In the Matter of Timothy H. Henderson, District Judge, Respondent.
proceeding in discipline.
N. Thompson, of Thompson Ramsdell Qualseth & Warner,
P.A., of Lawrence, argued the cause for the Commission on
D. Haney, of Stevens & Brand, L.L.P., of Topeka, argued
the cause for the respondent.
ORIGINAL PROCEEDING RELATING TO JUDICIAL
an original disciplinary proceeding against Honorable Timothy
H. Henderson, former District Judge of the Eighteenth
Judicial District, sitting in Sedgwick County (Respondent).
This is a correlate case to a 2015 proceeding against the
Respondent that resulted in a 90-day suspension imposed by
this court. See In re Henderson, 301 Kan. 412, 343
P.3d 518 (2015). The present case involves Judicial Code
charges that he was dishonest to the tribunal in responding
to the violations in the earlier case.
2014, a panel of the Kansas Commission on Judicial
Qualifications (Commission) initiated an investigation of the
Respondent under Docket No. 1197. Following an evidentiary
hearing, a separate panel (Panel B) found that the Respondent
had violated the Kansas Code of Judicial Conduct and
recommended to this court that it discipline him by public
censure. The panel specifically confirmed misconduct set out
in three counts: a pattern of engaging in inappropriate,
sexually themed discourse with members of the Sedgwick County
District Attorney's office; exhibiting bias or prejudice
against an attorney based on socio-political outlooks, as
well as engaging in ex parte communications involving an
impending legal action; and abusing the power of his office
in communications regarding employment of his wife as a
public school teacher. The facts are recited in detail in
Henderson, 301 Kan. 412. After the Respondent filed
no exceptions to the factual findings of the hearing panel,
this court upheld those findings and imposed a 90-day
suspension without pay. 301 Kan. at 427.
2, 2014, after the case had been heard but while it was still
pending before the hearing panel, additional complaints
against the Respondent were lodged with the Commission. These
complaints were referred to an investigator. On October 30,
2014, while Docket No. 1197 case was pending before this
court, the Commission filed a Notice of Formal Proceedings
under Docket No. 1218, which contained allegations that the
Respondent had provided testimony that was not candid and
honest in the course of the investigation of Docket No. 1197.
Respondent filed a motion for the disqualification and
recusal of both panels, A and B, of the Commission, alleging
that his case was prejudged by the findings in Docket No.
1197. Panel A chose not to recuse, stating that it had
conducted only the initial review and investigation and made
no findings or conclusions except to refer the complaint to
Panel B for hearing. All of the members of Panel B, on the
other hand, elected to recuse themselves in order to avoid
questions of fairness and propriety, and this court appointed
a substitute Panel B.
matter was investigated by Panel A of the Commission,
following which that panel docketed a formal complaint
against Respondent and gave due notice. See Supreme Court
Rule 611(b) (2017 Kan. S.Ct. R. 473) (discussing procedure
for filing of formal proceedings). The complaint alleged
three counts of judicial misconduct constituting various
violations of Canons 1 and 2 of the Kansas Code of Judicial
Conduct (Code), as will be discussed in detail below. See
Kansas Supreme Court Rule 601B (2017 Kan. S.Ct. R. 423).
with various discovery and scheduling motions, the Respondent
moved to stay the proceedings pending the resolution of
Docket No. 1197 by this court. The panel denied the motion.
In re Henderson, 301 Kan. 412, was filed February
27, 2015, approximately 3 weeks after the Respondent filed
his motion to stay.
pretrial conference was held on March 3, 2015, before
Chairman Mikel Stout and Vice Chairman Edward Larson, retired
Supreme Court justice. At the conference, the parties
discussed, among other matters, the need for a bill of
particulars, scheduling discovery, and obtaining subpoenas.
The examiner explicitly stated that he would not be part of
any settlement negotiations proposed by the Respondent, which
would instead be addressed directly to the panel. Chairman
Stout explained, however, that any settlement would be
channeled through the examiner, in part to avoid ex parte
communications between the Respondent and the panel.
this time, both parties filed numerous motions and responses
with the hearing panel relating to discovery, scheduling, and
limitations on the scope of the hearing. On July 14, 2015,
the Respondent filed a motion seeking recusal of the
substitute Panel B members and a determination that all of
its proceedings be declared void. The motion asserted that
the examiner was serving both as the prosecutor of the
investigation and as counsel to the panel in such a manner as
to violate the Respondent's right to due process. The
examiner filed a response, in which he denied the crucial
underpinning of the motion-that he provided some sort of
confidential, ex parte legal counsel to the panel. The
response averred that the examiner had engaged in no more
personal contact with the panel than had counsel for the
Respondent and that no ex parte communications took place
between the panel and the examiner. The panel unanimously
elected to deny the Respondent's motion.
presided over an evidentiary hearing on August 17-18, 2015.
On September 23, 2015, the panel issued findings of fact,
conclusions of law, and recommendations. The panel largely
adopted the examiner's proposed findings, concluding that
the Respondent was neither candid nor honest in his testimony
in Docket No. 1197 and that he attempted to "cover
over" the inappropriate conduct of which he was accused.
Based on the vote of four members, the panel recommended
discipline in the form of public censure and a 30-day
suspension. One panel member would have recommended a more
panel's written report, in relevant part, stated as
OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION
"Pursuant to Rule 611(b) and at the direction of Panel A
of the Commission on Judicial Qualifications, a Notice of
Formal Proceedings was issued on October 20, 2014, against
Timothy H. Henderson, District Judge of the 18th Judicial
District. The Notice of Formal Proceedings alleged that
Respondent engaged in conduct which violated Rule 1.2 of
Canon I and Rules 2.5 and 2.16 of Canon 2 of the Kansas Code
of Judicial Conduct. It was more specifically alleged that at
a hearing in Docket No. 1197, Respondent provided testimony
that was not candid and honest that his testimony included
unfounded responses to questions posed; and that his
statements lacked probity.
"On August 17 and 18, 2015, a public hearing was held in
Topeka, Kansas, before substitute Panel B of the Commission
on Judicial Qualifications. Members of the Panel present for
the hearing were: Mikel L. Stout, Chair; Justice Edward
Larson, Vice-Chair; Bruce Buchanan; Judge Roger L. Gossard;
and Thomas V. Murray. Carolyn Tillotson announced her recusal
to the Chair of the Panel before the hearing and took no part
in the hearing. The Examiner for the Commission on Judicial
Qualifications, Todd N. Thompson, appeared in support of the
Notice of Formal Proceedings. Respondent appeared personally
and through his counsel, Thomas D. Haney.
"During the hearing, substitute Panel B accepted
stipulations and heard evidence on the record. The Panel then
requested the Examiner and the Respondent each submit their
respective proposed findings of fact and conclusions of law.
Each party submitted their respective findings and
conclusions on September 14, 2015.
"Having considered the evidence and the respective
proposed findings and conclusions of the parties, substitute
Panel B, by an affirmative vote of four or more members,
makes the following findings of fact, conclusions of law, and
recommendations concerning discipline.
support of a Motion to Dismiss these charges, Respondent
presented evidence through Heather Smith, Clerk of the
Appellate Courts, concerning the initiation of these
proceedings. The initial complaint that gave rise to these
proceedings was received by the investigator of Docket [No.]
1197, Terry Morgan, on June 2 or 3, 2014. Mr. Morgan
forwarded that complaint to Carol Green, Ms. Smith's
predecessor, and the previous examiner whose term had ended.
A new examiner would not be under contract until July 1. Ms.
Green arranged a conference call to advise Panel B that a
witness had contacted Mr. Morgan with evidence Ms. Green
believed required investigation and could result in an
additional count. No specifics of the additional information
were given to Panel B. At that time, Panel B had Findings and
Conclusions in draft form.
"After this conversation with Ms. Green, Panel B
initially agreed to reopen the case and consider the
additional information but took no action awaiting the
arrival of their new examiner. After new counsel arrived on
July 1, Panel B released their Findings of Fact and
Conclusions of Law in Docket No. 1197 and the new information
that had been initially provided to Mr. Morgan was received
by Panel A. Panel A performed investigation and review they
deemed necessary and directed the formal charges upon which
this action is based in Docket No. 1218.
"The Motion to Dismiss is denied. Panel B did not
participate in the investigation, review, and decision to
initiate the formal charges on which we proceed here. This
matter was properly handled by Panel A as shown by the
testimony and documentation introduced. Notifications of the
complaint and investigation were provided to Respondent
through counsel in a timely manner and no prejudice to the
Respondent is shown. This substitute Panel B was appointed
when the original Panel B recused.
"We specifically find and hold there is no factual or
legal basis to dismiss this matter as requested by the
Respondent on the principles of Res Judicata, Collateral
Estoppel, and Public Policy Considerations.
Panel finds that the following facts were established at the
hearing by clear and convincing evidence:
"1. On May 15 and 16, 2014, in Docket No. 1197 ('May
Hearing'), Respondent testified on his own behalf. The
Examiner offered portions of Respondent's testimony from
the May Hearing in evidence. This evidence was stipulated to
"2. Respondent offered the entire transcript of the May
Hearing, which the Panel accepted. Thus, all of
Respondent's testimony from the May Hearing is in
evidence. (Respondent did not testify at the hearing on
August 17 and 18, 2015. Thus all future references to
Respondent's testimony are to his testimony at the May
hearing in 2014.)
"3. Respondent testified that a story he told about a
gynecologist offering to add an extra stitch after the birth
of one of his children ('the Stitch Story') was not
funny, that he never thought the Stitch Story was funny, and
that he was appalled and offended by the Stitch Story.
"4. Respondent testified that the single time the Stitch
Story was mentioned by him was in the late 1990s when he was
considering making a complaint against a doctor and told the
story to some other attorneys.
"5. Respondent denied 'absolutely' that he told
the Stitch Story to Assistant District Attorney Melissa
"6. The Panel finds that Respondent told the Stitch
Story multiple times to several witnesses since 2000.
"7. The Panel finds that Respondent told the Stitch
Story in a humorous manner.
"8. The Panel finds that in approximately October 2006,
near the time she gave birth to her second child, Respondent
told the Stitch Story to ADA Melissa Green.
"9. Around the end of the school year in June 2012,
Respondent was engaged in a court business meeting with
Lanora Nolan (now Franck), a Juvenile Justice Education
Liaison for Sedgwick County. Ms. Nolan was also a board
member of the Wichita Board of Education.
"10. In this meeting, Respondent asked Ms. Nolan to
investigate the reason his wife, a school teacher, was not
offered a contract for the next year. Ms. Nolan looked into
the matter and found that, contrary to what Respondent
believed, Respondent's wife had been offered a contract
for a full-time position, but had turned it down. Ms. Nolan
communicated this information to Respondent.
"11. Later, Respondent contacted Ms. Nolan and asked if
there might be a half-time position available for his wife
and followed with several other contacts on that ...