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Family Court Judge Arlene Minus Coppadge was subject to disciplinary proceedings for failing to properly report matters held under advisement. Specifically, this matter arose from two instances of delay in the disposition of cases pending before the judge and her subsequent failure to include those cases on the "90 day report" required by Administrative Directive 175. Upon review of the complaint, the Supreme Court concluded that the judge violated Rule 2.5(C) of the Delaware Judges' Code of Judicial Conduct, and was accordingly sanctioned.
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IN THE COURT ON THE JUDICIARY
OF THE STATE OF DELAWARE
THE HONORABLE ARLENE
a Judicial Officer.
C.J. No. 12, 2011
Submitted: December 13, 2012
January 23, 2013
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, RIDGELY,
Justices, STRINE, Chancellor, VAUGHN, President Judge, and SMALLS, Chief
Judge, constituting the available members of the Court on the Judiciary.1
Victor F. Battaglia, Sr., Esquire, of Biggs & Battaglia, Wilmington,
Delaware, for Judicial Officer.
C. Malcolm Cochran, IV, Esquire, of Richards, Layton & Finger, P.A.,
Wilmington, Delaware, appointed as Presenting Counsel.
Chief Judge Chandlee Johnson Kuhn entered her disqualification in this matter.
In this disciplinary proceeding that brings a judicial officer before the Court
on the Judiciary, we conclude that the judicial officer committed persistent
misconduct in violation of Rule 2.5(C) of the Delaware Judges’ Code of Judicial
Conduct. For that misconduct, we conclude that the judicial officer must be
The Constitution and Applicable Code Provision
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.2
Rule 2.5(C) of the Delaware Judges’ Code of Judicial Conduct provides that “[a]
judge should dispose promptly of the business of the court.”3
The judicial officer in this disciplinary proceeding is Family Court Judge
Arlene Minus Coppadge. Judge Coppadge was appointed to her position in 2003.
This proceeding was initiated when Family Court Chief Judge Chandlee
Johnson Kuhn sent a notice and amended notice informing the Court on the
Del. Const. art. IV, § 37
Del. Judges’ Code of Judicial Conduct Canon 2, Rule 2.5(C) (2012).
Judiciary that Judge Coppadge had failed to properly report matters held under
advisement. Pursuant to Administrative Directive 175, Chief Judge Kuhn’s notice
and amended notice (as later supplemented) were treated as a complaint in the
Court on the Judiciary.4
The Court designated a Panel of the Preliminary Investigatory Committee to
investigate the matters identified in the notice and to submit a report determining
whether or not there was probable cause to believe that Judge Coppadge may be
subject to sanction.5 On January 13, 2012, the Panel filed a report finding that
probable cause existed to believe that Judge Coppadge had violated Rule 2.5(C) of
the Delaware Judges’ Code of Judicial Conduct, and that she may be subject to
As mandated by Rule 9 of the Rules of the Court on the Judiciary, the Court
appointed a Board of Examining Officer.7 The Board issued a show cause order to
Judge Coppadge and appointed a Presenting Counsel to “conduct an investigation
and present evidence on the formal charges.”8 After an evidentiary hearing before
See Administrative Directive of the Chief Justice of the Supreme Court, No. 175 (April 1,
2010) (available at http://courts.delaware.gov/Supreme/AdmDir/index.stm).
Del. Ct. Jud. R. 5(c), 7.
Del. Ct. Jud. R. 7(c).
Del. Ct. Jud. R. 9(a). The Court appointed former Supreme Court Justice Joseph T. Walsh to
serve as the Board of Examining Officer.
Del. Ct. Jud. R. 10(a), (c).
the Board,9 Judge Coppadge and Presenting Counsel submitted proposed findings
of fact and conclusions of law.10
The Board’s final report dated November 28, 2012 found that Judge
Coppadge had engaged in a persistent pattern of delay in the disposition of cases
and had failed to comply with the reporting mandates of Administrative Directive
175. The Board recommended the Judge Coppadge be publicly censured. Neither
Judge Coppadge nor Presenting Counsel filed exceptions to the Board’s report and
The Board’s Report
The Board’s findings of fact, conclusions of law, and recommended
discipline are set forth here:12
FINDINGS OF FACT
This matter originated with the filing of an initial complaint
by Family Court Chief Judge Chandlee Johnson Kuhn on July
11, 2011 but was followed by an Amended Notice (jointly signed
by Judge Coppadge) on July 21, 2011 (the “Amended Notice”).
This Amended Notice addressed two instances of delay in the
disposition of cases pending before Judge Coppadge and the
subsequent failure to include those cases on the so-called “90 day
report” required by Directive 175 issued by the Chief Justice
effective July 1, 2010.
Del. Ct. Jud. R. 13.
Del. Ct. Jud. R. 14(c).
Del. Ct. Jud. R. 15(b)(2).
Where the report discussed specific Family Court cases, the Court replaced the case names
with pseudonyms and omitted the case numbers. Del. Supr. Ct. R. 7(d).
Directive 175 requires the presiding Judge of each of the
Delaware courts to submit monthly reports to the Chief Justice
regarding matters held under advisement beyond specified time
limits. With respect to the Family Court, the Directive requires
the Chief Judge to “furnish to the Chief Justice on the tenth day
of each month, a detailed report of each matter held under
advisement for more than 90 days as of the last business day of
the previous month by each Judge [of the court].” Directive No.
175 § B.
Directive 175 also imposes on the individual judge a specific
reporting requirement. Section E of Directive 175 (“Section E”)
requires “[e]ach . . . Judge” to provide to her presiding judge the
information necessary for the submission of “an accurate and
timely report” to the Chief Justice. Failure of a judge to do so
for “two consecutive months” results in mandatory referral to the
Court on the Judiciary:
E. Each . . . Judge shall furnish the information
necessary to the presiding judge of the court
involved so an accurate and timely report can be
prepared. Failure to do so for two consecutive
months shall cause the presiding judge to file a
notice with the Clerk of the Court on the Judiciary.
The notice shall be processed as a complaint under
Court on the Judiciary Rule 5.
Directive 175 § E (emphasis supplied).
Chief Judge Kuhn’s initial notice of a violation of Directive
175 was prompted by a contact from a litigant in a case entitled
[Smith v. Kane] who complained about the failure of Judge
Coppadge to render a decision in a matter heard approximately
ninth months previously. Upon further inquiry by Chief Judge
Kuhn, it was determined that the delay in the [Smith] matter
should have been reported in Judge Coppadge’s 90-day report
for each month from December 2010 to May 2011. Judge
Coppadge issued a belated decision in the [Smith] matter on June
The second case reflected in the Amended Notice [Bailey v.
Taylor] was discovered through a review by Chief Judge Kuhn’s
office. This case had remained open since November 5, 2010
and failed to appear for approximately four months beyond the
required reporting date. After the Amended Notice was referred
to a [Panel of the] Preliminary Investigatory Committee . . . six
additional cases were unearthed as a result of a further review by
Judge Coppadge of her docket. These six cases were forwarded
to [the Panel] on August 18, 2011 as a supplement to the
The additional six cases, with pertinent hearing and required
reporting dates are as follows:
[Fulton v. Robinson]
(Hearing: January 13, 2011. Decision: June 29,
2011. Omitted from April and May 2011 90-day
[Gibson-Stevens v. Owens-Roberts]
(Hearing: August 16, 2010. Decision: June 29,
2011. Omitted from November, December 2010
and January-May 2011 90-day reports.)
[Martin v. Martin (Sawyer)]
(Hearing: September 7, 2010. Decision: July 6,
2011. Omitted from December 2010 and JanuaryJune 2011 90-day reports.)
[Green v. Stanford]
(Hearing: December 8, 2010. Decision: June 29,
2011. Omitted from March, April and May 2011
[Reed v. Williams]
(Hearing: August 17, 2010. Decision: July 7,
2011. Omitted from November, December 2010
and January-June 2011 90-day reports.)
[Clark v. Palmer]
(Hearing: May 19, 2010. Decision: October 29,
2010. Omitted from August and September 
Although not directly an instance of reportable misconduct in
this proceeding, Judge Coppadge was involved in a matter which
came to the attention of the Delaware Supreme Court in early
2010. In Clark v. Clark, the Supreme Court noted that an issue
in the underlying matter on appeal from the Family Court had
not been decided “for over two and one-half years.” 2010 WL
876935 at *1 (Del. March 9, 2010) (Order).
described the delay as “extraordinary” and “[f]ortunately . . .
unusual.” The Court directed that upon remand, the matter be
assigned to a different judge of the Family Court, for a
determination of whether the delay had resulted in financial harm
to the litigants. It was eventually determined that no such
financial harm existed. Judge Coppadge was the original trial
judge in this matter. The delay in the Clark matter was the
subject of a discussion between Chief Judge Kuhn and Judge
Coppadge and the need for Judge Coppadge to “stay on top” of
At the hearing before the Board, Judge Coppadge did not
dispute that delays had occurred in the cases above discussed nor
did she include these matters in her 90-day reports. While
accepting ultimate responsibility and expressing remorse for the
resulting delay, she attributed failure to comply with the
Directive to her assistant who was charged with tracking Judge
Coppadge’s cases and reporting delinquent dispositions. Judge
Coppadge claimed that the “system” broke down when her
assistant began to take night classes at Delaware Technical and
Community College in January 2010 and discontinued her
tracking and reporting duties. The delay in the Clark matter,
however, had already occurred before Judge Coppadge’s
assistant began her night classes.
At the hearing before the Board, the Presenter arranged for
the testimony of an expert witness on the questions of whether
the delays in the eight cases under review was unreasonable and
whether harm to the litigants resulted from such delays. Gerald
I.H. Street, Esquire has practiced exclusively in Family Court in
all three counties for more than twenty-five years handling a
broad range of family law cases. After review of the eight
matters at issue in this proceeding, Mr. Street opined that there
were unreasonable delays in six of the cases. He was of the
further view that in two of the six delayed matters a litigant
suffered direct injury. In one case (Stevens v. Owens-Roberts), a
ten month post-hearing delay denied a father visitation rights. In
another matter, Reed v. Williams, an effort by a wife to rescind a
separation agreement was significantly delayed. The wife, who
testified at the hearing by a teleconference call, claimed that as a
result of the delay she was deprived of funds needed to acquire
property in another state.
In her testimony before the Board, Judge Coppadge
acknowledged the failure of her “tracking system” to prevent
delay in a series of cases extending over a long period of time.
Although she blamed her assistant for the failure to alert her to
the continuing problem she acknowledged that the ultimate
responsibility is upon the judge, not the judge’s staff, to comply
with the reporting requirements. Judge Coppadge believes that
she has instituted sufficient changes in her tracking procedures to
prevent further violations and apparently she is in full
compliance at this time.
Chief Judge Kuhn testified before the Board and explained
the background of the delays here under consideration and the
efforts she has undertaken through staff support to prevent a
recurrence of the problem. Chief Judge Kuhn was also
supportive of Judge Coppadge’s overall effectiveness as a
Family Court judge. She described her as “one of the most
valued judges in New Castle County,” diligent hard-working and
“respected by everyone.” Apart from the present proceeding,
Judge Coppadge has not been the subject of any disciplinary
CONCLUSIONS OF LAW
The Delaware Constitution provides that a judicial officer
“may be censured or removed . . . for wilful misconduct in
office, wilful and persistent failure to perform his or her duties
… or other persistent misconduct in violation of the Canons of
Judicial Ethics.” Del. Const. Art. IV, § 37. Judge Coppadge is
charged with violations of Rule 2.5(C) of the Delaware Judges’
Code of Judicial Conduct which enjoins a judge to “dispose
promptly of the business of the court.” The rationale for the rule
is reflected in the comment to the Rule noting that a judge must
have “due regard for the rights of the parties to be heard and to
have issues resolved without unnecessary cost or delay.” The
comment further requires the judge “to monitor and supervise
cases so as to reduce or eliminate dilatory practices, avoidable
delays and unnecessary costs.” Comment Rule 2.5(C).
Apart from the general admonitions in the Canons of Judicial
Ethics, Judge Coppadge was required to comply with the specific
reporting provisions of Directive 175.
requirements were mandatory and failure to comply for two
consecutive months required the presiding judge of each
respective court to file a notice which would be processed as a
complaint before the Court on the Judiciary. But the focus of the
rule is not merely punitive. In the absence of compliance with
the reporting requirement by the individual judge, the presiding
or Chief Judge of a particular court is without knowledge of the
delay and unable to take the necessary steps to require a
disposition and prevent a recurrence.
To be sanctionable under the Delaware Constitution a
judge’s conduct must be “wilful and persistent” in the failure to
perform judicial duties. The action, or inaction, includes “the
improper or wrongful use of the power of office by a judge
acting intentionally, knowingly, voluntarily, or with gross
unconcern for [her] conduct, which would bring the judicial
office into disrepute. It is more than a mere error of judgment or
an act of negligence.” In re Barrett, 593 A.2d 529, 533 (Del.
Jud. 1991) quoting In re Rowe, 566 A.2d 1001, 1006 (Del. Jud.
1989). “Other persistent misconduct” may include conduct that
is negligent where there is evidence of a “deliberate and
persistent pattern.” In re Williams, 701 A.2d 825, 832 (Del. Ct.
Judge Coppadge concedes that there is clear and convincing
evidence that there were unreasonable delays in six of the eight
matters presented. She also concedes that she failed to comply
with the reporting requirement of Directive 175.
Coppadge suggests that the reporting deficiencies were the fault
of “her office,” i.e. her secretary or assistant. But the ultimate
responsibility for the timely disposition of cases and compliance
with reporting standards is not a delegable duty. The Delaware
Supreme Court has consistently held lawyers ethically
responsible for the proper supervision of lay persons in the
employment of a lawyer. Judges should not be held to a lesser
standard. [In In re Otlowski, 976 A.2d 172 (Del. 2009), the
Delaware Supreme Court imposed a public reprimand on a
lawyer for a violation of Rule 5.3 of the Delaware Rules of
Professional Conduct for failing to have reasonable safeguards in
place to assure accurate accounting and failure to supervise an
employee whose conduct resulted in theft of clients’ funds.]
While the Presenter and counsel for Judge Coppadge
disagree concerning the extent Judge Coppadge’s conduct
resulted in harm to litigants, it is unnecessary to quantify litigant
harm on an individual basis. Family Court litigation is
emotionally laden by its very nature. Any unnecessary delay
increases the uncertainty and anxiety in cases of a personal
nature involving visitation, custody, support and property
division. More importantly, unnecessary delay harms the public
image and society’s confidence in the functioning of the judicial
system. Here, Judge Coppadge’s persistent conduct inflicted
harm at both levels.
The question of sanctions in this case is troublesome. The
evidence is clear and convincing that Judge Coppadge engaged
in a persistent pattern of delay in the disposition of cases pending
before her over a period of many months. Equally clear is her
failure to comply with the reporting mandates of Directive 175.
But there is little doubt that Judge Coppadge is a diligent Family
Court judge who disposes of a large caseload and, in the opinion
of her Chief Judge, is a valued member of the Court. Moreover,
Judge Coppadge, with the assistance of support personnel has
apparently implemented procedures to prevent a recurrence of
the deficiencies disclosed in the proceedings.
There is no helpful Delaware precedent suggesting an
appropriate sanction for delay by a judge in the processing and
reporting demonstrated in this case.
Cases from other
jurisdictions, cited by the Presenter, are of limited assistance
because of the differing judicial disciplinary systems or the types
of delay involved, but in an analogous setting the Supreme Court
of Kansas stressed the responsibility of a judge to prevent delay.
In the Matter of the Inquiry Relating to Janice P. Long, District
Judge, 224 Kan. 719, 772 P.2d 814 (Kan. Supr. 1989) the Court
imposed a public censure for persistent delay in decision-making
and noncompliance with reporting requirements. In noting the
ultimate responsibility of the judge, the Court commented:
Judges must at all times respect and comply
with the laws and rules governing their conduct and
the operation of the court in a matter which
promotes public confidence in the integrity,
impartiality, and administration of justice. Public
confidence in the judiciary is eroded by a judge’s
improper or irresponsible conduct. We recognize
that the trial judges of this state are dependent upon
a number of different individuals to perform many
of the services essential to the orderly operation of
the courts. However, whatever the proficiency of
the various members of the court staff, the judge is
solely responsible for the proper operation of the
court. 224 Kan. at 724-25.
Presenter has urged the imposition of a public sanction or
censure to act as a deterrence to sanction[able] misconduct.
Given the general reputation of the Delaware judiciary for
diligence in the processing of cases, it is unlikely that deterrence
would serve any purpose. Nonetheless, public confidence in the
efficient functioning of the court system would be served by a
ruling that persistent dilatory conduct by a judge, as presented
here, should not be tolerated.
Accordingly, the Board
recommends that Judge Coppadge be publicly censured for her
De novo Review of Board’s Report
A final report of a Board of Examining Officer has the force and effect of a
master’s report in the Court of Chancery.13 “This Court is obligated to conduct its
own evaluation of the evidence adduced by the Board and reach an independent
conclusion as to the sanctions to be imposed.”14 The ultimate responsibility to
censure, remove or retire any judicial officer appointed by the Governor is
entrusted to this Court.15
Board’s Report Upheld
Having independently reviewed the record, including the transcript of the
evidentiary hearing, we uphold the Board’s factual findings and conclusions of
law. The evidence is clear and convincing that Judge Coppadge, over a period of
many months, engaged in a persistent pattern of delay in the disposition of cases
pending before her and persistently failed to comply with the reporting mandates
of Directive 175. Judge Coppadge’s persistent violation of Rule 2.5(C) of the
Delaware Judges’ Code of Judicial Conduct warrants the imposition of discipline.
In re Rowe, 566 A.2d 1001, 1005 (Del. Jud. 1989).
Id. at 1006.
Del. Const. art. IV, § 37.
The Appropriate Sanction
The record reflects that Judge Coppadge has acknowledged the misconduct
disclosed in this proceeding, has committed to remedial steps and has implemented
procedures to prevent a recurrence. Furthermore, Judge Coppadge has not been
the subject of any prior discipline and was supported in this proceeding by her
Chief Judge, who described her as “one of the most valued judges in New Castle
County.” For these reasons, and after careful consideration of the circumstances of
this case, we adopt the Board’s recommended sanction of public censure. The
publication of this Opinion will constitute the public censure imposed by the
Judge Coppadge has waived the confidentiality which otherwise attaches to a censure by not
objecting to the Board’s recommendation of a public censure.