Buckson, Matter of

• Decision Date: 02 October 1992
• Citation: 616 A.2d 327
• Parties: In the Matter of the Honorable David P. BUCKSON, a Judicial Officer. . Submitted:
• Court: Delaware Court of the Judiciary

Page 327

616 A.2d 327

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

Delaware Court on the Judiciary.

Submitted: Oct. 2, 1992.

Decided: Dec. 4, 1992.

On motion by Respondent that his counsel, conditionally appointed by the Court, be compensated at State expense. DENIED.

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

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

Michael F. Foster and John L. Reed, Wilmington, for the Dept. of Justice.

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:

The issue before the Court on the Judiciary (the "Court") is whether David P. Buckson (the "Respondent") is entitled to have the State compensate his attorney for defending him against charges of judicial misconduct in connection with proceedings before the Court in which Respondent was removed from office and censured for judicial misconduct. In re Buckson, Del.Jud., 610 A.2d 203 (1992) (hereafter referred to as the "Opinion and Order" or as "Buckson"). Respondent moves for such payment pursuant to Supreme Court Rule ("Supr.Ct.R.") 68(e). The motion is hereby DENIED. ¹

FACTS

The facts are set forth in the Opinion and Order and will not be repeated in full, but a brief summary is necessary for purposes of this decision.

From May 1975 until April 30, 1992, Respondent was an Associate Judge of the Family Court of the State of Delaware. As such, he was bound by the Canons of The Delaware Judges' Code of Judicial Conduct (the "Code"). On April 1, 1992, Respondent was charged with violating various provisions of Canon 1 and Canon 7 of the Code because of certain political activities.

Respondent first publicly announced at a press conference on March 30, 1992, his intent to pursue the Republican gubernatorial nomination, which press conference and the ensuing media coverage prompted Justice Henry R. Horsey, the then acting Chief Justice, ² to contact Respondent on March 31, 1992. Respondent informed Justice Horsey that the article was true and correctly reported his intentions. On April 1, 1992, Chief Judge Vincent J. Poppiti of the Family Court instituted an action against Respondent in the Court on the Judiciary. The complaint charged Respondent with violations of Canons 1 and 7 of the Code. Respondent was directed to retire or resign from the Family Court before pursuing his political objectives any further and was directed not to sit on any cases while this proceeding was pending. Respondent refused to resign or retire and continued to pursue the Republican nomination while remaining a Judge of the Family Court.

On April 9, 1992, Respondent held a second news conference. At that conference he reiterated that he desired to become Governor and that he did not intend to retire prior to securing the nomination. He further stated that he was no longer hearing Family Court cases. Buckson, 610 A.2d at 212. Because Respondent intended to secure the endorsement of the Republican Convention for the gubernatorial nomination on May 9, 1992, it was necessary for the Court to expedite the proceeding, and the Court did so, as shown by the procedural history of the case set forth in the Opinion and Order. Id. at 208-12.

When a complaint is filed with the Court on the Judiciary, the Chief Justice may direct the Preliminary Investigatory Committee (the "Committee") to investigate any alleged judicial misconduct. After conducting an investigation, the Committee files a written report with the Court. In the present case, this was done and the Committee's report concluded that Respondent's political activities constituted probable cause to believe that he may be subject to censure, suspension, removal, or retirement under Article IV, § 37 of the Delaware Constitution ("Art. IV, § 37"). Upon receiving the report of the Committee, the Chief Justice appointed a Board of Examining Officers (the "Board") pursuant to Court on the Judiciary Rule ("Ct.Jud.R.") 5(a).

On April 8, 1992, pursuant to Ct.Jud.R. 6, the Board issued Respondent an order to show cause why he should not be disciplined and directed him to appear at a hearing on April 14, 1992. The order informed him of his rights and duties pursuant to Ct.Jud.R. 7(d), which rule provides, in part, that a respondent "must be represented by counsel and if he is not represented by counsel of his choice, the Board shall appoint counsel to represent him at all stages of the proceedings before it." The order also advised Respondent that he was required to notify the Board before 4:00 p.m. on April 10, 1992, if he intended to invoke Supreme Court Rule 68 which authorizes the appointment of private counsel for officers of the State in certain defined circumstances. Supr.Ct.R. 68(a) provides:

(a) Petitions for Appointment. A public officer or employee of the State named as a defendant in a civil or criminal action brought in a court of the State of Delaware or in the United States District Court for the District of Delaware for acts arising out of his employment by the State may petition for appointment of counsel; provided, however, that a complaint filed in the Court on the Judiciary shall not be deemed a "civil or criminal action brought in a court of the State of Delaware" unless and until the Court on the Judiciary shall have appointed an Examining Board under Rule 5 of the said Court in connection with such complaint. A petition for appointment of counsel shall be verified by the petitioner and shall state (1) the caption of the action against him, (2) the name of the court in which the action was brought, (3) the nature of the claim against the petitioner, (4) facts supporting the petitioner's claim that the action against him arises out of his employment with the State, and (5) if appointment of private counsel is sought, the reasons why the Department of Justice, in a civil action, or the public defender, in a criminal action, is unable to provide the petitioner representation. ³

Respondent advised the Board that he was unable to retain an attorney prior to April 14 and elected not to appear at the hearing in person or by counsel. The hearing proceeded in his absence and a report was drafted. Respondent received the draft on April 15 and had until April 20 to submit exceptions to it. The Board's final report was due on that date.

Prior to the filing of the final report on April 20, Thomas Herlihy, III, Esquire, informed the Court that Respondent wished to retain his services and that a petition for his appointment pursuant to Supreme Court Rule 68 would follow. The petition was filed later that day and was deficient in at least three respects. First, the petition was not filed in a timely manner since this Court's April 7, 1992 Order clearly established April 10, 1992 as the deadline for a Rule 68 petition. Second, the petition failed to allege any facts supporting petitioner's claim that the action against him arises out of his employment with the State. Supreme Court Rule 68(a)(4) expressly requires such facts to be set forth in the petition. Third, the petition raised serious "concerns regarding the issue of the ultimate entitlement of appointed counsel for respondent to be compensated or reimbursed at State expense...." Buckson, 610 A.2d at 212. Nevertheless, the urgency of the matter prompted the Court to appoint Mr. Herlihy as counsel for the Respondent, but the Court imposed several conditions upon the appointment so as to preserve the unresolved issues for resolution at a later date. The April 21, 1992 Order provides, in part:

(4) Thomas Herlihy, III is hereby appointed as counsel for respondent, but such appointment is conditional in that: (i) the expedited nature of this proceeding requires that he be empowered to act as counsel for respondent within the time limitations established; [and] (ii) no determination is made or implied that such counsel is entitled to any compensation or reimbursement of expenses at State expense....

Id. (emphasis supplied). Respondent and his attorney elected to proceed with the matter on such conditional basis.

In its April 30, 1992 Order, the Court found Respondent's continuing political activity to be "unethical, deplorable, irresponsible, [and] demeaning of a judicial office." The Court concluded that Respondent failed to observe and maintain the high standards of conduct required of judges and that he jeopardized the integrity and independence of the judiciary. Pursuant to Art. IV, § 37 of the Constitution and Ct.Jud.R. 9(c)(5), the Court censured Respondent for violating various provisions of Canons 1 and 7 of the Code and ordered him removed from the office of Associate Judge of the Family Court of the State of Delaware. Buckson, 610 A.2d at 225-28.

APPOINTMENT OF COUNSEL FOR STATE OFFICERS AND EMPLOYEES

Respondent now seeks to have the State compensate Mr. Herlihy pursuant to Supr.Ct.R. 68(e), which provides as follows:

(e) Costs and Attorneys Fees.

(1) Private counsel appointed under this rule shall be compensated for their services at a rate which is ordinary and usual in comparable cases in this jurisdiction and which is in accord with the applicable principles of Canon 2, Disciplinary Rule 2-106, Code of Professional Responsibility. Whenever appointed counsel prosecutes compulsory or permissive counterclaims or cross-claims, he or she shall obtain the express consent of his or her client to do so and said counsel shall apportion his or her fees for such counterclaims or cross-claims. The public officer or employee whom said counsel represents shall be responsible for such apportioned fees and expenses unless the appointing court, for good cause shown, shall otherwise order.

(2) Private counsel appointed under this rule shall be reimbursed for costs incurred in representing a state officer or employee at a rate which is...