Misconduct complaint, motion to disqualify, both filed against Judge Christopher
A judge the Montana Supreme Court removed from one case last month referred to a mom in her courtroom as “you bitch” in a remark to colleagues after a child custody hearing, and she described the grandmother as “poison.”
The exchanges were recorded in a video of the Sept. 11 hearing with Judge Deborah Kim Christopher before the Montana Supreme Court removed her from the case last month for a decision it deemed a “gross injustice.”
In that case, the judge of Lake and Sanders counties abruptly ordered a child removed from his mother who had raised him, and placed in custody with his father, who only had spent a few days a year with him.
Neither parent had asked for that change; rather, they disagreed on a couple of details in their parenting plan. The child, then 5, has since been returned to his mother, and the justices reassigned the case to a different judge.
Since then, allegations of poor judgeship by Christopher have mounted with the Montana Supreme Court and Judicial Standards Commission.
A state agency requested the judge be disqualified from a case, alleging she issued an order with biased comments, talked with a defendant without his lawyer, and gave him advanced notice of a ruling she planned to make.
Last week, the Montana Supreme Court said it would review the allegations, and requested a transcript or video of the hearing.
Additionally, Lance Jasper, one of the lawyers who represents the mother in the child custody case, confirmed he filed a judicial misconduct complaint against Christopher with the Judicial Standards Commission.
“We’re taking all steps necessary to prevent this from happening to any other individual, which includes a judicial complaint that has been filed,” Jasper said. “But given the confidentiality of the matter, I can’t discuss its contents.”
Christopher is a former prosecutor first elected as judge in Lake County in 2000. In an earlier campaign website, she describes herself as a third-generation Montanan who grew up in Polson and served in the U.S. military.
In a phone interview Monday, Christopher said the only complaints against her that she’s aware of are within the context of the child custody case, the most difficult of her career of 23 years. But she said she believes in public service.
“The people who I serve are the people I care deeply about, and I want to make sure that to the best of my ability, they are well-served,” Christopher said.
She also said the people benefit from her transparency; Christopher provided the Zoom recordings from her courtroom to lawyers representing the parents, although she said she didn’t realize the video continued recording after the Sept. 11 hearing concluded.
Christopher said she started using Zoom during the COVID-19 pandemic so the public could access the court. She said the recordings benefit the court reporter because they serve as a “double-check” on proceedings.
However, as a result of the child custody case, Christopher said she learned everything is recorded, even her comments to her judicial assistant or law clerk after a hearing. However, she said those conversations aren’t considered part of the public record, reflected as the court transcript.
“Some of it I didn’t realize was available. I assumed when we concluded that then everything shut down,” Christopher said of the Zoom videos.
Last week, a professor of legal ethics with Gonzaga University School of Law discussed standards for judicial conduct after reviewing recent court records that involve Christopher.
Professor Brooks Holland also reviewed video of the conversations that took place among courtroom staff after the Sept. 11 child custody hearing concluded.
In an interview, Holland said everyone can have a bad day on the job, and people’s careers can have “bumps in the road” that are not reflective of their life’s work.
However, Holland also raised concerns with some of the exchanges in court. And in the child custody case, he described the Supreme Court removing Christopher as “extraordinary” both because the justices moved swiftly and because they reassigned the case.
“This was not an uncertain response from the supreme court about what they thought had happened,” Holland said. “They thought a manifest injustice had occurred.”
Last week, Judge Christopher acknowledged in a court record that she received a copy of the complaint filed against her by the Judicial Standards Commission. The receipt filed with the Montana Supreme Court notes the judge has 15 days to respond.
In that case, the Judicial Standards Commission recommended disciplinary action, alleging the judge failed to perform judicial and administrative duties diligently, and missed too many days of work without covering her docket.
Additionally, the Department of Public Health and Human Services filed a request to disqualify her from a different case last month. Last week, the Supreme Court requested additional information prior to issuing a decision in that case.
“DPHHS alleges that Judge Christopher should be disqualified from this matter because Judge Christopher has failed to timely rule on motions, issued an order with biased comments, twice attempted to contact a represented party ex parte and without counsel present, and also spoke with (the defendant), via videoconference, without his counsel or opposing counsel present, and advised him as to her anticipated ruling on a pending motion,” said the order from the Supreme Court in its summary of the allegations.
The court file indicates the state health department filed the video or transcript of the hearing last week, although the records are not accessible in the online file.
Christopher declined to comment on the health department motion and said it would be better for the full court record to be reviewed.
Also last week, Jasper provided to the Daily Montanan copies of the Zoom videos of the Sept. 11 hearing and exchanges after the hearing. The videos included conversations the judge had with court staff once the litigants had left the courtroom.
When the judge said she didn’t believe the father thought he had a chance at custody, she used a derogatory term: “He didn’t think he had a Chinaman’s chance in hell.” The judge also referred to the hearing as “better than court TV” and “the best show yet.”
Jasper said he and lawyer Spencer MacDonald, who is also representing the mom in the case, are referring the matter to law enforcement to investigate possible criminal activity that took place after the hearing.
Jasper, who declined to discuss the contents of the misconduct complaint but said he is not barred from discussing referrals to law enforcement, outlined multiple issues.
He referred to destruction of evidence in the form of a missing audio file; possible witness tampering; and the potential someone misrepresented themselves as the father in a court brief; Jasper said such a misrepresentation would be criminal misconduct.
The lawyers had raised those issues earlier in the child custody case and alleged possible misconduct. They’re partly concerned about a document sent by email on Nov. 13 from an account with the father’s name but unsigned by him.
However, on Nov. 17, the father signed a motion for an extension of time. In it, he indicated he was sick and needed more time to find legal help and file his brief with the court. The father used a “pro se form,” longhand and filed by fax.
By comparison, the previously filed unsigned document was typed and sent by email. The signed motion didn’t indicate the father had submitted any document to the court earlier.
The differences, including language used, indicate to Jasper that different people wrote the documents even though both supposedly were sent by the father. The earlier one showed legal expertise; the later one was written by hand and clearly written by a lay person.
Last week, Jasper said he and MacDonald served the court reporter with a subpoena to take her deposition to try to learn more about the missing audio file. However, Jasper said shortly after, Christopher produced the Zoom video to them despite having been “divested of jurisdiction” in the case.
He said such action could amount to witness tampering: “We’ll be turning the matter over to law enforcement to determine whether it warrants criminal charges.”
In a phone call, Christopher said she disagreed with the subpoena, which was later quashed. She said her court reporter “was really shaken” when she was served, and the judge wanted to ensure the court was transparent anyway.
“You just don’t do subpoenas of court reporters. But they can be interviewed. They can be talked to,” Christopher said.
In an interview last week, Holland, of Gonzaga law school in Spokane, Washington, said he could understand why the lawyers are concerned and why the judge may need to respond to ethical inquiries.
However, he also said he is not familiar with the entirety of her career, so he cannot comment on whether the issues are isolated or evidence of a pattern.
But the video clips offered exchanges that raised questions for Holland. In one, the judge tells a law clerk after the hearing that he “nailed it” when it comes to a mediation.
Holland said those discussions are supposed to remain confidential, not shared with the judge presiding over the case. But he said her remark to the clerk raises a question of whether she had knowledge of the mediation.
“That comment suggested that maybe the confidentiality wall had been breached,” Holland said. “But it’s not entirely clear.”
Family law cases in particular can be draining, and he said even judges need to decompress. However, he said, judicial canons require judges to maintain civility and decorum and also require it of their court staff.
In this case, Holland said the judge made comments that could be seen on their face as racist, in particular a reference to an Asian-American stereotype and a comment to the race and perceived accent of one of the parties.
He said one statement might not reflect that the judge is biased.
“(But) those are not references or language judges are supposed to use,” Holland said.
He also said judges might have strong emotions, and the supreme court indicated Christopher was triggered by something in the child custody case. However, he said referring to a litigants with the words she used (she used b—ch) and a family member as “poison” is inherently derogatory.
“It’s hard to think the judge could be impartial in decision-making when referring to the parties with a derogatory term,” Holland said.
The judge’s exchange with courtroom staff about her hearing being better than “Judge Judy” also appears inappropriate, Holland said. He said levity is needed, and maybe the judge was trying to use humor or bravado to offset tension.
However, he said the comment isn’t in line when referring to two unrepresented litigants in her courtroom.
“It’s communicating to staff that this is almost like a sport or entertainment,” Holland said.
In the moment, Christopher said people in different professions find ways to deal with difficult circumstances, and this was one such set of difficulties. She also said she waited for three weeks to finalize a parenting plan to ensure fairness.
“Because this is one of the hardest cases I’ve had, because people are important, and neither of these people had attorneys,” Christopher said.
Holland — and earlier, the lawyers who represent the mom — agreed people benefit from legal representation. Holland said the hearing illustrates the pitfalls and injustices that occur when people represent themselves, especially in family law and domestic relations, which they do at a rate of some 80%.
“It’s very hard for me to imagine that this case would have gone off the rails if two lawyers were standing in the room with those two litigants,” Holland said.
Judicial codes of conduct address diligence, impartiality, and other responsibilities, and they recognize judges have lives, including health problems, he said.
If a judge gets crosswise with the canons in an isolated instance, he said, a judicial standards commission may recommend remediation, such as continuing education in ethics. However, in general, judicial commissions may also censure, suspend or even remove a judge in extreme cases.
At the same time, Holland said there’s a difference between a breach of judicial ethics, or failing to meet a conduct code, and a lack of professional judgment. He said some issues are better left to voters to decide than fellow judges.
“People can be unprofessional — even judges — but not always subject to discipline,” Holland said.
Judge Christopher is up for re-election this year, but she said she isn’t sure whether she will run for the office again.
She said the work is difficult, whether it’s family law, or negligent homicide, where “nobody intended to kill somebody but the person was just as dead,” or burglary, “like the rape of your house.” She said even an adoption starts with a termination.
“I don’t think there is anything that judges do that’s easy or really fun,” Christopher said.
But she said ultimately, she aims to be transparent and to serve her community: “This isn’t about me. This is about the people. And this is about their cases. This is about the law.”
Here is a link to one proceeding: https://drive.google.com/file/u/1/d/1xSUOJ9Al8RXr51P2loeWk0A1XgrC6cDY/v…
Here is a link to another: https://drive.google.com/file/d/1sXzcnSAmDzrJtNQuHzX-Qw_JzGvzavIb/view.
The comments the judge makes with staff occur in the last 10 minutes of the recordings.