Dangerous lack of candor

Agreeing with the findings of a hearing panel of the Commission on Judicial Qualifications, the Kansas Supreme Court found that a judge had made dishonest statements under oath in a prior discipline proceedings; however, it did not impose a sanction because the judge had resigned, and, therefore, suspension or removal were unavailable.  In the Matter of Henderson (Kansas Supreme Court April 7, 2017).

In 2015, based on the findings of the Commission and adopting its conclusions of law, the Court had suspended the same judge for 90 days without pay for making offensive and demeaning sexual comments to female attorneys and staff members; trying to broker an employment opportunity for his wife; and sending an ex parte e-mail to an attorney’s client that expressed bias or prejudice toward the attorney.  In the Matter of Henderson, 343 P.3d 518 (Kansas 2015).  While that first case was still pending, additional complaints were filed against the judge, and, after an investigation, a second notice of formal proceedings was filed alleging the judge had provided testimony that was not candid and honest during the first proceeding.  Just prior to a hearing before a different panel in the second case, the judge was defeated in a primary election.  He resigned after the hearing.

The Commission agreed with the findings of the second panel that the judge had told an offensive story to the assistant district attorney contrary to his testimony in the first hearing, that testimony and documentary evidence refuted his version of his communications with a school board member about his wife’s employment, and that his explanations of one of his comments were not credible.  Further, the Court explained that the additional testimony in the second hearing “illustrates the dangerous undermining of faith in the judicial system resulting from the Respondent’s lack of candor.”  The Court noted, for example, that a court services officer had testified “that it was ‘upsetting’ to her that the administrative judge for whom she worked for so many years ‘would take an oath to tell the truth and then blatantly tell that he had never told the story when he told it all the time.’”  In addition, a juvenile justice education liaison for the county department of corrections “testified that she was ‘very upset’ when she heard the Respondent’s testimony at the first hearing, because ‘to have your presiding judge take an oath and not tell the truth was really upsetting.’”

Rejecting the judge’s argument, the Court held it had not lost jurisdiction when he resigned.  It explained:

Notwithstanding the availability of sanctions, the issues before us are matters of great public interest concerning the honor and dignity of the judiciary. . . .

The duty to protect the public from malfeasance by judges does not terminate the moment a judge steps down from office.  A judge may not evade public responsibility and our jurisdiction based on the misconduct simply by stepping away from the bench when the misconduct is revealed. . . .

The purpose of judicial discipline is to maintain the honor and dignity of the judiciary and the proper administration of justice rather than to punish the individual. . . .  Public trust is essential to the effective operation of the judicial system, and the conduct of one judge may have a significant adverse impact on the public perception of the entire judicial system. . . .

It would be disrespectful both to the public and to the witnesses whose reputations he impugned if we were to abdicate our responsibility of judicial supervision by dismissing the complaint merely because the Respondent walked away from his responsibilities.

Finally, the Court rejected the judge’s argument that his due process rights were violated because he had not been immediately notified of the second set of complaints, noting the relevant rule did not require “immediate and simultaneous action.”  The Court also explained that, even if there was a question whether the Commission had acted in a timely manner, “[a]sserted due process violations are subject to harmless error analysis,” and the judge had not articulate “any tangible resulting harm.”

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