O'Dea, In re, 92-196

• Decision Date: 11 February 1993
• Docket Number: No. 92-196,92-196
• Citation: 159 Vt. 590,622 A.2d 507
• Parties: In re Arthur J. O'DEA.
• Court: Vermont Supreme Court

Page 507

622 A.2d 507

159 Vt. 590

In re Arthur J. O'DEA.

No. 92-196.

Supreme Court of Vermont.

Feb. 11, 1993.

Lawrence Miller and Sarah M. Powell of Miller & Faignant, P.C., Rutland, for respondent.

Charles E. Finberg of Paul, Frank & Collins, Inc., Burlington, for Judicial Conduct Bd.

Before ALLEN, C.J., GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

PER CURIAM.

Superior Judge Arthur J. O'Dea (respondent) appeals a recommendation of the Judicial Conduct Board that he be publicly reprimanded for violating Canon 3 A(3) of the Code of Judicial Conduct. We concur with the Board's recommendation, and add the further sanction that Judge O'Dea be suspended from presiding in family court for a period of two years.

I.

The Judicial Conduct Board investigated three complaints brought separately against respondent, each charging that he lacked patience, dignity, or courtesy to litigants witnesses, and attorneys in his courtroom, violations of Canon 3 A(3) of the Code of Judicial Conduct. ¹ These complaints involved three contested cases, respectively Graf v. Graf, Greene v. Bordulis, and Georges v. Morris. The Board also investigated whether there was a recurring pattern of judicial misconduct with regard to Canon 3A(3), examining and incorporating into the record transcripts from an additional five cases.

All of the cases included in the record involved instances of temperamental behavior by respondent during family court proceedings. In Greene, the transcript shows that he addressed the attorneys and litigants in an extremely impatient and discourteous manner, referring to the proceedings as "garbage" and "a waste of time," and indicating before hearing the evidence that he would summarily dismiss the parties' motions. He also described the litigants as "acting like animals."

In Georges, which concerned a visitation dispute, respondent exhibited similar impatience and discourtesy. He refused to grant a continuance so that the litigant mother could obtain counsel, although she had appeared at the court expecting the matter to be mediated or continued. He cut off the mother's attempt to briefly cross-examine the father, gave her no opportunity to present testimony or evidence of her own, and questioned in a harsh and intimidating fashion the parties' daughter, who was not a party or sworn as a witness. When the mother began to comfort her daughter, who had begun to cry, he directed the mother to "just leave her alone and let her listen." He also threatened to transfer custody of the daughter to the father if the parties did not adhere to a visitation schedule, although the father neither requested nor wanted such a transfer. Respondent directed the parties to agree to a visitation schedule during a recess, which the mother, feeling powerless to object, signed with the notation that she was agreeing "under duress of the court's order."

After its preliminary investigation, the Board issued a formal complaint, which expressly stated the Board's intention to consider the transcripts from all eight cases but charged violations of the canon in only the first three matters. The Board eventually dismissed the Graf complaint because respondent had apologized to the parties for his behavior on the following morning.

During the period between the issuance of the formal complaint and commencement of the hearing before the Board, respondent, his attorney, and counsel for the Board entered into a "Stipulation to Findings and Recommendation," dated October 25, 1991. In that document, the parties agreed to recommend to the Board that it, in turn, recommend that this Court impose no greater sanction than a public reprimand on respondent. ² Further, respondent acknowledged the accuracy of the transcripts in all eight cases identified in the formal complaint and stipulated they would be part of the record. The parties agreed that "a charge of a pattern of recurring conduct is not being made against Judge O'Dea with regard to the transcripts of the [five additional] proceedings," but that respondent "shall be allowed and be permitted to present his explanations of the events, to call witnesses, and present other evidence in response thereto."

The stipulation also included statements by respondent concerning the charged inappropriate behavior. He stated that he had "addressed and recognized the inappropriateness" of his conduct in Greene and assured the Board that it would not recur. He also stated that he had not intended discourtesy in Georges but "appreciates how Mrs. Georges could have misunderstood his intentions." Finally, the stipulation provided that respondent was to have the opportunity to appear personally before the Board and "present such further evidence and argument" as he wished on his behalf.

Respondent appeared before the Board on October 25, 1991 (the date of the stipulation) and January 9, 1992; one of the complainants, Salina Rain (formerly Georges), testified at the January hearing. At the October 25th hearing, respondent testified in detail about his actions in the two cases. He also stated his belief that the only inappropriate aspect of his conduct in the Greene case was his use of the word "animals," and denied any misconduct in connection with Georges. With regard to the stipulation, respondent stated that he understood he was not being charged with a separate count of a pattern of misconduct but rather "whether there's a pattern of that particular conduct, impatience, indignity, discourtesy, and if there is, then it would reflect only upon [the Greene and Georges ] charges." The transcripts of all eight proceedings were then entered into evidence.

On April 14, 1992, the Board filed a final order of recommendation with this Court, dismissing the Graf complaint, finding violations of Canon 3 A(3) for Greene and Georges, and recommending a public reprimand as sanction for those two violations. This recommendation was signed by five members of the Board, but included the signature of one, Lola Aiken, who had not attended all the hearings. As added support for its recommended sanction, the Board found by clear and convincing evidence that, despite the text of the stipulation, respondent failed to recognize that "his conduct generally, not simply one ill-chosen word, reflected impatience, discourtesy and lack of dignity."

On May 13, 1992, respondent filed a response, stating that he was not going to contest the Board's proceedings or its decision. He requested, however, that the Board reverse its decision and dismiss the charges or recommend only a private reprimand, and contended that the Board had insufficiently recognized his remorse in the Greene case. He also argued that the Board was penalizing him for a pattern of misconduct, although it had agreed not to do so. The Board responded with a memo stating that it had, in accordance with the stipulation, considered all of the cases in evidence for the purpose of determining the severity of the charged incidents, and had recommended a sanction on that basis.

On June 10, 1992, respondent filed in this Court a motion to vacate the Board's recommendation and remand for a new hearing. He argued that the recommendation was defective under Rule 6(17) of the Rules of the Supreme Court for Disciplinary Control of Judges, which requires the concurrence of five members of the Board to validate its recommendations. He argued that the fifth signer, Lola Aiken, was disqualified to sign because she had not attended all of the hearings. He also argued that the Board had violated the stipulation by its reference to the uncharged cases. On June 22, the Board reissued its recommendation, signed also by the two additional members. Those members also filed a "confirmation" of the final order, indicating that they concurred. On June 30, 1992, respondent filed a notice of appeal. ³

II.

Respondent argues that this matter should be remanded to the Board for a new hearing or, alternatively, dismissed altogether, because the proceedings below violated due process. He relies on this Court's recent opinion in In re Illuzzi, 159 Vt. 155, ----, 616 A.2d 233, 235 (1992), for the proposition that the Board must strictly adhere to the procedural rules that govern it. He details seven specific procedural "errors" to support this claim.

Before examining the alleged errors, it is important to note that this Court makes the only final and ultimate decision in a judicial conduct proceeding; the findings and recommendations of the Judicial Conduct Board carry great weight but are not binding. Consequently, it is not the function of this Court to review the actions of the Board in matters of this kind. See In re Hill, 152 Vt. 548, 555-56, 568 A.2d 361, 365 (1989). Thus, the presence of procedural errors by the Board will not affect our consideration of a judicial misconduct case unless, as was true in Illuzzi, the errors actually prejudiced respondent. See id. at 559, 568 A.2d at 367. We emphasize that proceedings before the Judicial Conduct Board must be conducted so as to afford the respondent procedural due process of law. See, e.g., In re Deming, 108 Wash.2d 82, 736 P.2d 639, 650, amended, --- Wash.2d ----, 744 P.2d 340 (1987). The question before us is whether any of the alleged errors, if they are errors at all, rise to the level of a due process violation.

First, respondent claims that the Board violated Rule 6(17) of the Rules of the Supreme Court for Disciplinary Control of Judges (Rules) when it issued its April 14 final recommendation because only four qualified members signed the recommendation. He contends that the six members whose names now appear on the final recommendation have "at no time ... assented in synchrony" to the final order, and that no valid quorum existed for the Board's action. He does not directly contend, however, that the Board members (excepting Lola Aiken) who signed the final recommendation were not present at all of the hearings or did not...