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Part 1: Introduction
1-100. Purpose 1-200. Scope 1-300. Format 1-400. Authorities 1-500. Citations and references Part 2: Legal Authorities Part 3: Basic Principles of Judicial
Conduct Part 4: Exercise of Judicial Power Part 5: Ex Parte Communications Part 6: Disqualification Part 7: Demeanor and Impartiality Part 8: Administrative Duties Part 9: Speaking, Writing and Teaching Part 10: Financial and Business
Dealings Part 11: Civil, Charitable, Social
Activities Part 12: Political Activities |
The following checklist is based on Rothman, supra, Appendix A, Direct and Hybrid Contempt--Checklist. See also American Judicature Society, ETHICS TRAINING FOR NON-LAWYER JUDGES 70-71 [hereinafter AJS Ethics Training]. CONTEMPT
PROHIBITED CONDUCT
4-200.
Applicable Law. 4-300. Introduction. Judges have the power and the duty to make choices. Much of this power is discretionary. Judicial discretion is the power to decide those matters that call for the exercise of personal judgment rather than the application of strict rules. Shaman, supra, §4.01 at 79. A judge exercises discretion when she grants a continuance, weighs evidence, imposes a non-mandatory jail sentence, or holds a person in contempt. In order to preserve judicial independence, few fixed rules apply to the exercise of this authority. If the judge commits "mere legal error"--a mistaken exercise of judicial discretion--the mistake can be corrected on appeal. Shaman, supra, §1.12 at 20. But judicial power can be abused, such as by "fixing" a speeding ticket for a friend, or by making legal mistakes so serious that the judge's conduct becomes unethical. Basically, if a judge's misuse of power is flagrant enough, serious enough, or frequent enough to raise concern about the judge's good faith or fitness to hold office, the judge risks being sanctioned for ethical violations. Several code sections relate to the exercise of power. Two general principles apply, especially to the use of power for personal gain: NMRA 21-100 requiring a judge to uphold the integrity and independence of the judiciary by observing and maintaining high standards of conduct, and NMRA 21-200, relating to impropriety and the appearance of impropriety. See BASIC PRINCIPLES. NMRA 21-300(B)(2) relates specifically to a judge's standards while performing her judicial duties: A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism. NMRA 21-300(B)(2). 4-400.
Abuse of power. 4-410. Advancing private interests of others. A judge cannot use her judicial position to gain favored treatment in court for anyone. Typically, such violations occur when friends, relatives, business or political associates have an interest in the outcome of a pending case. 4-411. Judge's own action. A judge may not extend special favors to litigants or otherwise give an advantage for personal reasons to someone appearing before him. A West Virginia magistrate accorded special treatment to an employee of a state senator who had been charged with hit and run and failure to maintain insurance. In re Eplin, 416 S.E.2d 248, 250 (W. Va. 1992). A municipal judge received a letter of caution for declining to accept a complaint filed against a relative. The judge sent the complainant to file in magistrate court. The judge said he wanted to avoid the problem of having a complaint filed regarding his relative. The judge should have accepted the complaint and recused himself later. JSC 85-I6. A magistrate was convinced by relatives of a repeat DWI offender to release him from jail because of his grandmother's illness. Without conducting a hearing, the judge suspended the jail term and released the offender, entering an amended judgment contrary to law. The judge resigned prior to the Supreme Court hearing on a charge of willful misconduct and violations of code. JSC 90-F5. A magistrate caused a court document to be backdated to allow a criminal complaint to be made before the running of the statute of limitations. These acts were committed in violation of NMRA 21-200 (disrespect for law) and NMRA 21-300 (unfaithful to law) and together constituted misconduct in office. He was suspended without pay for two months. JSC 88-F1. Improper dismissal of proceedings is a commonly cited ethical violation. The Judicial Standards Commission petitioned the Supreme Court to remove a magistrate judge for numerous alleged acts of misconduct in office, including dismissing DWI and other cases of friends and relatives, without notice to the prosecutor, based upon ex parte communications, and even though some of the cases had been assigned to other judges. In re Angie Vigil-Perez, NM Supreme Court Nos. 99-15 and 99-70. A North Carolina judge dismissed traffic tickets of family and friends. In re Kivett, 309 S.E. 2d 442, 449 (N.C. 1983). In a case involving a friend's nephew, a judge reduced a misdemeanor traffic offense to a parking ticket, without giving notice to the district attorney. He also dismissed a criminal case on a technicality, motivated by his relationship to the defendant's father. Spruance v. Comm’n on Judicial Qualifications, 532 P.2d 1209, 1217-1219 (Cal. 1975.) 4-412. Influencing others. It is unethical for a judge to attempt to influence others, such as judges or court personnel, for the purpose of affecting the course or outcome of a proceeding. A metropolitan court judge accused of using or allowing the
use of her name and title by a friend to influence the outcome of judicial and other matters
in which he was involved was suspended from the bench and ultimately resigned office. JSC
02-F3. A magistrate judge who admitted to intervening with a state police
officer on behalf of a friend charged with aggravated DWI, ordering detention officers
to release the defendant into his custody, and interfering in the police investigation
by contacting a witness, received a formal reprimand from the court and was assigned a
district judge mentor. JSC
01-F2. A New York judge attempted to influence a prosecutor to drop charges against a friend's son. The judge discussed the case with the Assistant District Attorney and the presiding judge, informing them of recent tragedies within the family. In re Kiley, 546 N.E. 2d 916, 917 (N.Y. 1989). A judge received a letter of caution for allegedly calling a district court judge's secretary to request more time for the judge's spouse to prepare for a hearing in which the spouse was a litigant. JSC 91-I3. 4-420. Use of judicial power for personal gain. A judge flagrantly violates ethical rules by using power for the judge's personal advantage. 4-421. Avoiding prosecution. A California judge received a traffic ticket, intimidated
another judge into dismissing it and then secretly altered it to indicate it was dismissed
after the judge attended traffic school, which he had not done. Spruance
v. Comm’n
on Judicial Qualifications, 532 P.2d 1209, 1220 (Cal. 1975). 4-422. Retaliation and embroilment. A judge may be tempted to use power vindictively, in retaliation for a personal offense. A district judge was removed from office for a pattern of misconduct, which included ordering the court administrator jailed for contempt. The administrator had transferred the judge's files to other judges at the direction of the chief judge, and refused to obey the judge's order seeking to countermand the transfer. In re Castellano, 119 N.M 140, 889 P.2d 175, 180-181 (1995). A Florida judge was disturbed by a police radio at lunch and ordered the officer to turn it off. The officer could not do so because of police regulations. The judge later sent the officer a letter on official stationery and threatened him with contempt. In re Muszinski, 471 So.2d 1284, 1285 (Fla. 1985). A California judge was censured for conduct including publicly calling a soccer coach, a "pervert," based on the judge's knowledge the coach had once been convicted of child molestation, and initiating a probation revocation proceeding against a probationer for personal reasons. In re Rasmussen, 734 P.2d 988 (Cal. 1987). A West Virginia magistrate was publicly reprimanded for threatening her estranged husband with arrest for DWI. The judge had left a threatening message on her spouse's answering machine. In re Boese, 410 S.E. 2d 282, 283 (W. Va. 1991). Nor may a judge lose self-control in a manner unbecoming a judge, even if the threatened action is not judicial. A district judge was removed from office for a pattern of misconduct, which included the use of profane language and other discourteous, disrespectful and undignified treatment of court staff. In re Castellano, 119 N.M 140, 889 P.2d at 181-182. The Judicial Standards Commission petitioned the Supreme Court to remove a magistrate judge for numerous alleged acts of misconduct in office, including cursing in court offices, use of alcohol during court and other official proceedings, abuse of court staff, making racially biased references about court staff, and public derision of the chief judge. In re Angie Vigil-Perez, NM Supreme Court Nos. 99-15 and 99-70. A magistrate's daughter was the subject of a law enforcement action. Later that evening the magistrate castigated and threatened to whip the chief of police. The magistrate received a letter of caution. JSC 85-F2. When a California judge was stopped by a policeman for excessively using her horn, she told the officer to "go to hell," and at the office told her bailiff to find the officer so she could "shoot his balls off and give him a .38 vasectomy." The officer was made to appear in court. In a separate incident, the judge threatened to shoot the manager of her apartment building because of a confrontation they had. For this and other misconduct, the judge was removed from office. Cannon v. Comm’n on Judicial Performance, 537 P.2d 898, 902, 913-14 (Cal. 1975). 4-430. Resolving controversies outside the judicial process. Judges have been disciplined for asserting their authority on behalf of others when no judicial proceeding is involved. In these cases, the judge abuses authority by assuming an adversarial role while cloaked with judicial authority. A New York judge, on the basis of an ex parte communication from a landlord, wrote a letter to the landlord's tenants and signed a warrant to evict them, although no legal action was pending. In re Kristoffersen (unreported determination N.Y. 1990) (cited in Shaman, supra, §6.04 at n. 48). A magistrate who assisted creditors in the collection of debts by writing letters to alleged debtors in matters in which no complaints were filed was issued an oral caution for misusing his authority. He had used court office supplies in preparing the letters. The judge had said he believed he was only helping to reduce the amount of litigation. JSC 85-F1. 4-500. Legal Error. A judge's failure to follow the law may violate NMRA 21-200, which requires the judge to comply with the law and promote public confidence in the judiciary, or NMRA 21-300(B)(2), which requires the judge to be faithful to the law and maintain professional competence in it. In the most serious cases, the judge's actions may indicate bad faith, supporting a finding of willful misconduct. 4-510. Pattern of legal error. Violations of NMRA 21-200A are more likely to be found when there is a pattern of legal error, indicating the judge lacks competence in the law. Continuous conduct of this sort demonstrates that a judge has not maintained a professional competence in the law and is not fit to hold office. A New York judge was removed from office for repeatedly neglecting to inform litigants of their rights, including right to counsel, and coercing defendants to make damaging admissions by threatening them with incarceration. In re Esworthy, 568 N.E.2d 1195, 1196 (N.Y. 1991). In 62 cases over a two-year period a New York judge routinely denied criminal defendants their rights, abused the bail process, ordered defendants held in custody without justification, assumed an adversarial role at arraignments, and otherwise demeaned the judicial process. The judge was removed from office. Sardino v. State Comm’n on Judicial Conduct, 448 N.E. 2d 83, 84 (N.Y. 1983). 4-520. Egregious legal error. Extremely serious legal error can subject a judge to discipline, even if there is no continuous pattern of violations. In the following cases, the judge simply refused to follow the law. A Michigan judge intentionally disregarded a binding appellate decision in which a gun control ordinance was held constitutional, and refused to impose the mandatory penalty under the ordinance. In re Hague, 315 N.W.2d 524, 531 (Mich. 1982). A West Virginia magistrate failed to assess minimum penalties for offenses and withdrew a criminal complaint without the approval of the prosecuting attorney. In re Crislip, 391 S.E.2d 84, 86-87 (W. Va. 1990). 4-530. Specific situations. Judges have been disciplined for failure to follow the law in various situations, including: 4-531. Abdicating decision-making responsibilities. These cases demonstrate flagrant disregard of judicial responsibilities. A Louisiana judge was disciplined for flipping a coin or taking ballots from spectators
in the courtroom to determine guilt or innocence. This conduct was a complete abdication
of judicial duty. In re Daniels, 340 So. 2d 301, 307-308 (La. 1976). 4-532. Improper delegation of judicial responsibilities. A judge may not delegate judicial duties or authority to non-judicial staff, even with the best intentions. Such delegation shows a lack of care in exercising judicial responsibilities, which undermines public confidence in the judiciary. A magistrate delegated to a municipal clerk the authority to solemnize marriages, without
statutory authorization, in violation of former NMRA 21-200(A), 21-300(A)(1) and 21-300(B)(2).
The judge received a 5-day suspension and reprimand. In re Perea, 103 N.M. 61, 711 P.2d
894 (1986). A magistrate was issued a letter of caution for having signed a criminal order expecting the accused to plead guilty and left instructions for the clerk to handle the case in his absence, in violation of the procedural requirements for entry of judgment. NMRA 6-701; JSC 89-I1. 4-533. Improperly assuming jurisdiction. A judge is responsible for ensuring that she has jurisdiction before proceeding with the case. A magistrate assumed jurisdiction over a case inappropriately, and was admonished to study the Supreme Court rules and not accept the advice of law enforcement officers. JSC 88-I4. 4-534. Ignoring required procedures. A judge does not have discretion to bypass statutory and procedural requirements in exercising authority. A magistrate was publicly censured for issuing a writ of replevin without having received a formal complaint. JSC 84-F. A letter of admonishment was issued to a judge for failing to issue a proper order when releasing an inmate from jail prior to completion of the sentence. JSC 84-1. A municipal judge received a 15-day suspension for authenticating both an application for an absentee ballot and ballot in the absence of the voter, contrary to statutory requirements, in violation of former NMRA 21-200(A) and Code 21-300(A)(1). JSC 85-F6. 4-535. Swearing of witnesses. Witnesses must be properly sworn before testifying. The JSC has reported at least three instances in which municipal court judges heard testimony from witnesses without first swearing them in. The judges were issued letters of caution. JSC 85-I5 JSC 86-I5 JSC 88-I2. 4-536. Bonds. Irregular procedures in connection with bonds have also raised ethical issues. A judge was alleged to have established a bond for defendant after imposing a fine and ordering DWI school. After completion of school and payment of fine, judge refused to return the bond. JSC 87-I3. A defendant's uncle posted an appearance bond in municipal court in a "driving on suspended license" case. The judge found the defendant guilty, fined him, and tendered to the uncle the difference in the amount of the fine and the bond, although the bond was for appearance only and not a guarantee of payment. The judge received a letter of admonition, cautioning that such actions tend to bring the judiciary into disrepute. JSC 88-I5. 4-600. Abuse of contempt power. 4-610. Introduction. Abuse of contempt power is a specific kind of failure to follow the law, and as such is governed by NMRA 21-100, NMRA 21-200, and NMRA 21-300(B)(2). Abuse of contempt authority also implicates NMRA 21-300(B)(4) and NMRA 300(B)(7), relating to judicial demeanor and protecting the parties' right to be heard. See DEMEANOR AND IMPARTIALITY. The contempt power is the judge's ultimate weapon, which enables him to control the courtroom to maintain decorum. Unfortunately contempt is subject to abuse by judges who have lost control of their own composure or the situation in the courtroom. Most commonly, judges get into trouble when they use contempt to settle a personal score, especially in retaliation against a party, attorney or witness with whom the judge has been drawn into personal conflict. Because it carries criminal penalties, contempt should be used as a last resort, only for legally valid reasons, and in strict conformity with procedural requirements. "It should be used with great prudence and caution and never to intimidate litigants and witnesses or in a manner that interferes unnecessarily with a litigant's ability to consult with counsel." AJS, ETHICS TRAINING FOR NONLAWYER JUDGES 73 (1993). Any other use of the contempt power falls outside the scope of judicial authority and may subject the judge to disciplinary action, often for willful misconduct. The following discussion looks at contempt in the context of judicial ethics, and is not a complete discussion of the substantive law. Judges should refer to their statutes, court rules and benchbook for the substantive law of contempt. Metro/Magistrate Benchbook §3.4; Municipal Benchbook §7.5. 4-620. Contempt defined. Contempt of court is an act, which is calculated to lessen the authority or degrade the dignity of the court by embarrassing, hindering, or obstructing the court in the administration of justice. Metro/Magistrate Benchbook §3.4(A). 4-630. Basic legal requirements. For a finding of contempt to be supported, the conduct must be contemptuous, and the judge must follow all procedural requirements, including warning, any required notice, hearing, and the entry of a written order. 4-631. Grounds. Judges of the courts of limited jurisdiction can punish for contempt only for (1) misbehavior that obstructs the administration of justice and has occurred in the presence of the court; (2) misbehavior of court officers (clerks and bailiffs) in official transactions; or (3) disobedience or resistance to any lawful order, rule, process, decree or command of the court. A magistrate has jurisdiction to punish for contempt only for disorderly behavior or breach of the peace tending to interrupt or disturb a judicial proceeding in progress before the magistrate or for disobedience of any lawful order or process of the court. No person shall be punished until given an opportunity to be heard in his defense. §35-3-9. 4-632. Direct contempt. Direct contempt is contemptuous conduct that takes place in the judge's presence or the court's vicinity and interrupts the course of proceedings so that the judge must take corrective action. Any person present in the courtroom can be charged with contempt, including an observer. Direct contempt often involves disorderly or insolent behavior and is punished summarily. Prior notice is not required because the judge usually deals with the offending conduct immediately. For the judge to punish direct contempt, the judge must certify that she saw or heard the conduct and that it was committed in the presence of the court. Unless the conduct in question is contemptuous on its face, the judge should warn the contemnor specifically that the judge finds the conduct contemptuous and allow an opportunity for apology or change in conduct. A hearing must be held before a contempt order can be entered. The order must be in writing, so it can be appealed. 4-633. Indirect contempt. Indirect contempt includes all contemptuous behavior that is not direct contempt, including disobeying a court order. Punishment for indirect contempt requires a complaint, notice, hearing and a written order. 4-640. Contempt hearing. The judge who charges the contempt is not required to disqualify herself from presiding over the contempt hearing. However, the judge should disqualify herself if she is so personally embroiled in the controversy that she cannot rule fairly. A judge who initiated a contempt proceeding against an attorney was not disqualified from presiding over the contempt hearing. The court rejected the per se rule of disqualification for contempt hearings and adopted the "sounder determination" of the United States Supreme Court in Mayberry v. Pennsylvania, 400 U.S. 455 (1971) that a judge should be prohibited from presiding only if the judge becomes so embroiled that it is unlikely he can maintain the necessary detachment. State v. Stout, 100 N.M. 472, 475, 672 P.2d 645, 648 (1983). 4-650. Pattern of abuse. Where judges have been disciplined for abuse of contempt power, there is usually a pattern of repeated misuse. Shaman, supra, §4.02 at 82. A Florida judge held an attorney in contempt without allowing him to explain why he was late to court, and held a boy's father in contempt for asking why the boy had been confined in a juvenile shelter. In re Crowell, 379 So. 2d 107, 108 (Fla. 1980). A Nevada judge was removed from office for a long-standing pattern of abuse of contempt power that involved at least three instances in which the contempt had been reversed on appeal. The judge had ignored binding precedent and the fact that the judge was experienced but continued to ignore proper procedure was held to constitute the bad faith necessary to find willful misconduct. Goldman v. Nevada Comm'n on Judicial Discipline, 830 P.2d 107, 135 (Nev. 1992). 4-660. Embroilment. Personal embroilment in a controversy is a frequent cause of abuse of the contempt power. Some litigants intentionally try to make the judge lose control. An angry judge is more likely to abuse this authority than a judge who remains above the fray. A judge must not . . . place the defense of his own character above his obligation to promote respect for the law in adjudicating contempts of court. . . . No matter how provocative are the personal attacks or innuendos by lawyers against a judge, the judge simply "should not himself give vent to personal spleen or respond to a personal grievance" because "Justice must satisfy the appearance of justice." McCartney v. Commission, 526 P.2d 268, 287 (Cal. 1974). Judges should not overreact when a party disqualifies the judge or files disciplinary charges. A California judge used contempt to retaliate against an attorney who disqualified the judge from cases. In re Wenger, 630 P.2d 954, 958 (Cal. 1981). A California judge held a litigant in contempt after she publicly posted a copy of her letter of complaint about the judge to the state's judicial conduct organization. The judge was removed from office for this and other misconduct. Furey v. Comm’n on Judicial Performance, 743 P.2d 919, 926-27 (Cal. 1987). 4-670. Common scenarios demonstrating abuse of the contempt power. Attorneys, litigants, witnesses, and even persons unrelated to a court proceeding can be the subject of a judge's misuse of the contempt power. The judge's overreaction can arise from conduct in court, retaliation for past conduct, or events in the judge's personal life. 4-671. Invalid underlying basis. The conduct itself must be contemptuous for a judge to punish someone for contempt. A California judge arbitrarily entered an order to refrain from examining a witness. Cannon v. Comm’n on Judicial Qualifications, 537 P.2d 898, 904 (Cal. 1975). Misuse of the contempt power by a judge is willful misconduct and can be grounds for removal from office. A district judge was removed from office for a pattern of misconduct, which included ordering the court administrator jailed for contempt. The administrator had transferred the judge's files to other judges at the direction of the chief judge, and refused to obey the judge's order seeking to countermand the transfer. In re Castellano, 119 N.M 140, 889 P.2d 175, 180-181 (1995). A California judge was removed from office for conduct including threatening incarceration to ensure defendant would comply; threatening contempt sanctions on a defendant who whispered to his attorney without further inquiry; holding defendant in contempt after the defendant asked "how come" after the judge denied his request so say something; and threatening a witness with jail or fine when defense counsel objected to the witness's answer; and finding a spectator in contempt when she swore after tripping over her son's feet. Kloepfer v. Comm’n on Judicial Performance, 782 Pd 239, 256-57 (Cal. 1989). Rudeness, while demeaning to the court, does not always justify a finding of contempt. A California judge added to sentence for contempt when defendant was rude to judge at sentencing. Furey v. Comm’n on Judicial Performance, 743 P.2d 919, 923 (Cal. 1987). Judges have been disciplined for holding people in contempt while knowing there was an insufficient basis for the charge, A California judge threatened to hold an attorney in contempt if he brought any more prostitution cases. In re Hague, 315 N.W.2d 524, 533 (Mich. 1982). or, for imposing contempt sanctions when the reasons cited by judge are not supported by the facts. The court record did not support the judge's claim that a lawyer whom the judge had held in contempt repeatedly ignored the rules about impeaching witnesses. In re Turner, 421 So. 2d 1077, 1079 (Fla. 1982). A Florida judge held an attorney in contempt for refusing to answer the judge's questions, although the transcript showed the lawyer tried to answer. In re Crowell, 379 So. 2d 107, 109 (Fla. 1979). A North Carolina judge was censured for briefly confining attorney in court after attorney had properly refused to explain reasons for motion to be relieved of representing a criminal defendant. In re Bullock, 403 S.E.2d 264, 267 (N.C. 1991). 4-672. Animosity toward attorneys. Judges must maintain control of the courtroom. Lawyers must represent their clients zealously. An aggressive attorney may easily provoke the judge to use the contempt power inappropriately, especially when the attorney and judge have a history of antagonism. The judge may be biased for or against a certain groups of attorneys, such as all public defenders, or be overly authoritarian and quick to sanction for contempt without pursuing alternative means to control the situation. A California judge was removed from office for a pattern of misconduct that included numerous instances of abuse of contempt power. The judge ordered incarceration of public defenders, without a hearing, for asking questions the judge did not like and for not being in the courtroom when the case was called; would appoint substitute counsel and not give them adequate time to prepare. The judge's failure to follow procedures was in bad faith, not mere legal error. Cannon v. Comm’n on Judicial Qualifications, 537 P.2d 898, 908-12 (Cal. 1975). Judges have held attorneys in contempt immediately, without a hearing, for failure to appear in court at an appointed time. The court cannot hold the attorney in contempt without first giving notice and an opportunity to explain the absence, unless the judge has personal knowledge that the attorney is absent for an unacceptable reason. Metro/Mag. Benchbook §3.4. Holding an attorney in contempt for exercising a right is clearly abusive. A judge was suspended for sixty days without pay and ordered to pay costs of disciplinary proceeding for conduct including citing a district attorney for contempt for filing a writ of prohibition to prevent the judge from removing the attorney from juvenile cases without authority. The judge "knowingly and intentionally misused the authority of his office to effect a purpose beyond his legitimate authority, which constituted bad faith, malicious abuse of power, and thus willful misconduct in office." In re Martinez, 99 N.M. 198, 204, 656 P.2d 861, 867 (1982). A Pennsylvania judge was removed for abuse of the contempt power, including holding an attorney in contempt for persistently trying to state an objection after the judge refused to permit it. The judge was annoyed by the attorney for having asked the judge to recuse himself from a case. Judicial Inquiry & Review Bd. v. Fink, 532 A.2d 358, 365 (Pa. 1987). 4-673. Animosity toward parties and witnesses. Parties and witnesses may have limited understanding or appreciation for procedural rules. They may also be quick to provoke the judge by using the courtroom to vent anger and frustration. A New Jersey judge, among other abuses, held a defendant in contempt for a remark that the defendant made to his attorney outside the courtroom. In re Yengo, 371 A.2d 41, 55 (N.J. 1977). A Florida judge held an attorney in contempt and jailed him for not following the proper method of impeaching a witness; ordering the arrest of two witnesses who had given conflicting testimony until it was determined who was lying; and holding a female attorney in contempt for making objections to his comments from the bench. In re Turner, 421 So. 2d 1077, 1079 (Fla. 1982). Serious abuses can occur when the judge appears to be biased and uses contempt as pre-judgment punishment. See NMRA 21-300(B)(5). 4-674. Animosity toward others. A judge should not use indirect contempt improperly, such as by threatening or punishing a person who personally offends the judge. This is an especially serious abuse of authority because it arises in a non-judicial context, when the judge lacks even apparent authority. Public censure was ordered of a magistrate who exceeded his authority and acted improperly by issuing a bench warrant for the arrest of a man with whom he'd had an altercation in a bar. The judge had charged the man with indirect contempt of court. JSC 84-F. A Georgia judge threatened to hold a person in contempt for writing letters critical
of the court to a local paper. In re Inquiry no. 693, 321 S.E. 2d 743, 744 (Ga. 1984). 4-680. Controlling the courtroom while avoiding contempt. Court proceedings may be emotionally charged. If the judge remains calm and acts quickly to diffuse a potentially volatile situation, the judge may control the problem without resorting to contempt. Judge David Rothman of the Superior Court of California suggests several ways to deal with such problems. A judge can:
4-700. Abuse of adversary process. Judges also abuse their authority when they deprive parties of their rights or interfere with the judicial process by failing to follow the law. Abuses of this sort are treated as serious offenses by disciplinary authorities. A judge shall be faithful to the law and maintain professional competence in it. NMRA 21-300(B)(2). A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. NMRA 21-300(B)(7). 4-710. The pro se litigant. In dealing with the pro se litigant, a judge must remain impartial but ensure that the litigant receives a fair hearing. If the judge does too much to help the party, she risks becoming an advocate; if she does too little, the party is denied the fundamental right to a fair hearing. The problem is compounded if the pro se party tests the limits of the court's patience and the judge overreacts. A judge was publicly censured and suspended for twenty days for his rude treatment of a pro se litigant despite his claim that the behavior was dictated by administrative necessity and practical problems created by the litigant's appearance in court without an attorney. The judge interrupted witnesses and litigants "without regard to the effect on the confidence of witnesses, parties, attorneys and the public generally in the integrity, competence and fairness of the judicial system." In re Kellam, 503 A.2d 1308, 1309 (Me. 1981). 4-720. Interfering with attorney-client relationship. It is unethical for a judge to engage in conduct that detrimentally affects the attorney-client relationship. 4-721. Proceeding in absence of counsel. The most serious problem in this category is conducting court proceedings in the absence of counsel when the judge knows the party is represented. A California judge appointed an attorney in a probation violation proceeding and before counsel arrived asked the accused whether the alleged events had taken place. Ryan v. Comm’n on Judicial Performance, 754 P.2d 724, 737 (Cal. 1988). A California judge was removed from office for willful misconduct including conducting court proceedings in the absence of counsel. Gonzales v. Comm'n on Judicial Performances, 657 P.2d 372, 380-81 (Cal. 1983). 4-722. Denying or trivializing right to counsel. Judges in criminal proceedings must affirmatively advise unrepresented defendants of their Sixth Amendment right to counsel so that they understand the right and the implications of proceeding without an attorney. If the judge fails to advise, or disparages the right by tone of voice or body language, the defendant is denied a constitutional right. A Florida judge threatened a defendant with a harsher sentence to discourage him from requesting a public defender. In re Damron, 487 So. 2d 1, 2 (Fla. 1985). A New Jersey judge stated to defendant: "I have to go through this drill and ask you if you want a lawyer or not. . .. They make me do it. I know you don't want one, you know you don't want one but I have to go through this and waste your time anyhow." In re Bozarth, 604 A.2d 100, 102 (N.J. 1992). A Maine judge detained a juvenile for almost six weeks before he received assistance of counsel. In re Benoit, 487 A.2d 1158, 1167 (Me. 1985). A California judge wrongfully proceeded with a probation revocation hearing for a defendant who appeared without counsel, without appointing counsel or advising the defendant of the right to counsel. Kloepfer v. Comm’n on Judicial Qualifications, 782 P.2d 239, 252 (Cal. 1989). The fact that the court is busy does not excuse a judge from advising a defendant of the right to counsel. A high volume of cases does not justify a judge's failure to determine whether a defendant is indigent and entitled to an attorney. In re Field, 576 P.2d 348, 353 (Ore. 1978). It is also unethical to discourage a defendant from obtaining counsel by subtle means, such as giving reassurances that the defendant has nothing to worry about. 4-723. Undermining the attorney-client relationship. The quality of legal representation varies and judges inevitably form opinions about the skills of attorneys appearing before them. The judge may not express negative opinions about the representation to a party, either directly or indirectly. If the attorney's conduct is unethical, the judge should report it to the attorney disciplinary board. A Pennsylvania judge attempted to convince the son of a litigant that the father's lawyer was not to be trusted. Judicial Inquiry & Review Bd. v. Fink, 532 A.2d 358, 362 (Pa. 1987). A California judge willfully interfered with the attorney-client relationship by forcing newly appointed public defenders to proceed unprepared; refused to explain why she had overruled objections; told an attorney not to ask "stupid" questions, advising the attorney might want to check on the quality of the food in the county jail. Cannon v. Comm’n on Judicial Qualifications, 537 P.2d 898, 900-01 (Cal. 1975). In full court with the client present, a California judge accused a defense attorney of being psychologically afraid of going to trial and inquired about the number of cases she had tried. Kloepfer v. Comm’n on Judicial Performance, 782 P.2d 239, 248 (Cal. 1989). The judge also must respect the confidentiality of attorney-client communications. A judge ordered a defendant to answer questions in a contempt hearing about the advice the lawyer gave the client. Wenger v. Comm’n on Judicial Performance, 630 P.2d 954, 960 (Cal. 1981). 4-730. Allowing non-attorney representation. A judge may not allow a person to be represented by a non-attorney. JSC 90 F2. 4-740. Assuming adversarial role. Judges have been disciplined for abandoning their judicial function in the course of a proceeding, such as by usurping the jury's role, A California judge unlawfully directed jurors to return a guilty verdict. McCullough v. Comm’n on Judicial Performance, 776 P.2d 259, 262 (Cal. 1989). or examining witnesses in an adversarial manner. A judge was disciplined for examining witnesses like an advocate, creating "the impression that there was no impartial, truth-seeking judge in the courtroom." In re McCartney, 526 P.2d 268, 283 (Cal. 1974). 4-750. Coercing case dispositions. A judge's desire to expedite case dispositions may increase the temptation to force settlement and pleas. Undue pressure from the judge is unethical because it deprives parties of their day in court and indicates the judge is no longer impartial. This is especially true where plea bargains are concerned. A judge should not be involved in discussions about possible plea bargains, or engage in efforts to make a defendant plead. Some court rules address this problem directly, by expressly prohibiting judges from participating in plea discussions. See NMRA 8-502(D)(1). A district judge was removed from a case under the Supreme Court's power of superintending control when the judge had actively engaged in efforts to get the defendant to plead guilty. State ex rel. Anaya v. Scarborough, 75 N.M. 702, 706, 410 P.2d 732, 736 (1966). A Michigan judge was suspended for five years for misconduct including threatening defendants with imprisonment, over counsel's objection, if they did not take guilty pleas. The judge told one defendant he should take the plea because his attorney did not have his case together. In re Del Rio, 256 N.W.2d 727, 742 (Mich. 1977). By holding "bargain days" when the judge imposed one-half of his customary sentence on defendants pleading guilty on those days, a California judge deliberately misused his power and abrogated his duty to decide each case on its own merits. Gonzalez v. Comm'n on Judicial Performance, 657 P.2d 372, 381 (Cal. 1983). A Maine judge threatened to impose a significantly more severe sentence if the defendant rejected the judge's plea offer and was subsequently tried and found guilty. In re Cox, 553 A.2d 1255, 1256 (Me. 1989). 4-760. Participating in settlement discussions. Even if the judge's conduct is not coercive, she should not be involved in settlement discussions. A judge has no alternative but to recuse himself if he has participated in settlement discussions to such an extent that the judge becomes a witness to crucial fact issues. Collins v. Dixie Transp. Inc. 543 So. 2d 160, 167 (Miss. 1989). 4-770. Other procedures resulting in denial of due process. A judge who abandons proper procedure deprives parties of their rights. A California judge's direction to the jury to "go in that room and find the defendant guilty" constituted willful misconduct. McCulloch v. Comm'n on Judicial Performance, 776 P.2d 259, 262 (1989). A magistrate resigned pending allegations that he had dismissed criminal charges against a defendant without a hearing or agreement of the state. JSC 85-I1. The JSC noted with disapproval an allegation that a judge had accepted guilty pleas from defendants and then proceeded with trial on the merits. JSC 87-I3. 4-780. Abuse of bail. Coercive or punitive use of bail is another form of abuse of power. A California judge's willful misconduct included ordering a defendant back into custody when he refused to stipulate to probable cause, arbitrarily increasing bail when the defendant complained about not being released on his own recognizance, and raising bail from $500 to $50,000 after a defendant did not appear in court because he was in the hospital. Cannon v. Comm’n on Judicial Qualifications, 537 P.2d 898 (Cal. 1975). 4-790. Inappropriate criminal sanctions and civil remedies. 4-791. External factors. A judge's discretion does not extend to allowing criminal sentences to be based on arbitrary, external factors, A Louisiana judge was reprimanded for basing fines on amount of money defendants had with them at sentencing. In re Daniels, 340 So. 2d 301, 308 (La. 1976). A Florida judge improperly allowed traffic offenders to avoid appearing in court by paying double the statutory fine. In re DeFoor, 494 So. 2d 1121, 1122 (Fla. 1986). or for imposing punishment beyond the court's authority. A Maine judge ordered unrepresented defendants to jail for failure to complete community service that had not been court ordered. In re Benoit, 487 A.2d 1158, 1165-66 (Me. 1985). 4-792. Fees and costs. Failure to ensure proper payment of fees and costs also can be unethical. A magistrate was counseled for failing to award to plaintiff court costs as required by court rule. JSC 86-I6. A California judge improperly made attorney's fees payable before fines, leaving defendants subject to further proceedings, such as probation revocation and contempt, when they could not pay both. In re Gubler, 688 P.2d 551, 555 (Cal. 1984). A judge's authority does not extend to ordering a defendant to contribute to a judge's special fund instead of paying a fine, or making attorneys pay for infractions of court rules. A judge obtained monies for a special fund he had established to assist indigent drug and alcohol abusers by fining attorneys who arrived in court late, failed to appear, etc. In re Merritt, 432 N.W. 2d 170 (Mich. 1988). A California judge offered an attorney who had missed an appearance in court the choice between having a failure to appear on the client's driving record or the attorney paying a sum into the court's automation fund. Rothman, supra, §130.800 at n. 138. 4-7100. Favoritism. Allowing personal relationships to affect decisions is an obvious abuse of the judicial process. A judge was censured for releasing a friend on his own recognizance, giving him money and the telephone number of his clothing store, and offering him a ride home. In re Lehman, 812 P.2d 992, 993 (Ariz. 1991). A judge dismissed a criminal case involving a personal friend without explaining his actions or advising the prosecutor. McCullogh v. Comm’n on Judicial Performance, 776 P.2d 259, 263 (Cal. 1989). This prohibition includes abusing the power of appointment to benefit others. Judge's appointments of counsel for indigent defendants demonstrated favoritism toward two attorneys. Kennick v. Comm’n on Judicial Performance, 787 P.2d 591, 607 (Cal. 1990). Probate judge showed favoritism in granting appointments in hundreds of probate matters to three attorneys connected with a corporation in which the judge had an interest. In re Ford, 535 N.E.2d 225, 226-28 (Mass. 1989). A Texas judge was censured for appointing his son-in-law as master in numerous cases and awarded excessive fees. Inquiry concerning Davila, (Texas Comm. 1981). AJS, ETHICS TRAINING at 79. 4-800.
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