Buckson, Matter of

• Decision Date: 29 April 1992
• Citation: 610 A.2d 203
• Parties: In the Matter of the Honorable David P. BUCKSON, a Judicial Officer. . Submitted:
• Court: Delaware Court of the Judiciary

Page 203

610 A.2d 203

In the Matter of the Honorable David P. BUCKSON, a Judicial Officer.

Delaware Court on the Judiciary.

Submitted: April 29, 1992.

Decided by Order: April 30, 1992.

Opinion: July 7, 1992.

Thomas Herlihy, III, Herlihy, Harker & Kavanaugh, Wilmington, for respondent.

Howard M. Handelman, Bayard Handelman & Murdoch, Wilmington, appointed as Presenter.

Before VEASEY, C.J., HORSEY, MOORE, WALSH, and HOLLAND, JJ., ALLEN, Chancellor, and RIDGELY, President Judge, constituting the Court on the Judiciary.

VEASEY, Chief Justice:

This matter is before the Court on the Judiciary (the "Court"), for determination of several issues arising out of charges of alleged misconduct filed against the respondent, the Honorable David P. Buckson, an Associate Judge of the Family Court of the State of Delaware ("Judge Buckson" or "respondent"). The conduct in question involves political activities of Judge Buckson in his attempt, without first resigning his judicial office, to seek the endorsement of his party convention for the nomination for the office of Governor of the State of Delaware. Respondent has been an Associate Judge of the Family Court of the State of Delaware for Kent County since May 1975. Although his 12-year term has expired, he has held that office in hold-over status pending action by the Senate on a gubernatorial nomination to fill the office presently held by him. ¹

The Preliminary Investigatory Committee (the "Committee") of the Court found, on April 6, 1992, pursuant to Rule 3(b) of the Rules of the Court on the Judiciary ("Ct.Jud.R."), that the Court has jurisdiction in the matter and found probable cause to believe that respondent may be subject to censure, suspension, removal, or retirement under Article IV Section 37 of the Delaware Constitution. Thereupon, the Court entered an order on April 7, 1992 (the "April 7 Order"), appointing Vice Chancellor William B. Chandler, III as the Board of Examining Officer (the "Board"), pursuant to Ct.Jud.R. 5(a). The Board held an evidentiary hearing on April 14, 1992, and issued its Final Report on April 21, 1992 (the "Final Report"). Respondent had notice and an opportunity to be heard before both the Committee and the Board, but he chose not to attend and was not represented by counsel before the Committee or at the evidentiary hearing before the Board. ² The record now before the Court includes the testimony, exhibits, and other proceedings before the Board as set forth in the transcript of the April 14, 1992, hearing (the "Hearing Transcript").

The Board in its Final Report found that the clear and convincing evidence ³ showed After briefing and oral argument by counsel for respondent and the Presenter, a unanimous decision was announced by this Court on April 30, 1992, which decision is set forth in the Order entered at 12:00 noon EDT on that date (the "April 30 Order") (attached hereto as Appendix A). See Ct.Jud.R. 9(c)(5). This is the formal Opinion of the Court, more fully explicating the issues decided in the April 30 Order.

                that Judge Buckson's activities made him a candidate for non-judicial office and that such activities constituted intentional violations of Canons 1, 7A(2), 7A(3) and 7C of the Delaware Judges' Code of Judicial Conduct (the "Code"). 4  The Board concluded that respondent should be removed from office, publicly censured for his actions, and ordered to return all monies received by him from the State as a judicial officer from March 31, 1992, until the date of his removal.  The Board rejected respondent's contention that he was denied procedural due process
                

The Court in its April 30 Order found that the record establishes by clear and convincing evidence that respondent intentionally violated Canons 1, 7A(2), 7A(3), and 7C of the Code and that such misconduct was "persistent" and "wilful" as proscribed by Article IV Section 37 of the Delaware Constitution. The Court ordered that respondent be removed from office and cease all judicial activities as of noon April 30, 1992. The Court found that respondent's continuing misconduct was unethical, deplorable, and irresponsible. The Court further found that respondent's behavior was demeaning of a judicial office in that it failed to observe and maintain the high standards of conduct required so that the integrity and independence of the judiciary may be preserved. Accordingly, respondent was publicly censured. The Court did not, however, find that there was clear and convincing evidence to support any forfeiture, including restoration of monies paid to respondent from March 31, 1992, to the date of the April 30 Order.

I. THE APPLICABLE PROVISIONS OF THE CODE, THE CONSTITUTION,

AND THE RULES OF COURT

The central issue on the merits involves the proper interpretation and application of Canons 1 and 7 of the Code, ⁵ which provisions state, in pertinent part, as follows:

CANON 1

A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

CANON 7

A Judge Should Refrain from Political Activity

Inappropriate to His Judicial Office

A. A judge should not:

* * * * * *

(2) Make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(3) Solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend * * * * * *

political gatherings, or purchase tickets for political party dinners, or other functions;

C. A judge should not engage in any other political activity except on behalf of measures to improve the law, the legal system or the administration of justice.

The authority and mechanism for determining whether or not a judge has violated the Code and the sanctions for any such violation are established in Article IV, Section 37 of the Delaware Constitution. That section provides, in pertinent part, as follows:

§ 37. Court on the Judiciary.

Section 37. A court on the Judiciary is hereby created consisting of the Chief Justice and the Associate Justices of the Supreme Court, the Chancellor, and the President Judge of the Superior Court.

Any judicial officer appointed by the Governor may be censured or removed or retired by the Court on the Judiciary as herein provided.

A judicial officer may be censured or removed by virtue of this section for wilful misconduct in office, wilful and persistent failure to perform his duties, the commission after appointment of an offense involving moral turpitude, or other persistent misconduct in violation of the Canons of Judicial Ethics as adopted by the Delaware Supreme Court from time to time....

No judicial officer shall be censured or removed or retired under this section unless he has been served with a written statement of the charges against him, or of the grounds of his retirement, and shall have had an opportunity to be heard in accordance with due process of law. The affirmative concurrence of not less than two-thirds of the members of the Court on the Judiciary shall be necessary for the censure or removal or retirement of a judicial officer. The Court on the Judiciary shall be convened for appropriate action upon the order of the Chief Justice, or upon the order of any other three members of the Court on the Judiciary. All hearings and other proceedings of the Court on the Judiciary shall be private, and all records except a final order of removal or retirement shall be confidential, unless the judicial officer involved shall otherwise request.

Upon an order of removal, the judicial officer shall thereby be removed from office, all of his authority, rights and privileges as a judicial officer shall cease from the date of the order, and a vacancy shall be deemed to exist as of that date....

The Court on the Judiciary shall have:

* * * * * *

(b) the power to adopt rules establishing procedures for the investigation and trial of a judicial officer hereunder.

The Court has adopted rules which provide certain procedures and time periods within which the Committee, the Board, and the Court are required to perform their respective functions. See, e.g., the following Rules of the Court: Rule 3(d)(2) (Committee shall determine jurisdiction within 20 days); Rule 3(d)(4) (pursuant to Supreme Court Rule ("Supr.Ct.R.") 68(a) counsel will not be appointed for a judicial officer at state expense; failure of judicial officer to answer complaint within 15 days deemed to be admission); ⁶ Rule 3(d)(5) (Committee shall file its written report within 40 days of docketing complaint); Rule 6(b) (hearing before the Board to be held at earliest practicable time, not later than 60 days after appointment of the Board, and Board's order to show cause shall be served on respondent at least 40 days before hearing date); Rule 6(c) (respondent shall file answer to order to show cause within 15 days); Rule 7(d) (respondent must be represented by counsel before the Board and if he is not represented by counsel of his choice, the Board shall appoint counsel to represent him at all Notwithstanding such provisions, Rule 10(f) provides that time periods may be extended by the Chief Justice upon motion for good cause shown, and Rule 10(i) provides that any rule may be suspended for a specific case by special order of the Court. Rule 10(i) was specifically invoked by the Court in various orders which shortened substantially several of the time periods. ⁷ The need to expedite the proceedings was found to exist because, inter alia: the political activity in question had commenced on or about March 30, 1992; that activity was continuing; and Judge Buckson stated that he intended to...