Judge Kelly Anita

I 2018
COURT OF THE JUDICIARY CASE NO. 50
IN THE MATTER OF:
ANITA KELLY
Circuit Judge, Fifteenth Judicial Circuit
FINAL JUDGMENT
The Judicial Inquiry Commission (“the Commission”) filed
a complaint in this Court against Judge Anita Kelly on August
16, 2017, charging Judge Kelly with violating the Alabama
Canons of Judicial Ethics in her capacity as a circuit judge.
Judge Kelly became a circuit judge in 2004 assigned to family
court in the Fifteenth Judicial Circuit in Montgomery County,
Alabama. She was reelected in 2010 and again in 2016. 1 As a
family court judge, Judge Kelly presides over domestic and
juvenile cases, including divorce, child custody, child
support, protection from abuse, adoption, dependency, and
termination of parental rights (“TPR”).
lIn 2014, Judge Kelly was appointed Presiding Judge of
the Montgomery County Family Court. In early 2016, she was
removed from that position at the direction of Judge Eugene
Reese, who was the Presiding Judge of the Montgomery Circuit
Court.
The complaint, as amended February 7, 2018, 2 alleges that
Judge Kelly has repeatedly violated the Alabama Canons of
Judicial Ethics by a pattern and practice of unreasonable and
unjustifiable delay in managing her docket in the Montgomery
County Family Court. In support of the pattern-and-practice
allegations, the complaint alleges that in family court cases
filed or disposed of since at least 2012, Judge Kelly has
a. Failed to manage court business in a timely manner by
1. Unreasonably delaying rulings on standard
motions; issuing orders; setting timely hearings;
resetting continued trial settings; and ratifying
referee recommendations;
2. Regularly continuing dockets; and
3. Failing or refusing to meet statutory time
requirements in numerous cases and to timely and
consistently submit accurate Canon 3A(5) reports
to the Administrative Office of Courts (“AOC”).
b. Failed to manage court business in an efficient manner
by
1. Failing or refusing to establish an effective
system of review of pending matters to
expeditiously move cases through the court;
2. Failing or refusing to allot sufficient time in
her dockets to complete scheduled matters;
3. Refusing or not having the ability to promptly
conclude matters on her docket;
2The Commission has filed two amended complaints. Unless
otherwise indicated, all references to “the complaint” refer
to the Second Amended Complaint, filed on February 7, 2018.
2
4. Failing or refusing to implement a wide range of
recommendations for improvement from the National
Council of Juvenile and Family Court Judges
(“NCJFCJ”); and
5. Failing or refusing to timely and consistently
submit accurate Canon 3A(5) reports to AOC.
The complaint alleges violations of the following Canons
of Judicial Ethics: 1, 2, 2A, 2B, 3, 3A(1), 3A(5), 3B(1), and
3B (2) .
The parties engaged in extensive discovery over several
months, exchanging thousands of pages of documents and
deposing numerous wi tnesses. This matter was tried before
this Court for a week beginning May 7, 2018.3
The Commission’s evidence at trial primarily focused on
alleged delays by Judge Kelly in juvenile cases, particularly
in TPR peti tions. The Commission cited two relevant time
standards: (1) the requirement that a hearing be completed on
a TPR petition within 90 days of perfection of service of
process 4 and (2) the requirement that a final order be issued
3The matter was set for trial on two prior occasions. See
Rule 8, R. P. of the Ala. Ct. of the Judiciary (liThe Court
shall fix a date for hearing upon the complaint as
expeditiously as possible. “) . On both occasions, the matter
was continued at the request of Judge Kelly.
4See § 12-15-320(a), Ala. Code 1975.
3
within 30 days of completion of the hearing. 5 The Coron
introduced evidence that Judge Kelly did not meestandards
in more than 40% of the TPR cases assigned
from January 1, 2012 , to July 1, 2017 . The Commi:::
evidence further indicated that the Alabama Departm
Human Resources (“DHR”) filed in the Alabama Court of
1,900 days. The process required to terminate parental
rights, in his opinion, was unnecessarily delayed and that
delay caused lasting problems for the child that required
ongoing psychiatric treatment.
The Commission also introduced evidence of alleged delays
by Judge Kelly in juvenile-delinquency cases and domesticrelations
cases. The Commission’s evidence of those delays
was primarily in the form of case files.
The Commission also introduced evidence indicating that
Judge Kelly was on notice, from several sources, as to her
delays–and the problems caused by them–in scheduling
matters and entering rulings. Those sources included
discussions with presiding judges of the Fifteenth Circuit,
appellate court decisions, 6 time standards and best-practices
6Five published decisions from August 2015 through
September 2016 addressed delays in Judge Kelly’s cases. In
one of those decisions, the Court of Civil Appeals noted:
“We note that the juvenile judge indicates in her
answer that the failure to include in the judgments
a provision awarding permanent legal custody of the
children to DHR was not ‘deliberate, purposeful, or
planned.’ However, we would be remiss if we did not
also note that the juvenile judge has, in the past,
engaged in a pattern and practice of failing to
comply wi th statutory requirements only to take
steps to comply after DHR has filed a petition for
the writ of mandamus with this court. In no less
than five cases in the last year, DHR has sought
5
she learned from national professional organizations, and
reports Judge Kelly was required to file regarding the length
of time she had certain cases under advisement. 7
Finally, the Commission introduced evidence indicating
that Judge Kelly on several occasions filed untimely or
this court’s intervention to direct the juvenile
judge to comply with the time requirements set out
in Ala. Code 1975, § 12-15-320(a), and to either set
a termination-of-parental-rights trial or to enter
a termination-of-parental-rights judgment. All
but one of those petitions had been mooted by the
action of the juvenile judge upon her receipt of the
petition; one petition was not mooted only because
the juvenile judge thought that she required our
permission or instruction to enter the requested
termination-of-parental-rights judgment while the
petition for the writ of mandamus was pending before
this court. Deliberate or not, the juvenile judge’s
continued neglect of her duty to comply with the
statutorily prescribed time requirements and to
enter proper and compliant judgments unless and
until threatened with the supervisory action of this
court causes the members of this court great
concern.”
Ex parte Montgomery Cty. Dep’t of Human Res., 215 So. 3d 582,
583-84 (Ala. Civ. App. 2016).
7Although Judge Kelly recognized problems in her handling
of cases and applied for assistance from the National Council
for Juvenile and Family Court Judges (“NCJFCJ”), based in
Reno, Nevada, Judge Kelly’s handling of cases did not improve,
and she failed to adequately implement the best practices
recommended by the NCJFCJ. Evidence also indicated that,
despi te requests from Presiding Judge Eugene Reese, Judge
Kelly delayed sharing the NCJFCJ report with other judges in
the Fifteenth Circuit.
6
inaccurate reports required every six months under Canon
3A (5) of the Canons of Judicial Ethics (” six-month reports”) . 8
In her defense, Judge Kelly introduced evidence
indicating the following:
• that she was a hard worker, rarely took a day off, and
worked many weekend days;
• that she genuinely cared about her cases and took an
active interest in the children and families in the
cases before her; and
• that on two occasions former employees returned for
short-term “volunteer” work and on at least one
occasion Judge Kelly paid one of them out of her own
pocket, thus indicating the level of leadership of
others in commitment to the individuals impacted by
her court.
Further, there was no evidence introduced that Judge Kelly
was ever involved in any sort of graft, corruption, scandal,
8Canon 3A(S) of the Canons of Judicial Ethics stat
“A judge should dispose promptly of the business (
the court, being ever mindful of matters taken undE
submission. On the first day of January and tl
first day of July of each year, each judge shaJ
file a report which shall show the cases and/ (
matters which have been under submission (
advisement for a period of six months or longer …
Where a matter or case has been under submission (
advisement for six months or longer, the repol
shall give the date that the matter or case We
taken under submission or advisement and the reasor
for the failure of the judge to decide such mattel
or cases.”
7
or wrongful conduct other than the alleged pattern and
practice of delays. There is no evidence indicating that she
intentionally did anything to harm anyone, most importantly
the children impacted by her court.
Judge Kelly introduced evidence regarding the juvenile
clerk’s office of Montgomery County. That evidence indicated
that the clerk’s office primarily handled the scheduling of
juvenile matters for all three juvenile court judges in
Montgomery County: Judge Kelly, Judge Calvin Williams, and
Judge Robert Bailey. Judge Kelly offered statistics of case
assignments for those three judges from 2012 to August 2017.
Those statistics indicated that Judge Kelly was assigned at
least 1,200 more matters than Judge Williams and at least 500
more matters than Judge Bailey. Judge Kelly also introduced
evidence indicating that the juvenile clerk’s office was
without meaningful supervision for an extended period, and
she argued that it contributed to the delay in her cases.
In rebuttal, the Commission offered statistics from the
Administrative Office of Courts indicating that the weighted
caseload of each of the three family court j udges–Judge
Kelly, Judge Williams, and Judge Bailey–was relatively
equal. Thus, despite the apparent disparity in the number of
8
new matters that were assigned to Judge Kelly , those
additional matters should not have caused the extensive
delays in her docket.9 This Court finds highly persuasive this
evidence, as well as evidence indicating (1) that neither
Judge Williams nor Judge Bailey has ever had a case under
submission or advisement long enough to include it on a sixmonth
report and (2) both Judge Williams and Judge Bailey
took responsible steps to ensure their dockets were current
despite the challenges facing them and the juvenile clerk’s
office.
Based on the evidence presented at trial, this Court
unanimously finds that the Commission proved by clear and
convincing evidence that Judge Kelly is guilty of each of the
following charges:
CHARGE 1 — DELAY IN ISSUING TPR ORDERS
Judge Kelly engaged in a pattern and practice of failing
or refusing to timely enter orders wi thin 30 days of
completing trials on petitions for termination of
p”arental rights, in violation of § 12-15-320 (b), Ala .
Code 1975, and Rule 25(D) , Ala. R. Juv . P.
CHARGE 2 — DELAY IN COMPLETING TPR TRIALS
9Judge Kelly, in her defense, also offered weightedcaseload
analysis from AOC to argue that the Montgomery
Circuit was shorthanded, both as to the number of judges and
number of employees in the circuit clerk’s office .
9
Judge Kelly engaged in a pattern and practice of failing
or refusing to complete the trials on petitions for
termination of rights within 90 days of perfecting
service, in violation of § 12-15-320(a), Ala. Code 1975.
CHARGE 3 — FAILURE TO MANAGE DOCKETS
Judge Kelly engaged in a pattern and practice of failing
or refusing to manage court dockets to decide pending
matters in a timely manner–failing or refusing to
allocate sufficient time on her dockets to hear pending
matters in one setting, regularly continuing dockets,
unreasonable delays in setting timely hearings,
unreasonable delays in resetting continued trial
settings–preventing the timely resolution o f disputes
that profoundly affected the lives of those, in
particular children, whose interests were before her
court.
CHARGE 4 — DELAY IN DIVORCE JUDGMENTS AND MODI FI CATIONS
Judge Kelly engaged in a pattern and practice of
unreasonable and unjustifiable delay or failure to rule
on completed applications for uncontested-divorce
complaints and requests for modification of divorce
decrees, many of which included agreed-upon proposed
orders , thereby preventing the timely resolution of
disputes that profoundly affected the lives of those, in
particular children, whose interests were before her
court.
CHARGE 5 — COMPREHENSIVE DELAY
Judge Kelly failed to take care of the business of the
court in a timely, prompt, and efficient manner.
CHARGE 6 — UNTIMELY AND INACCURATE CANON 3A(5) REPORTS
Judge Kelly engaged in a pattern and practice of failing
or refusing to submit accurate and timely Canon 3A (5)
six-month reports.
10
Based on the evidence presented, not all of which is set
out herein, this Court finds that the Commission’s proof of
charges 1-6 did not establish by clear and convincing evidence
that Judge Kelly violated Canons 1, 2, or 2A. Based on that
same evidence, however, this Court unanimously finds that the
Commission proved by clear and convincing evidence that as to
charges 1, 2, 3, and 5, Judge Kelly is guilty of violating:
• Canon 2B, by failing to avoid conduct prejudicial to
the administration of justice which brings the
judicial office into disrepute;
• Canon 3, by not performing her duties diligently;
• Canon 3A(1), by failing to be faithful to the law and
maintain professional co~petence in it;
• Canon 3A (5), by failing to dispose promptly of the
business of the court, being ever mindful of matters
taken under submission;
• Canon 3B (1), by failing to diligently discharge her
administrative responsibilities, maintain
professional competence in judicial administration,
and facilitate the performance of the administrative
responsibilities of other judges and court officials.
• Canon 3B(2), by failing to require her staff and court
officials subj ect to her direction and control to
observe the standards of fidelity and diligence that
apply to her.
As to charges 4 and 6, this Court unanimously finds that the
Commission proved by clear and convincing evidence that Judge
11
Kelly is guilty of violating Canons 28, 3, 3A(S), 38(1), and
38 (2) •
Our finding that Judge Kelly is guilty of charges 1-6 as
to the specific canons above is based on the Commission’s
proof by clear and convincing evidence of a pattern and
practice as to the conduct forming the basis of those charges.
In relying on the time standards and reporting requirements
cited in this order and in the Commission’s complaint, this
Court is not holding that those time standards and reporting
requirements are strict-liability provisions. We likewise are
not holding that isolated failures to comply with those time
standards and reporting requirements are per se violations of
the Canons of Judicial Ethics. Finally, we were not asked to
evaluate any substantive ruling by Judge Kelly in the cases
before us, nor is it within our authority to do so.
In deciding the appropriate sanctions for Judge Kelly,
this Court notes the credible opinion testimony from various
witnesses that Judge Kelly takes her job seriously and that
she wants the best outcome for all interested parties in the
cases that come before her. This Court emphasizes, however,
that well intentioned or not, Judge Kelly has demonstrated
sustained inefficiency in managing–and an overall inability
12
in administering–her busy and complex docket. Unfortunately,
the victims of that inefficiency are some of the most
vulnerable of any under the power of the court system.
This Court is aware of the extended shortages in staffing
and budgeting that all courts in the State of Alabama have
faced since at least 2003. But the evidence in this case
indicates that, in the same or similar circumstances with a
similar weighted caseload as Judge Kelly, the other two family
court judges–who each had less circuit judge experience than
Judge Kelly–managed their dockets in a much more efficient
manner than did Judge Kelly.
This Court is troubled by Judge Kelly’s failure to accept
responsibili ty and her attempt to blame others–including
specifically the juvenile clerk’s office–for the many delays
that resulted in this matter being filed. 1o As a duly elected
circuit judge, Judge Kelly has the authority and the
responsibility to direct those who are involved in the
administration of justice in the cases assigned to her–
including clerks, attorneys, and other stakeholders–to take
lOThis Court notes further that Judge Kelly did not
dispute the evidence indicating that she, not employees of
the clerk’s office , was responsible for managing her
domestic-relations docket and scheduling domestic-relations
matters.
13
such steps as are necessary to comply with the law. 11 Judge
Kelly, like every judge, has the inherent powers of the court,
including the abili ty to cite for contempt, to insure the
proper operation of her court. Ultimately, Judge Kelly is
responsible for the management of her docket and must work
not only to identify but to implement successful solutions to
the problems affecting the just and efficient administration
of her docket. Unfortunately, the evidence at trial indicates
that to the extent Judge Kelly attempted to change her conduct
to address problems of delays in her docket, she was
unsuccessful.
This Court is mindful that in 2016 the voters of
Montgomery County reelected Judge Kelly even though most of
the events underlying the complaint in this case happened in
the years immediately preceding that reelection. The
sanctions imposed on Judge Kelly attempt to honor the will of
the people as expressed at the ballot box while also
llThe Commentary to Canon 3A(S) states:
“Prompt disposition of the court’s business requires
a judge to devote adequate time to [her] duties, to
be punctual in attending court and expeditious in
determining matters under submission, and to insist
that court officials, litigants, and their lawyers
cooperate with [her] to that end.”
14
establishing safeguards to ensure that the rights of
litigants–most importantly dependent children–are
protected. The fact that Judge Kelly is not being removed
from the bench is the result of the extensive evidence of
Judge Kelly’s good character and the lack of evidence of
scandal or corruption on her part. This Court, under the
circumstances of this case, finds Judge Kelly is warranted
additional opportunity to attempt to efficiently do the job
she was reelected to do. We emphasize, however, that
regardless of whether Judge Kelly’s inefficiency and
inability in managing her docket has been unintentional, it
must be remedied.
To that end, this Court unanimously orders the fo llowing :
1. Judge Kelly is suspended without pay for a period of
180 days. Because Judge Kelly has been disqualified
from serving, with pay, since August 16, 2017, the
date the complaint was filed with this Court, she is
to be reinstated to service on Monday, May 14, 2018.
She shall serve wi thout pay for 180 days from that
date. On the 181st day following her reinstatement to
service, she will be restored to full pay provided
she, by the 151st day following her reinstatement to
service, has certified to the Administrative Office of
Courts that she is complying with this Court’s order
in good faith and intends to continue to do so.
2. The time without pay in paragraph 1 shall be reduced
to 90 days if Judge Kelly certifies12 to this Court and
12If Judge Kelly makes such a certification, it shall not
affect her right to appeal this decision.
15
to the director of AOC within
her agreement to comply in
f oll owing conditions: 13
30 days of thi~
good faith wi1
a. By the fifth day of each month until the
her current term, Judge Kelly is to provide
Presiding Judge of the Montgomery Circuit
and to the Commission a report identif yin~
appropriate redactions, the following n
assigned to her as of the last date
preceding calendar month:
service or to enter an order wi thin 30 days of
completion of the hearing.
c. For the next 12 months following the date of this
order, Judge Kelly is to meet in good fai th at
least monthly for at least one hour with a mentor
judge or judges selected by the Presiding Circuit
Judge of the Montgomery Circuit with the approval
of Judge Kelly. Among other things, Judge Kelly
should seek accountability in complying with this
Court’s judgment and sanctions.
d. Judge Kelly is to work in good faith with the other
judges of the Montgomery Circuit Court on an
ongoing basis to implement and adhere to the “best
practices” as recommended by the NCJFCJ.
e. If Judge Ke lly timely makes the certification in
paragraph 2 , she will be restored to full pay on
the 91st day following her reinstatement to
service provided she, by the 61st day following
her reinstatement to service, has certified to the
Administrative Office of Courts that she is
complying with this Court’s order in good faith
and intends to continue to do so.
3. This Court will issue a public reprimand of Judge Kelly
in a newspaper of general circulation in Montgomery
County, Alabama. The language of the public reprimand
is attached hereto and incorporated herein by
reference.
4. Judge Kelly is taxed with the costs of publication of
the public reprimand. All other costs are taxed as
paid.
Finally, this Court admonishes Judge Kelly to
scrupulously avoid future failures to comply with this
judgment and the Canons of Judicial Ethics.
17
DONE this 11th day of May, 2018.
HIEF JUDGE
~zJkw~ LAURA PETRO STEVEN E. HADDOCK
ROB~~
W.N. WATSON L/. GWAALTN~~ COLL~UM, JR~. – —
~4~ UCINDA S. CANNON WALTER BODY
18
PUBLIC REPRIMAND
Ani ta Kelly, a family court judge in the Montgomery
Circuit Court, is hereby publicly reprimanded by the Alabama
Court of the Judiciary.
The Alabama Court of the Judiciary is a nine-member,
constitutionally created judicial body that is convened to
hear complaints filed by the Alabama Judicial Inquiry
Commission pertaining to alleged violations of the Alabama
Canons of Judicial Ethics. In May 2018, the Alabama Court of
the Judiciary conducted a trial to address a complaint filed
by the Alabama Judicial Inquiry Commission against Judge
Kelly.
Based on the evidence presented at Judge Kelly’s trial,
the Alabama Court of the Judiciary found Judge Kelly guilty
of violating the Alabama Canons of Judicial Ethics by engaging
in a pattern and practice of failing or refusing to timely
enter orders on petitions for termination of parental rights,
in violation of § 12-15-320 (b), Ala. Code 1975, and Rule
25(0), Ala. R. Juv. P.; by engaging in a pattern and practice
of failing or refusing to timely complete trials on petitions
for termination of rights, in violation of § 12-15-320 (a),
Ala. Code 1975; by engaging in a pattern and practice of
failing or refusing to manage court dockets to decide pending
matters in a timely manner, thereby preventing the timely
resolution of disputes that profoundly affected the lives of
those, in particular children, whose interests were before
her court; by engaging in a pattern and practice of
unreasonably and unjustifiably delaying or failing to rule on
completed applications for uncontested-divorce complair
requests for modification of divorce decrees, many of
included agreed-upon proposed orders, thereby preventi
timely resolution of disputes that profoundly affect,
lives of those, in particular children, whose interest
before her court; by failing to take care of the busin
the court in a timely, prompt, and efficient manner;
engaging in a pattern and practice of failing or refus
submi t accurate and timel v reDorts rpm] i rpel llnelpr (‘.::1nrm
competence in it; failed to dispose promptly of the business
of the court, being ever mindful of matters taken under
submission; failed to diligently discharge her administrative
responsibilities, maintain professional competence in
judicial administration, and facilitate the performance of
the administrative responsibilities of other judges and court
officials; and failed to require her staff and court officials
subject to her direction and control to observe the standards
of fidelity and diligence that apply to her.
As a result of the findings of the Alabama Court of the
Judiciary, Judge Kelly shall be suspended for a period of 180
days without pay. That suspension shall be reduced to 90 days,
however, provided Judge Kelly certifies that she will
voluntarily engage in additional reporting and mentoring
requirements as specified in the May 11, 2018, final j~rl~~~~~
of the Court of the Judiciary.