Posted: Sept. 25, 2012
JUDICIAL RINO (REMOVED IN NAME ONLY)
By Celia Cohen
John Henriksen shows up for work in the court system, where he is getting paid not to be a judge. He is what could be called a judicial RINO (Removed in Name Only.)
Since Henriksen was declared a non-judge of the Family Court in Sussex County in May, he has collected more than $66,000 for not judging, and he is due another $16,700 or so until November, when his term officially ends and he leaves the judicial pay plan of $174,000 a year for a pension of $85,000 a year, until death does it part.
Henriksen did not have much of a profile outside Delaware's legal circles before his removal-in-name-only by the Court on the Judiciary, but he draws an embarrassing share of recognition now as "the guy they're letting stay on."
This blotch on what has been customarily regarded as a stellar state judiciary is now in the closing weeks of being papered over. Applications for the Family Court vacancy were due Sept. 7, and a new judge is likely to be appointed by the governor and confirmed by the Senate before the end of the year.
Henriksen is being banished from the court system after he was found to commit judicial sins of epic proportion.
The Court on the Judiciary, a panel of nine sitting judges led by Chief Justice Myron Steele to hear cases of judicial misconduct, concluded Henriksen compromised public confidence in the integrity and impartiality of the judiciary.
He did it by pursuing an inappropriate romantic relationship with a lawyer who had cases before him and secretly giving her legal advice, according to the court.
The court ordered Henriksen off the bench, but it let him stay on the judicial payroll in limbo, a judge not allowed to judge, until Nov. 2, the day after his 12-year term ends and his pension vests. It was as if the court commuted its own sentence.
Now he shows up for work to do whatever administrative tasks he is assigned.
As serious as Henriksen's misconduct was, the break he received from his fellow judges in his punishment was what really stood out, leading to his mocking identification as "the guy they're letting stay on."
None of it had to happen. The system was blinking red about Henriksen for a long time.
There was some puzzlement about Henriksen dating back to his nomination by Tom Carper in 2000, when the Democratic governor was in the midst of a campaign that would make him the senator he is today.
As part of the confirmation proceedings, Henriksen went beyond the standard resume categories of experience, education and other accomplishments to present the Senate with a five-page narrative of psychodrama.
Henriksen included personal details about his first marriage ("it was an extremely difficult and taxing marriage"), the reason he was not in the military during Vietnam ("I had a low blood sugar problem . . . but I did feel some guilt"), and his challenges as a mentor to a second-grade boy ("who has some difficulty in reading and relating to male figures.")
Thurman Adams, the Sussex County Democratic senator who conducted the confirmation hearing, took a look at the narrative and said, "It was more than what he needed. I wouldn't have put that much in myself."
Even so, Henriksen was confirmed. Family Court judges can be hard to come by -- Thurman Adams had a habit of thanking the nominees for their willingness to take on a largely unhappy caseload of domestic malfunctions -- and besides, Henriksen was well-connected. His sister had married into the Maull family of prominent Sussex County lawyers.
Most tellingly, Henriksen had an earlier brush with the Court on the Judiciary about five years ago, Delaware Grapevine has learned.
There was a complaint involving crude e-mails Henriksen sent to his secretary in the guise of jokes, where the punch lines were pictures of female anatomy, it was learned.
Nothing came of it. The complaint is known to have simply been tossed out. It was never made public, because the state constitution provides for all of the proceedings of the Court on the Judiciary to be conducted in private, unless it gets to the point of issuing a final order taking a judge off the bench.
The state judiciary has had its trouble with sexually charged e-mail. The News Journal reported in 2009 that Chief Justice Steele sent some male friends, most of them former law clerks, a video of a woman with a wine bottle in an act that looked like oral sex. Steele was quoted as calling it a "frivolous joke" he would not send again.
The misdeeds that turned Henriksen into a judicial RINO occurred in 2010, when he became romantically attracted to a lawyer but continued to hear cases in which she appeared, according to the findings of the Court on the Judiciary.
Chandlee Johnson Kuhn, the chief judge of the Family Court, eventually found out and took Henriksen off the lawyer's cases. Kuhn and the lawyer filed complaints against Henriksen in January 2011, and the court ruled against him in May 2012.
The court all but telegraphed it knew its removal-in-name-only would not sit well. It issued its order per curiam, Latin meaning "by the court," lawyer-speak for judicial pronouncements that go unsigned. This sort of collective anonymity has been regarded since the days of Thomas Jefferson as a dodge of accountability.
"The practice is certainly convenient for the lazy, the modest and the incompetent," Jefferson wrote.
Henriksen is only the second judge to be ordered off the bench since the Court on the Judiciary was created in 1969. Beforehand, it took impeachment. Judges can still be impeached, a procedure that is arguably more cumbersome, but it does avoid the curse of having judges judging judges.
The only other judge removed by the Court on the Judiciary was Dave Buckson, also from the Family Court, where he had gone after a flamboyant political career as a Republican lieutenant governor and attorney general in the 1950s and 1960s.
Buckson quite improbably decided to make a run for governor in 1992 and commenced his campaigning while he was still on the court, despite the prohibition against judges in politics.
The Court on the Judiciary, led by Chief Justice Norman Veasey, moved against Buckson, who tried to outmaneuver it by announcing he would retire from the bench. Instead, the court rushed to remove him 12 hours before he stepped down. His candidacy for governor fizzled shortly thereafter.
What a contrast. The Veasey court denied Buckson his final 12 hours as a judge. The Steele court gave Henriksen an extra six months and a pension.