Saturday, May 17, 2014

Judging the Judge

In re Balivet, 2014 VT 41

By Andrew Delaney

Four justices were specially assigned for this per curiam (that’s fancy lawyer talk for “by the whole court”) opinion. And why not?

Usually a judge has his or her decisions and rulings scrutinized by the SCOV. Today’s decision is a little different because the SCOV is looking at this judge’s conduct specifically.

In Vermont, lawyers have rules of professional conduct; judges have a code of judicial conduct. One of the judicial canons requires that judges “dispose of all judicial matters promptly, efficiently and fairly.” This case is about whether respondent met that standard. 
The underlying facts are as follows. Respondent, as a probate judge, appointed a kid’s grandpa to be her guardian, and a few months later, parents filed a motion to revoke the guardianship. There was an evidentiary hearing and respondent denied the motion from the bench. Though respondent took some notes, the hearing was only partially recorded; it wasn’t transcribed; and there was no written order or a docket entry.

Dad filed a second motion to terminate the guardianship. There was a notice of hearing issued by the court, and a hearing held, but the parties disagree as to the outcome. Grandpa then filed an adoption petition (with mom’s consent but not dad’s), and later a petition to terminate dad’s parental rights (TPR). Respondent didn’t schedule a hearing on the petition until over a year later, and after grandpa filed a writ of mandamus in the superior court. Respondent admitted he dropped the ball on that one.

The hearing was three days long, and at the end, respondent orally denied the motion to terminate dad’s parental rights—no docket entry, no written order. Dad also raised the terminate-grandpa’s-guardianship issue before the hearing, but nobody seems to know whether that was addressed. Grandpa appealed the TPR denial to the superior court.

Grandpa also filed a motion to stay dad’s terminate-the-guardianship attempts pending resolution of the superior-court appeal, which dad opposed, and which was granted “sometime”—no docket entry or order in the file.

After the TPR hearing, mom filed a motion to revoke her consent to the adoption (she and dad had gotten back together), which was granted about a year and a half after its filing. Mom then almost immediately indicated her support for terminating grandpa’s guardianship.

Grandpa responded with a motion to terminate mom’s parental rights, which respondent denied. Grandpa appealed to the superior court, which sent it back to probate court. Respondent held a hearing and terminated mom’s parental rights by written order. She didn’t appeal.

Dad’s attorney wrote to the probate court to why a hearing on dad’s motion to terminate the guardianship hadn’t been scheduled. Respondent issued a pro-forma denial on the motion so it could be consolidated with the TPR-denial appeal.

The superior court denied both motions (grandpa’s TPR and dad’s termination of the guardianship), thus maintaining the status quo such as it had become over the bulk of the last decade.

Both parties appealed to the SCOV. The SCOV affirmed the denial of grandpa’s TPR petition, but reversed the denial of dad’s terminate-the-guardianship motion. We covered that case here.

After the appeal, the SCOV referred the case to the Judicial Conduct Board for review. The Board appointed special counsel to investigate the case. Special counsel ultimately filed a formal complaint alleging that respondent had failed to “dispose of all judicial matters promptly, efficiently and fairly” in the context of this case.

The facts were stipulated to, and the Board held an all-day hearing to address the matters not covered by the stipulation. There were three disputed issues: (1) whether there was a timely ruling on the motion to revoke the guardianship; (2) whether respondent caused unnecessary delay when he didn’t schedule a hearing on grandpa’s TPR motion as to dad; and (3) whether respondent’s response to the order of remand was timely.

On the first issue, the Board found that special counsel had not met her burden of showing a violation by clear and convincing evidence. Respondent had extensive notes, and he probably did in fact issue a ruling from the bench. The Board acknowledged that a written order and docket entry would’ve been far preferable.

On the fourteen-month-delay-in-setting-a-hearing-on-grandpa’s-TPR-petition issue, the Board found clear and convincing evidence of a violation of the applicable canon. It was a serious delay, made matters worse, was not justified by some plan, and respondent knew from the outset that it was unlikely to succeed, due to dad’s consistent involvement in child’s life during the guardianship.

On the last issue, the Board concluded that there was not a clear violation. Although it was plausible that the delayed response was attributable to respondent, the reason for the delay was unclear and when the delay was brought to respondent’s attention, he promptly scheduled a hearing.

The Board-recommended sanction was: (1) a private letter of reprimand to respondent from the chair; and (2) a twelve-month mentoring program with another probate judge, including development of plans to ensure prompt scheduling and issuance of written decisions.

Though the Board acknowledged that the delay was serious, respondent’s lack of prior disciplinary sanctions, candor, and good intentions mitigated the seriousness of the violation to some degree.

Nobody appealed. This is a case that the SCOV can review on its own motion, and it chooses to do so. The SCOV requests “that the parties address: (1) the Board’s finding that special counsel had not met the burden of proof by clear and convincing evidence that respondent failed to rule on father’s 2002 motion to terminate the guardianship, and (2) the Board’s recommendation of a private reprimand in light of Disciplinary Control Rule 6(7), which makes “rulings of the Board” public after the service of a formal complaint.”

The SCOV notes that its review is limited to whether the Board’s determination was clearly erroneous, and further that special counsel bears the burden of showing a violation and must do so by clear and convincing evidence. That said, the SCOV reminds us that it is the final say when it comes to judicial discipline and that the Board’s recommendations are advisory only, though entitled to great weight. This is starting to sound like doublespeak—my sincere apologies. Bottom line is that the SCOV can do whatever it wants but it’ll listen to the Board too.

Here, the SCOV concludes that the Board was not clearly erroneous in concluding that special counsel had not met her burden on the failure-to-rule-on-the-termination-of-guardianship issue. Here, respondent’s notes and testimony supported his contention that he ruled on the motion after a hearing. Thus, the SCOV concludes that on this issue, respondent is okay.

But it is a somewhat-reluctant conclusion. The SCOV reasons that “respondent’s failure to reduce the court’s ruling to writing and to record the judgment, or to ensure that it was recorded, raises concerns of its own.” The SCOV qualifies, “Although we affirm the Board’s conclusion with respect to respondent’s violation of the applicable canon, we emphasize that our affirmation in no way suggests that the manner in which the successive motions in this case were processed by the court—including by respondent himself and possibly court administrative personnel—met the standard expected in a Vermont court.” This is serious stuff, and the SCOV takes the opportunity to articulate that.

The SCOV is not thrilled that not only is there a complete lack of findings, but also no record of the judgment itself. The SCOV notes that the ruling on the motion would be a final and appealable judgment and that this is not just a mere oversight but an apparent complete mismanagement of the docket. Reading the opinion between the lines, it’s not a leap to imagine a collective sigh of disappointment at the end of each paragraph.

The SCOV next turns to whether “private reprimand” is the appropriate sanction here. The SCOV notes that a private reprimand “is appropriate when the Board concludes that the conduct is potentially a violation of the Code of Judicial Conduct but a formal complaint is not warranted.” Proceedings before a formal complaint are nonpublic and confidential; proceedings after a formal complaint is issued are public.

Private and confidential sanctions exist as alternatives to formal discipline, and once formal proceedings are initiated, those alternatives are no longer available. Here a formal complaint was indeed issued. Judicial disciplinary proceedings exist to “protect the public, ensure the evenhanded administration of justice, and preserve and enhance public confidence in the integrity and fairness of the justice system.”

The SCOV takes issue with the label of “private reprimand.” Such a label—at odds with the realities of the situation—is unlikely to inspire public confidence. Thus, while the SCOV has no problem with the mechanics of the sanction, and wholeheartedly adopts the conditions imposed, it cannot let what must by necessity be a “public reprimand” be labeled a “private reprimand.” Thus the SCOV amends the sanction to a “public reprimand,” and leaves the rest alone.

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