“An unpredictable and unforeseeable situation”

The D.C. Court of Appeals affirmed an uncontested order of the D.C. Commission on Judicial Disabilities and Tenure involuntarily retiring a judge for extensive and extraordinary delays in cases and a mental and or physical disability that is or is likely to become permanent and that prevents or seriously interferes with the proper performance of his judicial duties. In re Berk, Order (D.C. Court of Appeals November 4, 2021), affirming order. The Commission commended “the public, including litigators and litigants, who brought their concerns regarding Judge Berk’s conduct to the Commission attention” and emphasized that “the Commission cannot serve its mission and protect the public interest without the kind of proactive disclosures, reporting, and cooperation here.” The judge’s misconduct did not directly relate to the COVID-19 pandemic, but the Commission noted that safeguards that might have quickly detected the judge’s problems during “in-person court proceedings were lacking or insufficient” in the “largely virtual environment” necessitated by the public health crisis, “creating “an unpredictable and unforeseeable situation.”

In May 2021, the Commission began receiving complaints about substantial delays by the judge and/or his failure to dispose of matters. In addition to possible violations of the code of judicial conduct, the complaints raised questions about medical, cognitive, confusion, memory, focus, attention, speech, or other issues that could be affecting the judge’s ability to perform his judicial duties. The judge went on administrative leave in June.

Following an investigation, the Commission found extensive and extraordinary delays throughout the judge’s calendar, including cases in which no written rulings were issued for as long as nine months. In some cases, no hearings were set, hearings were continued without resolution for months at a time, trials and hearings were completed but no decision was entered, or no initial status hearings was scheduled. The judge’s clearance rate was 54.4%, approximately 30-50% lower than other judges. The delays involved child custody, childcare, and child support matters, contested divorces, and other family-related matters. In some instances, the Commission noted actual or potential harm to litigants, including particularly vulnerable individuals such as children.

The delays appear to have noticeably increased in the late spring and summer of 2020, when the judge assumed responsibility for the domestic relations calendar, especially after the court resumed hearings in a virtual environment due to the pandemic. The delays significantly worsened in or around late fall 2020 and into 2021.

The Commission found that the judge had reason to believe that he was experiencing increased health issues that were interfering with his duties, including causing issues during court hearings as early as the fall of 2020. However, he did not disclose his medical condition to court leadership until approximately May 2021, request assistance, or notify court leadership of the extent of the delays. The Commission also found that other judges, including judges in leadership, and staff were aware of “red flags” about the judge’s performance but, although they took some action, “those steps were not sufficient to protect the public until after the Commission made inquiries and the judge agreed to take a pause in judicial responsibilities.” The Commission concluded that the challenges of the pandemic “led to a breakdown in the court’s internal processes that periodically assess judicial workloads and calendar activity.”

The Commission described the steps the court had taken to eliminate the judge’s backlog. In addition, to assure the public that these matters would be “addressed differently in the future,” the Commission explained that the court has reinstated internal processes that had been temporarily paused during the pandemic, will enhance oversight and monitoring, and will provide training and guidance on the importance of reporting to and transparency with the Commission if a judge has a medical issue that “may require monitoring, accommodations of disabilities, or action to avoid unnecessary challenges or harm to the public.”

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