Complaint Against Grady

• Decision Date: 30 May 1984
• Docket Number: No. 82-2234-J,82-2234-J
• Citation: 348 N.W.2d 559,118 Wis.2d 762
• Parties: In the Matter of the Complaint Against Judge Warren A. GRADY, Circuit Court Judge, Branch 2, Ozaukee County, Wisconsin.
• Court: Wisconsin Supreme Court

Page 559

348 N.W.2d 559

118 Wis.2d 762

In the Matter of the Complaint Against Judge Warren A. GRADY, Circuit Court Judge, Branch 2, Ozaukee County, Wisconsin.

No. 82-2234-J.

Supreme Court of Wisconsin.

Argued Jan. 4, 1984.

Decided May 30, 1984.

[118 Wis.2d 764] Daniel W. Hildebrand (argued), [118 Wis.2d 765] Ross & Stevens, S.C., and Natalie Smith, Madison, on brief, [118 Wis.2d 764] for the Judicial Commission of the State of Wisconsin.

[118 Wis.2d 765] William G. Bunk (argued), Patrick R. Griffin and Bunk, Doherty & Griffin, S.C., West Bend, on brief, for the Honorable Warren A. Grady.

PER CURIAM.

Judicial disciplinary proceeding; reprimand imposed.

We review, pursuant to sec. 757.91, Stats., the findings of fact, conclusions of law and recommendation of the judicial conduct panel in the judicial disciplinary proceeding brought by the Judicial Commission against the Honorable Warren A. Grady, circuit judge for Ozaukee county, for his alleged persistent failure to perform official duties. The panel has recommended that Judge Grady be reprimanded for his persistent failure to be prompt in the performance of his official duties, his persistent failure to organize his court for the prompt disposition of judicial business, and his persistent failure to decide matters within the time period provided by sec. 757.025, and to file affidavits pursuant to that statute accurately reporting the status of undecided cases. The panel recognized that Judge Grady's delay in deciding cases is explained in part by the substantial number and increased variety of cases assigned to him following court reorganization in 1978. The panel also noted that during his twenty-one years as a county and circuit judge, Judge Grady has earned the reputation of being a hard-working, fair, and honorable judge and that he is now fully and timely performing his official duties established by sec. 757.025, Stats. While we do not accept all of the panel's conclusions, we agree that a reprimand of Judge Grady is appropriate discipline under the circumstances of this case.

The Judicial Commission's complaint, as amended, charged Judge Grady with the following judicial misconduct: ¹

(1) the aggravated and persistent failure to be prompt in deciding cases and to organize his court for the prompt and efficient disposition of judicial business, alleged to constitute a willful violation of a rule of the Code of Judicial Ethics, SCR 60.01(4) and 60.17, sec. 757.81(4)(a), Stats.;

(2) the willful or persistent failure to render decisions in cases submitted to him in final form for decision within 90 days, plus an additional 90-day period of (3) the willful and persistent filing of forms purporting to be affidavits required by sec. 757.025, Stats., claiming entitlement to salary despite his persistent failure to render decisions within the 90-day time period specified in that statute or certify in the record of applicable cases his inability to do so, alleged to constitute gross personal misconduct, SCR 60.13, a willful violation of a rule of the Code of Judicial Ethics, sec. 757.81(4)(a), and a willful or persistent failure to perform official duties, sec. 757.81(4)(b).

extension, as provided in sec. 757.025, Stats., alleged to constitute a willful or persistent failure to perform official duties, sec. 757.81(4)(b);

The Judicial Commission subsequently withdrew by stipulation all allegations of gross personal misconduct and willful violation of the rules of the Code of Judicial Ethics. There remained the allegations that the judge's conduct constituted judicial misconduct as a willful or persistent failure to perform official duties.

This judicial disciplinary proceeding was before the panel, consisting of the Honorable John A. Decker, Honorable Charles P. Dykman and Honorable John P. Foley, Presiding Judge, on stipulated facts, supplemented by testimony presented at a hearing. We will accept the panel's findings of fact unless those findings are clearly erroneous. This is the same standard of review expressed in prior judicial disciplinary proceedings that a panel's findings of fact must be accepted unless they are against the great weight and clear preponderance of the evidence. In Matter of Complaint Against Seraphim, 97 Wis.2d 485, 509, 294 N.W.2d 485 (1980), Disciplinary Proceedings Against Guay, 101 Wis.2d 171, 175, 303 N.W.2d 669 (1981). See, Robertson-Ryan v. Pohlhammer, 112 Wis.2d 583, 592 fn., 334 N.W.2d 246 (1983).

The panel made the following findings of fact consistent with a stipulation of the parties:

Between 1979 and 1982 Judge Grady's decision in each of 21 cases over which he presided was made more than six months after the case had been submitted to him in final form for decision. ²

As of June 3, 1982, there were at least 21 cases awaiting decision by Judge Grady, 14 of which had remained under submission for more than six months.

Judge Grady had no system for keeping track of cases so that those under submission for 90 days or more could be brought to his attention, although he initiated such a system after the Judicial Commission filed its complaint in this disciplinary proceeding.

Each month of 1979 through 1982 Judge Grady signed and filed a form reciting, in part, "Being duly sworn, upon oath ... that, pursuant to section 757.025 of the statutes, ³ no matter or cause which was submitted in final form to me exceeds the time limit and that salary is due me for the above month." None of those recitations was truthful and accurate as to causes or matters submitted in final form to Judge Grady's court remaining undecided beyond the time period provided by sec. 757.025 As of August 25, 1983 Judge Grady had no cases submitted in final form which remained undecided for 90 days or longer, and, since February, 1983, Judge Grady has been prompt in the performance of his duties and has organized his court and supervised the personnel under his charge so that the business of his court is dispatched with promptness and convenience.

Stats. Judge Grady knew that he had not completed decisions within 90 days after submission in final form and that he had not filed any certificates stating that he was unable to complete a decision in any given case within a 90-day period.

Judge Grady and his court reporter, David Wahlberg, testified before the panel that at the time Judge Grady signed the affidavit forms each month, Wahlberg, as notary public, did not administer an oath to Judge Grady prior to his signing the affidavit forms, although Wahlberg notarized each of those forms. On the basis of that uncontroverted testimony, the panel found that Judge Grady was not under oath when he executed the forms and that, although purporting to be affidavits, the forms were not affidavits. The panel also found that since March, 1983, Judge Grady has executed and filed affidavits under oath in compliance with sec. 757.025, Stats.

The panel concluded, based on the parties' stipulation, that Judge Grady's failure to be prompt in deciding cases and to organize his court so that its business could be dispatched with promptness and convenience, when measured against the standards set forth in SCR 60.01(4), Code of Judicial Ethics, constituted a persistent failure to perform official duties, defined as misconduct in sec. 757.81(4)(b), Stats. The panel also concluded that Judge Grady engaged in misconduct, as defined in that statute, by persistently failing to perform his official duties to decide matters within the time period established by sec. 757.025, and to file affidavits pursuant to that statute in order to draw his salary. This conclusion was based on the panel's determination that sec. 757.025, establishes an official duty of a judge to decide a matter within 90 days of its submission to the court in final form or, if unable to do so, to so certify on the record, thereby extending for one additional period of 90 days the time for deciding the matter, as well as an official duty of a judge to file an affidavit of compliance with that statute in order to draw any salary.

The parties entered into a second stipulation setting forth facts in mitigation of Judge Grady's conduct. On the basis of that stipulation, the panel made the following findings of fact:

Judge Grady's workload during the years 1979 through 1982 was heavy, ⁴

As a result of court reorganization in 1978, Branch III in Ozaukee county was vacant from August 1, 1978, to July 31, 1979, during which time all cases docketed in that branch were assigned to Judge Grady,

Implementation of judicial rotation by Supreme Court Rule 70.23(3) and court reorganization resulted in Judge Grady's presiding over cases of an increasingly varied nature and required him to complete cases which had been assigned to judges of the former 24th judicial circuit,

Judge Grady had no law clerks, interns, secretary, fulltime clerk or commissioners working in his court,

Judge Grady's output of judicial business for calendar years 1979 through 1982 was substantial,

During the relevant time period, Judge Grady exercised discretion in selecting the order in which he decided cases and On the basis of these stipulated facts the panel found that during his 21 years as a judge of county and circuit courts, Judge Grady has earned the reputation of being a hard-working, fair and honorable judge, that he had a heavy caseload assignment during the years 1979 through 1982, and that he earned his salary during those years. The panel also concluded that Judge Grady is remorseful for his conduct, has publicly apologized for the inconvenience and hardship caused to litigants and the bar by his failure to perform his official duties, has executed and filed affidavits under oath in compliance with sec. 757.025, Stats., since March of 1983, and has given his complete cooperation to the panel in its conduct of the disciplinary proceedings.

assigned priority status to cases he felt required early decisions.

As...