Rowe, Matter of

• Decision Date: 27 October 1989
• Citation: 566 A.2d 1001
• Parties: In the Matter of The Honorable William S. ROWE, Jr., a Judicial Officer.
• Court: Delaware Court of the Judiciary

Page 1001

566 A.2d 1001

In the Matter of The Honorable William S. ROWE, Jr., a Judicial Officer.

Delaware Court on the Judiciary.

Submitted Sept. 8, 1989.

Decided Oct. 27, 1989.

James S. Green, Connolly, Bove, Lodge & Hutz, Wilmington, for respondent.

Craig A. Karsnitz, Young, Conaway, Stargatt & Taylor, Georgetown, assigned as presenter.

Before CHRISTIE, C.J., HORSEY, MOORE, WALSH, and HOLLAND, JJ., ALLEN, Chancellor, and STIFTEL, President Judge.

CHRISTIE, Chief Justice:

This is a proceeding instituted in the Court on the Judiciary on December 27, 1988, pursuant to art. IV, § 37 of the Delaware Constitution ¹ and the Rules of Procedure of the Court on the Judiciary ("Rules") to inquire into charges of judicial misconduct brought against the respondent, William S. Rowe, Jr. The Preliminary Investigatory Committee ("Committee") of the Court filed a report on February 9, 1989 containing its conclusion that there is probable cause to believe that Judge Rowe may have violated the Canons of the Delaware Judges' Code of Judicial Conduct ("the Code") and engaged in wilful misconduct in violation of the Delaware Constitution. The Court then appointed a Board of Examining Officer ("Board"). The Board issued its report on June 7, 1989 and found that Judge Rowe had violated Canons 2 and 3 of the Code ² and that his actions constituted wilful misconduct under the constitution. The Board recommended that Judge Rowe be suspended from office for a period of six months and that he be publicly censured.

Judge Rowe filed exceptions to the Board's report on June 19, 1989. The Court on the Judiciary ordered further proceedings before the entire Court and appointed an attorney to present the arguments in favor of the Board's report. Ct.Jud.R. 9(c)(1). Briefs were filed by both the respondent and the presenter. The matter was heard upon oral argument on August 22, 1989. By further order of the Court, both parties then filed supplemental memoranda on the issue of whether the Court on the Judiciary has the authority to suspend a judicial officer pursuant to the powers vested in it by the Delaware Constitution. We conclude that the power to suspend is included in the express constitutional powers of removal, retirement, and censure which are granted to this Court in art. IV, § 37 of the Delaware Constitution.

We uphold the report of the Board and find that Judge Rowe's actions constitute wilful misconduct in office. We adopt the Board's recommendation of suspension for six months and public censure as the appropriate sanction for the instances of judicial misconduct found to have been committed.

Judge Rowe has been a justice of the peace for the State of Delaware since June, 1980, presiding in New Castle County, Delaware. On December 11, 1984, William S. Rowe, III ("defendant"), Judge Rowe's son, was arrested and charged by the Delaware State Police with driving under the influence of alcohol in violation of 21 Del.C. § 4177. No accident was involved and there was no personal injury or property damage. The arresting officer called Justice of the Peace Court No. 10 and informed Judge Rowe that his son had been arrested and charged with driving under the influence of alcohol. The police officer did not bring the defendant to Justice of the Peace Court No. 10 on the night of the arrest, but Judge Rowe told the officer to "do his duty" in regard to his son's situation.

The defendant was initially scheduled to be arraigned in Justice of the Peace Court No. 10 on December 22, 1984, a day Judge Rowe was also scheduled to hear cases in Court No. 10. On December 19, 1984, Judge Rowe sua sponte continued his son's arraignment until December 29, 1984, also a date that Judge Rowe would be sitting in Court No. 10. The defendant appeared at Court No. 10 for arraignment on December 27, two days earlier than scheduled. On that date, Judge Rowe, who was presiding, arraigned his son and entered an order permitting his son to elect to enter the State of Delaware First Offender's Program ("FOP"). At the time of the arraignment, there was no one present in the courtroom other than Judge Rowe and his son, the defendant. He also failed at that time to advise his son of the consequences of a subsequent conviction for the same offense.

At the time of his arrest, the defendant had contacted an attorney who spoke with the arresting police officer on the evening of the arrest. The arresting officer informed the defendant's attorney that he did not object to a finding of first offender status in this case, and the attorney advised the defendant to enter the FOP. The police officer marked the court copy of the summons "Yes" in the box marked First Offenders Eligible, and wrote a note in the margin stating: "Yes 1st offender." Thus, the summons presented to Judge Rowe at his son's hearing indicated that his son was eligible for the FOP.

Although he met all of the other requirements, this defendant was in fact not eligible for the FOP without a special Attorney General's waiver because his blood alcohol level was alleged to be above the maximum amount permitted for the FOP. At the time of the offense, it was not unusual for the State of Delaware, through the Attorney General's Office, to waive the blood alcohol level requirement so as to allow the case to proceed through the FOP. However, an Attorney General's waiver was not executed in this case.

When his son appeared for arraignment and enrollment in the FOP, Judge Rowe did not advise his son that a mandatory prison term would be imposed in the event of a conviction for a like offense within five years of the initial offense.

The son was again arrested in June, 1988 and charged with driving under the influence of alcohol. A trial was conducted on November 9, 1988 before Justice of the Peace Charles M. Stump. The defendant was convicted of the offense and a presentence hearing was ordered. The presentence hearing was held on December 16, 1988. The central question at the hearing was whether, in the 1984 proceeding before Judge Rowe, the defendant, Judge Rowe's son, had been provided with proper notice of the effect of another DUI conviction within five years of his entering the FOP.

During the hearing, a certified transcript of the defendant's arraignment on the prior (1984) DUI charge was entered in evidence. The transcript indicated that the defendant was arraigned and permitted to enter the FOP in December, 1984. The transcript failed to indicate that the defendant was advised of the penalties which he would face if he were to be convicted of a subsequent DUI charge within the five-year period. Judge Stump concluded that he was therefore obligated under Delaware law to sentence the defendant as a first offender.

Judge Rowe was called as a witness by the deputy attorney general at the 1988 hearing. He testified that he did not inform his son that a mandatory prison term would be imposed in the event of another DUI conviction within five years, either during the time between his son's arrest and the hearing, or at the hearing itself.

He also testified that he suggested that his son enter the FOP. The record revealed that Judge Rowe had signed the order in 1984 directing his son's entry into the FOP, and he had countersigned the consent form signed by his son.

Upon reading the transcript of the 1984 case and hearing the testimony of Judge Rowe, Judge Stump became concerned that Judge Rowe appeared to have acted in violation of the Delaware Judges' Code of Judicial Conduct. He notified Deputy Chief Magistrate Morris Levenberg of his concern, and Judge Levenberg subsequently filed a complaint against Judge Rowe in the Court on the Judiciary. The matter was referred to the Preliminary Investigatory Committee pursuant to Rule 3 of this Court.

In Judge Rowe's response to the allegations raised in the complaint, he contended that his son's arraignment was governed by the standard order of procedure followed in every other case where a person is similarly charged. He stated that he advised his son of the charge and penalty attached, his right to trial and his choice of courts. He also advised his son that he might qualify for the First Offender Program, provided he met the requirements. He stated that he found the traffic summons where the police officer had marked "Yes" as to the First Offenders Eligible and where he had written "Yes 1st offender" in the margin sufficient evidence to meet the eligibility requirement. He further stated, "[m]y principal motivation in arraigning my son was to be sure he was thoroughly impressed with the seriousness of his offense, not because I was in a position to give him any special advantage."

Judge Rowe further contended that his willingness to testify on his son's behalf at the 1988 trial was for "the sole reason that I was satisfied beyond any doubt he was not guilty of DUI as he was charged." He stated that the presiding judge was aware that he was to be called as a witness and was aware it was in a non-judicial role.

After reviewing the complaint and Judge Rowe's response, the Committee found that there was probable cause to believe that Judge Rowe's actions and involvement in his son's 1984 hearing may have violated Canons 1 and 2 of the Code and constituted wilful misconduct in office in violation of art. IV, § 37 of the Delaware Constitution.

Pursuant to the procedure outlined by the Rules of the Court on the Judiciary and by order of the Chief Justice, an Examining Board was then convened. An order was issued by the Board to Judge Rowe to show cause why he should not be censured, suspended, removed, or retired as a result of the findings of the Committee. Judge Rowe answered the order to show cause, denying all charges against him. A hearing was held on April 20, 1989.

Judge Rowe testified that on December 27, 1984, when his son appeared for arraignment and enrollment in the FOP, he "lectured" him regarding the seriousness of the offense, but...