In re the Honorable John A. Bell

• Decision Date: 10 June 2011
• Citation: 344 S.W.3d 304
• Parties: In re the Honorable John A. BELL, Judge, General Sessions Court of Cocke County, Tennessee.
• Court: Tennessee Supreme Court

344 S.W.3d 304

In re the Honorable John A. BELL, Judge, General Sessions Court of Cocke County, Tennessee.

Supreme Court of Tennessee, at Nashville.

May 11, 2011 Session Heard at Knoxville.June 10, 2011.

W. Gordon Ball and W. Allen McDonald, Knoxville, Tennessee, for the appellant, Judge John A. Bell.Timothy R. Discenza, Memphis, Tennessee, and Patrick J. McHale, Nashville, Tennessee, for the appellee, Court of the Judiciary.

OPINION

CORNELIA A. CLARK, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

In this direct appeal of a judicial disciplinary proceeding, we are asked to review the Court of the Judiciary's decision that Cocke County General Sessions Court Judge John A. Bell violated various canons of the Tennessee Code of Judicial Conduct, resulting in sanctions that included a ninety-day suspension. The Court of the Judiciary found that Judge Bell violated the Code by taking nine months to decide the complainant's personal injury action, re-hearing the case without disclosing to a new party that he had previously made findings against the new party as to liability and damages, and contacting through an attorney the self-represented complainant while the complainant's case was still pending before him in General Sessions Court. We affirm the code violations with respect to the delay and the ex parte communication and affirm the sanctions.

BACKGROUND

John A. Bell was licensed to practice law in Tennessee in 1983 and has served as Cocke County General Sessions Judge since September of 1998. He was re-elected to his judicial office in 2006. This appeal arises out of a Complaint Against Judge Under Code of Judicial Conduct filed by David J. Pleau on July 14, 2008. After a full initial investigation, a three-judge investigative panel of the Court of the Judiciary found reasonable cause to believe that Judge Bell committed a judicial offense and directed disciplinary counsel to file formal charges against Judge Bell. See Tenn.Code Ann. § 17–5–304(d)(2)(A) (2009). The Court of the Judiciary heard the formal charges against Judge Bell on June 2–3, 2010. After deliberations, the court announced its decision on the record on June 3, 2010, and memorialized its decision in a written order filed on June 14, 2010. We take our recitation of the facts from the record of the proceedings before the Court of the Judiciary, including the exhibits admitted into evidence and the testimony offered at trial.

Facts

In December 2006, Pleau was involved in an automobile accident with Jo Ann Coleman, an uninsured motorist. On August 9, 2007, Pleau, acting pro se, filed a civil warrant in Cocke County General Sessions Court (“ Pleau I ”). The civil warrant named Merastar Insurance Company (“Merastar”), Pleau's uninsured motorist carrier, as a defendant, but did not name Coleman.

On September 18, 2007, Judge Bell heard Pleau I. After Pleau presented his case, Merastar's attorney submitted a written motion to dismiss. Merastar argued that Tennessee Code Annotated section 56–7–1206 (2008) required that Pleau first sue Coleman, the uninsured motorist, before he could name Merastar, his uninsured motorist carrier. At the end of the hearing, Judge Bell indicated that he would issue his decision in a week.

When no decision was rendered within a week's time, Merastar's counsel had his staff contact Judge Bell's office to check on the status of the case. On October 2, 2007, counsel emailed his client to report that Judge Bell's secretary “advised that [Judge Bell] has ruled but the Order has not yet been typed.” Over the following months, Pleau and staff for Merastar's counsel each regularly inquired about the status of the case, receiving reassurances that Judge Bell was working on the case.

Judge Bell finally decided Pleau I on June 27, 2008, nine months after the trial. Judge Bell's order found that the “Other Driver” (Coleman) was 100% at fault and that Pleau's vehicle had sustained $4,726.78 in damages. However, because Pleau had failed to name Coleman as a defendant pursuant to section 56–7–1206, Judge Bell dismissed the action against Merastar without prejudice.

Due to an apparent oversight by the General Sessions Court Clerk, neither Pleau nor Merastar's counsel timely received a copy of the judgment. Merastar's counsel learned that the judgment had been filed during one of his staff's periodic inquiries regarding the status of the case. Merastar's counsel obtained a copy of the judgment on request via a fax from the clerk's office, and, concerned that Pleau also might not have received the judgment, sent him a copy of the judgment by certified mail, return receipt requested, on July 9, 2008. When Pleau went to the clerk's office on July 10, 2008, with a copy of the judgment, he intended to appeal Judge Bell's decision, only to discover that the ten-day period for filing an appeal had expired. Therefore, on July 14, 2008, Pleau filed a complaint against Judge Bell with the Court of the Judiciary. The substance of the single-issue complaint was that Judge Bell did not decide Pleau's civil case in a timely manner and that, once the judgment was entered, Pleau did not receive notice of the judgment until after the time for appeal had expired.

Disciplinary counsel for the Court of the Judiciary sent Judge Bell a copy of Pleau's complaint and asked Judge Bell to respond to the complaint. On July 17, 2008, Judge Bell responded with a sworn affidavit, asserting that he had “done nothing wrong or improper” and then describing the “extensive legal research” he had undertaken concerning Merastar's motion. In addition to researching all state and federal statutory and case law associated with the language found in section 56–7–1206, Judge Bell also asserted that he had conducted nationwide research on whether Merastar's failure to raise its motion before trial amounted to a waiver. Furthermore, Judge Bell explained that he had disposed of more than 12,000 cases while Pleau I was under advisement and had been temporarily disabled by an automobile accident in April 2008. At trial, Judge Bell testified that a computer crash during the Christmas 2007 holiday also set him back in deciding Pleau I.

While disciplinary counsel continued to exchange correspondence with Judge Bell concerning the ethics complaint, Pleau filed a second civil warrant on October 8, 2008, again seeking damages for the December 2006 accident (“ Pleau II ”).¹ The civil warrant in Pleau II named Coleman and subsequently Merastar as defendants.

On October 26, 2008, disciplinary counsel sent Judge Bell a letter notifying him that an investigative panel of the Court of the Judiciary had authorized a full investigation. Pursuant to statutory notice requirements, the letter informed Judge Bell of the identity of the complainant, the underlying factual allegations, the canons and rules allegedly violated, Judge Bell's duty to respond, and the opportunity to meet with disciplinary counsel. See Tenn.Code Ann. § 17–5–304(c)(1). The letter also stated, “This investigation can be expanded if appropriate.”

On December 15, 2008, Judge Bell sent a letter to disciplinary counsel, stating that the clerk's office had mistakenly failed to notify the parties of the filing of the judgment. Judge Bell also stated that he would conduct a hearing with the Pleau I parties on December 23, 2008 to correct the mistake by the clerk's office. By letter to disciplinary counsel dated December 29, 2008, Judge Bell explained what transpired at the December 23 hearing. Judge Bell apologized for the delay in deciding Pleau I and for the clerk's office's failure to mail the order. He provided both Pleau and Merastar's counsel with a copy of the June 27, 2008 judgment “for formal service.” He also acknowledged that Pleau had filed Pleau II, which was set for trial on February 20, 2009.²

Judge Bell testified that, about a week after the December 23, 2008 hearing, he received an anonymous telephone call indicating that Pleau did not want to pursue the complaint he had filed in the Court of the Judiciary. During the same time frame, in a letter dated January 9, 2009, disciplinary counsel offered to settle the complaint against Judge Bell by issuance of a public letter of reprimand and informed him that, if he did not accept the reprimand, formal charges would be filed against him. Judge Bell testified that, before he responded to disciplinary counsel's offer of a reprimand, he wanted to know Pleau's intent regarding the complaint.

Therefore, on February 2, 2009, Judge Bell approached Thomas J. Testerman, a local attorney, in the courthouse hallway and asked to meet with him in chambers. Judge Bell testified that he explained to Testerman that Pleau had filed two cases in General Sessions Court, one of which was still pending. He explained the nature of the ethical complaint filed against him. Judge Bell also explained to Testerman that disciplinary counsel had set a time frame for accepting the public reprimand and that Judge Bell had information that Pleau was not going to proceed with the judicial complaint. Judge Bell testified that he asked Testerman to represent him for the purpose of “find[ing] out simply whether or not Mr. Pleau was going to go forward with the [judicial] complaint.” Testerman testified that the “gist” of the conversation was that Judge Bell believed it would not be appropriate for him to contact Pleau directly, but he wanted Pleau to be contacted. Judge Bell paid Testerman $1 for this representation.

Judge Bell testified that he did not tell Testerman that it would be inappropriate for Judge Bell to contact Pleau himself. Instead, Judge Bell testified that he sought out Testerman because he did not want to be unrepresented in the judicial complaint. Judge Bell testified that he did not believe the phone call from Testerman to Pleau would qualify as an ex parte communication by...