In Re The Complaint Under The Judicial Conduct And Disability Act

10-18-90022 (2019)

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Nature of the Case

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Facts

A sexual harassment complaint was made against D who was a federal district judge in the Tenth Circuit. Chief Judge Tymkovich appointed a Special Committee, pursuant to § 353 of the Act, to investigate the allegations against Judge Murguia, and the Special Committee has submitted a report. P hired an investigator. It conducted an extensive investigation including interviews with 23 people and a hearing at which D testified under oath. P unanimously submitted its findings and recommendations. It found that D gave preferential treatment and unwanted attention to female employees in the form of sexually suggestive comments, inappropriate text messages, and excessive, non-work-related contact, much of which occurred after work hours and often late at night. All were reluctant to tell Judge Murguia to cease his behavior because of the power he held as a federal judge. One of the employees eventually told him explicitly to stop his harassing conduct, but he continued. This violates the Code of Conduct for United States Judges Canon 3B(4) (providing that “a judge should not engage in any form of harassment of court personnel”); Canon 3 cmt. to 3A(3) (advising that “the duty to be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as harassment”); Canon 3 cmt. to 3B(4) (advising that “harassment encompasses a range of conduct having no legitimate role in the workplace”). Further, the Rules include “abusive or harassing behavior” in the definition of misconduct, which, in turn, includes “engaging in unwanted, offensive, or abusive sexual conduct, including sexual harassment.” Rule 4(a)(2) & 4(a)(2)(A). D engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions. A judge’s sexual affair does not constitute misconduct in all cases; whether a judge’s affair, even with a convicted felon, is misconduct depends on the circumstances surrounding the relationship. P found that D placed himself in such a compromised position that he made himself susceptible to extortion. D engaged in a years-long extramarital sexual relationship with a drug-using individual who was then on probation and is now incarcerated (because of probation violations) for state-court felony convictions. A judge’s sexual affair does not constitute misconduct in all cases; whether a judge’s affair, even with a convicted felon, is misconduct depends on the circumstances surrounding the relationship. P found that D placed himself in such a compromised position that he made himself susceptible to extortion. D has been habitually late for court proceedings and meetings for years often requiring attorneys, parties, and juries to wait, and sometimes making attorneys late for proceedings in other courtrooms. D was counseled about his tardiness fairly early in his federal judicial career, but his conduct persisted nonetheless. A judge’s habitual disrespect for attorneys, jurors, and witnesses is a violation of the Code of Conduct for United States Judges. Canon 3 advises that “a judge should be . . . respectful[] and courteous to litigants, jurors, witnesses, [and] lawyers[,]” Canon 3A(3), “[a] judge should dispose promptly of the business of the court . . . ,” Canon 3A(5), and “[a] judge should diligently discharge administrative responsibilities . . . and facilitate the performance of the administrative responsibilities of other judges and court personnel,” Canon 3B(1). (“[A] pattern of such violations of the Code might well rise to the level of misconduct.”).