Unethical Judge Of The Month, But Not For What You May Think

ShatteredGavelShortly after the the Supreme Court’s same-sex marriage decision, Obergefell v. Hodges, Utah began placing foster children with same-sex couples. An 8-month-old girl was placed in August with Rebecca A. Peirce, 34, and April M. Hoagland, 38, who are married and live near  Salt Lake City with Peirce’s two biological children.

The couple hoped to eventually adopt the child, but during what was supposed to be a routine hearing on the foster parent arrangement the juvenile court judge, Scott Johansen, issued an order that the baby be taken from them and given to a heterosexual couple so that she could be raised in a home with heterosexual parents. As his justification, Judge Johansen said that research he had seen indicated that children  do better in heterosexual homes. The order cited the court’s “belief that research has shown that children are more emotionally and mentally stable when raised by a mother and father in the same home.” There have indeed been studies that support that position, but they have been sharply criticized by social scientists.

The Division of Child and Family Services filed a motion with Judge Johansen to stay his order and said it would petition the court of appeals. Meanwhile, advocacy organizations, news outlets and social media exploded with outrage. Even Gov. Gary R. Herbert, a Republican,  criticized the ruling, saying that the judge should not “inject his own personal beliefs and feelings” and “should follow the law.”

But does the ruling that gay couples have a right to marry mean that a judge can’t find that the best interests of a child justifies the decision to favor a heterosexual couple for adoption or a foster parenting arrangement? That determination has yet to be made. It certainly looks like the ruling against Peirce and Hoagland springs from anti-gay bias, but it may not be an illegal ruling, and if the judge sincerely believes he is acting in the best interests of the child, it is not unethical either. Ignorant, perhaps, but not unethical.

No, that wasn’t the conduct that won the judge the Unethical Judge prize. This was: Judge Johansen reversed his order, at least temporarily, in response to all the criticism. The child will remain with the couple at least until newly scheduled hearing on what is in the best interests of the girl.

The judge initially ruled following his belief regarding what was within his power and in the best interests of the child. The public’s reaction to his ruling and criticism from the media and the governor should have no impact on him at all. Judges are not supposed to be swayed by protests or fear of unpopularity. Right or wrong, no judicial decision should ever be reversed because the judge making it yielded to criticism. Judge Johansen has weakened the reputation and integrity of the system and the judiciary. If judges follow polls rather than their sincere belief in what the law requires, justice will be redefined as whoever yells the loudest.

Here is Rule 2.4 from the Utah Code of Judicial Conduct Canon 2:

RULE 2.4: External Influences on Judicial Conduct

(A) A judge shall not be swayed by public clamor or fear of criticism.

Johansen just violated it.

13 thoughts on “Unethical Judge Of The Month, But Not For What You May Think

  1. I don’t think you really understand how the legal system operates. When there is a controversy, the law strongly favors keeping the status quo. It has been that way for hundreds of years. Removing the child broke the status quo.

    There was no showing of immediate and/or irreparable harm to support removing the child in this situation.

    • 1. I’m a lawyer. Two bars. I teach legal ethics and judicial ethics. I consult to family law lawyers
      2. Your comment is irrelevant to the post. Children are removed from parents, foster parents, all the time. You are stating a gross generalization to apply to a specific case. If the judge decides that the best interests of the child dictate disturbing the status quo (which is a stretch in this case, since it was just a couple of months old) he should change the status quo. Moreover, many judges and citizens regard placing children only with traditional hetero couples the status quo.

      3. The ethics violation is changing the ruling—which is the status quo NOW—because of criticism rather than the law or his interpretation of the facts.

      4. Presumptuous and ill-considered comment, and insulting to boot. See the Utah rule? See what he did? The facts as reported say the judge specifically acted because of the criticism. The rule says in plain English that he can’t do that in Utah (and the rules governing judicial ethics are pretty consistent on this point. The ethical principle doesn’t talk about whether the decision is pro or anti status quo, because it has nothing to do with the issue, which is trust and integrity.

      The status quo has as much to do with the ethics issue as aardvarks. Do some thinking before you tell me what I understand.

      • Call me naive… “Hi, Naive!” but it’s just barely possible that the judge in this case realised he’d misread the expert evidence.

        In court on Tuesday, Johansen gave no reason for ordering the removal of the child other than the foster couple’s sexual orientation. The order released Thursday still includes a concern from the judge that “research has shown that children are more emotionally and mentally stable when raised by a mother and a father in the same home.”

        Now crossed out, the order previously went on to state: “… that same-sex marriages have double the rate of instability as heterosexual marriages have, and that the emotional problems suffered by children in same-sex relationships increase by a factor of four compared to children raised by heterosexual couples.”

        A court clerk also noted that the judge “declined to identify or provide research upon which (his) opinion is based to the parties despite several requests by counsel to do so.”

        The order indicates a 2010 article titled “Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?” was received as evidence in the case.

        Source : http://www.ksl.com/?sid=37346276&nid=148&title=judge-reverses-order-to-remove-child-from-lesbian-foster-parents&s_cid=queue-15

        This states specifically that:

        From a policy perspective, our results provide no justification
        for denying lesbian and gay adults from adopting children (Wald, 2006). Indeed, barring adoptions to prospective lesbian and gay parents seems likely to produce a number of undesirable outcomes.

        The figures that have since been deleted on “four times risk” etc appear to have come from
        http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2500537

        Emotional Problems among Children with Same-Sex Parents: Difference by Definition
        by Donald Paul Sullins, The Catholic University of America
        in the British Journal of Education, Society and Behavioural Science 7(2):99-120, 2015

        This “journal” is published from a warehouse in India, and is a vanity press publication, one of many run by ScienceDomain.org.

        Number 395 on the list of scam journal publishers at http://scholarlyoa.com/2014/01/02/list-of-predatory-publishers-2014/

        • Hi, Naive! I’d say it’s possible but not very probable. If he flipped that fast, then he didn’t do his job the first time. It seems unlikely because that kind of reversal so quickly is extremely unusual. The junk studies were pretty clearly jink—they are confirmation bias bait.

          • Oh I agree he didn’t do his job properly the first time, ignoring expert evidence in favour of his favourite religious right talking point matter. He probably didn’t bother reading the submitted evidence, as he either “knew” what it must say, or “knew” it was the usual commie politically motivated stuff.

            Had he used the Regnerus study, there’d be some excuse. Yes, it’s been critiqued, but at least it was published outside a vanity press, and it’s still credible in the usual religious right monoculture.

            This one though is only given credence by WND and the like. Not even the mainstream religious right will touch it now.

            I surmise he got taken by surprise by the outcry – he’s a pillar of the LDS, and so everyone he knows agrees with him – and only bothered to actually, you know consider the submitted evidence afterwards as the result of the brouhaha..

            I don’t see him as being unethical for “bowing to public pressure”, I see him as being unethical for being professionally incompetent and negligent. The limited backtrack could be explained by pressure the post-facto redactions not so much.

            His “eccentric” record of assaulting minors in the courtroom etc means he has been seen as something of an embarrassment to the bench before now.

      • Your comment is irrelevant to the post. Children are removed from parents, foster parents, all the time. You are stating a gross generalization to apply to a specific case. If the judge decides that the best interests of the child dictate disturbing the status quo (which is a stretch in this case, since it was just a couple of months old) he should change the status quo. Moreover, many judges and citizens regard placing children only with traditional hetero couples the status quo.

        I’ve seen worse. The case of a Jewish trans child taken from their biological parents by judicial fiat at age 10 so they’d grow up in a proper Christian home. The Judge insisted on the “Christian” part.

        It took several years for her to be returned, but apparently the psychological damage wasn’t permanent.

        In Western Australia ten years ago, having one parent who was Trans was immediate cause for removal of all children of that marriage, with neither biological parent allowed any further contact.

  2. While my comment giving source URLs is awaiting moderation, the Executive Summary:

    1. According to the tendered expert evidence “Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?

    From a policy perspective, our results provide no justification
    for denying lesbian and gay adults from adopting children (Wald, 2006). Indeed, barring adoptions to prospective lesbian and gay parents seems likely to produce a number of undesirable outcomes.

    2. The original ruling included a number of statements, apparently from Emotional Problems among Children with Same-Sex Parents: Difference by Definition published in an Indian scam publication pretending to be the “British” Journal of Education, Society and Behavioural Science , and authored by a Catholic Priest, not a scientist.

    3. It is just possible that the Judge has been made aware that he was a victim of an infamous (in scientific circles) scam, hence his deletion of the claims, and reversal of the original ruling.

    For more on these “questionable” journals, some of which are just robot programs that publish anything that’s submitted, see http://www.skeptic.com/insight/scam-science-journals-and-the-simpsons/

    An Australian computer scientist, frustrated with the barrage of emails to submit to these junk journals, wrote a paper consisting entirely of the text, “Get me off your f*cking mailing list!” (PDF) repeated over and over and over again for many pages (but with the appropriate headings for Abstract, Introduction, Methods, Results, etc.), and a bunch of completely bizarre illustrations. Yet it was accepted immediately by The International Journal of Advanced Computer Technology (once he paid his fees)! Ironically, thanks to an alleged journal about computer technology we find out that many of these predatory journals are just robotic programs that accept anything submitted, generate automated responses at each step—and no human is paying attention whatsoever.

  3. If the reason he reversed is that the public outrage made him educate himself further and reconsider competing evidence it was a good decision.

    I’m armchair quarterbacking here though, and estimate the chance that this is the case between zero and nothing.

    • You’re probably pretty close in your estimation. However, the time to have educated himself would have been BEFORE rendering his first decision, not after he got his wrist slapped by the public.

  4. A different take on this. Unsure of the exact jurisdictions, I do know that judges and district attorneys are in fact “elected* positions. What then does public opinion affect his decision?

    To what extent does this fact influence judicial decisions?

  5. That’s “Regnery” Press, Zoe. Obviously, they’re something of a thorn in your side. Just be content that this thread has given you a chance to rave about how wonderful it is to place innocent children in the care of maniacal degenerates. Because, dear lady (or whatever), that’s what it always boils down to in the end.

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