Delay

As in every year, in 2018, delay in issuing a decision was sanctioned in several cases.

  • A judge was suspended for 30 days without pay for failing to rule for more than five years on a motion for permanent child support. In re Chapman, 819 S.E.2d 346 (North Carolina 2018).
  • A judge was publicly reprimanded for failing to rule for more than two years on a motion for attorney’s fees and expenses and failing to respond or to respond promptly to inquiries about the status of the ruling. In re Henderson, 812 S.E.2d 826 (North Carolina 2018).
  • A judge was censured for failing to decide a petition for post-conviction relief for over two years and falsely certifying that he did not have any matters under submission that were pending for more than 60 days. Inquiry Concerning Jantzen, Order (Arizona Supreme Court June 15, 2018).
  • A judge was suspended for 60-days without pay for, in addition to other misconduct, failing to rule on a defendant’s motion for relief from an ankle monitoring program for over three years and, in five cases, failing to consider motions for shock probation within 60 days and to rule within 20 days after considering the motion, as required by statute. In re Langford, Agreed order of suspension (Kentucky Judicial Conduct Commission April 2, 2018).

The five-year delay in Chapman is one of the longest recorded in a judicial discipline proceeding.  (In fact, the motion remained undecided at the time of the North Carolina Supreme Court’s decision in October 2018, over six years after it was taken under advisement and almost one year after the judge recused himself.)  In the motion, the mother had argued that, based on the father’s income, she was entitled to an over $3,000 increase a month in child support and over $17,000 in attorney’s fees.  Following a multi-day hearing that concluded on November 30, 2012, the judge reserved his ruling and took the matter under advisement.

From January 2013 until April 2016, the mother’s attorney contacted the judge every couple of months to inquire about the ruling.  Sometimes, the judge responded with a promise to rule soon; sometimes, the judge did not respond.  For example, in a January 2013 e-mail, the attorney stressed that the order was required to resolve ongoing financial issues.  The judge, over a month later, said that he would be “taking it home with him” because the courts were closing due to inclement weather.  When the judge failed to rule after a request in April 2016, the attorney stopped contacting the judge, concerned that further contact was futile and could harm his client’s interests.

The judge offered no justification for the delay.  During his exchanges with the attorney, however, the judge did express compunction about his inaction.  For example, in April 2016, the judge replied to an inquiry from the attorney:  “[T]here is not a day, and seldom a night, that goes by that this case has not been on my mind.  I understand your clients [sic] needs.”

Similarly, in Jantzen, during a status hearing almost 18 months after taking the petition for post-conviction relief under advisement, the judge apologized for the delay and stated, for example, “I know that you’re irritated by the delay, but I have now made a record that the canons need to be effected.  I may write the Judicial Commission myself and tell them what I’ve done in this case.”

In Henderson, the defendant’s counsel withdrew after receiving no response to her many inquiries over the year and a half since the judge took under advisement her client’s motion for attorney’s fees and costs associated with her claims for post-separation support, permanent child custody, and sanctions.  The defendant, now appearing pro se, e-mailed the chief judge asking for assistance and expressing her frustration with the then 18-month delay.  That afternoon, the judge replied to the chief judge that he had been “dragging [his] feet” and had no excuses other than his “dread” of the case and committed to “making a decision soon.”  The judge, however, did not respond to the defendant or otherwise inform the parties about the status of the ruling.  On August 26, the judge finally e-mailed the parties to apologize for the tardiness of his decision and to inform them that he intended to issue a decision by the end of the week of September 5.

The judge failed to do so, however, and the defendant e-mailed the judge again on October 10, imploring him to issue a decision.  The judge again did not respond.  On November 9, the defendant filed a complaint with the Commission.  On March 27, 2017, the judge informed the Commission that the order had been entered, over two years and three months after the final hearing on the motion for attorneys’ fees.

Pattern and practice

Addressing more than a single delay, the Alabama Court of the Judiciary suspended a judge for 180 days without pay and publicly reprimanded her for a pattern of unreasonable and unjustifiable delay in the management of her family court docket, preventing the timely resolution of disputes and profoundly affecting the lives of those, in particular children, whose interests were before her court.  In the Matter of Kelly, Final judgment (Alabama Court of the Judiciary May 11, 2018).  The Court found:

  • In termination of parental rights cases, the judge engaged in a pattern and practice of failing or refusing to complete the trials within 90 days of service and to enter orders within 30 day of completing trial as required by statute and the rules of juvenile procedure.
  • The judge failed or refused to manage court dockets to make timely decisions, failed or refused to allocate sufficient time on her dockets to hear pending matters in one hearing, regularly continued dockets, unreasonably delayed setting hearings and re-setting continued trials, and unjustifiably delayed or failed to rule on applications for uncontested divorce and requests for modification of divorce decrees, many of which included agreed proposed orders.
  • The judge failed failed or refused to submit accurate and timely six-month reports.

The Court noted “credible opinion testimony” that the judge takes her job seriously and wants the best outcome for all parties.  However, it emphasized that “well intentioned or not, Judge Kelly has demonstrated sustained inefficiency in managing – and an overall inability in administering – her busy and complex docket.  Unfortunately, the victims of that inefficiency are some of the most vulnerable of any under the power of the court system.”  The Court acknowledged the “shortages in staffing and budgeting” that all courts in Alabama have had since at least 2003, but also noted the other two family court judges, who had less experience, managed their dockets in much more efficiently than Judge Kelly.  The Court also cited the judge’s “failure to accept responsibility and her attempt to blame others – including specifically the juvenile clerk’s office – for the many delays that resulted in this matter being filed.”

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