In re Justice of the Peace, 566 A.2d 1001 (Del. Jud. 1989)

OCR transcription for search; preserved printed pages are authoritative

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

OCT 3 1 1989

In the Matter of :
S
THE HONORABLE WILLIAM S.
§ C.J. No. 6, 1988
ROWE, JR., a Judicial Officer.
S

Submitted:
September 8, 1989
Decided:
October 27, 1989

Before

CHRISTIE,

Chief

Justice,

HORSEY,

MOORE,

WALSH, and

HOLLAND,

Justices,

ALLEN,

Chancellor,

and

STIFTEL,

President

Judge.

James S. Green, Esquire, Connolly, Bove, Lodge & Hutz,
Wilmington, for respondent.

Craig A. Karsnitz, Esquire, Young, Conaway, Stargatt &
Taylor, Georgetown, assigned as presenter.

CHRISTIE, Chief Justice:

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This is a proceeding instituted in the Court on the Judici-
ary on December 27, 1988, pursuant to art. IV, § 37 of the
Delaware Constitution- and the Rules of Procedure of the Court on
1

1
Del. Const. art. IV, § 37 states:

## § 37. Court on the Judiciary.

Section 37. A Court on the Judiciary is hereby created
consisting of the Chief Justice and the Associate Justices of the
Supreme Court, the Chancellor, and the President Judge of the
Superior Court.

Any judicial officer appointed by the Governor may be
censured or removed or retired by the Court on the Judiciary as
herein provided.

A judicial officer may be censured or removed by virtue of
this section for wilful misconduct in office, wilful and
persistent failure to perform his 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.

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 office.

No judicial officer shall be censured or removed or retired
under this section unless he has been served with a written
statement of the charges against him, or of the grounds of his
retirement, and shall have had an opportunity to be heard in
accordance with due process of law. The affirmative concurrence
of not less than two-thirds of the members of the Court on the
Judiciary shall be necessary for the censure or removal or
retirement of a judicial officer. The Court on the Judiciary
shall be convened for appropriate action upon the order of the
Chief Justice, or upon the order of any other three members of
the Court on the Judiciary. 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.

Upon an order of removal, the judicial officer shall thereby
be removed from office, all of his authority, rights and
(Footnote Continued)

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the Judiciary ( "Rules") to inquire into charges of judicial
misconduct brought against the respondent, William S. Rowe, Jr.

Court filed a report on February 9, 1989 containing its conclu-
sion that there is probable cause to believe that Judge Rowe may
have violated the Canons of the Delaware Judges' Code of Judicial
Conduct ("the Code") and engaged in wilful misconduct in viola-
tion of the Delaware Constitution. The Court then appointed a
Board of Examining Officer ("Board"). The Board issued its
report on June 7, 1989 and found that Judge Rowe had violated
Canons 2 and 3 of the Code' and that his actions constituted
2

(Footnote Continued)

privileges as a judicial officer shall cease from the date of the
order, and a vacancy shall be deemed to exist as of that date.
Upon an order of retirement, the judicial officer shall thereby
be retired with such rights and privileges as may be provided by
law for the disability retirement of a judicial officer, and a
vacancy shall be deemed to exist as of the date of retirement.

In the absence or disqualification of a member of the Court
on the Judiciary, the Chief Justice, or in his absence or
disqualification the Senior Associate Justice, shall appoint a
substitute member pro tempore.

The Court on the Judiciary shall have:

(a) the power to summon witnesses to appear and testify
under oath and to compel the production of books, papers and
documents, and

(b) the power to adopt rules establishing procedures for
the investigation and trial of a judicial officer hereunder.

2
-The Delaware Judges' Code of Judicial Conduct provides in
part:

Canon 2. A Judge Should Avoid Impropriety and the Appearance of
Impropriety in All His Activities.

* * * * *

(Footnote Continued)

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wilful misconduct under the constitution. The Board recommended
that Judge Rowe be suspended from office for a period of six
months and that he be publicly censured.

Judge Rowe filed exceptions to the Board's report on June
19, 1989. The Court on the Judiciary ordered further proceedings
before the entire Court and appointed an attorney to present the
arguments in favor of the Board's report. Ct. Jud. R. 9(c) (1).
Briefs were filed by both the respondent and the presenter. The
matter was heard upon oral argument on August 22, 1989. By

(Footnote Continued)

B. A judge should not allow his family, social, or other
relationships to influence his judicial conduct or
judgment.

Canon 3. A Judge Should Perform the Duties of His Office
Impartially and Diligently.

* * * * *

c.
Disqualification.

(1) A judge should disqualify himself in a proceeding
in which his impartiality might reasonably be
questioned, including but not limited to instances
where:

(d) He or his spouse, or a person within the
third degree of relationship to either of
them. . . .

(i) Is a party to the proceeding.

D. Remittal of Disqualification.

A judge disqualified by the terms of Canon 3C(1) (c) or
Canon 3C(1) (d) may, instead of withdrawing from the
proceeding, disclose on the record the basis of his
disqualification. If, based on such disclosure, the
parties and lawyers, independently of the judge's
participation, all agree in writing that the judge's
relationship is immaterial or that his financial
interest is insubstantial, the judge is no longer
disqualified, and may participate in the proceeding.
The agreement, signed by all parties and lawyers, shall
be incorporated in the record of the proceeding.

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further order of the Court, both parties then filed supplemental
memoranda on the issue of whether the Court on the Judiciary has
the authority to suspend a judicial officer pursuant to the
powers vested in it by the Delaware Constitution. We conclude
that the power to suspend is included in the express constitu-
tional powers of removal, retirement, and censure which are
granted to this Court in art. IV, § 37 of the Delaware Constitu-
tion.

We uphold the report of the Board and find that Judge Rowe's
actions constitute wilful misconduct in office. We adopt the
Board's recommendation of suspension for six months and public
censure as the appropriate sanction for the instances of judicial
misconduct found to have been committed.

Judge Rowe has been a justice of the peace for the State of
Delaware since June, 1980, presiding in New Castle County,
Delaware. On December 11, 1984, William S. Rowe, III ("defen-
dant"), Judge Rowe's son, was arrested and charged by the
Delaware State Police with driving under the influence of alcohol
in violation of 21 Del.C. § 4177. No accident was involved and
there was no personal injury or property damage. The arresting
officer called Justice of the Peace Court No. 10 and informed
Judge Rowe that his son had been arrested and charged with
driving under the influence of alcohol. The police officer did
not bring the defendant to Justice of the Peace Court No. 10 on
the night of the arrest, but Judge Rowe told the officer to "do
his duty" in regard to his son's situation.

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The defendant was initially scheduled to be arraigned in
Justice of the Peace Court No. 10 on December 22, 1984, a day
Judge Rowe was also scheduled to hear cases in Court No. 10. On
December 19, 1984, Judge Rowe sua sponte continued his son's
arraignment until December 29, 1984, also a date that Judge Rowe
would be sitting in Court No. 10. The defendant appeared at
Court No. 10 for arraignment on December 27, two days earlier
than scheduled. On that date, Judge Rowe, who was presiding,
arraigned his son and entered an order permitting his son to
elect to enter the State of Delaware First Offender's Program
("FOP"). At the time of the arraignment, there was no one
present in the courtroom other than Judge Rowe and his son, the
defendant. He also failed at that time to advise his son of the
consequences of a subsequent conviction for the same offense.

At the time of his arrest, the defendant had contacted an
attorney who spoke with the arresting police officer on the
evening of the arrest. The arresting officer informed the defen-
dant's attorney that he did not object to a finding of first
offender status in this case, and the attorney advised the
defendant to enter the FOP. The police officer marked the court
copy of the summons "Yes" in the box marked First Offenders
Eligible, and wrote a note in the margin stating: "Yes 1st
offender." Thus, the summons presented to Judge Rowe at his
son's hearing indicated that his son was eligible for the FOP.

Although he met all of the other requirements, this
defendant was in fact not eligible for the FOP without a special
Attorney General's waiver because his blood alcohol level was

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alleged to be above the maximum amount permitted for the FOP. At
the time of the offense, it was not unusual for the State of
Delaware, through the Attorney General's Office, to waive the
blood alcohol level requirement so as to allow the case to
proceed through the FOP. However, an Attorney General's waiver
was not executed in this case.

When his son appeared for arraignment and enrollment in the
FOP, Judge Rowe did not advise his son that a mandatory prison
term would be imposed in the event of a conviction for a like
offense within five years of the initial offense.

The son was again arrested in June, 1988 and charged with
driving under the influence of alcohol. A trial was conducted on
November 9, 1988 before Justice of the Peace Charles M. Stump.
The defendant was convicted of the offense and a presentence
hearing was ordered. The presentence hearing was held on
December 16, 1988. The central question at the hearing was
whether, in the 1984 proceeding before Judge Rowe, the defendant,
Judge Rowe's son, had been provided with proper notice of the
effect of another DUI conviction within five years of his
entering the FOP.

During the hearing, a certified transcript of the
defendant's arraignment on the prior (1984) DUI charge was
entered in evidence. The transcript indicated that the defendant
was arraigned and permitted to enter the FOP in December, 1984.
The transcript failed to indicate that the defendant was advised
of the penalties which he would face if he were to be convicted
of a subsequent DUI charge within the five-year period. Judge

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Stump concluded that he was therefore obligated under Delaware
law to sentence the defendant as a first offender.

Judge Rowe was called as a witness by the deputy attorney
general at the 1988 hearing. He testified that he did not inform
his son that a mandatory prison term would be imposed in the
event of another DUI conviction within five years, either during
the time between his son's arrest and the hearing, or at the
hearing itself.

He also testified that he suggested that his son enter the
FOP. The record revealed that Judge Rowe had signed the order in
1984 directing his son's entry into the FOP, and he had counter-
signed the consent form signed by his son.

Upon reading the transcript of the 1984 case and hearing the
testimony of Judge Rowe, Judge Stump became concerned that Judge
Rowe appeared to have acted in violation of the Delaware Judges'
Code of Judicial Conduct. He notified Deputy Chief Magistrate
Morris Levenberg of his concern, and Judge Levenberg subsequently
filed a complaint against Judge Rowe in the Court on the Judici-
ary. The matter was referred to the Preliminary Investigatory
Committee pursuant to Rule 3 of this Court.

In Judge Rowe's response to the allegations raised in the
complaint, he contended that his son's arraignment was governed
by the standard order of procedure followed in every other case
where a person is similarly charged. He stated that he advised
his son of the charge and penalty attached, his right to trial
and his choice of courts. He also advised his son that he might
qualify for the First Offender Program, provided he met the

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requirements. He stated that he found the traffic summons where
the police officer had marked "Yes" as to the First Offenders
Eligible and where he had written "Yes Ist offender" in the
margin sufficient evidence to meet the eligibility requirement.
He further stated, "[M]y principal motivation in arraigning my
son was to be sure he was thoroughly impressed with the serious-
ness of his offense, not because I was in a position to give him
any special advantage."

Judge Rowe further contended that his willingness to testify
on his son's behalf at the 1988 trial was for "the sole reason
that I was satisfied beyond any doubt he was not guilty of DUI as
he was charged." He stated that the presiding judge was aware
that he was to be called as a witness and was aware it was in a
non-judicial role.

After reviewing the complaint and Judge Rowe's response, the
Committee found that there was probable cause to believe that
Judge Rowe's actions and involvement in his son's 1984 hearing
may have violated Canons 1 and 2 of the Code and constituted
wilful misconduct in office in violation of art. IV, § 37 of the
Delaware Constitution.

Pursuant to the procedure outlined by the Rules of the Court
on the Judiciary and by order of the Chief Justice, an Examining
Board was then convened. An order was issued by the Board to
Judge Rowe to show cause why he should not be censured, suspend-
ed, removed, or retired as a result of the findings of the
Committee. Judge Rowe answered the order to show cause, denying
all charges against him. A hearing was held on April 20, 1989.

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Judge Rowe testified that on December 27, 1984, when his son
appeared for arraignment and enrollment in the FOP, he "lectured"
him regarding the seriousness of the offense, but did not advise
his son at any stage of the proceeding that a mandatory prison
term would be imposed in the event of a conviction for the same
offense within five years of the initial offense. According to
Judge Rowe, this was the standard practice of the great majority,
if not all, of the Justices of the Peace in New Castle County in
1984.

Judge Rowe testified that he acted in his son's case because
he was angry and embarrassed and because he wanted to be sure his
son "was thoroughly impressed with the seriousness of his of-
fense." Judge Rowe admitted that another justice of the peace
also could have emphasized the offense's seriousness, but he
believed he could do so more effectively. Although he was having
regular contact with his son around the time of his arrest, Judge
Rowe testified he did not otherwise talk to his son about the
circumstances of the arrest. He also testified that he acted in
his son's case because he believed no judicial discretion existed
in connection with the FOP election, inasmuch as the program is
administrative in nature and no judgment of conviction results
from the election.

Judge Rowe admitted that he was the only judicial officer
who acted upon his son's 1984 case and that such action violated
the Code. He insisted that at the time of this incident he could
not recall being specifically aware of the prohibition on hearing
cases involving family members, although he acknowledged there

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were some cases involving family members which he understood even
then to be inappropriate for a judge to hear and determine.

The Board concluded that the evidence presented at the
hearing constituted clear and convincing evidence that Judge Rowe
had violated Canons 2 and 3 of the Code in that he was required
to disqualify himself in the criminal proceeding involving his
son in 1984. The Board also concluded that Judge Rowe's conduct
rose to the level of wilful misconduct under art. IV, § 37 of the
Delaware Constitution because he knowingly and intentionally
participated in his son's case over a period of time.

The Board found, however, that nothing presented to the
Board suggested that Judge Rowe improperly sought to use the.
influence of his office to benefit his son by having the charge
dropped or reduced. In addition, the Board found that Judge Rowe
had established a reputation for professionalism during his
tenure as a justice of the peace. As indicated, the Board recom-
mended that Judge Rowe be suspended as a justice of the peace for
a period of six months and that he be publicly censured.

I.

Before we review the Board's findings of fact or its con-
clusions of law, we address the procedural framework within which
this Court operates. This is a case of first impression in this
State. This Court has not previously considered either the
standard of review that governs a final report of the Board or
the standard of proof that governs judicial conduct proceedings.

The initial procedural question concerns the scope of the
Court's review. The final report of the Board has the force and

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effect of a master's report in the Court of Chancery. Ct. Jud.
R. 9(a) .

If the Committee states in its report that there is probable
cause to believe that the judicial officer involved may be
subject to censure, suspension, removal, or retirement, then the
Court is required to appoint a Board of Examining Officers. Ct.
Jud. R. 4 and 5. The Board then may conduct a hearing, take
evidence, and make a report and recommendation to the Court on
the Judiciary. Ct. Jud. R. 7 and 8.

The recommendation of the Board is only a recommendation.
"[T]he term 'recommendation' manifests an intent to leave the
Court unfettered in its adjudication." In re Nowell, N.C. Supr.,
237 S.E.2d 246, 254 (1977). "[The master] . . . can make no
final determination of a judicial matter, since all his acts
become binding only by being approved and adopted by the court
. . . " A. L. W. v. J. H. W., Del. Supr., 416 A. 2d 708, 711
(1980) (citing 30A C.J.S. Equity § 521 (1965) ); Wilson v. State,
Del. Supr., 545 A.2d 1178, 1184 (1988). The vesting of such
power in the Court on the Judiciary is inherent in the constitu-
tion. Del. Const. art. IV, § 37. Therefore, this 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.

The Rules establish that the proper standard of proof in
cases before this Court is clear and convincing evidence. Ct.
Jud. R. 7(b). Clear and convincing evidence is a higher evi-
dentiary standard than mere preponderance, but a lesser standard

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than proof beyond a reasonable doubt. See 30 Am. Jur. Evidence
§ 1167 (1967). Clear and convincing evidence "is best described
as evidence which produces in the mind of the trier of fact an
abiding conviction that the truth of [the] factual contentions
are 'highly probable. '" Kaszuk v. Bakery and Confectionary
Union, N.D. Ill., 638 F.Supp. 365, 374 (1984), aff'd in part,
remanded, and reh'g denied, 791 F.2d 548 (1986) (citing Colorado
v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 2438, 81
L. Ed. 2d 247, 254 (1984)). The "highly probable" standard appears
to provide an appropriate balance between "preponderance of the
evidence" and "beyond a reasonable doubt." Kaszuk, 638 F. Supp.
at 374.

We now consider the threshold contention made by Judge Rowe
that the record does not establish by clear and convincing
evidence that he engaged in wilful misconduct in violation of the
constitution.

The meaning of the term "wilful misconduct" in a discipli-
nary proceeding has not previously been addressed by this Court.
We rule today that "wilful 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 intention-
ally, knowingly, voluntarily, or with gross unconcern for his
conduct, which would bring the judicial office into disrepute.
It is more than a mere error of judgment or an act of negligence.
See generally, In re Nowell, N.C. Supr., 237 S.E.2d 246 (1977) ;
Matter of Edens, N.C. Supr., 226 S.E.2d 5 (1976); Gubler v.

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Commission on Judicial Qualifications, Cal. Supr., 688 P.2d 551
(1984) .

"Willful" is a word "of many meanings, its construction
often being influenced by its context". Screws v. United States,
325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495, 1502 (1945)
(citing Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364,
367, 87 L.Ed. 418, 422 (1943)). The word often denotes an act
which is intentional, or knowing, or voluntary rather than
accidental. United States v. Murdock, 290 U.S. 389, 394, 54
S.Ct. 223, 225, 78 L.Ed. 381, 385 (1933). "[W]hen used in a
criminal statute, it generally means an act done with a bad
purpose." Id. We hold, however, that a finding of bad faith is
not necessary to a finding of wilful misconduct in a disciplinary
proceeding.

Several jurisdictions have addressed the meaning of the term
"willfully" in the context of judicial disciplinary proceedings.
The Supreme Court of North Dakota concluded that the term "will-
fully", when used in disciplinary proceedings involving actions
contrary to the Canons of the Code of Judicial Conduct, should be
construed to mean merely that the acts were the performer's free
will and were not done under coercion. In the Matter of
Cieminski, N.D. Supr., 270 N.W.2d 321, 327 (1978). The Court's
basis for this definition is that judges must be and are held to
higher standards than laymen. Judges symbolize the law and
justice and consequently, their actions and behavior will reflect
favorably or unfavorably on the integrity of the judiciary and
the high respect required in the administration of justice. "It

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is not merely sufficient to do justice but the public and society
must have good cause and reason to believe that justice, in fact,
is being done." Id. at 327.

Other jurisdictions have held that bad faith is a necessary
element of wilful misconduct. In Re Nowell, 237 S.E.2d at 255;
Matter of Edens, 226 S.E.2d at 9; Gubler, 688 P.2d at 562. The
Supreme Court of North Carolina has defined "bad faith" in its
broadest sense. The term "bad faith" necessarily would encompass
conduct involving moral turpitude, dishonesty, or corruption, and
also any knowing misuse of the office, whatever the motive.
However, these elements are not necessary to a finding of bad
faith. A specific intent to use the powers of the judicial
office to accomplish a purpose which the judge knew or should
have known was beyond the legitimate exercise of his authority
constitutes bad faith. In Re Nowell, 237 S.E.2d at 255; Matter
of Edens, 226 S.E.2d at 5.

The Supreme Court of California has defined the term "bad
faith" more narrowly. "[B]ad faith entails actual malice as the
motivation for a judge's acting ultra vires." Gubler, 688 P. 2d
at 562.

Both the North Carolina and California Constitutions pro-
vide, however, for an alternative method by which a judge can be
disciplined. The constitutions state that a judge may be cen-
sured or removed for "conduct prejudicial to the administration
of justice that brings the judicial office into disrepute." N.C.
Const. art. IV, § 17(2); Cal. Const. art VI, § 18(c). A judge
may, through negligence or ignorance not amounting to bad faith,

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behave in a manner prejudicial to the administration of justice
so as to bring the judicial office into disrepute. In Re Nowell,
237 S.E.2d at 255; Gubler, 688 P.2d at 562. "Bring[ing] the
judicial office into disrepute does 'not require notoriety, but
only that the conduct be damaging to the esteem for the judiciary
held by members of the public who observed such conduct. '"
Gubler at 562 (citing Wenger v. Commission on Judicial Perfor-
mance, Cal. Supr., 630 P.2d 954, 957 n.4 (1981)).

The Delaware Constitution does not contain the additional
lesser offense that is contained in the North Carolina or Cali-
fornia constitutions. This Court finds that any action or
behavior of a judge which destroys the public confidence in the
integrity and impartiality of the judiciary will tend to cause
disrespect for the law itself. We are therefore not persuaded
that proof of more than intent or gross unconcern is required by
the term "wilful" as it is used in the Delaware Constitution.

Judge Rowe concedes that he violated Canons 2 and 3 of the
Code, but he contends that such an isolated violation does not
rise to the level of wilful misconduct under the wording of the
constitution. He argues that his violation was not conscious and
purposeful and thus, it has not been shown by clear and convinc-
ing evidence that he acted intentionally. He asks us to hold
that although he consciously participated in his son's case, he
did not consciously violate the canons that proscribe such
action.

According to Judge Rowe, the pressure of the situation made
him lose sight of the obligations imposed upon him by the Code.

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However, Judge Rowe knowingly and intentionally participated in
his son's case over a period of time. Judge Rowe was informed of
his son's arrest on December 11, the date of the arrest. Ar-
raignment was scheduled before him for December 22. On December
19, Judge Rowe acted on his own initiative to continue his son's
arraignment to a later date when he would also be presiding. The
actual arraignment occurred two days earlier than scheduled, on
December 27.

Judge Rowe had at least eight days during which to consider
and reflect on his decision to personally handle his son's case.
We agree with the findings of the Board that the passage of time
between the initial notice of the arrest, the initial scheduling
of the arraignment, the continuance, and the actual date of
arraignment diminishes the claim that the stress of the incident
caused a temporary lapse of judgment. We can understand that
Judge Rowe was faced with an embarrassing situation, but the
inescapable fact is that he proceeded to preside over his son's
criminal proceeding pursuant to a decision to do so, which he
carried out over a period of time. He did so knowingly and
intentionally. This indicates to us a continuing failure on the
part of Judge Rowe to recognize his responsibilities under the
Code.

Respondent also contends that a judge's participation in a
proceeding in which a relative is a participant is not a per se
violation of the Code because disqualification can be waived
pursuant to Canon 3D. Judge Rowe further contends that since

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election to enter the FOP involved an administrative proceeding,
he could not have obtained any advantage in his son's case.

We agree with the Board that participation in the FOP is
administrative in nature and that judicial discretion in handling
such cases is circumscribed. Nevertheless, some judicial dis-
cretion was involved and, ultimately, the responsibility for
determining a defendant's eligibility for FOP is a judicial one,
to be discharged only by a judge. Further, there can be little
doubt that Judge Rowe treated his son differently than other
defendants by spending additional time during the proceeding to
emphasize the seriousness of the offense. He rescheduled the
arraignment without explanation on two different occasions and
without any application or reason given for doing so. The only
reasonable inference that can be derived from Judge Rowe's
actions is one of favoritism. As the Board found, the fact is
that Judge Rowe deliberately participated in his son's case over
a span of several days.

We cannot accept Judge Rowe's claim that he was not aware of
the specific Canon prohibiting involvement in a family member's
case. Judge Rowe admitted he was aware of the Code of Judicial
Conduct. He acknowledged he had read at least some portions of
the Code before this incident. As the Board noted in its report,
"[t]he impropriety and appearance of impropriety of a judicial
officer presiding over a matter involving a family member are so
starkly apparent that disqualification in such a proceeding is an
axiomatic norm of judicial conduct. This cardinal principle
should be intuitively obvious to any judicial officer. Violation

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of such a fundamental norm of behavior, therefore, amounts to
misconduct in office." Report of the Board of Examining Officer
at page 10 (June 7, 1989) .3
3

After a careful examination and analysis of the evidence,
and after an evaluation of the findings of fact which are sup-
ported by clear and convincing evidence, we find that Judge Rowe,
through a persistent series of actions, has engaged in wilful
misconduct in office within the meaning of art. IV, § 37 of the
Delaware Constitution and that disciplinary action is warranted.

3
This statement of a judge's ethical obligations to eschew
any participation in matters involving a person related by blood
or marriage should not only be obvious from the plain language of
Canons 2 and 3 ( see n.2), but it is underscored by the Reporter's
Notes to the Code of Judicial Conduct:

The disqualification section begins with a general
standard that sets the policy for disqualification-that
is, "A judge should disqualify himself in any
proceeding in which his impartiality might reasonably
be questioned." The general standard is followed by a
series of four specific disqualification standards that
the Committee determined to be of sufficient importance
to be set forth in detail. Although the specific
standards cover most of the situations in which the
disqualification issue will arise, the general standard
should not be overlooked. Any conduct that would lead
a reasonable man knowing all the circumstances to the
conclusion that the judge's "impartiality might
reasonably be questioned" is a basis for the judge's
disqualification.

Thus, an impropriety or the appearance of impropriety
in violation of Canon 2 that would reasonably lead one
to question the judge's impartiality in a given
proceeding clearly falls within the scope of the
general standard, as does participation by the judge in
the proceeding if he thereby creates the appearance of
a lack of impartiality.

Reporter's Notes to Code of Judicial Conduct 60-61 (1973) .

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II.

We next address the issue of whether the power to suspend
(unanimously declared by the Court on the Judiciary and thus the
Supreme Court, in the Rules, to be vested in the Court) is
actually within the limits of authority imposed upon the Court by
art. IV, § 37 of the Delaware Constitution. Upon the request of
the Court, the parties submitted supplemental briefs on this
issue. Both respondent and presenter have concluded that the
Court does have authority to impose a suspension from office as
an included form of discipline under the applicable constitu-
tional provision.

As noted earlier, the Court derives its authority from art.
IV, § 37 of the Delaware Constitution, wherein the Court is
empowered with the authority to "censure, remove or retire" any
judicial officer. The constitutional provision does not specif-
ically provide that the Court may suspend a judicial officer.
The Rules, however, assume that the Court has such authority when
they state that the Court may suspend a judicial officer upon a
finding of misconduct or disability. "
4

4
"Rule 9(c) provides in pertinent part:

(5) At the earliest practical time, the
Court shall file a written opinion and order
dismissing the charges against the
respondent, or censuring, suspending,
removing or retiring the respondent under
Article IV, § 37 of the Delaware
Constitution.

(6) A certified copy of an order of
suspension, removal or retirement shall be
(Footnote Continued)

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When the Rules on the Court on the Judiciary were initially
promulgated in 1969, the word "suspended" was not included in any
of the provisions regarding sanctions to be imposed for judicial
misconduct. By the time the rules were amended in 1974,
5
however, the word "suspending" was included in the provision
which listed the various sanctions which could be imposed for
judicial misconduct.º By including the sanction of suspension in
6

(Footnote Continued)

transmitted forthwith by the Court to the
Governor, the State Treasurer and any other
official the Court may deem to be directly
concerned.

5
Rule 9(c) at that time provided:

(7) At the earliest practical time, the
Court on the Judiciary shall file a written
opinion and order either dismissing the
charges against the respondent, or censuring,
removing, or retiring the respondent under
Article 4, Section 37 of the Delaware
Constitution.

(8) A certified copy of any order of removal
or retirement shall be transmitted by the
Court forthwith to the Governor, the State
Treasurer, and any other official the Court
may deem directly concerned.

6

'Rule 9(c) at that time provided:

(6) At the earliest practical time, the
Court shall file a written opinion and order
dismissing the charges against the
removing, or retiring the respondent under
Article 4, Section 37 of the Delaware
Constitution. (Emphasis added)

(7) A certified copy of an order of removal
or retirement shall be transmitted by the
Court forthwith to the Governor, the State
Treasurer and any other official the Court
(Footnote Continued)

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the amendment to the rules, the Court appeared to indicate that
the power to suspend was inherent in the powers granted to it by
the constitution.

On August 2, 1982, the Court on the Judiciary Rules Advisory
Committee was appointed to undertake a general review of the
Rules. In considering the proposed revision to the rules which
would eventually become effective on October 13, 1983, the Rules
Committee emphasized the obvious fact that "any proposal by the
Committee must stay within the bounds set forth in art. IV, § 37
of the State Constitution."

The Committee considered the issue of suspension in Proposed
Rule 9(c) (6). As noted earlier, the word "suspending" was
already included in Rule 9(c) (5). The proposed rule provided
that a "certified copy of an order of suspension," as well as an
order of removal or retirement, shall be transmitted to the named
parties in the rule. The Committee determined that the proposed
rule could be reconciled with the confidentiality requirement of
art. IV, § 37 and that a constitutional amendment would not be
necessary.

On October 13, 1983, the Rules that had been in effect since
July 30, 1969 (with amendments) were superseded by the adoption
of new Rules of the Court on the Judiciary. The current rules
incorporate the 1983 revision to Rule 9(c) (6) and have been set

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out previously in this opinion in footnote 4. See Ct. R. 9(c) (5)
and (6) (1983).

The Court therefore indicated, by the adoption and promul-
gation of the 1983 revised rules, that the constitution not only
authorizes the Court to suspend a judicial officer, but also by
implication it authorizes the Court to give appropriate notice of
that suspension to the necessary parties.

The purpose of art. IV, § 37 of our constitution is the
regulation of the conduct of those persons charged with the
administration of justice. The aim of proceedings pursuant to
this section is to assure the integrity of justice administered
in the State by providing for: a) an examination of specific
complaints of judicial misconduct, b) the determination of their
relation to a judge's fitness for office, and c) remedial acts as
to any deficiencies. The constitution provides a system of
judicial discipline which is designed to deal with all cases
which might arise in any varied factual context. We cannot
accept the argument that the drafters of this important amendment
to the constitution intended to limit the disciplinary action to
"censure, removal, or retirement" with no sanctions available
short of retirement or removal except a mere censure.

Other jurisdictions that have addressed this issue have
reached similar conclusions. See In the matter of Anderson,
Minn. Supr., 252 N.W.2d 592 (1977) (holding that, in proceedings
for judicial discipline, the Supreme Court has the authority to
impose sanctions ranging from censure to removal and that the
granting of the power to remove implicitly carries with it the

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power to impose less severe sanctions short of removal); In the
Matter of Cieminski, N.D. Supr., 270 N.W.2d 321 (1978) (statute
providing for censure or removal of judge impliedly includes any
appropriate action in between and thus, Supreme Court has au-
thority to impose censure, assessment of costs, or any other
action up to and including removal of judge in disciplinary
proceeding) .

We conclude that the power to suspend a judicial officer is
inherent in the express powers granted to the Court pursuant to
art. IV, § 37 of the Delaware Constitution.

III.

Respondent contends that a six-month suspension from office
would be an excessive sanction under the circumstances. He
points out that the suspension would impose a severe financial
hardship. He cites several cases wherein corresponding courts in
other jurisdictions have imposed reprimands, rather than suspen-
sion, in cases involving similar misconduct.

The presenter in turn cites other cases where suspension or
removal were the sanctions imposed upon judicial officers as a
result of their involvement in cases with members of their
family.

The Court necessarily has wide discretion in imposing
sanctions for wilful misconduct in office. In light of our
conclusions regarding Judge Rowe's conduct, we hold that under
the circumstances the six-month suspension is appropriate.

Finally, respondent contends that a public censure would be
in conflict with Rule 10(d) of the Rules of Procedure of the

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Court on the Judiciary. We find this contention to be without
merit. The constitution provides that final orders of removal or
retirement are not confidential. We rule that the order of
suspension is an order of temporary removal, and it cannot be
confidential. Likewise, confidentiality does not apply to a
censure accompanying a temporary removal.

It is therefore ordered that effective this date, and for a
period of six calendar months thereafter, Judge Rowe is suspend-
ed, without compensation, from office. The publication of this
opinion will constitute a public censure.