Downtown Lawyer

I’ve heard about this controversy for some time and, honestly, have given it very little thought.  Recently, however, I read an article in the Arkansas Times, “Kid Gloves,” which caused me to consider the issues raised and, eventually, dismiss them.  To read the Arkansas Times article, click here.  The following is a summary of why I have no problem with Judge Willard Proctor ordering people to attend Cycle Breakers or his involvement with Cycle Breakers.

Civil Probation

As an initial matter, judges order people to attend classes all the time.  Sometimes the label of “probation” is attached to the order.  I can’t tell you how many speeding tickets I’ve had that were resolved with probation.  I’ve attended so many defensive driving classes, I could teach one myself.  I have no idea who put those classes on–and each one was different–but I didn’t care.  I paid my money to attend, gave up a Saturday, and got out of having a ticket on my record.

If you’re arrested for anything related to domestic violence, you’ll likely be ordered to attend a set amount of anger management classes.  You’ll be scheduled a follow-up hearing in front of the judge, and the judge’s staff will call to make sure you attended all of the classes you were supposed to.  If not, you’re in contempt of court.  If you’ve got a good enough excuse for why you didn’t attend all of the meetings like you were ordered, you may get out of being thrown in jail.  You’ll definitely be ordered to attend some more of the meetings.  The meetings, of course, are not free.  I have no idea who runs them.

If you want to get a divorce or separation and you have children, you’ll be ordered to attend parenting classes before the judge will grant your divorce or separation.  I have no idea who runs these classes, and they’re definitely not free.

I’m sure there are many other examples of “civil probation” out there.  The reason I include these here is to show that (1) Judge Proctor is not the only judge who orders people to attend classes in lieu of other punishment and (2) he is not the only judge who uses contempt of court to enforce his judgment and make sure the person does what he has been told.

Interestingly, many of these classes are run by local and state government.  A judge is an employee of the state, so–technically–anytime a judge orders someone to attend a class put on my by local or state government, there’s a potential conflict of interest.  I haven’t seen any articles written about this “money machine.”

Cycle Breakers

I haven’t done any independent research into this non-profit corporation, and my thoughts that follow are based only on my understanding of charitable organizations in general.

No one makes money off of a charitable non-profit.  Even if Judge Proctor is the sole shareholder of Cycle Breakers, he isn’t receiving dividends on the “profit” of the corporation.  If Cycle Breakers is making any money, that money has to be reinvested back into the organization.  Based on the building/loan troubles discussed in the Arkansas Times article, it seems pretty clear that Cycle Breakers (like most new businesses) isn’t even breaking even yet.  A non-profit may have employees, but there’s no information to suggest that Judge Proctor is a paid employee of Cycle Breakers.

Charitable non-profits don’t pay taxes like you and me.  To qualify as a charitable non-profit, an organization has to operate for a certain kind of purpose (church, education, etc.).  After filing out a bunch of paperwork to create the non-profit, the IRS watches closely to make sure that ALL of the activities of the organization fit into that purpose.  I’ve worked with several charitable non-profits, and you always have to be careful to stay within the limited parameters of the organization’s charter.

If Cycle Breakers were to fold today, it would not hurt Judge Proctor financially.  Cycle Breakers is a corporation and is considered a separate “person” under the law.  Unless Judge Proctor personally guaranteed debts of Cycle Breakers, the creditors of Cycle Breakers would most likely not be able to recover any money from Judge Proctor.  This is true even if Judge Proctor helped fill out loan documents or supplied information about Cycle Breakers.

Arkansas Code of Judicial Conduct

If you wish to read through the various canons regulating a judge’s conduct, click here, which is the website for the Arkansas Judicial Discipline & Disability Commission.  Once there, you can click on the subject in the Code of Judicial Conduct you wish to read.

The main thread of all the different canons is that, understandably, we want our judges to be impartial.  If I sue Judge Proctor’s brother (assuming he has one), and the case is assigned to Judge Proctor, then, of course, he has to recuse from hearing the case.  Another example is suing Wal-Mart, and Judge Proctor owns a substantial amount of Wal-Mart stock (assuming he does).

Family and financial ties are generally pretty clear, but most potential conflicts of interests are not.  Judges are presumed to impartial, and they are given wide latitude in determining for themselves whether they should recuse.  Here are some other examples in which judges didn’t have to recuse:

• A judge is not required to recuse from a criminal case relating to the same crime that has been committed against the judge.  Even if a judge had been raped in the past or a family member murdered, the judge does not have to recuse.
• A judge is not required to recuse from a criminal case even if she has personal knowledge of the case from other judicial proceedings.
• A judge is not required to recuse from a criminal case even though the judge prosecuted the same defendant several years earlier.
• A judge is not required to recuse from a criminal case even if the judge threatens to have the defendant’s mouth taped closed to prevent him from disrupting a hearing.
• A judge is not required to recuse because one of the lawyers in the case ran against the judge and/or plans to run against the judge again.

Conclusion

I am interested in hearing what the Judicial Discipline Board has to say about the matter, especially given that it will have ALL of the facts.  Without more than what has been presented in public forums against Judge Proctor, I’m not buying it.  I’m happy to have a judge who cares so much about his community.

Finally, besides the upcoming hearing in front of the Judicial Discipline Board, there are two other options to stop Judge Proctor from ordering people to attend Cycle Breakers:  (1) Vote him out–he’s an elected official or (2) Change the Code of Judicial Conduct/pass some statute against it.  Again, without more, I don’t believe I will support either of these options.