Thursday, May 3, 2018

No Bar Sanction For Resigned Nebraska Justice

There are reports that the Nebraska Counsel for Discipline will not pursue ethics charges against a former and recently-resigned  Supreme Court Justice

The Omaha World-Herald reported on the resignation

Nebraska Supreme Court Judge Max Kelch’s abrupt resignation last month came in the face of an ethics investigation, two officials told The World-Herald.

The officials wouldn’t discuss details, but one said the allegations against Kelch are in line with the national #MeToo movement that has resulted in resignations of actors, politicians, business executives and judges over questions of sexual misconduct. Attorneys and former colleagues — including two women — told The World-Herald that Kelch’s judicial career has been pocked with sexual comments to women.

Kelch, 60, resigned Jan. 23 — less than two years after his appointment to the bench — rather than undergo an inquiry, according to the officials.

 Nebraska Gov. Pete Ricketts was unaware of any complaints or allegations against Kelch before his appointment to the Supreme Court in March 2016, said Taylor Gage, the governor’s spokesman.

“Of course the governor would not appoint someone with a known history of sexual harassment,” Gage said.

Kelch’s resignation has caused a stir in the hallways of the Capitol and in courthouses across the state. From the floor of the Legislature on Friday, State Sen. Ernie Chambers called on Chief Justice Mike Heavican and Kelch to explain Kelch’s departure, saying it had the potential to be “an impending, overhanging scandal.”

Former colleagues were staggered by the turn of events. Just last fall, a colleague said, Kelch had told people that he expected to become the state’s next chief justice, once Heavican retires. Yet a few months later, he walked away — a move that, because of his limited longevity, will significantly cost him on his pension.

Sarpy County Attorney Lee Polikov, who knew Kelch from the judge’s decadelong tenure in Sarpy, said he had never witnessed any untoward behavior by Kelch.

“He was a great county judge, a great district judge and was destined to be a great Supreme Court judge,” Polikov said. “It’s a shock.”

It’s less of a shock to those who knew another side of Kelch.

Two women who spoke to The World-Herald said Kelch had a strange, at-times suggestive manner. Neither woman said she would consider herself a #MeToo victim, but said Kelch’s comments could be a bit mind-boggling. One said he was sometimes too close for comfort in his chambers, leading the woman to joke about wanting a witness with her when she went to his office. The other said she once heard Kelch ask a petite female staffer in a public hallway about her bodybuilder boyfriend.

“How do you have sex with him?” Kelch asked in front of a number of people, according to the woman. “I would think he would break you in half.”

The staffer at the center of that comment didn’t return messages from The World-Herald.

Kelch also didn’t respond to requests for comment. When he resigned last month, Kelch sent a two-sentence letter to Ricketts that said “it is best for my family to submit my resignation.” Kelch and his wife have a son who is in his early 20s.

Nebraska State Court Administrator Corey Steel declined to comment and said Heavican would have no comment. Steel, who also serves on the Judicial Qualifications Commission, said the law prevents him from saying whether a complaint has been filed. In general, a complaint becomes public only after the commission decides to take disciplinary action against a judge.

The commission’s authority over the conduct of a judge ends upon their retirements or resignations, Steel added.

Nebraska Code of Judicial Conduct says judges shall uphold and promote the independence, integrity and impartiality of the judiciary, and shall avoid even the appearance of impropriety.

Additional language in the code says it applies to both the professional and personal conduct of judges. In addition, judges must accept they will be “subject to public scrutiny that might be viewed as burdensome if applied to other citizens.”

In response to a public records request by The World-Herald, the Governor’s Office released a file of 50 emails and letters submitted after Kelch was named a finalist for the high court. Most talked about Kelch’s impressive capacity for work, his impeccable judicial temperament and his fidelity to the law. A few made mentions of high personal character, and none offered any warnings.

“The first the governor became aware of any concern was when Judge Kelch contacted the governor to say there was a complaint filed against him,” Gage said. “Judge Kelch subsequently stepped down.”

Several colleagues praised Kelch’s work ethic, listening ability and pleasant demeanor, even as they described him as “socially awkward.”

Early in his law career, Kelch has told others, he once questioned the sexual orientation of his boss in front of the boss and other colleagues — an exchange that affected their relationship. Later, after he became a judge, Kelch encouraged a female attorney to apply for a judgeship. The woman said she thought she would enjoy the job and possessed the skills it required — and remarked that it was probably time to have a woman on the bench.

“Oh believe me,” he said, “everyone knows you’re a woman.”

Those comments stand in contrast to the serious, measured jurist in court. One longtime public defender called Kelch’s preparation for cases and legal research skills “legendary.”

In a pointed monologue on the floor of the Legislature on Friday, Chambers said he would demand answers as to why Kelch stepped down.

“I’m going to write the Chief Justice a letter and I’m going to say ‘Chief, you can hide the fire, but what are you going to do with the smoke? And when there’s so much smoke attending the departure of this judge, it doesn’t just affect him, it infects the integrity of the Nebraska Supreme Court,’ ” Chambers said.

Throughout his four decades as a lawmaker, the Omaha senator has pursued professional complaints against judges, some of which have resulted in removal, resignation or retirement. Chambers has balked at judges resigning in the midst of ethical inquiries, arguing that such investigations should be completed before a judge can receive retirement benefits.

In an interview, Chambers said his floor comments were based on credible information, but he declined to go into detail.


“I’m beginning to detect an odor that unfortunately smells very familiar,” Chambers said.

The prospect of a public fight over allegations may have factored into Kelch’s decision to resign, a court official said.

“Max is a worrier,” the official said. “His mind is grinding all the time.”

Kelch made $171,975 annually. His sudden retirement will cost him in terms of pension. With about 13 years on the bench, Kelch was seven years away from receiving a full pension — 70 percent of his annual salary.

He would be eligible for about 30 percent of his annual salary right now, according to estimates. If he waited to collect a pension until he’s 65, he would receive about half of his annual salary.

Steel, the court administrator, said the resignation would not have an impact on Kelch’s ability to receive a pension.

Those who recommended Kelch to the governor two years ago described him as humble, helpful, learned, fair, extremely hard-working, “always a gentleman” and “nothing if not professional.”

The woman who heard Kelch’s break-in-half comment said it contrasted with his courtroom demeanor.

“As a judge, you knew he was prepared every time he stepped on the bench,” she said. “I thought he was a really good trial judge. He was just so black and white about everything — very decisive.

“It’s just surprising to me that he didn’t apply the same black-and-white filter ... outside court.”

(Mike Frisch)

Bar Discipline & Process, Judicial Ethics and the Courts | Permalink


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