Barrett, Matter of

Decision Date20 May 1991
Citation593 A.2d 529
PartiesIn the Matter of the Honorable Margaret L. BARRETT, a Judicial Officer. . Submitted:
CourtDelaware Court of the Judiciary

Joseph A. Hurley, Wilmington, for respondent.

Richard Allen Paul, E.I. duPont de Nemours & Co., Inc., Wilmington, assigned as presenter.

Before CHRISTIE, C.J., HORSEY, MOORE, WALSH and HOLLAND, JJ., and ALLEN, Chancellor, and BIFFERATO, Judge (sitting by designation pursuant to Del. Const. art. IV, § 37) constituting the Court on the Judiciary.

CHRISTIE, Chief Justice:

The Chief Magistrate instituted this proceeding in the Court on the Judiciary on August 15, 1990, pursuant to art. IV, § 37 of the Delaware Constitution 1 and the Rules of Procedure of the Court on the Judiciary ("Rules") in which he alleged that the respondent, Margaret L. Barrett, has engaged in various acts of judicial misconduct. The Preliminary Investigatory Committee ("Committee") of the Court filed a report on October 17, 1990 which contained a finding of probable cause that Judge Barrett may have violated the Canons of the Delaware Judges' Code of Judicial Conduct ("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 April 11, 1991 and found that Judge Barrett had violated Canons 1, 2(A), 3(B)(1), 3(B)(2), and 7(A)(3) of the Code 2 and that some of her actions constituted wilful misconduct under the Delaware Constitution. The Board recommended that Judge Barrett be suspended from office for a period of six months and that she be publicly censured.

Judge Barrett filed exceptions to the Board's report on April 15, 1991. The Court on the Judiciary ordered further proceedings before the entire Court. The matter was heard upon oral argument on May 20, 1991.

After consideration of the arguments and evidence presented in this case, we uphold the report of the Board and find that some of Judge Barrett's actions constitute wilful misconduct in office. We adopt the Board's recommendation of suspension for six months and public censure as the appropriate sanctions for the instances of judicial misconduct found to have been committed.

I.

Based upon the evidence presented at a hearing on February 19, 1991 and on the parties' post-hearing memoranda and supplement, the Board, made the following findings of fact concerning the various allegations against Judge Barrett.

Margaret Barrett has been a Justice of the Peace for the State of Delaware since June 19, 1982, presiding in Kent County. At the time of her appointment she was a widow with four daughters ranging from eight to twenty years of age.

Prior to her appointment, Judge Barrett was employed as a title searcher operating under the business name of Alpha Services. In addition, she from time to time taught a paralegal real estate course at both Wesley College and Delaware Technical and Community College. Judge Barrett terminated her association with the business upon her confirmation. Also prior to her appointment as a Justice of the Peace, Judge Barrett held the position of Mortgage Commissioner for Kent County. Because the Mortgage Commissioner position is ministerial and posed no conflict of interest with the duties of a Justice of the Peace, Judge Barrett continued to hold the position during her tenure as a Justice of the Peace. In February, 1990 she resigned as Mortgage Commissioner. No conflict arose between her duties in the two positions. 3 After her appointment, the respondent performed six gratuitous title searches, three for police officers and three for Justice of the Peace Court personnel. The police officers had appeared before her both before and after the title searches were performed for them. Judge Barrett said that her motive in doing the gratuitous title searches was a desire to remain involved in a type of work which she enjoyed and which was the subject matter of a course she taught. Judge Barrett was particularly interested in doing searches for properties which had interesting or challenging histories. She did not feel that such services compromised her position as a Justice of the Peace when the police officers appeared in her court in later proceedings. The record does not show that any actual conflict arose as a result of the respondent having rendered gratuitous services to individuals who appeared before her in their professional capacity as police officers.

Subsequent to her appointment, Judge Barrett frequently gave tickets to political fund-raising events to Justice of the Peace Court personnel including other judicial officers. She received the tickets from her then-fiance who was a lobbyist for ConRail and CSX Railroads. Judge Barrett did not seek contributions in exchange for the tickets, but she attended "a lot of political functions" during the years 1982 through 1988. She was aware that the Delaware Judges' Code of Judicial Conduct prohibits attendance at such functions but considered enforcement of the rule to be lax in Kent County. Judge Barrett's disregard for the Code's prohibition against political activity may be attributed in part to a lack of training new personnel by the Justice of the Peace Court, but it is clear that she failed to abide by the requirements of the Code.

Between June 30, 1986 and January 14, 1991 the Deputy Chief Magistrate recorded that the respondent was tardy in reporting to work more than thirty times. One of the respondent's coworkers estimated that Judge Barrett is five to ten minutes late in starting her court shift a majority of the time. The respondent does not dispute the fact that she tends to be tardy. Her general practice is to call the court if she is going to be more than five or ten minutes late. A formal policy in the Justice of the Peace Court is that a judge must remain on duty until the judge on the following shift arrives. Lengthy delay in the arrival of one judge interferes with the ability of another judge to leave at the end of a shift. However, a judge may leave the court briefly uncovered if he knows the next judge is to arrive soon.

On November 17, 1986 Judge Barrett was presiding at Justice of the Peace Court No. 7 when the Dover police brought in a defendant on an outstanding capias for a traffic ticket. The matter was delayed beyond the end of Judge Barrett's shift while the State Police checked for other outstanding tickets. A police officer mentioned that the defendant had jewelry for sale. The defendant produced jewelry which was examined by court staff. Judge Barrett purchased some small items as did other court employees. Because the respondent's shift had ended, the defendant's case was handled by another judge. The Board did not determine whether the defendant knew that one of his customers was a judge. Nor did it determine whether the purchase was a legitimate arms-length transaction at a reasonable price or a bargain designed to win favor with a judge on duty. Nevertheless, the transaction of business with a defendant in a courthouse, during a court session, by court personnel was highly improper. The respondent, as a judicial officer, has the obligation to set an appropriate standard of behavior for other court personnel. She failed to do so in this instance.

II.

The Court on the Judiciary was created by amendment of the Delaware Constitution on April 24, 1969. 4 Its role is to administer the Delaware Judges' Code of Judicial Conduct which governs the conduct of all judges of this State. 5 Its power includes the ability to censure or remove a judicial officer for "... wilful misconduct in office [or] wilful and persistent failure to perform [her] duties ... or other persistent misconduct in violation of the Canons of Judicial Ethics." 6 Because the final report of the Board of Examining Officers has the force and effect of a master's report in the Court of Chancery, Ct.Jud.R. 9(a), this Court is obliged to conduct its own evaluation of the evidence adduced by the Board and to reach its own conclusion as to any sanctions which may be appropriate in a case. In the Matter of Rowe, Del.Jud., 566 A.2d 1001, 1006 (1989); In the Matter of Hopkins, Del.Jud., 566 A.2d 1011, 1014 (1989). The standard of proof in cases before this Court is clear and convincing evidence. Ct.Jud.R. 7(f). This standard requires more than a preponderance of evidence, but less than that required by a reasonable doubt standard. Rowe, 566 A.2d at 1006; Hopkins, 566 A.2d at 1014. This Court has held that the term "wilful misconduct" as used in art. IV § 37 of the Delaware Constitution

includes the improper or wrongful use of the power of [her] office by a judge acting intentionally, knowingly, voluntarily, or with gross unconcern for [her] conduct, which would bring the judicial office into disrepute. It is more than a mere error of judgment or an act of negligence.

Rowe, 566 A.2d at 1006. To find that a judicial officer has committed "wilful misconduct" in office does not require that we find bad faith as a necessary element. Id. It is sufficient that we find that a judge's actions

displayed what is deemed to be an intentional violation of written policies or procedure ... without due concern for the implications to the public ... and the judiciary as a whole.

Hopkins, 566 A.2d at 1015.

Under these standards, we agree with the Board that some of Judge Barrett's violations of the Code constituted wilful misconduct under art. IV, § 37 of the Delaware Constitution.

III.

In her exceptions to the Board's findings and at oral argument Judge Barrett raised several points. She raised these points not so much as defenses to the charges against her, but rather as mitigating factors for our consideration in determining appropriate sanctions for this case.

In regard to the gratuitous title searches the respondent claims that she had no monetary motive but merely sought to keep her skills current for the paralegal...

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