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Judicial behavior is back in the news. Just recently, there was an interesting story about a judge's performance. See Medical Excuse (April 2022). It is a troubling story of an Ohio judge that seemed less than focused upon the Code of Judicial Conduct and the challenges of avoiding the "appearance of impropriety." I got some interesting feedback on that situation, and for the most part there was skepticism of the medical excuse, similar to that expressed by the Justice cited there.
More recently, in Kentucky, an Owensboro judge made the news when she was "removed from office" in April 2022. The record in that matter is 160 pages long, and interesting reading. Despite being very comprehensive, it does not include the Commission's final decision of April 22, 2022. See the Courier Journal, Owensboro judge ousted from office for multiple violations of judicial conduct rules. The allegations in the seven counts were numerous, and not just a little disturbing. The Kentucky Judicial Commission unanimously "order(ed) . . . (the judge's) ouster from the bench." The Judicial Conduct Commission noted:
“This case does not involve one or two isolated occurrences, but instead involves Judge Gordon’s pattern of misconduct and her repeated exercise of extremely poor judgment and her engagement in profoundly unwise action — on and off the Bench — that continued for years”
The judge was accused of keeping odd hours. Her assignment was family law, a jurisdiction that can often involve young children in proceedings. The judge was accused of holding "court late into the night, sometimes requiring parents and their children to appear after midnight." The report concludes that the presence of children was "unnecessarily require(d)" in "JDNA cases . . . with few exceptions." This involved absence from school, "force(d) children to be at the courthouse for long hours," and in one instance the judge "had a child on the witness stand after 12:30 a.m."
The Commission lamented that "many of the children are too young to understand what is going on in the courtroom and too young to participate in any proceedings." Perhaps the timing of hearings/proceedings could be viewed as a sincere and focused work ethic. However, those are very long hours, and difficult timing for the most resilient of us. And to keep children in the courthouse such late hours would be difficult to justify outside of specific emergent circumstances. If such emergent issues were present it seems likely the Commission report would mention them.
The judge was also accused of calling the presiding judge in a case that involved her own son. Allegedly, this call was intended to "influence the amount of the bond in the case against her son"; she was also accused of "destroying evidence" in that case. This allegedly included "attempt(ing) to alter, conceal, or tamper with (the son's) social media accounts and cellular content to protect him from criminal liability." The judge's explanation for this behavior was she was merely "'acting as a mother' when she tried to help her son." Another news outlet, U.S. News, reported that she "tried to influence both the judge and prosecutor in (her son's) case," and "used her position to get special visitation with her son while he was incarcerated."
Coincidentally, the judge was able to get her adult son accepted into a rehabilitation program through direct communication with an official there. While persuading that official to accept her son and thus allow him to leave the jail facility, the judge allegedly "placed two children with him . . . and engaged in ex parte communication with him regarding the placements." The conflict apparent there, even in the absence of a specific quid pro quo, is troubling. The Code of Judicial Conduct is explicit in its prohibition of even an "appearance of impropriety."
The judge was accused of "abus(ing) or exceed(ing) authority" by sanctioning officials regarding submission of timely reports. Those officials were responsible for making determinations regarding the evaluation and placement of children, and the judge was accused of interfering with that process. The report concludes the judge "overstepp(ed) your judicial authority" and that "this was a recurring issue." Rather than use a "rotating list of eligible attorneys" in guardian matters, the report concluded the judge "took control of GAL assignments . . . showing favoritism to" and attorney that had represented the judge's son.
In other instances, when a facility "refused to test defendants for drugs," the judge allowed court staff to perform the testing and to store "urine samples in the same refrigerator where they stored their lunch." Not where I want my lunch stored. This was noted to have been inappropriate in a general sense and to have interfered with the chain of custody requirements of those samples. There were also allegations that misrepresentations or misstatements were made as regards the drug testing and staff training.
The judge was also accused of filing a judicial complaint against another judge "as a retaliatory measure." The Commission report alleged the judge "demonstrated a lack of candor and misrepresented material facts" during its investigation. There are multiple instances and conclusions listed. Examples included the involvements with her son's attorney, interactions with other judges, drug testing procedure training of the judge's staff.
Of particular note by the Commission was the conclusion that the judge "continued (her behavior) even after she learned she was the subject of a massive complaint." As reported by U.S. News, the judge also "was untruthful with the Judicial Conduct Commission."
Two days after the Commission decision, the judge filed a motion for reconsideration, according to the Messenger Inquirer. The record reflects that reconsideration was promptly denied on April 27, 2022 and again on May 2, 2022. The news story says that the judge may seek review of the Kentucky Supreme Court within 10 days of the Commission decision, a deadline that has passed.
The Judge's difficulties are thus front and center in 2022. Notably, there were previous allegations regarding the judge in a Change.org petition. Purportedly over 900 individuals supported that petition before it was closed. Such is not as persuasive, as being a judge is often an unpopular responsibility. Many who appear in judicial proceedings are disappointed, angered, or worse by the outcomes and results. There are hard decisions to make, legal constraints to respect, and challenges to face. However, the presence of such a petition might be seen as an opportunity for introspection and consideration. No judge must accept representations or allegations in such a petition or complaint, but would be well advised to consider how perceptions or appearances may be reflected in such a tool.
At the end of the day, there are a variety of challenges involved in the role of judge. Family commitments and interactions can perhaps draw attention and suggests conflicts in which one's emotions and sentiments are implicated. There must be a persistent consideration of the law, the Code, and appearances. Judges cannot even appear to be invoking or asserting official influence in such personal settings.
The process and procedure allegations in this matter are as serious. The conduct of hearings at odd hours, involvement of young children without (or with minimal) discretion or exception may be seen as unyielding, overly regimented, and inelastic. There are many reasons for procedures, rules, and processes. However, the role of judge is imbued with discretion, and the epitome of sound judicial behavior is the appropriate engagement that discretion to avoid outcomes such as minor children on the stand in a proceeding after midnight, and indiscriminately being required to miss school.
The record is not clear regarding whether the jurisdiction of the Kentucky Supreme Court will be invoked in this instance for appeal or reconsideration. However, the allegations and conclusions in the Commission proceedings are illuminating, cautionary, and worthy of consideration by judges everywhere.
Previous posts on judicial behavior or discipline include
Fund Raising and Politics by Judges (October 2010)
Conferences and Consequences (November 2011)
An Example of Judicial Discipline (February 2014)
The Judge, a Bookstore, and the State (October 2015)
Judge Reprimanded for Ex Parte Communication (September 2016)
Judicial Ethics and the Great Pumpkin (June 2017)
Sleuthing Addressed Again (January 2018)
Judge Dawn Gentry (September 2020)
A New Miranda Warning (April 2020)
A Miserable Example (February 2022)
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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