Opinion
No. 118450
06-22-2020
In the MATTER OF the DISCIPLINARY PROCEEDINGS CONCERNING Kendra COLEMAN, District Judge, Oklahoma County, Oklahoma.
Editor's Note: This Order is combined with the Court's earlier Order dated December 3, 2019, which was previously published at 454 P.3d 1280.
ORDER
Noma D. Gurich, CHIEF JUSTICE
¶1 This matter comes before the Court on June 22, 2020 for consideration of the attached Petition for filing in the Trial Division of the Court on the Judiciary.
¶2 Upon review, the Petition is hereby adopted and the Chief Justice is authorized to execute and to file the Petition in the Court on the Judiciary. This Order shall be attached as an Exhibit to the executed Petition.
¶3 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 22nd DAY OF JUNE, 2020.
Gurich, C.J., Kauger, Winchester, Edmondson, and Kane, JJ.; Kuehn, S.J. and Wiseman, S.J., concur;
Colbert, J. and Reif (by separate writing), S.J., concur in part; dissent in part;
Darby, V.C.J. and Combs, J., recused.
Attachment
IN THE COURT ON THE JUDICIARY OF THE STATE OF OKLAHOMA
TRIAL DIVISION
THE SUPREME COURT OF THE STATE OF OKLAHOMA, Petitioner,
vs.
KENDRA COLEMAN, Respondent.
No. CJTD-2020-1
PETITION
The Supreme Court of the State of Oklahoma (Petitioner) alleges the following:
I. Authority
1. This Petition is filed pursuant to Oklahoma Constitution, Art. 7-A, § 4(a) and Rule 9, 5 O.S.2011, Ch. 1, App. 7. The allegations are based upon information forwarded to the Supreme Court by the Council on Judicial Complaints and the Respondent's responses.
II. Respondent's Judicial Office
2. The Respondent, Kendra Coleman, is now and has been a District Judge in Oklahoma County, in the 7th Judicial District of the State of Oklahoma, exercising judicial power under the provisions of the Constitution and Statutes of the State of Oklahoma at all times material to the allegations contained in this Petition. She was elected to the seat in November of 2018 and took the bench on January 1, 2019. She had no prior judicial experience.
III. Procedural History
3. On October 14, 2019, the Council on Judicial Complaints referred its Findings of Fact, Conclusions of Law, and Recommendation on Complaint Nos. COC-073 and COC-19-114 to the Supreme Court. The complaints primarily involved the Respondent's failure to file tax returns or to pay taxes, violation of Ethics Commission rules governing campaign financing and reporting, and a dispute with the District Attorney regarding recusal. The Council recommended that the Respondent and the alleged violations be made the subject of removal proceedings before the Court on the Judiciary.
4. The Supreme Court entered an Order on December 3, 2019, in In the Matter of the Disciplinary Proceedings Concerning Coleman, 2019 OK 77, 454 P.3d 1280, rejecting the Council's recommendation for removal proceedings, but reprimanding the Respondent for failing to comply with Ethics Commission campaign rules, admonishing the Respondent to impress upon the Respondent the imperative of timely addressing all personal legal obligations that arise during or reflect upon her judicial service, and placing the Respondent on Probation with conditions.
5. The conditions required the Respondent to (1) report monthly to the Council concerning the tax delinquencies, (2) complete at least five mentoring sessions with an experienced Justice or Judge, and (3) comply with all local, state and federal laws, and the Code of Judicial Conduct. The Court deferred final discipline on the felony charge, which arose from the neglect of state tax obligations, until the charge is resolved. The Order authorized the Council to bring any breach of the conditions to the Chief Justice, and provided that the failure to comply with the conditions for deferred final discipline can be the bases for additional discipline.
6. On April 23, 2020, the Council presented the Chief Justice with 8 additional complaints. The Council reported that the Respondent failed to sufficiently report to the Council regarding tax deficiencies, and failed to comply with the Code of Judicial Conduct. The Council again recommended removal proceedings pursuant to 20 O.S.2011, § 1659. On June 1, 2020, the Council filed a supplemental report to the April 23, 2020 filing, primarily regarding the Respondent's failure to follow proper statutory procedure in issuing a direct contempt citation. The Respondent has responded through counsel and contests that she is guilty of any ground for removal, and denies that she has willfully violated the Code of Judicial Conduct.
COC-19-161, COC-20-008, COC-20-009, COC-20-010, COC-20-012, COC-20-013, COC-20-025, and COC-20-038.
IV. Violations
7. The Council found that the Respondent, Kendra Coleman, as a duly elected and acting District Judge of the 7th Judicial District, exercising judicial power under the provisions of the Constitution and Statutes of the State of Oklahoma, engaged in conduct prohibited by Art. 7-A, § 1(b) of the Oklahoma Constitution, and 20 O.S.2011, § 1404(C). The Council concluded that the allegations of the complaints and discovered by investigation were proven by clear and convincing evidence to the extent necessary to constitute oppression in office, prohibited by Art. 7-A § 1(b) of the Oklahoma Constitution, and violations of Canons 1, 2, and 4 of the Code of Judicial Conduct, 5 O.S.2011, Ch. 1, App. 4. Violation by a judicial officer of these provisions provides grounds for removal from office under Art. 7-A § 1(b) of the Oklahoma Constitution and 20 O.S.2011, § 1404(C).
8. The grounds upon which removal from office is sought are as follows:
Rule 9, Rules of the Court on the Judiciary.
(1) Gross neglect of duty;
(2) Oppression in office; and
(3) Other grounds specified by the Legislature.
The other grounds specified by the Legislature are violations by a judicial officer of the Code of Judicial Conduct 20 O.S.2011, § 1404(C).
9. The violations of Canons 1, 2, and 4, of the Code of Judicial Conduct, and the Rules thereunder, include the following:
The preamble of the Code, which provides, "Judges should maintain the dignity of judicial office at ail times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all time to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence."
a. Canon 1, which provides, "A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Rule 1.1 provides that a "judge shall comply with the law, including the Code of Judicial Conduct." Rule 1.2 provides that a "judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety."
b. Canon 2, which provides, "A Judge Shall Perform the Duties of Judicial Office Impartially, Competently, and Diligently." Rule 2.3 provides, "A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice." Rule 2.4(C) provides, "A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge." Rule 2.5(A) provides, "A judge shall perform judicial and administrative duties competently and diligently." Rule 2.5(B) provides, "A judge shall cooperate with other judges and court officials in the administration of court business." Rule 2.6(A) provides that a "judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law." Rule 2.8(B) provides that a "judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials and others with whom the judge deals in an official capacity ...." Rule 2.11 (A)(1) provides, "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or a personal knowledge of facts that are in dispute in the proceeding." Rule 2.16(A) provides, "A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies." Rule 2.16(B) provides, "A judge shall not retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a judge or a lawyer."
c. Canon 4, which provides that a "judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the Judiciary," Rule 4.2(A) provides, "A judicial candidate in a public election shall: (1) comply with all applicable election, election campaign, and election campaign fundraising laws and regulations of the State of Oklahoma." Rule 4.4(A) provides, "A judicial candidate subject to public election may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law." Rule 4.4(B) provides, "A judicial candidate subject to public election shall direct his or her campaign committee: (2) not to solicit or accept contributions for a candidate's current campaign more than 180 days before the beginning of the filing period for the judicial election nor more than 60 days after the last election in which the candidate participated; and (3) Candidates for judicial office subject to public elections shall direct their campaign committees to comply with all applicable statutory requirements for disclosure of campaign contributions, and to file with the Oklahoma Ethics Commission at the time and in the manner specified by the Commission a report stating the name, address, occupation, and employer of each person who has made campaign contributions to the committee in an aggregate value exceeding the amount established by the Oklahoma Ethics Commission for reporting campaign contributions."
10. The Respondent failed to follow statutes relative to issuing contempt citations, failed to file or pay required state and federal tax returns, failed to pay business and personal property taxes, failed to file required campaign finance forms within the required time frame, and failed to pay parking violations. The Respondent refused to recuse in criminal cases when her impartiality could be reasonably questioned. Violations of city, state, and federal statutes, regulations, and ordinances are violations of Rule 1.1 of the Code of Judicial Conduct which requires that a judge shall comply with the law. Moreover, the Respondent lacks the judicial temperament requisite of a judge, and is guilty of oppression in office. The Respondent has violated various other provisions of the Code of Judicial Conduct based on her failure to follow the law and to appreciate the importance of a fair and impartial judiciary.
11. The Respondent is in violation of probation conditions set by the Oklahoma Supreme Court. The complete disregard of applicable laws and fundamental rights demonstrates a gross neglect of duty. The pattern of conduct demonstrates Respondent's lack of temperament to serve as a judge, and undermines public confidence in the independence, integrity, impartiality and competence of the judiciary in violation of Canons 1, 2, and 4, and the implementing rules of the Code of Judicial Conduct. The Respondent's actions giving rise to these charges appear more fully set forth in the following specific allegations.
V. Violations of City, State, and Federal Laws
Tax Violations
12. The Respondent failed to timely file Oklahoma individual income tax returns for years 2015 through 2018, failed to pay state and federal taxes, failed to pay business personal property taxes, and failed to abide by traffic laws or otherwise pay the fines for doing so. The failure to abide by these laws continued during her tenure as judge in violation of Canon 1 and Rules 1.1 and 1.2 of the Code of Judicial Conduct.
13. On September 17, 2019, the Oklahoma Multi-County Grand Jury indicted Respondent on 4 misdemeanor counts of failure to file an income tax return for the years 2015, 2016, 2017, and 2018, in violation of 68 O.S.2011, § 240. State v . Kendra Daishon Coleman , CM-2019-3063. On October 28, 2019, the State of Oklahoma moved to dismiss the misdemeanor case because Count 3, for failure to file an income tax return for year 2017, was refiled as felony case No. CF-2019-4488 on October 28, 2019. The Information alleges that the Respondent knowingly and intentionally failed to file a state income tax return from October 16, 2018 to September 12, 2019, with the intent to evade payment of state income taxes, contrary to 68 O.S.2011, § 2376(A).
14. Pursuant to 68 O.S.2011, § 2368, Respondent's 2017 Oklahoma individual tax return was due on April 16, 2018. Respondent did not file the 2017 return until September 12, 2019, following a newspaper article detailing the outstanding tax warrants against the Respondent for failure to pay taxes assessed against her as an individual. The time period until September 12, 2019, includes the time period of the Respondent's tenure as an Oklahoma County District Court Judge.
15. The Oklahoma Tax Commission has filed tax warrants reflecting that the Respondent has unpaid tax assessments to the State of Oklahoma for tax years 2011, 2012, 2015, 2016, 2017, and 2018. Under 68 O.S.2011, § 231, a tax imposed by any state tax law shall be delinquent before a tax warrant issues.
16. The Internal Revenue Service has filed tax warrants reflecting that the Respondent has $83,926.18 in unpaid tax assessment to the United States Department of the Treasury.
17. According to the Oklahoma Secretary of State, the Respondent was the managing member of the Gill Law Firm PLLC, and the firm failed to pay the tax due on the assessed value of its business personal property for tax years 2014, 2015, 2016, 2017, and 2018, for a combined total amount of $1,176.74.
Parking Tickets
18. Between 2012 and 2019, the Respondent was issued 65 parking tickets by the City of Oklahoma City.
19. Eight of the 65 parking tickets were issued between November 6, 2018, the date on which the Respondent won election to her position as a District Judge, and January 14, 2019, the date on which her tenure as a District Judge began.
20. The Respondent paid 2 of the 8 tickets on May 2, 2019, and paid the remaining 6 tickets on September 11, 2019, the date on which a news article revealed the unpaid parking tickets. As of September 11, 2019, all 65 parking tickets have been paid.
VI. Violations of Oklahoma Ethics and Campaign Reporting laws, Code of Judicial Conduct, and Oklahoma Ethics Commission's Rules
Campaign Activities and Reporting
21. The Respondent failed to timely file campaign reports and to operate within the rules of the Oklahoma Ethics Commission, in violation of Canon 4 and Rules 4.2(A) and 4.4 of the Code of Judicial Conduct.
22. On August 29, 2019, Oklahoma County District Attorney David Prater filed Complaint number COC-19-114 alleging Judge Coleman failed to file campaign reports in conformity with Oklahoma Ethics Commission rules and Canon 4 of the Code of Judicial Conduct. Prater alleges that the Respondent has been repeatedly reprimanded and fined for willfully refusing to file timely Campaign Finance Reports. He states that Respondent refused to file her 2018 Partial Quarter Election Report, which was due January 31, 2019, making it impossible to determine who or what group may have contributed to the judge's campaign. Prater alleges the Respondent repeatedly violated Oklahoma Ethics and Campaign Reporting laws and the Code of Judicial Conduct, including willful violation of Rule 3.15, 4.4, and possibly 4.1.
23. Under Rule 4.4 of the Code of Judicial Conduct, a judicial candidate may not solicit or accept campaign contributions more than 180 days before the beginning of the filing period. A candidate may give the candidate's committee unlimited funds, but the funds are considered contributions per Oklahoma Ethics Rule 2.38 and may not be made more than 180 days before the beginning of the filing period.
24. As set by 26 O.S. § 5-110, the first day of candidate filing for the 2018 elections was April 11, 2018. One hundred and eighty days prior to April 11, 2018, was October 13, 2017. The Respondent's amended filing with the Oklahoma Ethics Commission reported $100 in monetary contributions and $1,776 of in-kind contributions from Kendra Coleman prior to October 13, 2017. A candidate may give his/her committee unlimited funds but the funds are considered contributions per Ethics Rules 2.38 and may not be made more than 180 days before the beginning of the filing period.
25. A candidate must register a committee within 10 days of receiving or spending in excess of $1,000, including the candidate's own funds, per Oklahoma Ethics Rule 2.70. The Respondent's amended filing shows that the Respondent's Candidate Committee exceeded $1,000 in contributions. The Statement of Organization for the Candidate Committee for the Respondent was filed on November 14, 2017, 32 days after the deadline.
26. The Respondent repeatedly missed the filing deadlines for Election Reports as required by Ethics Rule 2.101. The Respondent's Pre-Primary Election Report was due June 18, 2018, but not filed until July 31, 2018; the 2018 Pre-Runoff Election Report was due August 20, 2018, but not filed until August 30, 2018; the 2018 Partial Quarter Election Report was due January 31, 2019, but not filed until September 18, 2019; the 2019 1st Quarter Report was due April 30, but not filed until September 18, 2019; and the 2019 2nd Quarter Report was due July 31, 2019, but not filed until September 18, 2019.
27. Oklahoma Ethics Rule 2.100 provides that any committee that files more than one quarterly Report of Contributions and Expenditures after the date it is due shall be deemed to have intentionally failed to file the report.
28. When the reports were filed on September 18, 2019, they revealed fifteen campaign contributors not previously reported, nine of which were identified as attorneys. At least one of the newly-revealed contributors is an attorney who appeared before the Respondent between January 31, 2019, and September 19, 2019. The reports also indicated that a defense attorney had contributed $1,000 to the Respondent's campaign, and not the $500 previously reported.
In February 2020, Judge Coleman attended a training related to domestic violence that took place in Valencia, California. Judge Coleman's personal attorney is reported to have paid for the training and travel.
VII. Violations of the Code of Judicial Conduct
Refusal to Recuse
29. The Respondent refused to recuse herself in certain cases presented by the Oklahoma County District Attorney so as to avoid the appearance of impropriety, in violation of the Code of Judicial Conduct, 5 O.S.2011, Ch. 1, App. 4, Preamble, Canon 1, Rule 1.2, Canon 2, Rule 2.3, 2.4(C), 2.6(A), 2.8(B), and 2.11(A)(1), and constituting oppression in office, Art. 7, § 1, Okla.Const. In addition, the Respondent's impartiality might reasonably be questioned when the D.A.’s Office was alleging a defense attorney appearing before her may have contributed more than she reported, and that there were undisclosed contributors appearing before her.
30. On May 21, 2019, the Respondent held a hearing on pending motions regarding the admission of evidence in State of Oklahoma v . Antwon Demetris Burks, CF-2017-2859. After an unfavorable ruling regarding the admissibility of gruesome photographs, the State orally moved for the Respondent to recuse on the grounds, in part, that an attorney for the defendant had hosted a fund raiser for the Respondent during her campaign. The Respondent declined recusal, noting that the fact that the attorney had co-hosted the fundraiser was public knowledge.
31. On May 22, 2019, the State filed a motion to disqualify the Respondent from the Burks case and a rule 6(B)(3) motion, resulting in the case being reassigned to another judge. This judge then remanded the case back to the Respondent noting that the motion did not comply with Rule 15 and was premature because it had not been first filed with the Respondent. The next day, this judge issued another order remanding the case to a judge other than Respondent, without rescinding the prior remand order.
32. On May 30, 2019, despite the assignment of the case to a different judge, the Respondent held a hearing on the State of Oklahoma's motion to disqualify the Respondent or to transfer the case, and the defendant's motion to strike the State's motions. Respondent denied recusal.
33. The District Attorney's Office made requests for the Respondent to recuse in individual cases involving the State of Oklahoma. During the in camera requests, the Respondent accused the D.A. of acting in bad faith and called the First Assistant disrespectful.
34. On November 12, 2019, the State of Oklahoma ex rel. David Prater filed an application to assume jurisdiction and issue a writ of mandamus to the Respondent in Case No. MA-2019-820 before the Court of Criminal Appeals. That Court noted that an Administrative Order of September 12, 2019, by the Presiding Administrative Judge, effectively removed the Respondent from the criminal docket and reassigned her. The Court determined that as a practical matter, the Administrative Order granted the relief requested in the Petition for Writ of Mandamus, leaving no relief left to grant as long as the Administrative Order remains in effect.
VIII. Violations of Contempt Statutes and Oppression in Office
35. The Respondent failed to follow proper constitutional and statutory procedure in issuing or threatening to issue direct contempt citations, and exhibited intemperate demeanor in issuing or threatening to issue direct contempt citations, in violation of Art. 2, § 25, Okla.Const., 21 O.S. § 565.1 and 565.2, Canons 1 and 2, and Rules 1.1, 1.2, 2.5(A), 2.5 (B), 2.6(A), 2.8, and 2.16 of the Code of Judicial Conduct, and constituting oppression in office, Art. 7, § 1, Okla.Const. A. District Attorney's Office
36. When the Oklahoma District Attorney's Office made requests for the Respondent to recuse in individual cases, the Respondent threatened to hold the Assistant D.A. in contempt for being disrespectful and wasting the Court's time, demonstrating oppression in office.
a. in Case No. CF-2017-2721, the Respondent threatened to hold Assistant District Attorney Jimmy Harmon in contempt for trying to make an argument on the record during an in camera request for Respondent's Recusal.
b. In Case No. CF-2016-1571, the Respondent stated that the Assistant District Attorney's behavior was contemptuous when there was an issue with him and the Judge speaking over each other while making a record regarding a request for disqualification.
B. Mallett
37. The Respondent utilized contempt powers without providing an opportunity to be heard as required by 21 O.S. § 565.1, and constituting oppression in office.
38. On May 14, 2019, Robert Mallett attended a hearing as a spectator, not a named party or witness. His phone made an audible noise during the court proceedings, and the Respondent ordered him to give his phone to court staff for the remainder of the proceeding.
39. According to the Respondent, Mallett continued to be disrespectful. The Respondent held Mallet in Contempt of Court, sentencing him to 5 days in jail. The Respondent did not allow Mallett an opportunity to be heard prior to the imposition of the direct contempt as required by 21 O.S. § 565.1.
40. At the contempt hearing two days after Mallett commenced his incarceration, the public defender noted the Respondent's lack of compliance with the statutory requirements for issuing a direct contempt citation. The Respondent said she would not change the order.
41. Mallett appealed the direct contempt citation in In Re: Direct Contempt, Robert Lane Mallett , II v . The Honorable Kendra C. Coleman, No. 118,047. In January 2020, the appeal was dismissed on the motion of Mallett.
C. Lombard
42. On May 14, 2020, the Respondent issued a direct contempt of court citation to Rebecca Lombard, the petitioner/applicant in PO-2020-903. Witnesses reported that while exiting the courtroom after petitioner's application for a Victim Protection Order was denied by Respondent, petitioner made a statement to the Deputy Sheriff to the effect that someone would have to die to get it approved. Two witnesses refuted that the petitioner's statement or behavior was disruptive or contemptuous.
43. The Respondent did not issue a clear warning that the behavior was impermissible and may result in sanctions. In imposing the punishment for direct contempt, the Respondent told the petitioner that she had the authority to hold her in jail for 180 days for such contemptuous behavior, although she only issued a $200 fine.
IX. Repeated Violations of Code of Judicial Conduct and Terms of Probation, Oppression in Office, and Temperament Unfit for Judicial Office
44. The Respondent has exhibited a pattern of judicial excess and inappropriate behavior in the courthouse in violation of Canon 1, Rules 1.1, 1.2, and 1.3, Canon 2, Rules 2.3, 2.5, 2.6(A), 2.8, 2.11(A) of the Code of Judicial Conduct, and constituting oppression in office and gross neglect of duty, Okla.Const. art. 7-1, § 1(b). The conduct has worsened since the issuance of the Supreme Court's probation terms. The Respondent has not complied with the terms of probation.
45. The Respondent alleges she is attempting to arrange a payment schedule to satisfy the tax delinquencies. The Respondent's first report submitted to the Council in January 2020 does not show any payment agreements in place with the Internal Revenue Service, Oklahoma Tax Commission, or Oklahoma County Treasurer. She has taken steps to file returns, but has only made monthly payments in the amount of $25.00 to the Oklahoma Tax Commission for each year's delinquent return, when the total of her Oklahoma individual income tax liabilities was over $22,000. She has not provided an agreement from the Commission that the payment amount was sufficient to cover the minimum payment allowed. The Respondent states her CPA continues to work on a payment plan with the IRS, but she has not advised of any payment arrangements, payment plans, offers in compromise, or settlement agreements, in place with the IRS, Oklahoma Tax Commission, or Oklahoma County Treasurer. She does not state whether she is even attempting to achieve such an arrangement with the Oklahoma Tax Commission or County Treasurer.
46. In February 2020, the Oklahoma Tax Commission filed two additional tax warrants with the Oklahoma County Court Clerk for unpaid liabilities of the Respondent's 2017 and 2018 individual income taxes. The Tax Commission, through a third-party collection's contractor, sought to collect unpaid state income taxes from the Respondent through garnishment and an asset hearing.
47. On January 21, 2020, Capitol One Bank (USA), N.A., sought to collect a debt from the Respondent on a credit card by filing a civil claim in the Oklahoma County District Court.
48. The Respondent failed to obey an order of the Ethics Commission to produce certain documents.
49. The Respondent has shown intemperate treatment of many litigants appearing before her, primarily on VPO matters, and attorneys. Attorneys Richard Morrissette, Skip Kelly, Blake Parrot, and Patrick Lee Neville, Jr. each detailed their inability to effectively present arguments on behalf of their clients because of the Respondent's demeanor. Since the issuance of the Supreme Court's probation terms, the Respondent has made undignified and discourteous comments to pro se litigants and attorneys evidencing a pervasive pattern and practice of such conduct. The Respondent has used her authority from the bench to criticize, intimidate, and humiliate petitioners seeking a VPO. The abuse extends to victims’ advocates who seek to appear with and to support the victims seeking a VPO. The Respondent has created an appearance by words and actions to advocates and others that she harbors a bias against advocacy groups.
50. The Respondent exhibited intemperate demeanor in issuing and threatening to issue direct contempt citations. Three of the Council's witnesses have reported that since the submission of the Council's second Findings on April 23, 2020, the Respondent's behavior has worsened and in some instances appeared retaliatory.
51. The Respondent's abusive demeanor toward petitioners, colleagues, and advocates has continued even after the Respondent's training in February 2020 on proper judicial skills for managing domestic violence cases. The Respondent did not request permission from the Chief Justice or Presiding Judge Elliott to attend the training, which is customary, and the Presiding Judge only become aware of her impending absence one and a half business days prior to her departure, leaving him and courthouse staff scrambling to cover her docket.
52. The Respondent refused a request from Judge Prince, during his tenure as Presiding Judge, to be available more often in the courthouse to hear emergency guardianship requests while she was assigned to the probate and guardianship dockets.
53. The Respondent has disregarded the supervisory authority of the Presiding Judges within her judicial district.
X. Witnesses
54. Following are the names and address of the witnesses for the prosecution of this cause:
Witnesses
1. Captain Melissa Abernathy Oklahoma County Sheriff's Department 201 N. Shartel Avenue Oklahoma City, OK 73102
2. Caitlin Acosta 17361 Michael Drive Choctaw, OK 73020 3. Deputy Devin Baxter Oklahoma County Sheriff's Office 201 North Shartel Oklahoma City, OK 73102
4. Jacob Benedict First Assistant Public Defender of Oklahoma County 320 Robert S. Kerr Ave., #611 Oklahoma City, OK 73102
5. Justice Daniel Boudreau (Ret) c/o Dispute Resolution Consultants 1516 S. Boston Avenue, Suite 115 Tulsa, OK 74119
6. Anden Bull Chief Operating Officer Palomar 1140 N, Hudson Avenue Oklahoma City, OK 73103
7. Darla Cheek Executive Director Mid-Del Youth and Family Center, Inc. 2801 Parklawn Drive, Suite 201 Midwest City, OK 73110
8. David Cheek, Esq. Cheek & Falcone, PLLC 6301 Waterford Boulevard, Suite 320 Oklahoma City, OK 73118
9. Lieutenant Brad Cowden Del City Police Department 4517 SE 29th Street Del City, OK 73115
10. Honorable Ray Elliott Oklahoma County District Judge 321 Park Avenue, Room 700 Oklahoma City, OK 73102
11. Jimmy Harmon First Assistant District Attorney, Oklahoma County 320 Robert S. Kerr Ave., #505 Oklahoma City, OK 73102
12. Internal Revenue Service Small Business/Self Employed Area Records Administrator 55 N. Robinson Ave. Oklahoma City, OK 73102
13. Ronald "Skip" Kelly Attorney at law Two Broadway Executive Park 205 N.W. 63rd Street, Suite 150 Oklahoma City, OK 73116
14. Ashley Kemp Executive Director Oklahoma Ethics Commission 2300 N. Lincoln Blvd., #B5 Oklahoma City, OK 73105
15. Brynna Linkous 1140 N. Hudson Avenue Oklahoma City, OK 73103
16. Rebecca Lombard TBD
17. Robert Mallett C/O Oklahoma County Public Defender's Office 320 Robert S. Kerr Ave., #611 Oklahoma City, OK 73102
18. Laura McDonald 1140 N. Hudson Avenue Oklahoma City, OK 73103
19. Christina Meyers 2608 N.W. 191st Street Edmond, OK 73102
20. Candice Milard, Esq. Milard Law, PLLC 3030 Northwest Expressway Oklahoma City, OK 73118
21. Richard Morrissette Attorney at law 7204 S. Pennsylvania Avenue Oklahoma City, OK 73159
22. Detective Ed Mosier Oklahoma City Police Department Domestic Violence Unit 700 Colcord Avenue Oklahoma City, OK 73102
23. Patrick Lee Neville, Jr., Esq. Cheek & Falcone, PLLC 6301 Waterford Boulevard, Suite 320 Oklahoma City, OK 73118
24. Oklahoma Tax Commission Records Administrator 2501 N. Lincoln Blvd. Oklahoma City, OK 73105
25. Blake Parrott, Esq. Baer & Timberlake, PC 4200 Perimeter Center Drive, Suite 100 Oklahoma City, OK 73112 26. David Prater Oklahoma County District Attorney 320 Robert S. Kerr Ave., #505 Oklahoma City, OK 73102
27. Honorable Thomas Prince Oklahoma County District Judge 321 Park Avenue, Rm 304 Oklahoma City, OK 73102
28. Cindy Richard City of Oklahoma City Deputy Municipal Counselor 200 N. Walker Ave. Oklahoma City, OK 73102
29. Clarissa Smith 1012 N.E. 27th Street Oklahoma City, OK 73111
30. Renee Troxell Oklahoma County Court Administrator 321 Park Avenue Oklahoma City, OK 73102
31. Deputy William Christian Warren Oklahoma County Sheriff's Office 201 North Shartel Oklahoma City, OK 73102
XI. Immediate Temporary Suspension
55. Petitioner alleges that the circumstances giving rise to the foregoing facts against Respondent are in serious danger of continuing. There is no evidence the Respondent will voluntarily cease and desist in the performance of those matters which gave rise to the filing of this petition. There is an existing emergency justifying the Trial Division of the Court on the Judiciary of the State of Oklahoma in temporarily suspending Respondent from office pending the determination of the proceedings in this action. Great and irreparable harm and injury will likely occur if Respondent is allowed to continue in the capacity of a District Judge of the Seventh Judicial District of the State of Oklahoma.
56. Petitioner respectfully requests that the Presiding Judge of the Court on the Judiciary issue an order to the Respondent to appear at a date, time and place certain to show cause why she should not be suspended from the exercise of her office with pay pending further proceedings in this cause, and that upon such hearing the Respondent be suspended from such office with pay pending the proceedings in this action.
XII. Relief Requested
57. The Petitioner alleges that the above-enumerated acts by the Respondent warrant discipline by the Court on the Judiciary as authorized by the statutes and the Constitution of the State of Oklahoma. The Petitioner respectfully refers this matter to the Trial Division of the Court on the Judiciary of the State of Oklahoma.
Done this _____ day of June, 2020.
RESPECTFULLY SUBMITTED,
____________________ Noma D. Gurich, Chief Justice of the Supreme Court of the State of Oklahoma
STATE OF OKLAHOMA )
) ss:
COUNTY OF OKLAHOMA )
NOMA D. GURICH, of lawful age, being first duly sworn upon oath says:
1. That she is the Chief Justice of the Supreme Court of the State of Oklahoma.
2. That she has read the above and foregoing Petition and knows the contents thereof.
3. That she has caused the facts therein set forth to be investigated and that she believes said facts are true.
____________________Noma D. Gurich
Subscribed and sworn to before me this ___ day of June, 2020.
____________________Notary Public
My Commission expires:
____________________
REIF, S.J., with whom COLBERT, J., joins, concurring in part and dissenting in part
¶1 I concur in the decision to file a petition invoking the jurisdiction of the Trial Division of the Court on the Judiciary. I believe a trial is necessary to resolve disputed allegations of judicial misconduct on the part of District Judge Kendra Coleman (Respondent). I write separately to emphasize that the allegations of judicial misconduct set forth in the petition are not accusations by this Court, but represent conclusions drawn by the Council on Judicial Complaints, following the Council's investigation of complaints against Respondent.
¶2 As related in the petition, the Council has submitted two reports concerning its investigation of complaints against Respondent. Each of these reports sets forth the particular complaints investigated as well as the findings of fact, conclusions of law and recommendation for discipline.
¶3 The first report dealt with Respondent's failure to timely fulfill personal duties regarding parking tickets, tax returns and campaign reporting, and events involving her conduct as a judge. She has not disputed her neglect of the personal obligations or the occurrence of the events involving her judicial conduct. She has, however, steadfastly maintained that none of these instances constitute a willful violation of the Code of Judicial Conduct or other legal grounds that warrant removal from office. A majority of this Court assumed the truth of the matters set forth in the report and found that Respondent's omissions and conduct did not rise to a ground for removal as a matter of law. The majority did find discipline was appropriate and reprimanded Respondent for failing to timely file campaign reports, admonished her to be diligent in fulfillment of personal obligations and placed her on probation pending resolution of a felony charge related to her failure to file a tax return. One of the conditions of this probation was that Respondent comply with the Code of Judicial Conduct.
¶4 The second report presents a wide ranging group of complaints of misconduct and alleged violations of the Code of Judicial Conduct. They range from the serious (alleged oppressive treatment of attorneys and parties) to the trivial (wearing a tee shirt to a judges meeting and rearranging chairs in her courtroom). Unlike the first report, assuming the truth of the matters set forth in the second report cannot alone lead to the appropriate disposition of the complaints therein. In her response, Respondent has sufficiently raised a question of whether the Council's findings of fact and conclusions of law are the only outcomes that reasonable minds might reach from the record. In addition, Respondent disputes that many of the events transpired as related in the report. Moreover, the disputed issue of whether Respondent violated any provisions in the Code of Judicial Conduct must be independently determined before any decision can be made that Respondent violated her probation. If the Trial Division of the Court on the Judiciary were to find Respondent committed one or more violations of Code of Judicial Conduct as recounted in the second report, such a violation would terminate her probation and be relevant to the ultimate issue of removal.
¶5 Finally, I dissent to recommending suspension pending trial of the complaints against Respondent. Proceedings for removal are penal in nature and predicated upon wrongdoing. Any judge or other elected office holder who is subject to removal proceedings should have the benefit of being presumed innocent and afforded every reasonable measure of due process prior to any sanction being imposed that interferes with performance of the duties of their office.
ORDER
Decided 12/03/2019
¶1 The Council on Judicial Complaints initiated this case by delivering a report to the Chief Justice concerning the Council's investigation of District Judge Kendra Coleman. The report contained an evidentiary record and Findings of Fact, Conclusions of Law and a Recommendation that the Supreme Court en banc file a petition with the Court on the Judiciary to remove Judge Coleman. Given the fact that two members of the Supreme Court sit on the Appellate Division of the Court on the Judiciary, the Chief Justice appointed Special Justices to serve in their place as well as a Special Justice to serve for a currently vacant office on the Supreme Court. Thereafter, the Supreme Court, thus constituted, reviewed the Council's report and voted 5-4 that the allegations and evidence of misconduct set forth in the report did not warrant the filing of a petition for removal.
¶2 The Council on Judicial Complaints plays an important role in protecting and preserving the integrity of the Oklahoma Judiciary. The Council is "an agency in the Executive Department" that independently investigates and evaluates complaints of judicial misconduct. 20 O.S.2011, §§ 1651 and 1652 ; Rule 3 of the Rules Governing Complaints on Judicial Misconduct, 5 O.S.2011, Ch.1, App. 4-A.
¶3 While the Council can make recommendations concerning the merits of a complaint and the need for disciplinary proceedings, the Council "may not adjudicate any matter nor impose any sanction." Mattingly v. Court on the Judiciary, Trial Division , 2000 OK JUD 1, ¶17, 8 P.3d 943, 949. Neither can the Council "invoke the jurisdiction of the Court on the Judiciary [nor] substitute its own discretion for that of the officers charged with that duty by the constitution." Id. ¶9, 8 P.3d at 947.
¶4 This Court and the other officers and entities designated in Article 7-A, § 4 of the Oklahoma Constitution and in 20 O.S.2011, § 1659, are vested with discretionary authority to decide whether the judicial misconduct detailed in a report by the Council warrants proceedings before the Court on the Judiciary. Haworth v. Court on the Judiciary, Trial Division , 1975 OK JUD 1, ¶6, 684 P.2d 1217, 1218.
¶5 This Court exercises this discretionary authority to first determine whether the Council's allegations of misconduct by a judge, even if true, would or would not, call for the judge's removal from office or compulsory retirement. Mattingly, ¶¶ 7 and 19, 8 P.3d at 947, 950. In the case at hand, the majority concluded that the alleged misconduct of Judge Coleman would not call for immediate removal and rejected the Council's recommendation to file a petition for removal. This decision did not end the Court's inquiry, but instead triggered this Court's exclusive jurisdiction to decide discipline for misconduct of a judge not serious enough to require removal or compulsory retirement. Id. ¶19, 8 P.3d at 950. As explained in the Mattingly case, this Court has exclusive jurisdiction to discipline for non-removal misconduct because "to interpret the powers of the Court on the Judiciary ... to merely discipline rather than remove a judge, would both grant the Court on the Judiciary powers not given by [the Constitution] and deprive the Supreme Court of its responsibility to exercise ‘superintendent control’ and ‘administrative authority’ over the courts of this state mandated by [the Constitution]." Id. ¶16, 8 P.3d at 949.
¶6 This Court exercises its exclusive jurisdiction to determine discipline for non-removal misconduct pursuant to the Rules Governing Complaints on Judicial Misconduct. 5 O.S.2011, Ch. 1, App. 4-A. In the Preface to the Rules, this Court stated it was providing "a uniform process to investigate and administer judicial discipline for misconduct that does not warrant removal from office or compulsory retirement." The Rules are said to provide "a venue for any person to complain about a judge who the person believes has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts." Rule 1, RGCJM. While this Court utilizes the investigation and screening assistance of the Council on Judicial Complaints pursuant to Rule 3, the Council's Finding of Facts, Conclusions of Law and Recommendation for Discipline are not binding on the Court. Again, the Council "may not adjudicate any matter nor impose any sanction." Mattingly, ¶17, 8 P.3d at 947.
¶7 The Rules vest the Chief Justice with responsibility to determine "appropriate action ... to remedy the problem" and reserve to the Court the power to impose "appropriate discipline." Rule 4(c) and (d), RGCJM. Even though this Court may begin its review of non-removal misconduct under its exclusive jurisdiction, the Chief Justice or the Court can later file a petition for removal in exercise of the authority given by Article 7-A, § 4 of the Constitution, if the Chief Justice or the Court deems such action necessary.
¶8 The fact that this Court is divided on the issue of whether a petition for removal should be filed does not mean there is not common concern whether Judge Coleman appreciates the level of conduct expected of every person who aspires to serve as a member of the Oklahoma Judiciary. The majority's conclusion that proceedings for removal are not warranted to address this concern should not be taken to indicate that the majority does not regard this concern to be serious or one that does not require action by this Court. What the majority seeks to achieve by proceeding pursuant to Rule 4 is to impress upon Judge Coleman that future derelictions as recounted in the report of the Council on Judicial Complaints will not be tolerated. The majority also seeks to take steps to ensure Judge Coleman will fully comply with the Code of Judicial Conduct and all personal and professional obligations reflecting on her judicial service.
¶9 The allegations and evidence of misconduct set forth in the Council's report can be summarized as follows:
Judge Coleman officially took the bench on January 14, 2019.
On September 17, 2019, Judge Coleman was indicted on four (4) misdemeanor counts of failing to file a state income tax return in violation of 68 O.S.2011, § 240. A criminal case was filed in Oklahoma County CM-2019-3063. This charge was dismissed when the District Attorney subsequently filed a felony charge relating to the same matter.
Judge Coleman has delinquent tax assessments to both the IRS and the OTC.
Judge Coleman has outstanding tax assessments for business personal property taxes owed to Oklahoma County for 2014-2018.
Between 2012 and 2019 Judge Coleman was issued sixty-five (65) parking tickets by the City of Oklahoma City. Eight of those tickets were accumulated after Coleman was elected to her position but before taking the bench.
In connection with Judge Coleman's candidacy for district judge, she and/or her candidate committee violated the Code of Judicial Conduct and Oklahoma Ethics Rules concerning election expenditures and reports.
Judge Coleman violated the Code of Judicial Conduct by failing to disqualify herself in all cases presented by the Oklahoma County District Attorney.
Judge Coleman engaged in oppressive behavior by utilizing or threatening to utilize her powers of contempt.
¶10 In response, Judge Coleman admitted that there was a factual basis for these allegations, but maintains that she did not intentionally act to violate the Code of Judicial Conduct or to deliberately abuse her judicial power. Judge Coleman also related that she has paid the parking tickets and taken steps to rectify her delinquent tax returns and Ethics Commission reports. She reported that she sought and is receiving mentoring from retired Oklahoma Supreme Court Justice Daniel Boudreau. She is doing this to properly perform her judicial duties and conduct herself in any manner consistent with the high standards required for judicial service.
¶11 Of the foregoing only the last three directly relate to Judge Coleman's responsibilities as a judge. As concerns Judge Coleman's decision not to disqualify in all cases presented by the District Attorney, we note that Rule 1 of the Rules Governing Complaints on Judicial Conduct expressly provides that "Appellate review and disqualification procedures exist and should be utilized to address concerns regarding ... disqualification issues." Also, the procedure for seeking disqualification of a judge – Rule 15, Rules for District Courts, 12 O.S.2011, Ch. 2, App. – does not allow for or even contemplate the wholesale disqualification sought by the District Attorney. Administrative "reassignment" is a preferable alternative. Mattingly, ¶23, 8 P.3d at 951.
¶12 As concerns the issue of oppression in office, the Council's report asserts that Judge Coleman improperly used and threatened to use her contempt powers. The evidence in the record shows that Judge Coleman may not have correctly used direct contempt to deal with a disruptive person in her courtroom, but this matter is the subject of an appeal. Rule 1 also provides that judicial misconduct procedure is not intended to be exercised to challenge a judge's decision in a single case. ¶13 Also, the evidence concerning the threatened use of contempt occurred in the course of a heated exchange that Judge Coleman had with the District Attorney and First Assistant that was marked by mutual acrimony. "A judge is guilty of ‘oppression in office’ when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority." State v. Colclazier, 2002 OK JUD 1, ¶12, 106 P.3d 138, 141-2. "The relevant inquiry is whether the judge formed a specific intent to commit the acts with the requisite knowledge that they were obviously and seriously wrong under the circumstances and amounted to excessive use of judicial authority." Id., 106 P.3d at 142.
¶14 One of the factors to be considered in determining whether discipline is warranted is "the facts and circumstances that existed at the time of the violation." Scope of the Code of Judicial Conduct, 5 O.S.2011, Ch.1, App. 4. In the instances cited in the Council's report, Judge Coleman was acting to preserve order and decorum, even if she did so incorrectly. It is well settled that "Not every violation of the Code of Judicial Conduct will result in a finding of ‘oppression in office,’ nor will mere legal error or abuse of discretion result in discipline." Colclazier , ¶19, 106 P.3d at 143.
¶15 Judge Coleman's admitted and unexcused violations of the Ethics Commission rules governing campaign financing and reporting are another matter. These rules protect the integrity of the election process. Compliance with these rules is a duty that every candidate, especially candidates for judicial office, owes to the people and electorate of this state. While Judge Coleman's efforts to rectify her delinquent reports is commendable, they do not relieve her of accountability and discipline for this serious violation of the Code of Judicial Conduct. In order to deter Judge Coleman and future candidates for judicial office from failing to comply with Ethics Commission campaign rules, we hereby Reprimand Judge Coleman for this violation and will make this Reprimand public by publishing this opinion.
¶16 Judge Coleman's neglect to pay over sixty parking tickets, and similar neglect to attend to various county, state and federal tax obligations for several years, reflect adversely upon her judicial service, because such neglect raises a reasonable concern that she may likewise neglect her judicial duties. While her belated payment of the parking tickets and recent efforts to rectify her tax delinquencies demonstrate a sense of responsibility to attend to important matters, this Court believes an Admonishment is warranted to impress upon Judge Coleman the imperative of timely addressing all personal legal obligations that arise during or reflect upon her judicial service. As in the case of the Reprimand for failure to timely file Ethics Commission reports, this Admonishment is made public by publication of this order.
¶17 The last issue this Court must address is the pending felony charge that arose from Judge Coleman's neglect of her state tax obligations. This Court finds that final discipline should be deferred until this charge is resolved. In the meantime, Judge Coleman is on Probation with conditions (1) to report monthly to the Council on Judicial Complaints concerning the status of the various tax delinquencies, (2) to complete at least five mentoring sessions pending final discipline with Retired Justice Daniel Boudreau, Retired Judge April Sellers White, or another experienced judge and (3) to comply with all local, state and federal laws, and the Code of Judicial Conduct. Failure to comply with these conditions for deferred final discipline can be the basis for additional discipline and the Council on Judicial Complaints is authorized to bring any breach of these conditions to this Court through the complaint process provided by the Rules Governing Complaints on Judicial Misconduct.
¶18 RESPONDENT PUBLICLY REPRIMANDED, PUBLICLY ADMONISHED, FINAL DISCIPLINE DEFERRED, PROBATION WITH CONDITIONS
¶19 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 2ND DAY OF DECEMBER, 2019.
Gurich, C.J., Kauger, Edmondson, Colbert, JJ., Reif, S.J., concur;
Winchester (by separate writing), Kane (by separate writing), JJ., Kuehn, S.J. (by separate writing) and Wiseman, S.J., dissent.
WINCHESTER, J., with whom KANE, J. and WISEMAN, S.J., join, dissenting: ¶1 The Council on Judicial Complaints thoroughly investigated the numerous allegations of misconduct against Judge Coleman, including a review of all evidence presented and the testimony from several witnesses. The Council found multiple violations of the Code of Judicial Conduct worthy of her removal from office. Pursuant to 20 O.S.2011, § 1658, the Council recommended her removal and referred the matter to this Court for further proceedings.
¶2 I would refer this matter to the Court on the Judiciary for trial, which is the appropriate next step given the extensive evidence of the appearance of impropriety. I will not minimize blatant misconduct. While the various alleged infractions might not necessitate removal from office when considered individually, accumulatively they indicate a clear pattern of disrespect for the judicial office. I dissent from the majority's decision today because I believe Judge Coleman's actions warrant a trial on the matter.
¶3 In her short time on the bench, a span of less than one year, Judge Coleman has been the subject of numerous reports. The Council heard from several witnesses and reviewed all the evidence submitted, determining that the multiple instances of misconduct required Judge Coleman's removal from office. The Council ultimately found that Judge Coleman lacked the judicial temperament requisite of a judge, was guilty of oppression in office, and failed to follow the law and appreciate the importance of a fair and impartial judiciary.
¶4 If found to be true, the accumulation and sheer numerosity of the allegations against her reflect a pattern of lack of integrity or respect for the law. The majority's decision shields Judge Coleman's actions from review by her peers and erodes the confidence of her fellow judges and the public in the judicial system's willingness to discipline its own members. Accordingly, I dissent.
Kane, J., with whom Wiseman, S.J. joins, dissenting:
¶1 The Council on Judicial Complaints ("the Council") has submitted a recommendation for the Supreme Court to file a Petition to convene the trial division of the Court on the Judiciary ("the Court on the Judiciary") regarding allegations against the respondent judge. A majority of this Court concludes that a more proper exercise of our discretion in this matter would be to divert the subject of the proceedings from the statutory and constitutional processes in place, and proceed, instead, with an ad hoc Order, tailored to the responding judge, based upon the alleged facts suggested in the Council's report, without the benefit of a trial.
¶2 While I believe that this Court does have the power to undertake relief in the nature proposed by the majority, I do not believe that this exercise of power has precedence, and I further do not believe that it is a wise or warranted exercise of our power under the facts presented in this case. I believe that a Petition, based upon the concerns expressed by the Council on Judicial Complaints' report, should have been prepared and presented to the Court on the Judiciary for a trial. I therefore dissent.
CONSTITUTIONAL ORIGINS AND FUNCTION OF THE COURT ON THE JUDICIARY
¶3 The Court on the Judiciary is a Constitutional entity. Article VIIA, § 2 of the Oklahoma Constitution provides, in part, that the trial division "is vested, subject to the provisions of this Article, with sole and exclusive jurisdiction to hear and determine causes arising thereunder." Article VIIA, § 1 of the Oklahoma Constitution provides that the Court on the Judiciary will hear all Petitions for removal, and that:
Cause for removal from office shall be: Gross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; oppression in office; or other grounds as may be specified hereafter by the legislature.
Okla. Const. art. VIIA, § 1(b). The Court on the Judiciary receives Petitions against judges, based upon investigations undertaken by the Council on Judicial Complaints.
STATUTORY ORIGINS AND FUNCTION OF THE COUNCIL ON JUDICIAL COMPLAINTS
¶4 The Council on Judicial Complaints was created by statute in 1974. The Council stands as an executive agency that can receive and investigate complaints against judges and, thereafter, determine whether such judges should "be made the subject of action before the Court on the Judiciary for the purpose of removal, reprimand or admonition, or ... be dismissed." Upon a finding that a Petition for removal ought to be filed against a judge, the Council has the option of presenting the request to this Court, so that this Court might file a Petition for removal against the responding judge with the Court on the Judiciary. See 20 O.S.2011 § 1659. As stated above, the Council did, in fact, make such a request to the Court in this matter.
Laws 1974, SB 480, c. 251, § 1, et seq ., emerg. eff. May 23, 1974, as thereafter amended.
20 O.S.2011 § 1651.
CONSTITUTIONAL RIGHT OF THIS COURT TO ACT
¶5 Title 20, § 1659 appears to suggest that once this Court is in receipt of such a recommendation from the Council, it has a non-discretionary mandatory duty to immediately file a Petition with the Oklahoma Court on the Judiciary. However, in Haworth v. Court on the Judiciary, Trial Division , 1975 OK JUD 1, 684 P.2d 1217, it was determined that § 1659 was unconstitutional in purporting to convert a constitutionally created discretionary duty into a legislatively created mandatory duty. Thus, upon receipt of a report from the Council, this Court must exercise its Constitutional discretion to determine whether or not to file the Petition with the Court on the Judiciary.
Section 1659 dictates that the statutorily authorized body receiving the complaint " shall promptly file a petition invoking the jurisdiction of the trial division of the Court on the Judiciary in accordance with subsection (a) Section 4 of Article 7-A of the Constitution of Oklahoma." 20 O.S. § 1659 (emphasis added).
ANALYSIS OF THE MAJORITY'S CONCLUSIONS
¶6 The majority concludes, before a Petition has been filed or a trial commenced, that the violations alleged in the Council's report could not possibly result in the removal of the judge. Specifically the majority makes the finding that the allegations do not "warrant the filing of a petition for removal." I take issue with the proposition that a case for removal is impossible to make. Justice Winchester addressed this and strongly disagreed with the majority's assessment in his dissent, and I join him in dissenting. Perhaps the responding judge has committed removable offenses, and perhaps the judge has not—but it is imprudent for us to decide that question without a trial, based merely on the report and briefs. In this case, the Court has, in effect, sua sponte granted a directed verdict against the Council's "removal" request, granted a directed verdict in favor of the proposition that sanctions are warranted, and deferred the balance of the proposed Petition until other related proceedings have concluded.
¶7 Upon concluding that the requested Petition for removal is not warranted, the majority invokes Mattingly v. Court on Judiciary, Trial Division , 2000 OK JUD 1, 8 P.3d 943, in support of the proposition that the pursuit of claims for relief seeking less-than-removal from office cannot advance before the Court on the Judiciary. Finally, the majority cites the Preface to the Rules Governing Complaints on Judicial Misconduct, 5 O.S.2011, Ch. 1, App. 4-A, in support of the proposition that this Court has exclusive jurisdiction for judicial misconduct offenses that fall below the "removal from office" standard.
¶8 My concern is that I believe that the Court is prematurely exercising jurisdiction in this matter based upon the misplaced concern that the Court on the Judiciary would lack power to take corrective action if a removal case were presented to them and found to fall short of removal. While I agree with the majority's citation to Mattingly as the applicable law, and I further agree that a Petition to the Court on the Judiciary expressly seeking relief less than removal is void for want of jurisdiction, these are not the facts in the present case. Mattingly only stands for the proposition that the Court on the Judiciary lacks jurisdiction to impose lesser sanctions if the Petition expressly does not seek removal of the responding judge:
In State ex rel. Simms v. McCallister , 1986 OK JUD 1, 721 P.2d 427, we affirmed the imposition of a four-month suspension on a judge by the Trial Division. The Attorney General argued before the Trial Division in this matter that McCallister stands for the proposition that the Court on the Judiciary has jurisdiction to impose sanctions other than removal or compulsory retirement. McCallister , however, is inapposite here as the Trial Division in that case found, with ample record support, that the judge's conduct "constitute[s] oppression in office." Further, the petitioner in McCallister had sought the judge's removal from office . Thus, in McCallister , unlike this matter, the Court on the Judiciary's jurisdiction was properly invoked because the petitioner sought the judge's removal and alleged facts to support its allegations.
Mattingly , 2000 OK JUD 1, ¶20, 8 P.3d 943 (emphasis added).
¶9 The present case is thus not consistent with Mattingly (wherein removal was not alleged or even requested in the Trial Division), but it is on all fours with McCallister , wherein removal was requested and a lesser sanction was approved after a trial had been conducted by the Court on the Judiciary. As to the reference to "ample evidence" against the responding judge, it is premature to ascertain whether a trial in this case would have had "ample evidence" of wrongful conduct, since the majority is unfortunately truncating the matter prior to the preparation and conduct of a proper trial.
¶10 We have stretched construction of Mattingly beyond the breaking point if we read it to say that the Court on the Judiciary is utterly powerless to act if removal from office is requested by the Council, but the Supreme Court elects to weigh the evidence prior to trial on the merits and conclude that the evidence will not justify removal of the Judge by the Court on the Judiciary. The reasoning in Mattingly clarifies the teachings of McCallister — where removal is requested and is a legitimate potential consequence of the request, it properly proceeds forward by Petition. Upon presentation to the Court on the Judiciary, that body may either grant the request for removal, impose some intermediate sanction, or deny the request entirely and dismiss the Petition. Mattingly did not overrule McCallister — it was factually and legally distinguishable, and it very clearly left intact the teachings of McCallister.
¶11 As to the Court's citation to the Preface to the Rules Governing Complaints on Judicial Misconduct, please note that Rule 3 provides:
Invoked in support of the proposition that this Court has exclusive jurisdiction to determine discipline for "non-removal" classes of judicial misconduct.
If, after an investigation, the Council on Judicial Complaints finds evidence of misconduct that does not warrant removal from office or compulsory retirement, they may refer the matter to the Chief Justice for review.
Rule 3, Rules Governing Complaints on Judicial Misconduct, 5 O.S.2011, Ch. 1, App. 4-A (emphasis added). Let the record be perfectly clear, the Council did not make a request to this Court for punishment of less-than-removal in the present case. The decision of this Court to refrain from presenting this matter to the Court on the Judiciary was not because of any request of the Council. Rather, this Court elected to pursue the present course in spite of the Council's express request that a Petition for removal of the judge should be filed with the Court on the Judiciary. CONSEQUENCES OF THE MAJORITY'S DECISION
The Court certainly has the power to undertake their proposed action in contravention of the Council's express wishes, following the Council's careful investigation—but it bears pointing out that this is what is happening.
A. A Trial with All Accompanying Discovery and Due Process Protections will not happen.
¶12 (1) The Responding Judge is deprived of a trial. While the majority may conclude that the allegations forwarded by the Council on Judicial Complaints do not qualify as "removable" offenses, the result of this conclusion is that the responding judge is forever procedurally deprived of the opportunity to have a trial before the Court on the Judiciary to prove that the offenses alleged are either untrue, or are unworthy of any punishment.
¶13 (2) The Public is deprived of a trial. Conversely, if the allegations against the judge are capable of being proven, and the prosecution were to be able to meet its burden of proof as to any oppressive, corrupt, or wrongful intent, then the public is deprived of the opportunity of being protected by having such conduct promptly adjudicated.
¶14 (3) Both sides have lost the procedural mechanisms (before and during trial) which are designed into our existing system. As of this moment, no finder of fact has taken testimony and weighed conflicting factual positions. We have had no pre-trial discovery and no trial preparation in which evidence is obtain, sifted, and evaluated by the interested parties. We cannot yet fully know how innocuous or culpable the facts of this case may eventually prove to be. I see no reason to prevent the process from fully and fairly distilling the truth. While I do commend the Council on Judicial Complaints for a thorough and exhaustive investigation, an investigation is not a trial, and the Council's report was premised upon the expectation that a trial would shortly ensue. The judge was granted an opportunity to file a response to the Council's recommendation prior to this Court's exercise of jurisdiction, but the trading of briefs is simply not the crucible of truth found in an actual trial.
Article VIIA, § 3(c) of the Oklahoma Constitution provides:
In the exercise of its jurisdiction, the Court is vested with full judicial power and authority, including the power to summon witnesses to appear and testify under oath and to compel the production of books, papers, documents, records and other evidential objects; to issue all manner of judicial and remedial process and writs, legal or equitable; to provide for discovery procedures in advance of trial; to make rules governing procedure; to grant full immunity from prosecution or punishment when deemed necessary and proper in order to compel the giving of testimony under oath or the production of books, papers, documents, records or other evidential objects. The specific enumeration of powers herein shall not derogate from the existence of other judicial power and authority in the Court, or from the exercise thereof in aid of its jurisdiction.
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B. The proper way forward has been made ambiguous for the Council on Judicial Complaints in future cases wherein misconduct is suspected.
¶15 In the present case, the Court has concluded that the Council on Judicial Complaints failed to measure the alleged offenses properly in submitting a removal request. Without a clear delineation of how the report was deficient in setting forth facts that may justify removal, the Council is left without a proper way to measure future cases.
CONCLUSION
¶16 I have every confidence that the majority is proceeding in a fashion that they have concluded in good faith will best protect the public, fairly protect the rights of the accused, and uphold the independence and integrity of our branch of government. However, for the reasons stated above, I believe that the majority has failed to determine and follow the clear and best way forward. The Court is conflating a preliminary conclusion of what a just result may end up being (intermediate sanctions) with a properly requested potential just result (removal). We cannot truly know where justice lies until the case is tried. The complaint clearly sets forth facts that would leave open the legitimate possibility of either removal and/or lesser sanctions and/or exoneration. The Trial Division of the Court on the Judiciary is a Constitutionally created and empowered body ready, willing and able to adjudicate this case upon receipt of a Petition from this Court—this is their job, not ours. ¶17 A case may someday come before us wherein we rightfully have need to assume original jurisdiction and implement discipline outside the stricture of the Court on the Judiciary after receipt of a report from the Council—but this is not that case. The Council on Judicial Complaints has properly and diligently discharged its duty and presented its recommendation to this Court. In my view, having reviewed the Council's recommendation and having carefully considered the Council's report, the applicable statutes, case law, and Constitutional provisions, and submissions of the interested parties, I believe that we should now do our duty—we should file the Petition.
¶18 I dissent.
Kuehn, S.J., with whom Kane, J., and Wiseman, S.J., join, dissenting:
¶1 While I agree with the Majority that the Supreme Court has the jurisdiction to refer this matter to the Court on the Judiciary or retain it, based on the referral by the Council on Judicial Complaints, I part from the decision to retain it. I respectfully dissent.
¶2 By retaining this case the Supreme Court is determining, without a full hearing on the merits, that Judge Coleman has violated the Code of Judicial Conduct and committed the offense of oppression in office, a constitutional violation. Given the number and nature of the allegations, I find this unfair to both Judge Coleman and the people of the State of Oklahoma. I believe the best course is to refer this case to the Court on the Judiciary to determine, after a full hearing, what violations occurred and what punishment, if any, should be imposed as a result. I agree with the Majority that not every referral warrants this procedure, and emphasize that my decision rests on the particular circumstances of this matter.
¶3 If this matter is referred to the Court on the Judiciary, that court may independently reach its own conclusions on the merits and has the authority to fashion appropriate remedies beyond removal or dismissal. No statute or rule requires the Court on the Judiciary to remove a respondent who has been recommended for removal by the Council. Title 20, Section 1651(2)(a) explicitly says that referral to the Court on the Judiciary is for the "purpose of removal, reprimand, or admonition ." This plain language suggests the Court has the authority to impose a variety of punishments. And in fact, the Court has done so. In State ex rel. Simms v. McCallister , the Court on the Judiciary agreed the judge had committed oppression of office, rejected the recommended remedy of removal, and imposed a four-month suspension from office without pay; that punishment was upheld on appeal. 1986 OK JUD 1, 721 P.2d 427. In a later case, the Appeals Division found that, where the offense alleged was not serious enough to require removal or compulsory retirement, the Court on the Judiciary lacked "jurisdiction to reprimand, or discipline in any other way." Mattingly v. Court on Judiciary, Trial Div. , 2000 OK JUD 1 ¶19, 8 P.3d 943, 950. This language supports my conclusion that, in an appropriate case, the Court on the Judiciary has the authority to fashion appropriate remedies beyond removal or compulsory retirement.
¶4 I would afford Judge Coleman the opportunity for a trial by her peers, as contemplated by statute. I respectfully dissent.