Sexual Harassment and Judicial Discipline

The Code of Judicial Conduct did not expressly prohibit harassment until 1990. However, inappropriate sexual comments, touching, and similar conduct obviously demonstrate a failure to be “patient, dignified, and courteous”; to promote “public confidence in the integrity and impartiality of the judiciary”; and to observe “high standards of conduct,” thus violating core provisions of the 1972 American Bar Association Model Code of Judicial Conduct.³ In 1990, Canon 3B(5) was added to prohibit manifestations of bias, and includes a comment that emphasized a judge “must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment. . . .”⁴

The current version of the Code, adopted in 2007, states in Rule 2.3(B) that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment,” including but not limited to harassment based on sex or gender.⁵ Comment 4 to that rule explains that “[s]exual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.”⁶ Currently, most jurisdictions, including the District of Columbia and the federal judiciary, refer to harassment in their codes of judicial conduct, having adopting one of the versions of the model code or their own version. The jurisdictions without any version are Alabama, Delaware, Illinois, Louisiana, Michigan, New York, North Carolina, Rhode Island, and Vermont.

To illustrate the issues the judiciary may face in the current #MeToo era, this article summarizes some past judicial discipline cases involving sexual harassment. It begins with some workplace conduct issues that may be unique to judges because of the significance of the courthouse and the authority of judges. It then details a classic case from the early 1990s that exemplifies the challenges of proving misconduct in a contested judicial discipline case. Next, the article describes a recent case resolved with the judge’s consent. Both cases demonstrate the types of sexual misconduct for which judges have been disciplined and how the misconduct comes to light. Finally, the article discusses how some jurisdictions have avoided the criticism that judges easily can avoid being held accountable for sexual misconduct by resigning or retiring.

Courthouse Context

In some cases, judges have been disciplined for sexual conduct that takes on special significance in a judicial contest.

For example, in censuring a judge for engaging in sexual intercourse with a member of the court staff in the courthouse, the California Commission on Judicial Performance stated such conduct “reflects an utter disrespect for the dignity and decorum of the court and is seriously at odds with a judge’s duty to avoid conduct that tarnishes the esteem of the judicial office in the public’s eye. . . .”⁷ The Commission also noted that the judge “potentially exposed other court staff to a hostile work environment through his intimate communications and sexual activities with the clerk in the courthouse.”⁸

Viewing pornography at the courthouse and on court-owned equipment also constitutes judicial misconduct subject to discipline. For example, the Kansas Supreme Court removed a judge from office for repeatedly, over an extended period, looking at adult websites on his office computer in violation of an administrative order.⁹ The court explained that the judge’s “conduct showed disrespect for a basic principle which underlies the judicial system: respect for judicial orders.”¹⁰

To function effectively as a judicial officer, the Respondent must expect others to follow judicial orders. Yet, to satisfy his own interests, the Respondent violated his own court’s administrative order, an order with which all employees of the 28th Judicial District were and are expected to comply. Respondent seeks to set himself apart from the others bound by the administrative order and all other court orders.¹¹

Other judge-specific sexual misconduct that has led to discipline includes beginning a Facebook relationship with a woman met in his official capacity and exchanging sexually explicit messages and photos with her, often during office hours and from the offices of the probate court;¹² having an extramarital affair with another judge and presiding over cases in which the other judge’s husband represented a party;¹³ signing a consent divorce decree for the secretary with whom the judge was having an affair;¹⁴ attending out-of-town seminars with a staff member with whom the judge was having an affair;¹⁵ discussing the operation of the drug court generally and a particular defendant’s case with a staff member before or after sexual encounters and using an official email account to facilitate a sexual encounter;¹⁶ and patting a clerk on the buttocks after telling her he had contacted the city attorney about a ticket she had received.¹⁷

Classic Case

Most judicial discipline cases involving sexual harassment, however, involve the now-common-but-still-shocking litany of conduct possible in any type of workplace: inappropriate touching, comments about appearance, salacious discussions, and unwanted sexual advances. No two cases involve identical conduct, of course, but the 1993 New Jersey case In the Matter of Seaman¹⁸ exemplifies the types of sexual misconduct often sanctioned in judicial discipline cases, the challenges of proving such misconduct, and the response to the defenses judges often raise. (To encourage reporting of offenses and to protect the victim’s privacy, the New Jersey Supreme Court referred to the complainant by her initials and directed that the anonymity of the victim be preserved in future judicial discipline cases involving sexual harassment or similar conduct.¹⁹ Other courts and commissions also have that policy, but others have followed the custom in other types of judicial discipline cases to use the full names of the complainants when sanctioning a judge for sexual harassment.²⁰)

After viewing a film on sexual harassment sponsored by an office of the state judiciary, the judge’s law clerk, B.D., filed a complaint with the appropriate officer for the county courthouse that was eventually referred to the Advisory Committee on Judicial Conduct. Following an investigation, the Committee filed a formal complaint against the judge. The judge denied the allegations. Following a hearing, the Committee found that the judge had “engaged in a great many . . . separate incidents of sexual harassment” in violation of the Code of Judicial Conduct.

During the disciplinary hearing, the complainant testified that the judge directed “various remarks of a sexual nature at her,” starting shortly after she began her clerkship. Specifically, she testified that he expressed the wish that a pen she was holding were actually his penis; boasted of his sexual prowess; asked her to repeat a vulgar sexual remark to him; assured her that, were they to have sexual relations on his desk, he would be sure to avoid a crack on the desk that might scratch her; and told her that if she wanted a favorable job recommendation from him, she would have to sit next to him on his office couch.

The complainant also testified to improper physical contact by the judge, including two incidents that were witnessed by others. In the first incident, the complainant was speaking with law clerks for another judge when the judge came into the room and reached under her mid-calf-length skirt, apparently touching her knee. In the second incident, the complainant was speaking with another law clerk when the judge entered the room, stood behind her, lifted her skirt, and examined the back of her knees. The complainant also testified to other occasions in which the judge had initiated unwanted sexual contact with her, for example, grabbing her hand and attempting to place it on his crotch.

Emphasizing that its review depended on an assessment of the credibility of various witnesses, the New Jersey Supreme Court noted that aspects of sexual harassment cases were germane to its analysis, in particular, “the growing body of knowledge about sexual harassment and the law surrounding that subject are highly instructive in guiding our determinations of fact in this case.”²¹ Rejecting the judge’s argument that corroboration was required, the court held that uncorroborated victim testimony may, “as a matter of principle, and as a practical matter in this case,” satisfy the clear-and-convincing standard applicable in judicial discipline cases in New Jersey (and the majority of other states as well). The court noted that “uncorroborated testimony of a victim is sufficient to meet the law’s highest standard of evidence—guilt beyond a reasonable doubt” and that “the most serious forms of sexual harassment are also the least likely to occur in public and, therefore, the least likely to be witnessed by third parties.”

The court found that the complainant’s testimony about some incidents was directly corroborated by the testimony of the other two law clerks and for other incidents was indirectly corroborated by the complainant’s statements to her mother and other clerks that the judge had made “lewd remarks” that left her “deeply disturbed.” The court found that corroboration bolstered the credibility of the complainant’s testimony about other specific incidents and the pattern of sexual harassment generally.

The court rejected the judge’s attacks on the complainant’s credibility. The court agreed that the complainant had “greatly exaggerated or distorted the truth” about unrelated incidents, demonstrating that she “is not a scrupulously truthful person and is prone to exaggerate in a self-serving way. . . .” However, the court concluded this did not “demonstrate that she would, or did, lie about something as profoundly destructive of another person as engaging in an unremitting course of sexual harassment.”

The court acknowledged that the “[v]agueness or lack of specificity is one aspect of the quality of testimony and its inherent believability,” but stated that, although the complainant’s testimony was “not precise with respect to the times and dates” of particular incidents, it was “not vague with respect to the general periods or the sequence in which incidents occurred” and was quite detailed about, for example, the judge’s “remark about a crack on respondent’s desk, his comments about his sexual prowess, and the like,” adding to her credibility. It also noted that three years had passed between the incidents and her testimony and that her testimony had not varied significantly from her original complaint, to her interview with the committee, to her testimony at the hearing.

The court disagreed with the judge’s claim that the complainant had a “motive to lie because she was angered and disappointed by her perception that he refused or neglected to give her a favorable job recommendation.” The court stated that her “testimony exhibited characteristics inconsistent with the fabrication of a vindictive employee”; for example, her testimony about the skirt incident “was less inflammatory or extreme than the testimony of the witnesses who had observed those events or had those events recounted to them by complainant.”

The court also rejected the judge’s argument that the complainant’s failure to express her dissatisfaction with his behavior and the goodwill she had displayed toward him (for example, requesting that he swear her into the bar and inviting him to a family luncheon that followed her swearing-in) was inconsistent with her claim that she had been victimized by him “continuously and maliciously over a long period of time.” The court noted that there was evidence that “later in the clerkship, complainant spent large amounts of time in the courtrooms of other judges and was rarely around respondent, except when her duties demanded it.” Further, the court considered the complainant’s conduct consistent with the “phenomenon of nonreporting” that is common in cases of sexual harassment, noting the film acted as “a catalyst for the recognition that she had been subjected to a pattern of abusive conduct by respondent.” The court also suggested that the complainant’s shame and distress at the judge’s conduct may have contributed to her reluctance to report it.

Finally, the court emphasized that the complainant’s reticence to report was explained “by the power dynamics inherent in a judicial clerkship.” The court stated:

The judge-clerk relationship is unique. The importance of a judicial clerkship to the career of a young lawyer is enormous. A judicial clerkship can be an auspicious beginning to a legal career. Judicial clerkships are marked by both strong dependence and a significant power imbalance between judge and clerk. The vulnerability of a clerk to a judge is even greater than that in most supervisor-employee relationships. By alienating his or her judge, a clerk risks great professional jeopardy.

Given these considerations, based on its independent review of the record, the court found that the judge “engaged in a course of conduct constituting an abuse of his authority as a judge with respect to his supervisory responsibilities over an employee,” consisting of a “pattern of sexually harassing behavior that was personally offensive to his employee and inimical to her dignity, privacy, and emotional well-being.” It emphasized that the number of incidents of harassment “collectively and cumulatively indicate and demonstrate a pattern” of sexual harassment and “imply that other incidents of similar behavior likely occurred whether or not specifically alleged in the complaint or recounted in the testimony.” The court suspended the judge for 60 days without pay, concluding that “[a] temporary removal from office will impress upon respondent the magnitude of the offense he has committed, reaffirm public confidence in the integrity of our courts, and provide a powerful deterrent to future misconduct, of this type, by respondent or others who hold judicial office.”

Series of Acts

Unlike in Seaman, approximately half of the sanctions from judicial discipline proceedings are imposed with the judge’s consent, including cases involving allegations of sexual harassment as illustrated by In re Iddings,²² a Michigan case from 2017. The judicial discipline investigation began when the judge self-reported to the Judicial Tenure Commission an equal employment opportunity complaint filed with the county by his judicial secretary, Ms. [*****]. The report of the county investigator found that the judge’s behavior constituted “harassment” as prohibited by the county’s policy and “at a minimum, an offensive, and more probably a hostile working environment.” Ms. [*****] settled her claim against the county.

The Commission and the judge stipulated to the facts. Between 2012 and 2015, the judge had sent after-hour text messages to Ms. [*****] discussing his marital problems and personal feelings; offered to purchase expensive items for her as Christmas gifts; invited her to Rihanna/Eminem and other expensive music concerts; suggested that she accompany him to exotic locations for court-related conferences where they could share a hotel room; and showed her a sexually suggestive YouTube video of a high-priced lingerie website. The judge also made comments that Ms. [*****] could have reasonably interpreted as an invitation to have an affair with him; told her that the outfits she wore to work were “too sexy”; and told her that she “owed him” for allowing her to leave work early to attend her son’s after-school activities. In addition, he had put himself in physical contact with her while reaching over her to edit documents; stared down the front of her blouse; and, while discussing his triathlon training, sat and laid on her desk while she was sitting at it.

In a draft letter of recommendation, while referring to Ms. [*****]’s professionalism and dependability, the judge wrote “besides, she is sexy as hell”; the judge deleted the language at her request. The judge wrote, “Seduce [*****]” on the court computerized calendar and then directed Ms. [*****] to look at that particular date; the judge deleted the language at her request.

The judge expressed extreme remorse and cooperated throughout the Commission investigation. Based on a settlement agreement, the Commission had recommended a 60-day suspension without pay and public censure, but the Michigan Supreme Court stated that it would impose a six-month suspension without pay unless the judge withdrew his consent to discipline, which would have sent the case back to the Commission for a hearing and findings. When the judge did not withdraw his consent, the court suspended the judge for six months without pay and publicly censured him.

The judge also had agreed with the Commission to continue counseling with his current therapist for one year and to attend a course on maintaining proper boundaries. The court noted it did not believe it had authority to require a judge to take remedial measures such as training and counseling, but it did note that the commission could request further sanctions if the judge did not comply with his agreement.

Encouraging Accountability

In some jurisdictions, judges accused of serious misconduct like Seaman and Iddings can avoid public accountability by retiring or resigning. That practice or policy already has been criticized since the #MeToo movement began in late 2017, most notably with the retirement of Ninth Circuit Court of Appeals Judge Alex Kozinski,²³ but also with the resignations of a Nebraska Supreme Court justice²⁴ and the retirement of a trial judge in Maryland.²⁵ (The practice applies in all types of cases, not just those involving allegations of sexual misconduct.)

Dismissal, however, is not a universal practice. In fact, in most states, the judicial conduct commission or supreme court retains authority to impose a sanction on a former judge, and former judges are frequently reprimanded or even removed. Even if an individual no longer holds a judicial office, a sanction may still “be essential to ‘the preservation of the integrity of the judicial system,’ especially if that integrity has been critically undermined, because the alternative, silence, may be construed by the public as an act of condonation.”²⁶ The integrity of the judicial system is fostered, not just by the removal or suspension of a judge, but also by an investigation, public hearing, and sanctions other than removal from office, including public censure.²⁷

“[E]ven after leaving office, an ex-judge retains the status of the judicial office on his resumé. The public is entitled to know if the record is tarnished.”²⁸ In addition, “judicial conduct is a matter of great public interest,” and even cases involving former judges “serve as a guide for the entire judiciary”²⁹ and establish needed precedent.³⁰

Many decisions involving former judges express an unwillingness to allow a judge to escape the consequences of misconduct “by racing to resign.”³¹ These courts consider it “a travesty if a judge could avoid the full consequences of his misconduct by resigning from office after removal proceedings had been brought against him.”³²

Removal following discipline proceedings often has ramifications such as disqualification from future judicial service or suspension from the bar, consequences that justify continuing the proceedings even if a judge is no longer in office. Even if removal is no longer possible, other sanctions such as public reproof are still available, and a resignation or retirement does not moot the proceedings. For example, accepting a stipulation and adopting the findings, conclusions, and recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court publicly censured a former judge for, in addition to other misconduct, making inappropriate sexual comments to female court employees in the workplace.³³

At the least, a commission can extract a promise not to serve in judicial office again before closing a case. For example, based on a stipulation in which the judge agreed never to serve as a judge again, the Nevada Commission on Judicial Discipline permanently prohibited a former judge from seeking or accepting any judicial office of any kind in any location in Nevada after the judge had agreed that the evidence available to the Commission could establish that he repeatedly engaged in extremely inappropriate and offensive comments and actions toward court staff even after being advised that his conduct was unacceptable and offensive.³⁴

Conclusion

As Chief Justice Roberts noted in his 2017 Year-End Report on the Federal Judiciary,³⁵ “the judicial branch is not immune” from the problem of sexual harassment. To address these issues, the U.S. Judicial Conference³⁶ and Conference of Chief Justices³⁷ have affirmed the federal and state judiciaries’ commitment to providing necessary training and revamping human resources and equal opportunity policies. The judicial discipline system has been a remedy when preventive measures failed in the past, and only effective public discipline in the future can demonstrate the judiciary’s commitment to meeting the current #MeToo challenge and ensuring the public that judges are held to the highest standards of workplace conduct.

Endnotes

1. See In re Seraphim, 294 N.W.2d 485 (Wis. 1980) (three-year suspension without pay for judge who engaged in “unprivileged and nonconsensual physical contacts with offensive sexual overtones” with five women).

2. In re Seaman, 627 A.2d 106 (N.J. 1993); see also In re Miera, 426 N.W.2d 850, 856 (Minn. 1988) (issue in judicial discipline case was judge’s “ethical responsibilities as a judge,” not his “civil liability for damages” or whether he had interfered with the complainants’ employment or created a hostile work environment as required for a claim of sexual harassment under a state statute); Comm’n on Judicial Performance v. Spencer, 725 So. 2d 171, 181 (Miss. 1998) (regardless whether the judge’s conduct would meet the legal definition of sexual harassment; a continuing pattern of offensive comments constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute); In re Corwin, 843 N.W.2d 830, 836 (N.D. 2014) (rejecting judge’s argument that “concepts of sexual harassment under federal and state laws should govern any assessment of the evidence”).

3. Model Code of Judicial Conduct Canons 3A(3), 2A, 1 (ABA 1972).

4. Model Code of Judicial Conduct Canon 3B(5) (ABA 1990).

5. Model Code of Judicial Conduct Rule 2.3(B) (ABA 2007), https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/model_code_of_judicial_conduct_canon_2/rule2_3biasprejudiceandharassment.html.

6. Id.

7. In re Woodward, Decision and order (Cal. Comm’n on Judicial Performance Sept. 2, 2014), https://cjp.ca.gov/wp-content/uploads/sites/40/2016/08/Woodward_DO_Censure_09-02-14.pdf.

8. Id. The Commission censured the judge for engaging in sexual intercourse in the courthouse with a courtroom clerk, exchanging communications of a sexual nature with her during court proceedings, and misleading court administration and his superior judicial officers in an effort to prevent the clerk’s reassignment.

9. In re Robertson, 120 P.3d 790 (Kan. 2005).

10. Id. at 795.

11. Id.

12. In re Archer, Final Judgment, Case No. 47 (Ala. Ct. of the Judiciary Aug. 8, 2016), http://judicial.alabama.gov/docs/judiciary/COJ47_FINAL_JUDGMENT_08082016.pdf (six-month suspension based on an agreement).

13. In re Drazewski & Foley, Order (Ill. Cts. Comm’n Mar. 11, 2016), http://www.illinois.gov/jib/Documents/Orders%20from%20Courts%20Commission/JudgesDrazewskiFoley.Order.pdf (four-month suspension without pay for the male judge; censure for the female judge for failing to report that the male judge had presided in cases involving her husband).

14. In re Miller, 949 So. 2d 379 (La. 2007) (removal for this and other conduct related to the affair and for unrelated conduct).

15. In re Cash, 630 S.E.2d 283 (S.C. 2006) (removal for this and related misconduct).

16. In re Estes, Order (Mass. May 24, 2018), https://tinyurl.com/ybtgguwt (indefinite suspension without pay and censure for this and related misconduct).

17. In re Inquiry Relating to Alvord, 847 P.2d 1310 (Kan. 1993) (public censure for this and related misconduct).

18. 627 A.2d 106 (N.J. 1993).

19. Id. at 110.

20. Compare, e.g., In re Iddings, 897 N.W.2d 169 (Mich. 2017) (referring to the judge’s secretary as Ms. *****, to protect her privacy); Public Admonishment of Hiber (Cal. Comm’n on Judicial Performance Oct. 23, 1998), https://cjp.ca.gov/wp-content/uploads/sites/40/2016/08/Hiber_98.pdf (describing inappropriate conduct by a judge towards his “courtroom clerk,” not identified by name); with In re Spurlock, Order (Ill. Cts. Comm’n Dec. 3, 2001), https://www2.illinois.gov/sites/jib/Documents/Orders%20from%20Courts%20Commission/Spurlock.pdf (intimidating and sexually inappropriate behavior toward four assistant state’s attorneys identified by name); In re Henderson, 343 P.3d 518 (Kan. 2015) (describing offensive and demeaning comments of a sexual nature to female attorneys and staff members identified by name).

21. 627 A.2d at 113–14.

22. 897 N.W.2d 169 (Mich. 2017).

23. Matt Zapotosky, Judiciary Closes Investigation of Sexual Misconduct Allegations Against Retired Judge Alex Kozinski, Wash. Post (Feb. 5, 2018), https://www.washingtonpost.com/world/national-security/judiciary-closes-investigation-of-sexual-misconduct-allegations-against-retired-judge-alex-kozinski/2018/02/05/e3a94bb8-0ac0-11e8-95a5-c396801049ef_story.html?utm_term=.57ea0b6d3be5.

24. Joe Duggan, Supreme Court Won’t Investigate Former Colleague Max Kelch, Who Resigned Under Cloud of Ethics Violation, Omaha World-Herald (May 4, 2018), https://www.omaha.com/news/courts/supreme-court-won-t-investigate-former-colleague-max-kelch-who/article_dea3cb87-7184-5ff3-bd77-aceac43a7bdf.html.

25. Lynh Bui, Retirement of Md. Judge in Effect Closes out Judicial Misconduct Investigation, Wash. Post (Apr. 16, 2018), https://www.washingtonpost.com/local/public-safety/retirement-of-md-judge-in-effect-closes-out-judicial-misconduct-investigation/2018/04/15/2183297c-39d3-11e8-8fd2-49fe3c675a89_story.html?utm_term=.14ef4ce649f1.

26. In re Probert, 308 N.W.2d 773, 776 (Mich. 1981).

27. Petition of Thayer, 761 A.2d 1052, 1055 (N.H. 2000).

28. In re Steady, 641 A.2d 117, 118 (Vt. 1994).

29. Comm’n on Judicial Performance v. Dodds, 680 So. 2d 180, 182 (Miss. 1996).

30. Goldman v. Comm’n on Judicial Discipline, 830 P.2d 107, 110 (Nev. 1992).

31. In re Backal, 660 N.E.2d 1104, 1107 (N.Y. 1995).

32. In re Peoples, 250 S.E.2d 890, 914 (N.C. 1978).

33. In re Landry, 157 P.3d 1049 (Alaska 2007). The judge had not been retained in the most recent election. The judge agreed not to seek or hold a position as a judicial officer in the state. The judge had given a note to one female employee stating that her “Hillbilly thermometers are distracting”; given a note to a female court clerk stating, “I think Ms. _____ wants me,” referring to a juror; described a court clerk as a “shameless hussy”; and commented on physical attributes and the attire of court clerks and persons who appeared before the court.

34. In re EnEarl, Findings of Fact, Conclusions of Law, Consent Order Imposing Discipline (Nev. Comm’n on Judicial Discipline July 1, 2011), http://www.judicial.state.nv.us/EnEarl%20Findings%20of%20Fact%202011.pdf. See also In re Shoulders, Stipulation and Agreement for Resolution of Investigation (Ind. Comm’n on Judicial Qualifications May 2, 2018), https://www.in.gov/judiciary/jud-qual/files/jud-qual-shoulders-agreement.pdf (based on a stipulation and the judge’s resignation and agreement not to serve in judicial office, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that a former magistrate had inappropriate relationships with court employees and attorneys during court hours and on court property).

35. Chief Justice John G. Roberts Jr., Year-End Report on the Judiciary (Dec. 31, 2017), https://www.supremecourt.gov/publicinfo/year-end/2017year-endreport.pdf.

36. Report of the Federal Judiciary Workplace Conduct Working Group to the Judicial Conference of the United States (June 1, 2018), http://www.uscourts.gov/sites/default/files/workplace_conduct_working_group_final_report_0.pdf.

37. Conf. of Chief Justices, Resolution 2, In Support of Commitment to Awareness and Training on Workplace Harassment in the Judicial Branch (Jan. 31, 2018), https://www.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/01312018-Support-Commitment-Awareness-Training-Workplace.ashx.