Judges, Judicial Ethics, and Judging
During the eight years from 1992 to 2000 that Victor Yannacone served as Patchogue Village Justice he was called upon by the New York State Magistrates Association, the Office of Court Administration, and the Suffolk County Magistrates Association to give seminars on judicial ethics and discuss the myriad problems faced by the part-time judges who serve their communities in the local courts which deal with ordinance violations, vehicle and traffic matters, and misdemeanor criminal cases. While most of the Judges in the local Courts of New York are lawyers, in many rural areas they are not. The following is a composite of those seminar transcripts.
The People’s Courts
The town and village courts are the People’s courts. Village and Town Justices are the People’s Judges, elected by their neighbors. Adjudication of disputes by judges is one of the earliest social institutions. Look in the Bible. The Book of Judges comes far ahead of the Book of Kings. Judges came before Kings. Adjudication was more important.
It is that ancient tradition from which the office of Town and Village Justices descend. Town and Village Justices are elected by their neighbors to adjudicate matters of great personal concern to them and their families and to their neighborhood; to the area in which they live and to the people they know.
In the old days, according to the Old Testament, Judges were anointed by God. Later, by tribal elders, and in our society by the people. Some Judges still feel they have been anointed by Almighty God directly and political leaders have replaced tribal elders, but Town and Village Judges are not much different in what they do than the Judges originally chosen by God. But with this great honor, the grant of the power to judge the conduct of other human beings comes an awesome responsibility.
We are always Judges
We, the Village and Town Justices are always Judges from the moment we sign that oath of office. We are Judges every single moment of our public and personal lives. We have the obligation of maintain the dignity and integrity of our office at all times. We may be called part-time Judges. We may be paid as part-time Judges, but we have all of the individual personal obligation to behave as full-time Judges. We are subject to every single constraint imposed upon the personal conduct of a Supreme Court Justice. We are responsible for recognizing, honoring and adhering to the substantive principles underlying the Canons of Judicial Ethics at all times.
Perception and appearance: the organizing theme of Judicial Ethics
The organizing principle or unifying theme of judicial ethics is our perception by the people. How do the people, the litigants in civil matters and the defendants in criminal cases, the people who are affected by our judgments and the community see us and perceive what we do as Judges. It is their perception that governs.
We are full-time Judges every moment we are perceived or observed by another human being. Each of us is a Judge. We cannot hide. As long as we are identified or identifiable as a Judge, we have to behave as Judges. That makes all of us a kind of community. A community of chosen people. We have been chosen by our neighbors to assure that justice is done not just administer the “law”.
We are not administrative law Judges. We are not executive hearing officers. We are not arbitrators. We are Judges.
That means that every word out of our mouths that can be heard by anybody else, especially somebody who writes for a newspaper or has a microphone or a camera handy, reflects on each and every one of us. We are truly our brothers and sisters’ keepers. Every Judge who does something profoundly stupid and eminently newsworthy embarrasses each and every one of us.
We have all been to dinners and cocktail parties, or friendly meetings where the latest peccadillo of some judge anywhere in the English-speaking world is brought up. The innuendo is, “What makes you different, other than for the fact you haven’t been caught yet?”
Those of you who practice in the Federal Court have seen twelve Judges with twelve different mutually exclusive conflicting rule books behaving as if they are the only judge in the courthouse and treating the litigants and the lawyers as God might treat some sinner on the day of judgment.
First day on the Bench
Think about your first day on the bench as I recount mine.
On that first day I came to the Courthouse as a Judge, and heard the Bailiff cry, “All Rise!” I walked out in my brand-new black robe, sat down and looked out over a room full of faces. Looking out over a room full of faces was nothing new for me, but that day everybody stood up before I said anything. I’ve had an occasional standing ovation and it’s a real thrill, but nobody ever stood up before I said anything at all.
I thought about it for a moment; savored it for another moment and then I said, “Please be seated.” That session was a criminal calendar and the first defendant came up charged with a village ordinance violation. As the Village Attorney was struggling to present his prima facie case, I listened for about 2 minutes and then said, “Excuse me counsel,” took over the questioning and made the record as any reasonably seasoned trial lawyer would. When I finished, I asked the village attorney if he had any more questions, and when he didn’t, I explained to the pro se defendant his rights and saw that he was about to plead guilty.
Suddenly, I had a horrible feeling, turned to the clerk and said, Please excuse me ladies and gentlemen, the Court has an urgent matter to dispose of at this time.” I went off the bench in great haste. My Court clerk asked me what was the matter. I just tossed my robe at her and quite literally ran across the street to my office.
I sat down at a terminal and I started typing a list of all the things that have been done to me by Judges that I thought were reprehensible in 35 years of trying cases throughout the Country. As I finished typing the third page, I realized that this was an endless project so I stopped that list, started a new page, and tried to make a list of all the things that I had seen in courtrooms over those years that made me feel good as a trial lawyer. It took me almost 10 minutes to write only 10 or 12 lines. I printed those four pages and ran back across the street to the courthouse; took the bench very calmly, read the 4 pages to myself, and behaved decently, I hope, from that point on. I read those pages every time I went on the bench during eight years.
The next morning, I made appointments to visit every Judge I had ever appeared before in the region to apologize for my lack of understanding of what it was like on their side of the bench. When I visited Judge George C. Pratt who put up with me for 4 years during the Agent Orange litigation, I said, “You tolerated things that I now know must have made you feel very uncomfortable.” He looked at me, smiled and said, “You did make my life a little bit difficult, but at least it was interesting.” Judge Pratt will always be my model of what judicial temperament, human dignity, and civil behavior in the Courtroom should be.
The point of this homily is a reminder of the power and the rush of power that comes from donning the black robe and ascending the bench. You can send someone to jail. You can destroy their lives, especially if they meet the wrong cellmate. You can destroy them economically with fines. You can destroy their family. You can feel the rush of power. Anyone who sits as a Judge and tells you they don’t feel powerful is either lying or is totally insensitive to what they are doing. We must try and constrain the unbridled exercise of power with ethical considerations.
The most basic of those ethical considerations is fairness. We bring our past with us to the bench. We know who we are. We know what our formative experiences and shaping influences were. We cannot ignore them but we must not let them unduly influence our decisions.
The basic Rules
Remember to mind your mouth. Off the bench statements are just as damning as statements you make from the bench. If you’re reported as having made an ethnic slur, told an ethnic joke, behaved in a disparaging manner towards a minority, that’s evidence of bias. Someday it will come back to haunt you.
The original Star Wars trilogy is not just good entertainment, it is an allegory for all times. Once you take the first step toward the dark side of the force—in our case judicial power—it will be easier to take the next step.
We have all met judges who are part of an “old boy” network whose members are treated differently because of who they are, who they represent, or what they represent. We all know this is wrong, yet we live with it. We make accommodations for it. Now, as Judges, we should and we must clean our house.
Perceptions in the courtroom
During my penitential journey through the local courthouses, one of the wise old senior judges told me that there is no place for “off the record” or “conferences” in “chambers” during a trial. The public will believe that a deal is being made no matter what happens in the Courtroom. Sidebar conferences are bad enough. Just talk to any juror who has sat through a trial where sidebar conferences or worse, Chambers conferences, constantly interrupt the presentation of evidence.
Except for occasional recesses, I stay on the bench from the time court opens until it closes. When explaining recesses to the courtroom audience, who can smell the coffee. I tell him that my staff, the court clerks, the bailiffs, and especially the court reporter need regular breaks and that usually includes fresh coffee. I tell the audience how long the recess will be, where the restrooms are, and where they too can find some refreshment.
Although as a Judge you should encourage negotiations between counsel for the parties and between the district attorney and unrepresented defendants, you must make sure that the people in the courtroom understand you will not participate in them so long as you are the judge on the case. You must explain that if you should participate in any kind of negotiations with or among the parties, and they cannot agree to a settlement or other resolution of the issues, you must recuse yourself from the actual trial.
At the point the judge steps in to try and settle cases in private negotiations with the parties, the judge becomes an arbitrator or mediator and ceases to be a Judge and cannot return to the bench and adjudicate a case on the merits. That would be the ultimate conflict of interest.
Yes, it happens all the time, and many of us as attorneys have participated in the process. But it is wrong. Flat out wrong. Is it unethical? Yes. Is it sanctionable? Perhaps, if someone complains about it. A judge cannot be all things to all people and certainly not to all the parties to an action that judge will be called upon to adjudicate.
One of the problems with judges who have been active practicing attorneys in the courts or hold a judicial office such as village justice which permits them to continue practicing law is the simple fact that they know many of the people who appear before them and some of them may actually be people you have had cordial contact with over many years. Nevertheless, you cannot be seen to chat with a prosecutor or attorney in your chambers while court is in session. When the public is watching, you have to maintain the appearance of independence at all times.
Public trust and confidence
A report issued by a group of prominent corporate lawyers and partners in large full-service law firms found that Judges and the judicial system are not held in high regard by the people at large. The people who have been responsible for the gradual erosion of public confidence in the law and the legal system by getting closer and closer and closer to the edge of unethical behavior are now discovering that the public is reacting to it.
You don’t have to be a Judge. You can go back to practicing law and probably do better financially. But if you accept the responsibilities of the job, you must be a Judge all the time. You are now and always will be perceived as a Judge or a former Judge until the day you die! The appellation will always stay with you. Like Caesar’s wife was supposed to be, you must be above reproach.
Should you ever hold a party or their attorney in contempt? If you haven’t treated with contempt in your courtroom yet; rest assured you will. Someone before you will loudly make a number of scurrilous remarks about you, your character, your court and your family. And they won’t stop. A court officer will whisper in their ear that terrible things might happen to them if they don’t stop, but they keep it up. What are you supposed to do?
You don’t hold them in contempt immediately! You warn them. You give them all the statutory warnings and then you reserve decision, declare a short recess, and walk off the Bench. Remember, the ultimate escape of the Judge when faced with a problem is to “reserve decision. You know that you can always reserve on a motion. You can always reserve on a decision. But you also can, and almost always should, reserve on contempt.
Shortly after World War II, Judge Harold Medina presided over the trial of a group of alleged communists who were represented by a communist lawyers legal defense group. Their sole strategy for six solid months was to bait Judge Medina into making reversible rulings, particularly with respect to government evidence, and daring the Judge to hold them in contempt. For six months, Judge Medina refrained from holding anybody in contempt. At the end of each trial day he would point out that counsel had behaved a bit contumaciously today and they were in jeopardy of a contempt citation. At the conclusion of the trial, after the jury had rendered a verdict, after all the motions had been disposed of, and after the time to appeal had run, Judge Medina conducted a contempt proceeding; convicted the attorneys, and they each did six months.
If you are going to hold someone in contempt, you must make a record. You must have a record that you can look at with sober reflection. You need a court reporter who isn’t afraid to take down four letter words. However, always ask yourself, “What is and what will be the public perception of how you treat this contemptuous behavior and the individual responsible for it?”
You must always keep in mind that you have all the power of the sovereign people of the State of New York behind you and you are bringing it to bear against some person who may be less than fully articulate, whose vocabulary may be limited, and to whom “mother” may only be half a word. Most lower courts and magistrates see many such individuals and, to a certain extent, in the interests of Justice, we must accommodate them.
The pager of a defendant seated in the spectator section of the courtroom sounded and the Judge, who was later “admonished,” detained him in handcuffs for a lengthy period. The better way to handle that kind of interruption was demonstrated by United States District Judge Siebert who simply said, “I hope that call is for me; otherwise you can take it in a holding cell.” The offending attorney literally ran out of the courtroom. Judge Siebert had resolved the interruption, maintained the dignity of the court, and provided a humorous interlude for the jury in the case on trial.
A Suffolk County District Court Judge ordered the arrest of a vendor who sold really bad coffee from his truck outside the courthouse all night. My recollection is that the coffee was pretty bad during the day and by nine or 10 o’clock at night it was awful. However, it would have been more prudent for the judge to have invited the vendor to come into the courtroom and then explain to him how important fresh coffee was to keep everybody civil late at night. He didn’t and it cost him his robe. It also embarrassed all of us.
With people talking in the back of the courtroom, quietly ask the court officer to escort them outside the courtroom and explain the basic rules of courtroom etiquette to them. Better yet, prepare a one-page explanation of the basic rules of courtroom etiquette and have the court officers or clerks hand them to everyone as they check in.
Some Judges take great offense at people who wear hats in the Courtroom. Head coverings should not disturb you unless they are a sign of disrespect to the court and the American judicial system.
The basic need for recusal has to be bias or the appearance of unfairness. The proper way to handle a recusal situation is full disclosure. As local magistrates and Judges we know everybody. Worse yet, those of us who try cases in the courts of the region know many if not most of the attorneys will be appearing before us. What are we supposed to do?
Immediately disclose fully for the record and make sure that everyone in the courtroom knows the extent of any relationship that might exist between you as a judge and any attorney or party appearing before you whether that relationship might be casual or long-term, social, political, or even shared interests of any kind. As soon as you welcome the attorneys and the litigants to the court, simply state all the facts for the record, such as, “I know your father”, or “I play golf occasionally with your brother”, or, “You and I have tried cases against each other in the past and we may in the future.” Then ask the attorneys and the parties whether they wish you to stand recused from hearing their case. If they agree to permit you, hear and decide the case.
My rule in determining the extent of “family” is that: if you can’t marry them you can’t judge them. That pretty much certainly excludes all of your blood relatives and probably many of your relatives by marriage.
If any member of your family should become involved in a matter which may already has reached your court, you must scrupulously avoid any contact with the file for discussion of the case with any member of the staff, or any of your colleagues on the bench.
The relationship between you as a Judge, and your staff is critical to the public perception about the administration of justice. You must be very careful to avoid any appearance of impropriety. You have to recognize what the military has known for three or four thousand years: subordinates have no real personal freedom when imposed upon by a superior, even when the subordinate is protected by the civil service system.
There must be absolutely no “fraternization.” If you are going to take your secretary out for lunch on National Secretaries Day, round up other members of the staff and take them all out.
If you and your wife or significant other of the same or opposite sex want to invite the secretary and her spouse or significant other to dinner, go ahead; but if your secretary has no one to bring to dinner, make sure you invite someone else as well.
If you want to speak to a staff member alone, log the meeting and memorialize its subject matter. When the meeting is concluded, document it. Place a memo in your private file. Time records have become a matter of self-defense; a protection you all ought to think about.
Freedom of association may be a constitutional right for most citizens; but it does not belong to judges.
Can a Judge belong to political organizations? No.
Can a Judge you belong to activist organizations that may be involved in litigation? No.
What about charitable and other not-for-profit organizations? That depends on two factors. An active judge may never be involved in fundraising; and former Judges should also avoid becoming involved with fundraising in any way if their status as a former judge may be a consideration. This is a rather clear-cut prohibition. There are other constraints which are not so obvious.
A Judge must consider the declared aims and objectives of the organization and its mission statement. That means read the articles of incorporation and the corporate charter as well as the bylaws. If the organization by its charter and mission statement or its practices and policies may involve matters of judicial concern now or in the future a Judge is prohibited from being a member or a financial contributor.
In obvious example is whether a Justice of the Supreme Court of the United States may continue to be a member of Planned Parenthood or the Knights of Columbus while serving on the Court. The answer should be obvious, “No.” Each organization has well-established positions on abortion which is a matter that the court has already considered and might again consider in the future.
One of the best rules of thumb determine whether you should serve on the board of any charitable or not-for-profit organization is whether anyone else on the board can ask you a question which begins with, “Why don’t you…?” If they can ask the question and it relates in any way to your position as a Judge, you cannot join the organization and you must retire from its board if you already serve on it.
Campaigning for Judicial Office
Active personal fundraising by candidates for judicial office is prohibited. However, what about responding to inquiries from journalists, news organizations, and even nominally non-partisan organizations such as the League of Women Voters. Many of these organizations send lengthy questionnaires to candidates for judicial office.
Even if the questionnaire does not seek an answer to a direct question relating to a case which has already come before the court or might come before the court at some future time, it may ask questions which are related in some way to the subject matter of such a case. Since no one can be sure, the wisest course is to decline using the timeworn excuse that a judicial candidate may not, in any way, comment on matters which may someday require judicial determination.
As a candidate for election all a Judge can safely say is that nothing will influence your decisions other than the facts of the case you are being called upon to decide and you will decide specific cases on their specific facts.
Politically active litigants and politically sensitive cases
Recusal is solely and exclusively the Judge’s call. The local leading case on recusal happens to be one that involved me in my first year as Village Justice. During the election campaign two years before I ran, I had made a speech to the Patchogue Village Board in which I referred to a particular large abandoned structure as a negative impact upon the quality of life in the community.
Later, a case involving that structure came before me and the attorneys for the building owner moved for recusal citing a transcript of my speech to the Village Board. I conducted a preliminary hearing, listened to all the arguments about recusal and examined all the “evidence” they could produce.
Reserving decision, I gave the defendants a month’s adjournment to gather more evidence showing any bias of which I might have not been aware. Eventually, I ruled that on the weight of the evidence there was no direct evidence of bias, no indirect evidence of bias, and I felt I could hear the case. The Defendants appealed. They lost. The decision summarized the law directly and stated very bluntly that the question of recusal is for the personal conscience of the Judge.
Even though as the judge you can just say, “Motion denied,” you make the record for the benefit of all of us. You explore the issue of bias. You bring it right out on the table. You challenge counsel to produce evidence about why you can’t decide this case fairly. You listen to everything they say and consider all the evidence they produce regardless of the sources. If they are relying on rumors, address them. Put it all on the record. Then reserve decision, read the record and think about it for a while. Do not make the decision immediately unless you intend to recuse yourself.
As a general rule, avoid recusal. The people elected you to hear and decide cases and controversies from within your jurisdiction.
An admonition and exhortation
Because you Judges are men and women of honor and integrity, some day you are going to have to make a decision that may cost you your job. You may face a contested election and lose. You may have to give up the black robe. When that time comes, make the decision you believe is right and just. Then, if you must, become a still proud former Justice. I am.