Cocke County General Sessions Judge John A. Bell has provided the long-anticipated answers and explanations to formal charges of judicial misconduct filed against him before the Tennessee Court of The Judiciary.

The judge’s responses came in supporting documents filed Monday afternoon along with a motion for summary judgment in which defense attorney Gordon Ball asks that the formal charges be dismissed in advance of the judge’s September 22 administrative trial before the court of the judiciary in Newport.

Attorney Ball’s motion for summary judgment contends that the charges against Judge Bell should be dismissed because of “the lack of genuine issues of material fact for trial on any of the four counts listed in the [Notice of] Formal Charges and that each of the four counts…are unfounded, entitling Judge Bell to judgment as a matter of law.”

Judge Bell has been formally charged with four counts of “judicial misconduct” by an investigative panel of the court of the judiciary, an action which could result in the judge’s censure or a recommendation for impeachment and removal from office.

The panel also found that Judge Bell was disqualified from hearing cases involving misdemeanor probation, yet continued to hear such cases despite having been informed in writing about a year ago that his actions were improper.

The document listing the formal charges against Judge Bell was filed on May 6 by Disciplinary Counsel Joseph S. Daniel at the direction of the three-judge panel of the Tennessee Court of the Judiciary and formally served on Judge Bell on May 8. The members of the panel were judges David G. Hayes, Don R. Ash, and Gregory D. Smith.

The primary issues raised in the notice of formal charges concern alleged nepotism in Judge Bell’s handling of misdemeanor probation cases in sessions court, an incident in February 2006 in which the judge allegedly threatened Newportian Dan Metcalf with a contempt of court citation for remarks he was alleged to have made outside of the courtroom on a courthouse bench, and his alleged acceptance of a $100 appearance fee, which the defense refers to as “a love offering,” for speaking at a local church and did not report the payment as required by law.

In the supporting document to his motion for summary judgment on behalf of Judge Bell, attorney Ball answers each of the formal charges one-by-one.  The answers are supported by a series of nine documents totaling more than 150 pages including affidavits, statements, and depositions from county officials and others involved in the actions which led to the formal charges.

The documents include affidavits from Cocke County Director of Court Services Jennifer Shelton, Cocke County Mayor Iliff McMahan, Cocke County Attorney Fletcher Ervin, East Tennessee Probation Inc. Owner Tommy Large, expert legal consultant Lucian T. Pera, and Grace Missionary Baptist Church Pastor Steven Downard, along with a 103-page sworn deposition from court of the Judiciary Investigator James T. LaRue.

The documents address the formal charges against Judge Bell individually.

CREATION OF THE

DIRECTOR OF COURT SERVICES

The first count of the notice of formal charges alleges that Judge Bell violated a 2005 amendment to the Tennessee Supreme Court’s Rules of Judicial Conduct.

Specifically, that canon requires that “when a judge refers litigants to community resources as a condition or requirement relating to litigation, such referrals shall be made impartially and on the basis of merit. A judge shall avoid nepotism and favoritism.”

Newport resident Tommy Large, who is married to Judge Bell’s wife’s sister, incorporated East Tennessee Probation Inc. to provide private probationary services. Shortly after the company was incorporated, “Judge Bell selected the company to provide probationary services for the Cocke County General Sessions Court,” the investigative panel found.

“Large was the executive director/chief operating officer of the corporation from its inception, was [in that position] on July 1, 2005, and has continued to be [in that position] to the present,” according to the notice.

The court’s notice alleges that Judge Bell became aware of the 2005 amendment sometime before the 2006 general election. He was reelected to the position in August 2006 and began a new term of office on September 1, 2006.

Soon after the election, Judge Bell is alleged to have tried to “circumvent the 2005 amended supreme court rule,” Daniel alleges in the notice of formal charges.

“Judge Bell sought to create an artificial barrier for his continued utilization of East Tennessee Probation Inc. as the exclusive probation provider for Cocke County General Sessions Court,” according to the notice.

Daniel alleges that Judge Bell “created or had created a Memorandum of Agreement effective September 1, 2006, which ostensibly vests the authority for the selection of a private probation company provider with the Cocke County mayor.”

This Memorandum of Agreement created a position of “director of court services” for Cocke County, and Juvenile Probation Officer Jennifer Shelton was named “at the direction of Judge Bell” by Cocke County Mayor Iliff McMahan to fill that position, Daniel alleges in the court record.

The investigative panel alleges that there is no legal authority for this agreement or for the establishment of the position of “director of court services.”

The written purpose of the “director of court services” was “to select, utilize, change, coordinate with, and…make all decisions concerning provider services” for general sessions and juvenile courts in Cocke County.

Despite that stated intent, “no probation provider other than East Tennessee Probation Inc. has been asked to provide probation services…pursuant to this agreement,” the investigative panel found.

As the provider of probation services to general sessions court, East Tennessee Probation collects fees which the court orders be paid by defendants who are on probation.

According to the affidavits of Shelton, Mayor McMahan, and County Attorney Ervin, Judge Bell, who first took office after defeating incumbent Judge Marcus Mooneyham in 1988, met with Ervin and Mayor McMahan in the fall of 2006.

At that meeting, “Judge Bell informed [those present] of a recent change in state law which he said prevented him from selecting the court services in Cocke County General Sessions Court,” according to Ball’s motion.

In an attempt to come into compliance with the new law, “Judge Bell produced a proposed ‘memorandum of agreement’ between the county mayor and himself as general sessions and juvenile judge.

“The proposed memorandum…created a new office within the office of the county mayor, [called] director of court services, and Judge Bell proposed that Jennifer Shelton, youth services officer of the juvenile court, be appointed as director of court services without additional compensation,” the motion continues.

Under that memorandum, the director of court services “is given the discretion to select whichever probation services company she believes is best qualified to handle those services in general sessions court and may invite other companies to provide services to that court.”

In her affidavit that “the position consists of a myriad of responsibilities, primarily selecting and utilizing services for the court. The position did not consist of a pay raise, as I had just been given a raise.”

According to the court documents, Shelton had earlier planned to leave her position of youth services officer in order to accept a position in the office of Circuit Judge Rex Henry Ogle, but that Judge Bell negotiated with the county commission for an $8,000 raise in order to keep her as youth services officer. The raise had nothing to do with her appointment to the new director of court services position.

“I did not know about the creation of this position in advance, nor did I know that I had been selected to be the director of court services,” Shelton swore in her affidavit. “I had not discussed the position with Judge Bell prior to him informing me that I had been selected to fill this position.”

Both Shelton, Ervin, and McMahan say that the only discussion among them about the issue was the question of whether Shelton might eventually be entitled to further financial compensation from an already financially strapped county budget.

According to Mayor McMahan’s affidavit, after informing McMahan and Ervin  of the change in state law, “Judge Bell proposed that a new position, a court services officer, be created as part of the executive branch of the county government.

The mayor’s affidavit then abruptly changes to third person, reading, “But Mayor McMahan did not feel comfortable giving Ms. Shelton direction and he requested that she not report directly to him for these duties.”

Jumping back into the first-person, the mayor’s affidavit continues, “I did not want to create a situation where Ms. Shelton might use her additional duties to seek a pay increase, especially since she had recently received an $8,000 salary increase,”

After amending Judge Bell’s proposed memorandum to reflect the mayor’s financial concerns, the three agreed on the terms of the proposal.

Taken together, the affidavits deny that there was any consideration of politics or family relationships in the creation of this position.

POLITICS, NEPOTISIM

The motion before the court of the judiciary denies that Large is related, even by marriage, to Judge Bell and alleges that the decision to contract with East Tennessee Probation was in no way related to politics, nepotism, or as a way to provide financial benefits to either Large or Judge Bell.

“Judge Bell was not involved in Large’s decision to start East Tennessee Probation…and…it was and is the only licensed probation services company in general sessions court in Cocke County,” attorney Ball’s motion reads.

It claims that when Mayor McMahan asked Shelton why she did not contract with the East Tennessee Human Resources Agency (ETHRA), which provides probation services for Cocke County Circuit Court, “she responded that she could not find where [ETHRA was] licensed to provide probation services in Cocke County for adult misdemeanor defendants” and that Cocke County has no written contract with either ETHRA or East Tennessee Probation.

“No one instructed Ms. Shelton to use a particular probation service, including East Tennessee Probation Inc., in her job as director of court services,” it continues.

The motion also claims that, since 2006, Judge Bell “has introduced Ms. Shelton to one other probation services company that provided probation services to other counties and informed her that it was her decision alone whether to hire a probation company.

“Large has neither offered [to] nor paid Judge Bell, directly or indirectly any remuneration for anything related to East Tennessee Probation’s [providing] of probation services in general sessions court,” the motion continues.

In her affidavit, Shelton agrees.

“I have never felt pressure from anyone, including Judge Bell, to use East Tennessee Probation Inc.,” she says in the document.

“Mr. Large’s company was, and is, the only licensed probation services in general sessions court in Cocke County,” Shelton continues. [Mayor McMahan] “asked me why I didn’t use ETHRA for probation services and I responded that I could not find where they were licensed to provide probation services in Cocke County for adult misdemeanor defendants.”

The formal charges filed against Judge Bell by the investigative panel of the court of the judiciary allege that Judge Bell has used his relationship with Large to financially benefit Bell’s brother-in-law by controlling the fees levied through misdemeanor probation.

“Failure to pay these fees, or to report as directed to take drug tests, for which the individual is sePerately charged, is a reason for Judge Bell to revoke the suspended sentence and require the individual to serve a jail sentence or to extend the probation term,” according to the investigative panel’s findings.

Extensions of probation for failure to comply with even the smallest of the terms of probation means more costs to the probationers and more fees paid to East Tennessee Probation.

“These fees provide income to the company, which in turn pays Large a salary,” the panel found.

This “never-ending cycle of probation” has been cited by many defendants as their reason for waiving consideration of relatively minor offenses to the Cocke County Grand Jury, clogging the circuit court docket with speeding, light law, open container, registration law, financial responsibility law, and other misdemeanor violations instead of the more serious felony charges traditionally reserved for circuit court.

“Judge Bell allows Large to sit on the bench adjacent to him in court sessions [and] it is known by the general public in Cocke County that Large has a familial relationship to Judge Bell and that Large receives compensation as a result of those who are required to undergo supervision by East Tennessee Probation Inc.,” the investigative panel found.

The panel alleges that, taken together, these “actions and/or inactions of Judge Bell” are in violation of at least five canons of the Supreme Court Rules of Judicial Conduct and sections of state law.

The panel alleges that Judge Bell’s conduct “does not promote public confidence in the integrity and impartiality of the judiciary,” that the judge “has allowed family relationships to influence his judicial conduct,” that his probation referrals “are based on partiality and do not avoid favoritism, that the conduct “was and is willful,” and that his actions were “calculated to bring the judiciary into public disrepute and adversely affects the administration of justice.”

The second count of the notice of formal charges alleges that Judge Bell was automatically disqualified from hearing “any and all cases in which Tommy Large and/or East Tennessee Probation Inc. are involved” because of his family relationships.

Defendants should not have been required to file a formal motion of recusal in such cases, the panel alleges.

Further, the panel alleges that Judge Bell continued hearing such cases “even after being specifically informed of the applicable provisions” of the Code of Judicial Conduct by Disciplinary Counsel Daniel by letter on June 18, 2007.

The documents filed in support of Judge Bell’s motion for summary judgment deny these allegations; in fact, they contend that most of these practices are nothing unusual.

Concerning Large’s practice of sitting on the bench beside Judge Bell in the courtroom, the defense motion contends that “this is not unusual, since it is necessary for an agent of the probation services company to be present in court when a defendant is sentenced to probation.”

“I understand that questions have been raised regarding where Mr. Large sits in the courtroom,” Shelton says in her sworn affidavit. “However, [he] sits in court in the same location as every previous probation services officer has sat, and the same place probation officers sat when Judge Mooneyham was on the bench prior to Judge Bell’s election.”

In previous documents filed in the case, Judge Bell’s attorney has alleged that many of the complaints now facing Judge Bell have been litigated before and not found to be improper.

But that alleged investigation occurred during 1999, before the amendment to state law the judge is now accused if having violated, was adopted by state legal authorities.

Attorney Ball alleges that the issues on the case “have already been litigated and decided by the Tennessee Court of the Judiciary in favor of Judge Bell,” according to the response. “Specifically, the [court] found that the facts now alleged…do not rise to the level of an ethical violation.

“The court found that utilization of East Tennessee Probation Inc.’s private misdemeanor probation service in 1999 by Judge Bell was appropriate and that such use did not amount to an ethical violation [and] that an improper relationship did not exist between Judge Bell and East Tennessee Probation Inc.,” according to Judge Bell’s earlier response.

But those judicial proceedings were held in 1999, at a time when the arrangement between sessions court and East Tennessee Probation Inc. may not have been considered improper.

“The Tennessee Court of the judiciary [in 1999] made findings of fact that Judge Bell was not related to Mr. Large by blood or marriage (In fact, Judge Bell and Mr. Large are not related, but are merely connected through two sePerate marriages.),” according to Judge Bell’s response.

“A LOVE GIFT”

In count four of its Notice of Formal Charges against Judge Bell, the court of the judiciary’s investigative panel alleges that in March of 2004, Judge Bell was a guest speaker at Grace Missionary Baptist Church and was paid $100 for the appearance.

“Judge Bell made no report of this extra-judicial compensation on his required Public Disclosure Report of Extra-Judicial Compensation for the year 2004,” the investigative panel found.

Failing to disclose the payment was a violation of another canon of the Code of Judicial Conduct, the panel alleges.

In his sworn affidavit, Pastor Downard testified that the judge spoke at Grace Missionary Church in March 2004 and received “a love gift” collected from the church’ congregation which is listed in the church’s financial ledger as “Speaker John Bell: $100.00.”

“Such gifts were at that time and are currently presented by the church to any speaker,” Downard testified. “in February 2008, the court of the judiciary’s investigator showed up one day and requested information about the $100 gift to Judge Bell in March 2004.

“I explained to the investigator that the $100 check was a ‘love gift’ to Judge Bell [from the church]. Although the investigator asked me for additional information and stated that he would ‘call back,’ I have not heard from him since,” the affidavit continues.

In a deposition taken by attorney Ball in the case, investigator LaRue testified that he was told that “Judge Bell had made a practice prior to the last election of touring about the counties, giving his [Christian] testimony and an account of his service to the United States Army [during the Iraq War] and that he had received income from this.

In following up on this information, which he said came from former Sessions Judge Mooneyham, he said, ‘”I think I went to all the churches in Newport,’ and although there were ‘a lot’ of churches in Newport, he found ‘no evidence that Judge Bell received any checks from any other church,’” according to the defense motion.

“And although Mr. LaRue testified that he had numerous ‘statements’ that Judge Bell had received ‘cash’ at other churches, Mr. LaRue had no information of the amounts of cash purportedly given to Judge Bell, and had scares information regarding the names of ay witnesses who would testify to that effect.”

However, the issue before the court of the judiciary is not whether Judge Bell received any such gifts or appearance fees, but whether he failed to report those fees to state officials under the required Public Disclosure Report of Extra-Judicial Compensation

POLITICS, DAN

METCALF, AND OTHER

ALLEGATIONS

Count three of the Notice of Formal Charges filed against Judge Bell concerns an alleged threat to hold Metcalf in contempt of court for alleged statements made outside of the courtroom.

On February 6, 2007, Metcalf, who worked as a bail bondsman at the time, was sitting on a bench downstairs at the Cocke County Courthouse.

Scottie Ellison, a local man who was facing charges of passing bad checks, reportedly asked Metcalf for advice, telling the bondsman he had been drug tested numerous times while on probation on the bad check charges.

“He asked me what I thought about it, and I told him I thought it was pretty strict to have someone repeatedly drug tested on a bad check charge,” Metcalf has said. “That was the extent of the conversation.”

Apparently, Ellison spoke to someone from East Tennessee Probation and told that person that “he had overheard Dan Metcalf talking to others in a sePerate area of the courthouse about the propriety of private probation services in Cocke County,” according to the three-judge investigative panel’s findings.

The representative of East Tennessee Probation brought the matter to Judge Bell’s attention and the judge called Ellison to the bench in open court.

“In this bench session, which is not recorded, it is the contention of Judge Bell that Ellison stated that Metcalf had earlier told him that ‘probation was crooked [and] you was crooked,’” according to the panel’s findings.

Metcalf was not in the courtroom for this bench conference and denies making statements of that nature to Ellison.

“Accepting these statements as true, Judge Bell had Metcalf immediately brought into open court and sworn,” the panel found. “Judge Bell thereupon admonished Metcalf in open court that he considered Metcalf’s remarks to be ‘contemptuous and slanderous.’”

The judge did not tell Metcalf what comments he was talking about, nor did he give Metcalf an opportunity to respond, but he “threatened Metcalf in open court with contempt if he heard that similar statements were being made by him in the future,” according to the panel’s findings.

“The threat of contempt by Judge Bell in open court under these circumstances was improper and in violation of [specific canons of] the Code of Judicial Conduct” and state law, the investigative panel alleges in count three.

In his motion, attorney Ball alleges that this complaint was politically motivated by the judge’s political adversaries, specifically former Judge Mooneyham, former Cocke County Jail Administrator Michael McCarter, Metcalf, and unnamed others.

The motion also argues that Judge Bell’s actions were not in violation of Tennessee law or even the free speech provisions of the U.S. Constitution: even comments about an elected public official during an election year.

This opinion largely comes from Pera, a Memphis attorney with a seven-page resume who describes his current occupation by saying, “I also counsel and represent lawyers, law firms, and others on questions of legal ad judicial ethics and the professional responsibilities of lawyers and judges.

“I have been retained to serve as an expert in a number of legal malpractice, lawyer disciplinary, and other matters involving the conduct of lawyers and judges,” Pera says in his affidavit.

He says he has “provided Judge Bell my full and complete legal analysis and opinions related to the judicial disciplinary complaint filed [against him] by Dan A. Metcalf in a letter I wrote to Judge Bell dated December 4, 2006.

“In my opinion, Judge Bell’s actions did not violate Tennessee law; rather, they followed an appropriate practice identified by other courts,” Pera says in his affidavit. Mr. Metcalf’s conduct and speech in the courthouse on February 6, 2006, could be seen by a judge in Judge Bell’s position, acting reasonably to fall within the category of conduct that Tennessee contempt law aims to prohibit.

“In my opinion, Judge Bell's response to Mr. Metcalf appears to have been, if anything, restrained and temperate. Rather than attempting to hold Mr. Metcalf in contempt, and rather than then instituting a charge of indirect criminal contempt, Judge Bell instead merely warned Mr. Metcalf, on the record, that his actions could be construed as contempt and warned Mr. Metcalf that, if he continued in his course of conduct, Judge Bell would follow the course of action laid out in [the rules of court]. As stated in my December 2006 letter, I am aware of no authority condemning the practice of issuing such a warning.”

The affidavit and letter both stop short of pointing out that during the hearing when Metcalf was called before the court, Judge Bell never explained to Metcalf what specific comments or behavior, Judge Bell considered improper.

“At the time, I had no idea what he was talking about and he never really explained it to me,” Metcalf said. “I assumed it had something to do with a bail case I was handling or something that had happened in the courtroom. It was only later that I found out what he meant.”

In his December 4, 2006, letter to Judge Bell, which is attached as an exhibit to the motion for summary judgment, Pera has a basic explanation for the situation: politics.

“The incident at issue arose during the course of an election campaign for the position of Cocke County general sessions judge, in which you were challenged in your bid for re-election by Phil Owens,” Pera wrote in 2006.

Mr. Metcalf…was involved in working with and  supporting the campaign of your opponent, Phil Owens,” he wrote.

Among the issues during the campaign was the very question which is now the focus of the state disciplinary action.

Although some local residents may disagree, Pera contends that “the physical layout of the courthouse is  such that Mr. Metcalf was situated where people going to and from your courtroom were  required to pass by, and within earshot of, his location.

“Although you have expressed your opinion that the conduct of Mr. Owens' campaign was inappropriate  and unethical, I have not formed an opinion on this topic,” Pera informed Judge Bell.

The letter suggests that Judge Bell believed that there had been several previous incidents which were directly related to “Mr. Metcalf's activities on the first floor of the courthouse,” although Metcalf contends he was at the courthouse to monitor the appearance of his bail bond clients in court, to visit with friends in one of Cocke County’s primary gathering places, and, he concedes, to “talk politics.”

But Judge Bell told Pera, according to his letter, that about two weeks earlier, “Mr. Metcalf was pointed out to you by a litigant as someone who was telling people in the courthouse that “the court  [referring to your court] was just a money racket.” The litigant was also confused about Mr.  Metcalf’s position, saying that he believed he was one of “your officers,” which Mr. Metcalf was  not.

“Mr. Metcalf’s conversation with this particular litigant had made enough of an impression upon the litigant that you were obliged to engage in conversation with him to defend your actions and the court from the charges Mr. Metcalf had made.

“About a week before February 6, 2006, another litigant told you that Mr. Metcalf was slandering the court in the same general location on the first floor of the courthouse, including  statements that your court was “a money racket,” that Cocke County General Sessions Court  probation was “a racket,” that you were “crooked,” and other such statements.

Another such incident occurred before February 6, 2006, in which you overheard a  litigant, in an argument with personnel in the Juvenile Court Clerk's office, asserting that the  requirement of certain filing fees was “a money racket,” Pera wrote. “The litigant later told you that he was  just repeating something that he had heard downstairs in the courthouse, and he apologized to  you for the comments.”

Pera contends that Metcalf’s alleged behavior, “included ‘repeated accusations of corruption and misconduct were being consciously and directly targeted toward litigants before your court and were being made against the court in the courthouse.

“Based upon my review of the facts and law applicable to the situation at hand, it is my  opinion that you did not violate the law of Tennessee in warning Mr. Metcalf regarding the  contemptuous nature of his conduct and speech.

Under Tennessee law, actions that constitute “abuse of, or unlawful interference with, the  process or proceedings of the court” are considered to be criminal contempt.

Even during an election season in which Judge Bell was a candidate and valid election issues were being discussed, “such actions occurring outside of the presence of the court are considered to be  indirect criminal contempt,” Pera alleges.

“It is, of course, conceivable that a court reviewing a finding of indirect contempt against Mr. Metcalf for his conduct regarding Mr. Ellison might conclude that his actions and speech were, in fact, protected by the First Amendment [of the U.S. Constitution], and thus reverse such a contempt finding,” Pera points out.

“It is  well-settled, however, that First Amendment rights are subject to greater regulation when those  rights are exercised in connection with court proceedings, whether by participants in court  proceedings or by those whose conduct or speech otherwise has a substantial likelihood of  materially prejudicing an adjudicative proceeding,: he continues. “Thus, while the fact that Mr. Metcalf was part of an electoral campaign for your opponent might be seen by some as meaning that the First Amendment would absolutely protect his conduct and speech, it seems likely to me that, even if such conduct and speech were  protected by the First Amendment when undertaken at some location distant from the court and  its proceedings, a very different First Amendment analysis would likely apply to identical  conduct and speech undertaken in or near the court, especially where the conduct or speech  interfered with, or was likely to interfere with, proceedings before the court.

“It appears to me that, in issuing the warning that you did to Mr. Metcalf, you had apparently concluded that his  continuing conduct and speech posed a substantial likelihood of materially prejudicing  proceedings before your court, and it appears to me that such a conclusion was reasonable,” Pera wrote.

“If  another judge, brought in later to try a contempt charge on these facts, were to find that, based on  whatever factual record emerged, Mr. Metcalf s conduct did not pose a substantial likelihood of  materially prejudicing proceedings before your court, in my opinion, that would in no way  diminish the reasonableness of your action in issuing the warning.

“I have not been provided with, nor have I found in my research, any  Tennessee case law that would make it clear that Mr. Metcalf s conduct was immune from  contempt based on the First Amendment.”

“Absent such case law, a judge in your position would  seem to me wholly justified in taking merely the first step in a possible indirect contempt  proceeding.

“Issuing Mr. Metcalf an appropriate warning that his conduct risked such a charge…appears to me that the only potential impropriety of which you might be accused is  using the court's power and authority to chill the First Amendment rights of Mr. Metcalf. Given  the state of the law, any such accusation would appear to me to be groundless,” Pera concluded.