IS THERE A CHANCE FOR JUSTICE?
by Sharon Rondeau
(Feb. 16, 2012) — The Post & Email had reported on two Tennessee child custody cases as told to us by the girls’ mother, Karen Caldwell, in late November 2011. Ms. Caldwell’s open letter to readers wishing to assist her to regain custody of her daughters was reposted here.
Since that time, Caldwell has traveled twice to Nashville to speak with members of the Tennessee Senate and House Judiciary Committees about her experience and perception of the custody orders made by the respective judges in her daughters’ cases. Caldwell reported that last week, she was asked to speak during a House Judiciary Committee meeting on February 14 which was technically not open to the public.
Caldwell had been raising her daughters with her husband, Tim, the father of her younger daughter, until she discovered that he was selling drugs out of their home. She filed for divorce, but her husband had already taken their daughter, who was a toddler at the time, to live with his parents and him and refused Karen any access to her. After taking a few days to move out of her home, Karen was then refused access to her older daughter by her father, John. She then petitioned for custody through the Madison County Juvenile Court system and was certain that she would get it.
Karen’s February 14, 2012 testimony to the House Judiciary Committee is found at 50:55 following mention of the “Board of Judicial Conduct.” The Tennessee legislature is considering revamping the Court of the Judiciary, which is charged with overseeing state judges. Caldwell gave a tearful presentation including audio of Judge Christy Little, who ordered that Caldwell’s older daughter reside with her father, despite the fact that he has not proved paternity as required by Tennessee state law.
Judge Little is listed as a member of the 2010-2011 Court of the Judiciary, whose responsibility it is to:
1. Provide an orderly and efficient method for making inquiry into:
- The physical, mental and/or moral fitness of any Tennessee judge;
- Whether the judge committed judicial misconduct;
- Whether the judge committed any act calculated to reflect unfavorably upon the judiciary of the state or bring it into disrepute or which may adversely affect the administration of justice in the state
2. Provide a process by which appropriate sanctions may be imposed;
3. Implement constitutional provisions by providing a procedure for the removal of judges.
Little was also on the panel the year before.
Caldwell believes that Judge Little and others have retaliated against her for suing Chancellor James F. Butler for “allowing the attorney, who was not the attorney of record, to continue my case.”
On the audio of the court proceeding, Judge Little is heard saying to Caldwell, “…You need to watch what you say, ’cause I’m not dumb…You need to be quiet when I’m talkin’…I’m the judge; you’re a party to this suit…you either need to practice law or you’re goin’ to sit there and do what I tell you, or somebody’s goin’ to have a problem…because I’m very smart…trust me…I went to school a long time to get to this point…You are treading on really thin ice…you understand me? Then don’t let it happen it again…You don’t want to mess with me on that.”
Caldwell stated that “the Court of the Judiciary has failed” and asked for “some justice for her daughters.”
Rep. Jim Coley then stated that the Judiciary Committee would “seriously consider” issuing a subpoena to Judge Little to “explain her comments in light of the gravity of the situation.” Another representative requested that Ms. Caldwell provide “the entirety of the discussion” rather than just a 30-second audio clip so that an informed judgment of the judge’s behavior could be made. Rep. Mike Stewart asked for the entire file, stating that he “was looking forward to further testimony….I’d like to see the whole legal file…if that’s possible.”
The Post & Email asked Ms. Caldwell how many people were in attendance on Tuesday, and she responded, “There were probably 10-15 members of the House Judiciary Committee, but altogether it was easily 80 or 85 people.”
Ms. Caldwell stated that an entire copy of the audio of the hearing with Judge Little was provided to Rep. Vance Dennis, who had requested it to obtain proper context, by Rep. Coley’s office. She reported that another committee member indicated that he “had a serious concern about how the entire juvenile court was functioning with that type of judge on the bench.”
There are two bills under consideration to alter the Court of the Judiciary, one of which proposes:
As introduced, provides that if a complaint is filed against a judge who is or was a member of the court of the judiciary at the same time as the investigative counsel served as counsel for the court, the investigative counsel must retain a special counsel to investigate any such complaint.
The other proposal, which is favored by judges, would change the name of the oversight entity to “Board of Judicial Conduct” and have fewer or no judges on it.
The Post & Email asked Ms. Caldwell how her daughters are doing, and she answered, “My oldest one is distraught. She doesn’t understand, and she tells me every day. I got her a little Ipod with a phone number so she can call me.” She stated that she believes that her younger daughter’s father is still using and dealing drugs. “When she was taken, she was 20 months. She exhibits a lot of alienation symptoms. I see her three hours a week on supervised visits, and I don’t get one-on-one time with her, ever.”
Caldwell told us that her younger daughter’s father was required to undergo monthly drug testing beginning in November 2010, “and he has never gone to a drug test. He told the judge that he’d never gone to a drug test, and they’ve never done anything. He’s told the judge that he withholds my phone calls; he’s told the judge that he withholds my visitation; he’s told the judge that he’s broken a lot of the orders. He’s never been found in contempt, and he’s never been reprimanded, and he still has custody.”
Caldwell was ordered to take “anger management classes” by Judge Roger Page even though she was told by the counselors that “they’d never had anybody ordered to take anger management who wasn’t charged with a crime. They don’t just let anybody take anger management, but they say I’m not a candidate for it, so I’m in a Catch-22.”
A hearing is set for “change in custody and contempt” for March 22 with Senior Judge Walter Kurtz in Nashville, whom Caldwell said refused to lift the “anger management” requirement ordered by Judge Page. Of that upcoming hearing, Caldwell told The Post & Email, “I have great hopes that Judge Kurtz will be able to see through all of the mess around the situation and consider the facts that I have sued a Judge and obviously consequences come with that. I have still yet to be proven or really even alleged to be unfit. The only thing that has been said about me is that I have an anger problem and that was said by Tim and his dad at trial, and contradicted by a lot of people.“
It has been asked why county grand juries, already in place throughout Tennessee, cannot assume the responsibility of examining complaints against judges.
Could enough pressure from constituents be causing the Tennessee General Assembly to take action against overreaching judges? Last fall, it was reported that Gov. Bill Haslam was “undecided” about whether or not the Court of the Judiciary required restructuring.
In Tennessee, judges at the appeals level are selected by a Judicial Nominating Commission, with the governor choosing one of three names. The voters then elect to either “retain or replace them.” During this session of the legislature, a constitutional amendment is being considered to have the House and Senate approve judicial appointments. Lt. Gov. Ron Ramsey has questioned the constitutionality of the voters electing judges statewide.
In 2004, the Tennessee Comptroller of the Treasury had identified several factors which suggested that the judicial system required reform.
The Tennessee Court of the Judiciary describes “judicial misconduct” as:
“willful misconduct” that is in violation of the Code of Judicial Conduct. The Code of Judicial Conduct outlines various rules relating to how a judge should conduct himself or herself in the performance of the duties of office. In addition to judicial misconduct, the Court of the Judiciary may also consider any disability, physical or mental, of a judge that substantially interferes with his or her judicial duties.
The Court of the Judiciary reportedly accepts judicial complaints from the public, but the complaint form is unavailable from the link provided, at least at this time. Why?
TCA 17-5-302 lists the offenses for which judges can be disciplined in Tennessee:
(1) Willful misconduct relating to the official duties of the office;
(2) Willful or persistent failure to perform the duties of the office;
(3) Violation of the code of judicial conduct as set out in Tenn. Sup. Ct. R. 10;
(4) The commission of any act constituting a violation of so much of the Tennessee Rules of Professional Conduct as set out in Tenn. Sup. Ct. R. 8 as is applicable to judges;
(5) A persistent pattern of intemperate, irresponsible or injudicious conduct;
(6) A persistent pattern of discourtesy to litigants, witnesses, jurors, court personnel or lawyers;
(7) A persistent pattern of delay in disposing of pending litigation; and
(8) Any other conduct calculated to bring the judiciary into public disrepute or to adversely affect the administration of justice.
In 2005, Judge Little was featured in an article which stated that “doing the right thing” was “important” to her. “Having enough time to truly hear what the families are trying to say, to give each case the time it deserves because I don’t want to miss anything that might have an impact on the family, is key to my ability to rule properly,” she was quoted as having said. Judge Little even mentors teenagers acting as jurors to their peers in cases of non-violent crimes.
Caldwell told us that she was forced to cash out her IRA to avoid a two-day jail sentence for failing to pay child support which exceeded her paycheck. “I have had to endure being treated like a crackhead for years, and that has really taken a toll on me,” she said.