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In re Henderson

Supreme Court of Kansas

April 7, 2017

In the Matter of Timothy H. Henderson, District Judge, Respondent.

         Original proceeding in discipline.

          Todd N. Thompson, of Thompson Ramsdell Qualseth & Warner, P.A., of Lawrence, argued the cause for the Commission on Judicial Qualifications.

          Thomas D. Haney, of Stevens & Brand, L.L.P., of Topeka, argued the cause for the respondent.

          ORIGINAL PROCEEDING RELATING TO JUDICIAL CONDUCT

          PER CURIAM

         This is 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.

         In 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.

         On June 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.

         The 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.

         The 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).

         Along 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.

         A 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.

         Around 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.

         Panel B 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 severe sanction.

         The panel's written report, in relevant part, stated as follows:

         "FINDINGS 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.

         "MOTION TO DISMISS

         "In 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.

         "FINDINGS OF FACT

         "This 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 by Respondent.
"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.)

         "The Stitch Story

"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 Green.
"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.

         "The Wife's Job/KPERS

"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 ...

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