In re Henderson
114488
| Kan. | Apr 7, 2017Background
- Timothy H. Henderson, a Sedgwick County district judge, was previously disciplined (In re Henderson) for inappropriate sexually themed remarks, bias, ex parte communications, and abusing office; he received a 90‑day suspension after failing to except to the hearing panel's findings.
- After the first matter (Docket No. 1197) was heard, new complaints alleged Henderson gave dishonest testimony in that proceeding; those complaints led to a separate formal docket (No. 1218) investigated by the Commission.
- A substitute Panel B (after recusals) held an evidentiary hearing and found by clear and convincing evidence that Henderson was not candid or honest in his earlier testimony (repeating a vulgar “Stitch Story,” misleading explanations about his wife’s employment contacts, and a sexually suggestive “reach‑around” comment).
- The panel concluded Henderson violated Canon 1, Rule 1.2 and Canon 2, Rules 2.5 and 2.16 (failure to cooperate / be candid with disciplinary agencies) and recommended public censure plus a 30‑day suspension.
- Henderson resigned after losing a primary election and sought dismissal as moot; the Supreme Court held it retained disciplinary jurisdiction over conduct committed while he was a judge and denied mootness.
Issues
| Issue | Commission's Argument | Henderson's Argument | Held |
|---|---|---|---|
| Jurisdiction after resignation | Court retains jurisdiction to discipline misconduct that occurred while judge served; resignation does not moot public‑interest discipline. | Resignation ended court's jurisdiction and rendered proceedings moot. | Court retained jurisdiction; resignation does not bar discipline for prior conduct. |
| Sufficiency of evidence of dishonest testimony | Clear and convincing evidence (including prior panel findings and new witness testimony) shows willful untruths and lack of candor. | Evidence insufficient; prior credibility findings were not a finding of willful falsehoods. | Panel findings adopted: clear and convincing evidence supports violations for dishonesty and lack of candor. |
| Procedural / due process challenge (examiner dual role & notice) | Commission followed Rule 609 procedures; any delay in examiner appointment caused no prejudice; no ex parte role shown. | Examiner acted dually as prosecutor and confidential advisor to panel; panel received untimely information before examiner appointment, violating Rule 609 and due process. | No due process violation shown; dual functions do not inherently deny due process and any procedural lapse was harmless and non‑prejudicial. |
| Preclusion (res judicata / claim preclusion) | New charges (dishonesty about testimony) required separate proceedings because they could not have been noticed or litigated in the original matter. | Prior panel’s credibility findings preclude re‑litigation of same conduct. | Res judicata/claim preclusion inapplicable; prior proceeding did not provide notice or an opportunity to defend against charges of willful false testimony. |
Key Cases Cited
- In re Henderson, 301 Kan. 412 (Kansas Supreme Court) (prior disciplinary decision applying panel findings and imposing a 90‑day suspension)
- In re Rome, 218 Kan. 198 (Kansas Supreme Court) (court's authority and standards for judicial discipline)
- In re Hammond, 224 Kan. 745 (Kansas Supreme Court) (retirement does not necessarily moot discipline; censure and costs appropriate)
- In re Johnstone, 2 P.3d 1226 (Alaska Supreme Court) (disciplinary jurisdiction over retired judge and public protection rationale)
- In re Thayer, 761 A.2d 1052 (New Hampshire Supreme Court) (resignation does not render misconduct investigation moot where public interest remains)
- In re Pilshaw, 286 Kan. 574 (Kansas Supreme Court) (hearing panel legal conclusions limited to its factual findings)
- State v. Russell, 227 Kan. 897 (Kansas Supreme Court) (discussion of res judicata in disciplinary context; not controlling to bar new disciplinary charges)