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Judicial Conduct Commission v. Hagar

Supreme Court of North Dakota

March 30, 2017

Judicial Conduct Commission, Petitioner
v.
Richard L. Hagar, Respondent

         Application for disciplinary action.

         SUSPENSION ORDERED.

          Kara J. Erickson (argued) and Ryan A. Heintz (on brief) for petitioner.

          Richard L. Hagar respondent.

          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 and by failing to work with the presiding judge. He also objects to the Commission's recommended sanction. We conclude there is clear and convincing evidence Judge Hagar violated N.D. Code Jud. Conduct Rules 2.5 and 2.7. We order that Judge Hagar be suspended from his position as district court judge for three months without pay and that he be assessed $10, 118.67 for the costs and expenses of the disciplinary proceedings.

         I

         [¶ 2] Judge Hagar began serving as a district court judge on January 1, 2007. In 2012, this Court 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." In re Disciplinary Action Against Hagar, 2012 ND 19, ¶ 6, 810 N.W.2d 338 (" Hagar I "). That disciplinary proceeding involved 12 cases which had not been promptly decided despite Judge Hagar being removed from new case assignments for 30 days so he could devote himself to bringing his docket current. Id. at ¶ 2. The affidavit of consent and agreement we adopted included Judge Hagar's written plan and agreement for promptly deciding cases. Id. at ¶ 5. The plan envisioned Judge Hagar's use of Odyssey electronic case management system reports and "better use of current court staff" to meet those standards.

         [¶ 3] In 2014, this Court suspended Hagar from his position as district court judge for one month without pay for violating former N.D. Code Jud. Conduct Canons 3(B)(1) and 3(B)(8) and current N.D. Code Jud. Conduct Rules 2.5(A) and 2.7 by failing to diligently and promptly decide judicial matters assigned to him. In re Disciplinary Action Against Hagar, 2014 ND 33, ¶ 12, 842 N.W.2d 873 (" Hagar II "). We held Judge Hagar violated the rules because he did not issue a decision in a divorce case until nearly 10 months after the trial. Id. at ¶ 7. We noted Judge Hagar failed to issue a decision in a timely manner despite having a written plan to meet docket currency standards and repeated requests for disposition of the case. Id.

         [¶ 4] On June 18, 2015, Judicial Conduct Commission brought the present formal charges against Judge Hagar, alleging he violated N.D. Code Jud. Conduct Rules 2.5 and 2.7 by failing to diligently and promptly hear and decide matters assigned to him and failing to cooperate with other judges and court officials. The allegations involved Judge Hagar's handling of seven cases. The disciplinary counsel alleged Judge Hagar failed to timely issue opinions after trials in four cases, failed to take any action on an application for an ex parte order in one case, and failed to issue opinions in an timely manner on motions to suppress in two cases.

         [¶ 5] After a hearing, a hearing panel of the Commission found Judge Hagar willfully violated N.D. Code Jud. Conduct Rules 2.5(A) and (B) and 2.7. The hearing panel noted docket currency standards were exceeded in five of the seven cases, the presiding judge issued a series of letters putting Judge Hagar on notice of cases with potential docket currency problems, Judge Hagar did not respond to the letters and did not explain to the presiding judge why cases were taking longer than applicable time standards or request a modification in his responsibilities, and Judge Hagar did not "decide" two cases assigned to him. The hearing panel recommended Judge Hagar be suspended for three months without pay, he be required to attend a course on "Decision Making" offered by the National Judicial College, he be required to bring all of his cases "docket current" within 90 days of returning to the bench, he learn how he can use the Odyssey system to stay compliant with the docket currency standards, and he pay the costs of the disciplinary proceedings in the amount of $10, 118.67.

         II

         [¶ 6] In In re Disciplinary Action Against McGuire, 2004 ND 171, ¶ 6, 685 N.W.2d 748, we explained our standard for reviewing the Commission's findings and recommendations:

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 ...

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