In re Coleman, 118,450

• Decision Date: 03 December 2019
• Docket Number: No. 118,450,118,450
• Citation: 454 P.3d 1280
• Parties: In the MATTER OF the DISCIPLINARY PROCEEDINGS CONCERNING Kendra COLEMAN, District Judge, Oklahoma County, Oklahoma.
• Court: Oklahoma Supreme Court

454 P.3d 1280

In the MATTER OF the DISCIPLINARY PROCEEDINGS CONCERNING Kendra COLEMAN, District Judge, Oklahoma County, Oklahoma.

No. 118,450

Supreme Court of Oklahoma.

FILED DEC. 3, 2019

ORDER

¶1 The Council on Judicial Complaints initiated this case by delivering a report to the Chief Justice concerning the Council's investigation of District Judge Kendra Coleman. The report contained an evidentiary record and Findings of Fact, Conclusions of Law and a Recommendation that the Supreme Court en banc file a petition with the Court on the Judiciary to remove Judge Coleman. Given the fact that two members of the Supreme Court sit on the Appellate Division of the Court on the Judiciary, the Chief Justice appointed Special Justices to serve in their place as well as a Special Justice to serve for a currently vacant office on the Supreme Court. Thereafter, the Supreme Court, thus constituted, reviewed the Council's report and voted 5-4 that the allegations and evidence of misconduct set forth in the report did not warrant the filing of a petition for removal.

¶2 The Council on Judicial Complaints plays an important role in protecting and preserving the integrity of the Oklahoma Judiciary. The Council is "an agency in the Executive Department" that independently investigates and evaluates complaints of judicial misconduct. 20 O.S.2011, §§ 1651 and 1652 ; Rule 3 of the Rules Governing Complaints on Judicial Misconduct, 5 O.S.2011, Ch.1, App. 4-A.

¶3 While the Council can make recommendations concerning the merits of a complaint and the need for disciplinary proceedings, the Council "may not adjudicate any matter nor impose any sanction." Mattingly v. Court on the Judiciary, Trial Division , 2000 OK JUD 1, ¶17, 8 P.3d 943, 949. Neither can the Council "invoke the jurisdiction of the Court on the Judiciary [nor] substitute its own discretion for that of the officers charged with that duty by the constitution." Id. ¶9, 8 P.3d at 947.

¶4 This Court and the other officers and entities designated in Article 7-A, § 4 of the Oklahoma Constitution and in 20 O.S.2011, § 1659, are vested with discretionary authority to decide whether the judicial misconduct detailed in a report by the Council warrants proceedings before the Court on the Judiciary. Haworth v. Court on the Judiciary, Trial Division , 1975 OK JUD 1, ¶6, 684 P.2d 1217, 1218.

¶5 This Court exercises this discretionary authority to first determine whether the Council's allegations of misconduct by a judge, even if true, would or would not, call for the judge's removal from office or compulsory retirement. Mattingly, ¶¶ 7 and 19, 8 P.3d at 947, 950. In the case at hand, the majority concluded that the alleged misconduct of Judge Coleman would not call for immediate removal and rejected the Council's recommendation to file a petition for removal. This decision did not end the Court's inquiry, but instead triggered this Court's exclusive jurisdiction to decide discipline for misconduct of a judge not serious enough to require removal or compulsory retirement. Id. ¶19, 8 P.3d at 950. As explained in the Mattingly case, this Court has exclusive jurisdiction to discipline for non-removal misconduct because "to interpret the powers of the Court on the Judiciary ... to merely discipline rather than remove a judge, would both grant the Court on the Judiciary powers not given by [the Constitution] and deprive the Supreme Court of its responsibility to exercise ‘superintendent control’ and ‘administrative authority’ over the courts of this state mandated by [the Constitution]." Id. ¶16, 8 P.3d at 949.

¶6 This Court exercises its exclusive jurisdiction to determine discipline for non-removal misconduct pursuant to the Rules Governing Complaints on Judicial Misconduct. 5 O.S.2011, Ch. 1, App. 4-A. In the Preface to the Rules, this Court stated it was providing "a uniform process to investigate and administer judicial discipline for misconduct that does not warrant removal from office or compulsory retirement." The Rules are said to provide "a venue for any person to complain about a judge who the person believes has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts." Rule 1, RGCJM. While this Court utilizes the investigation and screening assistance of the Council on Judicial Complaints pursuant to Rule 3, the Council's Finding of Facts, Conclusions of Law and Recommendation for Discipline are not binding on the Court. Again, the Council may not adjudicate any matter nor impose any sanction." Mattingly, ¶17, 8 P.3d at 947.

¶7 The Rules vest the Chief Justice with responsibility to determine "appropriate action ... to remedy the problem" and reserve to the Court the power to impose "appropriate discipline." Rule 4(c) and (d), RGCJM. Even though this Court may begin its review of non-removal misconduct under its exclusive jurisdiction, the Chief Justice or the Court can later file a petition for removal in exercise of the authority given by Article 7-A, § 4 of the Constitution, if the Chief Justice or the Court deems such action necessary.

¶8 The fact that this Court is divided on the issue of whether a petition for removal should be filed does not mean there is not common concern whether Judge Coleman appreciates the level of conduct expected of every person who aspires to serve as a member of the Oklahoma Judiciary. The majority's conclusion that proceedings for removal are not warranted to address this concern should not be taken to indicate that the majority does not regard this concern to be serious or one that does not require action by this Court. What the majority seeks to achieve by proceeding pursuant to Rule 4 is to impress upon Judge Coleman that future derelictions as recounted in the report of the Council on Judicial Complaints will not be tolerated. The majority also seeks to take steps to ensure Judge Coleman will fully comply with the Code of Judicial Conduct and all personal and professional obligations reflecting on her judicial service.

¶9 The allegations and evidence of misconduct set forth in the Council's report can be summarized as follows:

• Judge Coleman officially took the bench on January 14, 2019.

• On September 17, 2019, Judge Coleman was indicted on four (4) misdemeanor counts of failing to file a state income tax return in violation of 68 O.S.2011, § 240. A criminal case was filed in Oklahoma County CM-2019-3063. This charge was dismissed when the District Attorney subsequently filed a felony charge relating to the same matter.

• Judge Coleman has delinquent tax assessments to both the IRS and the OTC.

• Judge Coleman has outstanding tax assessments for business personal property taxes owed to Oklahoma County for 2014-2018.

• Between 2012 and 2019 Judge Coleman was issued sixty-five (65) parking tickets by the City of Oklahoma City. Eight of those tickets were accumulated after Coleman was elected to her position but before taking the bench.

• In connection with Judge Coleman's candidacy for district judge, she and/or her candidate committee violated the Code of Judicial Conduct and Oklahoma Ethics Rules concerning election expenditures and reports.

• Judge Coleman violated the Code of Judicial Conduct by failing to disqualify herself in all cases presented by the Oklahoma County District Attorney.

• Judge Coleman engaged in oppressive behavior by utilizing or threatening to utilize her powers of contempt.

¶10 In response, Judge Coleman admitted that there was a factual basis for these allegations, but maintains that she did not intentionally act to violate the Code of Judicial Conduct or to deliberately abuse her judicial power. Judge Coleman also related that she has paid the parking tickets and taken steps to rectify her delinquent tax returns and Ethics Commission reports. She reported that she sought and is receiving mentoring from retired Oklahoma Supreme Court Justice Daniel Boudreau. She is doing this to properly perform her judicial duties and conduct herself in any manner consistent with the high standards required for judicial service.

¶11 Of the foregoing only the last three directly relate to Judge Coleman's responsibilities as a judge. As concerns Judge Coleman's decision not to disqualify in all cases presented by the District Attorney, we note that Rule 1 of the Rules Governing Complaints on Judicial Conduct expressly provides that "Appellate review and disqualification procedures exist and should be utilized to address concerns regarding ... disqualification issues." Also, the procedure for seeking disqualification of a judge - Rule 15, Rules for District Courts, 12 O.S.2011, Ch. 2, App. - does not allow for or even contemplate the wholesale disqualification sought by the District Attorney. Administrative "reassignment" is a preferable alternative. Mattingly, ¶23, 8 P.3d at 951.

¶12 As concerns the issue of oppression in office, the Council's report asserts that Judge Coleman improperly used and threatened to use her contempt powers. The evidence in the record shows that Judge Coleman may not have correctly used direct contempt to deal with a disruptive person in her courtroom, but this matter is the subject of an appeal. Rule 1 also provides that judicial misconduct procedure is not intended to be exercised to challenge a judge's decision in a single case.

¶13 Also, the evidence concerning the threatened use of contempt occurred in the course of a heated exchange that Judge Coleman had with the District Attorney and First Assistant that was marked by mutual acrimony. "A judge is guilty of ‘oppression in office’ when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority." State v. Colclazier, 2002 OK JUD 1, ¶12, 106 P.3d 138, 141-2. "The relevant inquiry is whether the judge formed a specific intent to commit the acts with the requisite knowledge that t...