JUDICIAL DISCIPLINE DECISION SUMMARIES

January-February 2019 In the Disability Matter Involving Greene, Order (Alaska Supreme Court January 11, 2019) (https://public.courts.alaska.gov/web/appellate/opinions/sp-ord105.pdf)

Accepting the findings and recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court ordered that a judge be immediately placed on medical disability retirement for a disability that seriously interferes with her performance of judicial duties and that is or may become permanent. The judge had filed a non-opposition.

In September 2016, the judge appeared to have suffered a mini-stroke (also referred to as a transient ischemic attack or TIA) while she was presiding over a trial. The presiding judge took her to the hospital where she was treated, observed over the weekend, and released. In October 2016, the judge went for medical evaluation of several possibly related medical issues at the Cleveland Clinic and was still on medical leave in Cleveland when the then-chief justice asked the Commission to investigate her condition and initiate proceedings. The judge, through counsel, agreed with the request. After receiving a letter from one of the judge’s physicians at the Cleveland Clinic that was equivocal about whether her medical problems were then permanent, the Commission declined to find probable cause.

The judge returned to Utqiagvik and the superior court in July 2017. But in December 2017, she was struck by a large water delivery truck as she was walking along a street and was rendered unconscious. The accident caused some cognitive difficulties that the judge acknowledged in an affidavit to the Commission. The chief justice wrote a second letter to the Commission asking it to again investigate the judge’s condition and initiate proceedings.

The Commission obtained the judge’s medical records and sent them to an independent organization that performs disability peer review. A board-certified internal medicine and immunology specialist who reviewed her records provided a report detailing the judge’s medical history and diagnoses and concluded that she was unable to perform her duties as a full-time judge. Smith, Letter of reprimand and agreement not to serve in the judiciary (Arkansas Judicial Discipline & Disability Commission February 22, 2019) (http://jddc.publishpath.com/Websites/jddc/images/pdf/Press%20Release/Judge%20Smith%20Press%20Release%20and%20Sanction.pdf)

Pursuant to the judge’s retirement and agreement not to serve in the judiciary, the Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge for improperly using court premises, equipment, or other resources for extra-judicial activities that did not concern the law, the legal system, or the administration of justice and improperly using court computer equipment after regular work hours at the office, as he admitted under oath during divorce litigation. The Commission notes that the judge’s agreement had the same effect as removal from office. The reprimand notes that, in 2003, the Commission publicly

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admonished the judge for delay in deciding cases and failing to report those delays and that, in 2013, it gave him an informal adjustment for delay in 2 cases. Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019) (https://cjp.ca.gov/wp-content/uploads/sites/40/2019/02/Bailey_DO_Censure_Bar_02-27-19.pdf)

Based on the findings of 3 masters following a 6-day hearing, the California Commission on Judicial Performance publicly censured a former judge and barred him from seeking or holding judicial office for (1) allowing a business to use his testimonial on its web-site without assuring that it did not use his judicial title; (2) ordering defendants in 5 cases to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend and ordering a defendant to pay restitution to the company contrary to the law and based on a letter from his son; (3) appointing an attorney as a special master without disclosing that the attorney was a personal friend; (4) receiving improper gifts from Court Appointed Special Advocates, an attorney he had appointed as a master, and a law school; (5) failing to accurately report travel-related payments or reimbursements for attending judicial education programs; (6) commenting in the courthouse that gay men are “snappy” dressers; (7) running for California Attorney General without taking a leave of absence and using his judicial title to raise funds for and promote his campaign; (8) failing to file a candidate intention statement until after his campaign had received campaign contributions, in violation of the Political Reform Act; and (9) permitting a campaign coordinator to use his judicial title on the Facebook page for his campaign for Attorney General and in posts on her law firm’s Facebook page promoting his candidacy.

The facts are largely undisputed; there is considerable disagreement between the parties on the legal conclusions reached by the masters.

The California constitution creates 3 levels of judicial misconduct: willful misconduct, prejudicial misconduct, or improper action.

(1) In April 2016, the judge retained the Redd Group to survey voters about a local attorney’s judicial campaign. After the election, the judge called David Cooper, an employee of the Redd Group, to compliment him on the survey results. Cooper asked the judge if he could use the judge’s comments as a testimonial for the Redd Group. The judge agreed. He did not ask Cooper how the comments would be used or where they would be published or tell him not to use his title although he did not authorize Cooper to use his title. Cooper testified that he told the judge that the testimonial would be published on the Redd Group’s web-site; the judge testified that he did not remember receiving this information. The judge was not compensated for the testimonial.

The testimonial, published on 2 separate pages of the Redd Group web-site, stated:

I was helping a fellow attorney run for county judge. Our mail went out ahead of schedule and The Redd Group accommodated for our poll to be done accordingly with many more respondents than were promised. We got the detailed results in less than 24 hours. I recommend the Redd Group for all your polling needs. Excellent work! – Steven C. Bailey

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1 page of the web-site included a link to the judge’s personal web-site, which identified him as a judge. Headings on the web-site identified Steven Bailey as a superior court judge. The web-site also featured a photograph of the judge in his judicial robe. The judge did not provide the photograph or authorize its use; Cooper did not tell the judge his photograph would be used.

The Commission agreed with the masters’ conclusion that the judge engaged in improper action by allowing his name to be used on the web-site without reviewing the final text of the testimonial or instructing the Redd Group to avoid using his judicial title and photograph in judicial robes. Neither the judge nor the Commission examiner objected to the master’s factual findings or legal conclusions.

(2)(a) The Secure Continuous Remote Alcohol Monitoring (SCRAM) program monitors alcohol consumption through a bracelet device provided to defendants. CHI Monitoring, LLC was the only local provider of alcohol monitoring services. The judge’s son, John Bailey, was employed by CHI as a case manager and worked on commission, receiving a percentage of the payments CHI received from every SCRAM participant he monitored. John Bailey installed the SCRAM device, monitored for violations, wrote reports for the court, and set up payments.

In 5 cases, between October 2009 and April 2014, the judge released a defendant charged with an alcohol-related crime on the defendant’s own recognizance, on the condition that the defendant participate in the SCRAM program. In each of the 5 cases, John Bailey or another CHI employee sent correspondences directly to the judge concerning the defendants’ participation in SCRAM. The judge did not disclose that his son was employed by CHI and might correspond with the court about defendants’ participation in, and compliance with, the program.

In April 2009, the judge sought an ethics opinion from the California Judges Association hotline about his responsibilities when referring defendants to the company where his son was employed. Based on the facts provided by the judge, CJA provided an informal opinion that stated:

Newly appointed J’s adult son is a commissioned salesperson with a company that provides monitoring ankle bracelets for J’s county jail. The defendants utilizing this company’s services all reside out of county. Son’s company comes in contact with defendants when they are referred by the county probation department. Company assesses whether or not defendant meets the financial criteria to obtain the monitoring bracelet and if so, provides the bracelet and performs the monitoring function. Son occasionally comes in personal contact with a defendant. Neither J nor son has an ownership interest in Company. J asks whether there is anything about this arrangement that requires J to disqualify, disclose, or take any other action. Informal Response: No. However, J should disclose if son were to testify in J’s court on an issue of violation of the terms and conditions of use of the bracelet by a defendant.

The Commission concurred with the masters’ finding that the CJA opinion assumed that

CHI comes into contact with the defendants when they are “referred by the county probation

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department” and that the judge had not informed CJA that his son corresponded directly with him concerning the defendants’ enrollment and compliance in the program.

The Commission stated that, contrary to the judge’s argument, the failure of the defendants or the district attorney to object does not change the fact that the judge made the order.

The Commission concluded that the “fact that the judge’s son worked on commission for CHI and reported directly to Judge Bailey concerning compliance with SCRAM was information reasonably relevant to disqualification and, thus, required disclosure before Judge Bailey ordered a defendant to participate in the program” and that “an objective person would find the judge’s conduct in failing to disclose this information to be prejudicial to the public esteem for the judiciary.” The Commission concluded that the judge’s failure to disclose was prejudicial conduct because he “failed to provide CJA with important facts relevant to the question of whether he was required to disclose that his son worked at CHI – that he, rather than the probation department, would be making the referrals, and that his son would be reporting directly to him concerning monitoring and compliance. While judges should be encouraged to seek ethics opinions when uncertain about their ethical obligations, when doing so, the judge must provide complete and accurate facts relevant to the ethical question presented.”

(b) On November 25, 2009, in People v. Jacobsen, a letter signed by John Bailey on CHI letterhead and addressed to the judge was faxed to the court. The letter indicated that the defendant had completed the SCRAM program, but still owed CHI $140 and had agreed to a payment plan, with payments to be completed on December 11, 2009. On December 10, John Bailey faxed a letter to his father seeking restitution of $140 for CHI from Jacobson and stating that Jacobsen had verbally agreed to a payment plan but has since decided not to honor it. Neither letter indicated that it was copied to the parties. On December 18, Jacobsen appeared before the judge with counsel for further proceedings on a violation of probation. The judge ordered Jacobsen to pay “victim restitution” to CHI of $140.

The judge asserted that he made an error in word choice, and that he was appropriately requiring the defendant to take responsibility for all aspects of his life, including paying his debts. However, the Commission stated, the judge has not “cited any authority authorizing a court to order restitution or payment of a debt to a program that provided court-ordered services to a defendant,” noting only direct victims of crime are entitled to restitution. The judge maintained that, at most, he committed legal error, not misconduct. However, the Commission concluded that the “unauthorized order constituted more than legal error. Judge Bailey ordered victim restitution to CHI, a business that was clearly not a victim of the defendant’s crime, based on a letter from his son who worked on commission for CHI. This created the appearance of favoritism, bias, and lack of impartiality.”

(2)(c) Charles Holland is the owner of CHI. Holland has known the judge for approximately 20 years. Over 11 years ago before the judge took the bench in 2009, Holland retained the judge’s services as an attorney. As a defense attorney, the judge referred clients to Holland, who at the time was a bail bondsman. Holland considers the judge to be his friend. The judge describes his relationship with Holland as “more of a relationship professionally and within the community,” than a social relationship. Holland has been to the judge’s house at least twice, once for a campaign kickoff event and once to pick up a gun safe. He attended 2

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strategy meetings for the judge’s judicial campaign in 2008. Holland had lunch with the judge and Clark after the judge took the bench. The judge is one of hundreds of Holland’s Facebook “friends.”

The Commission accepted the judge’s “characterization of his relationship with Holland as being more professional than social.” However, it concluded that relationship “went further than being members of the same professional organization or having contacts at professional events.”

Prior to taking the bench, Judge Bailey had represented Holland, and Holland had referred clients to him. Further, Holland had been to the judge’s home, had attended strategy meetings for the judge’s judicial campaign, and included the judge as one of his Facebook friends. Even if each of these facts taken alone did not require disqualification, we conclude that the totality of these circumstances was reasonably relevant to disqualification and required disclosure. As such, we conclude that the judge violated canon 3E(2) by failing to disclose his prior contacts and relationship with Holland when he ordered defendants to participate in a CHI program.

However, the Commission concluded that the conduct constituted improper action, not prejudicial conduct, because “[t]he public is more likely to question a judge’s integrity and impartiality when the judge fails to disclose a relationship with an immediate family member” and Holland was not monitoring SCRAM program participants or reporting to the court.

(3) On June 28, 2011, the judge appointed attorney Bradley Clark as a special master, at the rate of $350 an hour, in a matter concerning shared pier and access easements for the beneficial use of 5 lots in a development. Clark was appointed “to investigate violations of this order, review, approve and submit to the Court for approval all tentatively approved applications for docks, piers, and floating structures.” Clark was not on a court-approved list of special masters, and was appointed without input from counsel.

At the time of the appointment, Clark and the judge were friends and socialized together, many times with their spouses. The judge had stayed overnight at Clark’s house at least once. Clark had given the judge tickets to charity events. The judge had officiated at Clark’s wedding. One of the judge’s nephews was an associate attorney at Clark’s law firm. Clark contributed to and consulted on the judge’s campaign for judicial office.

The judge did not disclose his personal relationship with Clark when he appointed him as a special master. None of the parties in the litigation objected to Clark’s appointment. At the time, Clark had a general civil practice in El Dorado County, and was also a real estate broker. The case settled shortly after Clark was appointed. He did not participate in the settlement discussions. On August 9, 2011, the judge approved Clark’s fee of $1,715, to be paid by the defendant. Clark received payment of his fee.

The masters concluded that the examiner did not prove that the appointment constituted misconduct because they were not convinced that the appointment of Clark, who was qualified, was based on friendship, rather than competence. The Commission deferred to that finding. However, the Commission disagreed with the masters’ conclusion that the judge did not have a duty to, at minimum, disclose the relationship before making the appointment. It explained:

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Clear and convincing evidence establishes that the judge and Clark were friends who socialized together, at times with their spouses; the judge received gifts from Clark; the judge’s nephew was employed by Clark; and the judge officiated over Clark’s wedding. We concluded that, at minimum, these facts required disclosure on the record before Judge Bailey appointed Clark as special master. Knowing these facts, a party might have thought the judge would be more inclined to approve Clark’s findings and recommendations because of their friendship.

In finding no misconduct, the masters had relied on the parties’ failure to object, noting

that El Dorado County is a “small legal community,” and that most of its members, “are likely to have known about the social relationship between the judge and Clark.” The Commission concluded, however, that these factors are not relevant to the issue of disclosure because “[i]n determining the need to disclose, the same standard applies regardless of the size of the community.” It explained:

By their terms, the canons impose uniform statewide standards. Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality. The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics. The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . . Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

The fact that there was no objection from the attorneys . . . did not relieve the judge of his obligation to disclose. There is no evidence that the attorneys and parties were aware of the extent of the judge’s relationship with Clark at the time the judge made the appointment.

The Commission found that the judge engaged in improper conduct.

(4) Between 2009 and 2012, the judge reported on his Fair Political Practices Commission Statement of Economic Interests that he received gifts from CASA, Bradley Clark, and Lincoln Law School. The Commission noted that judges are precluded from accepting gifts from anyone, except under limited circumstances that were not applicable, and that, even when a gift falls within a specified exceptions the judge may not accept the gift if it could create an appearance of impropriety.

The gifts from CASA were: tickets to the September 2009 CASAblanca event, valued at $35; tickets to the December 2009 Snowball fund-raising event valued at $50; and tickets to another CASA fund-raising event valued at $200. The judge worked closely with CASA as

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presiding juvenile court judge; CASA volunteers routinely appear on behalf of children in adversary proceedings before juvenile court judges. There is no evidence that the judge ever acted in a judicial capacity to favor the organization.

The Commission agreed with the masters’ conclusion that the judge engaged in prejudicial misconduct in accepting gifts from CASA “because CASA volunteers are frequent participants in juvenile court proceedings,” and, therefore, his “acceptance of gifts from the organization could cause an objective observer to doubt his impartiality in matters concerning those volunteers.” The Commission disagreed with the master’s finding that the judge violated canon 4D(5), which prohibits judges from accepting gifts from a “party” whose interests have come or are reasonably likely to come before the judge because, although “CASA has an interest in matters that come before Judge Bailey, CASA is not a party.”

Rejecting the judge’s argument that his acceptance of the tickets from CASA was proper because there is no evidence that he acted in a judicial capacity in favor of CASA, the Commission stated that “accepting gifts, even nominal gifts, from entities with interests that are reasonably likely to come before the court creates an appearance of impropriety and lack of impartiality. . . . CASA volunteers frequently appear in court and advocate for children. They may be called to testify and they may take a position contrary to the position or interests of parties in the proceedings, such as the parents.” Noting the judge’s argument that “judges should be involved in organizations that support at-risk children,” the Commission explained that the issue “is not the judge’s involvement in a program for at-risk youth, but his acceptance of free attendance to CASA events as gifts.”

Clark gave the judge $50 tickets to 3 different fund-raisers for Mother Lode Rehabilitation Enterprises, Inc. and a round of golf at Clark’s country club, valued at $42. The judge attended the fund-raising events as Clark’s guest; both Clark and the judge had long supported the charity and were friends.

Rejecting the judge’s argument that the gifts from Clark fell within the exception for gifts from close personal friends, the Commission noted that Clark had testified that he considers the judge a friend, but not a close friend and that the judge’s position is inconsistent with his other position that he was not disqualified from appointing Clark to be a special master. The Commission also noted that the “gift exceptions are not absolute; a judge may not accept a gift if to do so would create an appearance of impropriety” and that, despite the judge’s assertion that there was no evidence that the round of golf was a gift for appointing Clark, “it could reasonably create that appearance.”

However, the Commission concluded that accepting the gift was not prejudicial conduct because there was no evidence that Clark appeared before the judge as a party or an attorney representing a party, and that the judge reported the gifts, “indicating that he was not attempting to conceal the gifts from the public.”

In March 2011, the judge accepted tickets to the Barristers Ball at his alma mater, Lincoln Law School from the school. He was an honored guest because he is an alumnus and a local judge. Neither party objected to the masters’ finding that the judge’s acceptance of a ticket from Lincoln Law School violated the code of judicial conduct and constituted improper action.

(5) In November 2009, the judge attended a judicial education program at Northwestern University School of Law. The program paid for his travel, lodging, group meals, and related

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expenses. The judge did not report these payments on his 2009 statement of economic interests. In 2011, the judge attended a judicial education program at George Mason University School of Law in Arlington, Virginia. The program paid for his lodging and group meals and reimbursed him for his travel expenses. The judge did not report the payments and reimbursements on his 2011 statement of economic interest.

The judge also attended 2 educational programs at GMU in March and October of 2014. The programs paid for his lodging and group meals and reimbursed him for his travel expenses. Before he submitted his 2014 statements of economic interests, the judge was informed by e-mails from both a court clerk and the presiding judge that any travel expenses associated with judicial education programs must be declared on the statements of economic interests.

On March 6, 2015, the judge filed his 2014 statements of economic interests. He listed the 2 GMU programs he attended in 2014 and described the business activity of the source of income as “Judicial Education – tuition,” but he did not fill in the amount of the payments received, or answer whether they were gifts or income. The programs did not charge tuition.

The Fair Political Practices Commission sent the judge a letter indicating that he had not reported the amount and type of payment. On April 1, 2015, the judge filed an amended statement of economic interests that inaccurately reported that he received $527.93 for the October GMU program. He actually received $1,348.51 for lodging and meals and $459.20 for travel.

The Commission agreed with the masters’ conclusion that the judge’s incomplete and inaccurate reporting of payments on his statements of economic interests constituted improper action, rather than prejudicial conduct, because his actions were inadvertent and negligent.

(6) In May 2015, the judge had a conversation with administrative analyst Suzanne Thurman, Judge Vicki Ashworth, and Judge Dylan Sullivan, while standing in Thurman’s cubicle in the court’s administration building. Judge Sullivan complimented the judge on the outfit he was wearing. Judge Bailey said he bought the outfit in France, and the salesperson who put it together for him was gay. He explained that he knew it looked good because gay men are “snappy” dressers. The conversation took place in an open office area where other county employees would have been able to overhear the conversation. The tone of the conversation was lighthearted. Judge Ashworth and Thurman testified they were offended by the comments, but Judge Sullivan was not offended.

Because the judge’s “remarks did not perpetuate invidious or hateful stereotypes,” the Commission agreed with the masters “that an objective observer would not view the remarks as prejudicial to public esteem for the judiciary, and thus the remarks constitute improper action, rather than prejudicial misconduct.” It explained:

This does not mean that such remarks are proper. As observed by the masters, the judge’s comments “reflect stereotypical attitudes about gay men.” It is improper for a judge to make remarks that reflect stereotypes based on sexual orientation, whether negative or positive. We agree with the masters that “[s]uch remarks indicate that the speaker has preconceived ideas about a particular group, a characteristic that is contrary to the qualities of impartiality and propriety required of judges by our Code of Judicial Ethics.”

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(7) The California Code of Judicial Ethics allows a judge to raise funds and campaign for non-judicial office by taking an unpaid leave of absence.

Between August 2016 and August 2017, the judge used his judicial title and lent the prestige of judicial office to raise funds for his exploratory committee, potential campaign, or campaign for California Attorney General in 2018, personally solicited funds in support of his campaign, and accepted campaign contributions for the office without taking an unpaid leave of absence from his judicial office.

On September 7, 2016, the judge personally signed and filed California Form 410, Statement of Organization Recipient Committee for Judge Steven Bailey – Attorney General 2018. He solicited campaign contributions beginning in October 2016.

Between August 2016 and August 30, 2017, the judge’s exploratory and actual campaigns made frequent use of his judicial title and photographs of himself wearing his judicial robe. He used e-mail addresses and maintained a campaign web-site that featured the user names “judgestevenc.bailey” and “judgestevenbailey.ag2018.” He distributed campaign donation envelopes and “rack cards” that referred to him as a “sitting judge” and stated that his “judicial experience and his legal and legislative skills make him uniquely qualified to be California’s Attorney General in 2018.”

Prior to his judicial retirement, the judge spoke at numerous political events and attended the Patriots Award Breakfast and Charity Banquet in Whittier and the Mexican American Bar Association Judges Night & Awards Dinner in Los Angeles. At these events, he usually handed out donation envelopes that referred to him as a sitting judge. Announcements for these events referred to his judicial title, and some included a summary of his judicial background and stated that he would be introducing his candidacy for California Attorney General. At a Santa Fe Springs event on October 7, 2016, he handed out flyers, identifying him as “Judge Steven Bailey,” with photographs of himself in his judicial robe and judge’s gavels. When introduced at these events, the judge was referred to as both a sitting judge and a candidate or prospective candidate for California Attorney General. The judge did not instruct campaign staff members or the hosts of these events to avoid using his judicial title. His stump speech, delivered on some of these occasions, also referred to his judicial office and experience as a sitting judge. His speeches often included comments about his opinion on criminal justice legislation.

Between August 2016 and August 2017, the judge met or communicated with community, church, and Republican Party leaders to solicit support and endorsement for his candidacy or potential candidacy. Individuals associated with the Republican Party introduced the judge to supporters in Santa Clara County and San Mateo County. The judge held face-to-face meetings with a lobbyist for the California Building Industry Association and with the director of faith and public policy at a large evangelical church in Chino Hills. The judge often arranged these meetings using his campaign e-mail accounts that referenced his judicial title. During the meetings, he referred to himself as a judge.

In seeking a meeting with the lobbyist for the Building Industry Association, the judge sent an e-mail with the signature line “Judge Steven Bailey,” that stated, “While it might appear that the Office of the Attorney General has minimal impacts on the building industry, the Attorney General is the chief law officer for the people of this state. As such, the Attorney General is responsible for enforcing or not enforcing state air and water quality standards,

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CEQA and climate change. Having someone who has common sense is critical. The business community can no longer afford the selective enforcement of the law … I will be bringing my experience as a Judge to this office. As a Judge, I am committed to the fair application of the law using common sense.”

In November 2016, the judge sought advice from former judge Julie Conger, a fellow director of the Alliance of California Judges and an expert on judicial ethics, about ethical prohibitions and standards he would be required to follow during his campaign. Conger counseled the judge that he should not distribute flyers that included a photograph of him in his judicial robe and urged him to remove his judicial title from e-mails related to his campaign and to avoid using the title in campaign literature until after he took a leave of absence from the bench. In May 2017, Conger received a flyer from the judge’s campaign that made numerous references to his judicial title and included a link for making monetary contributions. In an e-mail, Conger told the judge that he had completely dismissed her advice and was using his judicial title inappropriately and suggested that he immediately take a leave of absence from his judicial office and resign as a director with the Alliance. The judge resigned as director, but did not take a leave of absence and continued to use his judicial title to solicit support and contributions to his campaign for Attorney General.

On April 27, 2017, the judge filed his candidate intention statement with the Secretary of State. He retired on August 31, 2017. He filed his declaration of candidacy on February 25, 2018.

The Commission agreed with the masters’ finding that the judge engaged in an exploratory campaign and an actual campaign for California Attorney General while he was a sitting superior court judge, rejecting his argument that he only engaged in an exploratory campaign and did not become an actual candidate until he filed his declaration of candidacy on February 25, 2018. The Commission noted that the “record is replete with references by the judge or his campaign staff to Judge Bailey’s ‘campaign’ for Attorney General.” The Commission also agreed with the masters’ conclusion that the judge had used his judicial title and lent the prestige of his judicial office to raise campaign funds and to promote his exploratory campaign and actual campaign for Attorney General.

Stating that a judge “‘considering running for nonjudicial office’” may only engage in “‘private planning during time away from the courthouse’” until the judge takes a leave of absence from the bench, the Commission concluded that the judge “went far beyond private planning. He actively solicited campaign contributions and endorsements, and spoke frequently at political and campaign events as a candidate or potential candidate for Attorney General.” The Commission also agreed with the masters’ finding that:

[Judge] Bailey’s judicial title featured prominently in all of his campaign communications, from his Facebook page, email address and website names to his flyers, rack cards, and donation envelopes. He used his judicial title when seeking speaking engagements and introductions to potential supporters. [Judge] Bailey’s campaign literature described him as a “sitting judge” and stated his “judicial experience” made him “uniquely qualified” for the office of Attorney General. Even before he retired from the bench, [Judge] Bailey solicited and received thousands of dollars in campaign contributions.

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The Commission agreed with the master that this was prejudicial conduct.

The Commission rejected the judge’s contention that enforcement of the prohibitions on political fund-raising and campaigning, as applied to his campaign for Attorney General, violated the First Amendment of the U.S. Constitution. It explained:

When an active judge runs for nonjudicial office, particularly an office that litigates in state courts, there can be an appearance that the judge will make judicial decisions in a manner that will help his or her campaign, rather than based on the rule of law. This concern is illustrated in Judge Bailey’s comments to the lobbyist for the Building Industry Association. The judge informed the lobbyist that the Attorney General has impact on the building industry through “enforcing or not enforcing state air and water quality standards, CEQA and climate change.” A reasonable person could interpret this comment as suggesting that the judge would apply these laws in a manner favorable to the building industry while sitting as a judge running for Attorney General.

The Commission noted that “the concern may be even more pronounced when the

judge is running for a position that includes criminal prosecution, such as the Attorney General, while presiding over criminal cases,” possibly leading “to a perception that the judge will make rulings that appear to be ‘tough on crime’ to promote the judge’s candidacy.” The Commission also concluded that by applying “only to judges who have not taken a leave of absence, the canons have been narrowly tailored to achieve the goals of preserving public confidence in the fairness and integrity of the judiciary, and fostering the appearance that judges do not make decisions for political reasons.” The Commission also stated that the “applicable canons provide fair notice to judges of their ethical obligations while campaigning for nonjudicial office.” Finally, the Commission rejected the judge’s contention “that the canons are underinclusive and applied unequally because a judge running for judicial office in California can personally solicit funds, whereas a judge running for nonjudicial office cannot, without taking a leave of absence.” Noting the U.S. Supreme Court has stated that “the First Amendment imposes no freestanding ‘underinclusiveness limitation,’” the Commission explained that “there are compelling interests in treating judges differently when they are involved in nonjudicial campaigns.”

Solicitation of campaign funds for nonjudicial office may encroach on separation of powers and the independence of the judiciary. When a judge solicits funds for a nonjudicial political campaign, there can be a heightened perception that the judge’s decisions will be politically motivated. Campaigns for nonjudicial office are inherently more political in nature than judicial campaigns. Candidates for judicial office are running for an office in which they are expected to follow the law, regardless of public opinion. Candidates for nonjudicial office, however, are running for office with a political point of view and are expected to express their political opinion. . . . There is another compelling, and practical, reason for treating judges running for judicial office differently than judges running for nonjudicial office. Given that California judges

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are subject to periodic contested elections, requiring judges to take a leave of absence in order to campaign for and solicit funds for judicial office would be a significant burden on the administration of the judiciary, and could be subject to abuse.

(8) A provision of the Political Reform Act requires that, “[p]rior to the solicitation or

receipt of any contribution or loan, an individual who intends to be a candidate for an elective state office . . . shall file with the Secretary of State an original statement, signed under penalty of perjury, of intention to be a candidate for a specific office.” The judge’s campaign committee organized in September 2016, and accepted monetary contributions of $17,749 before April 27, 2017. The judge did not file a Candidate Intention Statement until April 27, 2017.

The judge asserts that the untimely filing was inadvertent and caused by the then-treasurer of his campaign. When the campaign hired a new treasurer, she discovered the mistake and filed a Form 501 for the campaign. The Commission agreed with the masters’ finding that the judge’s “untimely filing was an oversight, and the result of Judge Bailey’s failure to properly supervise his campaign staff and attend to the administrative requirements of his campaign” and that this constituted improper conduct.

(9) In 2016, Martha Romero, the judge’s Southern California Campaign Coordinator, created the “Judge Steven Bailey” Facebook page for the judge’s Attorney General campaign. Romero informed the judge that she had created the page by the end of 2016. In November and December 2016, she had made several posts on the page referring to the judge by his judicial title and promoting his campaign.

Rejecting the judge’s argument that he cannot restrict the First Amendment rights of others, the Commission agreed with the masters’ finding that “the judge had an obligation to take some action to prevent the improper use of his title in connection with campaign communications and events, even if it was just to instruct Romero to ensure that the Facebook page did not refer to his judicial title and position” because she was his Southern California Campaign Coordinator and “very involved” in his campaign. The Commission also agreed that, because the standard for prejudicial conduct assumes that an objective observer is familiar with the facts, “the judge’s failure to supervise a campaign staffer and take any measures to guard against impermissible use of his judicial title would be considered prejudicial to public esteem for the judiciary in the eyes of an objective observer,” rejecting the judge’s argument that “the public would have no way of knowing if he asked Romero not to use his title.”

Romero also maintained a Facebook page for her law firm, the Romero Law Firm. In a post on that page, Romero included photos of the judge and wrote, “My friend Judge Steven Bailey is running for California Attorney General 2018 [sic] He is not a politician. Please Help us!” and “Judge Steven Bailey. Candidate for Attorney General 2018. He will be the next Attorney General!!! Please repost. We need to win this!!”

The judge became aware of this post in December 2016, when he received a supplemental preliminary investigation letter from the Commission. At that time, the judge asked Romero to remove any photographs she had posted of him in his judicial robes. He did not, however, ask her to make any other changes to her posts.

The Commission acknowledged that the judge “could not force Romero to edit her posts about him or to avoid using his judicial title in future posts” but stated that he could “have

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asked her to modify her posts to be in compliance with his ethical obligations.” Rejecting the judge’s argument, the Commission concluded that “Romero’s First Amendment rights are not implicated by requiring the judge to ask her to comply with a request to remove the Facebook posts.”

In 2013, the Commission sent the judge a strong advisory letter for delays in ruling on at least 15 matters.

The Commission emphasized that the “extent and nature of the judge’s misconduct reflects an inability or unwillingness to comply with the standards of judicial conduct expected of every judge” and he had “violated the Code of Judicial Ethics both on the bench and off the bench.” The Commission noted the masters’ statement that “‘Judge Bailey has his own view on 1. being a judge, 2. acting with proper judicial demeanor, 3. Superior Court administration, and 4. appropriate conduct on the bench. We believe that his views are misinformed and erroneous.’” Based on the record and its observation of the judge at his appearance before it, the Commission concluded that he is “a judge who plays by his own rules with little concern for whether his conduct comports with the rules applicable to all judges under the Code of Judicial Ethics.” The Commission also noted that the judge “contends that much of his conduct was proper and in accordance with his ethical obligations,” stating “he interprets the canons in an unreasonably liberal manner in order to justify his conduct.”

Claiming that he has “suffered a continuous onslaught of allegations from the Commission and Presiding Judge Suzanne Kingsbury,” the judge suggested Judge Kingsbury and the “toxic environment in the El Dorado Superior Court” are to blame for the charges he faced. However, the Commission concluded that the judge failed “to recognize it is his improper conduct that is the basis of this inquiry, regardless of the motivations of those who brought forth the allegations. There is no evidence that a toxic environment in the court or any animosity between Judge Bailey and Judge Kingsbury resulted in misinformation being provided to the commission or inaccuracies in the evidence presented against the judge.”

In aggravation, the Commission stated that the judge had, during the preliminary investigation, failed to respond to the Commission’s requests for information about who created or maintained the “Judge Steven Bailey” Facebook page.

The Commission concluded:

Citizens are expected to comply with the rule of law. Public respect for the judiciary cannot help but be eroded when a judge fails to abide by laws and rules applicable to the judiciary. We believe there is a very high probability that Judge Bailey will engage in future misconduct if he were to return to the bench. There is little likelihood of reform when a judge has engaged in multiple ethical violations on and off the bench during the entire course of his or her judicial career, fails to appreciate the impropriety of the misconduct, and continues to engage in the same conduct despite being advised of the ethical impropriety.

Ortiz (Florida Supreme Court January 29, 2019) (https://efactssc-public.flcourts.org/casedocuments/2018/674/2018-674_disposition_145284_d39g.pdf)

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Approving a second revised stipulation, the Florida Supreme Court suspended a judge for 90-days without pay, fined her $5,000, and publicly reprimanded her for failing to take reasonable steps to stay apprised of her financial circumstances, including failing to ask who paid for 3 trips she took with her husband and failing to verify the accuracy of her 2016 and 2017 financial disclosures, which did not report that the accommodations and other benefits on those trips were provided by the hotel. The Court also ordered that the judge pay costs of $377.45.

The judge took 3 trips with her husband in 2016 and 2017. The trips were allegedly part of an illegal compensation scheme from an international hotel chain provided to the judge’s husband, at the time the director of the Miami Beach Building Department. The judge testified that, at the time, she was unaware that the trips were provided free of charge by the hotel, and her husband provided sworn testimony to that effect.

The judge also testified that her husband managed their family finances. The judge’s husband completed her 2016 and 2017 financial disclosure forms, and the forms failed to report that the accommodations and other benefits on the trips were free. The judge admits she failed to verify the accuracy of those financial disclosures, despite certifying the veracity of the information. She has apologized and deeply regrets that her negligence may have damaged the public’s perception of the judiciary or impugned the integrity of her colleagues. In the Matter of Robison, 116 N.E.3d 452 (Indiana 2019)

Accepting a conditional agreement and petition to dismiss a matter as moot, the Indiana Supreme Court dismissed the statement of charges filed by the Commission on Judicial Qualifications against a non-lawyer judge. The judge had resigned from the New Haven City Court effective December 26, 2018; that same day, the city council unanimously voted to close the court, effective December 31, 2018. The Court found that “[c]ontinued litigation of this matter would be an inefficient use of limited judicial resources.” The Commission had alleged that the judge, without the authorization of the county prosecutor’s office and contrary to the prosecutor’s directions, permitted the filing and processing of state infraction cases in the city court and allowed individuals to be placed in the infraction deferral program, used the prosecutor’s signature stamp to approve infraction deferral program agreements, permitted juveniles to resolve infraction cases through a deferral program when such resolutions for juveniles were prohibited by statute, and dismissed with prejudice state infractions in which the court had accepted partial payments with no adjudication, which prevented the prosecutor from refiling them. Inquiry Concerning Magana, Findings of fact, conclusions of law, and disposition (Kansas Commission on Judicial Qualifications February 15, 2019)

Following a hearing, the Kansas Commission on Judicial Qualifications publicly admonished a judge for holding a prospective juror in contempt for failing to appear on the second day of jury selection in a trial without providing the juror any meaningful opportunity to be heard and imposing an unfair sentence.

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On Monday December 7, 2015, Terra McDaniel appeared for jury service and was sent to the judge’s division where she remained the rest of the day for jury selection in a criminal case. Jury selection was not completed, and the judge instructed prospective jurors to report the following morning at 8:45.

On Tuesday morning, McDaniel called the jury coordinator and said that she could not come in because she has no day care, her mother was sick, and she is a single mom. The jury coordinator explained that she had been given a previous deferral “to allow her time to work out the issues.” According to the coordinator’s notes on the call, when McDaniel was asked for another week that she could come in, McDaniel “started yelling at me and said her situation is not going to change, what are we going to do put her in jail. Asked her twice to stop yelling and she would not.” The jury coordinator’s supervisor called McDaniel and left a message that said the judge would decide whether she would be excused or receive a deferral.

Jury selection was completed Tuesday afternoon, but 2 subpoenaed materials witnesses failed to return after the noon hour. The unsworn jurors were dismissed early, and material witness warrants were issued.

At approximately 2:15 on Tuesday afternoon, McDaniel and her mother appeared at the jury coordinator’s office. At the judge’s direction, a clerk told McDaniel to return on December 18 for a contempt hearing. When McDaniel asked what a contempt hearing was, according to the clerk’s note, the clerk told her it was “to explain why she did not report back to court his morning after order from the Judge.” The judge also ordered that letters be sent to McDaniel advising her of the contempt hearing. The judge instructed “staff to tell McDaniel she was in direct contempt of court and would be scheduled for a hearing on December 18.”

On Friday December 18, McDaniel appeared, and the judge opened the hearing as “a proceeding for direct criminal contempt.” The clerks were not called to testify. The judge did not tell McDaniel that she had a right to be represented by an attorney or that an attorney could be appointed for her if she could not afford one. McDaniel did not testify.

During the hearing, the judge “stated on the record the facts as he understood them.” The judge noted that McDaniel’s juror questionnaire form indicated her desire to avoid jury service and to be excused because she is a single parent with work responsibility and “the judicial system is against my religious beliefs.” The judge referred to protection from abuse orders that McDaniel had been involved in to illustrate that McDaniel was familiar with the judicial system and stated that she used the system for her benefit so she should not shirk her duty to serve as a juror. He also mentioned several municipal court matters involving domestic violence charges against McDaniel from several years earlier. He advised McDaniel that many other juror candidates had more compelling excuses than she did.

The judge then convicted McDaniel of direct criminal contempt and sentenced her to a 6-month controlling jail sentence and ordered that she serve 30 days in jail beginning that day. In his journal entry, the judge did not specify the conduct constituting contempt but instead incorporated by reference the transcript of the hearing.

The sheriff took McDaniel into custody where she remained for the remainder of Friday, all day Saturday, Sunday, and Monday, and most of Tuesday morning.

After being contacted by McDaniel’s mother, McDaniel’s mother’s preacher, and 2 attorneys, the judge held a release hearing on Tuesday December 22. At the hearing, the judge commuted McDaniel’s sentence and ordered that she be released.

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In June 2017, the Court of Appeals overturned the finding of contempt against McDaniel because the judge’s reference to the hearing transcript did not meet the statutory requirement that a judge describe the conduct constituting contempt and “direct contempt orders that do not meet the requirement set forth in the statute are void.”

The judge stated that he “never intended” to leave McDaniel in jail for 30 days. The judge said he intended to release McDaniel on Monday but that Monday was a “blow up day” during which he was very busy. The judge “believed McDaniel and other jurors deserved ‘a lesson’ about the critical importance of juror participation in the criminal justice system.”

A Kansas statute, K.S.A. 43-165, provides that failure of a juror to report for jury duty is punishable by a maximum fine of $100 for each day of unexcused absence. The judge acknowledged that he failed to comply with that law.

However, the Commission concluded, the judge’s “erroneous application of the law on contempt was not made contrary to clear and determined law about which there is no confusion or question as to interpretation and the complained-of legal error was not made in bad faith.” The Commission emphasized that contempt is a difficult area of the law and the appellate court’s application of K.S.A. 43-165 was an issue of first impression and application. The Commission noted that the judge had performed legal research into contempt statutes but that the statutes regarding contempt are “in a completely different section of the Kansas statutes than the sections addressing jury service.” The examiner for the Commission had alleged in the supplemental notice of formal hearing that, if the judge “had performed a digital search of the Kansas statutes (e.g., Westlaw) by entering ‘penalty for juror failure to appear’ or something similar, K.S.A. 43-165 would have been the first hit” with a case discussing it. However, the Commission found that the examiner presented no evidence to support that allegation in the hearing. The Commission noted that the judge had also “discussed the situation with his colleagues on the district court bench and he actually followed the advice of one of his judicial colleagues.” The Commission concluded that, even if the judge had discovered K.S.A. 43-165, whether it applied to McDaniel’s situation was still a question and there was “no case law in either the Court of Appeals or the Supreme Court stating that K.S.A. 43-165 applied to the facts of this case.”

The Commission did conclude that the judge failed to accord McDaniel a right to be heard, violating Rules 1.2, 2.2, and 2.6. Noting that the judge had not referred during the contempt hearing to McDaniel’s right regarding representation by an attorney or appointment of an attorney, the Commission found that the judge had “researched McDaniel’s criminal history and presented the evidence at the hearing without any meaningful opportunity for McDaniel to be heard or to challenge the court’s findings.” It also found that the judge’s e-mails showed that “he had already decided that McDaniel was in contempt and that he was just researching the possible punishment.” The Commission stated that the judge had not taken any testimony at the contempt hearing and relied on hearsay evidence from the court clerks.

The Commission also concluded that the 30-day sentence the judge imposed was abusive and unduly harsh even if the delay in the trial was attributable to McDaniel and not in part to the failure of the 2 witnesses to appear after lunch. The Commission stated that it was not just the 4 days McDaniel spent in jail that was unfair, “but that she understood she was going to spend 30 days (including Christmas Day) in jail, being unaware that Respondent never

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intended for her to serve the fully sentence.” The Commission also found that McDaniel had no idea when she showed up for the contempt hearing that she would end up in jail.

In mitigation, the panel noted the judge’s successful career as an attorney and judge, describing letters and testimony about his dedication and character from other judges, his wife, and a member of a charitable board. In re Roberts, Agreed order of suspension (Kentucky Judicial Conduct Commission January 17, 2019) (https://courts.ky.gov/commissionscommittees/JCC/Documents/Public_Information/AgreedOrderRoberts.pdf)

Based on the judge’s agreement, the Kentucky Judicial Conduct Commission suspended a judge for 7 days without pay for leaving the scene of a vehicular accident in March 2018. The Commission ordered that, during the suspension, the judge shall not use his judicial office or his secure courthouse access pass and required him to turn in any access passes, keys, or credentials to court security. In the Matter of Humke, Stipulation and order of consent to discipline (Nevada Commission on Judicial Discipline January 11, 2019) (http://judicial.nv.gov/uploadedFiles/judicialnvgov/content/Discipline/Dicisions/2019.01.14%20Certified%20Copy%20of%20Stipulation%20and%20Order%20of%20Consent%20to%20Discipline.pdf)

Based on the judge’s consent and admission to the allegations, the Nevada Commission on Judicial Discipline ordered that a judge resign and barred him from serving in judicial office based on his lack of knowledge and ability to handle the legal and administrative duties of his family court docket.

In June, the Commission had suspended the judge for 3 months without pay for failing to supervise a judicial assistant who was not performing duties, failing to perform administrative duties and to answer his phone when on call, and failing to timely respond to the Commission’s investigator. In November, the Commission suspended the judge with salary pending a final disposition of a complaint filed by the presiding judge of his court based on deficiencies discovered when a senior judge presided over his cases during that suspension.

After Judge Deborah Schumacher advised Presiding Judge Bridget Robb of the issues she discovered while handling Judge Humke’s docket, Judge Robb conducted an audit of the minutes of all hearings presided over by Judge Humke for the 6 months prior to his suspension, conducted a further investigation of the status of numerous cases, and filed the complaint with the Commission. On October 1, 2018, the chief judge of the district re-assigned a significant portion of Judge Humke’s caseload, including all divorce and custody cases, and assigned Judge Schumacher to be his mentor. On October 16, Judge Robb filed a supplement to her complaint based on the judge’s failure to follow the advice of his mentor on returning to the bench and documented the judge’s continued failure to adequately supervise his judicial assistant.

Before and after his disciplinary suspension, the judge repeatedly abdicated his duty to make decisions and decide cases and inappropriately delegated those duties to others,

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including court staff, legal counsel and family law litigants. For example, in 1 contested case, the judge ordered an attorney for 1 of the parties to act as mediator between both parties when the other side was not represented by counsel. He repeatedly ordered litigants to meet and confer on contested issues rather than decide them himself. The judge placed a 5-month-old child with the paternal grandparents in Utah without establishing jurisdiction over the grandparents, beginning a formal guardianship proceeding, or making any finding of parental fault. The minor child remained with the grandparents for more than 2 years despite the parents’ repeated attempts to have custody restored. Judge Scumacker finally resolved the case by returning the child to the parents when she presided over the judge’s cases during his suspension.

The judge ignored the statutory requirements for child support in many cases, for example, shifting the entire health insurance burden to a party receiving child support while assessing a 100% downward deviation to the party paying child support based on the health insurance premium. He also improperly dismissed cases with prejudice, contrary to the norm in family court. The judge ordered that a protected party under an extended protective order supervise the adverse party’s visitation with her child. The judge held trials in cases in which parties had not received notice and arbitrarily allocated a retirement account between parties without considering the marital contribution. In 1 case, the deputy public defender and the chief deputy district attorney filed a joint complaint after the judge traumatized a juvenile litigant. The judge did not understand the legal impact of extended protective orders; for example, he ordered that a protected party supervise the adverse party’s visitation with her child while the order was in effect. The judge failed to address the lack of proper notice in several cases and held trials where parties never received notice of the proceedings. In at least 1 case, the judge arbitrarily allocated a retirement account between parties without considering the marital contribution to the account. The judge lacked diligence in his caseload. In some cases, hearings were held, but orders were never entered or were not timely entered.

The Commission found that the judge had been “recalcitrant” about correcting his legal deficiencies after returning to the bench. For example, the same day that Judge Schumacher specifically discussed guardianship cases with him and provided him with a bench card check list, the judge turned to his clerk in open court and asked if she found the petition for guardianship “to be compliant with the statute, generally.” In the Matter of Gross-Quatrone, 200 A.3d 411 (New Jersey 2019)

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court has suspended a judge for 2 months for surreptitiously recording 3 meetings with her assignment judge and denying that she recorded 1 of the meetings. The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment (https://www.njcourts.gov/attorneys/assets/acjc/QuatronePresentment.pdf?c=LGR).

The judge had a law clerk for the 2015/2016 term who began her clerkship on August 4, 2015. That clerkship “ended abruptly” on Friday December 10 after the law clerk complained to the county human resources supervisor and the trial court administrator about the judge’s abusive treatment. The following Monday, County Assignment Judge Bonnie Mizdol met with

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Judge Gross-Quatrone to discuss the removal of her law clerk and related issues. Judge Gross-Quatrone acknowledged that she told the law clerk she considered the law clerk’s performance to be deficient, but denied any abusive treatment.

Judge Gross-Quatrone attempted to surreptitiously record her meeting with Judge Mizdol on her cellular telephone. In a handwritten note on an e-mail she received from Judge Mizdol scheduling the meeting, she wrote: “Went up at 11:45. Taped meeting on phone. Almost 1 hr. Missed holiday Luncheon.” The judge again referred to this attempted recording in what appears to be a contemporaneous draft e-mail to Judge Mizdol recounting her version of their discussion. Despite these notes, which the judge kept throughout the Committee’s investigation, the judge, when interviewed by Committee staff, “initially feigned ignorance of this attempted recording” and only recalled “possibly” recording meetings when pressed during the interview. The judge now admits attempting to record the December 14 meeting but claims that attempt failed and no recording exists.

On the morning of December 21, 2015, Mizdol convened a management meeting in her chambers to discuss providing Judge Gross-Quatrone with administrative support from the existing family part law clerks for the remainder of the 2015/2016 court term. Judge Gross-Quatrone, Family Division Presiding Judge Peter Melchionne, Trial Court Administrator Laura Simoldoni, and Division Manager Diana Moskal were invited. Judge Gross-Quatrone unilaterally invited her secretary to attend the meeting as her “witness.” Judge Mizdol denied the judge’s request to admit her secretary into the meeting, but agreed to meet privately with Judge Gross-Quatrone before the meeting to discuss her need for a witness.

During her private meeting with Judge Mizdol, the judge repeated her request to have a “witness” at the management meeting or, alternatively, that the meeting take place in a courtroom where it could be recorded, both of which Judge Mizdol denied. Without Judge Mizdol’s knowledge, the judge recorded this meeting on an Olympus digital voice recorder secreted in her purse.

Judge Gross-Quatrone also recorded the meeting that followed without the knowledge of the other participants. The other participants became aware of the judge’s secretive recording when Simoldoni noticed a red light “beaming” from the top of the judge’s purse. Simoldoni reached into the purse, retrieved the judge’s digital recorder, and pressed the “stop” button. Simoldoni asked the judge if she was recording the meeting, and the judge replied: “No! It was a gift from my parents. I’m not taping the meeting. I don’t know how this thing works.” The judge reiterated this denial when questioned by Judge Mizdol. In response, Simoldoni replayed a portion of the recording that revealed that the judge had, in fact, recorded the meeting surreptitiously.

Judge Gross-Quatrone demanded the immediate return of her digital recorder. Simoldoni declined to return the recorder before speaking with counsel to the Acting Administrative Director of the Courts. The meeting ended shortly thereafter.

Judge Gross-Quatrone requested and was permitted a private meeting with Judge Mizdol. Judge Mizdol, after confirming that the judge was not recording that meeting, advised the judge that her conduct in surreptitiously recording the meeting and her subsequent denials of that conduct was “irretrievable” and constituted a “significant breach of trust.” The judge maintained that she had done nothing wrong and reiterated her request for the return of her recorder.

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Over the next several hours, the judge telephoned Judge Mizdol at least twice and the acting administrative director once seeking the return of her recorder. In response, Judge Mizdol advised the judge that she expected to hear from counsel’s office that afternoon and would advise the judge of the status of her recorder at that time.

Judge Gross-Quatrone telephoned Simoldoni and threatened to call the police if she did not return the recorder. The county sheriff’s office received a telephone call from Judge Gross-Quatrone’s courtroom asking about the telephone number for emergencies. In response, Sergeant Gabriel Soto conducted a ‘‘security check’’ of the judge’s courtroom and chambers area. The judge reported to Sergeant Soto that Simoldoni had taken her “personal property” without her permission and had refused to return it. Sheriff’s Lieutenant James Hague, at Sergeant Soto’s request, reported to the judge’s chambers. The judge recounted for Lieutenant Hague the events leading up to Simoldoni’s retrieval of her recorder, which the judge characterized as a “theft,” and said she wanted to file a report with the police department. Though feeling ill, the judge refused to leave the courthouse or seek medical treatment prior to the return of her recorder. Simoldoni, with the requisite administrative approvals, made a copy of the contents of the judge’s recording and released the recorder to the sheriff’s department that afternoon. A sheriff’s officer returned it to the judge that same day.

There were 3 files on the judge’s recorder: a recording of the judge saying “testing, testing, one, two, three, testing, testing;” a second that was blank; and the recordings of the judge’s private meeting with Judge Mizdol and the subsequent management meeting with other participants. The Committee noted that the judge’s evident testing of the digital recorder before using it conflicts with her claim to Judge Mizdol and Simoldoni that she did not know how the recorder worked. The Committee found it irrefutable that the judge knew how to use the digital recorder when she secreted it in her purse and lacked candor when she denied any knowledge of its operation to the judge and Simoldoni.

Judge Gross-Quatrone did not return to the Bergen County courthouse following these incidents and was transferred to the Essex vicinage, effective January 11, 2016, where she remains.

The judge argued that she was justified in surreptitiously recording the 3 meetings because she needed “to protect herself from recurring ‘workplace hostilities, belittling in the presence of staff, and verbal abuse’” by Judge Mizdol. The judge produced 2 witnesses to testify about an alleged “culture of mistrust” among court personnel towards the judge. The 2 witnesses testified that they had a cordial working relationship with the judge, but neither corroborated a “culture of mistrust” among the family part personnel towards the judge. To the contrary, 1 of the witnesses testified that none of the team she supervised who worked with the judge directly complained to her about the judge. The second testified that she had not witnessed any conduct that would lead her to believe that anyone was attempting to undermine the judge or place her in a position to fail.

The judge also testified about 4 exchanges in which she contends Judge Mizdol was verbally abusive and demeaning towards her prior to December 14.

First, prior to her start at the Bergen vicinage, the judge had advised Judge Mizdol that she had 2 scheduled vacations for July 2015. Judge Mizdol responded to the effect of: “Jesus Christ, do you have any other [expletive] vacations that I don’t know about?” Second, on the judge’s first day in the vicinage, Judge Mizdol advised the judge that personal appointments

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during the court day were “discouraged” and, given the workload, a judge’s workday typically exceeded the posted courthouse hours of 8:30 a.m. to 4:30 p.m. so the judge should not expect to leave the courthouse at 4:00 p.m. every day. Third, in a meeting, Judge Mizdol expressed her concern that the judge had discussed with the children-in-care team leader the quality of the children-in-care staff’s work and alleged “gossip” about the team leader, some of which related to a judge in the vicinage. (A subsequent investigation revealed that the rumors were unfounded.) Given the evident deterioration in the judge’s relationship with her children-in-care team leader, with whom she interacted daily, Judge Mizdol advised the judge that she would be transferred to a docket comprised of child support enforcement matters, non-dissolution matters, and a post-judgment motion calendar.

Fourth, after Judge Melchionne advised Judge Mizdol that Judge Gross-Quatrone had refused to handle an assigned domestic violence matter, Judge Mizdol visited the judge’s courtroom, noted it was empty, as were the benches immediately outside, and entered the judge’s outer chambers area, which was also empty. Judge Mizdol found the judge seated at her desk, in her office, with her court clerk and her secretary. When the staff left the judge’s office, Judge Mizdol, admittedly upset, stated, “What the [expletive] is going on here?” The judge explained that she was preparing to handle a non-dissolution matter that had been lingering in the courthouse for several hours. Judge Mizdol was concerned about the judge’s “apparent inability to manage her calendar appropriately” and discussed with the judge several options to address more efficiently her docket and motion calendar and offered to assist the judge and her staff in this effort.

The Committee found that the judge’s defenses did not justify or mitigate her intentional misconduct. It explained:

While Respondent may have perceived herself to be the subject of hostile treatment, she had available to her several options to address that situation short of engaging in deceptive and insubordinate conduct. Respondent could have communicated her concerns directly to the Acting Administrative Director of the Courts or the Assistant Director of Human Resources at the Administrative Office of the Courts. Respondent’s decision to forego these legitimate avenues to address workplace concerns does not constitute a viable defense in this proceeding.

Finally, the judge argued that her surreptitious recordings were “legal” in New Jersey and she cannot be disciplined for legal conduct. Rejecting that argument, the Committee stated that the judge’s “documented insubordination in her interactions with her Assignment Judge and lack of credibility both to her Assignment Judge and this Committee constitute a sharp deviation from the integrity demanded of all jurists under Canons 1 and 2 of the Code of Judicial Conduct and is deserving of public discipline.”

The Committee concluded that the judge’s insubordination and subsequent denials were “an affront to these high ethical standards for which public discipline is warranted. . . .” The Committee noted that the judge’s insubordination “occurred in full view of subordinate court personnel,” thus undermining Judge Mizdol’s authority. It explained:

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Such insubordination is intolerable in an institution such as the judiciary where the operational fortitude of the organization depends appreciably on its members’ compliance with the mandates of the administrative hierarchy. Absent such compliance by its most senior members, i.e. jurists, the judiciary risks similar noncompliance from subordinate court personnel and, for that matter, court users who are required to abide by court orders or face potential sanctions. Irrespective of Respondent’s professed legal right to do so, such surreptitious recordings are wholly incompatible with the heightened standards to which every jurist is held under the Code of Judicial Conduct and the probity required to hold judicial office.

The Committee concluded that the judge’s defiance of her superior and lack of candor “suggest a disturbing lack of sound judgment and professional integrity that, if left unaddressed, threaten the dignity of the judicial office and the public’s confidence in the judiciary as an institution worthy of deference.”

The Committee stated that the judge’s misconduct had “been aggravated considerably by her attempts to mislead this Committee during its investigation with expressions of feigned ignorance” about having surreptitiously recorded the December 14 meeting and her conduct after the December 21 meeting. The Committee noted that the judge’s multiple calls to the assignment judge seeking the return of her recorder, her threats to have the police intervene, and her “spurious incident report” to the sheriff’s office “exacerbated an already tense situation and unnecessarily exposed additional courthouse staff to this incident.”

In mitigation, the Committee noted that the judge had performed satisfactorily since her transfer to the Essex vicinage

2 charges against the judge were dismissed. The complaint had also alleged that the judge used her judicial secretary to perform personal tasks on judiciary time, but the Committee concluded that the evidence did not establish clearly and convincingly that the personal tasks performed by her secretary exceeded the incidental personal use allowed by the code. The personal work included paying the judge’s bills on-line, managing the judge’s personal travel arrangements, corresponding with merchants on the judge’s behalf and, in one instance, assisting the judge’s son with a homework assignment.

The Committee also found that, although the judge’s law clerk had started her employment with the judiciary early, in contravention of judiciary policy as alleged in the formal complaint, the judge’s knowledge of that policy had not been established by clear and convincing evidence, and, therefore, the judge’s administrative failure did not warrant judicial discipline. Inquiry Concerning Walker, Order (New Mexico Supreme Court January 31, 2019) (http://www.nmjsc.org/wp-content/uploads/2019/02/37498-Order-Granting-Petition.pdf)

Granting a petition to accept a stipulation to the permanent resignation of a judge in lieu of a temporary suspension and further disciplinary proceedings (http://www.nmjsc.org/wp-content/uploads/2019/02/Walker-Petition.pdf), the New Mexico Supreme Court ordered the permanent resignation of a judge based on her arrest on January

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23, 2019, for driving under the influence of intoxicating liquor or drugs and failure to maintain a proper lookout and the resulting criminal proceedings. In the Matter of Simon (New York Supreme Court Appellate Division February 13, 2019) (http://www.courts.state.ny.us/courts/ad2/Handdowns/2019/Decisions/D57953.pdf)

The New York Supreme Court Appellate Division disbarred a former judge predicated on the factual findings of the State Commission on Judicial Conduct that were sustained by the Court of Appeals in 2016 when it removed him for (1) threatening to hold a student working in the court clerk’s office and other village employees in contempt, threatening to arrest the student with no lawful basis, and grabbing his arm; (2) threatening to hold various individuals in contempt without basis or authority in law for conduct outside the courtroom; (3) being rude and discourteous to village officials and employees; (4) imposing monetary sanctions against a legal services agency without basis or authority in law and discourtesy to the agency’s attorneys; and (5) permitting a candidate for county executive to quote him in a campaign press release. In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019) (http://www.cjc.ny.gov/Determinations/A/Abbott.William.E.2019.02.07.DET.pdf)

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for invoking his judicial position when asking the police for assistance in unlocking his personal vehicle and threatening to refuse to do arraignments in the future if they refused his request.

The judge is a justice of the Palmyra Town Court and an associate justice of the Palmyra Village Court. The Town of Palmyra and the Village of Newark adjoin one another, and the judge presides over the arraignments of defendants brought to Palmyra by Newark Police Department officers when the justice and associate justice of the Newark Village Court are unavailable.

On November 28, 2017, at approximately 3:00 p.m., the judge accidentally locked the keys inside his personal motor vehicle, which was parked at the Newark-Wayne Community Hospital. The judge called 911 and spoke to Patricia Latta, a Newark Police Department clerk. He asked Latta to send police personnel to unlock his personal vehicle. Latta informed the judge that, pursuant to police department policy, the police did not respond to requests to unlock cars unless it was an emergency, such as when a child is locked inside the vehicle. Latta offered to contact a local automotive garage to assist the judge.

The judge replied that the police had “done this before for me,’’ and then said in a raised voice, “I am Judge Abbott of Palmyra and I just won’t do any arraignments for you anymore.” Latta felt intimidated, told Sergeant Michael Patton about the call, and asked Sergeant Patton to assist the judge with his locked vehicle. Sergeant Patton left the police facility and drove to the judge’s location at the hospital. Pursuant to police department policy to document the whereabouts of officers, Latta notified the 911 dispatcher that Sergeant Patton was responding to the judge’s call for assistance with his car.

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At the hospital parking lot, Sergeant Patton was unable to unlock the judge’s car. Sergeant Patton then called a second officer, who arrived soon and unlocked the vehicle. Sergeant Patton spent approximately 20 minutes with the judge before the car was unlocked.

The judge recognizes that identifying himself to the police as a town justice while making a personal request for assistance with his personal vehicle was wrong, that a willful refusal to conduct arraignments would be prejudicial to the administration of justice, and that “his threat out of pique not to conduct arraignments was wrong and undermined public confidence in the courts, even if he did not intend to carry it out.” The judge states, and the Administrator has no evidence to the contrary, that at the time of his call to the police, he “was experiencing physical irritation as a result of a recent medical procedure” but “acknowledges that notwithstanding any discomfort associated with the procedure, his actions and statements were improper.”

In 1989, the judge was censured by the Commission for soliciting an affidavit from a witness in a case pending in another court on behalf of the defendant’s counsel, who was his friend.

The Commission found that the judge’s identification of himself as a judge “standing alone, would have constituted an implicit request for special treatment, which is inconsistent with the high ethical standards required of every judge” and that his statement that the police had “done this before for me” made his request for special treatment “explicit, clearly conveying that his judicial status entitled him to deference and exempted him from policies that apply to others. Asking the police to depart from an established policy for his personal benefit was a particularly improper assertion of special influence.”

Finally, the Commission stated, the judge compounded his misconduct by threatening “to retaliate against the Newark police if they did not respond favorably to his request.” Emphasizing that “[p]erforming arraignments for police from an adjoining village” was part of his duties, the Commission explained:

By stating plainly that he would not provide judicial services (“I just won’t do any arraignments for you anymore”), he intimidated the clerk into asking a sergeant to respond to the request and, as a result, two police officers were diverted from their official duties while they assisted him with his personal vehicle, assistance that could have been provided by an automotive garage. There is no justification for a judge’s refusal to perform judicial duties out of personal pique, and even threatening to do so is detrimental to public confidence not only in the integrity of the judge’s court, but in the judiciary as a whole.

In aggravation, the Commission noted the judge’s prior discipline. In mitigation, it noted

that he has served as a judge for 40 years, has acknowledged his misconduct and expressed regret, and “‘pledges to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.’” The Commission also stated that it was mindful of the judge’s “claim that at the time of the incident he was affected by physical discomfort as a result of a recent medical procedure.”

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In the Matter of Wachtman, Determination (New York State Commission on Judicial Conduct February 7, 2019) (http://www.cjc.ny.gov/Determinations/W/Wachtman.Kathy.2019.02.07.DET.pdf)

Accepting an agreed statement of fact and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for holding a preliminary hearing without the defendant’s attorney after denying his request to adjourn because he was required to appear at a sentencing proceeding in federal court at the same time and committing errors during the hearing that gave the appearance of bias against the defendant.

On April 23, 2017, Tysean Harris was arrested and charged with possession of a controlled substance and violations of several vehicle and traffic laws. When Harris appeared before the judge for arraignment on April 24, 2017, at 4:00 a.m., he advised her he was represented by James Riotto. The judge gave Harris an opportunity to contact Riotto, who was unavailable. The judge continued the matter and committed Harris to jail without bail based on his 2 prior felony convictions.

At 4:00 p.m., Harris re-appeared before the judge represented by Daniel Masny, who was counsel to Riotto’s office. Masny waived reading of the charges and entered a not guilty plea on Harris’ behalf. The judge scheduled a preliminary hearing for April 28 at 10:00 a.m., and faxed and mailed the notice of the preliminary hearing to Riotto and the county district attorney’s office. On April 25, the judge rescheduled the preliminary hearing to April 26 at 3 :00 p.m..

On April 26, prior to 10:00 a.m., Riotto telephoned the court, spoke to a court clerk and requested an adjournment. He also notified the county assistant district attorney Timothy Chapman that he would request an adjournment. Riotto had made no prior requests for an adjournment. Chapman objected to an adjournment because the prosecution’s witnesses had been subpoenaed and the defendant’s transportation from the jail had been arranged.

At approximately 11:20 a.m., Riotto faxed a letter to the judge requesting an adjournment of the preliminary hearing and stating that he was required to appear in federal court at the same time for a sentencing proceeding.

At approximately 11:30 a.m., the judge faxed a letter to Riotto denying his request for an adjournment because “[t]he People” were ‘“still planning to move forward with Harris’ preliminary hearing,’’ witnesses were prepared to appear, and Harris’ transportation from jail had been scheduled. At approximately 11 :40 a.m., the judge faxed the letter to Chapman.

At approximately 12:30 p.m., Riotto faxed a letter to the judge, objecting to her denial of his request for an adjournment, citing U.S. Supreme Court precedent that defendants have a constitutional right to be represented by counsel at a preliminary hearing, and asking that his letter be made part of the official court record of the proceeding.

At approximately 3:00 p.m., the judge presided over the preliminary hearing. The judge did not place Riotto’s written objection to her decision to deny his request for an adjournment on the record and did not inform Harris that his counsel would not be present. The judge did not inform Harris of his right to counsel and the right to an adjournment to obtain counsel; did not ask whether he wished to proceed without counsel or understood the significance of proceeding without counsel; and did not inform him of his right to testify on his own behalf, to call witnesses, and to cross-examine each of the prosecution witnesses.

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After the judge made a finding that there was reasonable cause to believe that the defendant committed a felony, Harris asked if he could question the witnesses, and the judge belatedly permitted him to do so.

After the preliminary hearing, the judge remanded Harris to the county jail. On June 12, Harris pled guilty to a reduced charge of criminal possession of a controlled

substance 7th degree in satisfaction of all the charges. The judge sentenced Harris to time served, i.e., 50 days, and a $205 surcharge.

The judge has been cooperative with the Commission throughout its inquiry and “now recognizes and appreciates that a judge must ensure that the due process rights of defendants are accorded before decisions are rendered, including the right to have one’s counsel present at all critical stages of a proceeding.”

Emphasizing a defendant’s “absolute right to counsel” at a preliminary hearing, the Commission found that the judge’s “denial of defense counsel’s request for an adjournment of the preliminary hearing in the Harris case is inexcusable,” particularly given that Harris’s lawyer was given only 1 day’s notice after the judge moved up the hearing date by 2 days without explanation and had promptly requested an adjournment and informed the judge that he was required to appear at a sentencing proceeding in federal court at the same time. The Commission noted that, in denying the request, the judge “appears to have relied solely on the prosecutor’s opposition to the application, which, on the facts presented, conveys the appearance of bias . . . .” The Commission also stated that the judge made a number of errors during the hearing that gave the appearance that she was biased against the defendant and emphasized that, “the defendant, having been deprived of constitutional and statutory rights, remained in custody for almost two months before pleading guilty to a reduced charge, when respondent sentenced him to time served.”

In mitigation, the Commission noted that the judge’s misconduct appears to be limited to a single case and she “now appreciates that a judge must ensure that before decisions are rendered, defendants are accorded due process,” and stated that it trusted that the judge “has learned from this experience and in the future will act in accordance with her obligation to follow constitutional and statutory mandates and abide by the Rules Governing Judicial Conduct.”

Disciplinary Counsel v. Salerno (Ohio Supreme Court February 12, 2019) (http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-435.pdf)

Accepting the findings of fact and misconduct of the Board of Professional Conduct based on stipulations and the judge’s agreement, the Ohio Supreme Court suspended a judge for 1 year for (1) reducing bail in a case from $350,000 to $85,000 following ex parte texts from the defendant’s attorney forwarded to her by her bailiff and (2) changing her verdict in a bench trial from guilty to not guilty after losing her temper when the prosecutor refused to dismiss an unrelated charge against the same defendant; the Court stayed the suspension conditioned on the judge engaging in no further misconduct, paying the costs of the proceeding, and completing 6 additional hours of CLE on judicial ethics including judicial demeanor, civility, and professionalism.

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(1) On November 10, 2016, the judge arraigned Tabatha Scalf on felony drug possession charges. The prosecutor requested a “high bond.” Scalf was represented by private counsel. Scalf’s counsel explained that Scalf had been a lifelong resident of the county, owned an electronics business, lived with her mother, and had no previous criminal record. The judge set Scalf’s bail at $75,000 cash, surety bond, or appearance.

Later that day, the judge arraigned Scalf’s co-defendant Juan Mendoza. Mendoza appeared with a public defender and a Spanish-speaking interpreter. The prosecutor again requested a “high bond” and told the judge that, although Mendoza had no known prior record, he did not have a Social Security number, which made it difficult to assess his criminal history. The prosecutor also expressed concern that Mendoza might be a flight risk. The judge acknowledged that Mendoza and Scalf were co-defendants and appeared to reside in the same home. However, noting “the amount of heroin involved” and that Mendoza had “no identifiers,” was “not documented in our country,” and did not claim to own a business as Scalf had, the judge set his bail at $350,000 cash or surety bond only.

Following his arraignment, Mendoza retained attorney Eric Brehm. Brehm then contacted Salerno’s bailiff, Rob Phillips, by text message, and they had the following exchange:

Attorney: Hey rob are you in 4d today? Brenda Williams the bond lady is messaging me about a bond that got set on a case this morning where the cofedendant got $75k the other got $350k Attorney: Brenda said that was prolly a mistake so I was wondering how it could get corrected. Attorney: Defending is juan Mendoza Attorney: Co defendant is tabitha scalf at $75k Attorney: Looking for the same bond on Juan Mendoza. Let me know please what the judge says about it and if it can get corrected today if you are around Bailiff: We left about 1215 today. I’ll ask her. She’s duty. She’s the one to make a change if needed Attorney: Cool thank you Bailiff: I sent her all the info. See if it jogs her memory Attorney: Thanks again man Bailiff: You got a case number? Bailiff: And what’s name again Bailiff: She’s gonna look at it Attorney: Yep one sec Attorney: Juan Mendoza Attorney: 16 cra 25613 Attorney: Tabitha Scalf is co def

The bailiff forwarded the text communications to the judge.

Based on those ex parte texts, the judge reconsidered Mendoza’s bail, telephoned the clerk’s office, and lowered the amount from $350,000 to $85,000. Mendoza posted bond and was released from custody later that day. The judge never informed the prosecutor of the ex

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parte communications or that she had reduced Mendoza’s bond; the prosecutor learned of Mendoza’s release through the media.

At her disciplinary hearing, the judge testified that she did not initially think that the text messages were improper because they came to her through her bailiff. She explained that she had questioned her initial decision to set Mendoza’s bond so high and subsequently determined that it would be appropriate to reduce his bail amount. The judge also acknowledged that she had come to understand that the text messages were improper and assured the panel that she would not engage in such conduct again.

(2) On January 15, 2017, Mai Toe was ticketed for making an improper turn. The prosecutor assigned to the case learned that Toe had an outstanding warrant for her arrest based on her failure to appear on a separate citation for driving at an unreasonably slow speed. The prosecutor offered to dismiss the slow-speed case if Toe agreed to plead guilty in the improper-turn case, but Toe rejected the offer.

The judge presided over a bench trial in the improper turn case with Toe representing herself. After hearing testimony from the police officer who issued the citation and from Toe, the judge found Toe guilty of making an improper turn but stated that she was not going to fine her or charge court costs.

The judge then asked the prosecutor to “dismiss the slow speed case so we don’t have to have her back and go through another trial on this. Since you originally offered her that for a guilty plea, are you willing to do that?” When the prosecutor resisted that suggestion, the judge stated: “Okay. Fine. I will do it this way. Please delete the prior stuff. I’ll find you not guilty, ma’am. Thank you. Trying to clean up the docket, guys, not add to it. Okay. Thank you.”

After consulting her supervisor, the prosecutor returned to the judge’s courtroom, and the judge called her to the bench and, off the record, asked her to dismiss the slow-speed case. After the prosecutor declined that request, the judge went back on the record and announced:

Miss Toe had a court trial on an improper turn. There was direct contradiction between her and the other witness. The officer said she turned left, and she stated she turned right. It was a he-said-she said case and it was not beyond a reasonable doubt. I will find Miss Toe not guilty on that case. In addition, Miss Toe has a case that is order-in in my courtroom. That will be reassigned. Order-in set aside. Reassign for a new date. In judicial discretion and reviewing this, I decided before this was docketed and finalized that I would make the decision to find her not guilty because of the fact of the contradictory testimony and it wasn’t proven beyond a reasonable doubt. So, Miss Toe, you will be getting a new date for your second case.

The prosecutor later dismissed the slow-speed case because the police officer who

issued the ticket failed to appear for trial. At her disciplinary hearing, the judge testified that she attempted to achieve what she

believed was a “fair” result by finding Toe guilty of the improper turn offense, in the hope that the prosecutor would then agree to dismiss the slow-speed case. She admitted that she became frustrated when the “brand new,” “overzealous,” “abrupt,” and “rude” prosecutor

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rejected her proposed resolution and that that frustration probably led her to change her guilty finding in the improper turn case.

The Court noted 2 aggravating factors: the judge had committed multiple offenses and had a prior disciplinary record. In 2015, adopting an agreement based on stipulations, the Court had publicly reprimanded the judge for telling jurors in a criminal trial that they had reached the wrong verdict. Ohio State Bar Association v. Salerno, 28 N.E.3d 84 (Ohio 2015). In mitigation, the Court noted the judge’s full and free disclosure to the Board on Professional Conduct, cooperative attitude toward the disciplinary proceedings, and positive character evidence, including the testimony of another judge and more than 30 character letters from friends, attorneys, former clients, current and former colleagues, and others familiar with her community involvement with LifeCare Alliance, the American Cancer Society, the Columbus Cancer Clinic, and the James Cancer Hospital. Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019) (https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-670.pdf)

Accepting a consent-to-discipline agreement, the Ohio Supreme Court suspended a former judge from the practice of law for 6 months for his actions after his 17-year-old daughter was ticketed for speeding, including trying to talk to the prosecutor about her case during a hearing in an unrelated case, complaining that the state trooper who pulled her over had not shown him professional courtesy, saying in unrelated cases that he did not trust troopers like he used to, testifying as a radar expert in his daughter’s case, and complaining to the magistrate who presided in his daughter’s case that the magistrate had questioned his credibility.

On September 1, 2016, Ohio State Highway Patrol Sergeant David Stuart stopped 17-year-old A.M. for speeding and having expired tags. When Stuart approached the vehicle, A.M. immediately identified herself and stated that her father was “Judge Marshall.” A.M. called her father on her cell phone and explained that she had been pulled over for speeding; A.M. asked Stuart to talk to the judge. Initially, Stuart declined, but he took the phone when A.M. handed it to him. The judge disputed Stuart’s assertion that the tags were expired and asked Stuart if he was going to give A.M. a ticket. Stuart stated that he was going to write A.M. a ticket for speeding because she “was running 14 over.” Stuart then attempted to hand the phone back to A.M., but she refused to take it, so Stuart placed the phone on the dashboard. Stuart gave A.M. a citation for speeding and a warning for the expired tags. Both A.M.’s license and the citation reflected a Jackson County address.

On September 7, the judge instructed his assistant to draft a letter on Scioto County Court of Common Pleas letterhead to Judge Lemons at the Scioto County Juvenile Court. The letter stated:

Good morning! My daughter, [A.M.], was recently cited for a traffic violation. I understand her license reflects her mother’s address, but I am the residential parent, and her current correct residential address is * * * Portsmouth, Ohio 45662. I’m providing this information to ensure this matter is not transferred to Jackson County. Thank you in advance!

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A.M.’s traffic case was assigned to Magistrate Rebecca Bennett in the Scioto County

Juvenile Court. Shortly after the assignment, when County Assistant Prosecuting Attorney Jay Willis was in the judge’s courtroom on an unrelated matter, the judge attempted to engage Willis in a conversation regarding A.M.’s traffic case. Willis replied that he had not seen A.M.’s case and that he did not want to discuss it. The judge asked, “What do you guys usually do with these cases?” Willis replied that speeding cases were usually resolved by the payment of a fine and participation in a safety program for juvenile traffic offenders. The judge then said, “I didn’t like the trooper. He didn’t listen to me. There used to be a code in this county—I’m a judge and he shouldn’t have written my daughter [a ticket].” Willis, who was uncomfortable with the topic, tried to redirect the conversation and eventually decided to just walk out of the courtroom.

On several other occasions, the judge continued to make comments to Willis about A.M.’s case and Stuart’s behavior. Feeling pressured by the judge, Willis asked County Prosecuting Attorney Mark Kuhn to handle A.M.’s case. Kuhn agreed.

On October 6, the judge appeared with A.M. at her arraignment, and, at the judge’s request, Magistrate Bennett appointed attorney Eugene Meadows to represent A.M. During an off-the-record conversation, the judge told the magistrate that “the trooper was rude to him” and that he “wanted to get the trooper in trouble.” After several continuances, the court scheduled a pretrial conference for April 4, 2017.

In general, the policy of the Scioto County Juvenile Court allows only the lawyers representing the parties in the courtroom for pretrial conferences. Prior to A.M.’s pretrial conference, the magistrate told the bailiff that she was not going to treat A.M.’s case differently and that the judge would not be allowed in the courtroom. Accordingly, when A.M.’s pretrial hearing was about to begin, the bailiff opened the door and announced, “Counsel only,” and Meadows and Kuhn entered the courtroom. The judge then approached the bailiff, said, “I’m her father and I’m an attorney, and I’m coming in,” pushed the bailiff’s arm out of the way, walked into the courtroom. The magistrate signaled to her bailiff that it was okay for the judge to enter the courtroom. After speaking with counsel, the magistrate scheduled another pretrial conference for August 10.

On August 10, before A.M.’s pretrial conference began, Meadows and Kuhn were discussing the case outside the courtroom when the judge approached them and interjected, referring to Stuart, “If he cuts my little girl, I’m going to cut him.”

During the pretrial conference, which took place off the record, the judge stated that Stuart had been unprofessional and had shown him no professional courtesy. The magistrate set A.M.’s final adjudicatory hearing for September 18.

Shortly thereafter, and in the presence of other lawyers, the judge complained to Meadows about Stuart and stated that he would hold Stuart’s behavior against other troopers in future cases before him. An assistant prosecuting attorney who overheard the comment told the judge that he should not let the actions of 1 trooper color 30 years of experience with the highway patrol, and the judge responded that he was just joking.

On September 14, the judge told Kuhn that he would like to meet with Stuart and that, if Stuart agreed to meet, he would have A.M. plead guilty, but if Stuart refused to meet, they would take the case to trial. The judge also stated that he “wanted to take the trooper back to

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1982.” When Kuhn indicated that he did not know what the judge was referring to, the judge said, “Back when there was professional courtesy [my] daughter would not have received a ticket.” The judge then mentioned that a highway-patrol trooper had recently ticketed a judge and one of Kuhn’s employees and that the trooper’s behavior warranted the judge’s treating troopers differently in his courtroom. Kuhn disagreed with the judge’s proposal and ended the discussion.

The next day, assistant prosecuting attorneys Tieman and Pat Apel, an Ohio State Trooper, and defense attorney Rick Nash were outside the judge’s office waiting for a suppression hearing in State v. Vinson. While everyone was waiting outside his office, the judge hollered for his secretary to get Stuart on the phone, made derogatory comments about Stuart, and indicated that Stuart had failed to return his calls regarding A.M.’s ticket.

Before the suppression hearing began, Apel and Nash worked out a plea agreement, and, consistent with the court’s practices, Apel told the judge that the case had been resolved. But the judge stated, “No it hasn’t. I don’t trust the highway patrol like I used to.” Consequently, Apel, Trooper Lewis, and Nash went into the courtroom for the suppression hearing. Once again, the judge began hollering about Stuart. Tieman then approached the judge and told him that he should not have called Stuart about A.M.’s case, especially since the matter had been set for a hearing the following Monday. The judge responded that he was not talking about A.M.’s case in particular, but rather “the perception.” Immediately thereafter, the judge took the bench and forced the parties to conduct the suppression hearing in Vinson.

During the suppression hearing, Apel called Trooper Lewis to the stand and questioned him about the traffic stop that led to Vinson’s felony arrest. Lewis testified that he had paced the defendant going 60 mph in a 55 mph zone and that he had observed the defendant commit other traffic violations before pulling the defendant’s vehicle over. Interrupting, the judge questioned Lewis about the calibration of his speedometer and the condition of the tuning forks that were used to check the calibration. Part of the exchange went:

[Marshall]: Are you sure those turning forks are in good order—don’t have any chips in or dents or anything like that? Lewis: As far as I know, mine radared the uh— [Marshall]: Do you have the exact [forks] you used? Lewis: I’m sorry? [Marshall]: Do you have the exact forks that you used so that we could make sure that your forks are accurate? Lewis: I have the forks that are assigned to me by the radio techs that come in and calibrate it— [Marshall]: Well then they need to come in and testify to it then, don’t they? So, we’ll just take this under advisement at this point.

The judge then threw down his legal pad and walked off the bench. The defendant’s lawyer did not ask any questions, and the case was continued to September 29.

On September 18, the judge again made derogatory comments about the highway patrol to Tieman and also noted that prosecutors Kuhn and Apel had done nothing to help

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change his view of the highway patrol. The judge had directed his assistant to call Stuart at twice, but Stuart was on medical leave and had not returned the judge’s calls.

On September 29, because the judge called in sick to work, the suppression hearing in Vinson was rescheduled for October 27. On that date, the parties appeared and again indicated to the judge that a plea had been worked out. This time, the judge accepted the plea.

On November 17, before the proceedings against A.M. commenced, the attorneys and Stuart waited outside the courtroom in the hallway. The judge approached Stuart and said, “Are you Trooper Stuart?” Stuart responded, “I’m Sergeant David Stuart, nice to meet you.” The judge turned away, then looked back at Stuart and said, “A**hole.”

During the fact-finding phase, Kuhn questioned Stuart about A.M.’s traffic stop. Stuart testified that he had cited A.M. for speeding and had given her a warning for having expired tags. The judge interjected, “It was not a warning. * * * You did not give a warning.” Kuhn objected to Marshall’s outburst, and the magistrate sustained his objection. On cross-examination, defense attorney Meadows questioned Stuart about the tuning forks and their integrity. Meadows also asked Stuart what he did before he started working for the highway patrol. Stuart questioned the relevance of the inquiry, and the judge blurted out, “You don’t ask questions.” The magistrate then admonished the judge and stated, “Okay. Let’s set some rules. First of all, Mr. Marshall, you’re not to be asking questions.” The judge responded, “Well, I understand; but he’s not allowed to be asking questions either.” Upon the conclusion of Stuart’s testimony, Meadows asked for a short recess.

Prior to the resumption of the hearing, Meadows asked the judge, “You’re sure you want to do this?” The judge replied, “Yes,” and took the stand. On direct examination, the judge claimed that he was qualified to testify as an expert witness that the condition of a tuning fork could affect a radar reading based on information that he had obtained while he was employed as a city prosecuting attorney, a position he last held in 1994. The judge testified that he had “gone to the State academy on many occasions to be taught how the radar unit works,” and that he had “had more education than [Stuart].” In addition, the judge stated that the best way to determine the condition of the troopers’ turning forks would be to bring them into the courtroom. The judge also commented that the “trooper was rude” and that Stuart was the only trooper that he had had issues with in his entire career. On cross-examination, Kuhn asked, “And, the question of the trooper being rude here was about whether the citation should have been issued. I mean, in the end, that’s what we’re talking about. Right?” The judge responded, “Yes.” On redirect, Meadows asked the judge if he had been able to finish his telephone conversation with the trooper on the day that A.M. was pulled over, and the judge responded in the negative. Meadows then asked the judge whether he knew why he had not been able to finish his conversation with the trooper, and the judge replied, “Because he threw my daughter’s phone in her lap.”

At the conclusion of the trial, the magistrate was prepared to issue a decision from the bench; however, Kuhn requested that the magistrate issue a written decision and with the consent of Meadows, asked that the court delay issuing the decision. Kuhn explained that he had an upcoming felony criminal matter in front of the judge and was worried that an adverse decision in A.M.’s case would impact the judge’s actions in that case.

Over the next several weeks, the magistrate prepared a written decision finding A.M. to be a juvenile traffic offender. The magistrate presented the decision to Judge Lemons for his

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review and signature. The decision was issued on December 17, and the disposition hearing was scheduled for January 30, 2018, at 8:45 a.m. to accommodate the judge’s schedule.

On January 23, the judge called the juvenile court and asked to speak to the magistrate. Because the decision in A.M.’s traffic case was not yet final, the magistrate hesitated to answer when she saw the judge’s name on the caller ID, but she ultimately decided to answer the call. The following exchange occurred between the magistrate and the judge:

[Magistrate]: Hi Judge, are you there? [Marshall]: Yes. [Magistrate]: Sorry, I’m sorry I hesitated a little bit to make sure we were connected. What can I help you with? [Marshall]: I just want you to know, have you ever had an expert come in and testify about radar? [Magistrate]: Judge, this is probably not a conversation we should be having— [Marshall]: Have you ever had an expert testify about radar? [Magistrate]: I know we should not be having this conversation— [Marshall]: If not, you cannot make that finding. You questioned my credibility. Screw that. Bye.

The judge hung up the phone. The magistrate immediately informed Judge Lemons of the call and scheduled a status conference for the following day. At the status conference, the magistrate disclosed the judge’s telephone call and asked whether the attorneys wanted her to recuse herself. Both Meadows and Kuhn consented to the magistrate’s continuing to preside over A.M.’s case.

On January 30, 2018, A.M. appeared with Meadows and Marshall for the final disposition of her traffic case. Before the magistrate announced the disposition, the following exchange occurred:

[Magistrate]: Okay. All right. Your Honor, is there anything you want to say on your daughter’s behalf? [A.M.]: He’s good. Marshall: She’s a good kid and I, you questioned my credibility and that is a problem but I don’t get a say.

The magistrate then adjudicated A.M. a juvenile traffic offender and imposed court costs. The judge inquired, “Are there points involved in that?” When the magistrate said there were, the judge stated, “So I have to pay the insurance for it.” The judge also said, “When I was the Municipal Court Judge, I had to have an expert come in an[d] testify as to the accuracy of the radar and if you haven’t done that, I don’t believe you can go forward.” The magistrate replied, “Well, those are things to raise in an objection. So, then Judge Lemons will take a look at it. All right. Anything else?” The magistrate then concluded the matter.

In aggravation, the parties stipulated that the judge had committed multiple offenses in this case and had been publicly reprimanded for driving while intoxicated in 2015. In mitigation, the Court noted the judge’s full and free disclosure of his actions and cooperative

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attitude toward the disciplinary proceeding, his significant involvement in the community, and his good character. Having acknowledged that his conduct in A.M.’s case was inappropriate, the judge resigned as judge effective March 16, 2018. Weiss (Tennessee Board of Judicial Conduct January 11, 2019) (http://www.tncourts.gov/sites/default/files/docs/weiss_-_public_reprimand.pdf)

Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for delay in entering a final ruling in a domestic relations case, failing to promptly enter a ruling following a remand from the state supreme court, and failing to respond to notices from the Board.

On November 29, 2015, the judge conducted a hearing in a domestic relations case and told the parties he would issue an order and granting the divorce. On August 26, 2017, and May 29, 2018, a party in the case made motions for entry of a final ruling.

The judge presided over a trial in which a verdict of $3,705,000 was awarded in favor of the plaintiff in a motor vehicle accident case. After the verdict, the judge suggested a remittitur of $1,605,000. Eventually, the Tennessee Supreme Court remanded the case to the judge for an explanation for his suggestions of a remittitur. On December 6, 2017, the parties appeared for a status conference and were told to return to court on January 3, 2018 for a ruling. On January 3, the judge told the parties that he would rule by the end of the day. When no ruling was entered that day, counsel for the plaintiff delivered a letter asking for a ruling by the end of January. On February 8, a second letter was delivered to the judge by plaintiff’s counsel asking for a ruling. The judge failed to timely enter an order.

In June 15, 2018, the Board notified the judge that it had authorized a full investigation of the complaints about the delays in both cases and advised the judge to file a written response within 30 days. The judge failed to do so.

In response to a formal complaint, the judge admitted his error in failing to promptly file the orders and responses to the notices of full investigation, indicated that he did not realize initially that a further order was required in the motor vehicle accident case because the defendant had paid an amount equal to the suggested judgment into court, and explained that he had been overwhelmed by the demands of fulfilling the requirement and the domestic violence complaint. The judge indicated that he is determined not to let any matter become overdue again and has filed all appropriate orders. Public Reprimand of Riley (Texas State Commission on Judicial Conduct February 20, 2019) (http://www.scjc.state.tx.us/media/46721/riley18-0038pubrep22019.pdf)

The Texas State Commission on Judicial Conduct publicly reprimanded a former judge for engaging in a sexual relationship with an employee and giving her preferential treatment.

A confidential complaint received by the Commission alleged that the judge hired a woman with whom he was engaged in a sexual relationship (“Jane Doe”) over more qualified applicants in a “quid pro quo arrangement” and that he gave her unmerited raises and promotions as a result of their relationship. The Commission’s review of Doe’s employment record supported the allegations. On December 19, 2017, in an article on the web-site of a

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local newspaper, 7 current and former county employees confirmed that the judge was engaged in a sexual relationship with Doe and that “he treated her preferentially” from the time she was hired. During the Commission’s investigation, a number of county employees confirmed the allegations. The judge did not respond to written inquiries from Commission staff, despite numerous opportunities. Public Warning of Strother (Texas State Commission on Judicial Conduct February 20, 2019) (http://www.scjc.state.tx.us/media/46722/strother18-0036pubwarn22019.pdf) The Texas State Commission on Judicial Conduct publicly warned a judge for appointing a police detective whose agency investigates cases in the county as foreperson of a county grand jury, exhibiting bias in favor of law enforcement.

On May 17, 2015, rival motorcycle gang members and police had a shootout at the Twin Peaks restaurant in Waco, Texas. 9 men died from gunshot wounds, and 177 individuals were arrested.

The judge appointed James Head, a detective employed by the Waco Police Department, as foreman of one of the grand juries that would review indictments in the Twin Peaks shooting. In an article published on July 9, 2015, titled “Waco cop to head grand jury likely to hear biker cases,” the Associated Press quoted the judge as saying, “We have lawmen who get on jury panels all the time. Who is better qualified in criminal laws than somebody who practices it all the time?” The judge stated that he did not believe that Head had a conflict of interest. He confirmed knowing “at the beginning of summoning the prospective grand jurors that Twin Peaks would be presented either at this particular term of the next one.” During his appearance before the Commission, the judge testified that Head’s grand jury did not return any indictments in the Twin Peaks case.

At the time the detective was appointed to the grand jury, the county was transitioning to a new system in which grand jurors were randomly like a petit jury; previously, judges would appoint commissioners who nominated prospective grand jurors. The judge informed the Commission that Detective Head “would never have been on this or any other grand jury” if he had used the prior system, and he assured the Commission that this experience had caused him “to exercise more caution and be more aware of potential problems.” The judge informed the Commission that he did not realize Head was a police officer until after he was sworn in and that he appointed him as the presiding juror but knew of no prohibition against an officer servicing as a grand juror or a petit juror. The judge denied investigating whether Head played any role in the Twin Peaks investigation. He stated “in perfect hindsight, I wish he had not been on the grand jury.” Public Warning of Robison (Texas State Commission on Judicial Conduct February 20, 2019) (http://www.scjc.state.tx.us/media/46720/robison18-0510etalpubwarn22019.pdf)

The Texas State Commission on Judicial Conduct publicly warned a judge for telling a jury that a defendant was innocent and exhibiting prejudice against the prosecution and bias in favor of the defense during the trial.

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In January 2018, the judge presided over the trial of a woman charged with continuous sex trafficking and the sale or purchase of a child. As the trial progressed, he “became increasingly concerned that [he] was witnessing a miscarriage of justice.” After learning that the jury had reached a guilty verdict on at least 1 count, the judge entered the jury room, told the jurors that “any guilty verdict would be a miscarriage of justice,” and asked the jurors to “deliberate 10 to 15 minutes more . . . to make certain they were not making a mistake.”

The jury found the defendant guilty on a single charge of sex trafficking and imposed a sentence of 25 years in prison.

The judge informed the prosecution and defense attorneys of his statements to the jury. The prosecution asked the judge to recuse himself from sentencing, which he did, and requested that he poll the jury to confirm that their verdict was not affected by the judge’s interference.

Judge Gary Steele subsequently declared a mistrial in the interest of justice. Judge Steele found that many of Judge Robison’s rulings during the trial were not in accordance with law, that the judge improperly commented on the credibility of witnesses and the weight of certain evidence, and that the judge was not fair or impartial in his comments and rulings throughout the trial.

The judge filed a self-report with the Commission. The Commission also received 18 complaints about the judge from numerous sources, including the county criminal district attorney’s office, 2 jurors, and citizens who learned about the judge’s actions through media reports.

According to the jurors’ complaints, the judge told them he had prayed on the matter and that he had received a message from God to act because the defendant was innocent. The judge later apologized to the jury and said something to the effect of, “When God tells me I gotta do something, I gotta do it.” The jurors stated that their interactions with the judge did not affect their decision.

The district attorney’s complaint included affidavits from the prosecutors who worked on the case averring that the judge exhibited prejudice against the state and in favor of the defendant in his rulings and demeanor throughout the trial. The Commission’s review of the trial transcript supported those conclusions.

In his self-report, the judge said that, immediately after his interaction with the jury, he realized his conduct was improper. He cannot sufficiently remember the details of his interactions with the jury to deny their allegations about his conduct. The judge asserted that his actions were entirely out of character and an aberration in his long judicial career and that he was unable to provide a rational explanation for his interaction with the jury. However, the judge explained that he was under extreme personal stress at the time, including treatment for a severe medical condition and the death of a close friend days before the trial began. The judge provided the Commission with letters from 2 medical professionals who had examined him at his request. According to the doctors, the most plausible explanation for his behavior was a temporary episodic medical condition referred to as a “delirium” brought on by a combination of personal stressors, his medical condition, and the drugs he was taking to treat his condition. The doctors stated that this was likely an isolated episode that quickly resolved itself and indicated that the judge is not currently experiencing a mental impairment that requires treatment or affects his fitness for duty.

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During his appearance before the Commission the judge disputed the allegation that he exhibited prejudice against the prosecutors; he still believes that the prosecution failed to present enough evidence to support a guilty verdict. The judge testified that he has not experienced a recurrence of delirium, assured the Commission that he will seek medical attention should he experience the symptoms associated with the condition, and indicated that he is not currently experiencing any mental or physical impairment that would preclude him from executing his judicial duties.