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A publication of the American Judicature Society Center for Judicial EthicsVol 26, No 2 Summer 2004

JUDICIALCONDUCTREPORTERTo promote

the effectiveadministration

of justice

After an Ex Parte Communication by Cynthia Gray

(continued on page 8)

Interim Suspension

Despite a judge’s best efforts toavoid ex parte contact, ajudge may inadvertently be

exposed to an inappropriate commu-nication concerning a proceeding out-side the presence of the parties. Such acommunication does not necessarilydisqualify the judge from the case al-though he or she may not consider thecommunication. The judge should,however, disclose the communicationand take steps to ensure that the

breach is not repeated.An ex parte communication does

not automatically result in the dis-qualification of the judge. A contraryrule would allow a party to remove ajudge from a case by initiating an exparte contact, which would encourageunethical ploys and allow manipula-tion of the judicial process.

The Alabama judicial ethics advi-sory committee addressed an inquiryfrom a judge who had received an ex

parte communication from a relative ofa party in a case. Alabama AdvisoryOpinion 99-720. The individual hadcome to the judge’s office and insistedon speaking with him about a hypo-thetical question. Overhearing the diffi-culty a staff person was having in get-ting the person to understand that thejudge could not talk, the judge went totell the person himself. The person im-

Many states have provisionsthat require or authorize thetemporary suspension of a

judge with pay while disciplinary orcriminal proceedings are pendingagainst that judge.

In several states, a recommendationfor the judge’s removal from office orother serious sanction automaticallytriggers a suspension with pay. For ex-ample, a provision in Arizona states:“A judge is disqualified from acting asa judge, without loss of salary, whilethere is pending . . . a recommendationto the supreme court by the commis-sion on judicial conduct for his sus-

pension, removal or retirement.”Alaska, California, Connecticut, Indi-ana, Minnesota, Missouri, Montana,North Dakota, South Dakota, andWashington have similar provisions

In some states, an order of the su-preme court is required to suspend ajudge following a recommendationof removal. In Nebraska, “upon or-der of the Supreme Court, a Justiceor Judge of the Supreme Court orother judge shall be disqualified”while a recommendation for removalor retirement is pending. In Arkan-sas, the supreme court “may” sus-pend a judge with pay while a com-

mission recommendation for re-moval or voluntary disability retire-ment or articles of impeachment arepending. In Vermont, the supremecourt may suspend a judge when re-view of a recommendation of suspen-sion for misconduct or disability ispending. In Kansas, a panel of thecommission may recommend to thesupreme court that a judge be tempo-rarily suspended from performing ju-dicial duties pending final disposi-tion of a recommendation fordiscipline or compulsory retirement.


2 Judicial Conduct Reporter Summer 2004

Recent Judicial Advisory Opinions : Disqualification A judge is disqualified for two

years from cases involving thejudge’s former law firm, but the dis-qualification ends after two years ifthere are no continuing financial ties.Florida Opinion 04-6.

A judge is disqualified for twoyears after leaving a law firm when-ever the firm appears even in uncon-tested matters; after two years, thejudge should disclose the relation-ship and consider recusal if a partyobjects. New York Opinion 01-6.

A judge is disqualified fromcases in which a former law partnerappears while the judge is receivingcompensation for concluding a busi-ness relationship with the former part-ner and for two years after the lastpayment. New York Opinion 00-67.

A judge is disqualified fromcases in which a party is representedby the law firm that is currently rep-resenting the judge and the judge’sspouse in a personal injury case, ex-cept when the firm represents a non-party hospital from which recordsare sought in an uncontested sub-poena. New York Opinion 00-89.

A judge is disqualified frommatters involving an attorney who iscurrently representing the judge in apersonal matter even while the mat-ter is inactive, but the disqualifica-tion ceases, absent special circum-stances, when the matter is resolvedand representation ends. AlabamaOpinion 04-840.

To determine whether to dis-qualify from a case in which aformer client appears as an attorney,a judge should ask whether the rela-tionship is a particularly close onesocially or professionally beyond theformer attorney-client relationshipand whether the relationship prior toappointment might be qualitatively

different from the judge’s relation-ship with other attorneys who nowcome before the judge. Massachu-setts Opinion 04-1.

A judge is disqualified fromcases involving an attorney or otherparticipant who has submitted anaffidavit on the judge’s behalf to thejudicial conduct commission. NewYork Opinion 00-97.

A judge is disqualified fromcases involving attorneys planninga fund-raiser for the judge’s cam-paign (or their partners or associ-ates) during the campaign; whenthe other party is appearing pro se,the disqualification cannot be re-mitted. New York Opinion 01-7.

A judge who owns an interestin a mutual fund that owns stock inAmerican Express is not disqualifiedfrom a shareholders’ derivative ac-tion brought on behalf of the com-pany. New York Opinion 01-12.

Although a judge may adopta policy disqualifying himself/her-self from cases in which a party isrepresented by the law firm withwhich the judge’s child is affiliated,the judge is not per se disqualified,but should consider the size of thefirm, the number and geographicspread of its offices, the nature ofthe matter, the potential impact onthe firm of its client being awardeda large sum or having such anaward against it, and the child’s in-volvement, if any, in the matter.Tennessee Opinion 04-1.

A judge is not disqualifiedwhen the judge’s first cousin appearsas an attorney or witness, but thejudge should disclose the relation-ship. South Carolina Opinion 10-4.

A judge whose law clerk is aformer assistant district attorney isnot disqualified from criminal cases

but should disclose any previous in-volvement by the clerk in a specificcase and insulate the clerk from thecase. New York Opinion 00-66.

A judicial officer is not dis-qualified from cases in which a per-sonal friend is counsel absent addi-tional circumstances. WashingtonOpinion 04-2.

A judge is disqualified fromcases involving an attorney withwhom the judge has had a close socialrelationship for 28 years, who hasserved and will serve in 2004 as thejudge’s campaign treasurer, and whorepresented the judge in a lawsuit 11years ago; the disqualification also ap-plies to any member of the attorney’slaw firm. Florida Opinion 04-1.

To determine whether a dona-tion to a public service law firm ornon-profit organization requires dis-qualification, a judge should con-sider whether the donee regularlyrepresents one side of litigation; thesize of the donation compared toother contributions made by thejudge, to the financial worth of thedonee, and to contributions made byother donors; whether the contribu-tion is related to a fund-raising event;the judge’s current assignment;whether the organization frequentlyengages in litigation in the judge’scourt; and pertinent community stan-dards. California Opinion 53 (2003).

A judge who sits on the boardof directors of a charitable founda-tion is disqualified from cases inwhich the foundation is a party. NewYork Opinion 01-6.

The Center for Judicial Ethics web-site has links to judicial ethics advi-sory committees at www.ajs.org/eth-ics/eth_advis_comm_links.asp.

Judicial Conduct Reporter Summer 2004 3

A judge may, with certain con-ditions, serve on the board ofdirectors of a not-for-profit

cooperative, condominium associa-tion, or homeowners’ association re-lated to the judge’s residence. IllinoisAdvisory Opinion 95-13; Massachu-setts Advisory Opinion 01-6; NewHampshire Advisory Opinion 78-1;New York Advisory Opinion 88-98;Ohio Advisory Opinion 04-3;VirginiaAdvisory Opinion 00-9; U.S. AdvisoryOpinion 29 (revised1998). Accord Com-mentary to Canon4C(3), CaliforniaCode of Judicial Con-duct (“Service on theboard of a homeown-ers’ association or a neighborhoodprotective group is proper if it is re-lated to the protection of the judge’sown economic interests”). See alsoArizona Advisory Opinion 95-1 (judgemay belong to homeowners’ associa-tion committee that nominates direc-tors or officers); New York AdvisoryOpinion 95-133 (judge may serve onhomeowners’ association committeethat will assist transfer from developerto property owners).

(One state has a contrary rule. TheFlorida judicial ethics committee hasadvised that the volume of condo-minium litigation and the many ad-verse interests in homeowners’ asso-ciations prevent a judge from servingon the board of an association. FloridaAdvisory Opinion 81-7; Florida Advi-sory Opinion 81-10; Florida AdvisoryOpinion 84-1; Florida Advisory Opin-ion 04-10.)

The duties of a homeowners’ asso-ciation “relate only to the operationand maintenance of the members’residence facility,” and “are those the

A Judge’s Participation in a Homeowners’ Associationby Cynthia Gray

judge would find necessary to under-take were he living in a privatelyowned single-family residence.” U.S.Advisory Opinion 29 (revised 1998).

[S]ervice [as a director for such an asso-ciation] is not readily to be characterizedeither as “civic” activity within the per-missive reach of Canon [4C] or as a“business dealing,” within the prescrip-tive contemplation of Canon [4D(3)]. Ithas attributes of both in that, on the onehand, the endeavor possesses certain

commercial features, but on the otherhand, closely approximates a real estateinvestment not forbidden to the judgeunder Canon [4D(2)]. It is, moreover, di-rected at the saving of expense and at thewise expenditure of funds rather than tothe earning or realization of income.

Whether a judge may serve should bedecided on a case- by-case basis, theadvisory committee for federaljudges concluded. For example, thecommittee stated, a judge shouldconsider not serving if “the duties en-tail business-type contacts, substan-tial in number or character, with out-side enterprises particularly of thekind that could result in litigation.”Service is more likely to be appropri-ate, however, the committee noted:

• if the condominium is not largeor substantial; and

• if the board’s duties are routineand primarily internal (for ex-ample, allocating responsibili-ties; employing maintenance,security, and other personnel;providing for services; and for-mulating occupancy rules).

Similarly, according to the Mas-sachusetts judicial ethics committee,a judge’s duties as a member of aboard of directors of a homeowners’association, while in part on behalfof other unit holders, protect thejudge’s “investment much like themaintenance, protection and preser-vation activities of a judge living ina single-family residence protectshis or her investment therein.” Mas-

sachusetts Advisory Opin-ion 01-6. Thus, the com-mittee stated that whethera judge may serve as amember of the board of ahomeowners’ associationfor the judge’s residencedepends on:• the size of the building,

• whether day-to-day operationis delegated to a managementcompany,

• whether the association has beenor is likely to be involved in liti-gation in the judge’s court,

• the size of the annual budget,• the amount of the reserve funds,• the likelihood of substantial

capital improvements, and• the likelihood of acquisition of

abutting property.

Serving as officerIf those critera are met, not only may ajudge serve on the board of directors,but a judge may serve as an officer ofa homeowners’ association. Massa-chusetts Advisory Opinion 01-6; NewYork Advisory Opinion 96-8; NewYork Advisory Opinion 98-2; NewYork Advisory Opinion 98-44; NewYork Advisory Opinion 98-93; Vir-ginia Advisory Opinion 00-9; U.S.Advisory Opinion 29 (revised 1998).


Whether a judge may serve on ahomeowners’ association board should

be decided on a case-by-case basis.


Creating Appearance ofBiasThe Washington State Commissionon Judicial Conduct reprimanded ajudge for writing an acronym gener-ally understood to mean “Nail ThisGuy” on hundreds of judgment andsentence forms. The judge alsoagreed to participate in ethics train-ing. In re Burns, Stipulation, Agree-ment, and Order of Reprimand(Washington State Commission onJudicial Conduct June 8, 2004)(www.cjc.state.wa.us). The sanctionwas based on a stipulation and agree-ment.

In hundreds of cases over severalyears, the judge wrote “NTG” on de-fendants’ judgment and sentenceforms when he im-posed sentence. Thejudge maintained heintended “NTG” tomean “Note ThisGuy” (or gal). Thejudge claimed that heused the initials to re-mind him which cases deservedcloser scrutiny if there was a viola-tion of a sentencing condition, point-ing out that his court is a very highvolume court.

The judge acknowledged, how-ever, that it was widely rumoredamong court employees and attor-neys that “NTG” meant “Nail ThisGuy.” Further, the judge admittedthat he contributed to that rumor bymaking statements to others thatwould cause them to believe the let-ters stood for “Nail This Guy.”

The agreement noted that the ob-jective evidence did not establish ac-tual bias or that the judge prejudgeda particular case. However, theagreement stated that the judge ac-knowledged that some parties, coun-sel, and staff could have understoodfrom the initials and rumors that he

had prejudged cases and intended totreat some defendants harshly, cru-elly, or inappropriately. The judgealso acknowledged that the initialsand rumors undermined public con-fidence in the integrity and impar-tiality of the judiciary. The agree-ment stated:

The Code of Judicial Conduct deals notonly with subjective intent, but also withappearances. Whatever Respondent mayhave intended “NTG” to mean, hiswords and conduct led others to believe“NTG” meant “Nail This Guy.” By writ-ing “NTG” on some defendants’ judg-ment and sentence forms, generally un-derstood to be an acronym for “Nail ThisGuy,” Respondent created the appear-ance he was biased or prejudiced againstthose individuals he intended to “nail.”Public confidence in the integrity andimpartiality of the judiciary is under-

mined when a judge’s conduct createsthe perception that a case has been pre-judged or that there is a bias against aparty, regardless of whether the per-ceived bias or prejudice exists. Personswho believed Respondent wrote “NailThis Guy” in code on some defendants’judgments could reasonably concludethat those defendants received, or wouldreceive, disparate or unfair treatmentfrom the court.

The agreement also found thatwriting “NTG” on court documents“is undignified and disrespectful.”

Gratuitous References toJudicial PositionThe New York State Commission onJudicial Conduct censured a judgefor making numerous, gratuitous ref-erences to his judicial position in adispute with a snowmobile dealer-ship. In the Matter of the Dumar, De-

termination (New York State Com-mission on Judicial Conduct May 18,2004) (www.scjc.state.ny.us/Deter-minations/2004_decisions.htm). Thesanction was pursuant to a stipula-tion and agreement.

Although the judge purchased twosnowmobiles on an “as is” basisfrom Gable Motor Sports, he be-lieved from his discussions with thesalesman that the dealership wouldtake care of any problems that arose.The judge subsequently told thesalesman that he wanted reimburse-ment for repairs that had been per-formed at another establishment.When the salesman replied that hecould not reimburse the judge, thejudge stated that he was a judge andwould take the matter to small claims

court.Thereafter, the judge

returned to Gable MotorSports, complained to asecretary that he wouldtake the matter to court,and gave the secretary

his judicial business card. Visitingagain to demand reimbursementfrom the manager, the judge statedrepeatedly that he was a judge andsaid that he did not want to “badmouth” Gable Motor Sports and thathe knew how “the system” worked.”Subsequently, the judge telephonedthe residence of the proprietor, iden-tified himself to the proprietor’s wifeas “Judge Dumar,” and left a mes-sage that he wanted to speak with theproprietor. In at least one subse-quent conversation with the propri-etor, the judge identified himself as ajudge. The judge left one or morevoice messages on the answeringsystem at the dealership identifyinghimself as a judge.

When the judge filed a smallclaims action (in a town court otherthan his own), he left his judicial

RECENT DECISIONS


business card with the court clerkwith the paperwork. Prior to thehearing, the judge introduced him-self as a judge to one of the justicesof the town court although the judgedid not know at the time which townjustice would be hearing the claim.As it resulted, the other town justiceheard the claim and dismissed it.While complaining about Gable Mo-tor Sports to a state consumer protec-tion board representative, the judgeidentified himself as a judge.

The Commission found that thejudge’s repeated, pointed referencesto his judicial status “could well beperceived as intimidating, especiallyin the context of demanding reim-bursement for the repairs, threaten-ing a lawsuit and saying that he knewhow ‘the system’worked.” The Com-mission concluded,“regardless of hisintent, such conductcreates the appear-ance that he was at-tempting to use his judicial prestigeto further his personal interests,which is prohibited.”

Commenting on PendingCasesAccepting a recommendation by theinvestigative panel of the JudicialQualifications Commission pursuantto a stipulation, the Florida SupremeCourt publicly reprimanded a judgefor making inappropriate statementsabout the defendant in a tort case inan interview with a reporter. InquiryConcerning Andrews, 875 So.2d 441(Florida 2004). Pursuant to its usualpractice, the court ordered the judgeto appear before it for administrationof the reprimand.

The judge was presiding over acase involving the drug Parlodel. The

defendant, Novartis PharmaceuticalsCorp., had responded to a discoveryrequest by producing over one mil-lion documents. Novartis thenclaimed that the documents wereprivileged and requested an in-cam-era inspection. After the judge ap-pointed a special master to reviewthe documents, at great expense toNovartis, Novartis sought to have theinspection suspended.

In an interview with a reporter, thejudge stated that Novartis was tryingto bury the plaintiffs in documentsand had only itself to blame for de-velopments in the litigation. Thejudge also commented that Novartis’defense strategy had backfired andthat the database being created in thecase would provide a national blue-

print for filing suit over the drug.The Commission found that the

judge’s statements evidenced a biasagainst Novartis.

Solicitation of CharitableContributionsAccepting the decision and recom-mendation for order of disciplinefiled by the Judicial Tenure Commis-sion, the Michigan Supreme Courtsuspended a judge for 90 days with-out pay for (1) using official courtstationery to solicit donations foreducational programs; (2) using do-nated funds to publicize himself; (3)misrepresenting in his solicitationsand to the supreme court that the pro-grams had the support of governmentofficials; and (4) demonstrating alack of candor in the proceedings be-

fore the Commission. In re Thomp-son, 682 N.W.2d 477 (Michigan,2004). The judge had not filed a peti-tion to reject or modify theCommission’s recommendation.

The judge used official court sta-tionery to solicit donations from lo-cal businesses to produce and imple-ment anti-bullying programs and tofinance events and activities relatedto the programs. The advertising fora concert to benefit the programs in-cluded prominent placement of thejudge’s name and judicial status,which, the court found, was evidencethat the judge had used donatedfunds to publicize himself.

In his solicitations and to mem-bers of the supreme court, the judgepurposely misrepresented that the

state department of educa-tion and the supremecourt, acting through thecourt administrative officeand Judicial Institute, hadagreed to sponsor his pro-grams. Finally, the judge

refused to provide materials re-quested by the Commission in its in-vestigation.

The court noted that its adoptionof the Commission’s conclusions“should not be interpreted in anyway as discouraging members of thejudiciary from participating in civicand charitable activities” in con-formance with the code of judicialconduct.

RECENT DECISIONS

The Center reports on devel-opments in judicial ethicsand discipline in weekly

stories posted on its web-siteat www.ajs.org/ethics/.


Suspensions during disciplineproceedings

In some states, a judge may be sus-pended with pay even before a recom-mendation is filed, either before or af-ter the initiation of formalproceedings. For example, in Colo-rado, “the commission may requestthe Supreme Court to order temporarysuspension of a judge, with pay, pend-ing the resolution of preliminary orformal proceedings before the com-mission.” Florida, Georgia, Louisi-ana, Michigan, New Mexico, NorthCarolina, Oregon, and Texas havesimilar provisions. In Virginia, thecommission itself may suspend ajudge with pay in any pending investi-

gation or formal hearing. In Hawaii,New Jersey, and Oregon, the supremecourts may suspend a judge with paywithout any action by the commis-sion. In West Virginia, the supremecourt decides whether a judge shouldbe suspended temporarily based on areport by the disciplinary counsel. InVermont, the supreme court may actupon recommendation of the commis-sion or on its own motion to suspend ajudge pending final determination ofany proceeding against the judge. InAlabama, every judge is automaticallydisqualified when a complaint againstthe judge is filed by the Judicial In-quiry Commission with the Court ofthe Judiciary.

In California, Kentucky, and Ne-vada, the commission itself may sus-pend a judge but only after the filingof formal charges, while in Missis-sippi, the commission may recom-mend a suspension to the supremecourt when formal charges are pend-ing, and in Pennsylvania, the Court onJudicial Discipline decides based on amotion by the Judicial Conduct Boardafter a complaint is filed.

In Vermont, the administrativejudge for trial courts may suspend ajudge pending an investigation of mis-conduct. In Illinois, a chief judge maytemporarily assign a judge to re-stricted duties or duties other than ju-dicial duties when a complaint has

Interim Suspension (continued from page 1)

Arkansas Code, § 16-10-409A judge may be suspended by theSupreme Court with pay: (1) Whilean indictment or information charg-ing him or her in any court in theUnited States with a crime punish-able as a felony under the laws ofArkansas or the United States ispending: (2) While a recommenda-tion to the Supreme Court by thecommission for his or her removal,or involuntary disability retirementis pending; or (3) When articles ofimpeachment have been voted by theHouse of Representatives.

Connecticut General Statutes, §51-51sA judge, compensation commissioneror family support magistrate is dis-qualified from acting as a judge, com-pensation commissioner or familysupport magistrate, as the case maybe, while there is pending (1) a charge

against him for a crime punishable asa felony under the laws of this state orfederal law, or a charge against him inanother jurisdiction which would bepunishable as a felony under Con-necticut or federal law, or (2) a chargeagainst him for a crime under the lawof any jurisdiction which involvesmoral turpitude under Connecticutlaw, or (3) a recommendation to thesupreme court or the governor, as thecase may be, by the Judicial ReviewCouncil for his suspension or removal.

Florida Judicial QualificationsCommission Rules, Rule 8Before or after the filing of a Noticeof Formal Charges, the InvestigativePanel may, in its discretion, issue itsorder directed to the judge orderingthe judge to show cause before it whythe panel should not recommend tothe Supreme Court that the judge besuspended form office, either with

compensation or without compensa-tion, while the inquiry is pending.The order to show cause shall be re-turnable before the InvestigativePanel at a designated place and at atime certain, at which place and timethe Investigative Panel shall considerthe question of suspension and anyaction thereto. Thereafter, and uponthe filing of a Notice of FormalCharges with the Supreme Court, theInvestigative Panel, not less than two-thirds of its members concurring, mayrecommend to the Supreme Courtthat the judge be suspended from per-forming the duties of office, eitherwith or without compensation, pend-ing final determination of the inquiry.If the Investigative Panel recom-mends suspension, such recommen-dation shall have incorporated thereina record of the proceedings of the In-vestigative Panel in relation to the or-der to show cause.

Sample Provisions


Michigan Court Rules, Rule 9.219(A) Petition.(1) After a complaint is filed,

the commission may petition the Su-preme Court for an order suspendinga judge from acting as a judge untilfinal adjudication of the complaint.

(2) In extraordinary circum-stances, the commission may peti-tion the Supreme Court for an ordersuspending a judge from acting as ajudge in response to a request for in-vestigation, pending a decision bythe commission regarding the filingof a complaint. In such a circum-stance, the documents filed with theCourt must be kept under seal unlessthe petition is granted.

Whenever a petition for interimsuspension is granted, the processingof the case shall be expedited in thecommission and in the SupremeCourt. The commission shall setforth in the petition an approximatedate for submitting a final recom-mendation to the Court.

(B) Contents; Affidavit or Tran-

script. The petition must be accom-panied by a sworn affidavit or courttranscript, and state facts in supportof the allegations and the assertionthat immediate suspension is neces-sary for the proper administration ofjustice.

(C) Service; Answer. A copy ofthe petition and supporting docu-ments must be served on the respon-dent, who may file an answer to thepetition within 14 days after serviceof the petition. The commission mustbe served with a copy of the answer.

Nevada Rules for the Commissionon Judicial Discipline, Rule 10 1. The commission must suspend arespondent from the exercise of theoffice without loss of salary: (a)While there is pending an indict-ment or information charging re-spondent in any court in the UnitedStates with a crime punishable as afelony under the laws of Nevada orthe United States; or (b) When re-spondent has been adjudged insane

or mentally incompetent.* * *

3. The commission may suspend arespondent from the exercise of judi-cial office without loss of salaryupon receipt of sufficient clear andconvincing evidence demonstratingthat a judge poses a substantial threatof serious harm to the public or to theadministration of justice, pending afinal determination in any proceed-ing under these rules.

4. A judge suspended under theserules may apply to the highest courtfor reconsideration of the order.

5. A suspension may be imposedonly after notifying the respondent ofhis right to be heard in opposition, onnot less than 7 days’ written notice.

6. The commission mustpromptly file a certified copy of thenotice of suspension with the clerkof the supreme court who mustpromptly transmit copies to the ap-propriate appointing and disbursingofficers and to the clerk and thechief judge of the district.

been filed with the Courts Commis-sion by the Judicial Inquiry Board. Inaddition, in Illinois, a chief judge maytemporarily assign a judge to re-stricted duties or duties other than ju-dicial duties when “the judge has al-legedly committed a violation of theCode of Judicial Conduct which in-volves fraud or moral turpitude orthreatens irreparable injury to the pub-lic, to the judicial branch of govern-ment, or to the orderly administrationof justice,” or “the judge has been pub-licly implicated in conduct which, iftrue, would constitute impropriety oran appearance of impropriety whichinvolves moral turpitude or threatensirreparable injury to the public, to thejudicial branch of government, or tothe orderly administration of justice.”

Several other state provisions also

describe the circumstances that justifyan interim suspension. Those circum-stances include when the continuedservice of the judge “is causing imme-diate, irreparable, and continuing pub-lic harm” (California); “poses a sub-stantial threat of serious harm to thepublic or the administration of justice”(Louisiana, Nevada); or “is causingimmediate and substantial publicharm and an erosion of public confi-dence in the orderly administration ofjustice” (Georgia, New Mexico).Other descriptions of the appropriatecircumstances for an interim suspen-sion include when “the integrity of thelegal system has been placed intoquestion by virtue of a judge’s . . . hav-ing engaged in or currently engagingin a serious violation of the Code ofJudicial Conduct; or . . . inability or

unwillingness to perform his or her of-ficial duties” (West Virginia).

In Florida, New Jersey, Pennsylva-nia, and West Virginia, the court hasthe option of ordering that the suspen-sion be without pay.

In California and Michigan, when atemporary disqualification or interimsuspension is imposed, the formal pro-ceedings “shall be accelerated and theformal proceedings shall proceed with-out appreciable delay” (California) or“the processing of the case shall be ex-pedited in the commission and in theSupreme Court” (Michigan).

Suspensions pending criminalproceedingsIf a judge is indicted, pending the out-



mediately blurted out an allegation offact relevant to the case. The judge dis-closed the incident on the record in thecase. The judge told the advisory com-mittee he felt no bias toward or againsteither party as a result of the incident.

The committee stated that actionstoward or statements to a judge by aparty or a party’s relative during a ju-dicial proceeding “do not cause thejudge to be disqualified unless thejudge is actually influenced and devel-ops a personal bias or prejudice as aresult.” To hold otherwise, the com-mittee reasoned, “would allow liti-gants and their friendsand relatives to controljudicial proceedingswhenever dissatisfiedwith the course of theproceeding.”

Therefore, a judge isnot disqualified follow-ing:

• A letter or inquiryfrom a legislator on behalf of aconstituent (Virginia AdvisoryOpinion 00-7).

• A communication from a non-party who is a friend of the judge(U.S. Compendium of SelectedOpinions, § 3.9-2 (2001)).

• An ex parte contact authorized bythe Domestic Abuse Act (Ne-braska Advisory Opinion 98-1).

• An attorney’s attempt to make anex parte communication, whichthe judge’s quick response pre-vented (Illinois Advisory Opinion93-1).

• A councilman’s unsuccessful at-tempt to speak privately with thejudge on behalf of a party (NewYork Advisory Opinion 92-81).

DisqualificationDisqualification may be required fol-lowing an ex parte communication,

however, if additional circumstancesgive rise to an appearance of bias. Ajudge’s initiation of an ex parte com-munication, for example, may indicatea bias that requires disqualification.

For example, the Florida Court ofAppeal prohibited a trial judge fromfurther participation in custody pro-ceedings based on the judge’s ex partecommunication with the father. Dur-ing a hearing on the father’s contemptmotion regarding visitation, the trialjudge had the parties removed fromthe courtroom while he spoke to thechild. The judge met with the father

and child without the attorneys or themother present. The judge then heldthe mother in contempt.

Stating that “because of its effecton the appearance of impartiality . . .an allegation of an ex parte commu-nication is legally sufficient to re-quire recusal,” the court concludedthat the mother’s allegation of an exparte communication alone ad-equately established a reasonablebasis to fear that she would not re-ceive a fair hearing in subsequentproceedings. The court also notedthe trial judge’s expressed desire to“punish” the mother with a changeof custody. Pearson v. Pearson, 870So. 2d 248 (Florida Court of Appeal2nd District 2004). See also State v.Leslie , 666 P.2d 1072 (Arizona1983) (new trial required when trialjudge in murder case solicited con-tact with relatives of the victim after

jury returned guilty verdict andmade telephone contact with tworelatives before pre-sentence hear-ing); Fletcher v. Commission on Ju-dicial Performance, 968 P.2d 958(California 1998) (where judge ad-mitted personal feelings about pro-priety of granting diversion based onex parte communications withdefendant’s family and defendant’scomment that diversion was “a donedeal,” judge should have disquali-fied from sentencing decision, notjust disclosed communications); Inre Disqualification of Calabrese, 798

N.E.2d 10 (Ohio 2002)(allegation of ex partecommunication sup-ported by somethingmore than hearsay con-stitutes grounds for dis-qualification if commu-nication was initiated byjudge or addressed sub-stantive matters).

DisclosureEven when a judge is not required todisqualify, a judge should disclose tothe parties any ex parte or other im-proper communications. For example,the Washington ethics advisory com-mittee addressed an inquiry from ajudge who had read a leaflet that wasplaced on the windshields of all thecars in the courthouse parking lotabout a case concerning the death of achild by a drunk driver over which thejudge was presiding. The committeeadvised that “to avoid the appearanceof impropriety the judicial officershould provide all parties with a copyof the leaflet.” Washington AdvisoryOpinion 96-12.

Similarly, a judge must disclose anunsolicited letter from an out-of-statejudge seeking leniency for a criminaldefendant about to be sentenced and a

After an Ex Parte Communication (continued from page 1)

Even when a judge is not requiredto disqualify, a judge should

disclose to the parties anyex parte communications.


letter written to a judge by a bar associa-tion concerning a pending proceeding.California Advisory Opinion 45 (1997).

Several advisory committees havedescribed the appropriate procedurewhen a judge receives a letter from anunrepresented litigant or a prisoner.The Virginia advisory committeestated that after receiving a prisoner’sletter attempting to communicate pri-vately, a judge may:

• Give the letter to the court clerkto be file-marked and retained inthe file,

• Send a copy to the prosecuting at-torney and retained or court-ap-pointed defense counsel, and

• Read the letter to determinewhether it is a proper or improperex parte communication (in otherwords, whether it falls within oneof the exceptions to the prohibi-tion on ex parte communications).

Virginia Advisory Opinion 99-5. If thecommunication is proper, the judgeshould disclose it and allow the parties

to respond. If it is improper, the judgeshould communicate in writing(which may be a form letter) to theprisoner, with a copy filed with theclerk and sent to the prosecuting attor-ney and defense counsel. The judge’sresponse should state that:

• The letter was improper,• Such communication should

cease,• The judge will take no action in

response to the letter, and• A copy of the letter has been sent

to the prosecuting attorney anddefense counsel.

Accord Texas Advisory Opinion 154(1993) (copies of correspondenceshould be sent to counsel and any prose litigants).

Similarly, the Washington judicialethics committee stated that a judgemay respond to a letter or other writ-ten communications from an unrepre-sented criminal defendant with a formletter, sent by the court clerk. Wash-ington Advisory Opinion 02-14. The

form letter would advise the defendantthat the judge cannot respond to ques-tions and that the defendant shouldcontact a lawyer or schedule a hearingin accordance with the court rules. If ajudge receives a communication froma defendant who is represented, thejudge may advise the defendant tocontact his or her lawyer. Copies ofboth the defendant’s letter and thejudge’s response should be retained inthe court file and given to counsel.

A similar form reply may be sent inresponse to an ex parte communicationfrom a defendant’s spouse, parent, orother relative or friend. Washington Ad-visory Opinion 02-14. See also Massa-chusetts Advisory Opinion 03-17 (in re-sponse to letter stating complainingwitness in criminal complaint overwhich judge had presided had heardnothing about progress of case, judgemay tell writer where he may learnwhat has happened but should sendcopies of both letters to prosecutor andto defense counsel).

Interim Suspension (continued from page 7)

come of criminal proceedings, manystates have provisions automaticallysuspending the judge with pay or au-thorizing the court or commission toorder the judge’s disqualification withpay.

Those states in which disqualifica-tion is automatic include Alabama,Alaska, Arizona, California, Connecti-cut, Minnesota, Missouri, Montana,North Dakota, Ohio, Rhode Island, andSouth Dakota. Following criminalcharges, in Nevada, the commission“shall” suspend the judge, while in Ha-waii, Indiana, and Nebraska, the su-preme court “shall” order the suspen-sion of a judge immediately withoutnecessity of commission action. Inother states, the supreme court “may”suspend the judge following a recom-mendation by the conduct commission(Arkansas, Kentucky, Louisiana) or

without commission action (New York,South Carolina, Tennessee) or the com-mission may suspend the judge (Geor-gia, Kentucky, Texas, Vermont, Wyo-ming). In Utah, an indicted judge isplaced on administrative leave withoutpay by a member of the supreme court.In West Virginia, disciplinary counselmay make a report regarding temporarysuspension to the supreme court of ap-peals. In Pennsylvania, the JudicialConduct Board makes a motion for aninterim suspension with the Court onJudicial Discipline. In Illinois, a chiefjudge may temporarily assign a judge torestricted duties or duties other than ju-dicial duties when the judge has beenformally charged with a crime that in-volves moral turpitude or reflects ad-versely upon the judge’s fitness to serve.

In most states, the suspension re-sults from an indictment or an infor-

mation charging the judge in theUnited States with a crime punishableas a felony under a state or federal law.Additional crimes may also result insuspension in Arkansas and Hawaii(misdemeanor charges that adverselyaffect the judge’s ability to performthe duties of office), Connecticut andWyoming (a crime involving moralturpitude), Louisiana (“any otherlesser crime that reflects adversely onthe judge’s honesty, trustworthiness orfitness as judge”); South Carolina (“aserious crime”), Texas (a “misde-meanor involving an act relating to ajudicial office or a misdemeanor in-volving an act involving moral turpi-tude”), Utah (“class A misde-meanor”), and West Virginia (“aserious offence”).


The Center for Judicial Ethics will hold its 19th National College on Judicial Conduct and Ethics

on October 21-23, 2004, at the Embassy Suites Downtown Lakefront in Chicago. The National

College provides a forum for judicial conduct commission members and staff, judges, and judicial

educators to learn about and discuss professional standards for judges and current issues in judicial

discipline. The Colorado Supreme Court Board of Continuing Legal and Judicial Education has

accredited the College for 13 general continuing legal education credits including 7 ethics credits.

The topics for the sessions at the College are:

• The Appearance of Impartiality and Community Activities

• Attending Seminars

• Developments following Republican Party of Minnesota v. White

• Determining the Appropriate Sanction

• Disciplinary Responsibilities

• Disqualification

• Ethical Issues for Appellate Judges

• Ethics for Court Staff

• Issues for New Members of Judicial Conduct Commissions.

• Judicial Ethics and Problem-Solving Courts

• The Role of Public Members

• Writing Judicial Discipline Decisions

The sessions will be facilitated by judges and judicial ethics experts. In addition, during the College,

the American Bar Association Joint Commission to Evaluate the Model Code of Judicial Conduct

will hold a round-table discussion to obtain comments and suggestions relating to the code.

The College will begin Thursday October 21 with registration and a reception. Friday through

Saturday morning, there will be six sessions with several concurrent workshops offered during each

time slot. The College will end Saturday October 23 at noon. Registration for the College will be

$250. The rate for rooms will be $169 a night (for single occupancy; $189 a night for double occu-

pancy), plus tax. The deadline for getting the group rate at the hotel is September 18.

For registration materials or to register on-line, www.ajs.org/http://www.ajs.org/ethics/

eth_natl_college.asp or contact Stacey Nay at 515-21-2284.

19th National College on

Judicial Conduct and Ethics

October 21-23, 2004

Chicago, Illinois

Approved forCLE credits


ABA Evaluation of the Model Code

Inviting interested organizationsand individuals to file comments,the American Bar Association

Joint Commission to Evaluate theModel Code of Judicial Conduct hasissued two partial draft revisions ofthe model code. The drafts are postedon its web site (www.abanet.org/judicialethics), which also includescomments filed with the Joint Com-mission.

The first partial draft, issued on May11, contained proposals regarding ajudge’s conduct in general and impar-tial and diligent performance of judi-cial duties. The second partial draft,issued on July 19, contained proposals

regarding a judge’s personal conduct(using the judicial office for personalpurposes, use of non-public informa-tion, affiliation with discriminatory or-ganizations) and extra-judicial activi-ties (appearance before governmentalbodies, civic or charitable activities,appointments to fiduciary positions,testifying as a character witness, finan-cial activities, remunerative activities,and business activities). Still to comeare draft proposals regarding gifts and apolitical activities.

The partial drafts reflect a reorgani-zation of the model code and includememoranda outlining issues that wereprominent in the Joint Commission’s

discussions and on which commentwould be helpful. The Joint Commis-sion noted that the draft provisions“represent only the current thinking ofthe Commission and its advisors” and“will be reconsidered following re-ceipt of public comments.”

The American Judicature Societymade proposals for the revision of themodel code at the beginning of theJoint Commission’s evaluation, filedcomments on the first partial draft re-vision, and plans to file comments onsubsequent drafts. The AJS submis-sions may be found on the ABA site orat www.ajs.org/ethics/eth_ABA_commission.asp.

A Judge’s Participation in a Homeowners’ Association (continued from page 3)

But see West Virginia Advisory Opin-ion (March 16, 1999) (judge may notserve as president of homeowners’association where association will in-evitably have to take action that mayresult in adversary proceeding pur-sued in judge’s court).

However, while serving on a boardor as an officer, the judge may not:

• give investment advice to theboard (New York Advisory Opin-ion 88-98; Massachusetts Advi-

sory Opinion 01-6);• give legal advice or serve on the

association’s legal committee(Illinois Advisory Opinion 95-13; Massachusetts AdvisoryOpinion 01-6; New York Advi-sory Opinion 89-133; VirginiaAdvisory Opinion 00-9);

• participate in any decision that islikely to lead to litigation (NewYork Advisory Opinion 89-133);

• act as a mediator or arbitrator as

part of the board’s efforts to re-solve disputes between unitowners (Massachusetts AdvisoryOpinion 01-6);

• vote on the approval of prospec-tive purchasers (New York Advi-sory Opinion 88-98);

• engage in fund-raising (IllinoisAdvisory Opinion 95-13; Vir-ginia Advisory Opinion 00-9); or

• receive compensation (NewHampshire Advisory Opinion78-1).

But see U.S. Advisory Opinion 29 (re-vised 1998) (passing on prospectiveoccupants is allowable duty of judgeserving on homeowners’ associationboard); New York Advisory Opinion94-8 (judge may receive nominalcompensation for serving as memberof board of homeowners’ associa-tion).

Judicial Conduct ReporterSummer 2004

Allan D. SobelExecutive Vice Presidentand Director

Cynthia GrayDirector,Center for Judicial [email protected]

American Judicature SocietyThe Opperman Centerat Drake University2700 University AvenueDes Moines, IA 50311Phone: 515-271-2281Fax: 515-279-3090www.ajs.org

Published quarterly,$32 per year; single copy $9

© 2004American Judicature SocietyISSN: 0193-7367

To subscribe or if you have achange of address or questionsabout your subscription, contact515-271-2285 [email protected]

An index to the Judicial Conduct Reporter is available on the AJS web site at www.ajs.org.


Nonprofit Org.U.S. POSTAGE

PAIDChicago, IllinoisPermit No. 2482

JUDICIALCONDUCTREPORTER

The Opperman Centerat Drake University2700 University Ave.Des Moines, Iowa 50311

19th National College onJudicial Conduct and EthicsOctober 21-23, 2004, Chicago

Register on-lineat www.ajs.org/ethics

judicial conduct€¦ · south carolina opinion 10-4. a judge whose law clerk is a former assistant...

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