C.J. No. 7, 1992

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DEC 4 1992
#67

# IN THE COURT ON THE JUDICIARY OF THE STATE OF DELAWARE

In the Matter of:
S

THE HONORABLE DAVID P. BUCKSON,
S
a Judicial Officer
S
C.J. No. 7, 1992

Submitted:

October 2,

1992

Decided:

December 4, 1992

Before VEASEY, Chief Justice, HORSEY, MOORE, WALSH, and HOLLAND,
Justices, ALLEN, Chancellor, and RIDGELY, President Judge, con-
stituting the Court on the Judiciary.

On motion by Respondent that his counsel, conditionally
appointed by the Court, be compensated at State expense. DENIED.

Thomas Herlihy, III, Esquire, Herlihy, Harker & Kavanaugh,
Wilmington, Delaware, for Respondent.

Howard M. Handelman, Esquire, Bayard Handelman & Murdoch,
Wilmington, Delaware, Presenter.

Michael F. Foster, Esquire and John L. Reed, Esquire, for the
Department of Justice.

The issue before the Court on the Judiciary (the "Court") is
whether David P. Buckson (the "Respondent") is entitled to have the
State compensate his attorney for defending him against charges of
judicial misconduct in connection with proceedings before the Court
in which Respondent was removed from office and censured for
judicial misconduct. In re Buckson, Del. Jud., 610 A.2d 203 (1992)
(hereafter referred to as the "Opinion and Order" or as "Buckson") .
Respondent moves for such payment pursuant to Supreme Court Rule
("Supr. Ct. R.") 68 (e) . The motion is hereby DENIED.1

## FACTS

The facts are set forth in the Opinion and Order and will not
be repeated in full, but a brief summary is necessary for purposes
of this decision.

From May 1975 until April 30, 1992, Respondent was an
Associate Judge of the Family Court of the State of Delaware. As
such, he was bound by the Canons of The Delaware Judges' Code of
Judicial Conduct (the "Code"). On April 1, 1992, Respondent was

1/
Counsel for Respondent, Thomas Herlihy, III, Esquire, pre-
sented Respondent's "Motion for Compensation at State Expense"
on August 7, 1992, after the Court's Opinion and Order had
been entered on July 7, 1992. The amount of the requested
compensation as calculated in the motion is $14,614.97. A
brief in opposition was thereafter submitted by Howard M.
Handelman, Esquire (the Presenter appointed by the Court in
the underlying proceeding) , and Mr. Herlihy filed a reply. At
the Court's request, Michael F. Foster, Esquire (State
Solicitor) and John L. Reed, Esquire (Deputy Attorney General)
filed a brief on behalf of the Department of Justice. This
matter has been submitted to the Court for decision on the
briefs without oral argument.

charged with violating various provisions of Canon 1 and Canon 7 of
the Code because of certain political activities.

Respondent first publicly announced at a press conference on
March 30, 1992, his intent to pursue the Republican gubernatorial
nomination, which press conference and the ensuing media coverage
prompted Justice Henry R. Horsey, the then acting Chief Justice, 2
to contact Respondent on March 31, 1992. Respondent informed
Justice Horsey that the article was true and correctly reported his
intentions. On April 1, 1992, Chief Judge Vincent J. Poppiti of
the Family Court instituted an action against Respondent in the
Court on the Judiciary. The complaint charged Respondent with
violations of Canons 1 and 7 of the Code. Respondent was directed
to retire or resign from the Family Court before pursuing his
political objectives any further and was directed not to sit on any
cases while this proceeding was pending. Respondent refused to
resign or retire and continued to pursue the Republican nomination
while remaining a Judge of the Family Court.

On April 9, 1992, Respondent held a second news conference.
At that conference he reiterated that he desired to become Governor
and that he did not intend to retire prior to securing the
nomination. He further stated that he was no longer hearing Family
Court cases. Buckson, 610 A.2d at 212. Because Respondent

2/
As noted in the Opinion and Order, Justice Horsey, as Senior
Justice, was the Acting Chief Justice since former Chief
Justice Christie had retired on February 29, 1992, thus
creating a vacancy in that office until April 7, 1992, when
E. Norman Veasey was sworn in as Chief Justice. See Buckson,
610 A.2d at 210 n.9, 212.

intended to secure the endorsement of the Republican Convention for
the gubernatorial nomination on May 9, 1992, it was necessary for
the Court to expedite the proceeding, and the Court did so, as
shown by the procedural history of the case set forth in the
Opinion and Order. Id. at 208-12.

When a complaint is filed with the Court on the Judiciary, the
Chief Justice may direct the Preliminary Investigatory Committee
(the "Committee") to investigate any alleged judicial misconduct.
After conducting an investigation, the Committee files a written
report with the Court. In the present case, this was done and the
Committee's report concluded that Respondent's political activities
constituted probable cause to believe that he may be subject to
censure, suspension, removal, or retirement under Article IV, § 37
of the Delaware Constitution ("Art. IV, § 37"). Upon receiving the
report of the Committee, the Chief Justice appointed a Board of
Examining Officers (the "Board") pursuant to Court on the Judiciary
Rule ("Ct. Jud. R.") 5 (a) .

On April 8, 1992, pursuant to Ct. Jud. R. 6, the Board issued
Respondent an order to show cause why he should not be disciplined
and directed him to appear at a hearing on April 14, 1992. The
order informed him of his rights and duties pursuant to Ct. Jud. R.
7 (d) , which rule provides, in part, that a respondent "must be
represented by counsel and if he is not represented by counsel of
his choice, the Board shall appoint counsel to represent him at all
stages of the proceedings before it." The order also advised
Respondent that he was required to notify the Board before 4:00

p.m. on April 10, 1992, if he intended to invoke Supreme Court Rule
68 which authorizes the appointment of private counsel for officers
of the State in certain defined circumstances. Supr. Ct. R. 68 (a)
provides:

(a) Petitions for Appointment. A public
officer or employee of the State named as a
defendant in a civil or criminal action
brought in a court of the State of Delaware or
in the United States District Court for the
District of Delaware for acts arising out of
his employment by the State may petition for
appointment of counsel; provided, however,
that a complaint filed in the Court on the
Judiciary shall not be deemed a "civil or
criminal action brought in a court of the
State of Delaware" unless and until the Court
on the Judiciary shall have appointed an
Examining Board under Rule 5 of the said Court
in connection with such complaint. A petition
for appointment of counsel shall be verified
by the petitioner and shall state (1) the
caption of the action against him, (2) the
name of the court in which the action was
brought, (3) the nature of the claim against
the petitioner, (4) facts supporting the
petitioner's claim that the action against him
arises out of his employment with the State,
and (5) if appointment of private counsel is
sought, the reasons why the Department of
Justice, in a civil action, or the public
defender, in a criminal action, is unable to
provide the petitioner representation.3/

3/
In this matter, the Attorney General advised the Board on
April 13, 1992, the day prior to the hearing before the Board,
that the charges were such that they did not involve acts
arising out of Respondent's employment, "but were, in fact,
extrajudicial activities or conduct which would preclude
[Respondent] from receiving appointment of counsel by the
Department of Justice or private counsel at state expense
under Supreme Court Rule 68." Transcript of April 14, 1992,
Board Hearing at p. 4. See also Buckson, 610 A.2d at 211-12,
220-21. The Attorney General and the Presenter have likewise
taken that position before this Court, and, accordingly oppose
Respondent's motion.

Respondent advised the Board that he was unable to retain an
attorney prior to April 14 and elected not to appear at the hearing
in person or by counsel. The hearing proceeded in his absence and
a report was drafted. Respondent received the draft on April 15
and had until April 20 to submit exceptions to it. The Board's
final report was due on that date.

Prior to the filing of the final report on April 20, Thomas
Herlihy, III, Esquire, informed the Court that Respondent wished to
retain his services and that a petition for his appointment
pursuant to Supreme Court Rule 68 would follow. The petition was
filed later that day and was deficient in at least three respects.
First, the petition was not filed in a timely manner since this
Court's April 7, 1992 Order clearly established April 10, 1992 as
the deadline for a Rule 68 petition. Second, the petition failed
to allege any facts supporting petitioner's claim that the action
against him arises out of his employment with the State. Supreme
Court Rule 68 (a) (4) expressly requires such facts to be set forth
in the petition. Third, the petition raised serious "concerns
regarding the issue of the ultimate entitlement of appointed
counsel for respondent to be compensated or reimbursed at State
expense.
"
Buckson, 610 A.2d at 212.
Nevertheless, the
urgency of the matter prompted the Court to appoint Mr. Herlihy as
counsel for the Respondent, but the Court imposed several condi-
tions upon the appointment so as to preserve the unresolved issues
for resolution at a later date. The April 21, 1992 Order provides,
in part:

(4) Thomas Herlihy, III is hereby appointed as
counsel for respondent, but such appointment
is conditional in that: (i) the expedited
nature of this proceeding requires that he be
empowered to act as counsel for respondent
within the time limitations established; [and]
(ii) no determination is made or implied that
such counsel is entitled to any compensation
or reimbursement of expenses at State
expense. .. .

Id. (emphasis supplied). Respondent and his attorney elected to
proceed with the matter on such conditional basis.

In its April 30, 1992 Order, the Court found Respondent's
continuing political activity to be "unethical, deplorable,
irresponsible, [and] demeaning of a judicial office." The Court
concluded that Respondent failed to observe and maintain the high
standards of conduct required of judges and that he jeopardized the
integrity and independence of the judiciary. Pursuant to Art. IV,
§ 37 of the Constitution and Ct. Jud. R. 9(c) (5), the Court
censured Respondent for violating various provisions of Canons 1
and 7 of the Code and ordered him removed from the office of
Associate Judge of the Family Court of the State of Delaware.
Buckson, 610 A.2d at 225-28.

## APPOINTMENT OF COUNSEL FOR STATE OFFICERS AND EMPLOYEES

### Respondent now seeks to have the State compensate Mr. Herlihy pursuant to Supr. Ct. R. 68 (e), which provides as follows: (e) Costs and Attorneys Fees.

(1) Private counsel appointed under
this rule shall be compensated for their
services at a rate which is ordinary and
usual in comparable cases in this

jurisdiction and which is in accord with
the applicable principles of Canon 2,
Disciplinary Rule 2-106, Code of Pro-
fessional Responsibility. Whenever
appointed counsel prosecutes compulsory
or permissive counterclaims or cross-
claims, he or she shall obtain the
express consent of his or her client to.
do so and said counsel shall apportion
his or her fees for such counterclaims or
cross-claims. The public officer or
employee whom said counsel represents
shall be responsible for such apportioned
fees and expenses unless the appointing
court, for good cause shown, shall other-
wise order.

(2) Private counsel appointed under
this rule shall be reimbursed for costs
incurred in representing a state officer
or employee at a rate which is ordinary
and usual in comparable cases in the
jurisdiction. Such counsel, however,
shall petition the appointing court in
advance for authorization to incur costs
or charges for transcripts, interpreters,
investigators, expert witnesses and for
other costs of extraordinary amount or
for unusual services connected with the
litigation.

(3) Private counsel entitled to
compensation or reimbursement under this
rule shall apply to the appointing court
for payment at the conclusion of the
litigation except, upon a showing of
sufficient need, the application may be
made at any time during the pendency of
the litigation. The Superior Court may
consult with the presiding judge in cases
encompassed by (b) (2) above.

Mr. Herlihy was conditionally appointed to represent Respondent
because of the exigent circumstances of the case as the Opinion and
Order show. Buckson, 610 A.2d at 208-12. As a result, the
language in Rule 68 (e) is not applicable in this unique case
because that provision presupposes entitlement to compensation,

which entitlement has not been established and was expressly
reserved in the April 21, 1992 Order. The conditions this Court
imposed upon Mr. Herlihy's appointment in that order control the
resolution of the motion which is presently before this Court.
Compensation may not be granted unless Respondent has established
entitlement to compensation under the express provisions of Supr.
Ct. R. 68 (a).

Rule 68 (a) provides that public officers of the State of
Delaware who are named as defendants in a civil or criminal action
may petition for appointment of counsel where the officer is a
defendant in proceedings "arising out of his employment by the
State. . . . " Moreover, the rule expressly states:

[P]rovided, however, that a complaint filed in
the Court on the Judiciary shall not be deemed
a "civil or criminal action brought in a court
of the State of Delaware" unless and until the
Court on the Judiciary shall have appointed an
Examining Board under Rule 5 of said Court in
connection with such complaint.

Supr. Ct. R. 68 (a). In this proceeding the Court appointed the
Board in its April 7, 1992 Order, thus triggering this provision of
Supr. Ct. R. 68 (a).

The political activities undertaken by Respondent clearly did
not constitute "acts arising out of his employment" as an Associate
Judge of the Family Court. Respondent's pursuit of the Republican
gubernatorial nomination was a personal endeavor that unques-
tionably falls outside the purview of his judicial office. The
powers of a judge are those conferred upon him by the Constitution
and by statute and those that are inherent in the office. Canon 7

of the Delaware Judges' Code of Judicial Conduct expressly cautions
judges not to "engage in any. . . political activity except on
behalf of measures to improve the law, the legal system or the
administration of justice." Seeking the Republican gubernatorial
nomination clearly falls within conduct prohibited by this
constraint.

The meaning of the phrase "arising out of employment" has been
addressed by the courts of this State in the context of the
workers' compensation law. In that context, an action arises out
of employment "if it arises out of the nature, conditions, obliga-
tions or incidents of the employment, or has a reasonable relation
to it." Dravo Corporation v. Strosnider, Del. Super., 45 A. 2d 542,
544 (1945) ; Barnes v. Panaro, Del. Supr., 238 A.2d 608, 609
(1968) ("arising out of employment" refers to origin and cause) .
Claiming to be consistent with this definition, Respondent argues
that he was engaged in the "act" of remaining a judge after
announcing his intent to pursue the gubernatorial nomination. He
claims that this act necessarily arises out of his employment as a
judge and entitles him to appointment of counsel at State expense.
While it is true that the act of serving as a judge arises out of
employment with the State, Respondent's reasoning is circular and
is completely without merit. Respondent was removed from office
because he compromised the independence and integrity of the
judiciary by pursuing the gubernatorial nomination without first
resigning his judicial office. The act of remaining a judge after
his political aspirations and activities were publicized simply

rendered the act a continuing course of misconduct. Respondent's
political activities plainly do not arise out of the nature, condi-
tions, obligations, or incidents of his employment, or have a
reasonable relation to it.

Judicial duties include all those which are essential to
accomplishing the primary purpose of the judicial office that of
conducting authorized judicial proceedings and rendering judgments.
See 46 Am. Jur. 2d Judges § 21 (1969) . This principle is reflected
in Canon 1 of the Code which recognizes "[a]n independent and
honorable judiciary [as] indispensable to justice in our society."
By pursuing the gubernatorial nomination, Respondent took actions
which not only went outside his duties as a judge, they compromised
the independence and integrity of the judiciary. Respondent's
candidacy and resulting political activities were intentional,
knowing, and voluntary acts taken with gross disregard and
unconcern for the judicial office which he swore to uphold. Such
political activity is judicial misconduct and does not arise out of
a judge's employment with the State. Thus, Supr. Ct. R. 68 does
not authorize compensation at State expense under the circumstances
of this case.

The preclusionary effect of Supr. Ct. R. 68 applies to those
acts which do not arise out of one's employment with the State.
Where public officers and employees of the State are charged with
multiple forms of misconduct, the Court should distinguish among
the various charges of misconduct and determine which arise out of
employment with the State and which do not. If the accused is

entitled to Court appointed representation, at State expense, it is
only for those charges that arise out of employment with the State.
The presence of misconduct which does not arise out of a State
employee's course of employment does not preclude the Court from
appointing counsel, at State expense, on any charge which does
arise out of employment with the State. Each charge must be
considered and treated on an independent basis. Where compensable
and noncompensable charges coexist, the Court may apportion costs
accordingly. Apportionment is not always practical, necessary, or
appropriate, however. The Court has broad discretion in the
awarding or denial of counsel fees, both as to entitlement and
amount. We need not decide whether the Court may, in a given case,
decline to award any compensation or may award full compensation
without apportionment where arguably compensable issues and non-
compensable issues coexist. There are no arguably compensable
issues present here.4

4/
Respondent relies on In re Barrett, Del. Jud., 593 A.2d 529
(1991) , where a Justice of the Peace was suspended for (1)
engaging in political activity while in office, (2) doing
gratuitous title searches for policemen while in office, (3)
chronic tardiness, and (4) purchasing jewelry from a defendant
at the courthouse while court was in session. Although not
reflected in the reported opinion, the Court appointed private
counsel and, after the opinion issued, awarded counsel
compensation at State expense in the full amount requested
($1720) without any discussion of Rule 68 or the issues of
entitlement or apportionment. Since some of the charges were
arguably compensable, it may not have been practical for the
Court to engage in the mathematical exercise of apportioning
this modest charge. Barrett is obviously distinguishable from
this case. It should not be read, in any event, as precedent
for the entitlement to compensation of appointed counsel for
services or expenses related to charges involving activities
not arising out of a public officer's employment, which is the
sole matter presented here.

Respondent next contends that the requirement of appointment
of counsel under Ct. Jud. R. 7(d) is unqualified and mandatory,
thus entitling him to have the State compensate his attorney. Rule
7 (d) provides, in part, that a respondent "must be represented by
counsel and if he is not represented by counsel of his choice, the
Board shall appoint counsel to represent him at all stages of the
proceedings before it." Respondent's reliance on this provision is
misplaced. As we stated:

Although Ct. Jud. R. 7(d) is a procedural rule
which confers a procedural right to be
represented by counsel at the Board hearing,
it does not create a substantive right to the
appointment of counsel.

Buckson, 610 A.2d at 220.

Moreover, in this matter, the Board found:

Judge Buckson's position is untenable. Rule
7(d) uses the phrase "shall appoint counsel"
as the appointment of counsel is defined in
Supreme Court Rule 68. Under Rule 68 (and
under my April 7, 1992, Order), a person must
petition for the appointment of counsel.
Furthermore, even though the phrase "shall
appoint" in Rule 7(d) is nondiscretionary on
its face, it obviously means that the Board
shall appoint counsel when the petitioner is
entitled to the appointment. It is ridiculous
to argue that this phrase requires the Board
to appoint counsel to a respondent in every
case in this Court because such would result
in the wasting of state resources via the
state funding of state employees' legal
defenses for matters not related to their
state employment.

Id. at 214. We agree. Thus, Respondent's rights under Ct. Jud. R.
7 are no greater than his rights under Supr. Ct. R. 68.

#### CONCLUSION

NOW, THEREFORE, IT IS ORDERED that Respondent's Motion for
Compensation at State Expense be, and the same hereby is, DENIED.

In re Family Court Judge, 616 A.2d 327 (Del. Jud. 1992)

Gesamter Gesetzestext

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