In re Justice of the Peace, 566 A.2d 1011 (Del. Jud. 1989)

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#74

DELAWARE SUTTE ME OCONT
FILE3

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

89 NOV 16 PM 4: 55
DEPUTY CLOAK
Wilmington

In the Matter of :
§
THE HONORABLE WILLIAM J.
§
HOPKINS, JR., a Judicial
& C.J. No. 4, 1989
Officer

§

Submitted:

September

27, 1989

Decided:

November

16, 1989

Before CHRISTIE, Chief Justice, HORSEY, MOORE, WALSH, and
HOLLAND, Justices, ALLEN, Chancellor, and STIFTEL, President
Judge.

James E. Liguori, Esquire, Hudson, Jones, Jaywork,
Williams & Liguori, Dover, for respondent.

Charles P. Brandt, Esquire, Brandt and Dalton, P.A.,
Wilmington, assigned as presenter.

CHRISTIE, Chief Justice:

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A written complaint against Judge William J. Hopkins, Jr.
was filed on February 16, 1989, by the Acting Administrator of
the Justice of the Peace Courts alleging that Judge Hopkins was
guilty of wilful misconduct in connection with a violation by him
of the Delaware Judges' Code of Judicial Conduct, Canon 3A(3) .-
The Court on the Judiciary, acting pursuant to the provisions of
art. IV, § 37 of the Delaware Constitution and Court on the
2

1
"The Delaware Judges' Code of Judicial Conduct, Canon 3A(3)
states:

(3) A judge should be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom
he deals in his official capacity, and should require
similar conduct of lawyers, and of his staff, court
officials, and others subject to his direction and control.
2
-Delaware Constitution, Article IV, § 37 states:

§ 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 misconduct in violation of the Canons of Judicial
Ethics as adopted by the Delaware Supreme Court from time to
time.

A judicial officer may be retired by virtue of this section
for permanent mental or physical disability interfering with the
proper performance of the duties of his office.

No judicial officer shall be censured or removed or retired
(Footnote Continued)

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Judiciary Rule 3(b) (i), directed a Preliminary Investigatory
Committee (the "Committee") to investigate the complaint. In its
report, the Committee found that there was probable cause to
believe that Judge Hopkins was subject to censure, suspension,
removal, or retirement and recommended a severe reprimand of
Judge Hopkins by this Court. The Court on the Judiciary then

(Footnote Continued)

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 opportunity 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 a judicial officer shall cease from the date of the
order, and a vacancy shall be deemed to exist as of that date.
Upon an order of retirement, the judicial officer shall thereby
be retired with such rights and privileges as may be provided by
law for the disability retirement of a judicial officer, and a
vacancy shall be deemed to exist as of the date of retirement.

In the absence of disqualification of a member of the Court
on the Judiciary, the Chief Justice, or in his absence or
disqualification the Senior Associate Justice, shall appoint a
substitute member pro tempore.

The Court on the Judiciary shall have:

(a) the power to summon witnesses to appear and testify
under oath and to compel the production of books, papers and
documents, and

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

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appointed Judge Henry duPont Ridgely as the Board of Examining
Officer (the "Board") to hold a hearing on the charges and to
render a report. Ct. Jud. R. 5-8. In the Board's final report,
it concluded that Judge Hopkins' actions were the result of
errors in judgment. The Board, acting on the theory that wilful
misconduct required a showing of bad faith, concluded that wilful
misconduct had not been proven by clear and convincing evidence.
As a result, it recommended that no further disciplinary action
be taken against Judge Hopkins.

The Court on the Judiciary, acting sua sponte pursuant to
Ct. Jud. R. 9(b), ordered further proceedings before the entire
Court and appointed Charles P. Brandt, Esquire, to present the
case to the Court, under a rule to show cause why the recommen-
dation of the Board of Examining Officer should be rejected. Ct.
Jud. R. 9(c) (1). Oral arguments by counsel for the respondent
and the presenter were heard. The Court, having reviewed the
entire record, now holds that: a) bad faith is not a necessary
element of wilful misconduct, b) Judge William J. Hopkins, Jr.
was guilty of wilful misconduct as that term is used in the
Delaware Constitution, and c) Judge Hopkins is to be censured and
suspended from his duties as Justice of the Peace for a period of
one month.

I.

This case stems from an incident which occurred on January
27, 1989. On that date, William R. Davis was stopped by the
Seaford police and charged with driving an unsafe vehicle and
driving while his license was revoked. The Seaford police

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brought Davis to Justice of the Peace Court No. 4 where he was
arraigned before Judge Hopkins. Davis pled not guilty to both
charges. He was ordered to post a secured bond of $2,000 or a
ten percent cash bond on the charge of driving while his license
was revoked and to sign his own recognizance for the unsafe
vehicle charge. While at Court No. 4, Davis was informed that an
outstanding warrant from Harrington (which was within the juris-
diction of Justice of the Peace Court No. 6) had been discovered
in a routine computer check. Davis insisted to Judge Hopkins
that the charge in Court No. 6 had been dismissed and that he did
not owe the $37.25 fine which would have resulted from a convic-
tion on that charge. At that point, Judge Hopkins allowed Davis
to go out to the hall to use the phone in order to try to raise
the money for his $2,000 bond. It had become apparent that he
had only two twenty dollar bills with him in his jacket pocket.

Davis later informed the court clerk that he was unable to
raise the bond money by phone calls, and he also indicated that
he refused to pay the fine said to be due at Court No. 6. Judge
Hopkins then ordered Davis and the arresting officer back into
the courtroom. Judge Hopkins asked that Davis pay the $37.25 due
to Court No. 6. When he refused, Judge Hopkins ordered the
police officer to take the money from him. At that point, the
officer used some force to extract $40.00 in cash from Davis'
pocket. Accounts of exactly how much force was used differ, but
another justice of the peace stated that he entered the courtroom
when he heard loud noises and observed the officer holding Davis
by the neck with one of his arms pressed against the table.

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After placing Davis in handcuffs, the officer delivered the money
to the court clerk. The clerk in turn deducted $37.25 from the
$40 and returned the change and a receipt to Davis. Davis was
then transported to jail in default of the $2,000 bond set on the
pending charge in Court No. 4.

The clerk of Court No. 4 sent a mail-in disposition slip to
Court No. 6 on January 31, 1989. Thereafter, a representative
from the Harrington Police Department appeared at Court No. 6
with the original ticket and requested that the charge be dis-
missed. A clerk of Court No. 6 related that she was aware that
Davis had repeatedly tried to straighten out this ticket in 1988,
but a judge had not been available and the police had misplaced
the original of the ticket. According to the clerk, the
Harrington police intended to have the charge dismissed but had
never done so. Consequently, the charge was still listed in the
computer as outstanding. On February 3, 1989, Court No. 6 issued
a check to Davis for $37.25, describing it as an overpayment.

II.

The reports of the Preliminary Investigatory Committee and
the Board of Examining Officer have "the force and effect of a
master's report in Chancery." Ct. Jud. R. 9(a). Therefore, this
Court is obligated to conduct its own evaluation of the evidence
adduced by the Committee and the Board and reach an independent
conclusion as to the sanction imposed. In the Matter of Rowe,
Del. Jud., _A.2d (1989). We agree with the Preliminary
Investigatory Committee that there is evidence tending to show
that Judge Hopkins violated art. IV, § 37 of the Delaware

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Constitution. We do not agree with the Board of Examining
Officer that the conduct of Judge Hopkins fails to show wilful
misconduct on his part by clear and convincing evidence.

The standard of proof required for this Court to take action
is clear and convincing proof. Ct. Jud. R. 7(f). This standard
mandates more than a preponderance of evidence, but less than
that required by a reasonable doubt standard. Rowe, _A. 2d at
. We hold that the evidence indicates that Judge Hopkins'
actions constituted misconduct in office and amounted to wilful
misconduct.

Judge Hopkins has not denied that he gave the instructions
to the police officer on January 27, 1989 to collect the money.
He ordered the arrestee to pay a fine which the judge thought
Davis owed in another court. When Davis protested and refused to
pay, Judge Hopkins used his authority to order a police officer
to seize the arrestee and use the force necessary to remove money
from his person. Judge Hopkins' conduct was not authorized by
the written instructions applying in such cases, and it was in
violation of Canon 3A(3) of the Delaware Judges' Code of Judicial
Conduct. We rule that under the circumstances, it constituted
"wilful misconduct" within the meaning of art. IV, § 37 of the
Delaware Constitution. There being no credible evidence to the
contrary, the wilful misconduct is deemed to be proven by clear
and convincing evidence.

The evidence to show that Judge Hopkins' actions were
"wilful" within the meaning of the Delaware Constitution as it
has been construed is clear. See Rowe, A. 2d at . Judge

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Hopkins has not denied that he knew that there was a procedure
established in the Justice of the Peace Courts for handling
outstanding warrants from another Justice of the Peace Court. He
testified that he explained this procedure to Davis and that
Davis initially offered to post $40.00 as a bond for appearance
in Court No. 6. He also testified that when Davis apparently
changed his mind and refused to pay any money to the court clerk,
he articulated another policy by which he could have the money
forcibly taken from Davis. However, there is no such policy, nor
can the existing procedure be understood to include any such
policy.

Judge Hopkins has asserted two arguments to indicate that
his actions were based merely on a mistaken view of his authority
under these circumstances. His first argument is that the
procedure for warrants did not apply to the information which was
generated by the computer search on Davis. The computer merely
showed that there was an unpaid ticket in another court. This
was verified by a phone call made by the arresting officer to the
Harrington Police Department and further verification by the
court clerk. However, Judge Hopkins testified that he relied on
this information as he would if it were a warrant. His reliance
on the regular procedure for warrants tends to refute his later
argument that the policy as to warrants did not apply where the
court was acting on information contained in a computer printout.

The second argument is that Judge Hopkins honestly believed
that he had the authority to have the money seized from Davis.
He has conceded that his belief was a mistake, but argues that

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the mistake was made in good faith. He explained that during the
early part of his 23-year tenure as a judge, he overheard a
remark made by the then Chief Justice of Delaware to the effect
that a judge could use force to collect a fine from a defendant
who had the money on his person but who refused to pay it.
Testimony showed that Judge Hopkins had passed this notion on to
at least three other justices of the peace whom he had trained
prior to the issuance of Policy Directive 83-080. However, at
the time of the incident in question, the clear written policy on
the handling of fines due to another court had been in effect for
six years. No judge who testified indicated that he had ever
3

taken action under the contradictory policy, and Judge Hopkins
had never before ordered anyone to use force to collect a fine

3
Collection from an arrestee of a fine levied by another
court is not an established procedure for the handling of out-
standing warrants. On August 26, 1983, the Chief Magistrate of
the Justice of the Peace Courts issued Policy Directive 83-080,
which set forth the procedure which a court should follow in a
situation such as this one. The directive states:

A. With

regard

to

warrants,

the

Court

should conduct a

normal initial appearance

proceeding.

Bail

should

be set and the

case

transferred

to the appropriate Court. Copies

of the resulting

paperwork should be

for-

warded to the Court which issued the warrant

and, where appropriate, the Court to

which

the case is

being transferred.

Under the established procedure, the authority of a Justice
of the Peace Court is limited to setting a bond for appearance in
the Court which had issued the warrant. One Justice of the Peace
Court is not authorized to collect fines for a different Justice
of the Peace Court, or to adjudicate the arrestee's case in any
way. Under no circumstances is a Justice of the Peace authorized
to instruct a police officer to use force to extract a fine.

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under any circumstances. Moreover, the comment on which Judge
Hopkins said he relied did not in any way indicate that one court
has authority to actually collect fines due in another court.
Under the circumstances the argument based on an offhand remark
attributed to a deceased Chief Justice is not an adequate
explanation or excuse for the unauthorized action taken by Judge
Hopkins.

The evidence shows that Davis did not have to pay a fine due
in Court No. 6 to Court No. 4, and Judge Hopkins knew this.
Davis did not display a violent attitude nor was it necessary to
restrain him by force in connection with his detention on charges
properly pending in Court No. 4. Davis was taken to jail because
he was unable to raise the bond for the charge on which he was
arrested. If he had been ordered to post bond for Court No. 6
and he had failed to do so, he might properly have been sent to
jail pending a resolution of the matter. Existing court proce-
dure policies covered the situation at hand, but did not author-
ize the extraordinary seizure. There was no convincing evidence
to show that Judge Hopkins was not aware of the procedures he
should have followed. Apparently, he had followed those proce-
dures consistently for years. His action, therefore, displayed
what is deemed to be an intentional violation of written policies
or procedure. He acted without due concern for the implications
to the public, the police officer involved, and the judiciary as
a whole. It is appropriate that his actions be deemed to be
"wilful misconduct" in office.

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We rule that Judge Hopkins' actions on January 27, 1989,
amounted to "wilful misconduct in office" as prohibited by art.
IV, § 37 of the Delaware Constitution. Wilful misconduct in-
cludes "the improper or wrongful use of the power of his/her
office by a judge acting intentionally, knowingly, voluntarily,
or with gross unconcern for his conduct, which would bring the
judicial office into disrepute. " Rowe, _ A. 2d at _.
.

Judge Hopkins has served as a justice of the peace for 23
years. Although not trained as a lawyer, he has been an active
and diligent judicial officer. He has worked with the legisla-
ture to increase efficiency and quality of service within the
Justice of the Peace Court system. As the judge in a court of
first appearance, he has had to deal with citizens who sometimes
are belligerent and unruly. Generally, he has brought dignity
and respect to his office. Nevertheless, the evidence shows that
while Judge Hopkins described his actions as stemming from an
error based on an incorrect understanding of his authority, his
actions appear to have been colored by an attitude indicating
that he could ignore well-established court procedures.

III.

It is therefore ordered that effective November 20, 1989,
Judge Hopkins is suspended without compensation from office for a

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period of one month.
4
The publication of this opinion will
constitute a censure.
5

4\.
*While the Constitution does not specifically list a
suspension as one of the authorized sanctions available to this
Court, the Rules of the Court on the Judiciary do so provide, and
we have ruled that the Court has constitutional authority to
impose such sanction. See Rowe, _A. 2d _.
5
Judge Hopkins has waived the confidentiality which
otherwise attaches to a censure under Ct. Jud. R. 10(d) .