From the American Judicature Society, the Brennan Center at NYU Law School,

and a little personal research concerning the 2007 ABA Model Code of Judicial Conduct.

Ed Moss

District Court

Adams / Broomfield Counties

 

 

Special “Watch What You Say” edition.

 

The California Commission on Judicial Performance publicly admonished former Judge Paul Bryant for failing to be patient, dignified and courteous in five cases.  In one case, the judge refused to accept a plea agreement reached by a Deputy District Attorney and stated words to the effect that she must have “rocks for brains” to agree to the proposed disposition. 

     In another case, the judge stated in court, “I heard [the lawyer] when I was talking to my bailiff earlier, say one of the dumbest things I ever heard a lawyer say. . .”  The judge acknowledged that his comments were harsh and sarcastic and stated that, in retrospect, he would have handled the situation differently.  October 27, 2008.  (cjp.ca.gov/pubdisc.htm). 

 

 

In a hearing on charges before the Nebraska Commission on Judicial Qualifications Judge Jeffrey Marcuzzo testified that a threatening, expletive-laced voice-mail message he left with a deputy prosecutor in a case was a mistake that he deeply regretted. 

 

 

Because Judge Jacqueline Waymack is seeking another term, her 2005 agreement with the Virginia Judicial Inquiry and Review Commission has become public.  The Commission found improper a comment in a case involving an effort by a mother, who was a stripper, to regain custody from a child’s paternal grandmother.  Refusing to change custody, Waymark commented that one of the liberal male judges upstairs might decide the case differently.

 

 

The South Carolina Supreme Court publicly reprimanded former judge Myron Anderson for referring to his judicial position during a dispute with a motorist.  The judge observed a pick-up truck traveling at a high rate of speed and attempting to pass slower vehicles, almost causing some oncoming cars to veer off the road.  When the pickup stopped at a red light, the judge pulled up next to the driver, looked over and shook his head disapprovingly.  The driver asked what the judge was looking at.  The judge replied, “I’m looking at you.”  When the truck driver responded that he did not care what the judge thought, the judge replied:  “You ought to care, you might run into me at some point.”  When the pick-up driver asked why, the judge said that he was the municipal judge.  October 13, 2008.

 

The Michigan Judicial Tenure Commission recommended that Judge Steven Servaas be removed for lying under oath on multiple occasions before and during Commission proceedings to conceal his misconduct; and for inappropriate doodles and communications that demeaned his female staff. 

 

 

The Montana Judicial Standards Commission recommended that Justice of the Peace Gary Hicks be removed for offering female defendants leniency in return for sexual favors.  The Commission found that the judge retaliated with high bail amounts when his sexual advances were rebuffed, visited the homes of female defendants to solicit sex, and when complaints were filed, stopped in at one woman’s workplace “for the sole purpose of interfering and suppressing any investigation into his conduct.”   The judge’s attorney argued that “He was trying to be friendly and likable and approachable ...and his comments were misunderstood.” 

 

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Article reports that Utah's chief federal judge "violated judicial rules by contributing to Barack Obama's presidential campaign." According to Federal Election Commission filings, U.S. District Judge Tena Campbell donated $100 to Obama's campaign, listing herself as a lawyer employed by the government. Campbell said that she thought the Judicial Code of Conduct "only precluded a judge from taking public action in support of a political candidate."  The Salt Lake Tribune, October 24, 2008.

 

The U.S. District Court for the Eastern District of Kentucky held that  Kentucky’s version of the Judicial Code’s solicitation and restrictions on partisan activity clauses are unconstitutional.  The court upheld Kentucky’s commit clause.  Noting that in Republican Party of Minnesota v. White the Supreme Court did not specifically decide that states had a compelling interest in preserving judicial open-mindedness or the appearance of open-mindedness, the court agreed “with those courts that have found this interest to be a compelling one.”  Carey v. Wolnitzek, October 15, 2008. 

 

 

Florida Judge Maria Dennis says she was battered at the courthouse by Judge David Miller.  Miller was angry because the fax machine, which his staff shared with Judge Dennis, was broken.  Miller initially spoke to Dennis’ bailiff and judicial assistant about the fax machine, then asked to see her.  When Judge Dennis repeated that the machine was out of order, Judge Miller became “confrontational and told [Dennis] that he felt that he wasn’t getting the full story.”  Miller then “charged toward [Dennis], grabbed her by her shoulders and pushed her toward her office in an attempt to close the door behind them.”  Dennis’ bailiff  escorted Miller out of the chambers.  Miller denied pushing Dennis, telling officers that he “only squeezed by [her] to enter her office and talk with her.”  Miller has been given a new office on a different floor.

 

 

West Virginia Judges Charles King and Judge Alfred Ferguson retired and claimed their judicial pensions.  They are also standing for re-election unopposed, and so will simultaneously receive their judicial salaries and their judicial pensions.  They did not announce their intention to retire until October, leaving no time for other candidates to enter the race.

 

 

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And finally, it’s time for an ongoing discussion about the 2007 ABA Model Code of Judicial Conduct, currently under consideration in Colorado.

 

Comment 4 of Rule 2.2 of the 2007 ABA Model Code of Judicial Conduct provides:  “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  

 

If you accept the Model Code’s non-mandatory suggestion to make a “reasonable accommodation” for pro se parties, do you violate Colorado case law?

 

In 1953, the Colorado supreme court wrote, “A litigant is permitted to present his own case, but, in so doing should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.”  Knapp  (Colo. 1953)

 

In the same year, the supreme court wrote, “If a litigant, for whatever reason, sees fit to rely upon his own understanding of legal principles and the procedures involved in the courts, he must be prepared to accept the consequences of his mistakes and errors. One who attempts a major operation, without expert knowledge of the precautions essential to safety, cannot be heard to complain if tragedy results. ”     Viles (Colo. 1953).

 

Fast forward 30 years to 1983.  Citing Viles the court of appeals wrote, “A judge may not become a surrogate attorney for a pro se litigant.”  Loomis (Colo.App. 1983).

 

Despite this case law, the Judicial Performance Commission’s survey asks, “How would you grade Judge X on treating pro se parties fairly?”

 

Finally, a little mystery: As originally published on the state court judicial website,  In re Marriage of Dauwe (Colo.App. June 1, 2006) read:

 

“Although husband was representing himself, he is bound by the same rules of procedure and evidence that would bind an attorney.  See Loomis … (Colo. App. 1983)”

                  http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2006/2006q2/04CA2379.pdf

 

By the time Dauwe was published in Westlaw, opinion was modified and the highlighted language disappeared !  

 

Nonetheless, the citation to Loomis remained in the modified opinion.  So, if you accept the Model Code’s non-mandatory suggestion to make a “reasonable accommodation,”  do you violate Colorado case law?