In re O'Bier

• Decision Date: 06 November 2003
• Docket Number: No. 3, 2002.,3, 2002.
• Citation: 833 A.2d 950
• Parties: In re the Honorable John O'BIER, a Judicial Officer.
• Court: Delaware Court of the Judiciary

833 A.2d 950

In re the Honorable John O'BIER, a Judicial Officer.

No. 3, 2002.

Court on the Judiciary of Delaware.

Submitted: August 5, 2003.

Decided: November 6, 2003.

Daniel V. Folt, of Duane Morris, Wilmington, for Judicial Officer.

David A. Boswell, of Rehoboth Beach, appointed as Presenting Counsel.

Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE and JACOBS, Justices, CHANDLER, Chancellor and RIDGELY, President Judge, constituting the Court on the Judiciary.

PER CURIAM:

In this proceeding that brings a judicial officer before the Court on the Judiciary pursuant to the Delaware Constitution, we conclude that the judicial officer committed wilful and persistent misconduct that violated the Delaware Judges' Code of Judicial Conduct. For that misconduct we conclude that he must be sanctioned. We further conclude that the judicial officer suffers from a disability that must be adequately treated before he may be permitted to return to his judicial duties.

THE CONSTITUTION AND APPLICABLE CODE PROVISION

Article IV, Section 37, of the Delaware Constitution confers authority on the Court on the Judiciary to discipline a judge for:

wilful misconduct in office, wilful and persistent failure to perform his or her 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.

[Moreover, a] judicial officer may be retired by virtue of this section for permanent mental or physical disability interfering with the proper performance of the duties of his or her office.

Canon 2 of the Delaware Judges' Code of Judicial Conduct is implicated in this matter. It provides in pertinent part that "[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Comment to Canon 2 provides that:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.

* * *

The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. A judge does not violate this Code merely because a personal or judicial decision of the judge may be erroneous.

PROCEDURAL BACKGROUND

The judicial officer in this proceeding is the Honorable John O'Bier, a magistrate of the Justice of the Peace Court in Sussex County, Delaware. Judge O'Bier was appointed to his position in January 1989 and has been reappointed twice. His term expires in March 2004. Judge O'Bier currently is on paid administrative leave pending the outcome of this proceeding.

The Honorable Patricia W. Griffin, Chief Magistrate of the Justice of the Peace Court, filed a complaint in the Court on the Judiciary. The complaint alleged that Judge O'Bier (i) mishandled a gun in the presence of court staff; (ii) conducted court while in a confused and disoriented state of mind; and (iii) appeared confused, disoriented and not in a condition to work.

The Court on the Judiciary designated a Panel of the Preliminary Investigatory Committee to investigate the matters identified in the complaint and thereafter to submit a report determining whether or not there is probable cause to believe that the judicial officer may be subject to sanction under the Constitution. The Panel filed a report finding that probable cause existed to believe that Judge O'Bier (i) "displayed his weapon before the Clerks in a fashion that made them feel their personal safety was in question," (ii) "was confused and disoriented while conducting his court," and (iii) "was not in a condition to work as a Justice of the Peace because of this disorientation and confused condition." Moreover, the Panel concluded that "probable cause does exist regarding the competency of Judge O'Bier to fulfill his judicial duties and whether that competency is impaired by medical and/or physical problems and/or the use of medication."

The Court on the Judiciary appointed Superior Court Judge Carl Goldstein as the Board of Examining Officer. In turn, the Board appointed David A. Boswell, Esquire, as presenting counsel to conduct an investigation and to present evidence to the Board on the formal charges.¹ The Board held a four-day evidentiary hearing, and thereafter directed Judge O'Bier and presenting counsel to submit proposed findings of fact and conclusions of law, along with recommendations for disposition of this matter.

The Board issued a final report finding that Judge O'Bier's conduct in drawing his firearm before court personnel on one occasion and, on other occasions, displaying his firearm in public view, constituted wilful and persistent misconduct that violated Canon 2 of the Delaware Judges' Code of Judicial Conduct. The Board recommended a three-month suspension without pay, a public reprimand, and a permanent ban on carrying or displaying a weapon while on court premises. On the remaining two charges concerning Judge O'Bier's confused state of mind and disorientation, the Board concluded that there was no evidence of wilful misconduct or persistent failure to perform duties and no evidence upon which to conclude that Judge O'Bier was incompetent "to fulfill judicial duties due to impairment by his medical and/or physical problems and/or the use of medication." The Board recommended, however, that Judge O'Bier continue treatment for existing medical conditions, be evaluated for any substance abuse problem and follow medical treatment recommendations. Moreover, the Board recommended that Judge O'Bier's medical and treatment providers report periodically to the Chief Magistrate as to Judge O'Bier's compliance with the conditions and his abilities to perform his duties.

Presenting Counsel filed exceptions to the Board's report. Judge O'Bier did not file exceptions. Thereafter, this Court ordered briefing, and the matter was heard upon oral argument.

FACTS

In January 2002, Judge O'Bier began working midnight to 8 a.m. shifts, "the graveyard shifts," at J.P. Court No. 3 in Georgetown, Delaware. Previously, he had worked primarily the day shift at J.P. Court No. 4 in Seaford, Delaware. He agreed to try permanent overnight shifts, however, because he wanted to work four days on and four days off, a feature of the graveyard shifts, and because he wanted to assist the other judges at J.P. Court No. 3, none of whom wanted to work that shift. Moreover, because Judge O'Bier had difficulty sleeping at night, he reasoned that working the graveyard shift might help him sleep during the day.

Judge O'Bier began the first graveyard shift on January 11, 2002, and worked the following three days. After four days off, Judge O'Bier went back to work at midnight on January 19, 2002, to start another four shifts. It is Judge O'Bier's behavior during this time period, specifically January 19 to January 22, 2002, that was the focus of the initial complaint against him and the subsequent investigation into his conduct.

Judicial Officer's Display of Weapon

The record reflects that Judge O'Bier normally carried a firearm with him to work as a magistrate. According to Deputy Chief Magistrate Sheila Blakely, the practice of magistrates carrying weapons at work began in the 1960s in response to their concerns about the lack of court security.

In January 2002, there was no written policy in the Justice of the Peace Court system governing the circumstances under which magistrates are authorized to carry weapons.² The record is clear, however, that over the years Judge O'Bier's supervisors and fellow magistrates had to remind him several times that he was required to lock his gun away or to keep it out of sight if he was carrying it. Nonetheless, the record reflects that he persisted in displaying his weapon both on his desk in chambers and on his person.

A few minutes before midnight on January 21, 2002, Judge O'Bier relieved another magistrate and began his 12:00 a.m. to 8:00 a.m. shift on January 22, 2002. At the same time, Denise Baker, a court clerk, was ending her own shift, and Kathy Carlisle, another court clerk, relieved Baker.

Both Carlisle and Baker testified that Judge O'Bier was normally pleasant, friendly and easy-going, but on that morning he was out of sorts. According to Carlisle, Judge O'Bier seemed to be in pain, complained about the severe pain he had experienced since his most recent back surgery, and was upset about what he claimed had been a long-standing problem he had with Chief Magistrate Griffin and Deputy Chief Magistrate Blakely.³ Baker described Judge O'Bier as uncharacteristically "on edge" and "intense." She recounted that he talked about how he had been mistreated in the hospital⁴ and about an incident in the news where a boy's father had gotten beaten to death at a sporting event.

At approximately 12:15 a.m., Baker was standing at the back door of the administrative office of the court preparing to leave. Carlisle was seated at her desk several feet away from Baker. Judge O'Bier was standing in front of Carlisle's desk. There are major discrepancies in the testimony of Baker, Carlisle and Judge O'Bier about what happened next.

Carlisle testified that she could not recall the gist of the conversation at the time or to whom he was speaking, but that Judge O'Bier, during the course of a conversation, rapidly pulled his gun out of his holster and pointed the barrel approximately two feet to the side of Baker. Carlisle said that she was surprised by the incident, and that Baker was very frightened.

In testifying about the same incident, Baker recalled that Judge O'Bier was talking non-stop...