In re Kilburn

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-478


In re District Judge Ronald F. Kilburn       Supreme Court

                                             Original Jurisdiction


                                             September Term, 1991


M. Jerome Diamond of Diamond & Associates, P.C., Montpelier, for appellant

Chester S. Ketcham, Middlebury, for appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     PER CURIAM.   Judge Ronald Kilburn appeals a Judicial Conduct Board
conclusion that he failed to dispose promptly of the business of the court,
a violation of Canon 3A(5) of the Code of Judicial Conduct.  Because the
board limited its investigation to a single instance of delay, we remand for
further proceedings.
     The board based its conclusion on its investigation of a single
complaint, brought by a litigant in a contested divorce, concerning an
eight-month delay in rendering a final order.  The divorce hearing was
completed on March 24, 1988, and Judge Kilburn stated a decision would be
forthcoming by May 1, 1988.  Later he changed the date to May 31, 1988.
That deadline passed without any action.  Counsel for the parties attempted
without success to contact Judge Kilburn over the summer and ultimately
wrote to Judge Martin, Administrative Judge for Trial Courts, to complain
about the delay.  Judge Martin responded, promising that a decision would be
issued by September 20, 1988.  A copy of that letter was sent to Judge
Kilburn.  Again, no decision was issued.  Finally, on November 29, 1988,
Judge Martin removed Judge Kilburn from the bench, telling him he could not
return until he issued the decision.  On December 1, 1988, a notice of
decision was issued.
     Canon 3A(5) states that "A judge should dispose promptly of the
business of the court."  Appellant asserts this Canon has not been violated
because:  (1) failure to decide cases promptly should be handled by
administrative correction rather than judicial discipline; (2) the board
cannot find judicial misconduct based on a single instance of delay; and (3)
the standard imposed by Canon 3A(5) is so vague that it would be funda-
mentally unfair and violate due process to find judicial misconduct in the
absence of specific time standards for deciding cases.
     Appellant's first argument is based on a recent decision of the New
York Court of Appeals, In re Greenfield, 76 N.Y.2d 293, 557 N.E.2d 1177,
558 N.Y.S.2d 881 (1990).  In Greenfield, a judge had failed to render a
timely decision in eight matters, with delays ranging from seven months to
over nine years.  Id. at 296, 557 N.E.2d  at 1178, 558 N.Y.S.2d  at 882.
Despite finding these delays "inexcusable," the court concluded that no
violation of Canon 3A(5) had been shown:
           In our view a clearer line must be drawn between the
         role of the Commission and court administrators in order
         to avoid confusion and provide adequate notice to mem-
         bers of the judiciary as to when and under what circum-
         stances delays in disposing of pending matters ceases to
         be a purely administrative concern and becomes a matter
         warranting punitive sanctions.  We have concluded that
         generally these matters can and should be resolved in
         the administrative setting and that the more severe
         sanctions available to the Commission should only be
         deemed appropriate and necessary when the Judge has
         defied administrative directives or has attempted to
         subvert the system by, for instance, falsifying,
         concealing or persistently refusing to file records
         indicating delays.

Id. at 298, 557 N.E.2d  at 1179-80, 558 N.Y.S.2d  at 883.  We are unpersuaded
by the Greenfield opinion.  As the dissent in that case points out, the
result is inconsistent with the plain language of the Canon:
         The rule contains no such qualifying conditions and
         nothing should be added to it.  To require delay plus
         some other misconduct, such as falsification of records
         or insubordination, is to proscribe the other conduct,
         not to proscribe delay.

Id. at 305, 557 N.E.2d  at 1184, 558 A.2d  at 888 (Simons, J., dissenting).
Other courts have found violations of Canon 3A(5), or similar disciplinary
rules, on facts similar to those in Greenfield.  See, e.g., In re Jones, 728 P.2d 311, 314 (Colo. 1986); Starnes v. Judicial Retirement and Removal
Comm'n, 680 S.W.2d 922, 923 (Ky. 1984); In re Weeks, 134 Ariz. 521, 524, 658 P.2d 174, 177-78 (1983).  See also Matter of Sommerville, 364 S.E.2d 20, 22-
24 (W. Va. 1987) (collecting cases construing Canon 3A(5) and rejecting
argument that disciplinary proceedings are not proper vehicle for
controlling unreasonable judicial delays).  The matter was appropriately
before the Judicial Conduct Board.
     Appellant next argues that the Canon is not violated by a single
instance of excessive delay in rendering a decision.  We agree with this
argument in part.  Unlike other forms of misconduct, Canon 3A(5) violations
do not implicate a judge's personal honesty, see, e.g., Canon 5C(4)
(improperly accepting a gift), or the judge's integrity or impartiality,
see, e.g., Canon 3A(4) (engaging in ex parte communications).  Where honesty
or integrity are at issue, a single action can result in a finding of
judicial misconduct.  See In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361,
373-75 (1989); In re Mandeville, 144 Vt. 608, 609, 481 A.2d 1048, 1049
(1984).
     Canon 3A(5), however, focuses on a different problem:  a judge's
administrative capacity, specifically, the ability to set priorities and
complete tasks within an appropriate time.  Canon 3A(5) was drafted in part
in response to "reports about judges who procrastinated in deciding
proceedings that were ripe for decision."  E. Thode, Reporter's Notes to
Code of Judicial Conduct 54 (1973).  The drafters recognized that "Failure
of a judge to dispose promptly of the business of the court when there is no
justifiable reason for delay reflects adversely on the entire judicial
system."  Id. at 54-55.
     Heavy workloads in Vermont's trial courts mean that even the most
diligent trial judge will occasionally take an excessive length of time to
render a decision. (FN1) We do not believe such delays violate Canon 3A(5);
they are the necessary consequences of human fallibility and overburdening
of the judicial system.  Where, however, there is no legitimate
justification for delay or where there is a pattern of procrastination in
decisionmaking, the system fails to provide justice and the court's
institutional credibility is undermined.
     We conclude that Canon 3A(5) is violated where there is a pattern of
unreasonable delay or where a particular instance is so lacking in
legitimate justification that it is willful.  See Matter of Long, 244 Kan.
719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is
"significant, extensive, and unjustified"); Sommerville, 364 S.E.2d  at 23
n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of
delay resulting from either willful neglect of, or manifest inability to
effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97
n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if
"willful" or "typical of the judge's work"); Weeks, 134 Ariz. at 524, 658 P.2d  at 177-78 ("unnecessary, unwarranted delay" violates Canon 3A(5));
Starnes, 680 S.W.2d  at 923 ("chronic and pervasive" delays violate the
Canon).
     Our resolution of the second argument also resolves the last one.  The
plain meaning of Canon 3A(5) is not vague; our interpretation is not
unexpected.  We cannot conclude that appellant, on reading Canon 3A(5),
could have believed that a willful failure to dispose of the matters before
him within a reasonable time, or a pattern of unreasonable delay, conformed
to the requirements of the Code.  Nor can we conclude that the creation of
an administrative time standard for deciding cases is a prerequisite for
finding a violation of Canon 3A(5).  What is unreasonable in one case, e.g.,
a domestic abuse case, may be reasonable in another, e.g., a trial to court
in a complicated contract case.  Inevitably, the reasonableness of delay
and the requirements of the Canon must depend on the circumstances of each
case.
     In this case, the board acted on a complaint alleging a single instance
of delay.  It would be difficult for a single complainant to show that a
judge is habitually late or provide a context for a delay.  Complaints
about delay will most often come from interested persons -- parties and
their lawyers -- who know what happened in their own cases but may not know
or easily come to know the big picture.  But, the board cannot place the
delay in context if it limits its investigation solely to the facts of a
single complaint.  Once a complaint puts a judge's timeliness in issue, the
board has an obligation to investigate beyond the single case.
     Although the board can interpret the Code of Judicial Conduct "only in
connection with specific acts of conduct in matters before [it]," the
purpose of this rule is to prevent the board from issuing advisory opinions.
Rules of Supreme Court for Disciplinary Control of Judges, Rule 6(5).
Nothing restricts the scope of the board's investigation to the acts alleged
in the complaint.  Rather, the board has broad investigatory powers to
explore the alleged misconduct.  See id., Rule 6(1)-(3).  It must use these
powers in appropriate cases.
     Because the board failed to examine Judge Kilburn's actions in other
cases or the reasons for the delay in this case, we remand for further
proceedings.  On remand, the board should look at the reasons for the delay
in this case and Judge Kilburn's record of handling cases to determine
whether the delay here was an isolated instance or part of a more pervasive
problem.  See Jones, 728 P.2d  at 312 (faced with complaint alleging single
incident of delay, judicial conduct commission requested information from
judge about his other cases currently under advisement).  Both the
administrative judge for trial courts and the court administrator should
cooperate with the board in these proceedings.  The board should consolidate
with this matter investigation of any other complaints against Judge Kilburn
alleging unreasonable delay.
     The Judicial Conduct Board's finding of judicial misconduct is vacated
and the matter is remanded for further proceedings consistent with this
opinion.

                               BY THE COURT:


                               ________________________________________
                               Frederic W. Allen, Chief Justice


                               ________________________________________
                               Ernest W. Gibson, Associate Justice


                               ________________________________________
                               John A. Dooley, Associate Justice


                               ________________________________________
                               James L. Morse, Associate Justice


                               ________________________________________
                               Denise R. Johnson, Associate Justice




FN1.    Judge Kilburn's defense against the delay charge was based in part
upon his workload.  From September 1987 and March 1988, he was assigned as a
"floater" for the Addison district and superior courts, Franklin and
Chittenden district courts, and Grand Isle district and superior courts,
going from court to court as needed.  He next was assigned to Lamoille
district and superior courts for six months and then to Franklin district
court for six months.  He also contended that he had only limited law clerk
assistance during the entire period.