court suspended him for the remainder of his term, it deferred all but 6 months of the suspension and placed him on probation for the remainder of his term with specified conditions. Among the conditions was that the judge shall contract with, and be monitored and supervised by, the Louisiana Lawyers Assistance Program, following all the requirements, terms, and conditions, including but not limited to regular prescribed attendance at AA meetings and/or lawyer meetings. In re Krake, 942 So. 2d 18 (Louisiana 2006) On January 31, 2007, the Judiciary Commission notified the court that the judge had failed to comply with the requirements of his LAP contract by failing to submit his sobriety report for December 2006, failing to provide documentation of his attendance at AA meetings during December 2006, and failing to pay his $50 monthly monitoring fee. The court took no action at that time. On January 7, 2008, the Commission notified the court that the judge had again failed to comply with his LAP contract by failing to submit his attendance sheets and letter of recovery for December 2007, missing an appointment for drug screening, and failing to meet with his LAP monitor. The judge asserted that he did not comply with his LAP contract because he was “extremely ill” during the last 2 weeks of December 2007. The court requested and received records from Judge Krake documenting his medical treatment in January 2008 for an abdominal condition. Noting that a “key component of Judge Krake’s probation was the requirement the he comply with his LAP contract,” the court stated that he had twice failed to comply with the contract and found that his medical condition did not prevent him from complying.

In re Redmond (Michigan Supreme Court February 6, 2008) Based on an agreement and the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court censured a judge for (1) raising a defendant’s bail after learning the defendant’s son had called the judge an “asshole,” (2) at an arraignment, when television cameras were in the courtroom, setting bail at $750,000 and $1,000,000 for 2 men charged with embezzlement from a vulnerable adult and larceny in a building, and (3) sentencing an unrepresented defendant who had pled guilty to a misdemeanor noise violation to 30 days in jail after reading from a petition from the defendant’s neighbors complaining about the defendant without disclosing that she knew some of the neighbors, allowing 3 of the neighbors to speak about their experiences with the defendant, and referring to the neighbors as “the people who built this damn city” and to the defendant’s residence as a “flophouse.” (1) The judge presided over a bond hearing for Jeannine Somberg, who had been arrested for domestic violence, resisting arrest, and obstruction of justice. She was not represented. The judge set bond at $5,000.00/10%. After the bond hearing, there was a disturbance in the adjacent hallway. Somberg’s 16-year-old son Nicholas referred to the judge as an “asshole” out of the presence of the judge and his mother. A law enforcement official relayed the incident to the judge, who went back on the record approximately 15 minutes after the bond hearing had ended. The judge then raised Somberg’s bond to $25,000 cash/surety without Somberg’s knowledge or presence. Somberg’s parents had already gone to pay the original $500 bond to get her released,

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learned it had been changed to a $25,000 cash bond, and returned to court. Approximately half an hour later, the judge went on the record again with Somberg’s parents and son present. Nicholas Somberg acknowledged he was the one at fault and repeatedly asked to be punished instead of his mother, either by being jailed or placed in juvenile detention. The judge castigated him for his behavior but did not lower the bond or reinstate the original bond for his mother. The judge asserted her decision to increase the bond was to “protect” the family from potential domestic violence. She had, however, already issued a no contact except for mental health order between Somberg and Nicholas. (2) James Braun and Isaac Lovell were charged with 2 felonies, embezzlement from a vulnerable adult and larceny in a building. A 90-year-old woman had paid them approximately $3,000 to paint her house, which was excessive for the amount of work done. The maximum sentence for embezzlement was 5 years and/or $10,000; the maximum sentence for the larceny count was 4 years and/or $5,000. At the arraignment, there were television cameras in the courtroom. Braun’s attorney pointed out that Braun had no prior adult or juvenile criminal record, no history of substance abuse or addiction, had recently moved with his parents and wife from Florida to Michigan, and would likely be sentenced to probation. He accordingly asked for a low bond to be set. Braun provided the judge with his recently obtained Michigan telephone number, but had not yet changed his driver’s license from Florida to Michigan. A police detective stated that the police department felt anyone who would take advantage of a 90-year-old was a threat to the public, that the department did not believe that Braun had ties to the area because he gave the police officers a Florida address, that the town where he lived was not considered close, and that the vehicle Braun was riding in with the co-defendant had work orders from Delaware. The detective asked for the highest possible bond that the court felt was appropriate. Lovell’s attorney pointed out that Lovell had a minimal prior criminal history, was married, had an 11-month-old child, and had recently established ties with another community in Michigan where he and his family lived in a trailer park in a mobile home he had purchased. The police detective pointed out that Lovell’s criminal history dated back to 1996 in Florida for a variety of offenses. On behalf of the police department, the detective said that they had to assure the alleged victim that she and other residents of the state that they will be protected. The detective pointed out that Lovell had given an outof-state address to the officers and expressed concerns about Lovell’s ties to the area and whether he would return to court. The detective also pointed out that Lovell appeared in the National Association of Bunco Investigators book as a “traveler” who has had contact with this type of activity at some point in his past. The judge set bond for Braun at $750,000 and for Lovell at $1,000,000. After the matter went to circuit court, the embezzlement-from-a-vulnerable-adult and larceny-in-abuilding charges against Lovell and Braun were dropped pursuant to plea agreements. They pled no contest to a charge of false pretenses and were sentenced to 1-year probation with credit for 12 days served. The Commission had stated that the judge’s comment, in response to Braun’s attorney’s observation that, considering all the circumstances, his client would undoubtedly get probation, to the effect that it was a shame if convicted that that was the

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case, contributed to the appearance that the grossly excessive bails she set for Braun and Lovell were intended to be punitive. (3) Carmen Granata, a 23-year-old veterinarian technician, was cited for violating the city noise ordinance after neighbors called to complain about a large party she was hosting. Granata appeared before the judge in pro per. She pled guilty to the misdemeanor noise violation. Granata had no prior criminal record. The maximum penalty for the ordinance violation was 90 days and/or $500. During the hearing, the judge read a petition from certain of Granata’s neighbors who complained about the parties and the number of guests who frequented Granata’s house, allegedly causing disturbances. The judge did not disclose that she knew some of the neighbors. The judge also read favorable letters from certain of Granata’s neighbors into the record. The judge allowed 3 of Granata’s neighbors who had signed the petition to speak out about their past experiences with Granata. The judge referred to Granata’s neighbors as “the people who built this damn city” and agreed with one of them, “I wouldn’t be scared of them either. They’re just punks.” The judge repeatedly referred to Granata’s residence as a “flophouse” and how she would be “livid” by the alleged activity. The judge imposed a sentence upon Granata that included fines and costs and 2 years reporting probation with the first 30 days served in the jail, and several other strict terms, including, but not limited to, reporting twice monthly, daily preliminary breath tests at the police department and court, subjection to home visits, hours of community service, no parties unless approved by the neighbors who signed the petition, and no one to spend the night at her home except Granata and her brother who reside there. The Commission had found that the judge repeatedly permitted neighbors who were present to interrupt and further challenge the 23-year-old unrepresented defendant and failed to maintain appropriate decorum, engaged in similar conduct by echoing some of the neighbors’ comments and complaints regarding alleged incidents not part of the charge to which the defendant had pled guilty, contributing to the appearance that the judge was motivated by personal ire and to seek public approbation in sentencing Granata as she did. 1 justice wrote a concurring opinion in which a second justice joined. Noting that the settlement agreement stated that the stipulated facts “shall be the sole factual basis for the Commission’s decision and recommendation in this matter,” the concurrence stated that the Commission had exceeded the scope of the agreement by basing its recommendation on additional facts not included in the original stipulation and, therefore, the judge would likely be relieved from her “corresponding promise” to accept public censure. However, because the judge had not challenged the inclusion of additional facts beyond the facts to which she stipulated, the 2 justices concurred in the censure.

Nettles-Nickerson v. Fischer (U.S. District Court E.D. Michigan February 11, 2008) The U.S. District Court for the Eastern District of Michigan dismissed a suit filed by a judge seeking a declaratory judgment that the Michigan Judicial Tenure Commission investigation of her was initiated in bad faith and to deter the exercise of her First Amendment rights and an injunction prohibiting the Commission from further investigating her for filing a civil rights complaint and from “further chilling Plaintiff’s protected First Amendment rights.” The court noted that the request for an injunction

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was moot because the Commission investigation had ended and the Commission had filed a complaint against the judge. The court noted there was no dispute that the Commission’s investigation into the grievance constituted an on-going state judicial proceeding under the Younger abstention analysis and that the Commission investigation involves important state interests. The court noted that the final requirement for abstention is that the plaintiff must have an adequate opportunity in the state proceedings to raise constitutional challenges. The judge had initially asserted her constitutional claims as affirmative defenses of the Commission complaint. She attempted to retract her constitutional claims, but the Commission rejected her motion to amend her answer, holding that to allow the judge to strike her federal constitutional claims would prejudice the examiner by forcing him to litigate the same issue in federal court. Her counsel in the Commission proceedings then voluntarily did not assert those federal constitutional claims during the state hearing. The court concluded that the judge had “strategically attempted to forego her federal constitutional challenges” and “was not frustrated or barred from raising these claims. . . . As Plaintiff clearly chose to abandon any federal constitutional claims in the state proceeding, she cannot not argue that she was denied the right.” The judge contended that the Commission instituted the investigation and filed the formal complaint against her in bad faith and as a form of harassment for exercising First Amendment rights. The judge relied on a sentence in the written complaint to the Commission from the State Court Administrative Office that stated: “As Judge NettlesNickerson drew a great deal of public attention to the race issue, I ask that you expedite your investigation to the extent possible.” The federal court noted the rules require the Commission to investigate a matter once it determines that a complaint is not frivolous. The court found “this belies any claim of harassment or bad faith” by the Commission, rejecting the judge’s argument that the request for expeditious hearing indicates prejudicial conduct by the court administrator’s office. The judge also relied on a press release from the Michigan Department of Civil Rights that said, “It is our sincere hope that the JTC did not intend to imply that Judge Nettles-Nickerson should be disciplined in any way for exercising her right to file a civil rights complaint if she believed that she was being subjected to illegal discrimination.” The federal court concluded that the press release could not constitute evidence of bad faith or harassment, noting it expressly disavowed that it has any “position on the veracity of any fact claimed by any party in this matter . . . .” The judge also argued that the Commission’s filing of a formal complaint after she filed her federal suit was direct evidence of bad faith. The federal court concluded, “the fact that after a 14 month investigation the JTC filed a complaint against her, which included nine other complaints not relating to her First Amendment claim, cannot be construed as constituting bad faith or harassment on the part of the JTC. Plaintiff has supplied nothing to the Court for it to find that such a determination was influenced by her filing of a federal complaint other than serendipitous timing.”

Commission on Judicial Performance v. Thompson, 972 So. 2d 582 (Mississippi 2008) Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge for, in a case in which he had decided not to be involved, insisting that another judge talk with him before signing an

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arrest warrant, becoming angry when the other judge refused, and instructing a court clerk not to issue the arrest warrant. On May 22, 2006, Deborah Moody went to the justice court clerk’s office to file the necessary papers to have a warrant issued for the arrest of her sister, Sally Thompson Gill. Moody happened to see Judge Thompson, who informed her that she should take her grievance to another judge. Moody appeared before Judge John Sheffield. While Moody and Judge Sheffield were discussing the issuance of a warrant, Judge Thompson entered Judge Sheffield’s office and expressed a desire to talk to him before he signed the warrant. After Judge Sheffield said that he would be issuing the warrant, Judge Thompson became angry and left Judge Sheffield’s office. Judge Sheffield authorized the warrant, explained to Moody that it would be issued on a recognizance appearance bond, and advised Moody to take the warrant to the justice court clerk’s office. As Moody entered the hallway, she saw Judge Thompson standing outside of his office. Judge Thompson then asked a deputy court clerk not to send the warrant. The clerk agreed. Moody then asked the clerk if the warrant would be sent to the sheriff department, and the clerk responded no. Moody then walked back to Judge Sheffield’s office to tell him what had happened. Judge Sheffield gave Moody the telephone number for the Commission on Judicial Performance. Afterwards, Moody went back to the court clerk’s office. A different deputy clerk advised Moody that she would send the warrant in that day. Moody obtained a copy of the warrant and departed. In due course, a justice court date was assigned for Gill based on the charges brought by Moody. Judge Thompson acknowledged that he improperly allowed “his family, social or other relationships to influence his judicial conduct and that he, as well as his staff, must be courteous, cooperative with other judges, and observe standards of fidelity and diligence when performing [his] official duties.” The court stated: We do not know how many persons may have witnessed Judge Thompson’s conduct in Judge Sheffield’s office or later in the hallway of the Justice Court Building, nor do we know how many persons may have since learned of Judge Thompson’s conduct, but we can safely state, as asserted by the Commission, and admitted by Judge Thompson, that Judge Thompson’s conduct created “the appearance that he may be partial to certain interests. The litigants that appear in Justice Court or that come to Justice Court for assistance deserve a fair and independent judiciary and in this case, the litigant did not receive that and, therefore, suffered harm. The public’s perception of the judiciary as a whole was impugned.” The court noted that in 2005, based on an agreed statement of facts, the Commission had privately reprimanded the judge for participating in ex parte communications with parties concerning a pending matter.

Commission on Judicial Performance v. Osborne, 977 So.2d 314 (Mississippi 2008) The Mississippi Supreme Court suspended a judge for 180 days without pay for his actions in response to the repossession of an automobile jointly owned by his wife

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and mother-in-law. The Commission on Judicial Performance had recommended a 90day suspension. The court also assessed costs of $2,525.08. The judge’s mother-in-law and wife jointly owned a Mercedes automobile that was financed with General Motors Acceptance Corporation. When the payments were approximately $3,000 in arrears, GMAC engaged Christopher Reed to repossess the automobile. The documents pledging the automobile as collateral contained the usual and customary self-help repossession clause, permitting GMAC or its agents to repossess the automobile without resort to judicial proceedings. On November 7, 2002 Reed found the automobile parked near the judge’s office, hooked his tow truck to the car, and drove away with it. A client and close friend of the judge, Tony Benford, was in the judge’s office and notified him of Reed’s actions. The judge and Benford jumped in Benford’s automobile and chased Reed for several blocks. When Reed stopped for a traffic sign, Benford blocked Reed’s course of travel with Benford’s automobile, blocking that lane of traffic for the traveling public. The judge left Benford’s automobile and began to beat the hood and cab of Reed’s tow truck with his fists, climbing up onto the truck, kicking and beating on the top, and repeatedly instructing Reed to cut the Mercedes loose and cease his repossession efforts. Reed did not leave the cab of his vehicle until the police arrived at the scene. When the police officers arrived, the judge told them to instruct Reed to “put his automobile down.” The judge then attempted to unhook the Mercedes from the tow truck. The first officer to the scene was Curtis Lee who advised the judge that this was a civil matter and the officers could not get involved. Officer Langley also arrived at the scene, inspected the documents held by Reed, told the judge that it was a civil matter and the police could not get involved, and instructed Reed to get in his truck and leave with the automobile. The judge then got into the Mercedes and engaged the brakes, effectively aborting Reed’s repossession effort, all in view of witnesses who had gathered to watch. Officer John Avent also arrived at the scene a couple of minutes after officer Lee. He found the judge agitated, upset, and speaking in a loud voice while attempting to enter the Mercedes. Officer Avent advised the judge that this was a civil matter, that the officers could not get involved, to which the judge reminded him that he was a judge and lawyer, knew the law much better than the officer, and needed no advice from him. When Officer Avent ordered the judge to exit the Mercedes automobile, the judge refused. Officer Lee, Avent’s superior officer, who “incredibly” testified that he did not know Judge Osborne, saw officer Avent speaking with the judge, instructed Avent that he was handling this case. Officer Lee allowed the judge to remove property from the automobile, over Reed’s objection, even though it was the announced policy of the police department not to become involved in a repossession matter. The confrontation between the judge, Reed, and the officers lasted from 45 minutes to an hour on the public streets of the City of Greenwood, in full view of the public; traffic was blocked and several people, other than the police, gathered at the scene. The matter was finally brought to a close when Reed, for some unexplained reason, was taken into custody by the police, handcuffed, and thrown to the ground, injuring his head. Some of the bystanders came to Reed’s aid and called Reed’s wife, informing her that Reed had been injured. Reed left the scene in an ambulance dispatched by the Greenwood police department. Upon release from the hospital, Reed attempted to file assault charges against the judge, going to the police station and giving

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the officer on duty a report, but the report disappeared, and no action was taken. Reed was issued 2 citations on the scene, but they have not been pursued by the police department. The only record of the citations is the copy given to Reed at the scene. An “Incident Report” made and given to the shift captain, now chief of police, has disappeared. Reed was informed he needed brain surgery to repair an aneurysm “the cause of which is not the subject of this inquiry,” the Commission noted. Reed is now receiving disability benefits as a result of the aneurysm and/or its cause. As a result of the incident, a judgment has been rendered against the judge and in favor of Reed in the federal court in a civil action against the city, 1 of the police officers, and the judge. The judge disputed some of the facts found by the Commission. The judge and Benford testified that he stood in front of the tow truck in protest of the self-help repossession before it left the parking space near his office and that the chase was just a couple of blocks. The judge denied that he had beaten on the hood and cab of the tow truck and that he was loud and combative. There was also some conflict as to the judge’s actions after police arrived. The judge testified that his continued returns to the Mercedes were merely an effort to remove personal items from the vehicle. The court noted that it was undisputed that the judge attempted to stop the repossession of an automobile jointly owned by his wife and mother-in-law and that he publicly referred to his superior knowledge of the law in the process of doing so. The court stated that the involvement of the police placed Judge Osborne’s status as a local judge at issue. 2 of the officers testified that Judge Osborne specifically referred to his position as a judge in reciting his knowledge of law. The judge claimed that his reference to his knowledge of the law was based on his being a lawyer. The court agreed with the Commission finding that all officers who came to the scene were aware of Judge Osborne’s identity and position as a county court judge, stating the judge’s “reference to his knowledge of the law was a blatant attempt to use his office either as an advantage with the law enforcement officers at the scene, or as an intimidation tactic,” and that because the automobile was not titled in his name, but in the name of his wife and mother-in-law, these actions were an effort to lend the prestige of his office to assist family members. The judge argued that his actions were lawful because he was engaged in an objection to self-help repossession and that, because a breach of peace was inevitable, repossession was not proper without judicial process. Given its deference to the Commission’s findings of fact, the court found that its recital was supported by the evidence, even though that evidence was vigorously contested. The court rejected the judge’s argument that his public objection to the repossession was merely an exercise of rights to which he was entitled under Mississippi law, stating that his “contention that one has the ‘right’ to object to self-help repossession by causing a breach of peace is without merit and completely unsupported by the law.” The court concluded: “In considering Judge Osborne’s alleged judicial misconduct, the only subject of inquiry for this Court is the conduct of Judge Osborne. A right to object to self-help repossession was not a justification for his actions. Judge Osborne failed to observe high standards of conduct and invoked his office in objecting to the repossession of the automobile jointly owned by his wife and mother-in-law.” The court found that the “magnitude of the offense and the harm suffered were relatively great and resulted from an abuse of Judge Osborne’s office,” emphasizing that the judge had no legal interest in the vehicle and his actions

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allowed conditions to unfold that resulted in injuries to Reed and constituted an improper breach of peace carried out to thwart the lawful execution of self-help repossession. The court also found that moral turpitude was involved because the judge’s actions constituted an abuse of power for personal gain. The court noted that, in 2004, it had publicly reprimanded the judge for practicing law as a judge. Commission on Judicial Performance v. Osborne, 876 So. 2d 324 (Mississippi 2004). 1 justice dissented from the sanction. Noting that, despite the deference that should be given to the Commission’s recommendations, “there is an escalating trend of this Court to ignore those recommendations,” the dissent stated that when the court “disregards the recommendation of the Commission . . . we are effectively rendering the work of the Commission moot and valueless.” The justice also noted that “today’s opinion deprives the citizens of Mississippi of their right to have an official, elected by the citizens, serving in the capacity in which they chose him to serve. Effectively, this Court has suspended the will of the electorate for one hundred and eighty days.”

Commission on Judicial Performance v. Boland, 975 So.2d 882 (Mississippi 2008) Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a former judge for derogatory statements about African-Americans in Hinds County made at a National Drug Court Institute training conference. The judge was part of a 6-member team from Hinds County that attended a National Drug Court Institute training conference in Dallas, Texas, in September 2005. Because the team was not progressing fast enough during its break-out session, they worked through lunch. The team was making suggestions about how to structure the program when Judge Boland went into a 10-15 minute “tirade.” Judge Boland told the group about her involvement with the drug court and said she felt that she was not getting any support from other justice court judges or the board of supervisors. The judge said the members of the board of supervisors were not intelligent and that some justice court judges did not have degrees, adding she was going to make sure that justice court judges at least have college degrees. The judge told the county drug court coordinator that the coordinator needed to find another job because there was not going to be a drug court and told an attorney on the team, “You can go home because you’re not on this team anymore.” Finally, the judge stated: “As far as I’m concerned, the African-American community in Hinds County can go to hell.” After her outburst, everyone gathered their belongings and left the break-out session. As a result of the judge’s remarks, many of the Mississippi participants left the conference and flew home. Several participants received letters of apology from the judge but felt that the letters lacked sincerity. Several witnesses testified on the judge’s behalf about her commitment to the drug court and that they had never observed Judge Boland exhibit bias or prejudice or engage in dishonest or unethical conduct. The judge admitted that she had been frustrated and that she had stated, “As far as I’m concerned, the African-American community in Hinds County can go to hell.” However, the judge said that she had made that comment when she stated she was going to quit and that she had been exhausted at the time. She stated that what she meant that “people that are in drug and alcohol

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addiction, they’re in a living hell of their own” and that, if no one wanted help, then she would leave and just perform her duty as a judge. She explained that, prior to arriving in Dallas, she had been assisting Hurricane Katrina victims and that she had felt sick prior to getting on the plane. While in Dallas, Judge Boland stated that she could not sleep and had blacked out in a dressing room of a mall the night before the seminar. The court rejected the judge’s argument that the Commission erred by restricting some witnesses’ testimony and refusing to allow other witnesses’ testimony altogether, find that the record included a significant amount of favorable testimony concerning the judge and that the excluded testimony duplicated that of other character witnesses who testified on the judge’s behalf. The judge argued that her comments were protected by freedom of speech, relying on Commission on Judicial Performance v. Wilkerson, 876 So. 2d 1006 (Mississippi 2004), in which the court had dismissed a complaint against a judge for expressing his views on gays and lesbians in a letter to a newspaper. The court found that Judge Boland’s remarks were, contrary to her argument, “disparaging insults and not matters of legitimate public concern,” noting that the conference was not a forum for expressing personal concerns about the alleged lack of educational background or demeanor of fellow judges or the alleged lack of intelligence of supervisors” nor the proper place for a personal attack on a team participant or an attack on residents of Hinds County. The court stated that it did not condone her comments concerning the supervisors and other justice court judges or her outburst against a fellow drug-court participant but concluded “these comments do not rise to sanctionable offenses, as they were an expression of her personal opinion.” However, the court concluded that the judge’s comment about African-Americans in Hinds County was judicial misconduct and not protected by the First Amendment: Judge Boland was acting in her capacity as a justice court judge, seeking certification for a drug court for Hinds County, when she made her statement to a break-out group at the conference. The nature of her comment was an insult to individuals in the community in which she worked as a justice court judge. Her comment was not an expression of political or religious speech as in Wilkerson, nor was it an expression of commercial speech. Since Judge Boland’s comment was not made within the content, form or context of a matter of legitimate public concern, no further analysis is necessary by this Court. Rejecting the judge’s argument that she did not violate Canon 1 because Canon 1 is hortatory and an expression of the general overview of the code of judicial conduct, the court stated that, while the judge’s “statement was insulting as opposed to a chargeable, dishonest act, the statement brought the integrity of the judiciary into question.” Rejecting the judge’s argument that she did not violate Canon 2 because there was no evidence that she violated the law, the court found that “Judge Boland’s statement concerning the African-Americans within her community might be questioned by a reasonable person knowing all the circumstances, and thus, it meets the test for impropriety.” The court also agreed with the Commission that the judge violated Canon 3C(1). The court did agree with the judge that she did not violate Canons 3(B)(4) and 3(B)(5) because her comment was not made at an adjudicative proceeding.

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As an aggravating circumstance, the court noted that the judge “made derogatory statements toward members of her constituency which adversely affected a multitude of individuals, including court staff and parties appearing before her.” As a mitigating circumstance, the court found that the judge “was exhausted and fatigued at the time of her statements.” 1 justice in a concurring opinion wrote that, in addition to the reasons given in the decision for rejecting the judge’s First Amendment argument, he would rely on the reasoning set forth in his dissent in Commission on Judicial Performance v. Wilkerson.

In the Matter of Jung, Determination (New York State Commission on Judicial Conduct February 13, 2008) (www.scjc.state.ny.us) The New York State Commission on Judicial Conduct determined that removal was the appropriate sanction for a family court judge who violated the fundamental due process rights of litigants in 5 cases. (1) On March 3, 2005, the judge presided over Wendy Hohenforst v. Thomas DeMagistris, in which the parties were scheduled to appear for trial on custody, visitation and family offense petitions and counter-petitions. The case was scheduled to commence at 9:00 A.M. Hohenforst was represented by Ronald Schur, and DeMagistris was represented by Brian Toal. Prior to the scheduled proceeding, while the judge was in his chambers, DeMagistris allegedly threatened Schur near the entrance to the courthouse. DeMagistris was taken into custody by a court officer and placed in a holding cell in the courthouse, awaiting arrest by the police. Immediately following the incident, the attorneys and the law guardian met with the judge in chambers and advised him that DeMagistris had threatened Schur and had been taken into custody, which a court officer confirmed to the judge. The judge convened the proceeding in the courtroom. The attorneys, the law guardian, and Hohenforst were present. The judge stated on the record that DeMagistris was not present and that it had been “brought to [his] attention” that DeMagistris had threatened Schur a short time earlier and had been placed under arrest for “criminal behavior.” The judge further stated, “Now, that is not the basis for an adjournment at the request of Mr. DeMagistris. If he’s unable to proceed because of his own conduct that is not excusable, in the view of the Court, and these cases must proceed.” The judge knew at that time that DeMagistris was in custody, either in a holding cell at the courthouse or in the custody of local police. At the parties’ previous court appearance, the judge had advised the parties that if they were not present on the trial date, absent a good excuse, the other side could proceed and the relief requested could be granted in their absence. Counsel for both parties made motions to withdraw as counsel for their respective clients, which the judge granted. The judge did not know and did not inquire whether the father’s attorney had advised his client that he was seeking to withdraw. After granting Schur’s application to withdraw as Hohenforst’s attorney, the judge asked Hohenforst if she wanted an adjournment, and she stated that she wished to proceed without an attorney. The judge took no steps to advise DeMagistris that the proceeding was going forward without him or his counsel. Following an inquest by the law guardian on behalf of the parties’ children, the judge declared DeMagistris in default and granted the relief requested in Hohenforst’s petitions, including divesting DeMagistris of custody of his

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children and issuing a 3-year order of protection. The judge dismissed the petition filed by DeMagistris for failure to prosecute. The judge then sentenced DeMagistris in absentia to 2 consecutive 180-day terms in jail for family offenses and violation of an order of protection. Pursuant to the sentence imposed by the judge, DeMagistris served 5 months in jail before being released on a writ of habeas corpus. On October 18, 2007, the appellate division reversed the judge’s decision, vacating the default judgment and remitting the proceedings for a new hearing before a different judge. As a result of the incident at the courthouse, DeMagistris pleaded guilty to harassment and disorderly conduct and was sentenced to 15 days in jail to be served concurrently with the sentence imposed by the judge. The Commission stated that the judge’s actions “appeared retaliatory for the litigant’s alleged criminal acts that had not yet even been charged, let alone proved” and that allowing the father’s attorney to withdraw “compound[ed] the proceeding’s patent unfairness.” The Commission rejected the judge’s argument that his actions did not constitute misconduct because, “in an emotionally charged situation, he acted in a good faith belief that the litigant had forfeited his right to be heard by engaging in the conduct that led to his arrest,” stating “No fair-minded person even cursorily versed in legal process could reasonably regard the litigant’s alleged behavior – at that point based only on hearsay – as an effective legal waiver of the right to be present and the right to be represented by counsel on matters involving custody and a likely lengthy jail sentence for family offenses.” (2) Angelic Constantino had been served at the Schenectady County Jail with a summons, directing her appearance in the Fulton County Family Court on April 11, 2005. The summons form stated that the court may conduct a hearing and grant the relief requested if the party does not appear. It was the judge’s policy that when an incarcerated individual was scheduled to appear in family court, the judge would issue an order to produce only if the court received a request from the individual. Constantino attempted to have Schenectady County Jail officials contact the Fulton County Family Court on her behalf to have herself produced in court on April 11th. No notice of any such request was received by the family court, and the judge did not issue an order to produce. When the judge convened the Constantino matter on April 11, 2005, the father and grandparents of the children, their attorneys, the law guardian, and representatives of the Department of Social Services were present. The judge inquired if Constantino was present, and the attorney for the father and grandparents told the judge that she was in the jail. The judge declared Constantino in default. After an inquest by the attorney for the Department of Social Services, the judge granted the relief requested in the petition, terminating Constantino’s right to joint custody of her children, finding a willful violation of an order of protection, and imposing a 180-day sentence of incarceration. The next day, according to notations on court records, Constantino called the court from jail and inquired as to why she had not been brought to court the previous day. Court staff told her that it is the court’s policy that an inmate must make a request to be produced and further told her that “if she disagrees with the court policy she is to put her concerns in writing and forward them to the court.” On April 15, Constantino’s assigned counsel in a Saratoga County Family Court matter sent a letter to the judge stating that Constantino was incarcerated and asking that the judge produce her to inquire into the matter and assign counsel. By letter dated April 25, the chief clerk replied to the letter,

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stating that “it is the policy of this Court that if an inmate wishes to be present for any court proceeding that he or she make that request in writing to the Court. That request is then put before the Judge for consideration.” The judge testified at the Commission hearing that he did not see counsel’s letter at the time and was unaware of the chief clerk’s response. The judge did not take any action to bring Constantino before the court. Constantino was released on a writ of habeas corpus on June 28, 2005, which the appellate division subsequently affirmed. Constantino did not move to vacate the default. Following criticism of his decision in Matter of Constantino, the judge modified his procedures regarding the production of an incarcerated person. On the forms for a summons and the notice to appear in court, language was added in bold stating: “If you are incarcerated, you must contact the Court and ask to be produced.” Also, a form was created for family court staff to fill out upon receiving notice by telephone that an individual is incarcerated, and the completed form is promptly given to the judge. Another form was created and distributed to correctional facilities, to be made available to inmates, whereby an inmate with a scheduled appearance in family court can request to be produced; the form states that the inmate must ask to be produced. The judge stated that he further modified his procedures with respect to the production of an incarcerated person and now issues an order to produce sua sponte upon receiving any notification, hearsay or otherwise, that an individual is incarcerated. The Commission found that the judge’s claim that he did not have actual notice that Constantino was incarcerated was disingenuous. The Commission found that the judge’s “'policy” “elevated form over substance where liberty and parental rights hung in the balance,” noting that the “patent unfairness of that policy was demonstrated in Constantino, where a litigant incarcerated in another county had unsuccessfully attempted to contact the court to ask to be produced.” (3) On April 28, 2005, the judge presided over Julie Dacre v. Dennis DaCorsi, in which the parties were scheduled to appear on a custody petition and allegations that DaCorsi had violated an order of child support. On that date, Dacre, her attorney, and the law guardian were present. DaCorsi, who had been served with the petition, was not present because he was incarcerated at the county jail, pursuant to commitments from another court. At a prior appearance, the parties had been advised that if they were not present on the scheduled date, absent a good excuse, the other side could proceed and the relief requested could be granted in their absence. On April 27, according to notations on the court disposition sheet, a woman identifying herself as DaCorsi’s sister had called the court and stated that her brother had been arrested earlier that week and had to be in family court the next day; a court clerk told the caller that either DaCorsi or the police would have to contact the court and ask that he be produced. The judge testified that the updated disposition sheet was probably not in the court file when the case was before him on April 28, and that he was unaware at the time of the phone call. On April 28, after checking the affidavit of service to confirm that DaCorsi had been properly served, the judge declared him in default. The Commission found that the judge either knew or should have known that DaCorsi was incarcerated. The judge advised Dacre’s attorney and the law guardian that they could proceed or have an adjournment, and they elected to proceed. After testimony was taken, the judge granted the relief requested in the petition, declaring that DaCorsi had willfully failed to pay child support, terminating DaCorsi’s custody of his child, and sentencing him in absentia to 2 consecutive terms of

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incarceration, of 90 days and 180 days. On June 16, 2006, the judge granted DaCorsi’s motion to vacate the default and disqualified himself from the case. (4) On January 12, 2005, in Dale Rulison v. Nickie Smith, the parties appeared before a support magistrate on a petition alleging that Smith had violated an order of support and was in contempt. The support magistrate advised the parties of the right to counsel and to have counsel assigned if they could not afford one. Smith stated that she wanted an attorney to represent her. She was provided with an application for the public defender and was advised that the application had to be filed within 14 days. A trial was scheduled for April 27. It was the judge’s policy that a litigant was required to submit an application requesting representation within 14 days of being advised of his or her rights at the initial appearance. According to the judge, this policy was based on the need to move cases expeditiously and to comply with procedural mandates that require a trial in a support matter to take place within 30 days of the initial appearance, that no more than 1 adjournment to obtain counsel was permitted absent good cause, and that no adjournment exceed 14 days. On February 8, Smith submitted an application for representation by the public defender in the support matter. On February 14, the judge denied the application as untimely, even though the trial was not scheduled until April 27. On February 14, the parties appeared before the judge in another matter involving custody and visitation issues. The judge advised them of their rights, and Smith applied for representation by the public defender in that matter. The judge approved the application on February 18. On April 27, Smith failed to appear for the scheduled trial before the support magistrate. By decision and order dated April 27, the support magistrate declared Smith in default and recommended that she be held in contempt for willful and intentional failure to pay child support and that she be sentenced to 90 days in jail. The support magistrate also set a “purge” amount, which could be paid prior to confirmation to avoid incarceration. On May 18, the judge presided at a confirmation proceeding on the decision and order of the support magistrate. The judge testified that it was his practice to give litigants an opportunity to address the court at a confirmation proceeding although he was not required by law to do so. Appearing without counsel, Smith attempted to defend herself against the petition, disputing the amount of arrears and stating that she had made partial payments through friends, who were waiting for cancelled checks from the bank. The judge told her that the exact amount owed did not matter, “the point is . . . it hasn’t been paid.” Smith stated that she had sought representation by the public defender but had heard nothing from that office. The judge told her that she would “have to take that up with” the public defender’s office. At the proceeding, Smith did not indicate that she was represented by the public defender in the custody and visitation matter. The judge testified before the Commission that he was unaware that Smith was represented by the public defender in another proceeding, that information was probably in the court file before him but he “didn’t catch it.” He testified that since many litigants are involved in multiple proceedings, it is his policy to have an attorney assigned by the public defender represent a litigant in all pending family court cases and that had he known that Smith had such counsel in another matter, he would have assigned that attorney in the support matter. The judge reviewed the decision and order of the support magistrate, confirmed the decision and sentenced Smith to 90 days jail; he also set a “purge” amount of $1,000, which could be paid to avoid incarceration. Smith did not

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appeal or move to vacate the judge’s decision. She was released from jail after paying the “purge” amount. The Commission stated that, although the judge’s purported rationale for his 14day deadline for requesting an attorney was the requirement that the trial be commenced within 30 days of the petition, that rationale did not apply in Rulison v. Smith because, at the time he denied the application, the trial date was more than 2 months away. The Commission also noted that the judge brushed aside Smith’s statement that she had not heard from the public defender’s office, “callously telling her ‘to take it up with’ that office, before summarily sentencing her to 90 days in jail,” noting “it is a judge’s responsibility to determine whether a litigant is eligible for assigned counsel; that responsibility cannot be delegated.” The Commission stated that the judge appeared to blame Smith for not volunteering that she was represented by the public defender in another matter and that his “failure to ask that question is part and parcel of his policies and behavior that unduly restricted the right to counsel. In the interests of moving cases quickly and, as he testified, ‘protecting the taxpayers’ pocketbook,’ respondent chose to sacrifice defendants’ fundamental rights.” (5) On January 20, 2005, in Timothy Foote v. Karrie Foote, the parties appeared before a support magistrate on a petition alleging that Karrie Foote had violated an order of support and was in contempt. The support magistrate advised the parties of the right to counsel and to have counsel assigned if they could not afford one. Ms. Foote stated that she wanted an attorney to represent her. She also told the support magistrate that she could not read. She was given an application for the public defender and was advised that the application had to be filed within 14 days. A trial was scheduled for May 11. The parties were given oral and written notice of the trial date, which stated that if a party failed to appear, the court may proceed in their absence. On April 4, the parties appeared before the judge in another matter, in which Ms. Foote was seeking to modify custody. The judge advised the parties of their rights and told Ms. Foote that she could apply for representation by the public defender. He also advised the parties that mediation was available. The parties met with a court mediator, which resulted in a resolution of the custody dispute. Ms. Foote did not file an application for the public defender. On May 11, Ms. Foote failed to appear on the date scheduled for trial on the support matter. By decision and order dated May 13, the support magistrate declared Ms. Foote in default and recommended that she be held in contempt for willful and intentional failure to pay over $4,000 in child support. On May 25, the judge presided over a confirmation proceeding on the decision and order of the support magistrate. Under the state-wide system of standards and goals promulgated by the chief administrative judge, there is a 180-day time frame in family court from the date of filing of the petition to the disposition. The relevant dates under the standards and goals for each case are noted on the judge’s daily calendar. On May 25, the Foote case was more than 170 days past the filing date of the petition. Ms. Foote appeared without counsel. She told the judge that she did not know that she had a trial date on May 11, and that she had lost her job. She also told the judge that she did not want to proceed without a lawyer; she said, referring to the support magistrate, “I told her that I wanted a lawyer.” The judge replied that “it’s too late” since the support magistrate had issued a decision. The judge confirmed the decision and order of the support magistrate and sentenced Ms. Foote to 180 days in jail. The judge then stated that he would give Ms. Foote “a break” by allowing her to avoid

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incarceration by immediately paying the arrears of $4,488. When Ms. Foote began to explain why she had difficulty making the support payments, the judge said, “You have to think about your ability . . . to support children before you have them. You don’t think about that after.” After the judge had sentenced Ms. Foote to jail, her mother addressed the court and stated that her daughter has a learning disability, did not understand the papers, and needed an attorney; she also stated that her daughter had “a fourth grade reading level” and believed that the support issues had been resolved earlier. The judge replied that the support magistrate had heard the case, that Ms. Foote had been advised of her rights, including the right to counsel and that there was no indication in the record that Ms. Foote had applied for assigned counsel. Ms. Foote served 2 months in jail on the sentence imposed by the judge before being released on a writ of habeas corpus that the appellate division affirmed. Shortly after the appellate division decision in Foote, in a press release, the judge stated, inter alia, that “to further streamline and simplify” procedures, in future cases, he will issue a written confirmation of a support magistrate’s decision without a court appearance of the parties unless he determines that the support magistrate has erred. The judge also modified his procedures with respect to the assignment of counsel and that he now assigns a public defender immediately upon request, subject to completion of a financial application to be reviewed by the court and/or the public defender. The Commission found that the judge’s “explanation that the case was near the end of the 180-day time frame imposed by Standards and Goals in no way excuses his failure as a judge to protect the rights of a vulnerable, unrepresented litigant.” The Commission also stated that the judge’s “snide remark to Ms. Foote that she should have thought about her ability to support children before she had them was a condemnation of an entire class of litigants who appear in Family Court, suggesting invidious assumptions and hostility for parents who are unable to provide adequate financial support for a child.” The Commission found that the judge’s handling of these 5 matters “was patently lacking in fundamental fairness and showed a profound disregard for the rule of law and for the basic rights of the individuals before him. Such a systematic disregard of basic legal requirements constitutes serious misconduct.” The Commission stated that, however laudable the goals of moving cases expeditiously and complying with statutory mandates and the standards and goals prescribed by court administrators, “they do not excuse failing to protect the fundamental constitutional and statutory right of counsel. . . . The right to counsel cannot be forfeited by the imposition of restrictive and arbitrary policies, the sole purpose of which is to move cases.” The Commission also noted: The record in its totality shows a judge who not only callously disregarded the rights of litigants, but who continued to defend his practices after three writs of habeas corpus were issued, who changed his procedures only reluctantly after sharp criticism by the Appellate Division, and whose conduct still suggests an insensitivity to the importance of ensuring that every litigant is accorded all the protections provided by law. Significantly, respondent’s press release in response to the appellate decision in Foote declared that in the future he will simply issue written confirmations of a support magistrate’s findings rather than provide an opportunity for the parties to personally appear, as he had previously done. It was

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at such appearances that Ms. Foote and Ms. Smith had asked for assigned counsel. Respondent’s press release also stated that while he had changed his policy on assigning counsel in accordance with the appellate criticism, his new policy will be more costly and will also mean that “parties seeking assigned lawyers will be less encouraged to be responsible.” That language is consistent with the meanspirited, insensitive jurist depicted in this record who is more concerned with fiscal matters than with protecting the basic rights of every litigant. The Commission noted that the judge’s decision in 3 cases “were later criticized by other courts” but that “those appellate decisions do not establish respondent’s misconduct.” However, the Commission rejected the judge’s “claim that the law became clear only after his actions were subjected to appellate review,” stating each matter “involved principles of well-established constitutional and statutory law, and any judge should have known that those principles must override concerns about economy and avoiding perceived delays.” It was an abuse of power for respondent to elevate his “policies” above the right to counsel and the right to be heard on matters of paramount importance to litigants in Family Court. Respondent should have known that he was violating core rights at the heart of the proceedings. His policies were his own arbitrary inventions to effectuate a waiver of the rights of litigants who were incarcerated, unrepresented or unfamiliar with court procedures, and the resulting “waivers” were neither knowing, voluntary nor legally sufficient. It is well-established that legal error and judicial misconduct “are not necessarily mutually exclusive.” In this case they overlap. The Commission acknowledged that family court “judges face significant challenges on a daily basis in balancing their judicial and administrative responsibilities with the demands of a crowded calendar,” but added that “among a judge’s responsibilities, none has a higher priority than protecting the basic rights of every litigant. Here, the record demonstrates that the rights of litigants were sacrificed repeatedly. Due process when it comes to protecting parental rights and depriving an individual of liberty is not a balancing test; its protections are sacrosanct.” In considering the appropriate sanction, the Commission noted that as a consequence of the judge’s disregard of fundamental rights, 5 litigants were sentenced to significant terms of incarceration and that at least 3 of those litigants served several months in jail. The Commission also noted that the judge’s “continued insistence that his actions were consistent with the law and his insensitivity to the overriding importance of protecting the rights of litigants . . . ‘strongly suggest[ ] that, if he is allowed to continue on the bench, we may expect more of the same.’” The Commission rejected as unconvincing the judge’s belated expression of contrition at oral argument and reached the “inescapable” conclusion that the judge’s “future retention on the bench would continue to place the rights of litigants in serious jeopardy.”

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In the Matter of Killian, Determination and Order (New York State Commission on Judicial Conduct January 31, 2008) (www.scjc.state.ny.us) Accepting a stipulation, the New York State Commission on Judicial Conduct discontinued 2 proceedings against a judge based on the judge’s acknowledgement that she will not defend against 2 pending complaints and her affirmation that she will neither seek nor accept judicial office or a position as a judicial hearing officer after the expiration of her current term on April 1, 2008. The judge waived confidentiality to the limited extent that the stipulation could be made public. In January 2007, the judge had been served with a formal written complaint, alleging that she failed to report and remit fines and fees to the state comptroller as required by the statute and failed to timely cooperate with the Commission’s investigation. The judge asserted as a defense that her failure to report and remit court funds was due to an antiquated computer system and insufficient bookkeeping procedures that were in place when she assumed office in 2003. A hearing scheduled for November 15 and 16, 2007, was postponed when the Commission advised the judge that it was investigating a new complaint alleging that she received a 6-month stayed suspension from the practice of law. In January 2008, the judge was served with a second formal complaint that alleged, inter alia, that she failed to timely cooperate with investigations by the Committee on Professional Standards, that she was suspended from the practice of law in March 2007 for professional misconduct, and that, notwithstanding that the suspension was stayed contingent on the judge’s satisfaction of certain conditions, such suspension reflected adversely on her fitness to serve as a judge.

In the Matter of Minogue, Determination (New York State Commission on Judicial Conduct February 21, 2008) (www.scjc.state.ny.us) Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that censure was the appropriate sanction for a non-lawyer judge who (1) in numerous cases, failed to deposit and report official monies in a timely manner as required by law; (2) failed to report and remit to the State Comptroller $415 from 6 cases; (3) failed to maintain a complete and accurate cashbook recording her receipts and disbursements; and (4) presided over her sister-inlaw’s seat belt case, accepting a guilty plea and imposing no fine. (1) From January 2005 to November 2006, in 16 cases, the judge failed to deposit court funds within 72 hours of receipt, exclusive of Sundays and holidays, notwithstanding the requirements of the Uniform Civil Rules for the Justice Courts. The delays were from 14-113 days. In 1 case, the judge retained a $235 fine and eventually returned it to the defendant after she dismissed the charge. In another case, the judge collected a $105 fine for her co-justice but did not deposit the payment into her court checking account, instead, putting the money in an envelope and leaving it for her cojustice. In 4 cases, the judge did not deposit fines collected into her court checking account. The judge stored the undeposited funds in her locked briefcase under her bench in her courtroom, which is routinely locked when not in use but is occasionally used as a community center by groups when neither the judge nor court staff were present. The Commission noted that the judge now “understands the need to safeguard undeposited court funds in a more secure manner and affirms that she now does so by locking them in

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her briefcase, which she keeps with her until the following day, when she deposits the funds in the bank.” (2) From March 2005 to June 2006, the judge failed to report and remit to the State Comptroller $415 from 6 cases, notwithstanding the requirements of the law. In June and July 2005, a clerk of the Justice Court Fund in the Office of the State Comptroller advised the judge that her court’s financial activity report for April and May and any remittance due were not on file and asked the judge to check her records and confirm that she had filed her report or, if she had not filed her report, to send the report as soon as possible. In the second letter, the judge was asked to contact the Justice Court Fund as soon as possible with the required documentation to avoid a loss of revenue to her municipality and suspension of her compensation. On August 12, and August 17, the manager of the Justice Court Fund left telephone messages for the judge regarding her reports. By letter dated August 19, the manager of the Justice Court Fund gave official notification to the town supervisor that the judge had not filed a report of her court’s financial activity or remitted funds where due for April and May 2005. This notice required that the judge’s judicial salary be stopped until further notice, and her salary was stopped in August 2005. By letter dated August 29, the manager of the Justice Court Fund notified the town supervisor that, as of that date, the judge was current in her monthly reporting requirements and that payment of her judicial salary should resume. The judge told the Commission that she had faxed her report of her court’s financial activity for April 2005 to the State Comptroller on May 12, 2005, but that she was unable to provide a confirmation of that fax transmission. The judge also stated that she had refaxed the April 2005 report to the State Comptroller on June 16, 2005, along with her report of her court’s financial activity for May 2005. In support of these assertions, the judge provided the Commission, in a letter postmarked September 8, 2005, with purported copies of reports of her court’s financial activity for April and May 2005, each dated June 16, 2005 and signed by the judge. (3) In 4 cases, the judge collected fines or fees from litigant but did not report the funds in the appropriate reports of her court’s financial activity or in any subsequent report of her court’s financial activity or remit the money to the State Comptroller. The Commission found that the judge’s failure to maintain a complete and accurate cashbook and to itemize chronologically all receipts and disbursements of funds was the result of her poor bookkeeping and recordkeeping practices, stating there was no evidence of conversion or the misuse of funds. The judge agreed to report and remit to the State Comptroller by January 21, 2008, the unreported fines and fees collected and to provide the Commission with documentation that she has remitted these funds. The judge agreed that the Commission may make future checks and audits of her bookkeeping and recordkeeping practices and of her deposits, reports, and remittances to the State Comptroller. The judge understands that any future deficiencies in her financial practices could subject her to additional charges and result in the Commission’s determination that she be removed from office. (4) Mary Minogue is the judge’s sister-in-law, married to the brother of the judge’s husband. On July 25, 2006, Minogue was issued a ticket for a seat belt violation, returnable in the judge’s court. Minogue entered a guilty plea by mail with an explanation that, although she always wears her seat belt, she had taken it off in this instance for 5 minutes to retrieve a spilled coffee cup from within her car. Under the law,

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the maximum civil fine for this violation is $50, there is no mandatory minimum fine, and no points are assessed to the driver’s license. In October 2006, the ticket was assigned to Judge Minogue in the ordinary course because she was the town’s only justice. The judge adjudicated Minogue’s guilty plea and imposed only the mandatory state surcharge. Minogue did not appear in court. The judge did not discuss the ticket with Minogue but accepted her written explanation of the incident. The judge acknowledges that she should have recused herself from handling the ticket but, at the time, she genuinely considered the matter to be of such minor import that she did not wish to transfer the ticket to burden another judge with it. While the judge has previously imposed fines of varying amounts in other seat belt violation cases, she has also imposed no fine in some seat belt violation cases when, as here, she accepted the defendant’s explanation. The judge presided over 9 other seat belt convictions in 2006. Of those 9, no fine was assessed in 1 case, involving a defendant whom the judge did not know, and a fine of either $25 or $50 was assessed in 8 cases. Noting that judges are strictly prohibited from handling any matter in which a relative is a party regardless of the nature of the case or the disposition, the Commission found that the lenient disposition the judge accorded her relative compounds the appearance of impropriety.

In the Matter of Ray, Determination (New York State Commission on Judicial Conduct February 26, 2008) (www.scjc.state.ny.us) Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct determined that admonishment was the appropriate sanction for non-lawyer judge who convicted the defendants in a code violation case without a trial or guilty plea and imposed 2 consecutive fines based on unsubstantiated ex parte information from the code enforcement officer. 2 members dissented as to the sanction. On January 3, 2006, Christopher and Michele Bridge were charged with violating the town code and state property maintenance law in connection with the dilapidated garage and the large pile of used tires that was located on property where they were tenants. The county had taken possession of the property in August 2005 due to nonpayment of delinquent taxes. At arraignment, the judge told the defendants to keep the large number of tires on the property covered and adjourned the case until February 28. On February 28, the defendants appeared before the judge and reached an agreement with the town code enforcement officer to destroy the dilapidated garage by March 15. The agreement did not mention covering any tires. On March 14, the Bridges took ownership of the property from the county. On April 25, the code enforcement officer appeared in court for a proceeding in the matter. The Bridges did not appear. The code enforcement officer told the judge that he had driven past the property and observed that portions of the tires on the property were uncovered. On May 7, the judge, based upon his ex parte communication with the code enforcement officer, sent the Bridges a letter stating that he was fining them $100 for not keeping the tires covered because he believed that they were intentionally violating his direction to keep the tires covered pending the conclusion of the case. On May 23, Michele Bridge appeared in court and paid the $100 fine. On June 30, the code enforcement officer sent the judge a letter stating that he had visited the

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property and found that a portion of the tires were still uncovered. On July 12, the judge sent the Bridges a letter advising them that they had been convicted of the original charges, fining them an additional $100, imposing a 1-year conditional discharge, and stating that payment was due to the court by August 11. The judge also warned them that, if the fine was not paid by the due date, their drivers’ licenses would be suspended. The judge did so notwithstanding that the Bridges had pleaded not guilty and without affording them a trial or the opportunity to present a defense, cross-examine witnesses, testify on their own behalf, or offer witnesses or other evidence. The conditional discharge period concluded on July 12, 2007, without further action in the case. The judge waived payment of the $100 fine. No further action has been taken in the matter. The Commission found that the judge’s handling of the case “reveals a misunderstanding of basic legal procedures” and “violates well-established ethical standards and warrants discipline.” The Commission noted that “it is the responsibility of every judge, lawyer or non-lawyer, to maintain professional competence in the law and to ensure that every defendant is afforded basic procedural due process.” The Commission concluded: Respondent, who had served as a judge for two years at the time he handled this case, has acknowledged that his actions were inconsistent with the required procedures and that his confusion about the ownership of the property would likely have been avoided had he not acted so peremptorily against the defendants. Further, it has been stipulated that respondent now has an enhanced appreciation of the significance of both avoiding unauthorized ex parte communications and according litigants the right to be heard according to law. 1 member of the Commission filed a dissenting opinion in which a second member joined, arguing that the sanction of admonition for fundamental breaches of due process “is so inconsistent with our precedent and what the public expects of us that it betrays an expedient approach to judicial discipline not consistent with our constitutional obligations” and arguing that the judge should be removed on this record. O’Nell v. Coughlan, 511 F.3d 638 (U.S. Court of Appeals for the 6th Circuit 2008) Dissolving an injunction that enjoined enforcement of 3 provisions of the Ohio code of judicial conduct related to judicial campaign conduct, the U.S. Court of Appeals for the 6th Circuit has held that the district court should have refrained from exercising its jurisdiction in this case. The challenged canons provide that “after the day of the primary election, a judicial candidate shall not identify himself or herself in advertising as a member of or affiliated with a political party,” that judicial campaign materials and ads may not “use the term ‘judge’ when a judge is a candidate for another judicial office and does not indicate the court on which the judge currently serves,” and that judges and judicial candidates shall “maintain the dignity appropriate to judicial office.” Court of Appeals Judge William O’Neill was a candidate for the Ohio Supreme Court in 2004. His campaign theme was “Money and Judges Don’t Mix.” He supported judicial campaign finance reform and refused any donation over $10. His campaign website included the statement: “The time has come to end the public’s suspicion that

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political contributions influence court decisions. The election of Judge O’Neill is the best step toward sending the message: ‘This Court is Not For Sale!’” The chair of the county Republican Party filed a grievance alleging that O’Neill’s campaign literature failed to disclose the court for which he was a judge, identified his political party affiliation, and attacked the credibility of the Ohio judiciary by “viciously malign[ing] the fair, unbiased and impartial judiciary.” Following standard procedure, the Office of the Disciplinary Counsel sent O’Neill a letter advising him of the grievance and asking for a response. Without responding to the letter, O’Neill filed suit in federal court. In response, the Office of the Disciplinary Counsel argued that the case was not ripe for review because there had been no disciplinary action and O’Neill’s claims were not likely to succeed on the merits. On September 14, 2004, the district court granted plaintiff’s motion for a preliminary injunction and deferred ruling on defendant’s motion to dismiss. On March 10, 2006, the Office of the Disciplinary Counsel moved to dissolve the preliminary injunction on the grounds of Younger abstention. In denying the motion, the district court found that the Office of the Disciplinary Counsel had waived the Younger abstention argument by addressing the merits of O’Neill’s constitutional claim. The district court granted O’Neill’s motion for summary judgment and converted the preliminary injunction to a permanent injunction. The 6th Circuit found that the failure of the Office of the Disciplinary Counsel to assert Younger abstention before arguing for dismissal on the merits did not constitute waiver of the right to seek dismissal of the complaint on the grounds of Younger abstention. The court also rejected O’Neill’s argument that there was no ongoing state judicial proceeding because the filing of the grievance did not start a state judicial proceeding, noting that the Ohio Supreme Court has held that the filing of a grievance is the beginning of the judicial process. One judge dissented from the holding on the ground that the Office of Disciplinary Counsel had waived application of Younger abstention and that, even in the absence of a waiver, the case did not warrant abstention. The dissent also argued that the state administrative process did not present O’Neill with an adequate opportunity to argue the constitutional issues before the election.

Inquiry Concerning Wollheim, 178 P.3d 224 (Oregon 2008) Based on an agreement between the judge and the Commission on Judicial Fitness and Disability, the Oregon Supreme Court censured a court of appeals judge for driving while under the influence of intoxicants. The judge is one of 3 judge members of the Commission. The judge reported the matter to the Commission and did not participate in the Commission’s consideration of the matter. On the morning of July 12, 2006, at approximately 8 a.m., the judge was driving his car on an interstate towards his chambers in Salem. Another motorist called the state police to report that the judge was driving erratically, that the right front corner of his vehicle may have bumped into the left rear of a semi-truck, and that the judge did not stop. A state trooper followed the judge’s vehicle as it exited the freeway and proceeded southbound. While the trooper was following, the judge’s vehicle drifted into the northbound lane of travel. The trooper stopped the judge by activating his vehicle’s overhead emergency lights. During the stop, the judge produced a vial containing several pills,

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including Vicodin and OxyContin and told the trooper that he had taken 3 pills that morning -- either 2 Vicodin and 1 OxyContin, or vice versa. He also said that he had taken some other medications, including prednisone and naprosin. The judge had prescriptions for the substances because of back and leg pain. The judge’s movements were slow, and his speech was slow and slurred. The right front corner of his vehicle was damaged. The judge submitted to a field sobriety test, after which the trooper arrested him on suspicion of driving while under the influence of intoxicants. At the police station, the judge consented to a Breathalyzer test, which showed a 0% blood alcohol level. After the tests, the trooper issued the judge a citation for driving under the influence of intoxicants. The next day, the judge was hospitalized with multiple symptoms. He was diagnosed with meningitis and spent several days in the hospital’s intensive care unit before being discharged on July 19. On August 4, 2006, the judge pled guilty to driving under the influence of intoxicants, a class A misdemeanor. The court accepted the judge’s petition for leave to enter a diversion program. The judge successfully completed that program. On August 9, 2007, the court entered an order dismissing the charge with prejudice.

In the Matter of Lynah, 656 S.E.2d 344 (South Carolina 2008) Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a magistrate for 90 days without pay for failing to ensure that deposits were made and bank accounts were reconciled monthly. The opinion notes that in 1999, 2006, and 2007, the Chief Justice had issued detailed orders setting forth specific requirements for financial accounting in all magistrate courts. The magistrate had attended training on the requirements. On June 13, 2007, the county chief magistrate held a quarterly meeting and, prior to the meeting, requested that all magistrates bring bank reconciliation paperwork to the meeting. At the meeting, the magistrate informed the chief magistrate that she did not have the reconciliations because her office assistant needed additional time to sort out some discrepancies. The chief magistrate asked another magistrate court employee to meet with the magistrate and her office assistant to review the bank accounts and assist with the reconciliations. When the magistrate informed her office assistant, her office assistant became irate, left for lunch, and never returned to the office. The magistrate then personally reviewed the court checking accounts and realized that all deposits were not being made. The magistrate and another court employee discovered a bank bag in her office assistant’s desk drawer that contained $1,322 in cash, $4,410 in non-deposited checks, a $25 money order in an unopened envelope, and a check dated November 14, 2006 for $65, which had not been deposited. There was no identifying information to tie the cash to individual defendants or cases. An examination by county staff of the magistrate’s court bank records revealed an approximate shortage of $15,741.82 as of July 2007; an investigation into the exact amount of the shortage is continuing. In a written statement to investigators, the office assistant stated that, within the previous 6 to 8 months, she had become behind on her personal bills and, at some point, stopped making deposits of cash in the magistrate court accounts and began taking sums from the court accounts to pay her bills. The office assistant took full responsibility for the missing money, stating the judge had “nothing to do with this.”

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From approximately August 2006 until June 2007, the judge had relied solely on her office assistant to handle court money and reconcile bank statements. The judge admitted that had she been reconciling the bank statements, this problem would have been discovered sooner; that she had received training but had not performed her duties as required; and that she did not properly supervise her office assistant or conducted reconciliations of her official accounts.

In the Matter of Kinlaw, 657 S.E.2d 756 (South Carolina 2008) Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for failing to ensure that court funds were deposited and to reconcile accounts monthly as required by orders of the chief justice and for taking court files and the court computer home during the investigation of his court accounts. The court also ordered that the former magistrate not apply for, seek, or accept any judicial position in the state without the prior written authorization of the court after due service on the Office of Disciplinary Counsel of any petition seeking the court’s authorization. The court noted that, because the magistrate no longer holds judicial office, a public reprimand was the most severe sanction it could impose. On or about February 5, 2007, the chief magistrate requested by e-mail that all magistrates bring their bank reconciliation paperwork for October, November, and December 2006 to the quarterly meeting to be held on or about February 8. The magistrate but brought only daily deposit paperwork to the meeting. The chief magistrate informed the magistrate that he could supply the original bank statements if the reconciliations would not print. That evening, the magistrate returned to his office to obtain the original bank statements. On February 9, the magistrate asked his secretary to print out monthly balance reports for the last quarter of 2006 and January 2007. For unrelated reasons, his secretary quit the same day. On or about Sunday, February 11, the magistrate requested a meeting with the chief magistrate to discuss his secretary and money. The chief magistrate met with the magistrate at the magistrate’s office at approximately 5:00 p.m. The magistrate had a bank bag containing checks and a bag of mail that had not been filed. During the meeting, the chief magistrate discovered no deposits had been made by the magistrate for January 2007. The magistrate informed the chief magistrate that his secretary had quit and that he believed she had taken cash because there was none in the bank bag with the checks and no money had been deposited in the bank during January 2007. The chief magistrate asked the magistrate if he had been conducting the reconciliations required by the chief justice’s orders. The magistrate stated he had been doing so every month and that he had initialed the bank statements to so indicate. Later, however, an unopened bank statement from August 2006 was discovered in the bag of mail. When the chief magistrate inquired how the magistrate could have been conducting monthly reconciliations if the August 2006 bank statement had not been opened, the magistrate opined that he must have received a copy from the bank and reiterated that he had reconciled and initialed every bank statement through December 2006. Investigators went to the magistrate’s office on or about February 12. When they arrived, the magistrate was attempting to reconstruct his monthly reports. He told the investigators that his secretary quit after he asked her to provide the monthly report for

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January 2007 and insinuated that the secretary was involved in the theft of cash from the January 2007 receipts. The investigators contacted the secretary, and she came to the office. The secretary reported that the magistrate did not ask her for the January 2007 monthly statement and stated she quit because the magistrate had criticized her for providing bond hearing procedures to the chief magistrate. The secretary acknowledged that deposits in January had not been made because she had not had time and said the alleged missing cash was in the filing cabinet in the magistrate’s office. The investigators retrieved $1,995 in an envelope from the filing cabinet in the magistrate’s office, which was more than the $1,706.61 in cash that daily deposit listings showed had been received to date in 2007. In his written statement, the magistrate claimed he had not put the money in the filing cabinet and did not know it was there. The secretary, who was present when the money was retrieved, stated it was not in the same envelope she had left it in and that the cash and checks received in January had been left in the same envelope when she resigned. The magistrate later acknowledged to investigators that he had not made the required monthly reconciliations at any time during the 4 years he had been a magistrate. On or about February 14, 2007, the court placed the magistrate on interim suspension. In the order of suspension, the magistrate was directed to deliver all books, records, funds, property, and documents relating to his office to the chief magistrate. Contrary to the order, the magistrate removed court case files from his office. On or about February 21, the chief magistrate required the magistrate to return the court files to her. The magistrate did not promptly return the files. Soon thereafter, the chief magistrate went to the magistrate’s office and discovered that the court-issued computer was also missing. The chief magistrate and an Office of Disciplinary Counsel investigator contacted the magistrate and requested that he return the computer and all other court-related items to her at the magistrate’s office. Thereafter, the magistrate met chief magistrate at the magistrate’s office and returned the computer. On or about Monday, February 26, the magistrate returned the court files to the chief magistrate.

In the Matter of Harrelson, 657 S.E.2d 754 (South Carolina 2008) Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge who engaged in a consensual sexual relationship with a member of the court staff. From approximately August 2006 until January 2007, the judge engaged in a consensual sexual relationship with an administrative assistant employed with the county central traffic court. The judge was unmarried; the administrative assistant was married and residing with her husband. All of their sexual encounters took place outside of work hours and away from work locations. On occasion, the judge provided the administrative assistant with gifts and financial assistance. The judge had no hiring, firing, or disciplinary authority over central traffic court employees. Although the administrative assistant was not regularly assigned to work with the judge, administrative assistants are randomly assigned to work in the courtroom with judges during traffic court sessions, and, during those sessions, there was a supervisory relationship between the judge and the administrative assistant. When confronted by her husband in January 2007, the administrative assistant admitted the affair with the judge. The husband reported the

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matter to the chief magistrate. The chief magistrate immediately took steps to re-assign the magistrate so that the administrative assistant would not work directly for him. The county government human resources department conducted an investigation but made no finding of sexual harassment. The magistrate admits that, on 2 occasions approximately 5 years ago, he engaged in sexual encounters with a different central traffic court employee while that employee was separated from her husband. That employee no longer works in central traffic court.

In the Matter of Koulpasis, 657 S.E.2d 759 (South Carolina 2008) Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge who had plead guilty to breach of trust for converting money from her former law firm to her own use. The court also ordered that the former judge not apply for, seek, or accept any judicial position in the state without the prior written authorization of the court after service on the Office of Disciplinary Counsel of any petition seeking the court’s authorization. The court noted that, because the judge no longer holds judicial office, a public reprimand was the most severe sanction it could impose. On or about July 5, 2006, the judge was charged with 1 count of breach of trust. The arrest warrant alleged the judge converted to her own use $17,594.60 from the law firm at which she had previously been employed as a lawyer. The judge resigned as a part-time municipal court judge. She entered a guilty plea to 1 count of breach of trust under $5,000 and received a sentence of 2 years imprisonment suspended upon payment of court costs. The former judge warrants that restitution has been made to her former law firm and/or former senior partner in a mutually agreeable amount.

In the Matter of Evans, 658 S.E.2d 78 (South Carolina 2008) Based on an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former master-in-equity for using official master-in-equity funds to make loan or advances to friends. The court also ordered that the former masterin-equity not apply for, seek, or accept any judicial position in the state without the prior written authorization of the court after due service on the Office of Disciplinary Counsel of any petition seeking the court’s authorization. The court noted that, because the master-in-equity no longer holds judicial office, a public reprimand was the most severe sanction it could impose. On or about January 14, 2000, the judge issued a check to himself from his master-in-equity account for $10,000. The check was used with other funds to purchase a cashier’s check for $25,000, payable to Peterbilt of Mississippi, on behalf of the judge’s friend. On or about February 8, 2000, the friend wrote a check for $10,000 to the judge. On or about the same day, the judge deposited the check into his attorney escrow IOLTA account and wrote a check from the account for $10,000 to another individual. The judge represents that, shortly thereafter, he returned the $10,000 from his escrow account to his master-in-equity account. The Office of Disciplinary Counsel has verified a deposit in that amount into the judge’s master-in-equity account but cannot confirm or dispute the judge’s assertion that the $10,000 came from legal fees in his escrow account.

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On or about September 1998, the judge loaned $4,000 from his official master-inequity account to another individual. When the individual repaid the funds with interest, the judge returned them to the master-in-equity account. Later, the judge made a second loan of approximately $3,500 from the master-in-equity account to the same individual. The funds for the second loan were repaid with interest. In or about January 2002, an “advance” of $3,000 was made to the same individual. The judge acknowledges that approximately $3,000 plus interest is still outstanding and owed to the master-in-equity account.

Petition for Review from an Order of the Judicial Council of the U.S. Court of Appeals for the 9th Circuit (Real) (U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders January 14, 2008) (www.ce9.uscourts.gov/misconduct/orders/committee_memorandum_89020.pdf) Rejecting petitions for review filed by the judge and the complainant, the U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders upheld an order of the Judicial Council for the U.S. Court of Appeals for the 9th Circuit publicly reprimanding a judge for making misleading statements to the Judicial Council in a 2003 letter and to the special committee during its investigation and withdrawing a bankruptcy reference and ordering a stay of judgment based on ex parte contacts. In 2006, the Committee had held that it did not have jurisdiction to review an order of the 9th Circuit Judicial Council affirming the Chief Judge’s dismissal of a complaint against the judge because the Chief Judge had not appointed a special committee to investigate the complaint. In 2005, the complainant filed a new complaint alleging that the judge was disingenuous and misleading in his responses regarding the earlier complaint. Based on a special committee’s findings and recommendations, the Judicial Council found that the judge had made misleading statements to the Judicial Council in a 2003 letter and to the statements to the special committee during its investigation and had committed misconduct by withdrawing the bankruptcy reference and ordering a stay of judgment based on an ex parte contact. In his petition for review, the judge argued that the 2005 complaint was effectively an “appeal” of the earlier complaint and was thus barred; that Judge Kozinski should have been recused by the Judicial Council because of his bias against Judge Real; that the findings of the special committee, as adopted in the Judicial Council’s order, were overstated and unsupported by the evidence; and that a public reprimand was too harsh a punishment in light of the humiliation the judge had already suffered as a result of the investigation. The complainant’s petition for review argued that a public reprimand was an inadequate sanction. The judge argued that the 2005 complaint “encompasses the identical factual allegations that were raised in the [2003 Complaint],” suggesting that the 2005 complaint constitutes an “appeal” for “review” of the dismissal of the 2003 complaint, which is barred a section of the Judicial Conduct and Disability Act that provides the “denial of a petition for review of the chief judge’s order shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise.” The Committee found that the 2005 complaint was not an appeal of the earlier dismissal because it had new factual allegations. However, noting that the Judicial Council’s order had concluded that the

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judge had engaged in some of the misconduct alleged in the original 2003 complaint, the court stated the “overlap raises the question of whether reconsideration of these issues triggers a claim preclusion principle analogous to res judicata requiring dismissal of the present proceeding.” The Committee stated that the doctrine of claim preclusion serves 3 basic purposes: the need for finality in the settlement of disputes; the need to conserve judicial resources by avoiding duplicative proceedings; and the prevention of harassment. The Committee concluded that “these purposes are not served by an application of the doctrine in the present matter.” Noting that the need for finality arises from the nature of an adversary system and the negative consequences of allowing a dispute to continue after a decision has been rendered in an initial, full adjudication, the Committee found that misconduct proceedings are inquisitorial and administrative, rather than adversarial, because the Judicial Conduct and Disability Act creates “a self-regulatory system in recognition of the need to maintain judicial independence, as opposed to a system in which misconduct complaints are adjudicated by an external tribunal.” The Committee stated: Under this self-regulatory regime, the responsibility of chief judges, special committees, judicial councils, and the Judicial Conference, must be to vindicate the process rather than adjudicate the rights of parties. Moreover, there cannot be public confidence in a self-regulatory misconduct procedure that, after the discovery of new evidence or a failure to investigate properly or completely serious allegations of misconduct, allows misconduct to go unremedied in the name of preserving the “finality” of an earlier, perhaps misfired, proceeding. Therefore, any argument that the instant proceeding is barred because it is duplicative of the prior one is unpersuasive, particularly because no special committee investigation was undertaken in the earlier proceedings. We now have what the previous proceeding lacked -- a defined record and factual findings based on that record. We thus conclude that neither the letter nor the intent of the Judicial Conduct and Disability Act prevents us from rendering a decision on the merits based upon that record and those findings because of considerations of finality. The Committee also concluded that “concerns about wasting judicial resources on duplicative proceedings are not weighty in these circumstances,” adding “misuse of the misconduct procedure can be easily prevented” and, therefore, there is “no danger of opening the floodgates to duplicative misconduct proceedings by allowing the present proceeding to continue.” The Committee noted that, although the risk of harassment is a serious concern in the context of judicial misconduct complaints, it was not in this case because “no full proceeding by a special committee occurred in the first instance, and some new allegations of cognizable misconduct, supported by new evidence, are presented.” When there is a reason for continuing or reinstating a proceeding that is legitimate and not intended to harass or punish, the nature of the administrative, selfregulatory process requires that the new proceeding be completed. This is

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particularly important where, as here, credible evidence is presented that the subject judge hindered the original proceeding. The Committee also rejected the judge’s argument that Judge Kozinski should have been recused, stating that the judge had presented no evidence of an actual bias or the appearance of bias and adding that the fact that Judge Kozinski had concluded in the earlier proceeding that the judge had entered orders in the bankruptcy case based on ex parte contacts with the debtor, “in no way constitutes recusable bias.” The court stated it could not conclude that the special committee’s factual findings and interpretation of the evidence as adopted by the Judicial Council were clearly erroneous. First, the district judge’s versions of relevant events have been incomplete and involved serious, material variations. Second, there is overwhelming evidence that the judge’s withdrawal of the reference of the bankruptcy proceeding and stay of a state court proceeding was based on a contact with the debtor, who was a probationer in a separate criminal matter before the judge, and occurred without any notice to other parties to the bankruptcy proceeding. This was judicial action based on an improper ex parte contact, whether or not a probation officer witnessed the contact. The Committee stated that the judge’s misconduct was arbitrary and caused significant harm to the bankruptcy litigants and his “response to well-founded concerns over judicial actions based on improper ex parte contact has been a persistent denial of any impropriety.” Rejecting the judge’s claim that he has been punished enough, the Committee stated that “the lack of any sanction would appear to ratify the judge’s view that no serious misconduct occurred.” The Committee also rejected the complainant’s argument that the gravity of the misconduct required a harsher sanction, noting “a public reprimand is within the discretion of the Council, was arrived at through a full consideration of the available alternatives, and should not be overturned.”

Petition for Review from an Order of the Judicial Council of the U.S. Court of Appeals for the 9th Circuit (Real) (U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders January 14, 2008) (www.ce9.uscourts.gov/misconduct/orders/committee_memorandum_89020.pdf) The U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders remanded to the Judicial Council for the U.S. Court of Appeals for the 9th Circuit a private reprimand of a judge for a pattern and practice of not providing reasons for his decisions when required to do so. The complainant had argued that the sanction of a private reprimand was insufficient. Noting that a complaint alleging only conduct “directly related to the merits of a decision or procedural ruling” does not allege misconduct within the meaning of the Act, the Committee remanded the private reprimand because “the type of misconduct alleged in the complaint may not be cognizable under the Act and, therefore, requires further

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examination by the Judicial Council” even though the judge had not petitioned for review and had not argued to the Committee the issues discussed. The failure of a judge to give reasons for a decision is, in our view, a merits issue regarding that decision. The merits of a decision and the reasons given or not given for it are often inseparable. For example, litigants seeking to overturn a decision often argue that the decision violates existing law because inadequate reasons have been given. If an appellate court finds that claim to be correct, the decision will generally be vacated and the case remanded for further proceedings that may result in a different outcome. However, it is often the case that even when a statement of reasons is generally required, the reasons for a particular decision are entirely obvious on the record and would not benefit from an explicit recitation by the judge. Given this context, the giving or not giving of reasons for a particular decision, like the reasons themselves, should not be the subject of a misconduct proceeding. We have concluded that misconduct complaints regarding the failure to give adequate reasons for a particular decision are, absent more, not cognizable under the Act. The Committee did agree “that a judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct” but only if there is “clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.” We have concluded that this standard is necessary to ensure that misconduct proceedings do not intrude upon judicial independence by becoming a method of second-guessing judicial decisions. For example, every experienced judge knows of cases where the circumstances justifiably called for a decision that was superficially at odds with precedent. This is because although prevailing legal standards have large areas of clarity, litigation often involves the borders of those areas. Breathing room -- something more than a comparison of a judge’s ruling with a special committee’s or judicial council’s view of prevailing legal standards -- must therefore be afforded. This standard, requiring clear and convincing evidence of an arbitrary and intentional departure from, or willful indifference to prevailing law, provides that breathing room. Because the Judicial Council made no express finding of willfulness, the Committee concluded that the matter must be returned to the Judicial Council “for further consideration of the facts of this case under the above-articulated standard.” Great care must be taken in finding clear and convincing evidence of willfulness. To the extent that such a finding is based simply on a large number of cases in which reasons were not given when seemingly required by prevailing law, the conduct must be virtually habitual to support the required finding. However, if the judge has failed to give reasons in particular cases after an appellate remand

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directing that such reasons be given, a substantial number of such cases may well be sufficient to support such a finding. The Committee also noted it was concerned with the sanction imposed, noting that it just affirmed a decision by the Judicial Council publicly sanctioning the judge and that the judge “had persistently denied an impropriety in the face of overwhelming evidence of an ex parte contact.” Noting that “history to be relevant to the determination of an appropriate sanction,” the Committee stated: The conduct alleged here, if found willful, is very serious indeed. A private reprimand for such conduct in the wake of a previous public remand for other misconduct is not a sanction commensurate with the totality of recent misconduct by this judge. Therefore, if the Council finds willfulness, it should consider a more severe sanction, such as a public censure or reprimand and an order that no further cases be assigned to the judge for a particular period of time. Public Reprimand of Real (U.S. Court of Appeals for the 9th Circuit January 17, 2008) (www.ce9.uscourts.gov/misconduct/orders/real_reprimand_letter.pdf) After the U.S. Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders rejected petitions for review filed by the judge and the complainant, the chief judge of the 9th Circuit, based on the report of a special committee, publicly reprimanded a judge for making misleading statements in a 2003 judicial conduct investigation and withdrawing a bankruptcy reference based on ex parte communications. The judge had withdrawn a bankruptcy reference related to Deborah Canter, a woman he had placed on probation after she pleaded guilty to loan fraud and making false statements, and stayed state court proceedings to evict Canter from her home for non-payment of rent to her ex-husband’s family. In a statement to the Judicial Council, the judge explained that he had withdrawn the reference of the Canter bankruptcy court and issued the stay order because: I felt it was related to my program of working with probationers to help their rehabilitation. I have been doing this for more than 25 years and have been told by the Probation Officer that it is a successful program. In this case a person who was a probationer in a criminal case informed me that the home in which she and her husband were living at the time of their divorce had been given to them by her husband’s parents. She was still living in the house with her eight year old daughter and was in divorce proceedings. She was contesting her right to occupancy in the divorce court and I felt it should be finalized there so I reimposed the stay to allow the state matrimonial court to deal with her claim. From her explanation of the proceedings in the state court it appeared to me that her counsel had abandoned her interest so that it could not be adequately presented to the state court. Counsel for her husband had asked the Probation Officer to release Ms. Cantor’s [sic] probation report so it would be used in the divorce proceedings. I denied that request upon the recommendation of the Probation Officer.

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At the hearing before the special committee, the judge acknowledge that much of the 2003 submission was inaccurate. For example, he had no information that the ownership of the house was a disputed issue until well after he withdrew the bankruptcy reference and issued the stay order, there were no proceedings in the state courts evidencing that her counsel had abandoned her interest, Canter was not contesting her right to occupancy in the divorce court although she was claiming an ownership interest in the house, and the probation officer did not convey to the judge a request from the husband’s counsel that Canter’s pre-sentence report be released. The special committee rejected the judge’s argument that the submission was inaccurate because he wrote it in anger and haste. First, if Judge Real had needed more time to respond to the Judicial Council’s request, he easily could have asked for it. Second, being angry at the complainant does not excuse asserting as fact that which is untrue. Third, the omission of any mention of the misuse of the pre-sentence report cannot be explained by not having access to the bankruptcy file. While it is true that Judge Real did not have possession of that file, he did have the criminal file and, indeed, the 2003 submission refers to his having reviewed that file. The special committee also found that the judge’s testimony at the hearing on the issue of his motivation was inaccurate and misleading. The judge testified that he denied the motion because of his lingering concern about the effects of the misuse of the presentence report and that he thought the debtor should be permitted to live in the house pending resolution of ownership in the divorce court. The special committee found that the judge took the judicial actions he took to assist 1 party in the bankruptcy litigation, the debtor, for whom he had both sympathy and concern by virtue of her being a probationer in his court, to the substantial detriment of the opposing parties in that litigation. The special committee also found the judge’s explanation was not credible because he had held a hearing to look into the misuse of the pre-sentence report in 2000 so that could not have been the reason he refused to lift the stay order a year and a half later. The special committee found that “constitutional due process considerations, the canon prohibiting ex parte contacts, and the recusal statute all obligated Judge Real to refrain from making decisions with respect to the Canter bankruptcy case based on information that he received ex parte from Ms. Canter as his probationer in the criminal case.” With respect to this finding, the Committee does not pass judgment on Judge Real’s reason for withdrawing the reference, but rather on his taking judicial action affecting the rights of all parties to a proceeding based on information available to only one of the parties. Judge Real’s receipt of the information from Ms. Canter about her bankruptcy and his subsequent perusal of the bankruptcy docket were not improper and would have been misconduct had the matter ended there. However, when the district judge signed an order withdrawing the reference, he took a judicial action in the bankruptcy case based on a

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communication with the debtors to which the creditor was neither privy nor on notice.

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