Sunday, September 4, 2016

Judge Reprimanded for Ex Parte Communication

The road to hell is paved with good intentions. This is a quote with various attributions over the years. I was reminded of it recently, while reading a story from the Florida Bar News about a judge who was disciplined by the Supreme Court, titled Judge Holder Reprimanded for Ex Parte Communication. Ex Parte communication is where the judge speaks to one party in a case. It is forbidden by the Code of Judicial Conduct, except in very narrow exceptional circumstances. This story is also about whether a judge can write someone a recommendation letter (which lends the "prestige of judicial office" to someone for their private gain).

Are there appropriate context within which a judge can write a letter of recommendation for someone? The answer is absolutely. But those instances are limited, and fairly defined. The concern embodied in the Code of Judicial Conduct is that the prestige of judicial office should not "advance the personal or economic interests" of others. Rule 1.3, of Canon One of the American Bar Association Model Code of Judicial Conduct says (italics are direct quote):

A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so

So in a general sense, writing recommendation letters is a troublesome subject. In virtually any context, it is inappropriate to use judicial letterhead in any non-official correspondence. It happens from time to time. I have become aware, over the years, of a fair number of judges using such letterhead inappropriately. I always ask the same question when they tell me "why shouldn't I, it doesn't matter." Then, if it doesn't matter, "why did you use it in this instance?" The only reason to use it is to convey that you are a judge. The only reason to convey you are a judge is to draw attention to that, why? 

Also, it is likely not appropriate for the letter writer to identify themselves as a "judge." When writing a recommendation letter for an employee or former employee, it should be sufficient to state that the writer was the individuals "direct supervisor." What does the mention of the word "judge" add to the recommendation? The only reason to add it is to convey judicial authority. The only reason to add it would be to give the letter, and thus the individual, "the prestige of judicial office." 

So, two reasonably ready and simple rules for judges to remember: (1) no personal use of judicial letterhead, and (2) no mention of judicial office. 

Beyond those cautions, a good question is whether the individual recommended is a direct employee of the judge? Certainly, a judge may write a letter of recommendation for a former employee. In fact, as a general rule, judges should limit such recommendations to people about whom they possess personal knowledge. Writing recommendation letters for family friends, children of family friends and the like should be undertaken only with caution. The writer should simply keep "the prestige" prohibition in mind. 

The next issue here is ex parte communication. Should everyone interested be present (or at least invited/noticed) when a case is discussed? Is it ever appropriate for a judge to engage in ex parte communication with parties in a case that is before a judge? Although the code of judicial conduct seems to suggest that there are instances in which this could be appropriate, I would suggest that it simply is not. The exceptions set forth in the code, for issues such as scheduling, or other innocuous information, can as easily be accomplished by traditional staff interaction as they can be by the judge. And, when the judge stays out of the communication, leaving it to staff, the chances of allegations of inappropriate communication decrease dramatically. As a simple rule, I encourage judges to never speak or write to any one party in a case before them, unless the other party is copied or present (or invited). 

Any interpersonal communication between judge and any single party presents far too great a chance of the "appearance of impropriety." This becomes particularly true when the communication is not written, and the recollections of who said what, about what, and to whom can become a difficult Gordian knot of "he said she said." A judge would be well served not to place her/himself in the position of needing to defend what and how anything was said. 

So while the code provides both definition and limitation, there remains of some leeway for judges. It is submitted that the "best practices" suggested by the code, and situations like the one described above, would be:

Only write recommendation letters, based on personal knowledge, regarding individuals over whom you have exercised direction or supervisory responsibility. Limit your recommendation to the performance of duties within that context.

Never write letters of recommendation on official stationary. Never use the judicial title in such correspondence.

Never engage in ex parte communication regarding any case, or the parties in such a case.

It seems that sticking to these best practices, would minimize any judge's chances of arriving at the point of public reprimand evidenced above.

Judge Holder forgot these and a few other prohibitions, according to The Florida Bar News. In August, the News reported that Judge Holder was presiding over Veteran's Court in Tampa. A criminal case came before him, involving a "decorated Green Beret." There is a recognition that return to "normal" life can be a challenge for veterans following deployment, and the Veteran's Court program seeks to afford consideration to the adjustments these individuals need. 

Judge Holder sentenced this criminal defendant to community control and three years probation. Criminal conviction can affect people in various ways. The most familiar to many is perhaps the job application process. Remember Forgiveness in the Employment Process, and the interesting federal judge who went even further than Judge Holder (but did so from the protection of the federal bench and on the eve of retirement). We have all seen the application questions about previous convictions. 

For some those application questions are quick and easy to answer, for others, they may be the most challenging of the process. But the implications can be broader. This particular conviction resulted in the defendant being expelled from college. When he later re-applied, he was "denied re-admission." Essentially, it appears that the college did not want him on its campus. After all, he had been convicted and sentenced for "discharging a firearm from a vehicle and aggravated assault with a deadly weapon." Not exactly easy-to-forgive transgressions. 

Judge Holder learned of this and decided that he would attempt to intervene. He wrote to the president of the school on his official "judicial letterhead." He recommended the readmission of the defendant and asked that the school accommodate defendant with admission to an "online only program." The letter made specific reference to the writer's identity as "the presiding judge." It "attested" to the defendant's effort at rehabilitation. And it "echoed" the "ringing endorsements" of other letter writers, regarding defendant. It was an inappropriate recommendation letter, and it certainly creates an appearance of impropriety.

The letter even offered to "personally modify" the defendant's sentence to facilitate his return to college. In other words, this judge offered to change the outcome of a case, in favor of one party, to change someones perception of that one party. The Bar News notes that at that time there was "no motion to modify community control pending." In other words, Judge Holder was offering to alter the sentence of community control, although neither defendant nor the state had asked for such a alteration. The judge might be seen as becoming an advocate and abandoning the role of impartial adjudicator at that point. 

Judge Holder then decided to call "the chief assistant state attorney for the 13th Circuit" to discuss defendant. Judge Holder, apparently representing the interests of the defendant (advocate), asked the state attorney to "review the evidence against the defendant." The judge, completely abandoning any pretense of impartiality, "tried to persuade the state to agree to allow the defendant to have adjudication withheld." Based at least in part on the judge's advocacy, the State further investigated. However, the state declined to change the charges (for which the defendant had already been sentenced). That is a brave state attorney. Many in such a position might fear how they will fair in future cases before an advocate judge to whom they said "no."

The Judicial Qualification Commission concluded that the judge's advocacy "could impair the public’s perception of fairness in the judiciary." The Supreme Court agreed and imposed a reprimand regarding the judge's behavior. The Court did so even though it acknowledged the judge's "conduct was well-intentioned."

The judge became an advocate for a party. Some might contend he was practicing law and representing this defendant when he wrote the letter and called the State Attorney. That was inappropriate. He contacted one party to the case pending before him, and that ex parte communication was inappropriate. While the intentions were perhaps justified and purportedly "good," the road to hell is paved with good intentions. 

Judges would do well to remember the best practices above. If inclined to contact a party in a case, a judge should think twice (or more). If inclined to write a recommendation letter, a judge should review the Code of Judicial Conduct, and more often than not should simply say "no." Judges should be cognizant of the Code, careful of the appearance of impropriety, careful of lending "the prestige" to others, and careful of how her or his actions can reflect upon the impartiality of the judicial office. It is not an easy burden, but it was voluntarily undertaken by us all. If we cannot live with it, we should find another occupation. 

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