Janet DiFiore, the Chief Judge of the New York Court of Appeals, announced yesterday that she will resign effective August 31 of this year. Chief Judge DiFiore leaves with more than two years remaining on her term. She served not only as the chief of New York’s top court, but also as the chief administrator for the state’s sprawling (and often byzantine) court system.
The timing is certainly curious. DiFiore did not specify why she was leaving, other than to vaguely refer to “the next chapter in life.” Speculation is high that her resignation was influenced by a pending ethics probe, in which she is alleged to have attempted to influence a disciplinary action against a former court employee.
Governor Kathy Hochul will appoint DiFiore’s successor.
Law360.com reports on an ethics complaint filed against Arthur Bergman, a retired state superior court judge in New Jersey. Judge Bergman allegedly made an independent phone call to a potential witness in a case over which he was presiding. Rule 3.8 of New Jersey’s Code of Judicial Conduct states, “Except as otherwise authorized by law or court rule, a judge shall not initiate or consider ex parte or other communications concerning a pending or impending proceeding.”
Judge Bergman does not contest that he made the call to a potential witness in the family trust dispute, but he maintains that the purpose of the call was simply to check the witness’s availability for a plenary hearing. The judge’s phone message, however, never referenced a hearing, and ultimately no hearing took place. Upon learning about the call, one of the attorneys in the case asked the judge to recuse himself, but Judge Bergman refused.
Complicating the story is the fact that Judge Bergman suffers from Parkinson’s disease, which apparently makes it difficult for him to speak. He maintains that this is why he did not mention the hearing on the message.
The state’s Advisory Committee on Judicial Conduct is seeking a public censure, to send a message to other judges that such behavior is not appropriate. Judge Bergman’s own lawyer maintains that disciplining a retired judge would do nothing to preserve the integrity of the state judiciary.
What do you think, readers?
Several states use judicial performance evaluation (JPE) programs to periodically evaluate state judges. In all states that use JPE, evaluation results are used to promote the development and professional growth of the evaluated judge, and to develop training programs for the judiciary more generally. In many states, JPE is also used to provide information to those charged with determining whether a judge should stay on the bench. In states where judges face retention elections, for example, JPE results are often communicated to voters in the weeks preceding the election. And in states in which the legislature or a commission decided whether the judge should be retained, JPE results are typically times to give valuable information to the decisionmaker about each judge’s strengths and weaknesses.
JPE has never been used to determine judicial salaries or benefits, and with good reason: an independent judiciary should not feel that remuneration is tied to specific outcomes. This has always seemed like such a given that I never found it necessary to mention when discussing JPE programs. But this article about a proposed salary hike for state judges in Arkansas, which felt the need to explain that “There isn’t a performance evaluation process for judges and prosecutors in Arkansas,” made me realize that perhaps the general public perception of JPE’s purpose is different. Continue reading “Should judicial compensation be tied to performance evaluation results?”
Judges in Florida and Ohio separately received public reprimands from their state supreme courts this week for interfering with judicial elections during the 2020 campaign.
In Florida, Judge Richard Howard received a reprimand for trying to discourage a lawyer from challenging a sitting judge during a local election, and instead urging the lawyer to challenge a different judge. While Judge Howard did not make the statements public, the state supreme court found that his actions “failed to promote public confidence in the impartiality of the judiciary,” among other things.
In Ohio, Karen Falter, a candidate for a trial court seat in Hamilton County, was reprimanded for mailing campaign literature falsely accusing her opponent (then the incumbent) of moving into the county only three years earlier in order to take a judicial appointment. The state supreme court affirmed the reprimand, concluding that the truth about the opponent’s residency was easily verifiable and that making the false statement amounted to at least a reckless disregard of the truth.
Public reprimands are a significant form of attorney and judicial discipline. While the attorney may continue to practice and the judge may remain on the bench, the reprimand and the reasons therefor become part of the public record.
Direct elections are a troublesome way to choose judges, but as long as states require them, candidates need to comport their electoral behavior to preserve public confidence in the judiciary.
The strange saga of three Indiana judges involved in a shooting outside an Indianapolis White Castle last May has come to an end, at least for now. On Tuesday, the Indiana Supreme Court issued an opinion suspending Judges Andrew Adams, Bradley Jacobs, and Sabrina Bell without pay. The court concluded that Adams and Jacobs had engaged in judicial misconduct “by becoming involved in a physical altercation which Judge Adams was criminally charged and convicted,” and that all three judges engaged in judicial misconduct “by appearing in public in an intoxicated state and acting in an injudicious manner.” (Bell apparently gave an obscene gesture to the judges’ assailants, and Adams got involved in a physical fight in which Adams and Jacobs were seriously shot — more details here and here.)
The story has been worth following, and not only because state judges were shot point-blank in a fast food parking lot. The judges’ drunken and disorderly behavior has brought significant reputational harm to the rest of the state judiciary. After all, they were at a state judicial conference when this drunken encounter took place. This situation is far outside the normal range of damage control for most court public information officers.
And then there is the organizational harm in the form of increased workload for the judges’ coworkers. Jacobs and Bell received a 30-day suspension, and Adams 60 days (some of which has already been served). Someone has to pick up the slack with those judges out, and the courts cannot simply hire new staff to handle the dockets. As it is, the county courts in which the judges work are asking senior judges to take up most of the pending cases until the suspended judges return. A sensible use of resources, to be sure, but it still comes with internal costs.
For their part, the suspended judges appeared contrite. I am sure the entire experience for them has been harrowing, humbling, and literally painful.
Last May, two Indiana state judges were shot in a violent skirmish outside a Indianapolis-area White Castle restaurant. The judges were in town for a state judicial conference, and somehow found themselves on the wrong end of a loaded gun in the early morning hours just outside the restaurant. One judge, Bradley Jacobs, has since returned to work; the other, Andrew Adams, was indicted in the incident and is facing potential judicial discipline. (He is still recovering from his injuries.)
Now more facts have come out about that fateful night. Apparently four judges in all–Adams, Jacobs, Crawford Circuit Judge Sabrina Bell, and Clark County Magistrate William Dawkins–had been involved in a night of heavy drinking, and had made it to the White Castle only after first trying to go to a gentleman’s club and learning it was closed. Dawkins went into the restaurant, and then the scene in the parking lot turned ugly. From the Indianapolis Star:
Adams, Jacobs and Bell were standing outside the restaurant when Alfredo Vazquez and Brandon Kaiser drove past the trio in a blue SUV. Either Kaiser or Vazquez yelled something out the window that prompted Bell, court documents said, to give the middle finger to the men.
Vazquez, according to the charges, then parked his SUV. After he and Kaiser exited the vehicle, a verbal altercation ensued, court documents said. It then turned violent when Adams and Jacobs moved toward Vazquez and Kaiser, the panel said.
Adams and Vazquez both hit and kicked each other, according to court documents, while Jacobs and Kaiser mostly wrestled on the ground. “At one point, Judge Jacobs was on top of Kaiser and had him contained on the ground,” the charging documents said.
Vazquez then tried to get Jacobs off of Kaiser, the panel said. As Jacobs began to get up, Vazquez started fighting him, court documents said.
After Kaiser began to sit up, Adams kicked him in the back, the panel said. Kaiser then pulled out a gun and shot Adams in the stomach, according to court documents. The panel says Kaiser then “went over to Judge Jacobs and Vazquez and fired two more shots at Judge Jacobs in the chest.” Kaiser and Vazquez then allegedly fled the scene.
When medics arrived to treat Adams and Jacobs, Adams told them he drank “a lot of Pabst Blue Ribbon” that night, the panel said, adding that Adams’ blood alcohol level was .213.
The relentless threats to the Polish judiciary from the state’s ruling “Law and Justice” party have taken yet another distressing turn. Just Security reports on the state’s new Disciplinary Office for Common Court Judges, designed to control and punish individual judges who stand up for the rule of law. As the article notes:
Together with the politicization of the Disciplinary Chamber, the message is clear for all members of the judiciary: follow the party line or face the consequences. Indeed, there are early indicators that most of the disciplinary actions taken against judges so far have targeted judges who have been outspoken on issues of judicial independence and the rule of law.
The Institute for the Advancement of the American Legal System (IAALS) has released a new report entitled Recommendations for Judicial Discipline Systems. Authored by University of Arizona law professor Keith Swisher and Brookings Fellow Russell Wheeler, it is a careful and sober analysis of existing judicial discipline systems, with recommendations for improving the process in a way that protects judicial independence and integrity as well as public expectations about efficiency, fairness, and transparency.
Cribbing from the Preface:
Effective judicial discipline is an important part of a trusted and trustworthy court system. The public must know that judicial ethics and violations of the Code of Judicial Conduct are taken seriously. Absent that assurance, the system appears self-serving, protectionist, and even potentially corrupt. And it is not just the reality of the existence of effective systems that matters; it is also the appearance. A wholly effective system with no transparency and no public confidence will not suffice.
To explore the functioning of judicial conduct commissions, in March 2018, IAALS convened a 21-person group of commissioners, commission staff, judges, lawyers, and scholars (identified in Appendix A). They, along with IAALS Executive Director Rebecca Kourlis and a small number of IAALS staff, worked through the agenda in Appendix B. This Report draws on that Convening.
James Duff, Director of the Administrative Office of the U.S. Courts, circulated a memo last week stating that “The Chief Justice has asked me to establish a working group to examine the sufficiency of the safeguards currently in place within the Judiciary to protect court employees, including law clerks, from wrongful conduct in the workplace.”
The announcement comes in the wake of Ninth Circuit Judge Alex Kozinski’s sudden retirement, spurred by several allegations of workplace harassment in his chambers. The Chief Justice has referred the matter to the Second Circuit Judicial Conference for investigation shortly before Kozinski resigned.
A report and recommendations are expected by May.
The Washington Post has the story here.