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In re Application for Disciplinary Action Against Hagar

Supreme Court of North Dakota

February 13, 2014

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Richard L. HAGAR, Judge of the District Court
v.
Richard L. Hagar, Respondent. Judicial Conduct Commission, Petitioner

Page 874

Kara J. Johnson, Bismarck, N.D., for petitioner.

Richard L. Hagar, Judge of the District Court, Minot, N.D., respondent; self-represented.

PER CURIAM.

[¶ 1] Richard L. Hagar, judge of the district court for the North Central Judicial District, filed exceptions to the Judicial Conduct Commission's recommended findings that he violated provisions of the Code of Judicial Conduct by failing to diligently and promptly decide judicial matters assigned to him. He also objects to the Commission's recommended sanctions. We adopt the Commission's findings of fact regarding Judge Hagar's violations of the Code of Judicial Conduct because they are supported by clear and convincing evidence. We order that Judge Hagar be suspended from his position as district judge for one month without pay commencing April 1, 2014, and assess against him $3,710.49 for the costs and attorney fees necessary for the prosecution of these proceedings.

I

[¶ 2] Judge Hagar began serving as a district court judge on January 1, 2007. On January 18, 2012, this Court, in Judicial Conduct Commission v. Hagar, 2012 ND 19, ¶ 6, 810 N.W.2d 338, censured Judge Hagar for violating N.D.Code Jud. Conduct Canon 3(B)(1), which provided " [a] judge shall hear and decide matters assigned to the judge except those in which disqualification is required," and N.D.Code Jud. Conduct Canon 3(B)(8), which provided " [a] judge shall dispose of all judicial matters promptly, efficiently and fairly." That disciplinary proceeding involved 12 cases which had not been promptly decided despite the presiding judge's having removed Judge Hagar from new case assignments for 30 days so he could devote himself to bringing his docket current. Hagar, at ¶ 2. The delays between trials and decisions ranged between six and 21 months. Id. The affidavit of consent and agreement we adopted included Judge Hagar's written plan for meeting docket currency standards. Id. at ¶ 5. The plan envisioned Judge Hagar's use of Odyssey case management system reports and " better use of current court staff" to meet those standards.

[¶ 3] On January 26, 2012, eight days after our issuance of the Hagar decision, Judge Hagar began presiding over a two-day divorce trial in the case of Block v. Block, Civil Case No. 51-10-C-02045. Because the parties had agreed to the divorce and to the division of marital property, the central remaining disputed issue in the

Page 875

case was the primary residential responsibility for the parties' two children. During the ensuing months, the plaintiff's attorney contacted district court personnel on several occasions to check the status of the decision. After three months had passed, the attorney sent correspondence to the court again asking about the status of the decision. Judge Hagar's court reporter responded that the judge anticipated the decision would be completed by May 23, 2012. After another four months passed without receiving a decision, the attorney on September 22, 2012, sent a letter to Judge Hagar inquiring about the status of the case and the need for a determination of the primary residential responsibility for the children and the necessity of placing the property settlement on the record. After receiving no response from Judge Hagar, the attorney on November 8, 2012, sent a letter to the presiding judge of the district informing him about the problems obtaining a decision in the Block case. Judge Hagar thereafter issued a decision, and a divorce judgment was entered on November 16, 2012, almost ten months after the trial.

[¶ 4] On the basis of a complaint by the plaintiff in the Block case, the Commission brought formal charges against Judge Hagar, claiming he had again violated N.D.Code Jud. Conduct Canons 3(B)(1) and 3(B)(8). Because his conduct occurred before and after the new Code of Judicial Conduct became effective on July 1, 2012, Judge Hagar was also charged with violating N.D.Code Jud. Conduct Rule 2.7, which provides " [a] judge shall hear and decide matters assigned to the judge, except when disqualification is required," and N.D.Code Jud. Conduct Rule 2.5(A), which provides " [a] judge shall perform judicial and administrative duties competently and diligently." Following a hearing at which Judge Hagar, his court reporter, and the plaintiff's attorney in the Block case testified, the Commission found Judge Hagar violated these provisions of the Code of Judicial Conduct and recommended that he be suspended for one month and that he pay the costs and attorney fees associated with the disciplinary proceedings.

II

[¶ 5] In Judicial Conduct Commission v. McGuire, 2004 ND 171, ¶ 6, 685 N.W.2d 748, this Court explained:

On the recommendation of the Commission or its hearing panel, this Court may censure or remove a judge from office for a willful violation of the Code of Judicial Conduct. See N.D.C.C. § 27-23-03(3); Judicial Conduct Comm'n v. Hoffman, 1999 ND 122, ¶ 5, 595 N.W.2d 592; Judicial Conduct Comm'n v. Grenz, 534 N.W.2d 816, 817 (N.D.1995); Judicial Qualifications Comm'n v. Schirado, 364 N.W.2d 50, 52 (N.D.1985). The term " willfully," when used in disciplinary proceedings against a judge, means acts that " were the performer's free will and were not done under coercion." Judicial Qualifications Comm'n v. Cieminski, 270 N.W.2d 321, 327 (N.D.1978); see also Judicial Qualifications Comm'n v. Cieminski, 326 N.W.2d 883, 886 n. 8 (N.D.1982). Before we may censure or remove a judge in a disciplinary proceeding, the charges must be established by clear and convincing evidence. Schirado, 364 N.W.2d at 52; Cieminski, 270 N.W.2d at 326. We review the Commission's findings and recommendations de novo on ...

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