Merry Old England’s reviled “Star Chamber” proceedings were held in secret with no juries and no witnesses present. Well aware of the Star Chamber’s notorious abuse of authority, America’s Founding Fathers made sure to include in the Bill of Rights a guarantee of “due process” – which includes providing fair notice of any court proceedings so the parties involved can appear in person to defend their rights.
While ex parte (“for one party”) hearings are sometimes necessary in well-documented emergency situations, absent an emergency, their use violates a defendant’s Fifth Amendment “due process” rights and their Sixth Amendment right to be “confronted with the witnesses against him.”
Not to mention Canon 2 of the American Bar Association’s Code of Judicial Conduct, which prohibits any conduct on the bench that raises doubts about a judge’s impartiality.
Nothing raises doubts more than secret ex parte hearings, which appear to be on the rise in the nation’s juvenile and domestic relations courts. The media and the public are barred from witnessing these proceedings, ostensibly to protect the privacy of the parties involved.
But privacy cannot be an issue when the court fails to notify one of the parties themselves. This star-chamber practice is a clear violation of defendants’ constitutional rights.
You’d think a judge named in a federal lawsuit for allegedly doing exactly that would be careful to avoid holding any ex parte hearings. Not Arlington Juvenile & Domestic Relations Judge Esther Wiggins.
Documents obtained by The Washington Examiner include an order signed by Wiggins and dated Oct. 4, 2011, holding a defendant “there being present” in her courtroom in contempt of court – without specifying the specific behavior that prompted punishment, as required by Virginia statute.
The defendant, who is also lead amicus filer in another federal lawsuit challenging the Office of Special Counsel’s failure to protect federal whistleblowers, and Alexandria attorney David Nolan both insist they were never notified of the Oct. 4 ex parte hearing and that the defendant in fact never appeared in Wiggins’ courtroom that day. They provided receipts and other evidence to this newspaper to bolster their claim.
On Nov. 17, Nolan, a former White House ethics official and founder of the Federal Ethics Center, filed a complaint against Wiggins with Virginia’s Judicial Inquiry and Review Commission (JIRC):
“The Arlington Circuit Court appellate record reflects no court proceeding, let alone a court appearance by [my client] on October 4, 2011 to justify modification of an October 17, 2011, order by Judge Wiggins …” Who, Nolan asks, is writing Wiggins’ “erroneous orders?”
Good question. The phantom Oct. 4 appearance in Wiggins’ courtroom could be dismissed as an administrative screw-up were it not for an equally strange episode involved Wiggins in the courtroom of D.C. Superior Court Judge Jeanette Clark.
Court records show that on Nov. 8, Judge Clark abruptly sealed “all notes, tapes or other transcriptions of ex parte records of the bench conference during the proceedings held on the 19th day of September 2011 from 4:01:54 to 4:09:26.”
Those seven-and-a-half minutes, which were redacted from the court’s official transcripts, involve Judge Wiggins participating via speakerphone in a D.C. divorce/custody case involving the same defendant she held in contempt in Arlington.
Nolan’s JIRC complaint charges Wiggins with inappropriately attempting to “interfere with judicial proceedings” in his client ‘s case in D.C. and a probate proceeding in New Jersey.
It would be easy enough for JIRC and the D.C. Commission on Judicial Disabilities and Tenure, which also received an official complaint, to obtain copies of both judges’ phone records to determine whether these Star-Chamber allegations of judicial misconduct are valid.
Ignoring them should not be an option.
Barbara F. Hollingsworth is The Examiner’s local opinion editor.
