Judicial Conduct Information Service April 2004

Moore v. Judicial Inquiry Commission (Alabama Supreme Court April 30, 2004)
         A special Supreme Court of Alabama affirmed the judgment of the Court of the Judiciary removing the Chief Justice of the Supreme Court from office for failing to comply with a federal court order that he remove a monument displaying the Ten Commandments from the rotunda of the State Judicial Building. (When the Chief Justice appealed and the other members of the court recused, a special court of seven members was chosen in a random drawing from a pool of retired justices and judges.) For a summary of the decision of the Court of the Judiciary, see the December 2003 judicial conduct information service.
        On August 1, 2001, Chief Justice Moore had a monument displaying the Ten Commandments and other historic and religious quotations installed in the rotunda of the State Judicial Building. The U.S. District Court of the Middle District of Alabama held that the monument violated the First Amendment (Glassroth v. Moore, 229 F. Supp. 2d 1290 (2002)), and on December 19, 2002, it entered a permanent injunction directing the Chief Justice to remove the monument. Glassroth v. Moore, 242 F. Supp. 2d 1067 (2002). After the 11th Circuit affirmed the judgment on July 1, 2003 (Glassroth v. Moore, 335 F.3d 1282 (11th Circuit 2003)), the district court entered a final judgment and enjoined the Chief Justice to remove the monument by no later than August 20, 2003. Glassroth v. Moore, 275 F. Supp. 2d 1347 (2003). The Chief Justice stated publicly that he would not remove the monument as directed by the district court, but on August 21, the eight associate justices of the court ordered that the monument be removed.
        The Chief Justice contended that the Judicial Inquiry Commission failed to prove and the Court of the Judiciary failed to consider whether the federal order requiring the removal of the monument was “lawful” and that “the ethical duties of his office require that he disobey unlawful orders.” The Chief Justice also argued that the judgment of the Court of the Judiciary had in effect created an “oath transfer rule” so “that an oath taken by a public official is no longer to a constitution but to a court’s opinion, even one contrary to the constitution.” Rejecting those arguments and agreeing with the Commission, the court noted that the Commission had not contended, and that the Court of the Judiciary had not held, that the federal order was correctly decided but that the correctness of a federal court’s ruling was not reviewable by the Court of the Judiciary. The court held that “only a superior federal court can review the merits of a ruling by a federal court. Chief Justice Moore exercised his right to obtain such a review in the federal system, and the federal appellate courts consistently upheld the order of the federal district court.” The court concluded “that there was before the Court of the Judiciary clear and convincing evidence that a federal injunction directed to Chief Justice Moore existed; that that injunction was a binding order of a court of competent jurisdiction; and that Chief Justice Moore intentionally and publicly defied the injunction.”
        The court also rejected the Chief Justice’s arguments that the Court of the Judiciary applied an unconstitutional “religious test” to remove him from office for publicly acknowledging God and that the Court of the Judiciary had, in effect, prohibited him from holding both his religious belief and his public office. The court noted that, contrary to the Chief Justice’s claim, the Commission did not contend that sanctions were sought because the Chief Justice was totally unrepentant “for his refusal to cease his acknowledgment of God” and that, contrary to the Chief Justice’s assertion, the Court of did not force him “to deny God by removing the monument because a federal judge told him so.” The court stated that two federal courts had “concluded that this case is not about a public official’s right to acknowledge God, as Chief Justice Moore contends. Rather, this case is about a public official who took an oath to uphold the Constitution of the United States and then refused to obey a valid order of a United States District Court holding that the placement of the monument in the Judicial Building violated the Establishment Clause of the First Amendment to the United States Constitution.” The court quoted with approval from the opinion of the 11th Circuit, affirming the order of the federal district court:

The clear implication of Chief Justice Moore’s argument is that no government official who heads one of the three branches of any state or of the federal government, and takes an oath of office to defend the Constitution, as all of them do, is subject to the order of any court, at least not of any federal court below the Supreme Court. In the regime he champions, each high government official can decide whether the Constitution requires or permits a federal court order and can act accordingly. That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era. Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case. What a different federal district court judge wrote forty years ago, in connection with the threat of another high state official to defy a federal court order, remains true today: “In the final analysis, the concept of law and order, the very essence of a republican form of government, embraces the notion that when the judicial process of a state or federal court, acting within the sphere of its competence, has been exhausted and has resulted in a final judgment, all persons affected thereby are obliged to obey it.” The rule of law does require that every person obey judicial orders when all available means of appealing them has been exhausted. . . . The rule of law will prevail.

        Rejecting the Chief Justice’s argument that the Court of the Judiciary denied his right to due process of law by refusing to hear his argument regarding the lawfulness of the order of the federal district court, the court agreed with the Commission that the Court of the Judiciary provided the Chief Justice with due process at every stage of the proceedings and that because the Court of the Judiciary has no jurisdiction to review the merits of a federal court order, he was not deprived of due process by its refusal to accept evidence and to hear arguments on the merits of the federal court order.
        Rejecting the Chief Justice’s argument that “[t]he very same rules wielded by the [Court of the Judiciary] to punish [him] for refusing to deny God were themselves predicated upon the Holy Scriptures and moral precepts of Almighty God,” the court stated that the Chief Justice had cited no authority creating an exception that would allow disobedience of a court order on the basis of religious beliefs and that there was no such exception to the application of the Canons of Judicial Ethics.
    Finally, the court held that the sanction of removal from office “was not plainly and palpably wrong, manifestly unjust, or without supporting evidence,” noting the evidence of the Chief Justice’s “violations of the Canons of Judicial Ethics was sufficiently strong and convincing that the Court of the Judiciary could hardly have done otherwise than to impose the penalty of removal from office.
 

In the Matter of Nelson, 86 P.3d 374 (Arizona 2004)
        The Arizona Supreme Court remanded a matter to the Commission on Judicial Conduct to calculate a new statement of costs. After the Commission had recommended that a judge be removed from office, the judge, electing not to file a petition to modify or reject the Commission’s recommendations, resigned from office, reserving the right to contest individual items of costs and fees that might be assessed against him. The Commission subsequently filed a statement of costs that included investigative costs and the costs of lodging the Commission members during the hearing. (Stating that because the judge had resigned, the only sanction left to us is censure, the court noted that it had in the past issued an opinion in a case in which a judge had resigned to provide guidance to other judges and to avoid future confusion, the court concluded “given the nature of Respondent’s misconduct, we find such an exercise to be unnecessary.” Although the court does not describe the charges against the judge, the Commission’s recommendation was based on findings that he had had an unprofessional and inappropriate relationship with a deputy county attorney who appeared before him and had pushed his wife during an argument and held her down.)
        The Commission recommended that the court assess of $5494.65 in costs for (1) investigative costs, which included mileage, lodging, and per diem for the executive director and disciplinary counsel to interview witnesses; (2) hearing costs, which included mileage reimbursement for witnesses; mileage, lodging, and per diem for the hearing panel members to travel to the hearing; and (3) court reporting transcription costs, including the deposition of a witness and the hearing transcript.
        The court rejected the former judge’s argument, relying on Harris v. Smartt, 68 P.3d 889 (Montana 2003), that the court lacked the authority to assess any costs against him. The court noted that, unlike the Montana constitution, the Arizona constitution expressly gives the court the power to promulgate rules for the Commission; held that the authority to retirement, censure, suspend, or remove a judge contained by implication the authority to impose lesser sanctions; and held that the assessment of costs is procedural, not substantive. The rules adopted by the court provides that when the Commission recommends formal sanctions, it also “may recommend the imposition of other measures consistent with these rules, including, but not limited to, the assessment of attorney fees and costs.” “Costs” is not defined.
        However, the court also rejected the Commission’s argument that the court’s authority to assess costs is not limited by civil costs statutes and that limiting the types of costs that could be access unnecessary because a judge would be able to file objections concerning the reasonableness of the proposed costs and whether any undue hardship would result from their imposition. Although agreeing that judicial disciplinary proceedings are neither civil nor criminal, the court stated that the type of costs that may be assessed should be known beforehand so a judge can reasonably anticipate what the cost of a defense to the Commission’s charges may involve and that permitting the potential imposition of all costs incurred by the Commission could be more punitive than protective of the public and the judiciary’s integrity.
        Noting that the term “costs” refers specifically to those items of expense incurred in litigation that a prevailing party is allowed by rule to tax against the losing party but do not include everything that a party spends to achieve victory, the court found that the civil costs statutes that define the term “costs” were useful guides in determining what costs may be assessed in judicial discipline proceedings.
        The court found that the Commission’s investigative costs were not recoverable because such costs would not be recoverable in a civil case. The court also found that, although mileage reimbursement for material witnesses was allowed, the Commission should not assess travel expenses for a witness who did not testify and that the Commission had to specify how it calculated the mileage. The court also found that a disciplinary hearing panel’s function is similar to that of a judge conducting a bench trial, and, therefore, costs for the mileage, lodging, and per diem for the hearing panel members to travel to and conduct the disciplinary hearing could not be considered analogous to recoverable jury fees. The court also found that the transcription costs for the deposition of a witness whose deposition was not admitted into evidence could be assessed because the deposition was taken in good faith. The court also found that the costs for the hearing transcript could be assessed, rejecting the former judge’s argument that it is an expense associated with preserving the record and the need was not readily apparent because he did not seek review of the Commission’s findings. The court noted that because the Commission only has the power to make recommendations to the court, the rules require the transcription of the hearing and concluded, “although Respondent did not file a petition to modify or reject the Commission’s recommendation, the transcript is still an essential element of a judicial disciplinary proceeding regardless of whether the respondent files a petition with this court or whether we exercise sua sponte review.

Reprimand of Bethel (Arizona Commission on Judicial Conduct April 8, 2004) (www.supreme.state.az.us/ethics/Press_Releases/ press.htm)
        The Arizona Commission on Judicial Conduct publicly reprimanded a judge for allowing herself to be assigned to cases involving members of her family. The Commission noted that the allegations could have led to formal charges but explained that the judge fully cooperated with the Commission and agreed to accept a public reprimand in lieu of formal proceedings. The Commission also noted that reprimands are normally confidential but disclosure is authorized if necessary to protect individuals, the public, or the administration of justice. The Commission stated the making the reprimand public in this case “should help resolve any concerns held by members of the local community.”
        The Commission stated that the judge was “operating under the mistaken belief that she could remain as the judge of record in cases involving family as long as she did not her the cases. As a result, her name appeared on the files of cases assigned to mediation or in the process of settlement.” In one case, the judge had signed a default judgment for her husband. The Commission stated that the code requires judges to disqualify themselves “in all cases involving close relatives, even in situations where a judge’s role may be essentially ministerial. The commission is concerned that if judges were allowed to sit on such cases, then litigants could reasonably conclude that family members might have an unfair advantage during settlement negotiations or in other judicial proceedings.”

In the Matter Concerning Tisher, Decision and Order Imposing Public Admonishment (California Commission on Judicial Performance April 8, 2004) (cjp.ca.gov/pubdisc.htm)
        The California Commission on Judicial Performance publicly admonished a judge for repeatedly making misleading statements to parties during a hearing about when an order had been entered.
        The couple in a custody dispute had divorced in Texas; the father had moved to New Jersey, and the mother had moved to California. Although the parties stipulated that California would retain jurisdiction over custody issues, in July 2002, the father asked the New Jersey court to assume jurisdiction over a custody dispute. The New Jersey court did assume jurisdiction, on August 30, 2002, but a New Jersey appellate court stayed the order assuming jurisdiction on September 5. After the stay went into effect, the New Jersey trial court judge communicated with the California commissioner handling the case, and the commissioner agreed to prepare an order declining California’s jurisdiction.
        On the afternoon of October 3, 2002, Judge Tisher received an e-mail message from the court commissioner indicating that the commissioner had forgotten to enter the order declining California’s jurisdiction as requested by the New Jersey trial court and that earlier that day, the father had removed one of the children from school in California and taken him back to New Jersey without notifying the mother or school officials. The police, Napa Child Abduction Unit, and FBI were contacted. The commissioner sent Judge Tisher a draft order, which the judge approved October 4. The order was then signed by the commissioner and dated and file-stamped September 30, 2002. A copy was transmitted by fax to New Jersey.
        Later on October 4, Judge Tisher presided over a hearing that had been set by counsel for the mother. During the hearing, the judge stated, “I also have the file in front of me, which indicates that there was an order filed by Commissioner Boyd on September 30th, 2002. I don ‘t know if you both have copies of that, but it is an order where she declined jurisdiction.” Later in the same hearing, Judge Tisher stated that she was not going to make any orders that day, and asked mother’s counsel what she would like to do. After the attorney began to reply, Judge Tisher interrupted and stated, I’m not going to make an order when one was made September 30th, the order having the child returned. It looks like the child was just taken to New Jersey. I’m not saying it’s right or wrong and I understand that your client would like to have the matter resolved one way or the other, but certainly I cannot do that on an ex parte.” When mother’s counsel asked that the matter be put on calendar for the following Monday, the judge responded, “One of my problems is that I have an order here in the court file from September 30th indicating that jurisdiction has been declined by the Superior Court of California, County of Napa. So I think this really goes back as to how you wish to proceed.”
        The Commission found that at the time that she presided at the October 4 hearing, the judge knew that the order declining jurisdiction had been signed and filed earlier that same morning, not on September 30, 2002, but that during the hearing, she made misleading statements repeatedly indicating to the parties that the order had been filed on September 30, 2002. The Commission concluded that “the making of these misleading statements was contrary to canon 2A of the Code of Judicial Conduct, which provides that judges should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

In the Matter of Robertson, 596 S.E.2d 2(Georgia 2004)
        Accepting the recommendation of the Judicial Qualifications Commission, the Georgia Supreme Court removed from office a judge who had, in his “Declaration of Candidacy and Affidavit,” falsely sworn that he had not been convicted of a felony involving moral turpitude or that he had his rights restored at the time he completed the candidate affidavit.
        On March 21, 1979, following a general court martial proceeding, the judge (then known as Charles Sexton) was convicted of larceny for wrongfully selling military property, specifically, an infrared guided missile tracker and a guided missile remote control test. The maximum permissible punishment that could have been imposed was dishonorable discharge, pay forfeiture, and 5-years of hard labor confinement. The judge was sentenced to salary forfeiture and reduction in rank. On April 21, 1980, the judge pled guilty before a Court of General Court Martial to a violation of possession of drugs. He was sentenced to pay forfeiture and given a bad conduct discharge. Following his discharge from the U.S. Army, the judge changed his name from Charles T. Sexton to Charles T. Robertson II.
        In qualifying to run for the office of magistrate, the judge submitted a “Declaration of Candidacy and Affidavit” in which he swore that he had never been convicted and sentenced in any court of competent jurisdiction for a felony involving moral turpitude or, if so convicted, that his civil rights had been restored.
        The court found that those sworn statements were false, rejecting the judge’s argument that his conduct does not require sanctions because the convictions under the Uniform Code of Military Justice were not contemplated by the state’s constitutional and statutory scheme governing eligibility to hold public office and agreeing with the Commission’s finding that his crimes constitute felonies. Acknowledging that there was no evidence that the judge acted in a manner that discredited the court while performing judicial duties, the court concluded:

The case for his removal is just as compelling as judges are required to avoid not just impropriety, but the appearance of impropriety in their activities in order to maintain “public confidence in and respect for the judiciary.” By taking the position that his military crimes were not in the nature of crimes that involved moral turpitude and in failing to disclose his actions or make an expression of contrition for them prior to being elected to the judiciary, and by his “steadfast unwillingness to accept moral accountability,” Judge Robertson’s continued presence on the bench erodes the public’s confidence in the judiciary and puts at risk the integrity of the judicial system of which he is a member.

The court found violations of Canon 1 and Canon 2

In re Mullins, Findings of Fact, Conclusions of Law, and Final Order (Kentucky Judicial Conduct Commission April 14, 2004)
        Based on stipulations, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for misrepresentations about his opponent during a judicial election campaign.
        During his campaign, the judge had run radio and television ads that claimed that his opponent had cheated county taxpayers by attending only three of 20 fiscal court meetings while employed as the administrative assistant for the county judge-executive even though there was no requirement that his opponent attend the meetings. The Commission found that the advertisements represented a clear misrepresentation of facts that was particularly egregious because the heading of the advertisement claimed that his opponent had cheated the taxpayers and the judge ran the ads four days prior to the election, “which effectively prevented his opponent from making any response or from getting any relief by filing a complaint with the Commission.”
        The judge also ran advertisements that claimed that his opponent failed to attend more than half of the scheduled committee meetings while a member of the State Senate even though Senate committee attendance records established that his opponent attended 78% of the committee meetings. The Commission found that the advertisements constituted a clear misrepresentation of facts.
        With respect to both misrepresentations, the judge argued that he had relied on claims made in advertisements by his opponent’s opponents in past non-judicial campaigns and that his opponent had not complained about the accuracy of those statements in the other campaigns. Rejecting that argument, the Commission found that “while this may be true, the responsibility for the accuracy and fairness of the campaign advertisements ultimately rests with Judge Mullins. Judge Mullins has a duty to ensure the accuracy of the claims he made about his opponent and he breached that duty.” The Commission also stated, “when a candidate misrepresents facts, the decision of the voters is undermined and the very foundation of our judicial system is compromised.”

In re Combs, Order of Public Reprimand (Kentucky Judicial Conduct Commission April 15, 2004)
        Following a judge’s resignation, the Kentucky Judicial Conduct Commission publicly reprimanded the judge just as a hearing was scheduled to begin on the numerous charges brought by the Commission. The Commission did not make findings regarding the charges but noted that if they had been proved, the Commission would have removed the judge from office. Noting that a public reprimand was the most severe sanction it could impose, the Commission stated, “in light of his resignation and in the interest of fiscal responsibility, it is not necessary that the Commission resolve each and every issue raised. It is sufficient to note that the issues were multiple and serious.” The Commission had charged that the judge was absent from scheduled court sessions on approximately 150 days from January 1999 through August 2003, had been chronically and excessively late (frequently for an hour or more), and frequently absented himself from the bench during court sessions leaving lawyers, litigants, witnesses, and jurors waiting in court for from a half an hour to five hours; processed numerous claims to the administrative office of the courts for payments to substitute court reporters for persons whose services were not actually needed and who did not perform court reporting services (the persons included his wife, an attorney who practiced before his court, two sheriff’s deputies, the daughter of a man employed by the judge to work in his mobile home business, and his cousin’s wife); used court employees to perform duties in a mobile home business the judge operates; requested a domestic relations commissioner serving under the judge’s appointment and possibly other attorneys to pay attorneys fees on the judge’s behalf; allowed a lawyer to conduct his private law practice from his judge’s suite and had him conduct reviews to prepare the judge in cases handled by other attorneys; was the guest on a pleasure trip to Las Vegas, with his wife, of an attorney who practices before him; barred a prosecutor from entering the judge’s office suite without legal cause or authority; failed to take measures to preserve the security and integrity of a room in the judge’s office used for preservation of confidential matters and evidence; disregarded procedures for random selection of a grand jury and directed that only those meeting his approval be placed on the grand jury; improperly fined a jury foreman $100 for contempt and kept the other 11 grand jurors for approximately an hour before releasing them after they complained about his refusal to remain for their report the day before; failed to assign trial dates, cancelled or continued trial dates for insubstantial reasons, failed to commence trials when parties and attorneys appeared as scheduled, and failed to decide matters under submission for inordinate periods; and improperly failed to hear arguments of counsel on some motions and directed them to present their positions to a member of his staff. In February, the judge had agreed to a suspension with pay pending resolution of the charges.

In re Hughes, 874 So. 2d 746 (Louisiana 2004)
        Accepting the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed from office a judge who had (1) to the detriment of her duties, abused her parole authority by releasing at least 900 adult detainees, many of whom had no connection to any juvenile court proceeding; (2) allowed individuals with extensive criminal backgrounds to frequent her courtroom, integrating them into the operation of her court, affording them access to the court’s computer system and to confidential juvenile records even though they were not employed by the court, and assigning a convicted felon to supervise children; (3) failed to administer her court in a competent manner including failing to assure that judgments were prepared in a timely manner; failing to observe regular hours; conducting “court by phone;” holding court without a court reporter present; and employing staff persons who either had criminal records or lacked qualifications; (4) repeatedly failing to file campaign finance disclosure reports within the statutory deadline during 15 campaigns for public office; (5) holding herself out as a notary public after her notarial commission had been suspended; and (6) failing to provide representation to several clients and refusing to account to them or return unearned fees.
        Pursuant to a court rule, the court also ordered the judge to refrain from qualifying as a candidate for judicial office for five years and until certified by the court as eligible. The court assessed costs of $20,293.12 against the judge and expressly reserved the right of the Attorney Disciplinary Board to institute proceedings against her “because of the seriousness and pervasiveness of the lawyer misconduct.”
        (1) The judge stipulated that, from January 2001 through December 2002, she ordered the parole of at least 900 adults. According to the judge, this practice consumed considerable time so she directed her staff to refer calls involving parole requests to her cell phone where she could listen to messages during breaks or after hours. Some of the individuals paroled were her former clients, including one whom the judge conceded she might have paroled as many as 30 times. The judge testified that some of the individuals paroled had ties to juvenile proceedings. As to others, she stated that she interpreted the statutes granting judges the authority to parole persons over whom they have “jurisdiction” to refer to “geographic” jurisdiction, not “trial” jurisdiction. She argued that of the 900 persons paroled, only 200 involved instances in which her authority was questionable and that her total numbers are only slightly in excess of those of another judge on the juvenile court (100 more). She insisted that neither she nor anyone else received anything of value in exchange for paroling someone.
        The court held that the judge abused her parole authority to the detriment of her duties. Noting that the judge had the authority to parole individuals arrested in New Orleans for municipal and traffic offenses, the court stated this parole power was expressly limited by statute to preclude “any elected officer” from paroling persons arrested for violations such as criminal battery and assault, criminal trespass, criminal damage to property, or disturbing the peace that occur at the arrestee’s residence or result from a domestic dispute. Noting judges “are unquestionably ‘elected officers,’” the court stated that the judge had released from jail, or at least set in motion the release, of 120 individuals who had been arrested for domestic violence violations, 61 who had been arrested for battery, 5 for assault, 5 for criminal damage to property (arising from a domestic dispute), 7 for criminal trespass (arising from a domestic dispute), and 10 for disturbing the peace (arising out of a domestic dispute). “More importantly,” the court stated, as the judge “herself conceded, these releases were inconvenient and consumed time more properly devoted to her duties on the juvenile court bench . . . . Judge Hughes sent a message to the community that she could be relied on to interject herself, and her office, in proceedings over which she had no jurisdiction and which had no connection to juvenile law.”
        When the judge received a call seeking parole of an individual being detained, Wayne Barley called the jail to determine whether the arrested individual was still being held and delivered the information to the judge who would call the sheriff’s office and order the individual’s release. The judge distributed his business card to those who needed to contact her. Barley, a convicted felon with an extensive criminal record, regularly frequented the judge’s section of court. The judge maintained that Barley performed personal services for her, such as cleaning up and running errands, for which he was usually paid in cash. He was not a court employee. Witnesses were unsure of his precise role but testified that he received phone calls and had unfettered access to the judge’s private chambers.
        Although disagreeing with the Commission’s finding that the judge allowed Barley to conduct a business from her section of court, the court concluded that the judge conveyed or allowed Barley to convey the impression that he was in a special position to influence her.
        (2) Between May 29, 2001, and September 13, 2002, the judge employed Milton Armstead as her administrative assistant to perform legal research. Armstead, who had worked for the judge in her law practice, had pleaded guilty to auto theft in 1964 and attempted simple burglary in 1973 and been convicted of armed robbery in 1975 and sentenced as a multiple offender. One of Armstead’s responsibilities was to supervise children who had pending charges but were not being detained or attending school and whom the judge had ordered to report to her court so that she might keep them busy and off the streets.
        In addition, the judge hired as a court reporter a woman who was incapable of typing judgments and agreed that she could pay Melvin Smith and Kim Martin to type the judgments. In 1990, Smith had pleaded guilty in federal court to distribution of crack cocaine and wilfully concealing a felony. In 1994, Martin had entered an Alford plea to two counts of obtaining drugs with a false prescription and had pleaded guilty to forgery in 2000. When typing judgments, both Martin and Smith, who were not court employees, were given access to the court’s computer system and records, including court reporter notes and dockets, as well as the court’s “blue files,” which contained confidential information regarding juveniles. They were also present when juveniles were there. The judge disassociated herself from Martin and Smith only after the other juvenile court judges expressed concern about Smith’s possible intimidation of police witnesses. The judge testified that she believed the ethical restriction against associating with convicted felons applied only to “partying with them” and “doing bad things with them” and that she embraces a presumption of rehabilitation. She stated that she believed that Martin was rehabilitated and felt, although Barley had a fairly extensive criminal record, that sufficient time had elapsed since his last conviction. She acknowledged Armstead’s prior record, but relied on the fact that the juvenile court had “cleared” him when he was employed as her administrative assistant.
        The court found that the judge “not only allowed individuals with extensive criminal backgrounds to frequent her courtroom, she integrated them into the operation of her court, affording them access to the court’s computer system and to confidential juvenile records.” The court stated the judge’s “association with criminals occurred while she performed her judicial duties and exposed her staff, the court’s staff, and the children who came before her to individuals of dubious character. By direct employment and other loosely defined arrangements. . . , Judge Hughes allowed four individuals with substantial criminal records access to the court’s telephone and computer systems, confidential files and other confidential information. She also condoned the interaction of these individuals with the children over whom she exercised jurisdiction -- those children most in need of guidance and direction.” Such conduct “’causes disrespect for the judiciary and falls below the standard the public has a right to expect.’”
        (3) The judge failed to ensure that over 250 judgments (similar to minute entries) were timely prepared. Of those outstanding judgments, 80 were more than four months old; some were over one year old. One reason for the backlog was the judge’s failure to secure the services of a competent court reporter. The judge explained that she did not consider a case to be under advisement if she had actually decided the matter and all that remained to be done was to prepare a judgment. As a result of the backlog, court files that should have been returned to the clerk’s office remained in the judge’s court where they were stored in 10 to 15 mail bins scattered throughout the courtroom and the judge’s offices. Difficulties in locating files created problems with docketing and the timely issuance of subpoenas. The court noted that the judge had a practice of setting cases on her docket frequently, further crowding her docket and requiring the repeated issuance of subpoenas. The civil sheriff expressed concern over the safety of the process servers who were being asked to serve subpoenas on persons angry that their presence was being repeatedly required.
        The docket sheets used in the judge’ section of court were often inaccurate, contained errors, omitted cases that should have appeared, and included others set in error. This created a problem for individuals who appeared in court pursuant to subpoenas only to discover that their cases had not been scheduled. Some cases had to be dismissed for failure to be brought to trial within a time limit.
Despite the backlog in the preparation of judgments, the judge listed no cases under advisement between January 2001 and December 2002 in the required reports to the Supreme Court Judicial Administrator’s Office.
        The court noted that the failure to prepare judgments in a timely manner jeopardized federal funding for any juvenile who was a candidate for foster care, delayed badly needed social or other services, created confusion, disarray, difficulty in locating records, problems in docketing, thwarted the timely issuance of subpoenas, and produced unnecessary delays, continuances, and in at least one instance, a dismissal.
        The judge kept erratic hours and repeatedly conducted court proceedings outside of the court’s established business hours. She often started late in the morning or after lunch, which created problems for the parties, the lawyers, the witnesses, the police officers, and those responsible for transporting juveniles who were required to report to court at 8:30 a.m. The judge also kept court in session after closing time, resulting in court staff having to work overtime generally without compensatory time or overtime pay. The judge’ frequent failure to observe court hours disrupted the entire juvenile court to such a degree that the other judges issued an en banc directive affirming the court’s regular business hours of 8:30 a.m. to 4:30 p.m. The day after the judge received and signed the directive, she convened court at 12:35 p.m. and continued to regularly begin court late, sometimes as late as 2:30 p.m. Assistant district attorneys attested to the difficulties the hours created, particularly with regard to securing and scheduling witnesses. The judge explained that she believed that “court is an all-day thing” and those who received subpoenas had to plan to spend the day.
        Noting that “some flexibility in the hours of a court’s operation may be warranted and even desirable,” the court concluded that the judge’s “practices negatively impacted many participants in the juvenile court process and severely inconvenienced witnesses.” The court noted that the decision by the other judges to notify her in writing of the regular business hours demonstrated the significance of the problem and “the fact that Judge Hughes started court at 12:35 p.m. the day following her receipt of the judges’ communication speaks volumes about her unwillingness and inability to cooperate with the needs of the court as a whole.”
        The judge continued entire court dockets without any reasonable basis and with little or no prior notice to staff, witnesses, court personnel, and others having business before the court. On such occasions, the judge commonly held “court by phone;” the judge would call in and speak with her case manager to direct the proceedings, primarily status hearings. Further, if the judge could not obtain the services of a court reporter, she would sometimes conduct court anyway, using a tape recorder. Finding these practices were “particularly questionable,” the court stated, “for staff members to ‘preside’ in the judge’s absence, even if the judge is available by phone, undoubtedly gives the appearance that someone other than the judge is the decision maker. Compounding matters further, the evidence demonstrates that when no court reporters were available, Judge Hughes conducted court proceedings without a court reporter present or without a trustworthy court reporting system, thereby conducting a court of record without any reliable record being assured . . . .”
        Finally, several witnesses criticized the abilities of the employees hired by the judge. For example, the case manager failed to compile statistics about delinquency cases, which jeopardized a juvenile court grant. Willis Glover, whose address matched the judge and who she described as her roommate, although she denied any romantic involvement, was hired as the compliance officer of the drug court after the judge “talked about it” with the director. Glover had previously worked as a bank clerk, knew how to fix cars, and “was apparently an electrician.”
        The judge told the Commission that she could return to her section of court and keep up with the necessary tasks and that she had already made great strides (including catching up with her backlog of judgments) prior to her interim disqualification. The judge reported that what she really wants to do “is to help the children, and I can’t help them if I’m not on the bench. I would like to be given that opportunity.” The judge also argued that her administrative shortcomings do not constitute judicial misconduct because there was no proof of any harm, such as reversals or actual loss of federal funds. Stating this argument presented “a very myopic view of the record and a very limited appreciation of the rules that direct judicial conduct,” the court noted cases were dismissed and witnesses lost because of the manner in which the judge ran her court. In addition, the court stated:

There was . . . extensive testimony respecting the extent to which her conduct reflected adversely on the public perception of the judicial system. . . . In observing irregular hours, failing to timely prepare judgments, canceling dockets with little or no notice, conducting court “by phone” and/or allowing her staff to “run the docket” in her absence, Judge Hughes’ conduct on the bench demonstrated a lack of regard and respect for victims, witnesses, and all who came before her seeking justice; indeed, for the judicial system itself.

        (4) Between March 1988, and October 2000, the judge was a candidate in 15 different elections for public office, 13 for judicial office. In those elections, the judge repeatedly failed to file the required campaign finance disclosure reports within the statutory deadline; some reports were filed a year late. By November 2, 2000, the judge owed the Board of Ethics $49,400 in fines and fees. In early 2001, when its efforts to collect the fines and fees proved fruitless, the Board instituted proceedings to have prior judgments against the judge made executory, and her wages as a judge were garnished in the amount of $1,363.80 a pay period to satisfy a $10,000 judgment. In separate proceedings, the judge and the Board entered into a settlement of the remaining unpaid fines in which the judge agreed to pay (pursuant to garnishment) $13,000 of the remaining $39,000 owed. The proceedings garnered extensive media coverage. The judge expressed remorse, but testified that she felt that having to pay $23,000 of her own funds was sufficient punishment.
        Rejecting the judge’s contention that there was little harm from her failure to file campaign finance reports in a timely manner because no financial activity had occurred, the court stated “insofar as assuring an informed electorate is concerned, filing a report of no campaign activity is just as important as disclosing contributions.” The court agreed with the Commission finding that “as a lawyer and later as a sitting judge, Judge Hughes should have been obeying the law instead of ignoring it because she regarded it as insignificant or burdensome.” The court also noted that the media attention brought the judiciary as a whole into disrepute.
        (5) In May 1994, the judge’s notarial commission was suspended for failure to comply with an order to provide an annual statement and to pay annual fees. Although the commission has never been reinstated, she continued to hold herself out as a notary public. The court found that the judge did not recognize that a notary’s signature is critical to the legal system and that a notarized document is accepted as proof that the person who purportedly signed a document did so, and that as a result, such document enjoys legal effect. The court also found that the judge’s argument that she performed notarial services pro bono completely missed the point.
        (6) (a) Donald Jones retained the judge to represent him in a criminal matter and paid her $2,500. After requesting the issuance of two subpoenas and appearing in magistrate court to secure a continuance of a motion seeking a handwriting sample from Jones, the judge failed to file any further pleadings or make any further appearances, failing to appear at Jones’ arraignment or when he pleaded guilty to a reduced charge of attempted theft. Co-defendant’s counsel represented Jones at the guilty plea although Jones considered it to be a conflict of interest. The court found that the judge completely and utterly failed to provide representation, forcing Jones to accept representation that he viewed as a conflict of interest, and refused to return unearned fees.
        (b) Troy Dews paid the judge $2,500 to represent his nephew in a charge pending in federal district court in Mississippi. The judge maintained that she investigated the case by talking to family members and that she went to Mississippi to visit the defendant, but did not end up going to the jail. She did not enroll as counsel, nor did she make any appearances on behalf of Dews’ nephew. Despite receiving timely notice, she did not appear at the arraignment nor did she request a continuance. Dews testified that it became quickly apparent that the judge was not going to appear on behalf of his nephew. As a result, he was forced to retain and pay new counsel. Thereafter, Dews demanded that she refund his retainer. The judge admitted that Dews requested a refund, but denied that she agreed to return his full $2,500 retainer, claiming that she had earned a portion of the fee and incurred expenses by making the trip to Mississippi. Ultimately, however, she admitted that she traveled to Jackson to attend a gospel concert and visit a friend and that she did not visit Dews’ nephew. The judge issued a check for a partial refund to Dews on her trust account. After spending approximately six weeks unsuccessfully attempting to obtain a full refund, Dews attempted to deposit the check, but it bounced; when he redeposited the check, it bounced again.
        At the hearing before the Commission, the judge conceded that she failed to provide Dews with an accounting and that she probably owes Dews some money. However, she stated that she has not repaid the money because the Commission has no arbitration or fee dispute resolution vehicle and paying the money back would not necessarily stop the disciplinary process. She further testify that she failed to comply with a Commission subpoena for her trust account records because the Commission could just subpoena the records directly from the bank. She explained that she failed to produce other documents requested by the Commission because a 1996 fire had destroyed many of her files. However, she was not retained by Dews until 1998. The court found her excuses “especially disturbing.”
        (c) Hilda Monroe retained Joshua Koch to represent her in a civil case after the judge, who was Monroe’s counsel of record in the case, refused to return her calls. Koch testified that he made numerous attempts to obtain Monroe’s files, which contained evidence critical to the case but that he was “ignored from the get-go by Ms. Hughes.” Koch was forced to issue a notice of records deposition and subpoena for the judge to appear in the courtroom of the presiding judge in the case. Despite personal service, the judge failed to appear. After the presiding judge called the judge’s office, the judge submitted an affidavit swearing that she had no file.
        The court found that the judge’ failure to cooperate with Koch was proved by clear and convincing evidence, and that her failure to maintain a file of original documents provided to her by her client placed the success of the case in jeopardy. The court also found misconduct in the judge’ admission that she ignored a subpoena to appear in another court, stating “the fact she ignored a subpoena [was] especially egregious, absolutely unacceptable, and totally intolerable.”
        (d) On December 13, 2000, the same day that the judge signed the oath of office for her position on the juvenile court, she was retained by Matthew Perez to represent his stepson, Dorian Ferguson, in a criminal case. Perez paid $500 to the judge as an initial retainer. Ferguson’s girlfriend (later wife) paid the judge an additional $200 toward a total fee of $1,500. On December 21, 2000, the judge appeared in court as counsel for Ferguson. The court set a motion hearing for January 18 and trial for January 22, 2001. Following this appearance, the judge performed no other legal services on behalf of Ferguson, abandoning her representation when she assumed office on January 3, 2001. Ferguson’s wife testified that the judge informed her on December 21 that she had been elected judge, but Ferguson’s wife did not understand that this meant the judge could not continue as Ferguson’s counsel. Ferguson testified that the judge told him she would arrange a plea bargain for him on the next court date, so he was surprised when she was not present for the scheduled motions hearing. He testified that when she failed to appear and he contacted her by phone, she told him that she had referred the matter to another law firm along with the balance of the retainer. Mrs. Ferguson testified that the judge also told her that another firm had agreed to take over the representation, that the monies they had previously paid would be “credited” by the other law firm, and that the total fee would remain at $1,500. Mrs. Ferguson further testified that when she contacted the other firm, the firm demanded a $3,500 lump sum payment. The firm denied receiving any funds from the judge and ultimately declined to represent Ferguson. The judge acknowledged that she did not refund any portion of the $700 fee, insisting that she had earned that fee by her one court appearance and by speaking with the assistant district attorney about a possible plea. She testified that she accepted the case so close to the date she was scheduled to assume the bench because she “had bills to pay,” and believed the other law firm would take over the case. She stated that she explained to the Fergusons that the fee would remain at $1,500 only if a plea agreement was arranged.
        Stating “such conduct is unconscionable and brings Louisiana attorneys and the judiciary into disrepute,” the court found that the judge accepted representation that she knew she could not complete without explaining to her client the ramifications of her election, made a single court appearance on her client’s behalf, and then abandoned her client completely, while refusing to refund any portion of the $700 fee she collected.
        (e) Thirteen days before she was to assume judicial office, the judge agreed to represent Lana Turner’s son in connection with a charge of second degree murder, without advising Turner that she had been elected to the bench, and received a $1,500 retainer. The judge secured the services of a private investigator and paid him $500 from the funds she had received from Turner. No other services were rendered on his behalf. When the judge assumed the bench, she abandoned her representation of Turner, but she did not advise the Turners that she had been elected judge, that she would no longer continue to represent Turner, or that she had arranged for another attorney to take over the representation. She did not secure the permission of the Turners for the other attorney to take over the case. When Ms. Turner discovered that the judge had assumed judicial office and would no longer represent her son, she demanded a refund, testifying that she would never have retained the judge had she known that she would be unable to represent her son. The judge failed to refund any portion of the fees. According to the judge, she agreed to accept the representation because she felt it would be advantageous to Turner to get an investigation started quickly. She testified that at the time she referred the case to the other attorney, she had performed all the work that she had agreed to do, and that she did not owe Turner a refund of any portion of her fee. In response to a subpoena for records pertaining to the Turner case, the judge claimed that a fire had destroyed her records, even though the fire allegedly occurred in 1996, some four years before she had been retained to represent Mr. Turner.
        The court found that the judge’s conduct in the Turner case was “one of the more egregious examples of lawyer misconduct” and “illustrative of the pattern of neglect that was established.”

The evidence clearly and convincingly establishes that as an attorney, Judge Hughes time and time again took money from people who could ill afford to pay it, did minimal or no work to earn it, and then refused to refund monies she clearly had not earned. Preying upon her clients’ lack of education and lack of sophistication in legal matters, Judge Hughes either ignored or cavalierly dismissed complaints that she had failed to perform the services for which she was retained, explaining that her work was all done behind the scenes and that her fees were all earned. However, she failed to produce any records that might substantiate her claims and failed to account to her clients for their hard-earned dollars.

The court did not discuss all of the lawyer charges against the judge because there were so many (15), many were being considered for a limited purpose, and many, if not most, involved the same allegations of failing to do any work on matters for which she was retained and failing to account to her clients to justify retaining the monies they paid or to refund those portions of the fees that were unearned. Limiting its discussion to what it felt to be the most representative examples of misconduct, the court found that the other charges were also proved by clear and convincing evidence and reviewed them in an unpublished appendix that will be a part of the official record.
        The court rejected the judge’s contention that the charges stemming from her acts as an attorney should not be the subject of a judicial discipline proceeding. The court stated that the judge’s failure to account to her former clients and/or return unearned fees continued after her assumption of judicial office and, therefore, was within the Commission’s jurisdiction and that the charges arising out of conduct that did not continue into her judicial tenure could be considered insofar as they establish a pattern. Finally, the court stated that the Commission has jurisdiction over the judge’s conduct while a candidate for judicial office.
        The court found that the judge refused to cooperate with the Commission’s discovery requests, repeatedly failing to respond to subpoenas ordering her to produce her case files, producing few or no files in response to orders compelling her compliance, and claiming that her files were destroyed in a fire even though the alleged fire occurred well before she even received many of the cases. The judge also claimed that she was prevented from responding to subpoenas and lawful orders for a variety of reasons, including inability to get to the post office before closing, lack of transportation to the post office, and adverse weather conditions (i.e., a flood). She complained that the discovery requests were burdensome and responding would have taken too much time away from her judicial duties although she failed to formally move to quash any subpoena. Because of her non-compliance, the Commission entered an order prohibiting her from introducing any exhibits or witness testimony (other than her own) at the Commission hearing. The court rejected the judge’s argument that the order prevented her from presenting a defense, causing substantial prejudice that required the court to dismiss the proceedings or remand the matter for receipt of additional evidence. Although noting “the Commission’s action in this instance appears to be extreme,” the court concluded “given the factual circumstances that prompted the Commission order in this case, we do not find that order to be arbitrary, unreasonable, or unjustified.” Moreover, the Commission order had reserved the judge’s right to proffer testimony to the court if the Commission made a recommendation of discipline but the judge attempted no such proffer and made no application to re-open the proceedings to take additional testimony. The court concluded that “her complaints with respect to the Commission order and the exclusion of witnesses and exhibits simply come too late.”
        The court rejected the judge’s challenge to the legality of the seizure of court records, noting that no privacy expectations attached to the records because they were public records (although subject to confidentiality as juvenile court records), in plain view, and housed in a place of public accommodation (the judge’s outer offices). The court also stated that even if the seizure was invalid, other credible testimony amply established by clear and convincing proof that the judge failed to issue a large number of judgments in a timely manner.
        The court held:

The judiciary of this state is not defined by the inappropriate acts of an infinitesimal few. The strength of our judiciary lies in the vast, overwhelming number of judges who diligently discharge the duties of the office. The strength of our judicial system lies in its intolerance of those who are unfaithful to the oath administered to all judges, unfaithful to the constitution, and unfaithful to the Code of Judicial Conduct which governs judicial behavior. While removal of a judge elected to office by the citizenry is a grave responsibility, and one we would prefer never to have to exercise, that preference must yield when conduct demonstrates, clearly and convincingly, that there has been a complete failure to discharge and perform the duties incumbent on one holding judicial office. Given the magnitude of the violations and probability of the recurrence of the violations, removal is appropriate.

Even though the judge might not have used her office for pecuniary gain, the court stated, her flagrant and persistent failure to observe regular and predictable court hours was abusive and insensitive to the persons who came before her and to the juvenile court as a whole, she had proved to be either unwilling or simply inept at performing her administrative judicial duties at a level that is acceptable to assure the proper handling of juvenile defendants, and her employment of staff who were either convicted felons or who lacked qualifications was “disrespectful to the electorate that chose her for this solemn office and is disrespectful to the office itself.” The court also found that “the ‘explanations’ offered by Judge Hughes to excuse her misconduct preposterous or false.”

The record in this case is replete with evidence of Judge Hughes’ complete and utter failure to respect and abide by the rule of law when it is not in her interest to do so. As a lawyer, she flagrantly ignored the Rules of Professional Conduct, in particular those that govern fee disputes. As a candidate, she repeatedly ignored the law requiring the timely submission of campaign finance disclosure reports, a fact that received extensive coverage in the media, tarnishing the image of the judiciary in the process. Finally, as a judge she ignored the lawful orders of the Commission in its investigatory process, hypocritically ignored a subpoena to appear in the court of a fellow member of the judiciary, and violated the reporting requirements imposed by this court. Reverberating throughout the record are examples that Yvonne Hughes disdains the rule of law.

Obedience to judicial decrees is critical to the proper functioning of our legal system. Essential to the system is the respect citizens have for the judges they have entrusted to issue decrees that impact their lives, their liberties, and their property. When a judge demonstrates a lack of respect for the rule of law, that sacred trust is violated and our entire system of justice is placed at risk. To command respect for the rule of law, a judge must demonstrate respect for the rule of law. The judge has demonstrated a blatant and incorrigible inability to conform to the rules imposed on any aspect of her career -- be it notary, attorney, candidate, or judge.

In this case, while each individual charge against Judge Hughes standing alone . . . might not warrant the extreme disciplinary measure of removal, the record, when viewed in its entirety, shows a persistent pattern of conduct that does not comport with the standards required by the Code of Judicial Conduct and the Louisiana Constitution.

Press Release (Trainor) (Massachusetts Commission on Judicial Conduct March 19, 2004)
    The Massachusetts Commission on Judicial Conduct publicly reprimanded (with some conditions) an appeals justice who operated a motor vehicle under the influence of alcohol in February 2003. The judge had successfully completed his continuance without a finding, and his criminal case had been dismissed. The Commission closed the complaint as informally adjusted. The judge agreed not to sit on any appeal involving a charge of operating under the influence until at least one year following the dismissal of his criminal case.

In re Chaparro (New Mexico Supreme Court March 14, 2003)
        Pursuant to a stipulation and plea agreement, the New Mexico Supreme Court publicly reprimanded a judge for (1) becoming embroiled in a controversy with court interpreters for the county magistrate court and failing to be patient, dignified, and courteous with interpreters, another judge, and the court clerk; and (2) having an ex parte communication with a magistrate about a pending writ case. The court also ordered the judge to take part in a mentorship program, to successfully complete the next “Ethics for Judges” program at the National Judicial College at her own expense, and to abide by all terms and conditions of the plea agreement and the code of judicial conduct.
        The judge became embroiled in a controversy with court interpreters for the county magistrate court. On occasions throughout the contract period, the judge failed to be patient, dignified, and courteous with interpreters, another judge, and the court clerk. On or about June 26, 2001, the judge issued a warrant for a court interpreter’s arrest on a criminal contempt charge, relating to a prior dispute over interpreting services. The interpreter was arrested the next morning while working at the courthouse, booked, and placed in a holding cell. The district court later released the interpreter, quashed the arrest warrant, ordered that no further warrants issue, and further ordered that the interpreter was permitted to be present in the magistrate court building to carry out the terms of her contract. On or about December 4, 2001, the district attorney completed an investigation of the matter and declined to prosecute the interpreter on the contempt allegations. The matter was closed in January 11, 2002. On or about September 13, 2001, the judge had ex parte communication with magistrate Judge Ann Segal about presiding over the judges’ pending writ case. Judge Segal reported feeling threatened and intimidated and eventually recused from the case.

Republican Party of Minnesota v. White, 361 F.3d 1035 (8th Circuit 2004), vacated, rehearing en banc granted
        In a continuation of Republican Party of Minnesota v. White, the U.S. Court of Appeals for the 8th Circuit (1) held that the prohibition on judicial candidates personally soliciting campaign contributions is constitutional but (2) remanded to the district court the constitutional challenge to the code prohibitions designed to maintain the non-partisan nature of judicial election campaigns. When the U.S. Supreme Court granted certiorari in Republican Party of Minnesota v. White, it did so only for issues relating to the “announce clause” even though the petition had asked the Court to review the parts of the initial 8th Circuit decision upholding prohibitions on judicial candidates personally soliciting campaign contributions; attending and speaking at partisan political gatherings; identifying their membership in a political party; seeking, accepting, or using a political party endorsement; or authorizing or knowingly permitting others to do these things on the candidates’ behalf. Following the Supreme Court decision in 2002, the plaintiffs requested the 8th Circuit to reconsider those issues.
        The court rejected the defendants’ argument that it did not have jurisdiction over the issues as to which the plaintiffs did not seek certiorari (solicitation clause) or as to which the Supreme Court denied certiorari (partisan activity clauses), stating the question before it was whether the Supreme Court’s decision demonstrates that the law applied by it or the district court in deciding the partisan activity or solicitation issues was wrong.
        Noting that the Supreme Court had left open the possibility that open-mindedness in judicial candidates might be a compelling state interest, the court concluded that a decision premised upon such an interest had not been shown to be wrong. The court stated that in upholding the restrictions on partisan activity, its previous opinions had focused on impartiality in Justice Scalia’s third sense of the word: open-mindedness, not “in the sense of obstinacy or dogmatism, which are subjective states of mind, but rather on the objectively ascertainable threat to open-mindedness that results from having incurred obligations to entities who, while not actually parties to a case, have made known their desire to see certain cases decided in certain ways.” However, the court concluded that its under-inclusiveness analysis in the initial decision may be contrary to White because the Supreme Court had rejected its reliance on the history of Minnesota’s effort to extricate its judiciary from partisan pressures, initially by designating judicial elections as non-partisan, because its conclusion that the Minnesota Supreme Court was justified in regulating candidate speech concerning political parties, while leaving unregulated comparable speech concerning single issue groups depended in part on the existence of the announce clause; because the Supreme Court’s opinion had raised as an entirely different under-inclusiveness objection whether banning certain communications within one time-frame but not another is arbitrary. Therefore, the 8th Circuit remanded to the district court to receive new evidence and to determine whether the partisan activity clauses can survive strict scrutiny in light of the Supreme Court’s opinion.
        The 8th Circuit said its original decision with respect to the restriction on personal solicitation of campaign contributions was also “premised on the state’s interest in a kind of open-mindedness -- keeping candidates free from obligations that would hamper their ability to decide the law according to their own judgment, rather than in accordance with implicit obligations to their financial benefactors.” Therefore, the court concluded it had not need to revisit its consideration of the personal solicitation clause.
There was one dissent, arguing the court owed no deference to its earlier decision. With respect to partisan activities, the dissent argued:

Somehow (and I admit I do not see how) the court feels free to finesse this Supreme Court language to allow the partisan-activities clause to purport to protect judicial openmindedness even though the clause leaves appreciable damage (affiliation with and the support from other special-interest groups) unprohibited. The facts establish the probability of greater harm to judicial openmindedness from association with these other narrowly focused, politically active groups who have persistent interest in many of the cases an elected judge may be called upon to decide in the Minnesota courts.

With respect to personal solicitation, the dissent argued:

We should ask, for example, whether preventing a judge from sending his or her own fund-solicitation letter is necessary to preserve the judges “willing[ness] to consider views that oppose [existing] preconceptions, and remain open to persuasion, when the issues arise in a pending case,” the hallmarks of “openmindedness” according to Justice Scalia. This is especially true when Minnesota forbids the judge from learning of a solictee’s response or lack thereof. But, beyond this question, it is my view that the solicitation clause is unconstitutional for a more specific reason. The only way the solicitation clause survives strict scrutiny is if it is necessary and narrowly tailored to further the compelling state interest of judicial openmindedness. The Minnesota canon does not allow a judge to even sign a solicitation request. This is one aspect of a more complicated rule purportedly designed to protect the state’s interest. But this part of the restriction renders the law not narrowly tailored. Stated another way, in a state where a judge cannot learn of his donors, to keep the judge’s mind “open,” must the state prohibit the judge from even signing solicitation letters? Of course not.

In the Matter of Bauer, Determination (New York State Commission on Judicial Conduct March 30, 2004) (www.scjc.state.ny.us/ Determinations/2004_decisions.htm)
        The New York State Commission on Judicial Conduct determined that removal was the appropriate sanction for a judge who (1) in numerous cases over a two-year period, failed to advise defendants of the right to counsel and to take affirmative action to effectuate that right; set exorbitant, punitive bail for defendants without due consideration of the statutorily prescribed factors for pretrial release and even where incarceration was not an authorized sentence; and coerced guilty pleas from incarcerated, unrepresented defendants who faced continued incarceration because of the unreasonably high bail he had set; (2) imposed illegal sentences in four cases; and (3) on two occasions, convicted a defendant in the defendant’s absence and without a guilty plea.
        (1) Based on findings relating to over 35 cases, the Commission found that the judge engaged in a pattern of serious misconduct that repeatedly deprived defendants of their liberty without according them fundamental rights, noting that the transcripts depicted arraignments that bear scant resemblance to the procedures required by law. In some cases, the judge failed to take affirmative action to effectuate the defendant’s right to counsel as required by statute; in some cases, he set exorbitant bails; and in some; he coerced guilty pleas; many cases involved all three violations.
        For example, on May 12, 2000, the judge arraigned Kenneth Brooks, who was charged with bicycle with no lights, bicycle without warning device, and operating bicycle on sidewalk. The judge failed to advise the defendant of his right to counsel and assigned counsel and failed to take affirmative action to effectuate the defendant’s right to counsel as required by statute. The judge remanded the defendant to jail in lieu of $25,000 bail and set a return date for one week later, stating. On May 19, the defendant was returned to court from jail. There was no appearance by a prosecutor or defense counsel. The judge coerced the defendant’s guilty plea by telling the defendant that if he pled guilty at that time, the judge would impose a sentence of time served and a fine. Without the benefit of counsel, the defendant pled guilty and was sentenced. The judge said nothing about the right to counsel and assigned counsel before accepting the unrepresented defendant’s guilty plea.
        With respect to assigning counsel, the judge testified that once a defendant said that he or she is employed, he did not generally inquire further because he is “inclined to give people an appropriate opportunity to retain their own counsel, if they have an ability to do that;” he testified that if a defendant returns to court without an attorney and says that he or she has attempted to hire an attorney but the rates are too high, the judge will reconsider the issue of assigned counsel. He testified further: “[I]t doesn’t take much employment to retain one’s own attorney… as opposed to saddling the county with the expense of providing him or anybody else with an attorney” and that: “Everyone, virtually everyone, says they can’t afford an attorney and everyone has bills.”
        By statute, at arraignment, a judge is obliged to advise every defendant of the right to counsel and, except for traffic infractions, the right to have an attorney assigned by the court if he or she is “financially unable to obtain the same;” in addition, the judge must “take such affirmative action as is necessary to effectuate” those rights. The Commission found:

In case after case, the judge ignored the statutory requirements, often commencing by asking the defendant, “Are you getting a lawyer on these matters?” without advising the defendants their rights. In many cases, from the arraignment through a plea of guilty days or weeks later, there was no mention whatsoever of the right to counsel at each and every stage of the proceeding and often no reference to the possibility of assigned counsel. The judge effectively shifted the burden to defendants to inquire about assigned counsel, although often, even when defendants did so, the judge directed them to first make an effort to hire an attorney prior to the next scheduled court appearance; in the meantime, the defendants were often remanded to jail for several days or up to one week. At the hearing, the judge testified that he is “inclined to give people an appropriate opportunity to retain their own counsel, if they have an ability to do that”; he added, “Everyone, virtually everyone, says they can’t afford an attorney…” and asserted that “it doesn’t take much employment to retain one’s own attorney…as opposed to saddling the county with the expense….” The judge’s conduct, and his explanation for his actions, show a profound misunderstanding of a fundamental principle of law that goes to the heart of a fair proceeding.

State law requires defendants charged with misdemeanors or violations to be released on recognizance or to have bail set, determined on the basis of statutory criteria, including the defendant’s character, employment, financial resources, ties to the community, criminal history, and record of appearing in court when required. The Commission stated that the “conclusion is inescapable that the judge abused the bail process by using bail in a coercive, punitive manner. Repeatedly, after making no more than a perfunctory inquiry into the defendant’s personal circumstances, the judge set bail in amounts for violations and misdemeanors that were so exorbitant that they were tantamount to no bail, bore no reasonable relation to the statutory criteria and compel an inference that the judge’s purpose was an improper one. In many cases, defendants were unemployed or indigent, and thus their appearance in court could have been secured by a much lesser bail amount.”

While bail in such amounts for a relatively minor offense can be justified in some instances, the pattern of these exceptionally high amounts in cases that presented no extraordinary circumstances compels the conclusion that the judge did not set bail in accordance with the statutory guidelines, to insure that the defendants would return to court, but that his purpose was punitive: he wanted to insure that these defendants spent time in jail. This is particularly so given the totality of this record, suggesting that the bail determinations were part of a punitive, biased pattern.

The Commission emphasized that it did “not propose to substitute our judgment for that of an arraigning judge in the absence of persuasive evidence that the judge was motivated by bias, or acted with a punitive or other improper intent, or acted with reckless disregard for the basic, fundamental rights of litigants.” However, the Commission stated, “when defendants were remanded on exorbitant bail without being advised of the right to counsel or the possibility of having counsel assigned, the combination of those elements was coercive and punitive, creating a system of assembly-line justice that flourished in the judge’s court. While the record does not establish that the judge was motivated by bias against particular defendants or a class of defendants, the inexorable results of this coercive pattern seemed particularly harsh on defendants who could not an afford to hire an attorney to assert their rights.”
        (2) Four defendants were all charged with unlawful possession of a single marijuana “cigar” in a motor vehicle. In all four cases, without due consideration of the factors of pretrial release set forth by statute, the judge set unreasonably high bail of $20,000 and committed the defendants to jail in lieu of bail, notwithstanding that incarceration is not an authorized sentence for a first offense of unlawful possession of marijuana. The judge coerced guilty pleas, without giving the defendants the right to counsel, and sentenced the defendants to fines of $300 and/or ten days in jail or time served even though the maximum penalty for a first offense of unlawful possession of marijuana is a $100 fine and no incarceration and the judge had no information that would have permitted him to impose a different sentence.
        The Commission found that the judge knew or should have known that the sentences he imposed was in excess of the maximum sentence authorized by law. Stating “an experienced judge who presumably has handled many cases involving this charge should be fully cognizant of the authorized sentences,” the Commission concluded that “the illegal sentences by the judge were not merely an error of law, but part of a pattern of improper conduct that violated the rights of defendants.”
        (3) On April 7, 2000, the judge arraigned John Casey, who was charged with trespass, loitering, open container, and violation of an order of protection. The judge imposed unreasonably high bail and did not take any steps to effectuate the defendant’s statutory right to counsel. On the return date, April 14, 2000, the judge contacted the jail and directed that the defendant not be returned to court that day. At 8:30 a.m., with no appearance by the defendant, a prosecutor, or defense counsel, the judge stated on the record that Casey “is a plea and time served,” entered convictions for the defendant on the charges, and issued an order releasing the defendant from jail even though the defendant had not pled guilty and was never brought back before the court.
        On June 14, 2000, the judge arraigned John Casey on new charges. After noting the bench warrant based on the defendant’s failure to appear a week earlier, the judge asked the defendant, “Do you work or go to school?” and the defendant answered, “I work;” the judge made no other inquiry about the defendant’s financial or personal circumstances. The judge set bail of $500 and committed the defendant to jail in lieu of bail for five days. The judge said nothing about the right to counsel and assigned counsel and failed to take affirmative action to effectuate the defendant’s right to counsel as required by statute. On the return date, June 19, 2000, the judge contacted the jail and directed them not to bring the defendant back to court. The judge stated on the record, with no appearance by the defendant, a prosecutor, or defense counsel: “The matter of People against John Casey was a plea and time served on an open container matter.” The judge entered a conviction for the defendant even though the defendant had not appeared and had not pled guilty.
        The Commission found that the procedure the judge followed in the two cases involving Casey “-- admittedly concocted to avoid another court appearance by a defendant whom the judge described as a ‘semi-regular’ in his court -- was completely inappropriate in the absence of any documentation that the absent defendant had actually consented to the plea.”
        The Commission concluded:

The judge has demonstrated that he is apt to continue to violate the rights of unrepresented defendants. At no stage of this proceeding did the judge give any persuasive indication that he recognized the impropriety of his conduct. Even at the oral argument, after the referee had sustained most of the charges, the judge adhered to his position that on undisputed facts (i.e., his failure to advise defendants of their right to counsel and assigned counsel and his responsibility to effectuate the right to counsel), his conduct was appropriate. In responding to the Commission’s questions, he had the opportunity to demonstrate that he understood the importance of strict adherence to the statutory mandates and recognized that his procedures were inadequate, but he appeared unwilling or unable to do so. The conclusion is inescapable that the judge’s future retention on the bench would continue to place the rights of defendants in serious jeopardy.

One member of the Commission agreed with the majority’s conclusion that the bail set by the judge in most of the cases that were the subject of charges was excessive but dissented from the findings of misconduct that were grounded solely upon that fact, noting in numerous cases, the defendant had a parole hold, was on probation, or had a history of bench warrants, or some other factor was present that could be expected to move a bail amount to the higher end of the spectrum and that no evidence of racial or ethnic prejudice or bias was presented. The member concluded that the judge did not act “with bias or improper intent, but rather had a sincere, if misguided, belief that the bail amounts he set were appropriate and necessary to ensure the defendant’s return to court.” Noting that the judge did not demean or disparage defendants and there was no indication that he presumed their guilt or elicited incriminating admissions at arraignment, the member stated he believed the judge will “adjust his practices as guided by our determination,” and argued the judge should be censured, not removed.
        Also voting for censure, a second member stated he was not prepared to say that the judge did not acceptably consider the statutory factors in setting bail, concluding that the Commission went too far in finding misconduct in an area of discretionary decision-making. The same member agreed that the judge created an inherently coercive situation but stated that he could not find any evidence that the judge had the intent to coerce guilty pleas. The member dissented from the findings of misconduct related to failure to assign counsel in those cases in which the defendants specifically declined counsel, in which the judge asserts that he did assign counsel or made some effort to do so, and in cases for which there was no transcript. Finally, the member argued that the judge’s failure to acknowledge the impropriety of his conduct should not be a significant factor in determining an appropriate sanction.
In my view, a judge who sincerely believes he or she acted correctly should not be penalized for challenging the allegations against him and thus not admitting impropriety, or for not expressing remorse inconsistent with his or her defense. The judge’s defense of his bail decisions (although not of his clearly inappropriate procedures with respect to the right to counsel) raised legitimate legal and factual issues. The Commission should be careful not to send a message that discourages judges from offering a vigorous defense of their actions.
        A third member also argued that censure, rather than removal from office, was the appropriate sanction, noting that the judge treated defendants in a courteous manner, there was no persuasive evidence that the judge was vindictive, abusive, venal, or motivated by bias, and that the judge did not intentionally disregard the law

In the Matter of Pautz, Determination (New York Commission on Judicial Conduct March 30, 2004) (www.scjc.state.ny.us/ Determinations/2004_decisions.htm)
        Based on an agreed statement of facts and joint recommendation, the New York Commission on Judicial Conduct determined that admonition was the appropriate sanction for a judge who, for several weeks following the break-up of a personal relationship, engaged in a series of annoying acts toward the woman with whom he had had the relationship even though she had sent him a letter directing him to desist from further contact with her.
        Prior to September 2000, the judge had been involved in an intimate personal relationship with Darlene Fivie. From June 2000 through August 2000, the judge and Fivie had significant disagreements and unsuccessfully attempted, a number of times, to terminate the relationship. The relationship concluded, and on October 4, Fivie sent the judge a letter directing him to desist from all further contact with her. On October 10, in a letter, the judge castigated Fivie for ending their relationship and indicated that her statement in her letter that the judge would never again be a part of her life might be incorrect. On October 12, the judge followed Fivie during her workout at a fitness center by using equipment located adjacent to the equipment she was using and left a soda can for Fivie at her vehicle. On October 21 and October 28, at 5:29 a.m. and 12:45 a.m., respectively, the judge made “hang-up” calls to Fivie’s residence. On November 18, at approximately 2:30 a.m., the judge sat in his vehicle in the parking lot opposite an entrance of the restaurant where Fivie was employed and drove away quickly when Fivie approached him. On or about November 21, a charge of harassment, second degree, was filed against the judge based upon a criminal complaint filed by Fivie in connection with the November 18 incident. On or about January 9, 2001, the judge was granted an adjournment in contemplation of dismissal, and after the judge satisfied the conditions of the adjournment and had no further contact with Fivie, the harassment charge was dismissed in July 2001.

Disciplinary Counsel v. Kaup, 806 N.E.2d 513 (Ohio 2004)
        Based on stipulations of facts and exhibits, the Ohio Supreme Court suspended an attorney’s law license for six months, but stayed the suspension, for deliberately misleading voters by using a deceptive name for his judicial campaign committee and circulating advertisements that would lead voters to believe that an independent organization had concluded that he was the best-qualified candidate for judge. Two justices dissented and would have publicly reprimanded the attorney, as recommended by the hearing panel.
        In 2002, the attorney was a candidate in the Republican primary election for a newly created judgeship held on May 7, 2002. The attorney decided to name his campaign committee the “Neighborhood Protection Council for Gary Kaup.” The Neighborhood Protection Council was not a political action committee formed under Ohio or federal laws. The attorney agreed that the council was not a corporation, a partnership, or any entity other than simply his own campaign election committee. The attorney caused to be published and distributed various forms of campaign literature to support his candidacy that claimed that the “Neighborhood Protection Council” had endorsed and supported his candidacy. For example, one letter, referring to the attorney’s qualifications, contained the statement, in bold and underlined print, “That’s why the Neighborhood Protection Council is endorsing Gary Kaup for the new Common Pleas Judge position.” The letter also stated, “Our Council has looked over the Common Pleas Court candidates and only one has the Common Pleas Court experience, the community volunteering record, the mature understanding to know the importance of crime free neighborhoods to residents and their children.”
        The court concluded that the false, improper, and misleading nature of the attorney’s political advertisement was clear.

Since the purpose of a campaign committee is to receive campaign contributions and obtain endorsements, a campaign committee does not itself endorse a candidate. Yet respondent’s advertisements led the reader to believe that an independent entity named the “Neighborhood Protection Council” had endorsed respondent. No such entity existed. [Disciplinary Counsel] correctly notes that the concept that a voter should select a candidate because that candidate’s own campaign committee endorsed the candidate “is an insult to the intelligence of Ohio’s voters.” Respondent’s advertisements were designed to deceive the voters. . . . Respondent was required to run for election on his own qualifications and not on the purported endorsement of an independent entity that was in fact his own campaign committee.

As an aggravating factor, the court noted that the attorney expresses no regret for his actions and “insists he did nothing wrong.”

In the Matter of an Anonymous Former Probate Judge (South Carolina Supreme Court March 22, 2004)
        Pursuant to an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for charging fees to perform marriage ceremonies and retaining all or a portion of the fees for his personal use.
        Since the judge began serving as a probate judge in 1951, the judge and his staff routinely charged fees to perform marriage ceremonies, and the judge retained all or a portion of the fees for his personal use. He did not report the receipt of these fees on the annual reports he was required to file with state court administration nor did he report the additional compensation on his annual report filed with the state ethics commission.
        On October 10, 1994, the Advisory Committee on Standards of Judicial Conduct issued an advisory opinion stating that probate judges could collect fees for performing marriage ceremonies but only if the fees charged were authorized by their county’s governing body and if the fees collected were deposited into the county’s general fund and that a probate judge cannot accept or retain an honorarium for performing marriage ceremonies. The judge acknowledged that he received a copy of the advisory opinion in late 1994 or early 1995.
        On February 7, 1995, the judge entered into a contract with the county that authorized him to perform marriages, established a $10 fee to be charged by the court for issuance of a marriage license, and stated that “no less than monthly, [respondent] shall turn over the county’s portion of funds collected ... to the treasurer together with a report of activity covered by the payment.” The contract did not specifically authorize the judge to charge a fee for conducting marriage ceremonies or to retain a fee for the judge’s own use, except for the vague reference to “the county’s portion.” The judge and his staff continued to perform marriage ceremonies and collect, in addition to the fees due the county, a $10 fee for the performance of marriage ceremonies for residents of the county and $20 for non-residents. The fees were retained by the judge for his personal use even when ceremonies were performed by the judge’s staff.
In 1998, the court held a former probate judge in contempt for willfully violating an order instructing him to refrain from retaining for his personal use compensation for performing marriage ceremonies. In the Matter of Brown, 511 S.E.2d 351 (1998). On December 16, 1999, the advisory committee issued another opinion reiterating that a probate judge may collect a fee for performing marriage ceremonies if the fee is authorized by the county governing body and is deposited in the county general fund. The judge acknowledged receiving a copy, but he and his staff continued to collect fees for the performance of marriage ceremonies until Disciplinary Counsel served a notice of a full investigation on September 23, 2003.
        On October 14, 2003, the Chief Justice issued a memorandum to all judges stating that no judge can retain for personal compensation any fees collected for performing marriage ceremonies even if the fees are characterized as an honorarium or gift. The Chief Justice pointed out that the practice of retaining such fees had been declared a violation of the code of judicial conduct. The Chief Justice also stated that neither the governing body of a county nor a local act of the legislature can authorize a judge to personally retain compensation for performing marriages contrary to the code, and that the prohibition against a judge receiving compensation for performing marriage ceremonies applies to all judges regardless of when, where, or under what circumstances the marriage ceremony is performed, or in what capacity the judge takes the oath, whether as a judge or a notary public. The Chief Justice instructed any judge who had retained compensation for the performance of marriages while serving as a judge to promptly make a report to the Office of Disciplinary Counsel, initiate an audit to determine the amount of compensation retained, and repay that compensation to the county general fund.
        Based on an accounting, it was estimated that the judge and his staff collected, and the judge retained, approximately $51,380 from July 1998 (30 days after the opinion in Brown). The judge agreed that the fees should have been paid into his county’s general fund and that he was obligated to repay the funds, and he did remit the amount, representing that no refund, rebate, bonus or any other compensation based on the amount refunded was paid to him by the county. The judge agreed not to accept such a refund, bonus or forgiveness of the amount owed in the future, although it was agreed that the county could raise his salary in a fashion provided by law as long as no such raise was contingent on fees collected by the probate court.
        In another opinion issued in 2003, the advisory committee advised that while a county may take into consideration all of a probate judge’s duties, such as performing marriage ceremonies, when determining the judge’s salary, that salary must remain constant and may not be dependent on fees the probate judge collects for the performance of marriage ceremonies. The court concluded:

Statutory law and judicial standards are clear on the prohibition against probate judges being compensated for the performance of marriage ceremonies. Despite this fact, this Court and the Advisory Committee on Standards of Judicial Conduct continue to be faced with judges intent on flouting the law and governmental entities intent on devising schemes to circumvent the law. The fact that the Chief Justice was forced, due to the refusal of certain judges to comply with the opinions, to issue a “cease and desist” memorandum reiterating that the practice violates statutory law and the Code of Judicial Conduct, is a clear indication that this matter is not being taken seriously. The Chief Justice, in her memorandum, directed any judge who has retained compensation for the performance of marriages while serving as a judge in the South Carolina Unified Court System to promptly make a report of having done so to the Office of Disciplinary Counsel, initiate an audit to determine the amount of compensation retained, and repay that compensation to the general fund of their respective county. We take this opportunity to reiterate that directive. Judges who fail to promptly comply with this directive and who continue to exhibit a cavalier attitude toward the statutory law, the opinions of this Court, the opinions of the Advisory Committee on Judicial Standards and the provisions of the Code of Judicial Conduct regarding this subject will receive a harsher sanction than those who promptly comply.

In re Bartie, Opinion (Review Tribunal Appointed by the Texas Supreme Court April 16, 2004)
        Affirming the recommendation of the State Commission on Judicial Conduct, a Review Tribunal Appointed by the Texas Supreme Court removed a judge from office and prohibited him from holding judicial office in the future for repeatedly using extremely obscene language in his courtroom. Noting that the judge had resigned on December 19, 2003 to pursue “other political interests,” the court stated it would in the interest of justice and at the judge’s request address the Commission recommendation. The Commission had also found that the judge had failed to accord parties the right to a jury trial and to question them regarding their ability to pay fines prior to incarcerating them, failed to have a prosecutor present to prosecute several criminal cases, attempted to interfere with the arrest and magistration of his brother-in-law, and participated in or allowed the use of corporal punishment or the threat of corporal punishment in truancy matters. Finding that the “nature and frequency of the extremely obscene language employed by [the judge] are, standing alone, sufficient to warrant his removal from office and the prohibition from holding judicial office in the future, “the court stated that it would not address the judge’s challenges to the other allegations.
        The court omitted from its opinion the actual language used by the judge due to its offensive nature (although the Commission had included the language in its findings) but noted “that the record clearly shows Respondent, while sitting in his judicial capacity, used some of the most vulgar and offensive language imaginable.” The court rejected the judge’s argument that the Commission’s findings and conclusions were against the great weight and preponderance of the evidence, stating that the overwhelming evidence established that the judge repeatedly used extremely obscene language in his courtroom and citing the testimony of the judge’s chief clerk, deputy clerk, deputy constable, and a deputy sheriff.
        The court rejected the judge’s claim that the Commission had exceeded its authority and mission by soliciting testimony from certain witnesses and “reworked” witnesses’ affidavits. Two witnesses had acknowledged that the handwritten notes they had given the Commission’s investigator were not identical to the written affidavit typed by the investigator, which they had signed, but “emphatically testified their affidavits correctly reflected their statements, and that any differences between the two documents merely reflected attempts to correct spelling, grammar, repetition, and references to the statements that would not be admissible in court.
        The court concluded:

This Tribunal is mindful that the primary purpose of the Texas Code of Judicial Conduct is to protect the citizens of this State, not to punish or discipline judges. . . . This case illustrates that at times there is a dire need for the Commission to step in and protect the public. Through his use of abusive and obscene language, Respondent was able to intimidate juvenile litigants and their parents, criminal defendants, and civil litigants, a newspaper reporter, and even his staff. As Respondent’s court clerk stated, she knew “with this judge that we needed help, that Judge Bartie had gotten out of control. I hoped that the Judicial Conduct would come to my aid. I hoped that the Judicial Conduct would do what needs to be done.” The Judicial Conduct Commission has done what needed to be done, and we affirm their recommendation in all regards.

In re Chacon, Opinion (Review Tribunal Appointed by the Texas Supreme Court April 26, 2004)
        Affirming the recommendation of the State Commission on Judicial Conduct, a Review Tribunal Appointed by the Texas Supreme Court removed a non-lawyer justice court judge from office for incompetence in the law (as evidenced by her issuance of defective citations, failure to follow the law of contempt, and exercising jurisdiction in a case in which her court had no jurisdiction), attempting to use her status to influence the handling of a probationer’s status, and allowing her relationship with a county commissioner to influence her judgment regarding bail for his relative. The tribunal also barred the judge from holding state judicial office in the future.
        (1) In or around October 2000, Jose Francisco Gonzalez and Melissa Villegas executed a contract with Oscar Reyna in which Reyna agreed to build a house on a lot they owned. Upon completion of the house, the parties had a disagreement. Reyna filed a complaint for forcible entry and detainer in the judge’s court on or about May 15, 2001. Gonzalez was served with notice of the suit the next day, and the citation instructed him to appear in court on May 18 at 11:00 a.m. The citation was defective under the Texas rules of civil procedure because it did not give the defendant adequate notice of the hearing and did not inform him of the right to request a jury trial. The judge granted Reyna his requested relief, and Gonzalez’s appeal to the county court was unsuccessful.
        On July 2, 2001, the judge authorized the issuance of a writ of possession of the property in favor of Reyna. On July 10, at round 10:45 a.m., a county deputy sheriff executed the writ. Reyna and his employees helped remove the personal property of Gonzalez and Villegas from the house under the supervision of the deputy. Gonzalez and Villegas were not told where their personal property was being taken. A sheriff dispatcher received a call at about 2:05 p.m. from the judge advising him to instruct the deputy to arrest Gonzalez and Villegas for contempt of court arising from their interference with the deputy’s duties. None of the actions taken by Gonzalez and Villegas took place in the judge’s court or in her presence. Gonzalez was arrested and processed at the county jail on the charge of interfering with a peace officer’s duties, not for contempt of court. His booking card has an unexplained white-out alteration.
        While noting there was conflicting evidence, the tribunal found sufficient evidence to support the Commission’s conclusion that the judge’s “telephonic finding that Francisco Gonzalez was in contempt of court at the time of execution of the writ of possession, and Francisco’s subsequent incarceration, were contrary to the laws relating to contempt.”
        (2) In or around May 2001, Reyna filed several suits in the judge’s court alleging that the defendants had made wrongful accusations against him on a local television talk show. The citations the judge caused to be issued failed to comply with the Texas rules of civil procedure because they omitted the address of the plaintiff or his attorney and gave many of the defendants less than 10 days’ notice before their court appearances.
        (3) On May 30, 2000, Maria Hernandez filed a breach of contract action against Jesus Garza, alleging that Garza owed her $5,000. On June 14, 2000, the judge authorized the issuance of a citation for Garza, instructing him to appear before her at 2:30 p.m. the next day. The citation was served on Garza at 1:28 p.m. on June 15, 62 minutes before he was scheduled to appear in the judge’s court. The citation failed to comply with the Texas rules of civil procedure because the notice was inadequate and the address of the plaintiff or her attorney was omitted. At Garza’s request, the judge rescheduled the matter. At trial, the issue centered on disputed title to real property. The judge awarded possession of the real property to Hernandez.
        The tribunal agreed with the Commission that the dispute concerned ownership of real property, not the relationship between a landlord and a tenant, and, therefore, the judge had exercised jurisdiction in a matter in which she had none. Rejecting the judge’s argument that she dealt in good faith with what she perceived to be a confusing case that involved possession of, not title to the real property, the tribunal concluded it should have been clear to the judge that the plaintiff’s claim lay outside the realm of landlord/tenancy, noting there was no evidence to substantiate a landlord-tenant relationship and there was evidence that showed that defendant taxes paid on the property.
        The tribunal noted that the judge did not dispute that she issued defective citations but attempted to shift the blame to others, including her predecessor (who left her with no forms to use), her staff, the sheriff’s department (which is responsible for timely service of citations), and the software company (which produced the alleged faulty software used to produce citations). However, the tribunal noted, these arguments did not overcome her own admission that she is responsible for the training and monitoring of her staff, that her staff, and not the software, were responsible for calculating and inserting dates in the citations, and that the sheriff’s department cannot cure defective citations.
        (4) Reyna, who was on probation for felony theft, was scheduled to meet with his probation officer on December 9 ,1999. Sometime before the scheduled meeting, border patrol agents informed the probation officer that they intended to serve Reyna with paperwork regarding deportation proceedings. A few days before December 9, the judge telephoned the probation officer and asked whether there was an outstanding warrant for Reyna in connection with his felony theft probation. Apprized by the probation officer that there was none, the judge stated that Reyna would honor the appointment. During the December 9 meeting, border patrol agents served Reyna with an arrest warrant and took him into custody. On January 7, 2000, Reyna, his son, and the judge appeared in the probation officer’s office, and the judge asked the probation officer why Reyna had been arrested at the meeting, and the probation officer explained the circumstances. The judge had not been summoned to the probation officer’s office for any reason and conducted no official business during the visit.
        The tribunal found that the evidence supported the Commission’s conclusion that the judge had wrongfully attempted to use her status as a justice of the peace to favorably influence the handling of Reyna’s status as a felony probationer. The tribunal found that the evidence was sufficient to establish that the judge had a personal relationship with Reyna, noting that the judge had admitted having spoken to Reyna at a party, by telephone, and during a visit to Reyna’s office and having been contacted by Reyna’s son to intervene in Reyna’s probationary matter. The tribunal also found that the probation officer’s denial that the judge influenced the handling of Reyna’s status was irrelevant, noting the fact that the probation officer resisted the judge’s attempt to influence has nothing to do with the judge’s conduct.
        (5) In or around July 2001, Oscar Reyna, Jr., the son of Oscar Reyna, filed a complaint against Rebecca Ramirez for aggravated assault, allegedly committed at a nightclub. Based on the complaint, the judge issued a felony arrest warrant for Ramirez. About one month later, Ramirez was arrested. The judge magistrated Ramirez and set bond at $40,000. While Ramirez was in jail, someone contacted one of her relatives, Eddie Sandoval, who was a member of the county commissioners’ court. Sandoval phoned the judge and asked her to revisit the amount of Ramirez’s bond. The judge then approached Ramirez in jail and made the remark that Ramirez should have said that she was related to Sandoval. The judge then reduced the bail amount to $4,000. After about 30 hours in jail, Ramirez was released on personal recognizance. She was not prosecuted for aggravated assault.
        The tribunal concluded that sufficient evidence supported the Commission’s finding that the judge allowed her relationship with Sandoval to influence her judgment in reducing the bail amount that she had previously set for Ramirez. The tribunal rejected the judge’s argument that she had not indicated that her conversation with Sandoval had influenced her, stating Sandoval’s intent was irrelevant and the judge’s failure to admit to any such influence is of little import.
        Noting that it was faced with not just a single incident, but with many instances of judicial misconduct, the tribunal stated that the evidence supported the findings that the judge was incompetent in the performance of her judicial duties, had knowledge of her own incompetence, and remained incompetent despite her willful and persistent violations of the law. The tribunal also stated that by allowing a personal relationship to influence her judicial judgment, the judge had violated the trust of the people who placed her in office and that her conduct had resulted, among other things, in wrongful arrest and incarceration, denial of the right to trial by jury, and deprivation of a family’s home. The tribunal concluded, “If integrity is the very essence of the judicial vocation, Respondent’s conduct leads this Tribunal to conclude that she ought to seek a new and different vocation.”

Respondent’s conduct is particularly egregious in that her constituency, litigants in justice court, are the citizens most in need of a fair and competent judge. Given the limited jurisdiction of the justice court, litigants are unlikely to be able to afford legal counsel. They must depend on the judge to inform them of their rights and to protect those rights. Justice court is the gateway to American justice for many people. It is not too much to demand that a justice of the peace competently and fairly carry out the duties of the office to which the voters have elected her. The rule of law demands no less.

Because Respondent has repeatedly failed in her most basic obligation of protecting the most fundamental rights of those she was elected to serve, we find that the recommendations that Respondent be removed from office and prohibited from holding future office are appropriate and not excessive.

In a concurring opinion, one member of the tribunal argued that a review tribunal should apply de novo review, rather than the legal and factual sufficiency standard applied in this and previous cases, although he thought the de novo standards had been met in the case

In re Sperline, Stipulation, Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct March 11, 2004) (www.cjc.state.wa.us)
        Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge who in a letter to the attorneys in a case appeared to advocate for a party and in two cases contacted the court of appeals to defend rulings he made that had been reversed while the cases were potentially subject to reconsideration.
        On March 13, 2003, the court of appeals, in an unpublished opinion, reversed the judge’s order suppressing evidence in a criminal case. On March 17, while the matter was still pending in the court of appeals and subject to a motion for reconsideration, the judge wrote to the attorneys of record expressing his dissatisfaction with the appellate opinion because, he asserted, it “did not address the basis upon which the trial court’s suppression order was made.” A copy of the letter was filed in the trial court file. After suggesting that counsel could decide whether the concerns he raised “warrant[ed] a motion for reconsideration to the Court of Appeals,” the judge explained how the appellate opinion failed to address his rationale for the order.
        On August 10, 1999, the court of appeals, in an unpublished opinion, reversed and remanded the judge’s decision to impose an exceptional sentence on a defendant convicted of vehicular homicide. On August 18, in a letter to the judges who participated in the appellate opinion, the judge conveyed his disagreement, describing the opinion as “wrong, demeaning, and unsupported by law (especially the cases you purport to base it on), logic, common sense, morality or public policy.” The judge also asked the court to publish its opinion. Copies of the letter were made part of the appellate record and filed in the trial court file.
        In an unpublished opinion filed on November 23, 1999, the court of appeals reversed and remanded the judge’s sentencing decision that the crimes for which the defendant was convicted constituted the same criminal conduct for purposes of sentencing. On November 29, the judge wrote to the judges of the appellate court to communicate his disagreement, objecting to the court’s conclusion that he abused his discretion, specifying why the sentence should be affirmed, stressing that he was “frustrated and disheartened at [the court’s] approach to these cases,” and asserting the judges were “creating an atmosphere of terrorism for the trial judges in Division III.” Copies of his letter were provided to the attorneys and filed in the trial court file.
        Noting that when the judge wrote each of the letters, the appellate court had not issued its mandate terminating review of the cases, the stipulation stated that each appellate opinion was still subject to a motion for reconsideration, and each case was returned to the trial court for further proceedings before the judge. After receiving the judge’s letters in two of the matters, the state moved for an order in the court of appeals requiring that those cases be heard by a judge other than the judge on remand, and the court of appeals ordered the cases assigned to a judge other than Judge Sperline.
        The stipulation stated that in the 2003 matter, although the judge only expressed a desire to have a legal issue addressed and not that it be resolved in any particular way, “to a reasonably prudent and disinterested person it appears as though Respondent was advocating on behalf of, or assisting, one party (the non-prevailing party) at the expense of the other party (the prevailing party). Such apparent advocacy creates a perception of partiality, bias or prejudice.” The stipulation concluded that the manner in which the judge defended his sentencing decisions and criticized the appellate judges for their contrary opinions in the two 1999 matters also compromised the judge’s impartiality or appearance of impartiality. Although noting that the judge wrote to express his sincere frustration with the court and to object to what he perceived as the court’s misguided opinions and he did not intend his letters to influence the decision of the court of appeals (except for the decision to publish one of the opinions), the stipulation concluded that the judge’s strong reaction to the appellate court’s opinions, and his insistence that his rulings were correct even though reversed, evidenced a personal involvement in those cases.” The stipulated noted that a request from a trial judge to publish an appellate opinion would not, in and of itself, violate the code of judicial conduct, but would lead a reasonable observer to question the judge’s ability, or apparent ability, to be objective, neutral and detached when presiding over those cases on remand. The stipulation also found that the judge’s conduct constituted improper public comment on pending cases, noting that while the judge’s comments were not as broadly disseminated as if, for example, they were made in the media for public consumption, his comments were made to other judges and attorneys, and were preserved as part of the public records in the trial and appellate courts that were open and available to the general public, and the judge’s comments were substantive and on the merits of the proceedings, and, therefore, might reasonably be expected to affect the outcome or impair the fairness of those proceedings. Quoting In re White, 651 N.W.2d 551 (Nebraska 2002), the stipulation stated:

When a judge becomes embroiled in a controversy, the line between the judge and the controversy before the court becomes blurred, and the judge’s impartiality or appearance of impartiality may become compromised. In this case, the respondent [judge] abandoned the judicial role to become an advocate for her own ruling. Such behavior by the respondent discloses an unhealthy and wholly improper concern with the protection of her own rulings from appellate reversal. Simply stated, the individual judge of the court whose order is being reviewed is not a proper party to the proceeding. The responsibility of a judge is to decide matters that have been submitted to the court by the parties. The judge may not, having decided a case, advocate for or, as in this case, materially assist one party at the expense of the other. Such advocacy creates the appearance, and perhaps the reality, of partiality on the part of the judge. This, in turn, erodes public confidence in the fairness of the judiciary and undermines the faith in the judicial process that is a necessary component of republican democracy.

The stipulation also noted that the judge maintained that his conduct did not violate the code of judicial conduct or that any violation was so insignificant and inadvertent that no sanction should be imposed. However, the judge acquiesced in the sanction because the judge does not deny any of the facts upon which the Commission has determined to base a sanction and recognizes that the public proceeding may serve as guidance to other members of the judiciary.