In re Family Court Judge, 610 A.2d 203 (Del. Jud. 1992)

OCR transcription for search; preserved printed pages are authoritative

# 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

JUL -7 1992

COURT ON THE JUDICIARY.,
RECEIVED and FILED.

Submitted:

April 29, 1992

Decided by Order:

April 30, 1992

Opinion:

July 7, 1992

Wilmington

DEPUTY CLERK
02 |1 - 8 PM 3:52

FILED

DELAWARE SUPREME COURT

10ID
Che

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

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

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

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CAMI CI DE TOOKLE

LECTACD 69 L0:

This matter is before the Court on the Judiciary (the
Court"), for determination of several issues arising out of
charges of alleged misconduct filed against the respondent, the
Honorable David P. Buckson, an Associate Judge of the Family Court
of the State of Delaware ("Judge Buckson" or "respondent"). The
conduct in question involves political activities of Judge Buckson
in his attempt, without first resigning his judicial office, to
seek the endorsement of his party convention for the nomination for
the office of Governor of the State of Delaware. Respondent has
been an Associate Judge of the Family Court of the State of
Delaware for Kent County since May 1975. Although his 12-year term
has expired, he has held that office in hold-over status pending
action by the Senate on a gubernatorial nomination to fill the
office presently held by him.1

The Preliminary Investigatory Committee (the "Committee") of
the Court found, on April 6, 1992, pursuant to Rule 3 (b) of the

1/
Such hold-over status is a phenomenon of Delaware statutory
judgeships, such as those of the Family Court. Del. Const.
Art. XV § 5. Constitutional judgeships (such as those of the
Supreme Court, Court of Chancery, and Superior Court) do not
hold over, except to the extent that judges of constitutional
courts continue to hold office for 60 days following expira-
tion of their terms or until their successors are confirmed
and take the oath of office. Del. Const. Art. IV S 3.
Notwithstanding the fact that certain judges of statutory
courts, such as respondent, are continuing to hold office as
hold-overs, such judges are de jure judges, and hold office
with legitimacy equal to that of judges of the same court
whose terms have not expired. Barron v. Kleinman, Del. Supr.,
550 A.2d 324 (1988). Also, a hold-over judge is bound by the
Delaware Judges' Code of Judicial Conduct and is subject to
the jurisdiction of the Court on the Judiciary under Article
IV Section 37 of the Delaware Constitution.

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Rules of the Court on the Judiciary ("Ct. Jud. R."), that the Court
has jurisdiction in the matter and found probable cause to believe
that respondent may be subject to censure, suspension, removal, or
retirement under Article IV Section 37 of the Delaware Constitu-
tion. Thereupon, the Court entered an order on April 7, 1992 (the
"April 7 Order"), appointing Vice Chancellor William B. Chandler,
III as the Board of Examining Officer (the "Board"), pursuant to
Ct. Jud. R. 5(a) . The Board held an evidentiary hearing on April
14, 1992, and issued its Final Report on April 21, 1992 (the "Final
Report"). Respondent had notice and an opportunity to be heard
before both the Committee and the Board, but he chose not to attend
and was not represented by counsel before the Committee or at the
evidentiary hearing before the Board.2 The record now before the
Court includes the testimony, exhibits, and other proceedings
before the Board as set forth in the transcript of the April 14,
1992, hearing (the "Hearing Transcript") .

2/
Thomas Herlihy, III, Esquire was (conditionally) appointed by
order of the Court dated April 21, 1992 (the "April 21 Order")
to represent Judge Buckson pursuant to respondent's April 20,
1992, petition requesting such appointment. Although respon-
dent was not represented by counsel at the hearing before the
Board, he was represented by counsel before the Board pro-
ceedings were final. Such counsel filed comprehensive
objections to the Board's draft report, which objections were
considered by the Board before issuance of its Final Report.
The April 21 Order also appointed Howard M. Handelman, Esquire
("Presenter") to uphold the Final Report in proceedings before
the Court. Mr. Handelman was appointed by the Board, in its
Order of April 8, 1992, as the Presenter before the Board.
The conditional nature of Mr. Herlihy's appointment related to
the fact that such appointment did not establish any entitle-
ment to compensation at public expense. See April 21 Order,
page 3, paragraph 4.

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The Board in its Final Report found that the clear and
convincing evidence? showed that Judge Buckson's activities made
him a candidate for non-judicial office and that such activities
constituted intentional violations of Canons 1, 7A(2), 7A(3) and 7C
of the Delaware Judges' Code of Judicial Conduct (the "Code") ."
The Board concluded that respondent should be removed from office,
publicly censured for his actions, and ordered to return all monies
received by him from the State as a judicial officer from March 31,
1992, until the date of his removal. The Board rejected
respondent's contention that he was denied procedural due process.

After briefing and oral argument by counsel for respondent and
the Presenter, a unanimous decision was announced by this Court on
April 30, 1992, which decision is set forth in the Order entered at
12: 00 noon EDT on that date (the "April 30 Order") (attached hereto
as Appendix A). See Ct. Jud. R. 9(c) (5). This is the formal
Opinion of the Court, more fully explicating the issues decided in
the April 30 Order.

3/
The Rules of the Court on the Judiciary require that "facts
justifying action shall be established by clear and convincing
evidence." Ct. Jud. R. 7 (f) .

원
The Final Report concluded that the Board could not find that
Judge Buckson violated Canon 7B because he "is not a candidate
in a party primary since no party primary has occurred or is
occurring." Final Report pp. 13-14. Canon 7B provides, in
pertinent part as follows:

B. A judge should resign his office when he
becomes a candidate either in a party
primary or in a general election for a
nonjudicial office.

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The Court in its April 30 Order found that the record
establishes by clear and convincing evidence that respondent
intentionally violated Canons 1, 7A(2), 7A(3), and 7C of the Code
and that such misconduct was "persistent" and "wilful" as
proscribed by Article IV Section 37 of the Delaware Constitution.
The Court ordered that respondent be removed from office and cease
all judicial activities as of noon April 30, 1992. The Court found
that respondent's continuing misconduct was unethical, deplorable,
and irresponsible. The Court further found that respondent's
behavior was demeaning of a judicial office in that it failed to
observe and maintain the high standards of conduct required so that
the integrity and independence of the judiciary may be preserved.
Accordingly, respondent was publicly censured. The Court did not,
however, find that there was clear and convincing evidence to
support any forfeiture, including restoration of monies paid to
respondent from March 31, 1992, to the date of the April 30 Order.

## I. THE APPLICABLE PROVISIONS OF THE CODE, THE CONSTITUTION, AND THE RULES OF COURT

The central issue on the merits involves the proper interpre-
tation and application of Canons 1 and 7 of the Code," which
provisions state, in pertinent part, as follows:

5/
The Code was adopted by the Delaware Supreme Court in 1974 and
is currently applicable. The American Bar Association adopted
in 1990 a new Model Code of Judicial Conduct (the "ABA Model
Code"). The ABA Model Code is under consideration by a
committee appointed by the Delaware Supreme Court.

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# CANON 1

## A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is
indispensable to justice in our society. A
judge should participate in establishing,
maintaining, and enforcing, and should himself
observe, high standards of conduct so that the
integrity and independence of the judiciary
may be preserved. The provisions of this Code
should be construed and applied to further
that objective.

# CANON 7

## A Judge Should Refrain from Political Activity Inappropriate to His Judicial Office

A. A judge should not:
*
*

(2) Make speeches for a political
organization or candidate or
publicly endorse a candidate for
public office;

(3)
Solicit funds for or pay an assess-
ment or make a contribution to a
political organization or candidate,
attend political gatherings, or
purchase tickets for political party
dinners, or other functions;

c.
A judge should not engage in any other
political activity except on behalf of
measures to improve the law, the legal
system or the administration of justice.

The authority and mechanism for determining whether or not a
judge has violated the Code and the sanctions for any such
violation are established in Article IV, Section 37 of the Delaware

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Constitution.
That section provides, in pertinent part, as
follows:

### S 37. Court on the Judiciary.

Section 37. A court on the Judiciary is
hereby created consisting of the Chief Justice
and the Associate Justices of the Supreme
Court, the Chancellor, and the President Judge
of the Superior Court.

Any judicial officer appointed by the
Governor may be censured or removed or retired
by the Court on the Judiciary as herein
provided.

A judicial officer may be censured or
removed by virtue of this section for wilful
misconduct in office, wilful and persistent
failure to perform his duties, the commission
after appointment of an offense involving
moral turpitude, or other persistent mis-
conduct in violation of the Canons of Judicial
Ethics as adopted by the Delaware Supreme
Court from time to time.

No judicial officer shall be censured or
removed or retired under this section unless
he has been served with a written statement of
the charges against him, or of the grounds of
his retirement, and shall have had an oppor-
tunity to be heard in accordance with due
process of law. The affirmative concurrence
of not less than two-thirds of the members of
the Court on the Judiciary shall be necessary
for the censure or removal or retirement of a
judicial officer. The Court on the Judiciary
shall be convened for appropriate action upon
the order of the Chief Justice, or upon the
order of any other three members of the Court
on the Judiciary. All hearings and other
proceedings of the Court on the Judiciary
shall be private, and all records except a
final order of removal or retirement shall be
confidential, unless the judicial officer
involved shall otherwise request.

Upon an order of removal, the judicial
officer shall thereby be removed from office,
all of his authority, rights and privileges as

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a judicial officer shall cease from the date
of the order, and a vacancy shall be deemed to
exist as of that date.

The Court on the Judiciary shall have:
*
*
*

(b) the power to adopt rules establishing
procedures for the investigation and trial of
a judicial officer hereunder.

The Court has adopted rules which provide certain procedures
and time periods within which the Committee, the Board, and the
Court are required to perform their respective functions. See,
e.g., the following Rules of the Court: Rule 3 (d) (2) (Committee
shall determine jurisdiction within 20 days) ; Rule 3 (d) (4)
(pursuant to Supreme Court Rule ("Supr. Ct. R.") 68 (a) counsel will
not be appointed for a judicial officer at state expense; failure
of judicial officer to answer complaint within 15 days deemed to be
admission) ;"' Rule 3 (d) (5) (Committee shall file its written report
within 40 days of docketing complaint) ; Rule 6(b) (hearing before
the Board to be held at earliest practicable time, not later than
60 days after appointment of the Board, and Board's order to show
cause shall be served on respondent at least 40 days before hearing
date) ; Rule 6(c) (respondent shall file answer to order to show
cause within 15 days) ; Rule 7(d) (respondent must be represented by
counsel before the Board and if he is not represented by counsel of
his choice, the Board shall appoint counsel to represent him at all

6/
Under Supr. Ct. R. 68 (a), an application for appointment of
counsel for a judicial officer in a proceeding before the
Court on the Judiciary is not ripe until the Court has
appointed an Examining Board under Ct. Jud. R. 5.

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stages of the proceedings before it) ; Rule 7(e) (respondent shall
file praecipes for subpoenas at least five days before hearing
date) ; Rule 8 (a), (b) and (c) (Board to prepare draft report at the
earliest practicable time but not later than 30 days after final
hearing, and during the ten day period after service of that draft
report respondent may file objections) ; Rule 9 (c) (2) (respondent
may file exceptions to Board's final report within ten days after
the report filed with the Court) ; and Rule 9 (c) (5) (Court shall
file written opinion and order at earliest practicable time
deciding disposition of charges against respondent).

Notwithstanding such provisions, Rule 10(f) provides that time
periods may be extended by the Chief Justice upon motion for good
cause shown, and Rule 10(i) provides that any rule may be suspended
for a specific case by special order of the Court. Rule 10(i) was
specifically invoked by the Court in various orders which shortened
substantially several of the time periods .? The need to expedite
the proceedings was found to exist because, inter alia: the
political activity in question had commenced on or about March 30,
1992; that activity was continuing; and Judge Buckson stated that
he intended to pursue his candidacy to the Republican State
Convention on May 9, 1992. His limited response to these pro-
ceedings was to tender to the Governor a letter of resignation of

7/
While Rule 10(f) requires "good cause" to enlarge the time
periods, Rule 10(i) does not require "good cause" to suspend
the rules. Nevertheless, the recitals in the applicable
orders of the Court in this matter set forth facts which
establish that good cause existed. See, e. g., April 1, 7, 21,
and 23 Orders.

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his judicial office. The letter was dated April 13, 1992, but not
effective until midnight April 30, 1992.

### II. PROCEDURAL HISTORY

This proceeding commenced on April 1, 1992, with the filing of
a complaint in this Court by the Honorable Vincent J. Poppiti,
Chief Judge of the Family Court of the State of Delaware. Pursuant
to Section 37 of the Delaware Constitution, the complaint and all
subsequent proceedings were cloaked with confidentiality and
remained so until April 22, 1992, when respondent waived confiden-
tiality." The complaint asserts that respondent violated various
provisions of Canon 1 and Canon 7 of the Code. The complaint
recited the fact that respondent, on or about March 30, 1992,
publicly announced in a press release attached to the complaint
that it was his "intent to have my name placed before the
Republican Convention to be the gubernatorial nominee for Governor
of Delaware. The party deserves a choice." The respondent went on
to state in that press release the following:

&/
Under Article IV § 37 of the Constitution and Ct. Jud. R.
10(d), all records and proceedings, except a final order of
removal or retirement, are confidential "unless the Court
shall otherwise order on request of the judicial officer
involved." Since respondent had released selected material to
the news media, the Court inquired whether respondent was
waiving confidentiality. After some initial confusion in
which counsel for respondent initially advised that confiden-
tiality would not be waived, respondent on April 22, 1992,
finally delivered a handwritten note to the Clerk of the Court
waiving confidentiality. The Court thereupon entered an order
on April 22, 1992 (the "April 22 Order") releasing the pro-
ceedings from the confidentiality requirement.

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This is not partisan politics and, there-
fore, not in violation of any rules pertaining
to the judiciary. When I am the nominee, I
will resign my present position and ask the
Governor to promptly name a successor accept-
able to the Senate.

Based upon the contacts by many people
since my November announcement, I have state-
wide support. My plan is to attend functions
of many of the Republican Party organizations
to gain delegates to the convention by
presenting my qualifications, . . .

\*
\*

Based upon my experience in state govern-
ment, I am eminently qualified to be Governor
of Delaware . . . certainly more so than any
person mentioned for the office to date.

So
on to the convention!
Thanks,

David P. Buckson

Also on April 1, 1992, Chief Judge Poppiti, acting pursuant to
the administrative authority of 10 Del. C. SS 908 (1) and (7), in a
private and confidential communication, directed respondent as
follows (to which respondent the next day provided handwritten
responses as noted in bold and italicized type) :

1\)
You shall not hear or decide any judicial
matters or act in any judicial capacity
whatsoever until the propriety of your
political activity has been resolved;

Agreed. DPB. Was done before receiving
your directive.

2\)
You shall either immediately publicly
retract your declaration of your inten-
tion to seek political office together
with a statement that as long as you
remain a Family Court Judge you will not
actively seek political office or engage
in political activities of any nature or

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that you resign or retire forthwith from
the Family Court; and

Disagree. DPB.

3\)
You shall deliver to me a detailed
written response to each of these direc-
tives not later than Thursday, April 2,
1992, at 12:00 noon.

Agree to date & time. DPB.

On the same day, this Court entered an order dated April 1,
1992, signed by Senior Justice Henry R. Horsey as Acting Chief
Justice, pursuant to Article IV Section 13 of the Delaware
Constitution, in view of the then vacancy in that office (the
"April 1 Order"). The April 1 Order called for expedited pro-
ceedings by providing inter alia, as follows:

\*
\*

\*
4\) Because the apparent political
activities of Judge Buckson are intended to
secure him the nomination of a political
office by May 9, 1992, Justice Horsey has also
concluded that it is necessary to recommend
the entry of a special expedited order in this
case, suspending and superseding the Rules
which provide time periods for action by the
Preliminary Investigatory Committee.

5\) The Court has determined that a
special expedited order should be entered in
this specific case. Ct. Jud. R. 10(i).

NOW, THEREFORE, pursuant to Rule 10(i),
IT IS HEREBY ORDERED that the times set forth
in Rule 3 (d) (2) and (5) are suspended in this
specific case and superseded.

(Emphasis supplied.) This Order then set forth a schedule
requiring the Committee to act by April 6, 1992. The Order was

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personally served on respondent's wife on April 1, 1992 at 6:30
p.m.

The following day, April 2, 1992, the Committee notified
respondent by letter of the same date, that it was providing him
with an opportunity to appear and be heard on the complaint on
April 6, 1992, a closed hearing to be held at Courtroom No. 2 of
the Kent County Courthouse in Dover, a short distance from
respondent's home. Respondent elected not to appear. Instead,
respondent sent to the Committee a handwritten notation on its
April 2 letter as follows:

To:
Panel Members

From:
David P. Buckson

I respectfully decline to attend.

The person who selected the time, place &
date for the hearing is either out of touch
with reality or wants the meeting publicized.
I prefer to believe the former.

My appearance at Kent Co Ct. house with 3
strangers at 10: am on a Monday morning would
result in an influx of news media.

Holding a confidential meeting in a
courtroom in Kent Co. is not acceptable to me.
Therefore, I will not attend.

I will reply in the required time when I
receive your decision.

Respectfully,

David P. Buckson

4 Apr. 92

On April 6, 1992, the Committee concluded the Court has
jurisdiction, finding as follows:

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The facts found by the Committee
establish prima facie that Judge Buckson is
engaged in political activity inappropriate to
his judicial office and in violation of
Article IV, § 37 of the Delaware Constitution.

Committee Report, April 6, 1992, at p. 4.

Thereupon, the Court entered an order on April 7, 1992 ("April
7 Order"), signed by the Chief Justice,? which order provided,
inter alia:

(3) Respondent has previously publicly
announced his intention to seek the nomination
of his party for the office of Governor of the
State of Delaware and has stated that he
intends to hereafter engage in political
activity preliminary to the State convention
of his party on May 9, 1992. Contrary to the
directive of April 1, 1992, the respondent has
refused to retire or resign from the Family
Court before pursuing his political objec-
tives, and it appears that he is actively
attending political functions as a Family
Court Judge while seeking political office.
Thus, the Court on the Judiciary is required
to expedite the matter in view of respondent's
activities and his May 9 objectives.

(4) Pursuant to Rule 5(a), the Court is
required to appoint a Board of one or more
Examining Officers (hereafter "Board") to
carry out the duties of the Board, as set
forth in the Rules. Respondent thereupon is
entitled under Supreme Court Rule 68(a) to
apply for appointment of counsel. If respon-
dent desires to seek appointment of counsel,
the Board shall require him to inform the
Board on or before April 10, 1992 of his
intention to invoke Supreme Court Rule 68, and
respondent shall thereupon be required to
immediately file his petition with the Board,
pursuant to Supreme Court Rule 68 (c).

2/
On April 7, 1992, E. Norman Veasey was sworn in as Chief
Justice of the Delaware Supreme Court and thereby became a
member and the presiding officer of the Court on the
Judiciary.

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(5) Pursuant to this Court's Order dated
April 1, 1992, paragraphs (4) and (5), and Ct.
Jud. R. 10(i) , the time requirements of Rules
6, 7 and 8 are also suspended and superseded
in the following respects: (i) the Board is
directed to file its final report as promptly
as practicable and, consistent with the
interests of justice, and no later than
Monday, April 20, 1992 at 4:00 p.m .; (ii) the
Board shall issue and serve upon respondent,
pursuant to Ct. Jud. R. 6(b), its Order to
Show Cause within three days of the date of
this Order which order shall designate the
time, date and place of the Board's hearing;
(iii) respondent shall file with the Clerk,
pursuant to Ct. Jud. R. 7(e), any praecipes
for the issuance of subpoenas and the produc-
tion of books and documents at least three
days prior to the time of the Board's
scheduled hearing; (iv) pursuant to Ct. Jud.
R. 8 (a) , the report of the Board shall include
any findings of fact, conclusions of law, and
recommendations of relief, pendente or final,
which the Board deems appropriate in the
circumstances; and (v) within three days of
the date of the issuance and service of the
Board's draft report and respondent's receipt
of a transcript of the Board's hearing,
respondent may file with the Board any state-
ment or objection to the draft report.

(Emphasis supplied.)

By its order dated April 8, 1992, the Board issued an Order to
Show Cause to respondent, directing him to appear on April 14,
1992, at the Supreme Court Hearing Room in Wilmington, and to show
cause before the Board why he should not be censured, suspended,
removed, or retired. The Order to Show Cause also provided:

Your attention is specifically directed
to Ct. Jud. R. 7(d) which provides 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," together with the provisions of
Supreme Court Rule 68 authorizing appointment

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of private counsel for public officers of the
State in certain defined circumstances.

Further, in accordance with the April 7,
1992, Order of the Court on the Judiciary, you
shall advise the Board on or before 4:00 p. m.
Friday, April 10, 1992, of your intention to
invoke Supreme Court Rule 68 and you shall
immediately file your petition with the Board
pursuant to Supreme Court Rule 68 (c).

Pursuant to Ct. Jud. R. 6(c) and the
April 7, 1992, Order of the Court on the
Judiciary, respondent shall file with the
Board an answer to this Order on or before
4:30 p.m. Monday, April 13, 1992.

(Emphasis supplied.)

On April 13, 1992, the day before the scheduled Board hearing,
respondent called Vice Chancellor Chandler on the telephone and
informed the Board that respondent did not intend to appear, but
meant no disrespect. There ensued a discussion of respondent's
attempt to obtain counsel. Respondent also left a message on April
14, 1992, with a secretary at the Supreme Court Chambers five
minutes before the hearing before the Board was scheduled to
commence. In that message, respondent informed the Board that he
did not yet have counsel, but he intended to obtain counsel.
Respondent elected not to appear before the Board, in person or by
counsel. The hearing before the Board proceeded. The Board made
a record of the various conversations with respondent1% and
proceeded to receive evidence offered by the Presenter.

10/
The recitation of these conversations is set forth at pp. 2-7
of the transcript of the April 14, 1992, proceedings before
the Board.

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Also on April 13, 1992, respondent sent a handwritten letter
to Governor Castle!l' stating as follows:

To: Governor Castle

Please be informed that I am retiring
effective last minute of the last day of April
1992.

David P. Buckson
April 13, 1992

On April 15, 1992, the Board sent its draft report to
respondent. On April 20, 1992, the day the Board's Final Report
was due to be filed in this Court, Thomas Herlihy, III, Esquire,
advised the Court that he had been asked by respondent to represent
him, that there would be a petition for his appointment under Supr.
Ct. R. 68, and that a 24-hour extension of the April 20 due date
for the Final Report of the Board was requested in order to permit
him, on behalf of respondent, to submit to the Board exceptions to
the Board's draft report. In its Order of April 20, 1992, the
Court acceded to the request, and specifically noted as follows:

3\. Such counsel has been orally advised
by the Court that his request would be
granted, but that if further proceedings of
the Court are necessitated after the filing of
the final report of the Board, that such
proceedings would be expedited.

Later in the day on April 20, respondent filed a petition under
Supr. Ct. R. 68 for the appointment of Mr. Herlihy as counsel for

11/
Respondent also sent a handwritten letter that same day to
Chief Judge Poppiti informing him of his resignation effective
at the end of the day on April 30, 1992, and stating that he
" [w]ill be on vacation until that date."

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respondent. The petition recognized in paragraph 6 that it was not
timely filed:

6\. Petitioner has been unable to file
this Petition within ten days after service of
the Complaint because Petitioner has had
difficulties obtaining an attorney who would
represent him and therefore asks that the
Court enlarge the time for the consideration
of this Petition.

By order dated April 21, 1992 (the "April 21 Order"), the Court
conditionally granted respondent's petition because of the exigency
of the matter and despite certain deficiencies in the petition.
The April 21 Order provided, inter alia, as follows:

(6) Because of the expedited nature of
these proceedings, the Court has conditionally
granted respondent's petition under Rule 68
notwithstanding the following: (i) such
petition was not timely filed pursuant to
paragraph 4 of this Court's Order of April 7,
1992; (ii) the petition on its face is defi-
cient in the failure to allege "facts support-
ing petitioner's claim that the action against
him arises out of his employment with the
State" as required by Sup. Ct. R. 68 (a) (4) ;
(iii) the opposition of the Attorney General
and the Presenter; (iv) serious and unresolved
concerns regarding the issue of the ultimate
entitlement of appointed counsel for respon-
dent to be compensated or reimbursed at State
expense, which concerns arise, inter alia,
from the provisions of Sup. Ct. R. 68, Ct.
Jud. R. 7(d) , 10 Del. C. § 3925, and 29 Del.
C. § 2507. Counsel for respondent was orally
advised at 2:00 p.m. on April 21, 1992, of the
action of the Court on the petition under Sup.
Ct. R. 68, which action is set forth below.

NOW, THEREFORE, IT IS ORDERED that . . .

(4) Thomas Herlihy, III is hereby
appointed as counsel for respondent, but such
appointment is conditional in that: (i) the

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expedited nature of this proceeding requires
that he be empowered to act as counsel for
respondent within the time limitations
established; (ii) no determination is made or
implied that such counsel is entitled to any
compensation or reimbursement of expenses at
State expense; and (iii) it is expressly
understood that, if respondent and his
appointed counsel elect to proceed, it shall
be on such conditional basis.

### III. THE FINAL REPORT OF THE BOARD

The Final Report recites the procedural history, much of which
is set forth herein. The Board also summarized the evidence
submitted before the Board and made findings of fact.

### A. Findings Of Fact By The Board

On March 30, 1992, respondent held a news conference, which
was publicized the next day in the Wilmington paper, The News
Journal. According to the newspaper article, respondent stated he
was seeking the Republican Party's endorsement for Governor, he had
already made a number of speeches, and he intended to make
additional speeches before a variety of party groups, such as
representative district and county committees, in support of his
candidacy.

In conjunction with the press conference, respondent issued a
written press release captioned "Political Plans Of David P.
Buckson From His Home In Camden, Delaware." The written release
stated "Today I officially announce my intent to have my name
placed before the Republican Convention to be the gubernatorial
nominee for Governor of Delaware."

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On March 31, 1992, the day of the publication of the first
news article, respondent was contacted by Justice Horsey, as Acting
Chief Justice. In that conversation, respondent acknowledged and
confirmed to Justice Horsey the accuracy and correctness of the
statements attributed to him in the news article. Respondent also
acknowledged that the news article fairly reflected what he
informed the news media.

Respondent's political activities were reported several times
a week in The News Journal and the Delaware State News. Often
those articles included statements from respondent regarding his
political activities to obtain the Republican Party's nomination.
On April 9, 1992, respondent held a second press conference. It
was held outside the New Castle County Airport Terminal and was
attended by reporters, a photographer, and a television cameraman.
Respondent sat at a card table in front of a recreational vehicle
decorated with a sign: "Common Sense For Delaware/David Buckson
Governor '92." During the press conference respondent reiterated
that he desired to become Governor and that he did not intend to
retire before his replacement had been confirmed. He also stated
that he had stopped hearing Family Court cases.

In November 1991, respondent had notified Basil R. Battaglia,
the Delaware Chairman of the Republican Party, that he was
intending to gain the Republican nomination for the office of
Governor for the State of Delaware. Mr. Battaglia also testified
that respondent attended political functions, where respondent
repeated his desire to gain the nomination. One such Republican

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gathering was held on March 30, 1992, where respondent addressed
his positions on issues that were important to him as a candidate
for the office of Governor. Mr. Battaglia also testified that on
April 6, 1992, at a Colonial region caucus12' respondent approached
him and reaffirmed his desire for the Party's nomination.
Battaglia also testified that respondent attended a Kent County
region caucus on April 8, 1992, and a Brandywine region caucus on
April 13, 1992, where he wore a pin that said "Buckson for
Governor." At this latter meeting, respondent was introduced as a
judge and spoke as a judge who was a candidate for Governor.

James T. Glessner, administrator of the Family Court for the
State of Delaware, testified that on March 19, 1992, respondent
addressed Family Court employees at an employee awards luncheon in
the Kent County Family Court Building and said that he was seeking
the Republican nomination for Governor and would retire if he
gained that nomination.

On April 1, 1992, Chief Judge Poppiti wrote to respondent
summarizing an earlier conversation that the two had held over the
phone, and ordered that respondent cease and desist from acting in
any judicial capacity whatsoever until the resolution of the issue

12/
According to Mr. Battaglia, a caucus is a political gathering
where members of a political party select delegates to a
nominating convention, who eventually nominate candidate (s)
for an office on behalf of the party. Final Report at p. 2
n.2.

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of his political activities.13/ On that same day, Chief Judge
Poppiti filed the complaint with the Court.

### B. The Board's Conclusions As To Due Process

The Board noted that respondent raised a number of arguments
claiming that these proceedings have failed to comport with due
process because of lack of notice and an adequate opportunity to be
heard, and the lack of authority for Chief Judge Poppiti's April 1
Order.

The Board found that respondent was timely served with the
complaint, the Orders of the Court, the Report of the Committee,
and the Board's Order to Show Cause dated April 8, 1992. The Board
concluded that respondent's arguments as to notice really are
arguments that he had not received a meaningful opportunity to be
heard, and found that the proceedings did not violate respondent's
due process rights because of a failure of notice.

Respondent argued to the Board that he had not received an
adequate opportunity to be heard at a meaningful time and in a
meaningful manner because: the time periods for his responses to
various proceedings were shortened by various orders; the Committee
held their hearing in the Kent County Courthouse on a Monday at
10:00 a.m .; and he was not represented by counsel during the
proceedings.

13/
Respondent agreed to abide by this Order in his response to
Judge Poppiti's April 1, 1992 letter, but respondent refused
to resign from his office or to retract his declaration of his
intention to seek political office as Chief Judge Poppiti's
April 1 letter also had ordered.

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The Board found that respondent had an opportunity to defend
himself at various stages of this proceeding, but that respondent
had declined an opportunity to appear and be heard at the Committee
hearing on April 6 and at the Board hearing on April 14.

The Board found that Ct. Jud. R. 10(i) specifically provides
that the Court may suspend any of its rules, including the rules as
to the timing of responses and hearings, and that the shortened
time periods provided sufficient time for respondent adequately to
defend himself. The Board concluded that the Court's suspension of
its rules and the imposition of the shortened time periods did not
play a part in determining the outcome of the proceedings.

Respondent also argued in his objections to the Board's draft
report that the Committee's hearing at the Kent County Courthouse
on Monday, April 6, 1992, did not provide him a meaningful oppor-
tunity to be heard since the hearing would impinge on his right to
confidentiality. The Board found, however, there was no evidence
that the hearing would be open to the public or that the public was
told by the Court of the time and place of the hearing. Therefore,
the Board concluded that the time and place of the Committee's
hearing did not infringe in any way on respondent's right to
confidentiality.14/

14/
Moreover, the Board noted in a footnote:

I question the sincerity of this argument
given the reports in the press of Judge
Buckson's desire to have these proceedings
public. (See Presenter's Exh. 9 -- April 10,
1992, article of The News Journal.)

(continued ... )

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Respondent's last argument before the Board on the adequacy of
the opportunity to be heard issue is that he lacked an adequate
opportunity to have counsel appointed and, therefore, lacked a
meaningful opportunity to be heard with his counsel. The Board
found that:

Judge Buckson did not petition for the
appointment of counsel within the relevant
time limits or at any time. Judge Buckson
also did not file an answer within the rele-
vant time limits or at any time and did not
appear at the hearing held on April 14.
However, he did file his exceptions to my
recommendations five minutes before the excep-
tions were due.

Final Report at p. 6 (footnote omited) .

Respondent argued in his objections to the Board's draft
report that Ct. Jud. R. 7(d) required that the respondent be
represented by counsel and that the Board appoint counsel if he is
not represented by counsel. Respondent also contends that he
requested the Board to appoint him counsel and the Board denied his
request in replying that he needed to petition for the appointment
of counsel. Respondent argued, therefore, that he lacked an
adequate opportunity to be heard since the Board failed to appoint
counsel as he requested and as the rule requires. As to this
argument, the Board concluded:

Judge Buckson's position is untenable. Rule
7 (d) uses the phrase "shall appoint counsel"

14/ ( ... continued)

Final Report at p. 9 n.8. Also, it is to be noted that
respondent finally, unequivocally waived confidentiality on
April 22, 1992.

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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.

Final Report at p. 10.

The Board then found that respondent: (1) was given a number
of opportunities to be heard; (2) had an opportunity to petition
for the appointment of counsel; and (3) that the modification of
the rules' time requirements did not affect respondent's rights in
any meaningful way. Accordingly, the Board concluded that these
proceedings did not violate respondent's due process rights.

Respondent's final due process argument before the Board was
that Chief Judge Poppiti lacked authority to order him to retire,
resign, or recant. Rejecting respondent's construction of 10 Del.
C. § 908 as unreasonably narrow, the Board found that the Chief
Judge of the Family Court had the implied power to order the judges
of that Court to abide by ethical constraints. Therefore, the
Board found that Chief Judge Poppiti had the power to issue such an
order. Thus, the Board found that the issuance of such an order
poses no due process problems.

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The Board concluded that those proceedings did not violate
respondent's due process rights because there was adequate notice,
an adequate opportunity to be heard, and adequate authority for
Chief Judge Poppiti's April 1 Order.

### C. Wilful and Persistent Misconduct

The Board then addressed what it found to be "the heart of
this proceeding," viz whether the Board believed that respondent
has engaged in wilful misconduct in office or other persistent
misconduct in violation of the Code. Final Report at p. 11. The
Board concluded that a judicial officer commits wilful misconduct
in office when he acts "intentionally, knowingly, voluntarily, or
with gross unconcern for his conduct, which would bring the
judicial office into disrepute." Id. at 11 (citing In the Matter of
Rowe, Del. Jud., 566 A.2d 1001, 1006 (1989)). In determining
whether a judicial officer has committed wilful misconduct, the
Board held that it is not necessary to find bad faith, but it is
necessary that the facts be clear and convincing in order to find
that the judicial officer, in fact, engaged in wilful misconduct.
Ct. Jud. R. 7 (f).

The Board noted that respondent implicitly argues in his
exceptions that he "merely was testing the political waters,"
rather than being a full-fledged candidate. Final Report at 11-12.
The Board found this argument unpersuasive. The Board found that
the testimony of Mr. Battaglia, Mr. Glessner, and Chief Judge
Poppiti and the articles in the press clearly demonstrate "that

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respondent and the public considered respondent to be a candidate
for Governor." Final Report at p. 12. The Board also concluded
that a person can be a candidate for a political office prior to
the formal filing of nomination papers, citing generally, State ex.
rel. Burkett v. Swanson, Neb. Supr., 291 N.W. 481, 482-83 (1940)
(the Court noted that a person becomes a candidate when he
announces that he will seek election to the office) . Accordingly,
the Board found that "it is clear that respondent is a candidate
for a nonjudicial office." Final Report at p. 12.

Respondent had notice of Chief Judge Poppiti's April 1 Order
either to retract his declaration to seek the Republican nomination
for Governor or to resign from his judicial office. Although
respondent did submit his resignation letter ten days after Judge
Poppiti's order, the Board found that the failure of respondent to
abide by Chief Judge Poppiti's Order is wilful misconduct within
the meaning of Article IV Section 37 of the Delaware Constitution.

The Board found that respondent had spoken before political
organizations, publicly endorsed himself as a candidate for
Governor and attended political gatherings. Further, the Board
found that he continues to engage in these actions. Accordingly,
the Board found that the record established by clear and convincing
evidence that respondent intentionally violated Canon 7A(2) and
(3). Final Report at p. 13.

The Board noted that the more difficult issue is whether
respondent's candidacy falls within Canon 7B relating to candidacy
in a party primary or general election. Although Canon 1 requires

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that the judge be independent so as to further the objective of
maintaining high standards of conduct for the judiciary, the Board
concluded that he could not find that respondent violated Canon 7B
because respondent is not a candidate in a party primary since no
party primary has occurred or is occurring.

With respect to Canon 7C, the Board concluded:

Even though Judge Buckson's candidacy
technically does not fall within the ambit of
Canon 7(B), it most certainly falls within the
ambit of Canon 7(C). As stated earlier, he
has engaged in, and continues to engage in,
political activity via his candidacy for a
nonjudicial office. Further, the Presenter
has provided clear and convincing evidence
that the acts are not measures to improve the
law, the legal system or the administration of
justice as those terms are defined by the
Canons. Therefore, I find that the Presenter
has demonstrated by clear and convincing
evidence that Judge Buckson intentionally has
violated Canon 7(C). Likewise, I find Judge
Buckson's acts whereby he gave press con-
ferences and issued press releases discussing
his qualifications for the office were inten-
tional violations of Canon 7(C) .

Final Report at p. 14.

Finally, the Board found that respondent's acts violated Canon
1, calling into question the independence and integrity of the
judiciary. The Board found that:

A judge who actively seeks the nomination of a
political party as its candidate necessarily
jeopardizes the independence and integrity of
the judiciary. The judge cannot separate the
positions taken on political or policy matters
from the office which he occupies. Further-
more, Judge Buckson's unofficial retirement
from all judicial activities while drawing his
judicial salary and engaging in political
activities pending the resolution of this
matter diminishes public confidence in the

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integrity of the judiciary. Thus, I find that
the Presenter has demonstrated by clear and
convincing evidence that Judge Buckson inten-
tionally violated Canon 1.

Ultimately, in our legal system, the role
of a judge is to preside over legal disputes
in an impartial and dispassionate manner. A
judge undermines the public confidence in the
integrity of this process when, rather than
challenging rules applicable to judges through
the proper channels, the judge intentionally
disregards the rules and when the judge's
independence is questionable. To say the
least, Judge Buckson's intentional disregard
for the ethical constraints imposed on judges
and his conduct which brings his independence
into question sets a poor example. Indeed,
his conduct is contemptible15' and, in fact,
punishable.

Final Report at pp. 14-15.

### D. Recommendations Of The Board

The Board's recommendations to this Court are as follows:

I find that Judge Buckson's intentional viola-
tions of Chief Judge Poppiti's April 1 Order
and Canons 1, 7 (A) (2), 7(A) (3) and 7(C) of the
Delaware Judges' Code of Judicial Conduct
constitute, individually and collectively,
clear and convincing evidence of wilful mis-
conduct as defined by Delaware Constitution
art IV, § 37. Also, I find that Judge
Buckson's intentional violations of Canons 1,
7 (A) (2), 7 (A) (3) and 7(C) constitute, indi-
vidually and collectively, clear and con-
vincing evidence of persistent misconduct in
violation of the Delaware Judges' Code of
Judicial Conduct. Finally, I conclude that it
is constitutional and appropriate to sanction

15/
The Board explained in a footnote:

I do not intend the word contemptible to mean
"contempt" in the legal sense of the word.

Final Report at p. 15 n.10.

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Judge Buckson for his conduct. Therefore, I
respectfully recommend that the Court on the
Judiciary remove Judge Buckson from office,
see In re Schamel, N.Y. Supr., 362 N.Y.S.2d 39
(1974) , publicly censure him for his acts and
order him to restore all monies received by
him16/ from the State as a judicial officer from
March 31, 1992, until the date of his removal.

Final Report at pp. 15-16.

### IV. SCOPE AND STANDARD OF REVIEW

We now turn to respondent's due process challenges to these
disciplinary proceedings and to the merits. Before the Court are
the report of the Committee, the Final Report of the Board, and the
Hearing Transcript. The Board's recommendations included in the
Final Report have "the force and effect of a master's report in
Chancery". In the Matter of Hopkins, Del. Jud., 566 A.2d 1011,
1014 (1989) ; In the Matter of Rowe, Del. Jud., 566 A.2d 1001, 1005
(1989) ; Ct. Jud. R. 9(a). "Therefore, this Court is obligated to
conduct it own evaluation of the evidence adduced by the Board and
reach an independent conclusion as to the sanctions to be imposed."
Rowe, 566 A.2d at 1006. The Board and the Court are required to

16/
The Board explained in a footnote:

The justification for this restoration of
monies is that the evidence clearly demon-
strates that the only work Judge Buckson has
done since March 31 has been in furtherance of
his candidacy. He has done no work in his
judicial capacity since that date. Therefore,
I recommend that the Court on the Judiciary
not allow him to keep his judicial pay for
this time period.

Final Report at p. 16 n.11.

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find that the "[f]acts justifying the action taken . . . [have
been] established by clear and convincing evidence." Ct. Jud. R.
7(f) . We adopt the findings of fact and conclusions of law in the
Final Report of the Board and find that they have been established
by clear and convincing evidence. We also accept the recommenda-
tions of the Board, except for the recommendation of forfeiture.

### V. NO CLEAR AND CONVINCING EVIDENCE SUPPORTING FORFEITURE

This Court derives its authority to sanction judicial
officer's from Article IV Section 37 of the Delaware Constitution
which expressly grants the Court the power to "censure, remove, or
retire" any judicial officer. Rowe, 566 A.2d at 1009. In Rowe,
the Court determined that "the drafters of this important amendment
to the constitution [did not intend] to limit disciplinary action
to 'censure, removal, or retirement' with no sanctions available
short of retirement or removal except a mere censure." Rowe, 566
A.2d at 1010; see also Ct. Jud. R. 9 (c) (5) (authorizing the Court
to censure, suspend, remove or retire a judicial officer under
Article IV Section 37 of the Delaware Constitution). Rather, the
Court concluded that the power to suspend a judicial officer is
inherent in the express powers granted by Article IV Section 37 of
the Delaware Constitution. As was recognized in Rowe, the granting
of the power to remove implicitly carries with it the power to
impose less severe sanctions short of removal. Rowe, 566 A.2d at
1010 (citing In the Matter of Anderson, Minn. Supr., 252 N.W.2d 592
(1977) ; In the Matter of Cieminski, N.D. Supr., 270 N.W.2d 321

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(1978) ) ; Fisher v. Thompson, Del. Jud., C.A. No. 1 (1973) (the
power to remove a judicial officer "includes the power to suspend
such officer since that is merely a lesser form of punishment:)
(attached hereto as Appendix B) ; see also Nicholson v. Judicial
Retirement and Removal Commission, Ken. Supr., 562 S.W.2d 306, 310
(1978) ("[i]f the Commission can remove a judge from office, it can
certainly impose lesser sanctions in order to achieve the ultimate
goal of judicial purification. ").

As stated in the April 30 Order, the Court is empowered to
impose the sanctions of (a) removal from office; (b) retirement;
(c) suspension; (d) cessation of all authority, rights, and
privileges as a judicial officer; (e) declaration that a vacancy
thereby exists in the judicial office previously held by re-
spondent; (f) public censure; and (g) forfeiture of benefits,
including restoration by respondent of any monies paid to respon-
dent from March 31, 1992, to the date and time of removal. See
Fisher v. Thompson, Del. Jud., C.A. No. 1 (1973) (ordering
respondent to repay to the State judicial salary received during
period when respondent performed "almost no services of any kind to
the State") .

In the present case, the Board recommended that respondent be
ordered "to restore all monies received by him from the State as a
judicial officer from March 31, 1992, until the date of [respon-
dent's] removal." Final Report at p. 16. The Court, however, does
not find on this record that there is clear and convincing evidence
to support the forfeiture recommended given the unclear state of

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this record regarding respondent's vacation rights and the fact
that he was ordered on April 1, 1992, by Family Court Chief Judge
Poppiti not to "hear or decide any judicial matters or act in any
judicial capacity whatsoever until the propriety of your political
activity has been resolved. "17/

### VI. PROCEDURAL DUE PROCESS CHALLENGE

Respondent contends that he has been denied procedural due
process, in violation of the Fourteenth Amendment to the United
States Constitution and Article I Section 7 of the Delaware
Constitution. This contention is based upon the assertions that:
(A) the Court failed to give him adequate notice and a meaningful
opportunity to be heard prior to the issuance of the sua sponte
orders expediting these proceedings; (B) such orders resulted in
such expedited treatment that he was denied time adequately to
prepare and present his defense; and (C) the Board failed to
appoint counsel to represent him at the Board hearing in violation
of Ct. Jud. R. 7(d). In essence, respondent argues that he has a

17/
Nevertheless, it is clear that Chief Judge Poppiti's powers
and duties as the administrative head of the Family Court and
the proper administration of justice authorize him to act as
he did in this case. The chief judges of the various Delaware
courts may order that judges, over whom they have adminis-
trative authority, who have been formally charged with
extremely serious ethical charges, such as those presented in
this case, not continue the adjudication of rights of
litigants or participate in the important work of the courts
while this Court determines the appropriate disposition of
disciplinary matters before it relating to the conduct of the
judge in question.

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.

substantive right that this matter proceed in strict accordance
with the procedural rules of the Court on the Judiciary.

In Slawik v. State, Del. Supr., 480 A.2d 636, 644-45
(1984) ,18/ the Court stated: "A rudiment of procedural due process
is the right to receive notice and to be heard 'at a meaningful
time and a meaningful manner,' prior to the deprivation of a
protected interest." 480 A. 2d at 645 (citations omitted) . "' [D]ue
process,' unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances"
but it is "flexible and calls for such procedural protections as
the particular situation demands." Matthews v. Eldridge, 424 U.S.
319, 334, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976) (citations
omitted). Judge Buckson has a right to procedural due process.
Indeed, Article IV, Section 37 expressly provides that a judicial
officer "shall have had an opportunity to be heard in accordance
with due process of law." We disagree, however, with his conten-
tion that he was deprived of due process in these proceedings and
we agree with the findings and conclusions of the Board on this
point.

Procedural rules designed to foster the orderly transaction of
business before the Court do not confer substantive rights on a

=

18/
Although the Delaware Supreme Court in Slawik held that an
elected public office is not a "property" interest protected
by the due process clause of the Fourteenth Amendment, the
United States Supreme Court in Board of Regents v. Roth, 408
U.S. 564, 571, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972)
held that procedural due process extends to anything to which
a person may assert a legitimate claim of entitlement.

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litigant. See Tiffany v. O'Toole Realty Co., Del. Super., 153 A. 2d
195, 199 (1959) (courts may make procedural rules but not rules
which create substantive rights). As to respondent's first
contention, therefore, the relevant inquiry is not whether he was
denied adequate notice and the opportunity to be heard prior to the
issuance of the April 1, 7, 21, and 23, 1992 Orders. Rather, the
issue is whether he was given adequate notice of the charges
pending against him and a meaningful opportunity to be heard on the
merits of the charges. Having carefully considered the record in
this case and for the reasons stated below, we conclude that
respondent's procedural due process claims are without merit.

A. Expedited Proceedings Before The Committee And The Board

Respondent first contends that the Court violated his right to
procedural due process by failing to give him adequate notice and
the opportunity to be heard prior to the sua sponte issuance of the
April 1, 7, 21, and 23 Orders expediting the proceedings in this
case. Specifically, he contends that, although the Court has the
authority to "suspend" its rules pursuant to Ct. Jud. R. 10(i), the
Court lacks the express authority to "modify" or "supersede" its
rules in order to expedite a judicial disciplinary matter. It is
settled law, however, that:

It is always within the discretion of a court
or an administrative agency to relax or modify
its procedural rules adopted for the orderly
transaction of business before it when in a
given case the ends of justice require it.
The action of either in such a case is not
reviewable except upon a showing of substan-
tial prejudice to the complaining party.

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American Farm Lines v. Black Ball Freight Service, 397 U.S. 533,
539, 90 S. Ct. 1288, 1292, 25 L. Ed. 2d 547 (1970) (emphasis
supplied) (citations omitted) .

The Court clearly has the authority to "suspend" its rules.
In doing so, the Court has the inherent, plenary power to "modify"
or "supersede" its rules.19/ While the Court must exercise this
authority in a manner consistent with procedural due process
principles, in order for respondent to prevail on his procedural
due process claims, he must show that the expedited proceedings in
this case caused him actual and substantial prejudice (i.e., by
preventing him from securing or presenting evidence material to the
merits of this case during any phase of these proceedings). See
American Farm Lines, 397 U.S. at 539, 90 S. Ct. at 1292, 25 L. Ed.
2d 547 (1970) ; Matter of Storie, Mo. Supr., 574 S.W.2d 369, 372
(1978) ; McCartney v. Commission on Judicial Qualifications, Cal.
Supr., 526 P.2d 268, 272-73 (1974) ; In re Robson, Ala. Supr., 500
P.2d 657 (1972). We conclude that it was within the express
authority of Rule 10(i) and the inherent, plenary authority of the
Court to suspend, modify, and supersede its rules, as was done in

19/
Good cause to expedite the proceedings in this case, although
not required to be shown under Ct. Jud. R. 10(i), was
established upon respondent's announcement on March 30, 1992,
of his intention to engage in political activities preliminary
to the State convention of his party scheduled for May 9,
1992, in order to secure the nomination for Governor of the
State of Delaware. Since respondent's conduct raised at least
the probability of a continuing, wilful violation of the
Judicial Canons, expedited proceedings were necessary and
required in order to preserve the integrity and independence
of the judiciary. See, e.g., April 7 Order, I 3.

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this case. We further conclude that such action and the expedited
proceedings did not cause respondent actual and substantial
prejudice, and did not violate respondent's right to procedural due
process . 20/

Respondent next contends that he was not given meaningful
notice of the Committee hearing and that he was denied a meaningful
opportunity to be heard at that hearing because the hearing was not
conducted in a confidential manner as required by Ct. Jud. R.
10 (d) . The record shows, however, that on April 1, 1992,
respondent received a copy of the complaint notifying him of the
charges pending against him. On the same date, he received the
Court's April 1 Order notifying him that the preliminary investiga-
tion would be expedited given the exigencies present in this case.
On April 2, 1992, pursuant to Ct. Jud. R. 3 (d) (4), respondent
received notice that he would be given the opportunity to appear
and be heard before the Committee at a hearing scheduled for 10:00
a.m. on April 6, 1992, at the Superior Court, Courtroom No. 2, Kent
County Courthouse in Dover, Delaware. While he objected to the

20/
It is worth noting that prior to the institution of the
disciplinary proceedings in this case, respondent was well
aware that his anticipated political activities might violate
the Judicial Canons of the State of Delaware. At a press
conference on March 30, 1992, he stated that he had already
conducted legal research and consulted other lawyers and
concluded that he was free to engage in political activities
up until the point that he either won the Republican Party
endorsement or he filed to be a primary election candidate.
Final Report at p. 3 (citing Nancy Kesler, "Judge to Make Bid
for Governor," The News Journal, Mar. 31, 1992, Section B) .

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place of the hearing, he did not object to the order expediting the
proceedings.

Rather, having been provided with the requisite notice and
opportunity to be heard on the merits pursuant to Ct. Jud. R.
3 (d) (4), respondent refused to attend the Committee hearing
allegedly because his appearance at the courthouse "would result in
an influx of news media" and, therefore, would not be confidential.
Respondent has offered no evidence that the hearing would not have
been, and was not, conducted in a private and confidential manner,
or that he would have suffered actual and substantial prejudice by
having to appear at the location designated. Cf. McCartney v.
Commission on Judicial Qualifications, Cal. Supr., 526 P.2d 268,
274 (1974) (location of hearings into alleged judicial misconduct
is discretionary). We conclude, therefore, that his conscious
refusal to attend this hearing constituted a waiver of his right to
be heard before the Committee. See Loyd v. Loyd, 731 F.2d 393, 400
(7th Cir. 1984) (no due process violation where litigant had prior
notice of relevant proceeding yet chose not to participate or
exercise opportunity to be heard) .

Respondent further claims that he was prejudiced because the
Court failed to provide him an adequate amount of time to prepare
and present an answer to the complaint. Since respondent has made
no showing that reducing the period of time in which to answer the
complaint in this case caused him actual and substantial prejudice,
we conclude that respondent's right to procedural due process was
not violated.

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B. Right To Appointment Of Counsel At The Board Hearing

Respondent next contends that the Board violated his right to
procedural due process by failing to appoint counsel to represent
him at the Board hearing pursuant to Ct. Jud. R. 7(d) (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. . . ") (emphasis added) . 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. Tiffany v. O'Toole Realty
Co., Del. Super., 153 A.2d 195, 199 (1959) (courts may make
procedural rules but not rules which create substantive rights) .
Accordingly, in order for respondent to prevail on his claim that
the Board's failure to appoint counsel to represent him until he
filed his petition under Supr. Ct. R. 68 on April 20, 1992,
constituted a procedural due process violation, he must show actual
and substantial prejudice. See American Farm Lines, 397 U.S. at
539, 90 S. Ct. at 1292, 25 L. Ed. 2d 547 (1970) ; Matter of Storie,
Mo. Supr., 574 S.W.2d 369, 372 (1978) ; McCartney v. Commission on
Judicial Qualifications, Cal. Supr., 526 P.2d 268, 272-73 (1974) ;
In re Robson, Ala. Supr., 500 P.2d 657 (1972).

The record shows that respondent received the Court's April 7
Order notifying him that an Examining Board would be convened and
that the Board would require him to inform the Board by April 10,
1992, of his intention to seek counsel in accordance with the
requirements of Supr. Ct. R. 68 which applies, inter alia, to

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judicial disciplinary proceedings once the Court appoints the Board
pursuant to Ct. Jud. R. 5. On April 8, 1992, respondent received
the Board's Order to Show Cause and the notice of the Board hearing
scheduled for April 14, 1992. Both orders directed respondent: (a)
to inform the Board by April 10, 1992, of his intention to seek the
appointment of counsel; and (b) to file a petition for appointment
of counsel, pursuant to Supr. Ct. R. 68 (c), immediately. Respon-
dent ignored both of these orders.

Instead, respondent waited until late in the afternoon of
April 13, 1992, to advise the Board that he would not be attending
the hearing on April 14, 1992. He claims, notwithstanding this
Court's April 1 and April 7 Orders, that he believed he had 15 days
under Ct. Jud. R. 3 (d) (4) or until April 21, 1992, before he had to
respond formally to the report of the Committee. He advised the
Board that he was not sure whether or not someone would appear for
him at the hearing since he had not yet made any effort to contact
counsel. He also asked if the Board would proceed to appoint
someone to represent him at the hearing. The Board referred
respondent to the "order to show cause" setting forth the pro-
cedures for securing counsel and to the Attorney General's office
which was standing by to receive his application for representa-
tion.

Respondent proceeded to contact the Attorney General's office.
Immediately thereafter, the State Solicitor notified the Board that
he had serious doubts whether the Attorney General's office would
consent to represent respondent for essentially three reasons: (a)

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respondent's conduct did not appear to fall within the parameters
of Supr. Ct. R. 68 which provides for representation of a public
officer of the State for acts arising out of employment with the
State; (b) it would be irresponsible to accept representation of
someone who was not going to appear at the hearing; and (c) there
did not appear to be any arguments that could responsibly be made
on respondent's behalf. Respondent was made aware of the Attorney
General's position and was again advised that a petition for
appointment of counsel had to be filed directly with the Court on
the Judiciary for consideration pursuant to Supr. Ct. R. 68. The
Board encouraged respondent to find someone to represent him, to
appear at the hearing, and to make any appropriate application,
including an application to postpone or continue the hearing.
Nevertheless, respondent made it clear that he would not appear.

Both the Court's order dated April 7, 1992, and the Board's
"order to show cause" dated April 8, 1992, notified respondent of
the proper procedures to be followed for securing counsel under Ct.
Jud. R. 7(d) and Supr. Ct. R. 68. In view of this advance notice
to respondent, his deliberate failure timely to comply with these
very clearly stated procedures, and his advance notice to the Board
that he would not be attending the hearing, the Board was com-
pletely justified in declining to appoint counsel to represent
respondent at the hearing. We conclude, moreover, that respon-
dent's less than diligent effort to secure counsel in accordance
with these orders and his conscious refusal to attend the Board
hearing constituted a waiver of his procedural right to be heard

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with counsel at the hearing. See Loyd v. Loyd, 731 F.2d 393, 400
(7th Cir. 1984) (no due process violation where litigant had prior
notice of relevant proceeding yet chose not to participate or
exercise opportunity to be heard) .

Respondent finally claims that he was prejudiced because the
Board conducted the hearing in a non-adversarial fashion. This
contention is based upon the assertion that counsel could have
strengthened respondent's "testing the waters" defense by further
investigating whether respondent had formed a campaign organiza-
tion, solicited funds, solicited votes, or distributed campaign
literature. It is apparent, however, that since respondent has
conceded that the Board's findings of fact are not in dispute, the
existence of such additional evidence would not negate the evidence
relied upon by the Board and this Court in concluding that
respondent has deliberately violated Judicial Canons 1, 7A(2),
7A(3), and 7C. Moreover, counsel for respondent was appointed by
the Court in time to enable respondent's counsel to present
respondent's position fully to the Board in the form of objections
to the Board's draft report. Given these facts, respondent's
waiver of his right to be heard with counsel at the Board hearing,
and the absence of any showing of substantial prejudice, we
conclude that respondent's right to procedural due process was not
violated.

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### VII. WILFUL AND PERSISTENT MISCONDUCT

Having concluded that respondent's right to procedural due
process has not been violated during any phase of these disci-
plinary proceedings, we next address the merits of the charges
brought against respondent. The Court has carefully evaluated the
undisputed findings of fact made by the Board and concludes that
the Board's findings are supported by clear and convincing
evidence. The Court, therefore, adopts these findings of fact for
purposes of determining whether respondent's political activity
constituted a wilful violation of Canons 1, 7A(2), 7A(3), and 7C of
the Delaware Judges' Code of Judicial Conduct and whether such
conduct constituted persistent and wilful misconduct as proscribed
by Article IV Section 37 of the Delaware Constitution. Respondent
raises three defenses to the Board's conclusion that he wilfully
violated Canons 1, 7A(2), 7A(3), and 7C: (a) his political
activity constituted a mere preliminary survey of financial and
voter support (i.e., "testing the waters") which should be
permitted under Canon 7; (b) the "resign-to-run" rule violates the
First Amendment; and (c) the phrase "political gathering" contained
in Canon 7A(3) is unconstitutionally vague.

#### A. "Testing The Waters" Defense

The record shows that on March 19, 1992, respondent addressed
Family Court employees at an employees awards luncheon held in the
Kent County Family Court Building. On that occasion, respondent
stated that he was seeking the Republican nomination for Governor

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and would retire if he gained that nomination. Respondent
subsequently issued a press release on March 30, 1992, announcing
his "candidacy" for the Republican party's nomination for the
office of Governor. See Application of Pioneer Mill Co., Ha.
Supr., 497 P.2d 549, 551-53 (1972) (adopting the ordinary meaning
of the word "candidate" as one who announces that he seeks or
aspires to a particular office and rejecting the notion that one is
not a candidate until he files nomination papers) ; State ex. rel.
Burkett v. Swanson, Neb. Supr., 291 N.W. 481, 482 (1972) (person
becomes a "candidate" for office when he announces that he will
seek election to the office). The record further shows that
respondent attended the following political meetings at which he
publicly endorsed himself as a candidate for Governor: the
Colonial region caucus on April 6, 1992, the Kent County region
caucus on April 8, 1992, and the Brandywine region caucus on April
13, 1992. At the Brandywine region caucus, while wearing a pin
that said, "Buckson for Governor," respondent was introduced as,
and spoke as, a judge who was a candidate for Governor. Respondent
concedes the accuracy of these facts.

Relying upon language contained in Morial v. Judiciary Com'n
of State of La., 565 F.2d 295 (5th Cir. 1977), cert. denied, 435
U.S. 1013, 98 S. Ct. 1887, 56 L. Ed. 2d 395 (1978), respondent
contends that this political activity did not constitute a
violation of Canon 7 which states that a Judge should refrain from
political activity inappropriate to his judicial office. Respon-
dent's contention is based upon the assertion that the evidence

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shows nothing more than that he was merely "testing the waters" by
conducting "preliminary surveys of financial and voter support."
In Morial, a Louisiana state judge was interested in becoming a
non-party candidate for the office of Mayor of New Orleans. The
judge challenged, on First Amendment and Fourteenth Amendment
grounds, the constitutionality of a Louisiana statute which
required a judge to resign his judicial office prior to becoming a
candidate for non-judicial office (a "resign-to-run" rule). One of
the factors considered by the court when addressing the impact of
the resign-to-run rule on judges' First Amendment interests was
that Louisiana appeared to apply the rule in such a manner that
judges are permitted to conduct preliminary surveys of financial
and voter support. The Court stated:

[T]he Louisiana rule is administered in such a
manner as to mitigate somewhat the deterrent
effect of the resignation requirement. The
letter which informed Judge Morial that Canon
7 (A) (3) barred him from active candidacy while
still a judge also informed him that the canon
did not prohibit preliminary surveys of
financial and voter support. In other words,
the canon does not require a prospective
candidate to balance a secure judgeship
against a complete leap in the dark. The
prospective candidate need not resign merely
to learn whether he has a realistic chance of
election.

Morial, 565 F.2d at 301 (emphasis added) .

While we agree that a judge should not have to resign merely
to learn whether he has a realistic chance of election, a judge in
Delaware who chooses to "test the waters" as a prospective
candidate must, nevertheless, do so in a manner consistent with the

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Delaware Judges' Code of Judicial Conduct. Respondent's political
activity went well beyond that of a prospective candidate con-
ducting preliminary surveys of financial and voter support. The
record is clear that he had publicly announced his "candidacy" in
violation of Canon 7A(2) and was actively engaged in political
activity in violation of Canon 7C in order to secure the Republican
party's nomination for Governor. Therefore, we conclude that
respondent's "testing the waters" defense is without merit.

### B. Constitutionality Of The Resign-To-Run Rule

In Morial, the court squarely addressed the constitu-
tionality of a resign-to-run statute.21/ We find the reasoning
employed in the Morial case on this issue to be persuasive.22/

The Supreme Court has not recognized a fundamental right to
candidacy. Bullock v. Carter, 405 U.S. 134, 142-44, 92 S. Ct. 849,
855, 31 L. Ed. 2d 92 (1972). Respondent contends, nevertheless,
that, since political expression and voting are consistently found
to be protected activities, a political candidacy should be

21/
Although Judge Buckson relies heavily on the "testing the
waters" language in Morial to support his contention that such
political activity does not violate Canon 7, the "testing the
waters" language is actually a relatively minor part of the
court's analysis upholding the constitutionality of the
resign-to-run statute.
:

22/
The Morial case involved the construction of a statute which
required a state judge to resign his office prior to becoming
a candidate for non-judicial office. The present case,
however, also involves a resign-to-run rule to the extent that
an administrative directive ordered Judge Buckson immediately
to resign or retire from the Family Court if he was unwilling
to retract his candidacy.

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recognized as a fundamental right. See Neil M. Horwitz, Comment,
The Introduction of Resign-to-Run Statutes: Morial v. Judiciary
Commission of Louisiana, 53 St. Johns. L.R. 571, 579-80 (1979) ; but
see Allan Ashman, David L. Lee, Judith Rosenbaum, Judges in an Age
of Mistrust: Morial and the Policy of Required Resignation, 54
Tulane L. Rev. 382 (1980) . Respondent contends that the resign-to-
run rule is unconstitutional because "a leave of absence for the
duration of a campaign" is a less intrusive means to vindicate the
State's interests. In Morial, the Court noted that the state had
legitimate interests in: (a) preventing "abuse of the judicial
office by a judge-candidate during the course of the campaign"; (b)
preventing "abuse of the judicial office by judges who have lost
their electoral bids and returned to the bench"; and (c) "eli-
minating even the appearance of impropriety by judges both during
and after the campaign." See Morial, 565 F.2d at 302-03 (evalu-
ating the State's interests and their relation to the resign-to-run
rule) .

Based upon these contentions, respondent impliedly argues that
the resign-to-run rule should be subjected to strict constitutional
scrutiny. The Morial court, however, subjected the resign-to-run
rule to a "reasonable necessity" standard of review. In formu-
lating the "reasonable necessity" standard, the court carefully
considered the standard of review employed by the Supreme Court in
cases involving broad restrictions upon the political activity of
federal and state civil service employees. See U.S. Civil Service
Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 575-76, 93

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S. Ct. 2880, 37 L. Ed. 2d 796 (1973) ; Broadrick v. Oklahoma, 413
U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). The court
concluded that the requisite closeness of fit between the means
selected by the State to achieve its asserted interests must be
determined, case-by-case, based upon the relative severity of
impairment of First Amendment interests. Morial, 565 F.2d at 300.

In evaluating the impact of the resign-to-run rule on the
First Amendment interests of judges, the court recognized that the
rule heavily burdens the exercise of an important, if not constitu-
tionally "fundamental," right to become an active candidate for
non-judicial office by forcing a judge to resign a remunerative
position of considerable prestige and power merely to run. The
court also recognized, however, that the resign-to-run rule leaves
unaffected core First Amendment values such as the right to vote
for the candidate of one's choice and to make statements regarding
one's private opinions on public issues outside a campaign context.
The court finally noted that the resign-to-run rule, by excluding
judges as a class, does not substantially impact upon the avail-
ability of other candidates to represent any particular group or
viewpoint.

Based upon these findings, the Morial court concluded that the
impairment of a judge's interest in free expression and political
association stemming from enforcement of the resign-to-run rule was
not sufficiently grievous to justify the strictest constitutional
scrutiny. Instead, the court employed the "reasonable necessity"
standard of review which required the State "to show a reasonable

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necessity for requiring judges to resign prior to becoming
candidates for elective non-judicial office." Morial, 565 F.2d at
302. The court stated that prevention of post-campaign abuse by
judges who have returned to the bench following an electoral defeat
calls for measures that are effective during the post-campaign
period. The court expressly recognized, however, that a "leave of
absence" would be a wholly ineffective measure in preventing post-
campaign abuse or its appearance.

Moreover, although there may be less intrusive means available
to achieve the State's interest in preventing post-campaign abuse
(i.e., disciplinary proceedings against judges or strict rules of
recusal), the Court stated that, under the "reasonable necessity"
standard of review, the State was not required to employ the least
intrusive means available. Id. at 303. Finally, in upholding the
constitutionality of the resign-to-run statute, the court concluded
that the resign-to-run rule "bears a reasonably necessary relation
to the achievement of the state's interest in preventing the
actuality or appearance of judicial impropriety." Id. at 307. We
agree with the reasoning employed in the Morial case and, there-
fore, conclude that respondent's challenge to the resign-to-run
rule in this case is without merit.

C. Respondent's Claim Of Vagueness Of The Term "Political
Gathering"

Finally, we consider respondent's contention that the phrase
"political gathering" in Canon 7A(3) is unconstitutionally vague.
Canon 7A(3) states that "[a] judge should not . . . attend

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political gatherings." Respondent contends that it is unclear at
what point attendance by a judge at a meeting with one or more
voters, which has a gubernatorial campaign as its topic, violates
Canon 7A(3). In support of this contention, respondent asks:

Is a meeting of a judge with one voter which
has a gubernatorial campaign as its topic a
"political gathering"? If not one voter then
how many voters? If a judge attends a
political gathering to test the waters, is
that prohibited?

Opening Brief at p. 22.

To prevail on this challenge, respondent must demonstrate that
the phrase "political gathering" in Canon 7A(3) is impermissibly
vague in all of its applications. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S. Ct.
1186, 1993, 71 L. Ed. 2d 362 (1982) . Under the facts of this case,
respondent cannot show that the term is vague as applied to his
overt, blatantly political activity. Although we conclude for the
reasons stated below that respondent lacks standing to challenge
Canon 7A(3) on vagueness grounds, we shall nevertheless address his
vagueness challenge.

In order to withstand the vagueness challenge, the prohibition
in Canon 7 against attendance of "political gatherings" by judges
must be sufficiently definite so that an ordinary person exercising
ordinary common sense can sufficiently understand what conduct is
prohibited and can conform his conduct accordingly. See Letter
Carriers, 413 U.S. at 579, 93 S. Ct. at 2897, 37 L. Ed. 2d 796
(1973) ; Broadrick, 413 U.S. at 608, 93 S. Ct. at 2914, 37 L. Ed. 2d

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830 (1973) . When construing the meaning of rules adopted by this
Court, the words used should be given their ordinary meaning. The
term "gathering" is defined as "a coming together of people in a
group (as for social, religious, or political purposes)."
Webster's Third International Dictionary 940 (1986) (emphasis
added). This definition does not provide a bright line standard
for determining what constitutes a "gathering" based solely upon
the number of people attending a meeting. The definition, however,
does explicitly reference the purpose of a meeting (i.e., a
political purpose) in order to place the term "gathering" in a
proper context.

By considering the purpose underlying a particular "gathering"
which a judge is interested in attending, it is reasonable to
expect that a judge can readily determine whether his attendance
would constitute a violation of the Canon's proscription against
the attendance of "political gatherings." See also Letter
Carriers, 413 U.S. at 576-79 n.21, 93 S. Ct. at 2896-97 n.21, 37
L. Ed. 2d at 814-17 n.21 (statutory prohibition against federal
employees taking "an active part in political management or in
political campaigns" as refined in regulations, 5 C.F.R. § 733. 122,
which includes a prohibition against "addressing a convention,
caucus; rally, or similar gathering of a political party in support
of . . . a partisan candidate for public office", is not unconsti-
tutionally vague) ; Broadrick, 413 U.S. at 607-11, 93 S. Ct. at
2913-15, 37 L. Ed. 2d at 837 (1973) (state statutory provision
prohibiting a state classified employee, inter alia, from being "a

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candidate for nomination or election to any paid public office" is
not impermissibly vague) . 23/

Finally, assuming arquendo that the Canon 7 prohibition
against attending political gatherings could be found to be
unconstitutionally vague as applied to the conduct of others, we
find that respondent's conduct in attending the regional caucuses
to advance his candidacy clearly falls within the proscriptions of
Canon 7A(3). Therefore, notwithstanding our conclusion that Canon
7A(3) is not unconstitutionally vague, we conclude that respondent
lacks standing to challenge Canon 7A(3) on vagueness grounds.
E.g., Village of Hoffman Estates, 455 U.S. at 495, 102 S. Ct. at
1191, 71 L. Ed. 2d 362 (1982) ("A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others. ") ; Broadrick, 413
U.S. at 608-10, 93 S. Ct. at 2914-15, 37 L. Ed. 2d at 838-39
(1973) .

23/
It is also significant that Delaware has established an
informal procedure whereby a judge in doubt about the
propriety of a proposed course of conduct may seek and obtain
advice from the Judicial Proprieties Committee of the Delaware
Judicial Conference (Supr. Ct. R. 81), and thereby remove any
doubt there may be as to the meaning of a particular Canon.
See Letter Carriers, 413 U.S. at 580, 93 S. Ct. 2897-98, 37 L.
Ed. 2d at 817. Although respondent claims to have conducted
independent research on the application of the Canons to his
political activity, respondent did not contact the Judicial
Proprieties Committee for guidance to clarify the meaning of
Canon 7 prior to engaging in the political activities which
are the subject of this disciplinary proceeding.

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# VIII. CONCLUSION

We find that the record before the Board establishes by clear
and convincing evidence that respondent was engaged in prohibited
political activity of a continuing nature. He was attending and
speaking at political gatherings and publicly endorsing himself as
a "candidate" for the office of Governor without first resigning
his judicial office. We conclude that this conduct constitutes a
wilful violation of Canons 1, 7A(2), 7A(3), and 7C and constitutes
persistent and wilful misconduct as proscribed by Article IV
Section 37 of the Delaware Constitution.

As provided in the April 30 Order: Respondent has been
removed from the office of Associate Judge of the Family Court of
the State of Delaware and was directed to cease all judicial
activities effective at noon EDT on April 30, 1992. A vacancy in
the office formerly held by respondent was thereupon deemed to
exist. In addition, respondent has been publicly censured as
follows: Respondent's continuing behavior as found herein is
unethical, deplorable, irresponsible, and demeaning of a judicial
office. Such conduct fails to observe and maintain the high
standards of conduct required so that the integrity and inde-
pendence of the judiciary may be preserved. Notwithstanding the
foregoing sanctions, the Court does not intend to impose any
forfeiture of entitlements which may have existed prior to the date
and time of the Court's April 30 Order.

The April 30 Order implementing the foregoing opinion is
attached and is incorporated herein by reference.

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<!-- PageHeader="APPENDIX A" -->

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

In the Matter of:
S

THE HONORABLE DAVID P. BUCKSON,
S

S
C.J. No. 7, 1992
a Judicial Officer

Submitted:

April 29, 1992

Decided:

April 30, 1992

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

This 30th day of April, 1992, upon consideration of the entire
record herein, the briefing by counsel for respondent and the
presenter, and the oral argument presented to the Court on April
29, 1992, it appears to the Court that:

1\) The matter is before the Court on the Judiciary (the
"Court"), pursuant to authority conferred by Article IV S 37 of the
Delaware Constitution, for determination of several issues arising
out of alleged charges of misconduct filed against the respondent,
the Honorable David R. Buckson, an Associate Judge of the Family
Court of the State of Delaware. Vice Chancellor William B.
Chandler, III was appointed as the Board of Examining Officer (the
"Board"), pursuant to Court on the Judiciary Rule 5(a), by the
Court's April 7, 1992 Order. The conduct in question, which is set
forth in the Final Report of the Board dated April 21, 1992 (the
"Final Report"), relates to respondent's alleged political
activities in his attempt to seek the endorsement of his party
convention for the nomination for Governor of the State of
Delaware, without first resigning his judicial office.

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2\)
The record includes matters set forth in the transcript
and exhibits thereto of the April 14, 1992, hearing (the "Hearing
Transcript") before the Board and the Final Report of the Board.
The Hearing Transcript and Final Report are hereby incorporated by
reference.

3\)
Court on the Judiciary Rule 9 (c) (5) provides:

(5) At the earliest practical time, the
Court shall file a written opinion and order
dismissing the charges against the respondent,
or censuring, suspending, removing or retiring
the respondent under Article IV, S 37 of the
Delaware Constitution. The affirmative con-
currence of not less than two-thirds of the
members of the Court shall be necessary for
censure, suspension, removal or retirement.

(Emphasis supplied.) The exigencies of this matter have required
that the Court decide the issues before the Court as promptly as
practicable, consistent with the interests of justice. The Court
has reached a unanimous decision, set forth in this Order. A
formal Opinion of the Court, more fully explicating these issues,
will be filed hereafter.

4\) Respondent contends that he has been denied due process
by the expedited procedures herein, in that such procedures had the
effect of depriving him of adequate notice, a meaningful oppor-
tunity to be heard, and the effective assistance of counsel at
certain stages of the proceedings.

5\) The Court has concluded that respondent was not deprived
of due process of law. The Court's actions reflected in its Orders
of April 1, April 7, April 21, and April 23, 1992, all of which

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Orders are hereby incorporated by reference, were authorized by the
Rules 'of the Court, including Court on the Judiciary Rule 10(i) .
Moreover, the procedures employed by the Court were necessitated by
the exigencies of the case, properly implemented the authority
granted by the Rules of this Court, and were fair to respondent.
Respondent has failed to demonstrate that he suffered actual and
substantial prejudice.

6\) Respondent was not denied the effective assistance of
counsel. The Board was not required to appoint counsel for
respondent in proceedings before the Board under the circumstances
of this case for the reasons set forth in the Hearing Transcript
and the Final Report. Moreover, counsel of respondent's choosing
was appointed (conditionally as to entitlement to compensation) by
the April 21, 1992 Order of the Court, and such counsel represented
respondent before the Board in connection with respondent's excep-
tions to the Board's draft report and has represented respondent
thereafter before this Court.

7\) There is no factual dispute, and there has been no offer
of proof by respondent of a factual dispute, which could have
altered the facts of record. There has been no showing of any
facts which constitute arbitrary action by the Board or the Court.
There is no showing of actual and substantial prejudice, and the
failure of any such showing is dispositive of the issues of alleged
denial of due process raised by respondent.

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8\) Based upon the undisputed facts in the record in this
matter and, in particular the Hearing Transcript and the 'Final
Report, the Court finds that the record establishes by clear and
convincing evidence that:

a) Respondent's conduct constitutes intentional
violations of Canons 1, 7(A) (2), 7(A) (3), and 7(C) of the Delaware
Judges' Code of Judicial Conduct.

b) Respondent's violations of the Delaware Judges' Code
of Judicial Conduct constituted persistent and wilful misconduct as
proscribed by Delaware Constitution, Art. IV S 37;

9\) The Court rejects respondent's arguments that any or all
of such canons are unconstitutionally vague or that the application
of such canons to respondent's conduct violates any constitutional
requirement, including the prohibition against vagueness or the
impairment of the right to freedom of speech or expression.

10\) Accordingly, it is appropriate and necessary that the
Court impose sanctions on respondent. The Court is empowered to
enter an Order imposing the sanctions of (a) removal from office;
(b) retirement; (c) suspension; (d) cessation of all authority,
rights, and privileges as a judicial officer; (e) declaration that
a vacancy thereby exists in the judicial office previously held by
respondent; (f) public censure; and (g) forfeiture of benefits,
including restoration by respondent of any monies paid to respon-
dent from March 31, 1992, to the date and time of removal.

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11\) The Court does not find on this record that there is
clear and convincing evidence to support any forfeiture, including
restorations of monies paid to respondent from March 31, 1992, to
the date of this Order, in view of the unclear state of this record
regarding respondent's vacation rights and the fact that he was
ordered on April 1, 1992, by Family Court Chief Judge Poppiti not
to "hear or decide any judicial matters or act in any judicial
capacity whatsoever until the propriety of your political activity
has been resolved."

12\) Nevertheless, it is clear that Chief Judge Poppiti's
powers and duties as the administrative head of the Family Court
and the proper administration of justice authorize him to order
that a judge who has been formally charged with extremely serious
ethical charges, such as those presented in this case, not continue
the adjudication of rights of litigants or participate in the
important work of the courts while this Court determines the
appropriate disposition of disciplinary matters before it relating
to the conduct of the judge in question.

13\) The Court finds that this record unequivocally reflects
continuing behavior by the respondent which is unethical,
deplorable, irresponsible, demeaning of a judicial office, and
fails to observe and maintain the high standards of conduct
required so that the integrity and independence of the judiciary
may be preserved.

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14\) The Court finds that this record establishes by clear and
convincing evidence that the ultimate sanctions and remedies of
removal, cessation of authority, declaration of vacancy, and public
censure are warranted and required.

NOW THEREFORE, IT IS HEREBY ORDERED pursuant to Delaware
Constitution Art. IV, S 37 and Court on the Judiciary Rule 9 (C) (5)
as follows:

1\. The Court finds that respondent intentionally violated
Canons 1, 7(A) (2), 7(A) (3), and 7(C) of the Delaware Judges' Code
of Judicial Conduct, and that such violation constitutes wilful and
persistent misconduct as proscribed by Delaware Constitution Art.
IV S 37.

2\. Respondent is hereby removed from the office of Associate
Judge of the Family Court of the State of Delaware, effective
immediately upon entry of this Order.

3\. Respondent shall cease all judicial activities imme-
diately upon the entry of this Order.

4\. A vacancy in the office formerly held by respondent is
hereby deemed to exist.

5\. Respondent is hereby censured for continuing behavior
which is unethical, deplorable, irresponsible, demeaning of a
judicial office, and fails to observe and maintain the high
standards of conduct required so that the integrity and inde-
pendence of the judiciary may be preserved.

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6\. Notwithstanding the foregoing sanctions, the Court does
not intend to impose any forfeiture of entitlements which may have
existed prior to the date and time of this Order.

7\. Respondent's oral motion made after the conclusion of the
April 29, 1992, hearing for a further hearing on the matters raised
in such motion is hereby denied."

8\. A written opinion will follow hereafter.

9\. This Order is hereby entered as of 12:00 noon, EDT,
April 30, 1992.

10\. A certified copy of this Order of Removal shall be
transmitted forthwith by the Clerk of the Court on the Judiciary to
the Governor, the State Treasurer, and the Chief Judge of the
Family Court.

BY THE COURT:
Erforman Veasup
Chief Justice
0

!!
Judge Buckson personally addressed the Court after the
conclusion of the hearing to make an application that the
Honorable Andrew G.T. Moore, II, a member of this Court, be
disqualified and that there be a further hearing on certain
matters mentioned by Justice Moore in his questioning of
respondent's counsel from the bench in the April 29, 1992,
hearing. The Court notes that, since motions to disqualify
are addressed to the judge or justice in the first instance,
and Justice Moore entered an Order in the record on April 29,
1992, denying such motion to disqualify, no action by the
entire Court is necessary or appropriate on such motion. With
respect to respondent's motion for a further hearing on the
matters to which respondent referred, such matters have formed
no part of the decision of the Court and, therefore, there is
no basis for any further proceedings.

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# APPENDIX B

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

JOHN R. FISHER, DIRECTOR,
ADMINISTRATIVE OFFICE
OF THE COURTS,

)
\-

Plaintiff,

v.
JAMES M. THOMPSON, JUSTICE
OF THE PEACE,
6

No. 1, 1973

Defendant.

ORDER

THIS
17 th
day of June 1974, after consideration
of the report of the Board of Examining Officers, the briefs of
counsel filed with the Board and the statements made at hearing
on June 13, 1974, it appears to the Court as follows :

(1) The complaint against James M. Thompson, Justice
of the Peace (defendant ) has been properly processed under the
Delaware Constitution, Art. 4, § 37, and the Rules of Procedure
of the Court on the Judiciary.

(2) The report of the Board of Examining Officers,
including findings of fact, conclusions of law and recommendations,
was filed with the Clerk of this Court on May 30, 1974.

(3) Defendant did not file any exception to such findings,
conclusions and recommendations and he made no objection thereto
at the hearing.

(4) Shortly after August 19, 1973 defendant was suspended
from sitting in any Justice of the Peace Court by the Chief Justice
of the State of Delaware and has not performed any judicial services
since the date of such suspension; he has continued to receive the
salary of a Justice of the Peace.

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(5) On or about October 24, 1973 the Chief Justice
wrote to defendant stating that he was "requested to comply strictly
with . . . assignment of duties and work" made by the Deputy Admin -
istrator to the Chief Justice for the Justice of the Peace Courts.
10 Del.C. § 126,127.

(6) Administrative duties were designated and a work
schedule was assigned by the Deputy Administrator but defendant did
not perform the duties or comply with the schedule. He has not per-
formed any services within the judicial system since September 28,
1973.

(7) Defendant's failure to comply with the order given by
the Deputy Administrator was a wilful violation of a directive given
by and under the authority of the Chief Justice, who is the "adminis -
trative head of all the Courts in the State . . . [with] general ad-
ministrative and supervisory powers over all the courts." Art. 4,
§ 13. Such failure to comply continued to the date of the report
and, presumptively, to the date hereof.

(8) Wilful, persistent and prolonged failure by a judicial
officer to comply with a lawful directive of the Chief Justice is a
basis for removal from office under the provisions of Art. 4, § 37.

(9) The Court has the power to remove a judicial officer,
Art. 4, § 37, and this includes the power to suspend such officer

since that is merely

a lesser

form of

punishment.

Burnap v.

United

States, 252 U. S. 512, 40 S. Ct. 374 (1920); Russo

v. Walsh,

113 A. 2d

516 (N.J. 1955 ); 63 Am. Jur.2d, Public Officers and

Employees

§ 256;

67 C. J. S., Officers

§ 58.

(10) Mitigating factors in the present case (including
those stated in paragraph . 34 of the report ) make it appropriate to
provide defendant with an opportunity to avoid removal by complying
with the condition hereinafter stated.

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(11) The period of time from suspension to the date
hereof, approximately nine months, is substantial and during such
period defendant has continued to receive his salary but has per-
formed almost no services of any kind for the State. While delay
in disposition has not been the fault of defendant, his refusal
to perform continued throughout the period and he has benefited
therefrom. The condition imposed below meets the ends of justice
by providing for restoration of certain moneys to the State.

IT IS THEREFORE ORDERED as follows :

(1) The report of the Board of Examining Officers is
confirmed and approved except as otherwise provided herein.

(2) Defendant shall, in accordance with the recommenda -
tion of the Board, forfeit all accumulated leave.

(3) Effective on the date hereof defendant is suspended,
without salary or other compensation, from judicial office as a
Justice of the Peace.

(4 ) Such suspension shall terminate if and when defendant
pays to the State Treasurer the sum of $1,500 and files with the
Clerk of this Court an affidavit of such payment, including the
date thereof.

(5) If the sum specified in paragraph 4 above is not
paid before 12 o'clock noon on July 17, 1974, defendant shall at that
time be removed from the office of Justice of the Peace, all of his
authority, rights and privileges as & judicial officer shall cease
from that time and date and a vacancy shall be deemed to exist.

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If the sum specified in paragraph 4 above is paid within the time
fixed, this paragraph shall be null and void.

(6) This order shall be self-executing and no further
order is required for termination of suspension or removal from
office, as the case may be.

Life. Days
William 7. Zwicken
Court j. sique
Malin Marcel
Denge &Anight

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This case involved confusion in the circumstances
surrounding the arrest, in processing the criminal charge against
defendant (including the absence of a right to appeal because the
fine was less than the constitutional minimum), in the preciseness
of the directives given defendant by the Deputy Administrator for
the Justice of the Peace Courts, in the procedural context in which
the letter of the Chief Justice (paragraph 5 of the order) was
written because the letter assumed that defendant would have a
right to appeal to the Superior Court, and in the difficulty of
adjusting defendant's work assignment with his other obligations.
(His previous judicial assignments apparently had been so adjusted. )
In light of these factors, together with the balance of the record
(including evidence of defendant's good character), it is the view
of the Court that these proceedings should be concluded with as little
effect as possible on defendant's community, occupational and profes -
sional standing. There is no reason to believe that defendant will
be other than a good citizen and professionally capable and it is
the Court's view that, notwithstanding these proceedings, he should
be given full opportunity to progress to the full extent of his
ability. But simple fairness requires that defendant make adjustment
for that portion of the disobedience and inequities which are reason-
ably attributable to fault on his part.