2014 VT 41


In re Balivet (2013-153)
 
2014 VT 41
 
[Filed 09-May-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 41 

 

No. 2013-153

 

In re Ernest Tobias Balivet


Original Jurisdiction
 


 


from
Judicial Conduct Board


 


 


 


March Term, 2014


 


 


 


 


Steven
  A. Adler, Chair


 

Barbara R. Blackman of Lynn, Lynn & Blackman, P.C., Burlington,
for Appellant.
 
P. Scott McGee of Hershenson, Carter, Scott & McGee, PC,
Norwich, for Appellee.
 
 
PRESENT:   Robinson, J., and Zonay and Tomasi,
Supr. JJ., and Morse, J. (Ret.), and Pineles 
                    
Supr. J. (Ret.), Specially Assigned
 
 
¶ 1.            
PER CURIAM.   The formal complaint against respondent,
Judge Ernest Balivet, alleged violations of Canon 3(B)(8) of the Vermont Code
of Judicial Conduct.  The Judicial Conduct Board concluded that respondent
violated the canon and recommended a sanction of a private letter of reprimand
and conditions on the performance of judicial duties.  This Court ordered
review on its own motion, pursuant to Rule 12(3) of the Rules of Supreme Court
for Disciplinary Control of Judges.
I.
¶ 2.            
The facts of the proceedings that form the basis of the disciplinary
charges, as stipulated to by respondent and adopted by the Board, can be
summarized as follows.  In November 2001, respondent appointed a child’s
grandfather to be her guardian, with the consent of the child’s parents.[1]  On January 8, 2002, father and
mother filed a motion to revoke the guardianship.  On February 4, 2002,
respondent held an evidentiary hearing on the motion.  Respondent does not
recall his words from the bench at this hearing.  His handwritten notes
from the hearing state, “pending ruling would be motion denied, parents were
unsuitable, and exploring visitation plan.”[2]  The hearing was only partially
recorded and it was not contemporaneously transcribed.  No written
decision and order issued after the hearing and there is no entry on the docket
to reflect the hearing’s resolution or that a hearing was held.
¶ 3.            
On October 29, 2004, father filed a second motion to terminate the
guardianship.  Shortly thereafter, respondent appointed a guardian ad
litem for the child.  Respondent held a hearing in January 2005 on
father’s second petition to terminate the guardianship.  Again, no order
appears in the file, and there is no docket entry referencing the hearing,
although a Notice of Hearing was issued by the court.  The parties agree
that the hearing took place, and have provided a transcript of it, but do not
agree as to the outcome of that hearing.
¶ 4.            
With the consent of the child’s mother but not her father, grandfather
filed an adoption petition in April 2005.  In June 2005, grandfather filed
a petition to terminate father’s parental rights (TPR) after father refused to consent
to the proposed adoption.  This was the first time that respondent had
encountered such a motion and he was uncertain how to proceed.  In
addition, respondent did not believe grandfather’s motion would be successful
in light of the evidence adduced at two prior evidentiary hearings. 
Respondent did not schedule a hearing on that motion until September 2006—after
grandfather filed a motion for a writ of mandamus in the superior court. 
Respondent stipulated before the Board that the hearing on grandfather’s motion
to terminate father’s parental rights was unnecessarily delayed and that he
failed to act expeditiously as required by 15A V.S.A. § 3-504(a).
¶ 5.            
The hearing on grandfather’s motion was held over three days in
September and October of 2006.  At the close of the hearing, respondent
orally denied grandfather’s petition to terminate father’s parental
rights.  The docket reflects that the motion to dismiss the TPR petition
was granted, but there is no written order in the court file.
¶ 6.            
Prior to the October 2006 hearing, father raised the issue of his motion
to terminate the guardianship.  This motion was not entered in the
docket.  Respondent believes that he had denied that motion to terminate
the guardianship at the January 2005 hearing.  He did not address it at
the TPR hearing.  Grandfather appealed respondent’s denial of the TPR
petition to superior court.
¶ 7.            
The next month, grandfather also filed a motion in the probate court to
stay father’s attempts to terminate grandfather’s guardianship.  Father
filed an opposition, and respondent later issued a stay of any further court
action on father’s attempts to terminate the guardianship pending grandfather’s
appeal.  The date of this order is unclear as there is no docket entry or
order in the file reflecting it.
¶ 8.            
Following the TPR hearing, in November 2006 mother filed a motion to
revoke her consent to adoption, signaling to respondent that father and mother
had reunited after having been separated earlier during the guardianship.
 According to respondent’s handwritten notes, at a status conference in
April 2007, respondent indicated that he would delay ruling on mother’s motion
until after the appeal of grandfather’s TPR motion.  Respondent issued an
order granting mother’s motion to revoke her consent in March 2008 pursuant to
mother’s request for a ruling from the probate court regarding her party status
“as directed by the superior court entry order dated March 11, 2008.” 
About a week later, mother indicated her support for terminating grandfather’s
guardianship.
¶ 9.            
In April 2008, grandfather filed a motion to terminate mother’s parental
rights, which respondent denied.  Grandfather appealed the denial to the
superior court, which remanded the case back to the probate court on August 20,
2008, for development of the record concerning mother’s relinquishment and
adoption petition.  Although this order was sent to counsel, there is no
docket entry at either the superior court or the probate court with respect to
the delivery of the remand order to the probate court.  By notice dated
March 9, 2009, the probate court gave notice to mother of a hearing on
grandfather’s petition to terminate mother’s parental rights and for adoption. 
The docket entry for the April 8 hearing indicates “ruling for petitioner,” and
respondent issued a written order dated May 6, 2009, terminating mother’s
parental rights.  Mother did not appeal.
¶ 10.        
In the meantime, by letter dated January 6, 2009, father’s attorney
wrote to the probate court to ask why a hearing on father’s motion to terminate
the guardianship had not been scheduled.  By that time, the probate court
had stayed proceedings to terminate the guardianship pending the superior court
decision on grandfather’s appeal in connection with his motion to terminate
father’s parental rights.  In July 2009, at the parties’ request,
respondent issued a pro forma denial of father’s motion to terminate the
guardianship so that the guardianship appeal could be consolidated with the
pending TPR appeal in the superior court.
¶ 11.        
The superior court denied grandfather’s petition to terminate father’s
parental rights as well as father’s petition to terminate grandfather’s
guardianship, leaving intact the status quo with respect to the ongoing
guardianship and father’s parental rights.  Both parties appealed to this
Court.  On appeal, we affirmed the superior court’s denial of
grandfather’s petition to terminate father’s parental rights but reversed the
denial of father’s motion to terminate the guardianship and remanded for the
superior court to transfer custody of the child back to father.  In re
K.M.M., 2011 VT 30, ¶ 26, 189 Vt. 372, 22 A.3d 423.  After the
appeal, we referred the case to the Judicial Conduct Board for review.
 
II.
¶ 12.        
The Board appointed special counsel Barbara Blackman to investigate the
case.  Special counsel ultimately filed a formal complaint alleging a
violation of Canon 3(B)(8) of the Code of Judicial Conduct, which states that a
judge “shall dispose of all judicial matters promptly, efficiently and fairly.”[3]  A.O. 10 Canon 3(B)(8).
¶ 13.        
The parties stipulated to the above facts, and in March 2013 the Board held
an all-day evidentiary hearing to address matters not resolved by the parties’
stipulation.  Before the hearing, the parties identified three disputed
issues before the Board: 
A.    Did
[respondent] fail to rule in a timely manner on the motion to revoke
guardianship filed by the child’s parents on January 8, 2002? 
 
B.     Did
[respondent] cause unnecessary delay in failing to schedule a hearing on the
grandfather’s motion to terminate the father’s parental rights?
 
C.     Did
[respondent] fail to respond in a timely manner to the order of remand from the
family court dated August 20, 2008?
 
¶ 14.        
On March 25, 2013, the Board issued its disposition report.  With
respect to the 2002 motion to terminate the guardianship, the Board found that,
although it could not say with certainty that respondent had made a ruling from
the bench on the motion, special counsel had not met her burden of proof by
clear and convincing evidence that respondent had failed to rule on father’s
motion.  The Board acknowledged that a written decision and a clear order
would have been preferable, but supported its conclusion by pointing to
respondent’s testimony that it was his practice in contentious disputes to
explain his ruling from the bench at the end of the hearing; his belief that he
denied the motion to revoke the guardianship at the conclusion of the hearing
for the reasons outlined in his notes; the three-point summary of issues at the
end of the six pages of his handwritten notes from the hearing; the fact that
the parties continued visits between the child and her parents under
grandfather’s direction, suggesting that they were behaving as if they
understood that the motion had been denied; and the fact that father’s 2005
motion did not request that the court resolve the purportedly outstanding 2002
motion but, rather, addressed the changes in father’s circumstances since that
time.  The Board concluded that “a failure to issue a ruling on the first
motion to revoke guardianship albeit only orally, has not been shown by clear
and convincing evidence.”
¶ 15.        
On the second disputed issue, the Board concluded that there was clear
and convincing evidence that respondent’s fourteen-month delay in scheduling a
hearing on grandfather’s motion to terminate father’s parental rights was
serious enough to violate Canon 3(B)(8).  The Board found that the
fourteen-month delay made matters worse, was not justified by a plan or any
legitimate uncertainty about how to proceed, and was especially troublesome
given that respondent realized from the outset that the petition had little
chance of success because father had remained consistently involved in the
child’s life during the guardianship.
¶ 16.        
Lastly, the Board concluded that special counsel had not established by
clear and convincing evidence that respondent failed to dispose of the 2008
remand order from the superior court in a timely manner.  The original
remand order from the superior court ended up in the probate court file, but
was never docketed at the superior court or the probate court.  Respondent
testified that he had no recollection of seeing the remand order until January
2009, when he got a letter from father’s counsel.  The Board concluded
that the reason for the delay remained unclear, and that respondent himself or
staff in the probate or superior courts may have been responsible for the
delay.  The Board found, though, that when the delay was brought to
respondent’s attention, he scheduled a hearing.
¶ 17.        
The Board’s recommended sanction was that the Chair issue a private
letter of reprimand to respondent and impose conditions requiring that, for
twelve months, respondent engage in a mentoring program with another probate
judge and develop plans to ensure prompt scheduling and issuance of written
decisions.  In explaining its sanction, the Board acknowledged the
seriousness of the delay in this case, and noted that the protracted nature of
the proceedings distinguished this from a single instance of a greatly delayed
ruling.  However, the Board also noted that respondent had not been
disciplined in connection with prior violations, and that this case was not
part of an established pattern of delay.  The Board assigned
responsibility to respondent for the lack of clear rulings on the issues before
him and the endemic court management issues reflected in this case, but also
noted that guardianships are frequently in place for many years, and that the
actions and decisions of the parties and the underlying circumstances
contributed considerably to the delay.  Finally, the Board acknowledged
respondent’s forthrightness in his dealings with the Board, and his good
intentions toward all three members of the family.
¶ 18.        
The Board then issued a letter to respondent on March 25, 2013 stating
that he was “hereby privately reprimanded for violating Canon 3(B)(8).”
¶ 19.        
Respondent did not appeal the Board’s order.  On April 24, 2013,
this Court ordered review on its own motion pursuant to Disciplinary Control
Rule 12(3).  We requested that the parties address: (1) the Board’s
finding that special counsel had not met the burden of proof by clear and
convincing evidence that respondent failed to rule on father’s 2002 motion to
terminate the guardianship, and (2) the Board’s recommendation of a private
reprimand in light of Disciplinary Control Rule 6(7), which makes “rulings of
the Board” public after the service of a formal complaint.[4]
III.

¶ 20.        
Canon 3(B)(8) of the Judicial Code of Conduct states that a judge “shall
dispose of all judicial matters promptly, efficiently and fairly.”  The
evidentiary issue on review is whether the Board’s determination that special
counsel had not proven by clear and convincing evidence that respondent had failed
to rule on father’s motion was clearly erroneous.  Our analysis of this
question is shaped by three considerations:  the burden of proof, the
standard of review, and this Court’s delineation of the issues presented on
review.  With respect to the first of these considerations, we emphasize
that special counsel not only bore the burden of proving respondent’s violation
of the applicable canon, but was required to meet that burden by clear and
convincing evidence.  R.S.C.D.C.J. 10(1) (“Any finding of a violation
shall be based upon clear and convincing evidence.”).  
¶ 21.        
With respect to the second, we will uphold the Board’s factual findings
unless clearly erroneous.[5] 
R.S.C.D.C.J. 12(5).  Accordingly, we will defer to the Board’s factual
findings “if they are supported by the evidence as seen in the light most
favorable to the prevailing party.”  Towslee v. Callanan, 2011 VT
106, ¶ 5, 190 Vt. 622, 55 A.3d 240 (mem.).   To the extent that this
appeal raises issues implicating the Board’s conclusions and exercise of
discretion, we are less deferential.  The Board’s conclusions and
recommendations are advisory only; the final and ultimate decision in judicial
disciplinary matters rests with this Court.  Boardman, 2009 VT 42,
¶ 12; see also In re Hill, 152 Vt. 548, 555, 568 A.2d 361, 365
(1989) (per curiam) (“[T]his Court is the true final arbiter in this
matter.  It is not the function of this Court, in matters of this kind, to
‘review’ actions taken below.  The only final and ultimate decision is
made here, on the responsibility of this Court.” (quotation omitted)). 
However, the Board’s conclusions, even if advisory, are nonetheless entitled to
“great weight.”  Boardman, 2009 VT 42, ¶ 12.  
¶ 22.        
Finally, the issue we asked the parties to brief was whether the Board
erred in concluding that special counsel had failed to show that respondent
“failed to rule on [father’s] November 2002 motion to revoke the
guardianship.”  As discussed more fully below, respondent’s failure to
reduce the court’s ruling to writing and to record the judgment, or to ensure
that it was recorded, raises concerns of its own.  However, those concerns
are not the subject of this appeal, except insofar as respondent’s failure is one
component in the constellation of evidence presented below concerning the
question of whether respondent ruled on father’s 2002 motion to terminate the
guardianship.
¶ 23.        
Given these considerations, we conclude that the Board’s finding as to
respondent’s ruling on the 2002 motion to terminate the guardianship was not
clearly erroneous.  First and foremost, the Board’s conclusion was
predicated on respondent’s own testimony, both as to his general practice of
explaining his rulings from the bench, and as to his belief that in this case
he did just that at the February 2002 hearing.  Moreover, although the
three-point summary at the end of respondent’s handwritten notes of the
February 2002 hearing could cut both ways, the Board concluded in the context of
this case that the notes provided support for respondent’s recollection that he
denied the motion at the end of the hearing.
¶ 24.        
The Board further considered the evidence of the parties’ conduct after
the February 2002 hearing, and concluded that the parties behaved as if they
understood that the motion to terminate the guardianship had been denied—the
child remained with her grandfather and visits between the child and her
parents continued, the administration of the guardianship continued, and father
did not return to court in connection with his request to terminate the
guardianship until several years later, after his life had changed and improved
somewhat.  Finally, the Board stopped short of concluding that respondent did
rule from the bench on father’s motion in 2002.  Although it concluded
that “[t]he stronger evidence is that the parties left the January 2002 hearing
knowing that the guardianship would remain in place because at that time, the
parents were unsuitable,” the Board rested its ultimate conclusion on special
counsel’s failure to prove otherwise by clear and convincing evidence. 
For these reasons, we accept the Board’s conclusion that special counsel failed
to prove that respondent did not rule on father’s 2002 motion “promptly,
efficiently and fairly.”
¶ 25.        
Special counsel points to contrary evidence introduced below in support
of the argument that she met the burden of proving by clear and convincing evidence
that respondent did not rule from the bench on the 2002 motion.  Special
counsel points first to father’s testimony before the Board that he never
understood there to have been any resolution of his motions to terminate the
guardianship.  He testified that “it never got settled one way or another”
and that he never “got an answer in stone” that respondent was not going to
terminate the guardianship.  Special counsel further argues that
grandfather’s filings after the 2002 hearing, including a post-hearing motion
in opposition to the termination and a 2006 complaint indicating that neither
of father’s motions had been ruled on, demonstrate that even grandfather, who
had no reason to bring any attention to the allegedly unresolved motion, did
not understand respondent to have made a conclusive ruling from the
bench.  Lastly, special counsel emphasizes that Attorney Zarina O’Hagin,
who became the court-appointed Guardian Ad Litem in 2004, testified to the
Board that when she became involved with the case she understood that
respondent had yet to rule on a motion to terminate the guardianship.  
¶ 26.        
The Board could have chosen to credit this countervailing testimony, and
to give it greater weight, but did not.  Under the clearly erroneous
standard, the findings of the Board “must stand if supported by credible
evidence, even though there may be inconsistencies or substantial evidence to
the contrary.”  Gilbert v. Davis, 144 Vt. 459, 461, 479 A.2d 159,
160 (1984).  In light of this standard, and special counsel’s burden of
proof, we do not disturb the Board’s finding.
¶ 27.        
Although we affirm the Board’s conclusion with respect to respondent’s
violation of the applicable canon, we emphasize that our affirmation in no way
suggests that the manner in which the successive motions in this case were
processed by the court—including by respondent himself and possibly court
administrative personnel—met the standard expected in a Vermont court. 
Even assuming that respondent did issue an oral ruling from bench at the 2002
hearing, it is undisputed that this ruling was never reduced to writing in any
way, shape, or form—not in a docket entry, not in a written judgment, not in a
written order reflecting the court’s findings and conclusions, and not in a
reliable transcript.[6]
 
¶ 28.        
Although probate proceedings are generally informal, as we noted in Rutherford
v. Best, when a probate proceeding becomes a vehicle for separating parent
and child, much of that informality can be lost.  139 Vt. 56, 63, 421 A.2d
1303, 1307 (1980).  In Rutherford, we concluded that fundamental
fairness requires probate judges to make findings and prepare an adequate
record for appeal in contested custody proceedings.  Id.; see also
Reporter’s Notes, V.R.P.P. 52 (noting that our holding in Rutherford
requires findings in some cases in order to comport with due process). 
Generally, a lack of findings and conclusions on the record is not a basis for
a finding of judicial misconduct, but it may support an appeal or motion for
reconsideration.  See In re Memorandum of Decision of Jud. Conf. Comm.
on Jud. Conduct and Disability, 517 F.3d 558, 561-62 (U.S. Jud. Conf. 2008)
(concluding that failure to give reasons for particular decision, like the
reasons themselves, should not be subject of misconduct proceeding).
¶ 29.        
Wholly apart from the absence of findings in this case is the absence of
any record of the judgment itself.  This was not merely a ruling on a
motion; it was a dispositive and appealable ruling.  See Boisvert v.
Harrington, 173 Vt. 285, 287, 796 A.2d 1102, 1105 (2002) (recognizing that
but for trial court’s remand making interlocutory appeal the proper recourse,
denial of request to revoke guardianship is proper basis for jurisdiction on
appeal); see also In re Guardianship of Stevens, 2014 ME 25, ¶ 1, ___
A.3d ___ (deciding appeal of judgment entered denying petition to terminate
guardianship of minor child).  Probate Rule 58 requires that a judge
approve and sign a judgment and that the register thereupon enter it.  A
judgment is effective only when entered appropriately into the docket as
provided in Probate Rule 79.  Id.  The probate court register
is tasked with entering the judgment on the docket but it is the judge who sets
the ball in motion by approving and signing the judgment.  See Reporter’s
Notes, V.R.P.P. 58 (“[T]he responsibility for signing judgments is always upon
the judge.”).  
¶ 30.        
The 2006 Reporter’s Notes to Vermont Rule of Civil Procedure 58, from
which Probate Rule 58 was adapted, explain that the rule makes clear that a
judgment is effective when entered on the docket, which first requires the
judge’s approval and signature.  The civil rule analog to Probate Rule 58
“specifically requires action after the court renders a decision in order to
reduce that decision to a judgment.”  Powers v. Hayes, 170 Vt. 639,
640, 751 A.2d 781, 782 (2000) (mem.) (concluding appeal period does not begin
until the court enters judgment, which requires more than mere entry on the
docket); see also Burton v. Jeremiah Beach Parker Restoration and Constr.
Mgmt. Corp., 2010 VT 55, ¶ 14, 188 Vt. 583, 6 A.3d 38 (mem.) (holding
that findings and conclusion entered on docket along with note regarding
disposition did not constitute a judgment but only became judgment when entered
in accordance with V.R.C.P. 58).  The importance of entering a judgment
under Probate Rule 58 is not merely clerical; entry of the judgment is critical
because it begins the running of time limits for appeal and post-judgment
motions.  Reporter’s Notes, V.R.P.P. 58.  Moreover, in this case the
impact of the court’s failure to enter a judgment that would then be reflected
in the docket entries was exacerbated by its decision not to issue any written
order at all.
IV.
¶ 31.        
The second issue with respect to which we requested briefing is the
availability of a “private reprimand” as a sanction for a violation under these
circumstances.  
¶ 32.        
The Board’s process for addressing complaints concerning a judge’s
conduct has multiple stages.  First, upon receiving a complaint or
otherwise learning of a potential violation, the Board conducts an initial
inquiry—a review of written records, including a written response from the
judge in question.  R.S.C.D.C.J. 7(1).  Following this initial
inquiry, the Board may dismiss the complaint, pursue a deferred discipline
agreement, issue a written warning, or order a preliminary investigation. 
Id.  A nonpublic written warning is appropriate when the Board
concludes that the conduct is potentially a violation of the Code of Judicial
Conduct but a formal complaint is not warranted.  Id. 8(2).  A
deferred discipline agreement can only be entered with the agreement of a
respondent judge, and may impose terms and conditions as an alternative to
discipline—such as education, counseling, substance abuse treatment, monitoring
or review by a suitable person, or limitations on the performance of judicial
duties.  Id. 8(3).  Both a nonpublic written warning and a
deferred discipline agreement are confidential; although the Board reports the
existence and resolution of a complaint using non-identifying information, it
does not disclose to the public the identity of the judge involved or the
specifics of the sanction.  Id. 6(7), 8(3), 11.
¶ 33.        
If the Board pursues an investigation, upon a finding of probable cause
the Board may, in its discretion, proceed to the formal complaint
process.  Alternatively, it may pursue a deferred discipline agreement,
issue a written warning, dismiss the complaint, or pursue any other action
authorized by the rules.  Id. 7(3).  Again, prior to a formal
complaint, these proceedings are confidential.  Id. 6(7).
¶ 34.        
A formal complaint by the Board may lead to discovery, a formal hearing,
and a disposition report by the Board.  Id. 9, 10.  The rules
provide that after the service of a formal complaint upon a judge, “all
subsequent pleadings, exhibits and rulings of the Board, and any hearing
related to the Formal Complaint, shall be public.”  Id. 6(7). 

¶ 35.        
Against this backdrop, we consider whether a private reprimand is
available to the Board as a sanction following a formal complaint and
hearing.  Under Disciplinary Control Rule 6(2), the Board may recommend
the following sanctions against a judge: “written warning, public reprimand,
limitations or conditions on the performance of judicial duties, suspension for
a portion or all of the remainder of the judge’s term in office, or other
appropriate sanctions.”  The question is whether the catchall for “other
appropriate sanctions” includes a private reprimand.
¶ 36.        
The failure of the rules to specifically list “private reprimand” as an
available remedy is not insignificant.  The sanction of private reprimand
is well-established in the related context of attorney discipline.[7]  Given that the disciplinary rules
expressly identify a public reprimand as an available sanction, it would
be incongruous for them to fail to list a private reprimand as another
possibility if a private reprimand were contemplated as a disposition following
formal complaint.  
¶ 37.        
Moreover, the rules expressly contemplate confidential sanctions—a nonpublic
warning and deferred discipline agreement—as alternatives to the formal
complaint process.  R.S.C.D.C.J. 6(7).  Once a formal complaint is
filed, the rules provide that “all subsequent pleadings, exhibits and rulings
of the Board, and any hearing relating to the Formal Complaint, shall be
public.”  Id.  The Board’s disposition report is necessarily
public, further undermining the suggestion that the sanction articulated in
that report could be private.[8]

¶ 38.        
Respondent acknowledges that the Board’s decision and its private letter
of reprimand are both matters of public record.  He argues that the use of
the label “private” does not actually mean the letter is not a public document
but, instead, is intended to indicate that the Board does not regard the
violation to be one that should require a public sanction, even though under
the rules the sanction is, in fact, public.  Whatever the Board’s
intentions, we cannot square the label “private reprimand” with the fact that
the order and letter, including information identifying respondent, are public
documents. 
¶ 39.        
The primary purpose of judicial discipline is to “protect the public,
ensure the evenhanded administration of justice, and preserve and enhance
public confidence in the integrity and fairness of the justice system.”  In
re O’Dea, 159 Vt. 590, 604, 622 A.2d 507, 515 (1993).  The use of a
label for a sanction that is at odds with the underlying legal reality is not
likely to enhance public confidence in the justice system.  To the extent
that the Board has purported to issue a “private reprimand” to respondent, we
conclude that it cannot do so. 
¶ 40.        
This Court has broad power in fashioning appropriate sanctions, which
must be tailored to the individual.  Id. at 606, 622 A.2d at 517
(citing Vt. Const. ch. II, §§ 30, 36).  The Board’s sanction order
recognizes respondent’s responsibility for undue delay and endemic court
management issues, but also acknowledges that the choices and actions of others
played a significant role in the overall duration of the underlying case. [9]  It takes into account respondent’s
forthrightness in his dealings with the Board, his good intentions toward the
parties, the reasonableness of his rulings in the underlying case, and his
willingness to accept conditions intended to prevent this type of problem from
recurring.  The conditions crafted by the Board include thoughtful
provisions to provide mentorship and guidance to respondent as well as to
establish clear expectations and requirements concerning administrative reforms
in his court.  They are tailored to avoid a recurrence of the failures
that occurred in this case, with a particular focus on the prompt scheduling of
hearings and issuance of written decisions in contested custody cases.
  
¶ 41.        
We see no reason to set aside these recommended conditions.  We do,
however, conclude that characterization of respondent’s reprimand as “private,”
rather than “public,” despite the conceded public character of the reprimand,
is confusing and cannot stand.  Accordingly, we exercise our authority to
amend respondent’s sanction to characterize it as a “public reprimand.”
 In all other respects, we affirm the Board’s sanction for respondent’s
violation of Canon 3(B)(8).
The Board’s sanction is amended to “public reprimand”; in
all other respects the Board’s sanction for respondent’s violation of Canon
3(B)(8) is affirmed.  
 
                                                                  
BY THE COURT:
 
 
                                                                  
_______________________________________
                                                                  
Beth Robinson, Associate Justice
 
                                                                  
_______________________________________
                                                                  
Thomas A. Zonay, Superior Judge, 
                                                                  
Specially Assigned
 
                                                                  
_______________________________________
                                                                  
Timothy B. Tomasi, Superior Judge, 
                                                                  
Specially Assigned
 
                                                                  
_______________________________________
                                                                  
James L. Morse, Associate Justice (Ret.),
                                                                  
Specially Assigned
                                                                  

                                                                  
_______________________________________
                                                                  
Dean B. Pineles, Superior Judge (Ret.),
                                                                  
Specially Assigned
 





[1] 
We refer to the parties in the underlying action in terms of their relationship
to the minor child. 
 


[2]
 Because it is difficult to decipher the handwritten notes, we accept the
parties’ stipulation as to the contents of the notes.  We have been unable
to independently validate that the notes state as clearly as the parties’
stipulation suggests that the motion was or would be denied, although they do
reflect a determination that the parents were not suitable and they indicate a
focus on the parents’ visitation plan.


[3] 
Special counsel’s original complaint also alleged a violation of Canon 3(B)(2),
which requires a judge to “be faithful to the law and maintain professional
competence in it,” based on respondent’s alleged failure to schedule a hearing
on the guardian grandfather’s petition to terminate mother’s parental
rights.  By amended complaint, special counsel later withdrew the alleged
violation of Canon 3(B)(2).


[4] 
We do not disturb and respondent did not appeal the Board’s conclusion that
there was clear and convincing evidence that respondent was responsible for a
delay in scheduling a hearing on the petition to terminate father’s parental
rights serious enough to constitute a separate violation of Canon 3(B)(8).


[5]
 We have previously suggested that the Board’s findings are “strictly
advisory,” but have generally upheld those findings when supported by the
record.  See In re Boardman, 2009 VT 42, ¶ 12, 186 Vt. 176,
979 A.2d 1010 (explaining that the Board’s findings and conclusions “carry
great weight” but are “solely advisory in nature” (quotation omitted)). 
That the clearly erroneous standard applies to the Board’s factual findings, as
opposed to its legal conclusions or exercises of discretion, is clearly
delineated in the rules governing disciplinary control of judges. 
R.S.C.D.C.J. 12(5).  


[6] 
The probate rules require recording of hearings involving the contested
guardianship of a minor, V.R.P.P. 47(a)(1); we recognize that in this case
respondent attempted to record the proceedings, but due to technical
deficiencies, the recording is woefully incomplete.  This technical mishap
is not itself a cause for discipline, but does exacerbate the problems arising
from the court’s failure to document its decision.


[7] 
The rules governing Vermont’s Professional Responsibility Board explicitly
provide for admonitions of attorneys.  A.O. 9 Rule 8(A)(5); see In re
PRB 2007-046, 2009 VT 115, ¶ 22, n.4, 187 Vt. 35, 989 A.2d 523
(stating terms “admonition” and “private reprimand” are synonymous). 
Private admonitions can only be used when there is little to no injury to the
client, public, legal system or profession and there is little likelihood of
repetition by the attorney.  A.O. 9 Rule 8(A)(5)(b).
 


[8]
 We take judicial notice of the fact that the Board’s disposition report,
including its recommendation of a private letter of reprimand and its list of
conditions, are duly posted on the Board’s web page.  Judicial Conduct
Board, Disposition Report (Mar. 25, 2013), https://www.vermontjudiciary.org/lc/Shared%20Documents/Disposition%20Report%2011.020.pdf.
 


[9] 
Although a single instance of delay in rendering a decision does not ordinarily
violate Canon 3(B)(8) unless there is a pattern of unreasonable delay, In re
Kilburn, 157 Vt. 456, 459, 599 A.2d 1377, 1379 (1991) (per curiam), the
Board concluded that the delay in this case, while falling short of an
established pattern of delay, is more serious than a single instance. 
Respondent has not appealed this conclusion.



