In the Matter of the Application for DISCIPLINARY ACTION AGAINST Wickham CORWIN, Judge of the District Court.
Wickham Corwin, Respondent. Judicial Conduct Commission, Petitioner
Brent J. Edison (argued) and Kara J. Johnson (appeared), Bismarck, N.D., for petitioner.
Ronald H. McLean, Fargo, N.D., for respondent.
[¶ 1] Wickham Corwin, judge of the district court for the East Central Judicial District, filed objections to the Judicial Conduct Commission's findings that he violated provisions of the Code of Judicial Conduct and its recommendation that he be suspended for two months, without net pay, and be assessed the costs and expenses of the disciplinary proceedings. We conclude there is clear and convincing evidence Judge Corwin violated N.D.Code Jud. Conduct Canon 3(C)(1), requiring a judge to discharge responsibilities without bias or prejudice, and N.D.Code Jud. Conduct Canon 3(C)(2), requiring a judge to not engage in conduct that could reasonably be perceived as sexual harassment. We order that Judge Corwin be suspended from his position as district judge for one month without pay effective December 1, 2014, and that he be assessed $11,958.56 for the costs and expenses of the disciplinary proceedings.
[¶ 2] Judge Corwin was elected to the position of district court judge in 2008. In February 2013, the Commission initiated formal disciplinary proceedings against Judge Corwin concerning allegations of inappropriate conduct beginning in 2010 directed at a female court reporter assigned to work with him. The basic allegation was that Corwin continued to seek to have a sexual relationship with the court reporter after she repeatedly told him she was not interested. Because this conduct occurred before the new Code of Judicial Conduct became effective on July 1, 2012, Judge Corwin was charged with violating N.D.Code Jud. Conduct Canons 3(C)(1) and 3(C)(2). He was also charged with violating N.D.Code Jud. Conduct Canon 2(A), requiring a judge act in a manner that promotes public confidence in the judiciary, and N.D.Code Jud. Conduct Canon 4(A)(2), requiring a judge conduct extra-judicial activities so as not to demean the judicial office. Following a hearing, the Commission's hearing panel found Judge Corwin violated these provisions of the Code of Judicial Conduct and recommended he be suspended for two months, without net pay, and be assessed the costs and expenses of the disciplinary proceedings.
[¶ 3] We explained our function in judicial disciplinary proceedings in Judicial Conduct Comm'n v. McGuire, 2004 ND 171, ¶ 6, 685 N.W.2d 748:
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 the record. Hoffman, 1999 ND 122, ¶ 5, 595 N.W.2d 592; Grenz, 534 N.W.2d at 817-18. Although our review is de novo, we accord due weight to the hearing body's findings because the hearing body had the opportunity to observe the demeanor of the witnesses. Grenz, 534 N.W.2d at 818; Schirado, 364 N.W.2d at 52.
[¶ 4] The Commission found that on May 24, 2010, Judge Corwin injured his hands while at work and his court reporter drove him to a hospital emergency room. Judge Corwin testified that " we came out of [the emergency room incident] with a connection we didn't have before." Because his hands were bandaged from the accident, Judge Corwin would ask the court reporter to come to his office and help him tie his necktie for court appearances. The court reporter did so and found the experiences " [u]ncomfortable but not alarming."
[¶ 5] On July 15, 2010, Judge Corwin and the court reporter, along with other Cass County Courthouse personnel, went to a Fargo restaurant and bar for an after-work gathering where they consumed alcohol. Judge Corwin invited the court reporter to join him on a bicycle ride that evening. She did so, and after the bicycle ride, Judge Corwin invited her into his home where they each had a glass of wine. While in the home, Judge Corwin engaged the court reporter in a conversation which she reasonably construed as a proposition for a sexual relationship. The court reporter rejected the offer, telling him she had read an article advising " it was a mistake to get involved with your boss." Judge Corwin responded that not all office romances end badly and pointed to his own 20-plus year marriage to his former secretary. As the court reporter was leaving the home, Judge Corwin hugged and kissed her.
[¶ 6] On the evening of Sunday, July 18, 2010, Judge Corwin called the court reporter at her home and requested she bring a blind she had taken to wash to the courthouse so he could hang it in a bathroom there. The court reporter told Judge Corwin she would not get involved in a relationship with him. On July 21, 2010, Judge Corwin called the court reporter while traveling to a court appearance in Hillsboro and asked if she would go on a bike ride with him the following evening. The court reporter declined the invitation and reiterated her belief that it
was a bad idea for the two of them to become intimate. Judge Corwin became angry. While on an extended lunch break on August 3, 2010, the court reporter received a text message from a coworker telling her Judge Corwin had been in the court reporter's office for 45 minutes with his feet on the desk reading a transcript. This was something Judge Corwin had not done before. He was still there when she returned to her office. The court reporter felt intimidated by the experience.
[¶ 7] On August 9, 2010, Judge Corwin asked the court reporter to shop for fixtures for a courthouse bathroom. She told him she could not leave the courthouse and Judge Corwin responded that she could leave if she went with him. The court reporter told Judge Corwin " just to leave the bathroom alone, it was fine, and he said, ‘ Stop being so fucking difficult.’ " Later that day the court reporter sent Judge Corwin the following email:
Wick, It seems like we are not communicating very well, so I am going to try this forum so there is no mistaking what I am saying. I do not want to be involved with you on any personal level whatsoever. I do not want to be any more than professional coworkers. What's concerning me is when I told you I didn't want to go bathroom shopping with you, you told me to " Stop being so f'ing difficult." I'm not being difficult. I'm trying to nicely tell you to back off. Please stop trying to " plan" things to get me alone. I'm sorry if this seems overly blunt, but I've said it other ways and you are either not hearing me or ignoring what I am saying. And, it's like a band-aid— better to just rip it off and get it over with. We've already talked about this subject. I don't want to revisit it again. Trust me, that is best all around. I enjoy working here and working with you and I want it to stay that way. Enough said, I guess. I can't be much clearer than that.
[¶ 8] During this period of time, Judge Corwin frequently asked the court reporter into his office, closed the door, and discussed personal topics including their relationship. To extricate herself from these situations, the court reporter would have a coworker interrupt the closed-door discussions after a certain amount of time had passed. The coworker would also accompany the court reporter out of the courthouse at the end of the workday to prevent her from being alone with Judge Corwin. Judge Corwin repeatedly asked the court reporter to have lunch with him, but she consistently made excuses why she could not accompany him. In an October 4, 2010, email, the court reporter told Judge Corwin: " To save you the trouble of asking again, I'm gona [sic] pass on lunch permanently. None of the judges go to lunch w[ith] staff. Makes people talk. Don't need/want that." On December 23, 2010, Judge Corwin confronted the court reporter at a grocery store about their relationship, stating " ‘ You know what I want for Christmas? I want us to stop treating each other like shit.’ " In April 2011, Judge Corwin suggested they should ask the court administrator to switch her to a new team. After the court reporter objected to the change, Judge Corwin told her " ‘ [i]f this were still the law firm, I'd have taken care of the problem a long time ago, but since you work for the state it's going to be a little tougher.’ "
[¶ 9] Judge Corwin on various occasions continued in his attempts to talk to the court reporter about their " relationship." On June 22, 2011, the court reporter sent Judge Corwin the following email:
Wick, this is the last email I hope to have to send you about this. I know you said not to send you any more emails about this, but you also said you were
going to leave me alone and you haven't. Per our conversation yesterday and you wanting to YET AGAIN discuss some " made up" problem in your head about how we don't get along because of YOUR actions— DROP IT! I'm not discussing this issue again w[ith] you. I am not required to be your " friend" to work here. I do not see you harassing [a coworker] to HAVE to be your " friend" to work on this team. I am doing my job. I am in court when I'm supposed to be and I do clerical duties as they are assigned— just like [the coworker] does and that doesn't seem to be a problem w[ith] her. I avoid you because you won't stop trying to have " conversations" w[ith] me about something that I clearly have told you more than once to just leave alone. We are COWORKERS. Start acting like it! You are making me hate this job and feel ill having to come here because I don't want to deal w[ith] you. There is no " problem," other than that I didn't go along w[ith] your advances so now you are trying to make up problems to try and get rid of me, just like you told me you would do (get rid of me) if this were a private law firm. As I told you, I am not going down [without] a fight, so go ahead and try that route if you want to, but don't blame me when you don't like the consequences. This is your last warning. I have had it. DROP IT and stop harassing me. You do your job and I'll do mine and we'll get along just fine. Don't bring this issue up to me again. You can visit w[ith] me about anything work related, but don't touch this issue again. And I don't care if this email makes you furious. Get over yourself and quit being such a jerk cuz you didn't get your way. Maybe this is what you need to see in writing to get it— leave it alone and leave me alone!
[¶ 10] Judge Corwin and another district court judge had input over the court reporter's biennial performance review, which determined whether she would receive a biennial pay increase. In September 2011, Judge Corwin told the trial court administrator that the court reporter had arrived late for work. The trial court administrator sent the court reporter an email advising her to complete an annual leave slip for the morning she was late. The presiding judge informed the trial court administrator that the court reporter was late because she had been commuting from Grand Forks but was moving back to Fargo.
[¶ 11] During the court reporter's biennial performance review in January 2012, the other judge who had input gave her a favorable evaluation. Judge Corwin told the trial court administrator that he and the court reporter had difficulty communicating and that she had lately been reluctant to type for him. Judge Corwin eventually had a meeting with the trial court administrator, the assistant trial court administrator, and the presiding judge where he told them the court reporter was not getting his typing completed on a timely basis and complained about some of her emails to him. ...