Monthly Archives: April 2012

Judicial Misconduct Dictionary: Recusal or Disqualification

The word recuse or recusal, disqualify or disqualification relates to a judge being removed from presiding over a case.

The judge can self-recuse or self-disqualify, or a party to the case can request that the judge be removed.

If the party makes a motion, it’s ruled upon like any motion in the case, and under certain procedural rules, appellate review of the judge’s decision can be sought.  In Minnesota, the party whose motion to disqualify is denied by the sitting judge, must be quickly brought to the attention of the Court of Appeals (instead of waiting to appeal the issues at the end of the case).

The rules of judicial conduct require recusal/disqualification in certain situations.  The federal rules and statutes govern recusals of federal judges.  See Code of Conduct for United States Judges.

For state judges in Minnesota see Canon 2, and Rule 2.11,

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge’s spouse, a person with whom the judge has an intimate relationship, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse or person in an intimate relationship with such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee or a party;

(b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, child, or any other member of the judge’s family residing in the judge’s household, a person with whom the judge has an intimate relationship, or any other member of the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(5) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

(c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court.

(B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse, a person with whom the judge has an intimate relationship, and any member of the judge’s household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

Judicial Misconduct Dictionary: Impartial

Impartial.

The Minnesota Code of Judicial Conduct defines “impartial” as,

“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.  See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2.

In essence this means that judge cannot improperly be “for” or “against” a party appearing before him or her in a case.  The case law also tells us that judges cannot be improperly “for” or “against” a particular attorney for a party.

And, a judge cannot be improperly “for” or “against” a particularly type of party, such as people from a certain place or with a particular belief system, religion, etc.

Judicial Misconduct Dictionary: Minnesota Code Of Judicial Conduct

Minnesota Code of Judicial Conduct.

The Minnesota Code of Judicial Conduct was revised in 2008 (effective July 2009, and amended January 2011).

The revised Code is based on the American Bar Association (ABA) Model Code of Judicial Conduct.

The Minnesota Code is available on the Minnesota Judicial Branch website and the Minnesota Revisor of Statutes website, easy access here.

Solution #5: Advance Case Law Relating To Judicial Conduct

As part of the multi-pronged approached I’ve talked about in the past, for the public to be sure the government is responding appropriately to judicial misconduct, it’s important to see progress in cases litigated on the merits.  That is, within the cases themselves.

A couple of days ago, I posted about the resignation of a Georgia Chief Judge William F. Lee Jr.  Savannahnow.com posted that Judge “Lee was under investigation by the state’s Judicial Qualifications Commission over allegations of judicial misconduct in an undisclosed case, according to filings with the Georgia Supreme Court on Thursday [April 25, 2012].” Governor Deal accepted Judge Lee’s resignation the same day.  (Story here).

Although Lee is indicating the resignation was all voluntary (story here), it appears to have been ‘inspired’ by the ethics probe, since a consent order was filed indicating the matter was resolved by Lee’s resignation.

As I’ve discussed in other posts, the ethics investigation of Judge Lee is a completely separate process from appealing the merits of a case.  In the ethics/discipinary process, the government can actually perform an investigation, can review documents, interview witnesses, etc  The judge’s due process rights must be considered, the judge can defend, and that sometimes results in a trial.  Or, judges can decide to ‘settle’ their cases and accept discipline (or in the case of Judge Lee, agree to resign).

Objecting to judicial misconduct within the case is a wholly different process. Within the case, the parties can also challenge judicial conduct through several mechanisms, one of which is to ask the judge to recuse.  If this request or motion is granted, this means the judge ceases to be the presiding judge in the case, and a different judge gets assigned.  This is also referred to at times as “disqualification” of the judge.

I’ll blog in the future about recusals, the process, and the problems.  Suffice it to say for this post that in my opinion, judges who have been the subjects of recusal motions have too often been hostile to the party’s request (rather than judicial and intellectual), and reviewing courts have too often supported the judge – over fairness to the parties.  Let’s see if this changes as the judicial reform movement sweeps the nation.

In Georgia, the City of Savannah challenged Judge Lee, and sought to have him disqualified from a civil case, based on allegations that he had improper outside conversations with a senior partner for the law firm representing a plaintiff in the suit.”  (Story here).  Judge Lee did not recuse himself.

This is a real practical problem, because if a judge really is doing wrong, that judge often wants to stay in “control” of the case – to protect himself.

The Georgia Supreme Court has accepted review of the disqualification issue.  The Supreme Court doesn’t “investigate” in this situation.  It is limited to the evidence already filed in the case (known as the “record”).  The Supreme Court will apply the law to the facts in the record.

Supreme Courts are also ‘policy’ courts.  The Georgia Supreme Court may have taken the case to grapple with the issue of judicial misconduct, and how it should be handled within a case.

This will be an interesting case to watch.  Although I don’t know about the evidence in this particular case, the mere fact that the Georgia Supreme Court accepted review of the issue is important.  This prong must be advanced to get at the nub of the problem of judicial misconduct in the case:  parties need to know that fairness in their case is taken seriously by the court system.  The all-too-often knee-jerk reaction by the courts to protect the reputation of judges needs to be examined.

Parties who choose to litigate the issue of the judge’s conduct within their case should know that they can also seek discipline of a judge in that state’s separate ethics system.  (This often this comes later.)   That type of complaint can also be important to deter judicial misconduct by that judge and other judges.  But the only way to affect the case itself, is to appeal the legal issue triggered by the judge’s conduct within the case.

A Georgia Chief Judge Steps Down

A George Chief Judge has announced he will step down amid an ethics probe.

According to ACP, the Chief Judge “was being investigated for allegedly engaging in improper communications with lawyers and entering orders in cases without notifying all parties and attorneys involved. He was also being investigated for assigning himself pending cases when he was otherwise disqualified….”

Story here.  That story also stated,

When he retires May 1, William F. Lee Jr. will become the seventh chief Superior Court judge in Georgia to step down amid ethics investigations since 2010. The others:

Lynn Akeley-Alderman of the Enotah Judicial Circuit resigned in March while being investigated for allegedly engaging in an improper meeting  with a Forsyth County judge to promote the interests of a  methamphetamine trafficker.

David Barrett of the Enotah Judicial Circuit retired in March after he brandished a handgun in court to make a rhetorical point to an alleged sexual assault victim as she testified on the witness stand.

Amanda Williams of the Brunswick Judicial Circuit retired in January after being charged with behaving in a tyrannical manner and locking up some drug court defendants indefinitely.

Kenneth Nix of Cobb County resigned in October 2010 after being accused  by a county prosecutor and investigator of inappropriately touching  their bottoms.

Paschal English of the Griffin Judicial Circuit resigned in April 2010 amid disclosures he was having an affair with a public defender assigned to his court. A deputy found them having sex in a parked car.

Ernest “Bucky” Woods of the Mountain Judicial Circuit resigned in January 2010 after being accused of improperly contacting a female criminal defendant through Facebook.

 

Why Won’t Minnesota Lawyers Board Prosecute Lawyers Who Assist Judicial Misconduct?

I received an email last night from a reader of this blog.  She articulated some frustrations with trying to make change in Minnesota regarding judicial misconduct she had experienced as a litigant.  My response back to her was that this is a multi-pronged problem.  The solution therefore, needs to be multi-facited as well.

As with all forms of misconduct, judges cannot do it alone.  And they cannot get away with it – alone.  It is not uncommon for judges participating in judicial misconduct to be facilitated by other judges.  And certain types of judicial misconduct (like ex parte communications with lawyers) could not occur without the knowing assistance of lawyers.

The Minnesota Lawyers Board plays a role in protecting judicial misconduct.

For a number of years now, I have been asking the Minnesota Lawyers Board, through its Prosecutorial arm, the Office of Lawyers Professional Responsibility (OLPR, run currently by Director Marty Cole) to prosecute attorneys who facilitate judicial misconduct.  One of our lawyer ethics canons specifically prohibits lawyers from “knowingly assist[ing] a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law” (Minnesota Rule of Professional Conduct 8.4(f)).

I filed a complaint against a lawyer implicating this Rule in 2006.  The OLPR wouldn’t even investigate it.

I also appealed the refusal to investiate to the Lawyers Board itself:  same result.

In 2011, a client of mine made a complaint to the OLPR about a lawyer who is a judge’s clerk, for violating 8.4(f).  Judges could not commit much of the misconduct they commit, without the assistance of court clerks, some of whom are lawyers.  That complaint was, also, rejected without any investigation by the OLPR.

Now, why do you think that is?

I cannot locate any indication that the OLPR has ever investigated a lawyer for knowingly assisting judicial misconduct.  And I have queried the Director’s Office about this.  And the response (you’re going to love this one)?  That the OLPR will not even consider investigating a lawyer for misconduct under 8.4(f) until it has been proven that the judge engaged in misconduct.

Now, this is a problem for a couple of reasons.  This means that to solve the problem of lawyer misconduct contributing to judicial misconduct, we have to solve the problem of judicial misconduct.  Minnesotans cannot get the Judicial Standards Board to be responsive, to investigate wayward judges or to charge them.  That’s the problem.  Both of these agencies claim that they exist to protect the public.  This Catch 22 created by the Lawyers Board will continue the cycle of Minnesota litigants being harmed, and no one doing anything about it.  It’s sad, and it’s not acceptable.

But this analysis by the OLPR Director is also a problem because most of what occurs at the Judicial Standards Board is confidential.  What if a lawyer sends ex parte text messages to the judge trying his case?  And what if the judge is investigated, and cuts a private deal with the JSB?  We, the public, will never know about it, and someone complaining about the lawyer will never be able to prove it.  That would stop the lawyer investigation in its tracks (according to what I’m being told by the Director) and for a completely silly reason:  because the complainant could not prove that the judge had been disciplined.

And, it’s clear the OLPR isn’t about to try to obtain confidential information from the JSB, even though both agencies are arms of the Supreme Court.

But further, the Director has already admitted to me that there is no legal reason why a lawyer cannot be investigated and prosecuted for an 8.4(f) violation, unless and until the judge has already been charged and found to have engaged in misconduct.

So I asked the Director again, why won’t you do it?  The response?  “Discretion” of the Director.  This shows this is a cultural problem.  And that’s something the public has a right to try to change.

The reason, in my opinion, that the Director won’t investigate these lawyers who assist judicial misconduct (and why the Lawyers Board won’t make him) is that the Lawyers Board is in the business of excusing judicial misconduct, and they have been for years.  So, they reward lawyers who help them go after the source of the problem in their eyes:  lawyers who complain about judicial misconduct.  (I’ll say more about that in upcoming posts.)  And the OLPR never goes after the lawyers who help judges commit judicial misconduct, and help them get away with it.

So frustrated Minnesotan, this is part of your answer.  This is why I say it is a multi-pronged problem.

I’m here to say, Minnesota, we are behind the curve.  Note how the Florida Bar has found a criminal prosecutor guilty of misconduct for communicating ex parte with a judge during a trial.

While trying a death-penalty case before Judge Ana Gardiner in 2007, Scheinberg exchanged 949 phone calls and 471 text messages with the judge. For failing to disclose the communications, a referee for the Florida Bar has found Scheinberg guilty of professional misconduct and recommended the suspension.

“The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice,” Florida Bar Referee Sheree Davis Cunningham wrote in her 10-page report. “His disregard, inadvertent or otherwise, for the sanctity of the legal process must be addressed.”

Story here.

Obviously, the judge accepting ex parte communications and not disclosing them is judical misconduct.  We can’t tell from the story whether someone went after the judge.  But the Florida Bar has it right.  Regardless of whether the judge is found guilty (or even investigated), the prosecutor should have disclosed the communications to opposing counsel.  And failure to do so is misconduct (and, under 8.4(f), knowingly assisting judicial misconduct).

I’m asking the Minnesota OLPR Director Marty Cole to explain to Minnesotans whether he is still refusing to investigate lawyers for this type of conduct.

Judicial Misconduct Dictionary: Ex parte communication

Ex parte communication.

An “ex parte” communication in the law biz, means a communication to the judge in the case, in which no other “side” in the case is involved.  The term has different meanings in different contexts.

Some statutes specifically permit one part to go to a judge and request “ex parte” that a certain type of order be issued.  For example, the Minnesota statute regarding harassment restraining orders specifically permits that a judge consider one “ex parte” (as long as there is a hearing shortly thereafter with both sides involved).

The improper type of “ex parte” communication means that one side is gaining access to the judge without the other side knowing about it and there is no statute or rule that permits it.  A typical type of “ex parte” communication that a party might complain about?  One lawyer in a case sends an email to a judge, and does not copy the other side.  That means the judge has information from only one side, and does not hear the rebuttal by the other side on the same issue.  Of course, “ex parte” communications can also occur in person (in hallways, judge’s offices, cafeterias), by phone or text, and even by relaying a message through another judge.

Lawyers are prohibited from engaging in these improper “ex parte” communications, and judges are as well, see Minnesota Code of Judicial Conduct

RULE 2.9       Ex Parte Communications

(A)      A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter [although some exceptions are listed].

Wersal v. Sexton Part 2: Why is Secret Better?

On March 27, 2012, the Eighth Circuit Court of Appeals issued a decision in Wersal v. Sexton.  The  2012 8th Circuit Opinion was one in a string of cases in which Greg Wersal and others challenged the Minnesota rules of judicial conduct that relate to campaigning for the office of judge.  The judicial canons apply to judges running for election or re-election, and for lawyers running in public campaigns to become judge.

One of the judicial canons that was challenged by Wersal (Canon 5(B)(1)(d) became Rule 4.1(A)(4) in Minnesota’s 2008 judicial code of conduct) prohibits sitting judges from publicly endorsing candidates for public office.

The majority opinion (in which 5 appellate judges joined) not only ruled that the State of Minnesota can regulate judges publicly endorsing candidates, the Opinion suggests there is an obligation to do so.

I can understand this on one level.  If you think about it, it would make it very hard for a lawyer-candidate to win a public election challenging a sitting judge, if the incumbent was endorsed by another sitting judge, or 10, or 100.  The outcome of the recent 8th Circuit Opinion is good for lawyer-challengers.

Other parts of the Opinion do not make sense to me.

First, although the Opinion finds that

“…Minnesota’s endorsement clause [of the judicial canons] pertains to endorsements of any candidate for public office, regardless of whether the elections are partisan or nonpartisan…”

(p. 28), I can’t find that the Opinion dealt directly with the issue of judges endorsing candidates for the public office of judge.

The Opinion states,

“When judges are speaking as judges, and trading on the prestige of their office to advance other political ends, a state has an obligation to regulate their behavior.”

(p. 25) (emphasis added).

The potential endorsements discussed in the Opinion were candidates connected directly to political parties.  But the vast majority of those who run for judge in Minnesota are not formally endorsed by a political party.

I could not find any Opinion analysis directly on point – regarding sitting judges endorsing candidates for judge.

I suppose the Opinion could be read to say that endorsing a person for the office of judge is necessarily an endorsement of their political party.  But that doesn’t really make sense for judicial elections.  First, there’s no sure way of discerning a judicial candidate’s political party if they do not publicly declare it.  Some judicial candidates have no strong ties to any political party.

Second, if we accept the Opinion’s analysis, then what about the long-term Minnesota practice of sitting judges privately endorsing lawyers for appointment to the office of judge?  The audience for those endorsements is the Governor or his judicial selection commission, with the Governor making the final decision (and, I’m told, including the Governor’s interview of the lawyer-candidate).

Of course, the Governor is the highest-ranking member of his party (as acknowledged by the 2005 8th Circuit Opinion).  It seems clear that a lawyer who wants to be appointed judge by a particular Governor would know to seek private endorsements from sitting judges who have some connection to that Governor’s political party.

When judges privately recommend a lawyer for appointment to judge – don’t they do precisely what the 2012 8th Circuit Opinion says a State is obligated to regulate – “trade on the prestige of their office to advance” a candidate for the public office of judge?

Yet Rule 4.3 specifically authorizes candidates for appointment to the public office of judge to seek “support” from anyone.

So what’s so different between public endorsements, and private, behind-the-scenes endorsements?

It’s not clear whether or not the 8th Circuit knew about the practice of sitting judges endorsing candidates for appointment to judge.  Yet it almost seems that the 8th Circuit Opinion deftly side-stepped the spot where this would been troublesome for its analysis.

My concern is this notion that it’s important to preserve the image of neutrality in the courts.  I think we should be  more concerned with authenticity.  The whole point of the ‘appearance of impropriety’ rule of law is to protect the parties.  It was never intended to fuel a giant PR machine used to foster the mystique of honor – over actuality.  Let’s face it:  many judges are connected to political parties.  That’s reality.  It’s also human.  (Note that the Minnesota Code specifically permits judges to register to vote and to participate in party-based causcuse-type election procedures.  See Comments [3] and [6] to Rule 4.1.)  Why hide that from the public?  Wasn’t that the gist of the prior Wersal decisions?

To me, if a judge is qualified, s/he has learned how move to the middle.  I don’t care what a judge’s political party is if that judge has learned to ‘move to the middle.’  But if a judge exhibits embroilment in the case, where behavior or rulings show marked unfairness or favoratism (this applies to district judges but also to policy-making judges in a slightly different way), then my clients do want to know what fuels that, whether it be friendship, ex parte communications, political party, etc.

In other words, I believe that the issue of political party should not, will not matter at all, for a judge if the judge exhibits good judging.  And that goes for judges who are appointed and judges who are elected.

What’s the point of keeping reasons for potential bias from the public?  If the issue is really sitting judges trading on the prestige of their office, why is it ok for them to make private, behind the scenes endorsements of candidates for appointment to the public office of judge, just not public ones?  This really looks like a ‘what the public does not know won’t hurt them’ analysis.

This is precisely what I rail against in the justice system.  I regularly see how parties who are just trying to get a fair hearing in their case are hurt by what they do not know.

I do not believe secret is better.  I am a proponent of telling the public everything and letting them decide.  It just doesn’t work when government tries to portray an image.  We, the public, eventually find out.  Want to exhibit integrity?  Might as well be straight with us from the start.

I believe that what the public wants, what the public deserves, is a justice system that enforces the rules requiring neutrality from judges in their judicial decision-making. 

Let get serious with showing the public that we care about neutrality in the trenches, where their cases are litigated.

We in the system all know that out there now, are judges deciding cases based on what their buddies want, what their collegues want, what a bully judge tells them to do, what they think some political party wants, or because they are emotional about an issue, a party, or a lawyer.  I am interested in attacking that problem.

And I don’t think I’m alone.

To me, the beauty of the First-Amendment-protecting prior decisions in Wersal’s cases (see 2002 US Supreme Court case and 2005 8th Circuit Opinion link above) is that they are about permitting candidates to communicate to the public voting in elections, the people whose lives are impacted by the judiciary and who want to have some small voice in that.

Judicial Misconduct Dictionary: Embroilment

Embroilment.

Embroilment the English word means hostile involvement in an argument or controversy.

When describing improper judging, embroilment means the judge becomes emotionally involved, embroiled in the controvery as if a litigant.

This, of couse, is the opposite of sitting in the middle.  It’s a way of exhibiting bias.

For judge disciplined for embroilment, see this post.

Judicial Misconduct: Bully judges

Bully judge.

A bully judge is a judge who, behind the scenes, either through force of personality or other technique, leans on other judges and tells them how to rule on their cases.  Bully judges come in all shapes and sizes.

 

The foundation of the justice system is that each judge rules on his or her own case.  Bully judges are a fixture in the justice system.  But that doesn’t mean it is right.  For the justice system to move into balance, these bully judges must be identified, and called out.