In re Henderson
Decision Date | 07 April 2017 |
Docket Number | No. 114,488,114,488 |
Citation | 392 P.3d 56 |
Parties | In the MATTER OF Timothy H. HENDERSON, District Judge, Respondent. |
Court | Kansas Supreme Court |
Todd N. Thompson, of Thompson Ramsdell Qualseth & Warner, P.A., of Lawrence, argued the cause for the Commission on Judicial Qualifications.
Thomas D. Haney, of Stevens & Brand, L.L.P., of Topeka, argued the cause for the respondent.
This is an original disciplinary proceeding against Honorable Timothy H. Henderson, former District Judge of the Eighteenth Judicial District, sitting in Sedgwick County (Respondent). This is a correlate case to a 2015 proceeding against the Respondent that resulted in a 90-day suspension imposed by this court. See In re Henderson , 301 Kan. 412, 343 P.3d 518 (2015). The present case involves Judicial Code charges that he was dishonest to the tribunal in responding to the violations in the earlier case.
In 2014, a panel of the Kansas Commission on Judicial Qualifications (Commission) initiated an investigation of the Respondent under Docket No. 1197. Following an evidentiary hearing, a separate panel (Panel B) found that the Respondent had violated the Kansas Code of Judicial Conduct and recommended to this court that it discipline him by public censure. The panel specifically confirmed misconduct set out in three counts: a pattern of engaging in inappropriate, sexually themed discourse with members of the Sedgwick County District Attorney's office; exhibiting bias or prejudice against an attorney based on socio-political outlooks, as well as engaging in ex parte communications involving an impending legal action; and abusing the power of his office in communications regarding employment of his wife as a public school teacher. The facts are recited in detail in Henderson, 301 Kan. 412, 343 P.3d 518. After the Respondent filed no exceptions to the factual findings of the hearing panel, this court upheld those findings and imposed a 90-day suspension without pay. 301 Kan. at 427, 343 P.3d 518.
On June 2, 2014, after the case had been heard but while it was still pending before the hearing panel, additional complaints against the Respondent were lodged with the Commission. These complaints were referred to an investigator. On October 30, 2014, while Docket No. 1197 case was pending before this court, the Commission filed a Notice of Formal Proceedings under Docket No. 1218, which contained allegations that the Respondent had provided testimony that was not candid and honest in the course of the investigation of Docket No. 1197.
The Respondent filed a motion for the disqualification and recusal of both panels, A and B, of the Commission, alleging that his case was prejudged by the findings in Docket No. 1197. Panel A chose not to recuse, stating that it had conducted only the initial review and investigation and made no findings or conclusions except to refer the complaint to Panel B for hearing. All of the members of Panel B, on the other hand, elected to recuse themselves in order to avoid questions of fairness and propriety, and this court appointed a substitute Panel B.
The matter was investigated by Panel A of the Commission, following which that panel docketed a formal complaint against Respondent and gave due notice. See Supreme Court Rule 611(b) (2017 Kan. S. Ct. R. 473) (discussing procedure for filing of formal proceedings). The complaint alleged three counts of judicial misconduct constituting various violations of Canons 1 and 2 of the Kansas Code of Judicial Conduct (Code), as will be discussed in detail below. See Kansas Supreme Court Rule 601B (2017 Kan. S. Ct. R. 423).
Along with various discovery and scheduling motions, the Respondent moved to stay the proceedings pending the resolution of Docket No. 1197 by this court. The panel denied the motion. In re Henderson , 301 Kan. 412, 343 P.3d 518, was filed February 27, 2015, approximately 3 weeks after the Respondent filed his motion to stay.
A pretrial conference was held on March 3, 2015, before Chairman Mikel Stout and Vice Chairman Edward Larson, retired Supreme Court justice. At the conference, the parties discussed, among other matters, the need for a bill of particulars, scheduling discovery, and obtaining subpoenas. The examiner explicitly stated that he would not be part of any settlement negotiations proposed by the Respondent, which would instead be addressed directly to the panel. Chairman Stout explained, however, that any settlement would be channeled through the examiner, in part to avoid ex parte communications between the Respondent and the panel.
Around this time, both parties filed numerous motions and responses with the hearing panel relating to discovery, scheduling, and limitations on the scope of the hearing. On July 14, 2015, the Respondent filed a motion seeking recusal of the substitute Panel B members and a determination that all of its proceedings be declared void. The motion asserted that the examiner was serving both as the prosecutor of the investigation and as counsel to the panel in such a manner as to violate the Respondent's right to due process. The examiner filed a response, in which he denied the crucial underpinning of the motion—that he provided some sort of confidential, ex parte legal counsel to the panel. The response averred that the examiner had engaged in no more personal contact with the panel than had counsel for the Respondent and that no ex parte communications took place between the panel and the examiner. The panel unanimously elected to deny the Respondent's motion.
Panel B presided over an evidentiary hearing on August 17–18, 2015. On September 23, 2015, the panel issued findings of fact, conclusions of law, and recommendations. The panel largely adopted the examiner's proposed findings, concluding that the Respondent was neither candid nor honest in his testimony in Docket No. 1197 and that he attempted to "cover over" the inappropriate conduct of which he was accused. Based on the vote of four members, the panel recommended discipline in the form of public censure and a 30–day suspension. One panel member would have recommended a more severe sanction.
The panel's written report, in relevant part, stated as follows:
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In re E.K.
... ... order adequately anchored in statutory grounds of unfitness ... disclosed in the State's motion and fully supported in ... the evidence should not be reversed because it further relies ... on a ground plucked from outside the motion. See In re ... Henderson , 306 Kan. 62, 76-77, 392 P.3d 56 (2017) ... (procedural due process claims subject to harmless error ... analysis) ... The ... statutory requirement that a motion to terminate describe ... facts tending to show unfitness does not itself satisfy ... ...
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In re Cullins
...the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. In re Henderson , 306 Kan. 62, 72, 392 P.3d 56 (2017) ( Henderson II ). The panel's recommendations do not prevent us from imposing greater or lesser sanctions, as the court may enter ......
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State v. Vaughan
...that the statute was not followed. But due process violations are generally subject to a harmless error analysis. In re Henderson , 306 Kan. 62, 77, 392 P.3d 56 (2017). And Vaughan fails to articulate any tangible resulting harm from the lack of proper notice. He was aware of the attempt to......
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In re Trigg
...September 7, 2016, while she was a judge. Accordingly, this court has jurisdiction over this matter. As we stated in In re Henderson , 306 Kan. 62, 71-72, 392 P.3d 56 (2017) :"The duty to protect the public from malfeasance by judges does not terminate the moment a judge steps down from off......