You live among your constituents. You work among them, see them at the coffee shop, the grocery story, at school and at church. Unlike your federal and state officials who travel to their respective capitols to cast their votes, you govern right here at home. To most, the relationship afforded by grassroots government serves as a catalyst to connectivity, putting you directly in touch with what your taxpayers need and deserve, along with the extras they appreciate, such as libraries, community centers, parks, etc.
As evidenced by local news stories, your community often rewards you, and we’re not just talking re-election. Man of the Year, Citizen of the Year, Appreciation Awards, Service Awards. Members of Commissioners Courts are regularly recognized by local civic clubs and community groups for not only completing their official duties, but going the extra mile, for doing things well and doing them right; that’s where ethics comes into play.
Ethics. The word embodies a collection of related terms including principles, conscience, integrity and morals. The topic is covered in new official orientations and is a part of the County Judges and Commissioners Association of Texas Commissioners Court Advanced Curriculum. While those teaching the course to County Judges and County Commissioners will often say, “We are preaching to the choir,” the continued reminders are valuable, as ethical missteps are an unfortunate reality.
As part of their training course on judicial ethics, Seana Willing, executive director of the State Commission on Judicial Conduct, and Lamar McCorkle, former District Judge, 133rd District Court, Harris County, have put together thought-provoking lists, questions and scenarios to help judges keep ethics at the forefront of their decisions, whether inside or outside the courtroom.
TOP TEN Ways to Get Grievances
Disclaimer:
The authors do not warrant or represent that the “Top Ten” are accurately sequenced; the sequences change…the grievances remain.
Ways to Get Grievances
- Lend the “prestige” of judicial office.
Examples:
- Writing letters of recommendation
- Avoiding arrest or citation
- Assisting “constituent” with case pending in another court
- Public appearances
- Political Activities.
Examples:
- Bumper stickers/yard signs/T-shirts
- Attending campaign/party functions
- Political contributions to candidates
- Attack ads
- Social media
- Participate in fundraising.
Examples:
- March of Dimes
- Bar Association
- Alma Mater
- Accept a gift/fail to report a gift.
Example:
- Christmas is coming, and so are the turkeys, cookies and bottles
- Football tickets
- Trips
- Discounted legal fees/free representation
- Allow your demeanor to be misinterpreted.
Examples:
- When sarcasm, humor go wrong
- Embroilment
- Treating people differently based on race, sex, etc.
- Impairment issues
- Influence of TV “syndi-court” programs
- Misuse county or state property.
Examples:
- Offices
- Computers/Equipment
- Personnel
- Time
- Funds
- Have the appearance of bias or prejudice.
Examples:
- Pro-prosecution or pro-defense reputation
- Failure to disclose relationships
- Too familiar/casual with counsel
- Favoritism in appointments
- Campaign statements
- Allow improper Ex Parte communications.
Examples:
- Both appearance and reality can get you in trouble
- Independent investigations of facts, evidence, witnesses, litigants, counsel, etc.
- Social media
- Technology in your hands
- Abuse authority.
Examples:
- Mishandling contempt
- Too-creative sentencing
- Mishandle recusal/disqualification situations.
Examples:
- Failure to disclose relationships
- Getting too involved in recusal hearing
- Improper ex parte communications with presiding administrative judge
- Campaign statements
- Social media hazards
Pondering the Ethics
Scenario 1
A retired appellate judge wants to write a letter of recommendation in support of a couple’s efforts to finalize an adoption. At a social event, the judge was overheard advising the prospective parents “not to worry.” Because of the judge’s personal relationship with the trial judge, “a letter from me should be sufficient to explain the situation.”
Scenario 2
A judge wants to write a letter on behalf of a member of the judge’s former law firm who is now seeking “special” recognition for their community involvement and legal experience.
Scenario 3
A judge has prepared and paid for both a newspaper and television advertisement; the ad displays a picture of the judge standing alongside a presidential candidate, as well as all other elected county officials. The ad endorses “the party” and urges the public to “re-elect” the judge and all other individuals currently holding elective office in the county.
Scenario 4
A judge’s spouse has been actively supporting a relative’s candidacy for public office by sending emails, hosting a fundraiser at their home, and making telephone calls to friends and family seeking contributions. On Election Day, the judge’s spouse and many court staff members could be seen in the vicinity of local polling places holding signs supporting the relative’s candidacy.
Scenario 5
Members of a judge’s court staff are actively involved in civic and charitable projects and often solicit funds in the community.
Scenario 6
At the end of “significant” oral arguments, a very friendly judge invites the high profile advocates to join her in chambers for coffee. The discussions are never about the case, but usually involve personal interests, hobbies, current events and political commentary. It is not uncommon for the judge, at or after these gatherings, to receive invitations from the lawyers, or their clients, to: (1) hunt; (2) to attend significant sporting events; or (3) vacation in exotic places.
Scenario 7
A judge serves as chair of a state bar committee, is a member of several local committees, and also works for several community initiatives. All of these commitments promote the improvement of the law, the legal system and the administration of justice. The judge uses court staff, phones, computers and stationery to meet these commitments.
Scenario 8
Before he was elected judge, Lawyer X often used the firm’s email to communicate with friends, colleagues and family members about politics, current events, novel legal arguments and anecdotes (sometimes of a questionable nature). After assuming the bench, the judge continues to receive similar materials and communications in his personal email account, which he sometimes views while on the bench.
Scenario 9
Because of economic pressures, a judge wants to serve in a county law enforcement organization on weekends.
The judge is also considering requests to:
- Write about his judicial experiences.
- Teach a financial investment class.
- Be a weekend guide on white water rafting trips in Big Bend.
- Start up an in-house business.
Scenario 10
Once a month, a trial judge and appellate judge meet for lunch and discuss interesting or difficult cases they are working on or have heard about in the courthouse.
Ethics Self-Test
True or False
- I am required to report another judge’s misconduct to the State Commission on Judicial Conduct (the Commission).
- I am justified in shouting over a loud, vulgar or offensive litigant in order to maintain control of my courtroom.
- The Commission can sanction me if I am arrested for DWI.
- I can never hear a case involving a relative or someone I know personally.
- I can use the court computer to send and receive political messages, jokes and family pictures, as long as I use my personal/private email account.
- It is acceptable for me to participate in a public forum sponsored by Mothers Against Drunk Drivers (MADD).
- It is acceptable for me to hug my clerk if we both agree it is not offensive.
- It is acceptable for me to send a letter of support to the Commission when asked by a fellow judge who is under investigation.
- I can be “friends” with attorneys on Facebook or be “connected” to them on LinkedIn, as long as we don’t discuss cases and I have a disclaimer prominently displayed on my social networking page.
- It is acceptable for members of my court staff to sell Girl Scout cookies or raffle tickets, or engage in other fundraising activities as long as they do not sell them in the courtroom.
Ethics Self-Test Answers
- False
Canon 3D does impose a duty to report to SCJC or take other appropriate action in certain circumstances.
- FALSE
Canons 3B(3) and 3B(4) appear to be at odds, but judges have other tools available for handling difficult or disruptive litigants that do not require the judge to lose control and resort to shouting in the courtroom to maintain order and decorum.
- TRUE
Under Article V, sec. 1-a(6)A of the Texas Constitution, any judge who engages in willful or persistent conduct inconsistent with the proper performance of his duties, or that casts public discredit upon the judiciary or the administration of justice can be sanctioned or removed from office.
- FALSE
Canon 3B(1) requires judges to hear and decide all cases assigned to them except when disqualification is required or recusal is appropriate. Judges need to know the law on disqualification and recusal, and they need to know when to get off a case or if the conflict can be cured or waived by disclosure.
- FALSE
Anything but a de minimus use of county resources can subject a judge to criminal charges. Private emails can become public and may subject the judge to embarrassment, recusal, and/or discipline.
- TRUE
Caveat: Be cautious of level of involvement/participation with advocacy organizations if you preside over cases where that group has an interest. Questions may be raised about impartiality and may result in frequent recusal. [Canon 4A]
- TRUE
Caveat: At what point do you have this conversation with your clerk about the appropriateness of physical contact and expressions of affection in the workplace? What if another clerk is offended by the conduct, feels discriminated against, or decides to file a hostile workplace complaint? What if the clerk decides he/she is no longer comfortable with the conduct?
- FALSE
If the SCJC needs factual information from another judge in the course of its investigation, it will ask that judge directly. Voluntary character testimony is prohibited by Canon 2B, and is rarely helpful in the decision to sanction a judge for judicial misconduct.
- TRUE
Caveat: Under Canon 4A, questions may be raised about a judge’s impartiality and lead to frequent recusals; disclosure may be helpful but difficult to keep up with.
- TRUE
Caveat: Be sure to train all court staff to comply with the Code of Judicial Conduct, and have a policy in place that prohibits this type of conduct in workplace and prohibits staff from invoking judge’s name/position/court when engaging in these activities.