In re Justice of the Peace, 833 A.2d 950 (Del. Jud. 2003)

IN THE COURT ON THE JUDICIARY
OF THE STATE OF DELAWARE
IN RE: 	§
§ 	C.J. No. 3, 2002
THE HONORABLE JOHN O’BIER, §
§
a Judicial Officer. 	§
Submitted: 	August 5, 2003
Decided: 	November 6, 2003
Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE and
JACOBS, Justices, CHANDLER, Chancellor and RIDGELY, President
Judge, constituting the Court on the Judiciary.
Daniel V. Folt, Esquire, of Duane Morris, Wilmington, Delaware, for
Judicial Officer.
David A. Boswell, Esquire, of Rehoboth Beach, Delaware, appointed as
Presenting Counsel.
Per Curiam:

In this proceeding that brings a judicial officer before the Court on the
Judiciary pursuant to the Delaware Constitution, we conclude that the judicial
officer committed wilful and persistent misconduct that violated the Delaware
Judges’ Code of Judicial Conduct. For that misconduct we conclude that he
must be sanctioned. We further conclude that the judicial officer suffers from
a disability that must be adequately treated before he may be permitted to return
to his judicial duties.
THE CONSTITUTION AND APPLICABLE CODE PROVISION
Article IV, Section 37, of the Delaware Constitution confers authority on
the Court on the Judiciary to discipline a judge for:
wilful misconduct in office, wilful and persistent failure to
perform his or her duties, the commission after appointment of an
offense involving moral turpitude, or other persistent misconduct
in violation of the Canons of Judicial Ethics as adopted by the
Delaware Supreme Court from time to time.
[Moreover, a] judicial officer may be retired by virtue of this
section for permanent mental or physical disability interfering
with the proper performance of the duties of his or her office.
Canon 2 of the Delaware Judges’ Code of Judicial Conduct is implicated
in this matter. It provides in pertinent part that “[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.” 	The
Comment to Canon 2 provides that:

2
Public confidence in the judiciary is eroded by irresponsible or
improper conduct by judges. A judge must avoid all impropriety
and appearance of impropriety.
***
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.
PROCEDURAL BACKGROUND
The judicial officer in this proceeding is the Honorable John O’Bier, a
magistrate of the Justice of the Peace Court in Sussex County, Delaware. Judge
O’Bier was appointed to his position in January 1989 and has been reappointed
twice. 	His term expires in March 	2004. 	Judge O’Bier currently is on paid
administrative leave pending the outcome of this proceeding.
The Honorable Patricia W. Griffin, Chief Magistrate of the Justice of the
Peace Court, filed a complaint in the Court on the Judiciary. The complaint
alleged that Judge O’Bier (i) mishandled a gun in the presence of court staff;
(ii) conducted court while in a confused and disoriented state of mind; and (iii)
appeared confused, disoriented and not in a condition to work.
The Court on the Judiciary designated a Panel of the Preliminary
Investigatory Committee to investigate the matters identified in the complaint

3
and thereafter to submit a report determining whether or not there is probable
cause to believe that the judicial officer may be subject to sanction under the
Constitution. The Panel filed a report finding that probable cause existed to
believe that Judge O’Bier (i) “displayed his weapon before the Clerks in a
fashion that made them feel their personal safety was in question,” (ii) “was
confused and disoriented while conducting his court,” and (iii) “was not in a
condition to work as a Justice of the Peace because of this disorientation and
confused condition.” Moreover, the Panel concluded that “probable cause does
exist regarding the competency of Judge O’Bier to fulfill his judicial duties and
whether that competency is impaired by medical and/or physical problems
and/or the use of medication.”
The Court on the Judiciary appointed Superior Court Judge Carl
Goldstein as the Board of Examining Officer. 	In turn, the Board appointed
David A. Boswell, Esquire, as presenting counsel to conduct an investigation

1The Court expresses its gratitude to Mr. Boswell for his professional services
rendered pro bono publico. The Court also expresses its view that his services and those of
Daniel V. Folt, Esquire, counsel for respondent, were in the highest tradition of the Delaware
Bar.
4
and to present evidence to the Board on the formal charges.1 The Board held
a four-day evidentiary hearing, and thereafter directed Judge O’Bier and
presenting counsel to submit proposed findings of fact and conclusions of law,
along with recommendations for disposition of this matter.
The Board issued a final report finding that Judge O’Bier’s conduct in
drawing his firearm before court personnel on one occasion and, on other
occasions, displaying his firearm in public view, constituted wilful and
persistent misconduct that violated Canon 2 of the Delaware Judges’ Code of
Judicial Conduct. The Board recommended a three-month suspension without
pay, a public reprimand, and a permanent ban on carrying or displaying a
weapon while on court premises. On the remaining two charges concerning
Judge O’Bier’s confused state of mind and disorientation, the Board concluded
that there was no evidence of wilful misconduct or persistent failure to perform
duties and no evidence upon which to conclude that Judge O’Bier was
incompetent “to fulfill judicial duties due to impairment by his medical and/or
physical problems and/or the use of medication.” The Board recommended,
however, that Judge O’Bier continue treatment for existing medical conditions,

5
be evaluated for any substance abuse problem and follow medical treatment
recommendations. 	Moreover, the Board recommended that Judge O’Bier’s
medical and treatment providers report periodically to the Chief Magistrate as
to Judge O’Bier’s compliance with the conditions and his abilities to perform
his duties.
Presenting Counsel filed exceptions to the Board’s report. Judge O’Bier
did not file exceptions. Thereafter, this Court ordered briefing, and the matter
was heard upon oral argument.
FACTS
In January 2002, Judge O’Bier began working midnight to 8 a.m. shifts,
“the graveyard shifts,” at J.P. Court No. 3 in Georgetown, Delaware.
Previously, he had worked primarily the day shift at J.P. Court No. 4 in
Seaford, Delaware. 	He agreed to try permanent overnight shifts, however,
because he wanted to work four days on and four days off, a feature of the
graveyard shifts, and because he wanted to assist the other judges at J.P. Court
No. 3, none of whom wanted to work that shift. 	Moreover, because Judge
O’Bier had difficulty sleeping at night, he reasoned that working the graveyard
shift might help him sleep during the day.

6
Judge O’Bier began the first graveyard shift on January 11, 2002, and
worked the following three days. After four days off, Judge O’Bier went back
to work at midnight on January 19, 2002, to start another four shifts. It is Judge
O’Bier’s behavior during this time period, specifically January 19 to January
22, 2002, that was the focus of the initial complaint against him and the
subsequent investigation into his conduct.
Judicial Officer’s Display of Weapon
The record reflects that Judge O’Bier normally carried a firearm with him
to work as a magistrate. According to Deputy Chief Magistrate Sheila Blakely,
the practice of magistrates carrying weapons at work began in the 1960s in
response to their concerns about the lack of court security.
In January 2002, there was no written policy in the Justice of the Peace
Court system governing the circumstances under which magistrates are

2While we recognize that budgetary restraints have challenged court security in the
Justice of the Peace Courts, we urge the General Assembly to provide adequate
appropriations so that court security can be made available in the Justice of the Peace Courts
during all hours of operation, thus obviating the perceived need of some magistrates to have
firearms available. 	Meanwhile, we are aware that the Justice of the Peace Court
administration is currently reviewing a firearm policy in view of policies recently established
for other courts and courthouses. If the Justice of the Peace Court administration deems it
imperative that magistrates carry concealed weapons on judicial duty until adequate funding
is available to provide court security during all shifts of operation, we urge the court to
promulgate an official written policy that sets forth specific guidelines defining when, where
and under what circumstances magistrates are authorized to carry those weapons.
7
authorized to carry weapons.2 The record is clear, however, that over the years
Judge O’Bier’s supervisors and fellow magistrates had to remind him several
times that he was required to lock his gun away or to keep it out of sight if he
was carrying it. Nonetheless, the record reflects that he persisted in displaying
his weapon both on his desk in chambers and on his person.
A few minutes before midnight on January 21, 2002, Judge O’Bier
relieved another magistrate and began his 12:00 a.m. to 8:00 a.m. shift on
January 22, 2002. At the same time, Denise Baker, a court clerk, was ending
her own shift, and Kathy Carlisle, another court clerk, relieved Baker.
Both Carlisle and Baker testified that Judge O’Bier was normally
pleasant, friendly and easy-going, but on that morning he was out of sorts.
According to Carlisle, Judge O’Bier seemed to be in pain, complained about the
severe pain he had experienced since his most recent back surgery, and was
upset about what he claimed had been a long-standing problem he had with

3The record includes numerous references to Judge O’Bier’s belief that he was the
subject of a vendetta and retaliatory treatment by Chief Magistrate Griffin and Deputy Chief
Magistrate Blakely. Judge O’Bier disavowed the so-called vendetta at the Board hearing,
and we find no evidence to support these references.
4 The record reflects that Judge O’Bier was traumatized by an incident at Johns
Hopkins when he was forcibly intubated without being sufficiently anesthetized.
8
Chief Magistrate Griffin and Deputy Chief Magistrate Blakely.3 Baker
described Judge O’Bier as uncharacteristically “on edge” and “intense.” She
recounted that he talked about how he had been mistreated in the hospital 4 and
about an incident in the news where a boy’s father had gotten beaten to death
at a sporting event.
At approximately 12:15 a.m., Baker was standing at the back door of the
administrative office of the court preparing to leave. Carlisle was seated at her
desk several feet away from Baker. 	Judge O’Bier was standing in front of
Carlisle’s desk. 	There are major discrepancies in the testimony of Baker,
Carlisle and Judge O’Bier about what happened next.
Carlisle testified that she could not recall the gist of the conversation at
the time or to whom he was speaking, but that Judge O’Bier, during the course
of a conversation, rapidly pulled his gun out of his holster and pointed the
barrel approximately two feet to the side of Baker. Carlisle said that she was
surprised by the incident, and that Baker was very frightened.

9
In testifying about the same incident, Baker recalled that Judge O’Bier
was talking non-stop and in an agitated manner about the beating incident in the
news when he suddenly drew his weapon, pointed it a couple of feet to her left,
and then immediately returned the gun to its holster. Baker testified that, when
Judge O’Bier pointed his gun near her, she “yelped” in fear. 	According to
Baker, she remained inside for a few minutes because she was afraid to leave
Carlisle alone with Judge O’Bier. Baker then went to her car where she sat for
a few minutes trying to decide whether or not to call Carlisle to make sure that
she was okay and whether to call the police to report the incident.
In stark contrast to Baker’s testimony, Judge O’Bier testified that he was
neither excited nor angry when he drew his weapon in the presence of Baker
and Carlisle. 	Instead, he explained, he slowly and calmly removed his gun
from his holster with one hand and displayed it in the palm of his other hand,
possibly in response to Carlisle’s question about gun safety. 	Judge O’Bier
testified that he did not intend to frighten Baker and Carlisle, and that he was
not aware that he had frightened Baker. 	Nonetheless, he recognized in
hindsight that he had made a mistake in judgment when he removed his
weapon, and he testified that he was remorseful about the incident.
Judicial Officer’s Disorientation and
Confused Condition at Work

10
Several witnesses, including other magistrates, court personnel in
addition to Carlisle and Baker, and two police officers who appeared in court
before Judge O’Bier, testified that his behavior was abnormal on January 19
through January 22, 2002. 	For example, Casey Glatfelter, a court clerk,
testified that while at work on January 19, 2002, Judge O’Bier slurred his
speech, was sluggish, lethargic, worked slowly, was confused or disoriented,
and was not himself.
Delaware State Police Corporal Rick Deskis, who had never previously
appeared before Judge O’Bier, testified that, on January 19, 2002, 	Judge
O’Bier was “odd,” “not right,” and ranted inappropriately and irrationally at an
arraignment. Corporal Deskis testified that he was so concerned about Judge
O’Bier’s behavior that, after he left the courthouse, he telephoned the court
clerk “to make sure everything was okay.” 	Delaware State Police Sergeant
Charles Caldwell, who had previously appeared before Judge O’Bier over fifty
times, observed, during this same arraignment, a major change in Judge
O’Bier’s behavior, including repeated rambling, disjointed comments and a

5Sergeant Caldwell’s deposition transcript of August 1, 2002, was admitted into
evidence in lieu of live testimony.
6
The record reflects that Judge Hopkins relieved Judge O’Bier at midnight on January
19 and 21, 2002. 	Judge Hopkins was unable to recall on which of the two nights he
observed Judge O’Bier in an impaired condition.
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change in speech patterns.5 Sergeant Caldwell testified that he believed that
Judge O’Bier was on medication.
Because of their concern about Judge O’Bier’s unusual behavior at the
arraignment, both Corporal Deskis and Sergeant Caldwell made it a point to
watch a video arraignment conducted by Judge O’Bier later that morning.
According to Sergeant Caldwell, Judge O’Bier behaved “better” at the video
arraignment. 	Corporal Deskis stated even more emphatically that Judge
O’Bier’s later behavior was much better, “like night and day.”
Judge William Hopkins testified that Judge O’Bier’s eyes were glassy,
and that he appeared dazed, disoriented, confused, and “in no condition to
work” on January 19 or 21, 2002.6 Judge Hopkins testified that, on the morning
in question, Judge O’Bier “was not in control of his faculties like he normally
is,” rambled, was “beside himself,” and seemed preoccupied with the grievance
he had against Chief Magistrate Griffin and Deputy Chief Magistrate Blakely.
Judge Hopkins surmised that Judge O’Bier was under the influence of drugs.
He confronted Judge O’Bier with his suspicions and even offered to accompany

12
him to California to the Betty Ford Clinic to address the drug problem that
Judge Hopkins suspected. When asked on direct examination whether Judge
Hopkins had confronted him about a suspected drug problem on January 19 or
21, 2002, Judge O’Bier replied that he could not recall the conversation.
Finally, Judge Jeni Coffelt, a close friend and colleague of Judge O’Bier,
testified that, when she relieved Judge O’Bier on January 20, 2002, she
observed that he was lethargic, slurred his speech and “repeated things over and
over.” Judge Coffelt testified that Judge O’Bier “was impaired that morning
to the point where [she] didn’t feel comfortable having a discussion with him”
because she “didn’t think he would comprehend what [she] had to say to him.”
Judge Coffelt testified that she suspected that Judge O’Bier’s impairment
was due to medication, specifically methadone. She recalled that, in a closed
door session with him the following morning at the shift change, she told him
in no uncertain terms that “some of the officers might perceive him to be more
intoxicated or impaired” than some of the defendants who were coming before
him. Judge Coffelt urged Judge O’Bier “to address this aggressively with his
physician.” 	On direct examination, Judge O’Bier recalled talking to Judge
Coffelt that morning, but he did not remember any details of the conversation.

7Casey Glatfelter testified that she observed Judge O’Bier taking medication while
at work on January 19, and that, on January 20, he stated that he was getting medication
from his truck. 	Judge O’Bier admitted that he may have taken a pill while at work on
January 19, but if he did, it was a non-prescription medication.
13
Judge Coffelt also testified that she observed a prescription pill bottle on
Judge O’Bier’s desk when she relieved him on January 20. 	Judge Coffelt
recalled that the prescription label was dated 1999 and was authorized by a
dentist in Seaford. She could not recall the name of the medication, and she did
not open the bottle to look inside.
Judge O’Bier denied that he took any medication at work during that
period of time, except perhaps a non-prescription vitamin, antacid or aspirin
that he had a habit of carrying in an old prescription bottle.7 Moreover, Judge
O’Bier denied that the unusual incidents recounted by the witnesses were
caused by his use of any narcotic medication.
Judge O’Bier testified that he was “extremely tired and exhausted”
during the four graveyard shifts from January 19 through 22, 2002. Indeed, he
estimated that he got only an hour of sleep before reporting to work on January
19, 20 and 21, and maybe two to three hours of sleep before reporting to work
on January 22, 2002.
In addition to his sleep problems, Judge O’Bier recalled that during this
period of time he was struggling with a crisis in his personal relationship.

14
According to Judge O’Bier, he spent January 18, 2002, the day before the
January 19 graveyard shift, moving out of the house that he shared with his
long-term girlfriend, Sherri Benson. Judge O’Bier testified that he and Benson
were both upset about the move, and that, as a result of the upheaval in his
personal life, he was distracted and anxious when he reported to work on
January 19.
Judicial Officer’s Restless Leg Syndrome and
Chronic Sleep Deprivation
Judge O’Bier has suffered from restless leg syndrome since his youth.
It first affected his sleep in the early 1970s and has grown progressively worse
in the ensuing years. When he was first officially diagnosed with restless leg
syndrome in 1994, Judge O’Bier was sleeping between one and four hours
each night. Unfortunately, as the condition worsened over the years, he got less
and less sleep. 	By the second set of graveyard shifts in January 2002, he
admitted that he had lost control of his sleep problem and was getting, at the
most, one to two hours of sleep each night and no sleep at all on some nights.
Judge O’Bier’s primary care physician, Dr. Kenneth Smith, diagnosed
his restless leg syndrome and testified on Judge O’Bier’s behalf at the hearing.
Dr. Smith prescribed medications, but they gave Judge O’Bier no lasting relief,
and the condition continued to grow worse over time. 	In 1999, Dr. Smith

15
referred Judge O’Bier to a neurologist, Dr. Bruce Doppler. 	Dr. Doppler
experimented with a variety of medications in an effort to improve Judge
O’Bier’s condition. The medications helped for only a brief period of time,
however. His condition regressed, persisted and continued to worsen.
In February 2002, having not resolved Judge O’Bier’s restless leg
syndrome and sleep-related difficulties, Dr. Doppler referred him to Dr. Katrin
Andreasson at Johns Hopkins. 	Dr. Andreasson examined Judge O’Bier and
issued a report with new recommendations. Dr. Smith began prescribing a new
schedule of combination medications as suggested by Dr. Andreasson.
All of the doctors who evaluated Judge O’Bier agreed that he suffers
from a long-term and extremely serious case of restless leg syndrome with
chronic sleep deprivation. Both Dr. Smith and Dr. John B. Townsend, III, a
neurologist who evaluated Judge O’Bier for the hearing and reviewed his
medical records, opined that working back-to-back graveyard shifts would have
caused a significant negative impact on his already fragile sleep pattern.
Moreover, both Dr. Smith and Dr. Townsend opined that Judge O’Bier’s
restless leg syndrome-induced sleep deprivation, in combination with the move
to permanent graveyard shifts, together likely caused Judge O’Bier’s unusual
behavior that others reported during the period in question.

16
Judicial Officer’s Use of Pain Medications
The record reflects that, in addition to restless leg syndrome and chronic
sleep deprivation, Judge O’Bier suffers from chronic back pain. Despite two
back surgeries in 2000, he continues to experience daily back pain that he
described as “moderate” at its best and, at times, “severe.”
Judge O’Bier was prescribed powerful narcotic medications, including
methadone, oxycontin and oxycodone, to treat post and pre-surgical back pain.
A prescription history exhibit used at the Board hearing reflects that he was
prescribed methadone for a period of time ending in January 2001, and
oxycontin and oxycodone for periods ending in December 2001.
Judge O’Bier testified that the last time he took oxycontin was in
November 2001, and that he has not possessed methadone since April 2001.
Moreover, he testified that, despite his problems with pain, he did not like
taking pain medications, and that he did not take all of the oxycontin that was
prescribed for him, and he took none of the oxycodone.
The record does not entirely support Judge O’Bier’s testimony that he
has not used oxycontin since November 2001. 	For example, Judge Coffelt
testified that when she confronted Judge O’Bier on January 20 with her
suspicions that he was using methadone, he told her that he was not taking

17
methadone, he was taking oxycontin. Moreover, medical records admitted into
evidence suggest that Judge O’Bier may have reported to Dr. Smith on January
21, 2002, that he was taking oxycontin.
Both Dr. Smith and Dr. Townsend testified, however, that given the
limited 	amount 	of 	medication 	taken 	by 	Judge 	O’Bier 	and 	from 	their
observations of him, they did not believe that he was addicted to or abusing
drugs. Moreover, a report from the Sussex County Counseling Services stated
that Judge O’Bier was evaluated for substance abuse on February 12, 2002.
The evaluation data did not support substance abuse treatment at that time, and
the urine screen was “negative for non-prescribed drugs and alcohol.”

18
BOARD’ S FINDINGS OF FACT AND CONCLUSIONS OF LAW
Display of Weapon
The Board found that “Judge O’Bier displayed a weapon in a fashion that
the two court clerks in his presence felt that their personal safety was
threatened,” and that such behavior was wilful misconduct. 	The Board also
found that “Judge O’Bier’s persistence in carrying his weapon on his person
while at work in such a way that the weapon was clearly visible to the public
and employees constitute[d] wilful misconduct.” The Board concluded that
Judge O’Bier’s mishandling of his weapon violated Canon 2 of the Delaware
Judges’ Code of Judicial Conduct “by creating the perception that his ability to
carry 	out 	his 	judicial 	responsibilities 	with 	integrity, 	impartiality 	and
competence was impaired.”
Judicial Officer’s Disorientation and
Confused Condition at Work
The Board concluded that the evidence presented at the hearing failed to
show by clear and convincing evidence that “Judge O’Bier’s behavior as
alleged during the relevant time period constituted wilful misconduct or
persistent failure to perform his duties so as to create a reasonable perception
that his ability to carry out his judicial responsibilities with integrity,
impartiality and competence was impaired.” The Board found it particularly

8In re Rowe, 566 A.2d 1001, 1005 (Del. Jud. 1989).
9Id.
10Id. at 1006.
19
persuasive that “no witness testified that Judge O’Bier, despite acting in an
unusual manner, was unfit to perform his job duties or that he did not perform
them in a satisfactory manner.”
The Board further found that the evidence presented did not reveal that
“Judge O’Bier suffered from a drug addiction or that his competency was
affected due to the use of medication.” Rather, the Board found that “Judge
O’Bier’s behavior resulted from a severe lack of sleep resulting from his
diagnosed restless leg syndrome combined with the change in his work hours.
In addition, Judge O’Bier was suffering a personal crisis that caused him
emotional upset and distraction.”
S TANDARD OF REVIEW
The final report of the Board has the force and effect of a master’s report
in 	the 	Court 	of 	Chancery.8 This Court is not required to adopt the
recommendation of the Board.9 Rather, “[t]his Court is obligated to conduct its
own evaluation of the evidence adduced by the Board and reach an independent
conclusion as to the sanctions to be imposed.”10 The ultimate responsibility to

11Del. Const. art. IV, § 37.
12In re Rowe, 566 A.2d at 1006; Ct. Jud. R. 13(g).
13Id.
14Id. (quoting Kaszuk v. Bakery and Confectionary Union, 638 F.Supp. 365, 374
(N.D. Ill. 1984)).
20
censure, remove or retire any judicial officer appointed by the Governor is
entrusted to this Court. 11
Judicial misconduct or disability must be proved by clear and convincing
evidence. 12 Clear and convincing evidence is a higher evidentiary standard than
mere preponderance, but a lesser standard than proof beyond a reasonable
doubt.13 Clear and convincing evidence is best described as evidence that
produces in the mind of the trier of fact “an abiding conviction that the truth of
[the] factual contentions are ‘highly probable.’”14
Display of Weapon
We have independently reviewed the record and conclude that the
Board’s findings of fact and conclusions of law as to the display of weapon
charge are supported by clear and convincing evidence. 	Our review of the
record leads us to conclude that Judge O’Bier’s mishandling of his weapon on
January 22, 2002, demonstrated, as the Board found, “gross unconcern for his
conduct and for the safety of others in the vicinity” and thus constituted wilful

15In re Rowe, 566 A.2d at 1006.
21
misconduct. Moreover, we agree that Judge O’Bier’s persistence in carrying
and displaying his weapon while at work in such a way that the weapon was
clearly visible to the public and employees, constituted wilful misconduct.
Furthermore, we agree that such persistent misconduct violated Canon 2 of the
Judges’ Code of Judicial Conduct.
Judicial Officer’s Disorientation and
Confused Condition at Work
Having carefully reviewed the record, we agree with the Board that
Judge O’Bier’s conduct that led to the charges that he was confused and
disoriented and in no condition to work, did not rise to the level of wilful
misconduct. 	“[W]ilful misconduct as used in art. IV § 37 of the Delaware
Constitution includes the improper or wrongful use of the power of his/her
office by a judge acting intentionally, knowingly, voluntarily, or with gross
unconcern for his conduct, which would bring the judicial office into
disrepute.”15 We conclude that Judge O’Bier did not, when he elected to report
to work while in a severely sleep-deprived condition that precipitated
debilitating behaviors, engage in “the improper or wrongful use of the power
of his/her office.” Moreover, under the circumstances of this case, we conclude

16 “[W]hen incompetency is alleged the Court’s task is to determine whether the
conduct at issue establishes that the [judicial officer] lacks the requisite ability, knowledge,
judgment, or diligence to consistent and capably discharge the duties of the office he or she
holds.” In re Baber, 847 S.W.2d 800, 803 (Mo. 1993).
22
that Judge O’Bier did not, either in reporting to work while sleep-deprived or
in remaining at work while he was reportedly impaired, act “intentionally,
knowingly, voluntarily, or with gross unconcern for his conduct.”
Furthermore, we agree with the Board that Judge O’Bier’s actions were
neither persistent failure to perform duties nor were they persistent misconduct
in violation of the Delaware Judges’ Code of Judicial Conduct. It is undisputed
that the allegations of confused and disoriented behavior were uncharacteristic
of Judge O’Bier and occurred only during three consecutive shifts out of a
twelve year career. We find, for this reason, that his decisions to report to work
while severely sleep-deprived during the shifts in question, as well as the
ensuing impairments that were noted by others who worked with him, were
isolated and anomalous incidents that did not rise to the level of actionable
persistent misconduct.
Finally, we agree with the Board that Judge O’Bier was not shown by
clear and convincing evidence to be incompetent to fulfill his judicial duties
due to impairment by a medical problem.16 Notwithstanding our finding as to
Judge O’Bier’s competence, however, we find that the evidence disclosed in the

17American Judicature Society, Guidelines for Cases Involving Judicial Disability,
No. 1 (1985).
23
record overwhelmingly supports a finding that Judge O’Bier suffers from a
judicial disability.
A judicial disability exists whenever a physical or mental impairment
significantly interferes with the capacity of a judge to perform judicial
functions or duties.17 In this case, the evidence leaves no doubt that during the
period from January 19 to January 22, 2002, Judge O’Bier was overwhelmed
by a disability, i.e., chronic sleep deprivation, that was likely exacerbated by the
change in his schedule and a personal crisis unfolding at the time. Also, it is
clear that this disability significantly interfered with Judge O’Bier’s ability to
carry out the duties of his office.
THE APPROPRIATE S ANCTION
After consideration of the arguments and evidence presented in this case,
we uphold the Board’s report and find that Judge O’Bier’s inappropriate
display of his weapon constituted wilful and persistent misconduct in office.
We adopt the Board’s recommended sanction of a three-month suspension, a
public reprimand, and a permanent ban on Judge O’Bier from carrying or
displaying a weapon at work.

18The record reflects that Dr. Townsend expressed a willingness to accept
responsibility for managing and directly treating Judge O’Bier’s restless leg syndrome,
implementing a treatment plan, and providing periodic reports to the Chief Magistrate
certifying Judge O’Bier’s ability to work as a magistrate.
24
Moreover, we agree with the Board that there is significant evidence in
the record to raise legitimate concerns about Judge O’Bier’s current and future
mental and physical status. 	Indeed, we conclude that the record supports a
finding that Judge O’Bier suffers from a judicial disability that is likely to be
remediable. Therefore, the Court agrees with the Board’s recommendations,
as modified below. 	Accordingly, Judge O’Bier will be suspended for three
months for misconduct involving the firearm. Thereafter, he may be restored
to judicial duties only after he has demonstrated fitness to return to judicial
office.
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1. 	The report of the Board of Examining Officers is confirmed and
approved, except as otherwise provided.
2. 	Effective on this date, Judge O’Bier is suspended from his judicial
office for wilful and persistent misconduct in connection with the
weapon misuse.
3. 	This suspension is for a period of three months, without salary,
benefits or other compensation.
4. 	Judge O’Bier must continue regular treatment for existing medical
conditions, including the treatment offered by Dr. Townsend, 18
during the period of suspension.

19Confidentiality does not apply to an order of suspension. See Ct. Jud. R. 17.
25
5. 	Judge O’Bier must be evaluated for any substance abuse problem
and follow treatment recommendations by a competent specialist.
6. 	Judge O’Bier must be evaluated for any sleep disorder problem
and follow treatment recommendations by a competent specialist.
7. 	Judge O’Bier’s medical and treatment providers must report to the
Chief Magistrate on or before the end of the three-month
suspension as to his compliance with these conditions and his
ability to perform his duties.
8. 	At the conclusion of his three-month suspension, Judge O’Bier
shall not resume his judicial duties until he has been adequately
treated and has demonstrated his fitness to return to his position
as a judicial officer, as determined by his medical and treatment
providers, to the satisfaction of the Chief Magistrate.
9. 	Nevertheless, salary and benefits shall be restored after the three
months original suspension until further Order of this Court.
10. 	Judge O’Bier shall not resume his judicial duties beyond the
suspension period of three months until the conditions of the
preceding paragraphs have been met, and such compliance and
Judge O’Bier’s ability to resume judicial duties shall have been
determined and certified to the Clerk of this Court by the Chief
Magistrate of the Justice of the Peace Court.
11. 	The publication of this Opinion will constitute public censure. 19
12. 	A certified copy of this Opinion shall be transmitted to the
Governor, the State Treasurer, and to the Chief Magistrate of the
Justice of the Peace Court.
13. 	Jurisdiction is retained for the purpose of receiving the
certification of the Chief Magistrate as provided in paragraph 10

26
and evaluating whether further proceedings by this Court shall be
required or this proceeding terminated, in connection with Judge
O’Bier’s current and presumptively remediable judicial disability.