C.J. No. 3, 1996

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OCR transcription for search; preserved printed pages are authoritative

# IN THE COURT ON THE JUDICIARY OF THE STATE OF DELAWARE

IN THE MATTER OF:

Los

THE HONORABLE

cos

LEONARD L. WILLIAMS,

cas C.J. No. 3, 1996

los

A Judicial Officer.

cos

Submitted:

June 12, 1997

Decided:

October 6, 1997

Revised:

October 8, 1997

Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT, and
BERGER, Justices, RIDGELY, President Judge, and JACOBS, Vice
Chancellor,1 constituting the Court on the Judiciary.

Victor F. Battaglia, Sr., Esquire, of Biggs & Battaglia, Wilmington,
Delaware, for Judicial Officer.

John A. Parkins, Jr., Esquire, of Richards, Layton & Finger, Wilmington,
Delaware, Presenter.

Per Curiam:

1 Designated pursuant to art. IV, § 37, to replace former Chancellor William T.
Allen, who recused himself because of the imminent expiration of his term.

In this proceeding to discipline a member of the judiciary pursuant to
the Delaware Constitution,2 we find that the judicial officer has committed
acts of persistent misconduct in violation of the Delaware Judges' Code of
Judicial Conduct. Accordingly, we impose a sanction appropriate under all
the circumstances.

The judicial officer in this proceeding is The Honorable Leonard L.
Williams, a judge of the Municipal Court of the City of Wilmington. Judge
Williams presently occupies a unique status. He is a part-time judge and a
practicing lawyer. The status of part-time Municipal Court judgeships was
abolished in 1969,3 but Judge Williams continues to hold office as a judge by
reason of holding over pursuant to law,4 despite the expiration of his term in
1978. In about six months, however, Judge Williams' part-time judicial

2 Del. Const., art. IV, § 37.

3 56 Del. Laws 188 (1967) enacted a new provision, 10 Del. C. § 1702(e),
prohibiting Municipal Court Judges from practicing law while serving as a judge, except
that a judge then serving was granted the option to complete his term without regard to that
prohibition. Judge Williams is the only member of the Delaware judicial conference who
is not prohibited from practicing law. DEL. JUDGES' CODE OF JUD. CONDUCT Canon 5F.

4 Del. Const., art. XV, § 5 (providing officers to hold office until successors
qualify).

position will be abolished by reason of the merger of the Municipal Court and
the Court of Common Pleas.5

Article IV, Section 37, of the Delaware Constitution confers authority
on the Court on the Judiciary to censure, suspend,6 remove or retire a judge
for persistent misconduct in violation of the Canons of Judicial Ethics, as
adopted by the Supreme Court. The Constitution also provides authority to
discipline a judge for wilful misconduct in office, wilful failure to perform
duties or the commission of an offense involving moral turpitude. None of
those elements is before us in this proceeding. Thus, the operative
constitutional provision here is that which authorizes the Court to discipline
a judge for "other persistent misconduct in violation of the Canons of Judicial
Ethics."

The acts of alleged persistent misconduct at issue here are as follows:

A.
Failure to pay withholding and property taxes.

B.
Failure to pay parking fines.

C.
As a lawyer, filing false certifications with the
Delaware Supreme Court.

5 See 71 Del. Laws 176 (1997), discussed infra at pp. 27-28.

6 The power to remove includes the power to suspend. In re Rowe, Del. Jud., 566
A.2d 1001, 1003 (1989).

The following Canons of Judicial Ethics of the Delaware Judges' Code
of Judicial Conduct, adopted by the Supreme Court, are implicated.

Canon 1. A judge should uphold the integrity and
independence of the judiciary.

A. An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing,
maintaining and enforcing high standards of conduct, and should
personally observe those standards, so that the integrity and
independence of the judiciary may be preserved. The provisions
of this Code should be construed and applied to further that
objective.

## Canon 2. A judge should avoid impropriety and the appearance of impropriety in all activities.

A. A judge should respect and comply with the law and should
act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary.

### Procedural Background

Following the publication of certain articles in The News Journal
regarding Judge Williams' alleged unpaid parking tickets and unpaid taxes,
Judge Williams requested, in writing, that the Court on the Judiciary
undertake an investigation. The Chief Justice assigned these matters to a
panel of the Preliminary Investigatory Committee (PIC) of the Court on the

Judiciary, pursuant to the rules of the Court.7 That panel, consisting of Paul
H. Boswell, Esquire (Chair), Edmund N. Carpenter, II, Esquire, and Mr.
James H. Gilliam, Sr., investigated and concluded that there was probable
cause to believe that Judge Williams was subject to sanctions under Article
IV, Section 37, of the Constitution.8 The Chief Justice, accordingly,
appointed a Board of Examining Officers (the Board).9 The Board consisted
of the following judicial officers: Vice Chancellor (now Chancellor) William
B. Chandler III (Chair), Supreme Court Justice William Duffy (retired),10 and
Superior Court Judge William T. Quillen.

### Findings of Fact

The Board held a two-day evidentiary hearing and issued a report
making certain findings of fact, conclusions of law and recommended
sanctions. We have independently reviewed the record and the report. We
adopt substantially the findings of the Board as our findings of fact. We have

7 See Ct. Jud. R. 4(d); In re Williams, Del. Jud., C.J. No. 3, 1996, Veasey, C.J.
(March 20, 1996) (Order).

8 See Ct. Jud. R. 5(b).

9 See Ct. Jud. R. 6; In re Williams, Del. Jud., C.J. No. 3, 1997, Veasey, C.J.
(June 17, 1996) (Order).

10 The Court notes most sadly the death of Justice Duffy on September 24, 1997.

concluded that the Board's findings of fact and conclusions of law on the
merits are supported by clear and convincing evidence.

#### A. Failure to Pay Taxes

## 1. Withholding Taxes

As of March 26, 1996, Judge Williams owed a total of $113,245.09 for
unpaid federal, state and city payroll taxes for his law firm's employee
payroll. These taxes included employee income tax, FICA, unemployment
and Medicare. All these taxes were paid in full by the date of the hearing
before the Board. Judge Williams admits he failed to pay these taxes in a
timely manner, but claims that his secretary, upon realizing that the law firm
did not have the funds to pay both office expenses and taxes, decided to pay
the office expenses and failed to tell him that the taxes were not paid because
she was worried about his health.

In addition to failing timely to pay the taxes, Judge Williams failed
timely to file withholding reports. In some cases these reports were as much
as two years late. He claims these reports were prepared by his accountant
and timely signed and submitted to his secretary for mailing. Once he found
out in 1993 that his secretary had not filed the reports, he immediately

directed her to do so. Some of these reports were returned because the City
would not accept filing without payment.

## 2. Property Taxes

On March 13, 1996, The News Journal reported that Judge Williams
owed over $37,000 in unpaid County property taxes. As of March 18,
Denbuck Realty11 owed $5,291.14 in unpaid County property taxes. The day
after The News Journal article, he paid $22,083 in taxes on his personal
residence. The following day he paid an additional $2,745.05 for property
taxes on three of his other eighteen properties. Shortly thereafter, he agreed
to pay the remaining taxes, including those for properties owned by Denbuck
Realty, at a rate of one property per month, starting with a first payment on
May 1. He failed to make a payment on May 1. Except for a $5,000
payment on May 31, 1996, apparently made in response to an inquiry from
the County, he made no further payments until the morning of the Board's
hearing, September 5, 1996. At the hearing, a representative of the County's
Department of Finance testified that Judge Williams' currently due taxes
totaled over $15,000 with just under $10,000 of that amount currently

11 Judge Williams and his secretary, Kim Jenkins, are the sole officers and directors
of Denbuck. Judge Williams' children are the sole stockholders.

delinquent.12 His pattern with respect to real estate taxes was to ignore them
until the property was sold, the property was threatened with monition or he
was otherwise pressured to pay them.

## B. Parking Tickets

On March 5, 1996, the City of Wilmington posted a list in The News
Journal of the top parking scofflaws. Judge Williams was identified as owing
$2,328 in fines on eighty-one tickets. A separate article revealed that he paid
these fines in full the day before publication of the article. The original
information about his unpaid tickets, as published in The News Journal, was
not correct. Only sixty-six tickets, not eighty-one as the newspaper article
stated, were issued to vehicles owned by or registered to Judge Williams.
Furthermore, thirty-seven of these sixty-six tickets were issued to a license
plate and car that no longer belonged to him. The evidence indicates that
Judge Williams actually had about twenty-nine parking tickets outstanding in
March 1996 for vehicles owned by him or registered in his name.

The City of Wilmington periodically mails notices of unpaid parking
tickets to the address of the vehicle's registered owner. For the ticketed

12 The record is not clear whether or not these taxes have finally been paid, but we
assume, without deciding, for present purposes that all taxes have either now been paid or
that satisfactory arrangements for payment have been made.

vehicles owned by Judge Williams, this address was a home he formerly
shared with his wife. Between 1985 and 1993 he did not live at this address,
and he stated that he did not receive notices of tickets during this period.

By September 1989, Judge Williams had accumulated twelve
outstanding unpaid tickets on his Mercedes Benz. Some of these tickets were
issued almost three years earlier. Because his car was about to be towed, he
marked three of the tickets with the words "pay" or "will pay," marked the
remaining nine with a check mark (indicating they were to be protested) and
gave all twelve tickets to Municipal Court Commissioner Laurence Fitchett
for him to protest or present for payment. Mr. Fitchett briefly attempted to
protest the nine tickets that Judge Williams had indicated he would not pay,
but abandoned his effort because he did not believe it was his "role to do so
at the Department of Revenue." Instead, Mr. Fitchett personally paid for all
twelve tickets, told Judge Williams that all twelve were "satisfied," but
requested repayment for only the three that Judge Williams had indicated he
would pay. Judge Williams received the receipt indicating that Mr. Fitchett
had paid for all twelve tickets, but he did not question why Mr. Fitchett
requested reimbursement for only three.

In August 1990, Judge Williams' Chevrolet was booted.13 Mr. Fitchett
obtained a printout of outstanding tickets and marked those that he thought
Judge Williams would pay.14 Mr. Fitchett paid cash for seventeen tickets and
the boot fee, but requested reimbursement for only eight tickets. Again,
Judge Williams was provided with the receipt, but never questioned what
happened to the other tickets.

In October 1992, Judge Williams' Mercedes Benz was booted. He
provided Mr. Fitchett with tickets for the Mercedes that were marked "pay"
as well as tickets for the Chevrolet marked "pay." Mr. Fitchett personally
paid for a total of twenty-seven tickets and the boot fee, but requested
reimbursement for only fourteen. Again, Judge Williams never questioned
what happened to the remaining tickets.

In 1993, Judge Williams moved back to the home he formerly shared
with his wife. He stated that at this time he stopped relying on Mr. Fitchett
to help him identify outstanding tickets because he had returned to the address

13 Judge Williams is the registered owner of this vehicle. Although he claims that
his son is the primary driver, Judge Williams admits he drove this vehicle occasionally.

14 Apparently Mr. Fitchett marked those tickets within the two-block radius of the
courthouse as one that Judge Williams would pay. It is not clear whether Mr. Fitchett
followed this criterion because Judge Williams used it in 1989 or because he was told to
use this criterion by a bailiff or by Judge Williams.

of the registered owner of his vehicles-the address where ticket notices were
mailed. Mr. Fitchett tells a slightly different story. On January 25, 1993, he
sent a note to employees of the courthouse requesting that he no longer be
asked to handle the payment of tickets. According to this record, Judge
Williams was the only person who ever requested Mr. Fitchett's help in this
regard.

Between December 1993 and September 1995, sixteen notices covering
ten different tickets on the Mercedes Benz were mailed to Judge Williams'
home. Other tickets were issued for other vehicles in his name during this
period. Records supplied by Judge Williams indicate that, as of March 4,
1996, the City's computer records identified a zero amount due on seven of
the ten tickets, despite the fact that all seven tickets had fines and, in some
cases, penalties attached. Furthermore, at least two of these tickets were
dismissed after the allowable twenty-one day protest period.15 The

15 Tickets state that the recipient has twenty-one days to protest the ticket. In
December 1994 and January 1995, Judge Williams received parking tickets that were not
dismissed until November 17, 1995, well after the allowable twenty-one day protest
period. He claims that there is no evidence that these tickets were "protested."
Apparently he claims that these were appropriately "dismissed" and "dismissals" do not
fall under the twenty-one day protest period.

uncancelled fines were not paid until The News Journal inquiries were
published.

Judge Williams testified that it was (and is) established Municipal Court
policy to dismiss tickets received within a two-block radius of the courthouse
if the employee was forced to park in the ticketed spot because that
employee's designated parking spot was blocked by construction or by another
vehicle. He also stated that this policy allowed him to have tickets dismissed
within this radius even if he was not on judicial business at the time.
According to Judge Williams, some of the ten tickets he received after 1993
were issued when his parking space was blocked and he was forced to park
elsewhere. Thus, Judge Williams deliberately parked in violation zones and
sent the resulting tickets to be "canceled" according to the Court's policy.

Judge Williams claims that there is no evidence that he ever parked
illegally. In his response to the Report of the PIC, however, he states that
when he received tickets for parking in the street when his space was blocked,
he submitted those tickets for dismissal. Furthermore, tickets presented to
Mr. Fitchett for payment or dismissal included violations for "Police
Veh[icles] Only," "U.S. Marshall Only," "Library Vehicles Only," "Bus

Stop," "Handicap Zone," "Loading Zone," "Crosswalk," and "Street
Cleaning."

## C. Supreme Court Certification

As a member of the Delaware Bar and a practicing lawyer, Judge
Williams was at all relevant times required by Rule 1.15 of the Delaware
Lawyers' Rules of Professional Conduct and Interpretive Guideline No. 2
promulgated thereunder to maintain proper accounts and to make appropriate
periodic certifications to the Delaware Supreme Court.

Judge Williams' 1995 Supreme Court Certificate of Compliance
represented that he had complied with client account reconciliation
requirements when, in fact, he had not. The 1995 Attachment to the
Certificate of Compliance required the responding lawyer to answer "yes,"
"no" or "not applicable" to several questions including the following:

3\)
For each bank account, a reconciliation is
performed monthly, proving totals from the cash
receipts and cash disbursement journals to the
ending checkbook balance (if using a manual
system) or computer-generated ending balance.

4\)
Checkbook (or computer-generated) balances for all
bank accounts are reconciled monthly to bank
statement balances.

5\)
For escrow accounts:

b)
Monthly listings of client balances are
prepared showing client name,
balance, and the total of all client
balances.

c)
Each month a reconciliation procedure
is performed proving beginning
balance, cash receipt, and cash
disbursement journal totals to the end
of month cash in bank and to the total
of the client balance listing. (The bank
reconciliation for the escrow account is
not complete unless it agrees with the
total of client accounts.)

Judge Williams was found by the Board to have answered "yes" to questions
3, 4, 5(b) and 5(c) when the correct answer to each of the four questions was
"no." There is no dispute that Judge Williams' responses to these questions
are incorrect.16

This is the third time that Judge Williams (as a lawyer) has been subject
to discipline for failing properly to maintain his law office's books and

16 The record, reflecting some confusion at the Board hearing, includes a copy of
the attachment to Judge Williams' 1996 certificate of compliance that was filed with the
Supreme Court and a copy of a draft version of the attachment to Judge Williams' 1995
certificate of compliance. To clarify the record, the Court has taken judicial notice of the
1995 attachment that was filed with the Supreme Court. The 1995 attachment conforms
to the draft version of that document with the exception that question 4, that was left blank
on the draft version, is answered "yes" on the attachment. The record, as so
supplemented, reflects that, in both 1995 and 1996, Judge Williams answered "yes" to
questions 3, 4, 5(b) and 5(c).

records. It is the second time that he has incorrectly answered questions 3,
4, 5(b) and 5(c) on the Supreme Court Certificate of Compliance. His first
failure to answer these questions correctly resulted in a 1989 recommendation
of a public reprimand by the Board on Professional Responsibility. The
Supreme Court approved that recommendation.

On March 14, 1996, a Certified Public Accountant hired by Judge
Williams started a "crash program" to bring his books and records into
compliance. The CPA started with records for 1991 as those figures were the
most recent figures in agreement. Apparently those figures were in
agreement only because of the previous disciplinary action. Records since
then are not in compliance.

Judge Williams stated that his secretaries told him they performed the
reconciliation work. His accountant claims that he told Judge Williams'
secretary to answer "no" to the four questions asking if the proper procedures
had been followed. The answers, however, were recorded by the secretary
as "yes" and Judge Williams filed the Certificate with his signature. He is
accountable for these incorrect answers, which the Board found to be

"false."17 Although Judge Williams questions the harshness of this term, we
believe it to be apt. We find that deliberate deception or, at best, an
unprofessional lack of concern for correctness can be inferred from this
record. There is a clear expectation that a professional be sensitive to
providing accurate information to a regulatory body, in this case, the Supreme
Court.18 Judge Williams did not live up to that expectation.

### Conclusions of Law

#### A. Withholding and Property Taxes

Judge Williams failed to pay timely as much as $130,000 in federal and
state payroll taxes and $37,000 in county property taxes. His deliberate
pattern was not to pay taxes on a particular property until he desired to sell
the property or until the property was threatened with monition, or until his
failure to pay was made public. That pattern resulted in delinquencies lasting

17 The dictionary definition of the word "false" is as follows:

false . . . 1. not true or correct; erroneous: a false statement. 2. uttering or
declaring what is untrue: a false witness. 3. not faithful or loyal;
treacherous: a false friend. 4. tending to deceive or mislead; deceptive: a
false impression. 5. not genuine; counterfeit. 6. based on mistaken,
erroneous, or inconsistent impressions, ideas, or facts: false pride. . . .

Random House Unabridged Dictionary (2d ed. 1993).

18 See In re Mekler, Del. Supr., 669 A.2d 655-66 (1995) (definition of
professionalism applicable to lawyers).

as long as six years. In addition to this failure timely to pay taxes, he has also
failed consistently to file required payroll withholding reports with federal,
state and city authorities.19 Both failures are serious, but the latter is the more
serious.

We hold that these failures by Judge Williams show a persistent pattern
of misconduct in violation of Canons 1 and 2. He knew that property taxes
on his properties were not being paid on a timely basis. He acted deliberately
and persistently in refusing to pay these taxes. He also knew or should have
known that the withholding taxes and forms were not filed or paid in a timely
manner. By persistently failing timely to file his tax reports and to pay his
property and employee withholding taxes, he placed himself above the law.
He repeatedly displayed a cavalier attitude toward the law and toward the
obligation of all citizens to support their government and to comply with its
legal requirements. Not only did he fail to pay in a timely manner property
taxes he admits he owed, but he also failed to pay some of his delinquent
property taxes in accordance with a schedule he and the County had agreed
upon.

19 It should also be noted that Judge Williams' judicial salary is currently subject
to an agreement with the Internal Revenue Service whereby money is paid directly to the
IRS in order to resolve a prior income tax deficiency claim.

Judge Williams attempts to justify his failure to pay property taxes by
pointing to his financial difficulties resulting from domestic problems and
relating to his law practice. He also cites the need to devote more time to his
judicial position than he thought would be necessary, resulting in less time for
his private law practice.20

The Court is sympathetic to Judge Williams' problems at these
understandably difficult times. As a justification for misconduct, however,
it is unavailing. All property owners have an obligation to pay taxes due on
their properties. A citizen, despite financial and personal problems, must
pay. If a taxpayer is unable to meet his or her property tax obligations, the
taxpayer has the same recourse that was available to Judge Williams-to sell
the property on which the taxes are owed in order to reduce the tax burden.
Rather than take these steps to avoid tax delinquencies on various properties,
he adopted the practice of not paying property taxes until he desired to sell the
property, the property was threatened with monition, or he was otherwise
pressed to pay the taxes.

20 This Court notes that the Municipal Court was understaffed for a considerable
period of time because of another judicial vacancy that was not promptly filled. Hence,
Judge Williams did voluntarily extend his hours and was quite willing to assist the court
beyond the hours he was committed to serve. The Court has considered this admirable
undertaking as part of the mitigating factor relating to his judicial career.

The Court finds that Judge Williams' failure to pay property taxes, his
failure to transmit withheld taxes in a timely fashion and his failure to file
timely reports as required by law constitute a persistent and continuing
violation of Canon 1 of the Delaware Judges' Code of Judicial Conduct. The
comment to Canon 1 provides, in pertinent part, as follows:

Although judges should be independent, they should comply with
the law, as well as the provisions of this Code. Public
confidence in the impartiality of the judiciary is maintained by
the adherence of each judge to this responsibility. Conversely,
violation of this Code diminishes public confidence in the
judiciary and thereby does injury to the system of government
under law.

The Code may also provide standards of conduct for application
in proceedings pursuant to Article IV, Section 37 of the
Delaware Constitution although it is not intended that
disciplinary action would be appropriate for every violation of its
provisions. Whether disciplinary action is appropriate, and the
degree of discipline to be imposed, should be determined through
a reasonable application of the text and should depend on such
factors as the seriousness of the violation, the intent of the judge,
whether there is a pattern of improper activity, and the effect of
the improper activity on others or on the judicial system. Many
of the proscriptions in the Code are necessarily cast in general
terms, and it is not suggested that disciplinary action is
appropriate where reasonable judges might be uncertain as to
whether or not the conduct is proscribed.

The Court also finds a violation of Canon 2A of the Delaware Judges' Code
of Judicial Conduct. The comment to Canon 2 provides as follows:

Public confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. A judge must
avoid all impropriety and appearance of impropriety. A judge
must expect to be the subject of constant public scrutiny. A
judge must therefore accept restrictions that might be viewed as
burdensome by the ordinary citizen and should do so freely and
willingly.

The prohibition against behaving with impropriety or the
appearance of impropriety applies to both the professional and
personal conduct of a judge. Because it is not practicable to list
all acts, the proscription is necessarily cast in general terms that
extend to conduct by judges that is harmful although not
specifically mentioned in the Code. Actual improprieties under
this standard include violations of law, court rules or other
specific provisions of this Code. The test for appearance of
impropriety is whether the conduct would create in reasonable
minds, with knowledge of all the relevant circumstances that a
reasonable inquiry would disclose, a perception that the judge's
ability to carry out judicial responsibilities with integrity,
impartiality and competence is impaired. A judge does not
violate this Code merely because a personal or judicial decision
of the judge may be erroneous.

Judge Williams argues that the provision of the Constitution authorizing
this Court to impose sanctions for "other persistent misconduct" does not
permit sanctions for conduct that is "merely" negligent. This view represents
a reading of the Constitution that is far too narrow. The record here goes
well beyond a showing that there were a few isolated and innocuous instances
of negligence. We have found a deliberate and persistent pattern evidencing
a flagrant disregard for the normal responsibilities of a citizen. In view of the

proper and stern injunctions of the Canons, this record is appalling in its
pattern of irresponsibility. In particular, the failure to remit taxes withheld
on employees' wages is a serious offense and is particularly reprehensible
since these funds are deemed to be held in a fiduciary relationship.21 How can
it not be said that these acts constitute persistent misconduct?

#### B. Parking Tickets

Judge Williams' failure promptly to pay his parking tickets is not
excused by his claims of lack of notice. He, or the driver of his car, received
notice in the form of the ticket every time a ticket was issued. Yet
sometimes, even when he received such a notice, he waited almost three years
before paying or protesting the tickets. Furthermore, notices of unpaid tickets
periodically are sent to registered owners of vehicles. The City, before
posting notices in The News Journal, mailed a special letter identifying
outstanding tickets on February 21, 1996, to top "scofflaws," including Judge
Williams. Even though he may not have lived at his home during some of this
time, it was his legal responsibility to notify the Department of Motor

21 See In re Disciplinary Action Against Gurstel, Minn. Supr., 540 N.W.2d 838,
841 (1995).

Vehicles of his current address (and thereby the location of his vehicles for
proper notification purposes).

He also responds by stating that his children, and possibly his law office
employees, drove some of his cars and are to blame for many of the tickets.
But it is not the responsibility of the police or the courts to track down drivers
of vehicles of registered owners. Judge Williams has not identified other
drivers willing to accept responsibility for tickets on his cars.

Judge Williams also attempts to excuse his receipt and dismissal of
tickets by relying on what he describes as "the policy of the court ... to
dismiss tickets issued for vehicles which were required to park on the street
because they were unable to access the assigned parking area." Whether or
not the policy exists, it does not alter the fact that Judge Williams delayed
paying or protesting tickets, often for extended periods of time.

We find that the evidence shows clearly and convincingly that Judge
Williams deliberately parked in violation zones, that he delayed (in some
cases for almost three years) the payment of tickets, and that he allowed his
tickets to be successfully protested beyond the twenty-one day period. The
evidence does not show that he dismissed his own tickets, and he is not
charged with such an act of misconduct. Nevertheless, the Municipal Court's

ticket dismissal procedures22 tend to create the appearance in the mind of a
reasonable person that Judge Williams did dismiss his own tickets.23

We hold that Judge Williams' failure to pay or to protest his tickets in
a timely manner was a violation of the following provisions of the Delaware
Judges' Code of Judicial Conduct:

Canon 1. A judge should participate in establishing, maintaining
and enforcing high standards of conduct, and should personally
observe those standards, so that the integrity and independence
of the judiciary may be preserved; and

Canon 2A. A judge should respect and comply with the law.

#### C. Supreme Court Certification

This is the third time that Judge Williams has been subject to discipline
for failing properly to maintain his law office's books and records. It is the
second time that he has incorrectly answered questions 3, 4, 5(b) and 5(c) on
the Supreme Court Certificate of Compliance. His first failure to answer
these questions correctly resulted in a 1989 public reprimand.

22 Protested tickets are reviewed by the presiding judge, who decides which protests
will be allowed. The actual ticket dismissal, however, may not occur until days or weeks
later, at which time the bailiff marks the tickets with the date and the then-presiding
judge's initials. In this case, the procedure resulted in some of Judge Williams' tickets
being marked with his own initials, even though he was not the judge who made the
decision to allow the protest.

23 Such a policy, if it exists, must be terminated. We trust the Municipal Court will
act accordingly, if it has not done so already.

He is responsible for filing accurate and complete responses on the
Certificate of Compliance, as is every other active member of the Delaware
Bar. His personal obligation to ensure the accuracy of the Certificate is not
excused by his reliance on his secretary and accountant to provide accurate
responses. A lawyer must sign the Certificate of Compliance, attesting
personally to its accuracy and completeness. Considering that he previously
had been reprimanded for incorrectly answering the same questions, the Court
finds that Judge Williams should be charged with the knowledge that, in his
circumstances, his answers were false. He should have been especially
sensitive to the need for accuracy. By allowing the Certificate to be filed with
false answers, he violated Canon 2A ("A judge should respect and comply
with the law") of the Judges' Code of Judicial Conduct.

### The Appropriate Sanction

The matter of the appropriate sanction in this case is a vexing and
difficult issue. In particular, it should be kept in mind that the violations here
do not involve moral turpitude or misconduct in the performance of Judge
Williams' official duties. Nevertheless, the Court has found significant acts
of persistent misconduct in violation of the Canons of Judicial Ethics.

The majority of the Board recommended a public censure and a six-
month suspension from judicial service. The minority concluded that a public
censure would be sufficient under the circumstances. This Court's
responsibility to determine the appropriate sanction is plenary, and we
approach the task de novo.

The aggravating circumstances involved in the misconduct found by the
Court are detailed above. In sum, these findings evidence acts of
irresponsible and persistent misconduct that tend to bring the judiciary into ill
repute. We must, however, consider the relative severity of the several
findings of persistent misconduct. The failure to pay withholding taxes is by
far the most serious violation. Second in terms of severity is the repetition of
the false certifications to the Supreme Court by Judge Williams in his role as
a lawyer.24 The persistent failures to pay property taxes and parking tickets
are serious departures from the ethical obligations of a judge, but these
violations are not as egregious as the failure to pay withholding taxes and the
repeated false certifications to the Supreme Court.

24 Repeat offenses often implicate suspension of lawyers from the practice of law,
depending on the nature of the offense. Cf. In re Lassen, Del. Supr., 672 A.2d 988
(1996). This is relevant by analogy, but as an analogy it is not completely apt in this
situation.

We need not decide the abstract question of what would be an
appropriate sanction on any one or the various combinations of these charges.
If the mitigating factors discussed below were not present here, it is clear to
us that the acts of misconduct in this case would warrant a public censure and
a substantial period of suspension from judicial service. That theoretical
sanction would likely be in excess of that which we will impose in this case.
We need not further quantify that theoretical period of suspension, however,
because the mitigating factors here are compelling and result in a significant
amelioration of what would otherwise be appropriate.

We now turn to the mitigating circumstances. They include: (a) Judge
Williams' personal and financial difficulties outlined above; (b) his long and
otherwise distinguished record of judicial and community service; (c) the fact
that Judge Williams ultimately paid, or made financial arrangements to pay,
his delinquent taxes and parking tickets; (d) the fact that he requested this
investigation (although undoubtedly it would ultimately have been undertaken
by the Court on its own initiative); and (e) the fact that Judge Williams was
not charged with any act of misconduct in the performance of his judicial
duties. Because of these mitigating factors, we conclude that a public censure
and a three-month suspension from judicial service and compensation are

appropriate under the circumstances presented here. Those sanctions are
hereby imposed, subject to the following qualification.

There is one additional phenomenon that is relevant here. That
phenomenon impels us to a further amelioration. Judge Williams' status as
a part-time judge is about to come to an end by reason of factors unrelated to
these proceedings. After this case was argued, the General Assembly passed,
and the Governor signed, legislation providing for the merger of the
Wilmington Municipal Court with the Court of Common Pleas. That
legislation is currently scheduled to become effective on or about April 10,
1998.25 When the effective date arrives, there will no longer be any part-time
judgeships. Only the current full-time judges of the Municipal Court will
become judges of the Court of Common Pleas.26 Since Judge Williams is not
a full-time judge, his judgeship will cease to exist by operation of law.

Thus, we are dealing with a unique situation. Assuming that the
merger implementation schedule continues roughly on the present track, Judge

25 71 Del. Laws 176 (1997). Section 44 provides that the legislation shall become
effective 270 days after it is signed by the Governor. The date of the Governor's signature
is July 14, 1997. It is, of course, not unlikely that this date may be postponed by further
legislative action for logistical reasons relating to implementation issues.

26 Id. See § 5.

Williams' judicial service will be ending in a few months due to circumstances
beyond his control. The sanction of a suspension for three months from all
judicial service and remuneration, if imposed now, would take on added
severity because it would effectively cut in half the remainder of Judge
Williams' long and otherwise distinguished judicial career.

The Court has taken into consideration this happenstance as an
additional factor that is relevant to the determination of the final sanction.
Accordingly, the Court will withhold and will not implement the suspension
of Judge Williams from judicial service, provided that he agrees in writing on
or before November 1, 1997, to forfeit three months' judicial compensation27
without other diminution or reduction of his judicial service,28 such forfeiture
to commence January 1, 1998. If Judge Williams does not elect this
alternative, he will be suspended from all judicial service and remuneration
from November 1, 1997 through January 31, 1998.

27 The Court notes that Judge Williams has an agreement with the IRS concerning
direct payment from his judicial salary (see n. 19, supra). Some alternative measures may
be required to accommodate that arrangement and the forfeiture or suspension here.

28 As noted above, Judge Williams was not charged with any act of misconduct in
carrying out his judicial duties. Accordingly, there is no potential harm to the public if he
is permitted to continue those judicial duties with his pay forfeited for that three-month
period.

# Entitlement to Reimbursement of Counsel Fees and Expenses

In this proceeding, John A. Parkins, Jr., Esquire was appointed to serve
pro bono publico as the Presenter to assist the Board and the Court. The
Court expresses its gratitude to Mr. Parkins, whose public service before the
Board and the Court was in the highest professional tradition of the Delaware
bar.

Victor F. Battaglia, Sr., Esquire was selected as counsel by Judge
Williams and was appointed by the Board pursuant to Rule 9(d) of this Court
and Rule 68 of the Supreme Court. Mr. Battaglia's service was likewise in
the highest professional tradition of the Delaware bar. A petition was filed
by Judge Williams for counsel fees pursuant to Supreme Court Rule 68. The
Court will deny the petition, except to the extent hereinafter set forth.

Judge Williams has been unsuccessful in his defense with regard to the
nonpayment of taxes and the false certification. He is not entitled to counsel
fees in that connection. Moreover, the charges stemming from his failure to
pay his property taxes and withholding taxes, as well as his failure to file an
accurate Certificate of Compliance with the Supreme Court, do not constitute

"acts arising out of his employment" as an Associate Judge of the Municipal
Court. Judge Williams' failures were not related to duties or actions essential
to accomplishing the primary purpose of a judicial office-that of conducting
authorized judicial proceedings and rendering judgments.29 Accordingly, the
Court finds that Supreme Court Rule 68 does not authorize payment of fees
and costs at State expense on these issues.

As to the parking ticket violations, Judge Williams was partially
successful, though he was found to have committed acts of persistent
misconduct in connection with other grossly delinquent parking tickets. There
was some evidence that certain parking violations arose out of an effort to
park his car to conduct his judicial duties, pursuant to the dubious Municipal
Court policy. Thus, we conclude that he may be reimbursed for reasonable
legal fees and expenses to the extent that they are attributable to his successful
defense of parking ticket violations.

Nevertheless, after Judge Williams was advised of the Court's October
6, 1997 ruling that he was entitled to counsel fees and expenses to the limited
extent set forth above, he voluntarily waived his entitlement to such fees and

29 In the Matter of David P. Buckson, Del. Jud., 616 A.2d 327, 331 (1992).

expenses. Accordingly, he has withdrawn his request for reimbursement.
Therefore, the matter of reimbursement of such fees and expenses is now
moot.

NOW, THEREFORE, this 8th day of October, 1997, Judge Williams'
counsel and the Presenter having been advised of the decision of the Court on
October 6, 1997, and Judge Williams' counsel having filed with the Court
letters dated October 6, 1997, electing to forfeit three months' compensation,
effective January 1, 1998, without diminution or reduction in his judicial
service and instructing the Treasurer of the City of Wilmington to carry out
the forfeiture, and Judge Williams having voluntarily withdrawn his request
for reimbursement of counsel fees and expenses,

IT IS ORDERED as follows:

1\) Judge Leonard L. Williams is hereby publicly censured and
suspended in accordance with the terms of the Opinion of the Court set forth
above, subject to the following provisions of this Order.

2\) The Court hereby withholds the suspension and its implementation
in view of Judge Williams' written decision to forfeit three months'
compensation without diminution or reduction of his judicial service.

3\) Accordingly, Judge Williams shall forfeit, and shall not be entitled
to receive, such three months' compensation effective January 1, 1998, but
this shall not diminish or reduce his judicial service during such period.

4\) The request by Judge Williams for counsel fees and expenses having
been withdrawn, that issue is now moot.

5\) Pursuant to Del. Const., art. IV, § 37, the foregoing Opinion and
Order of this Court and the letters of October 6, 1997 to the Court and to the
City Treasurer from Judge Williams' counsel are released from the
confidentiality provisions of the Constitution. All other proceedings and
records herein are covered by the following constitutional provision:

All hearings and other proceedings of the Court on
the Judiciary shall be private, and all records except
a final order of removal or retirement shall be
confidential, unless the judicial officer involved
shall otherwise request.

BY THE COURT:
Erforman Veasey

Chief Justice

In re Municipal Court Judge, 701 A.2d 825 (Del. Jud. 1997)

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