Prejudicial delay

Based on stipulations and an agreement that included the justice’s retirement, the California Commission on Judicial Performance publicly admonished an appellate court justice for (1) delays in deciding approximately 200 cases over a 10-year period and (2) failing to properly exercise his authority as administrative presiding justice to prevent chronic delays in cases assigned to other justices on the court.  In the Matter Concerning Raye, Decision and order (California Commission on Judicial Performance June 1, 2022).  The justice retired effective June 1 and agreed not to seek or hold judicial office in the future, except that, “in the interest of justice,” he may conclude matters previously assigned to him that cannot be completed by June 1 and that “would place an undue burden on the other justices if they were reassigned.”  The justice also may respond to any requests from the court for information about cases assigned to him before his retirement.

The justice had been the Administrative Presiding Justice of the Third District Court of Appeal since 2010. 

The Commission noted that from 2011 to 2021, the justice authored opinions in over 1,200 matters, a substantial percentage of which were decided within a year after briefing was completed.  However, it emphasized that, during that same period, “a significant number of cases languished for years,” and more than a year passed between the completion of briefing and the issuance of an opinion or dismissal in approximately 200 matters assigned to him.

  • In the justice’s oldest completed case, the parties dismissed the matter when 7 years and 9 months had passed after it was fully briefed.
  • 2 of his cases were delayed between 6 and 7 years; 5 between 5 and 6 years; 17 between 4 and 5 years; 29 between 3 and 4 years; and 45 between 2 and 3 years.
  • In the justice’s oldest pending case, a criminal matter with youthful offenders, the case has been fully briefed for 8 years and 7 months.

In the Third District, the court does not schedule oral argument or ask the parties if they want to waive oral argument until the justice assigned to the case has written a draft opinion on which at least 2 justices on the panel agree.  The delays at issue in the discipline case were “pre-submission,” that is, between the case being fully briefed and the oral argument being heard or waived or the case being dismissed.

Although acknowledging that the Third District has a high volume of cases, the Commission found that the justice’s delays could not be “attributed solely to an overburdened court” as “virtually all” of the other justices on the court did not have a similar pattern of delay.  Moreover, it noted that, after an inquiry from the Commission, the percentage of cases assigned to the justice that were decided more than a year after being fully briefed declined to approximately 7% from 14-35%, suggesting that the justice could have decided matters in a more timely manner.  The Commission emphasized that the judge “failed to prioritize efforts so that older cases could be resolved before work began on newer ones.”  The Commission found that the evidence did not show that the justice had intentionally disregarded his duties but noted that he had been “aware of his growing backlog of cases.” 

The justice had also known that, throughout the time he served as the administrative presiding justice, “there were chronic delays in cases assigned to some of the other justices on the court.  From January 2011 through March 2021, the decisions in 1,861 matters were delayed for more than one year from the completion of the briefing on the appeal; 768 of those cases were pending for more than two years after the completion of the briefing in the case.”

Although as administrative presiding justice the justice had several times circulated target standards for the timely processing of appeals, “the standards were often excused.”  He “took various steps to reassign cases or pause assignments to chambers that were particularly backlogged,” but, as he knew, “these steps did not resolve the chronic delays,” and at times, “burdened the justices on the court who had fewer older cases.”  The Commission noted that, although the justice repeatedly discussed the issue of delay with the other justices, he did not “propose and advocate changes to court procedure that would ensure the prompt resolution of older cases.”  As a result, it found, he did not fulfill his administrative responsibility and failed “to provide a forum for the expeditious resolution of appellate disputes.”

The Commission further found that the justice’s “conduct caused prejudice to civil litigants and criminal defendants.”  It explained:

Prejudice can occur in civil cases by parties suffering from uncertainty as disputes remain unresolved, or the payments of money judgments are delayed.  In criminal cases, appellants are prejudiced if they have served all or part of a reversed sentence, or when faded memories or lost evidence hamper resentencing hearings or retrials.  Prejudice can also manifest as “increased anxiety, mistrust, hopelessness, fear, and depression” that “results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed — the appellate process.”

Citing the Commission’s “confidential investigation and stipulated findings” about case delays in the Third District, the Chief Justice of California has created an appellate caseflow workgroup “to review Courts of Appeal workflow, policies, procedures, and case management processes to promote transparency, accountability, and efficiency in rendering timely judgments.”

“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.”


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.”