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Discipline Rare For State Judges In Sexual Misconduct Cases

By Erin Coe · April 15, 2019, 10:10 PM EDT

If raising a sexual harassment complaint against a state judge is uncommon, seeing a complaint go through the judicial conduct commission process and result in a public determination is almost unheard of.

Since the vast majority of states don't release data on sexual harassment claims against judges, the issue is nearly impossible to track on the front end. In some states, the only way to find out about such claims is after a commission has made a recommendation for public discipline with the supreme court.

After reviewing data from the National Center for State Courts and nearly all of the state judicial conduct commissions, Law360 has identified just 43 public determinations against state judges across the U.S. from 2008 to the present involving allegations of sexual harassment or other inappropriate interactions with court staff.

Judges have been sanctioned for a wide range of misconduct, from offensive comments and attempts to get personal with a subordinate to indecent exposure and inappropriate touching. The bulk of the discipline has been issued against male judges, but there are four determinations against female judges.

One Arizona state justice of the peace allegedly told staff, "Some of the most profane, manipulative and backstabbing people I've worked with have been women." A North Dakota state judge was accused of repeatedly trying to meet with a female court reporter outside of work, actions she viewed as looking for something beyond an "amicable working relationship."

In more extreme examples, one Oklahoma state judge allegedly used a penis pump while he was on the bench presiding over jury trials in view of court reporters. In Rhode Island, a judge was accused of sitting in chambers on two occasions with his pants undone and a hand in his underwear as a female clerk entered. In one instance, he allegedly told a court clerk who had knocked at the door that she could come in and watch him "suck his lollipop."

While the type of conduct may vary, the outcome tends to be fairly consistent once these cases proceed through the commissions and sometimes up to the state supreme courts. Many judges choose to resign or retire by the time a commission investigation is underway or soon after a decision on discipline takes hold.

Ten of the 43 state judges in the cases Law360 identified are still on the bench. Of those sitting, one judge was accused of pulling a drug court coordinator's ear and using his hand to physically "shush" her, and three others allegedly became involved in apparently consensual personal relationships with subordinates, though two of those relationships triggered employment suits filed in court.

The sanctions range from removals and suspensions to various warnings and admonishments, and oftentimes a judge consents to the sanction or a set of stipulated facts. Out of all of the cases, at least 22 judges resigned or retired either during a commission investigation or soon after sanctions took effect.

Among the four judges removed was Nicholas Del Vecchio, a Nevada state judge, for having a sexual affair with a court employee. According to the Nevada Commission on Judicial Discipline's 2008 order, he made sure the employee was paid while she was away from work for their sexual encounters, allowed her to work flexible hours despite a court policy against such arrangements and retaliated when she chose to end the relationship.

Del Vecchio declined to comment on the decision, but said he recently ran for district attorney in Nye County in Nevada. He lost to Chris Arabia, a Republican, in November.

"I'm basically retired," Del Vecchio told Law360. "I care for my 97-year-old mother three days a week, and I'm pretty much out of it. But I will always be a judge."

Two other judges were kicked off the bench for allegedly trying to force themselves into the personal lives of court employees. In one case, California state judge Valeriano Saucedo was removed by the California Commission on Judicial Performance in 2015 after trying to have a closer relationship with his courtroom clerk. He sent her hundreds of texts and notes, including one that said, "If you want me for a special friend, everything is on line with full financial and moral support going forward," according to the decision.

He also gave the clerk gifts, such as a car worth $15,000 and a trip to Disneyland for her and her family, and offered to pay for body sculpting, according to the decision. Saucedo's claims that he was trying to "mentor" the clerk were rejected by the commission.

Law360 tried reaching Saucedo for comment but didn't receive a response.

While this set of cases may not be huge, it's only part of what's out there. The list does not include pending matters or cases centering on sexual misconduct claims by non-court employees, such as attorneys or litigants.

A series of commission proceedings involving judges' relations with court staff are pending in California, Pennsylvania, Illinois, Ohio and Texas, and a number of suits alleging sexual harassment and other offensive conduct by judges are ongoing in New Jersey, New York, Pennsylvania and Louisiana.

Cynthia Gray, director of the National Center for State Courts' Center for Judicial Ethics, has been tracking judicial misconduct cases across the U.S. for nearly 30 years and regularly reports on new public determinations.

However, she said she hasn't done the statistical analysis to compare cases from year to year, noting that it can be difficult to identify trends when the nature of the misconduct, the number of incidents, a judge's remorse and other elements can affect the outcome of each case.

"It's hard to compare any two cases," she said. "There are lots of different factors in determining an appropriate sanction."

Some judicial commission directors say they haven't seen a big uptick in judicial misconduct complaints alleging sexual harassment in the wake of the #MeToo movement, but they point out that cultural changes like these can take time.

"We're seeing a renewed sensitivity to this issue," said Randall Roybal, executive director of the New Mexico Judicial Standards Commission. "We're talking and watching and hyperaware, and these cases will be treated, as they always are, with promptness and seriousness."

Commissions today may be less likely to let a relatively minor incident slide, according to Reiko Callner, executive director of the State of Washington Commission on Judicial Conduct.

Callner, who has worked at the commission for 20 years, said she was recently reviewing sexual misconduct complaints from the 1980s and came across some that the commission would take action on if they were brought today, but didn't then.

"During the tenure I've been here, even a little bit [of sexual harassment] is too much," she said.

Erin Coe is a features reporter for Law360. She last wrote about the growing number of female clerks at the U.S. Supreme Court. Additional reporting by Amanda James and Annie Pancak. Editing by Jocelyn Allison, Pamela Wilkinson and John Campbell.

*Methodology: To compile the list of determinations, Law360 reviewed National Center for State Courts' quarterly Judicial Misconduct Reports from 2008-2019 and requested data directly from state judicial conduct commissions or state supreme courts or pulled it from their websites. Georgia and Oklahoma did not respond to requests for public determinations and did not have any determinations available on their websites.

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