The Arkansas Supreme Court has suspended a Pope County district judge without pay and ordered that he never again hold judicial office after his term expires on Dec. 31, 2024.
Don Bourne, 66, has served as a district judge in Pope County since 2001.
"Recently, several complaints have been filed against Judge Bourne involving his conduct toward unrepresented litigants," according to a per curiam order issued by the Supreme Court on Tuesday. "This conduct includes demeaning comments toward Spanish-speaking defendants and negative comments to defendants who are not from Pope County (Count 1).
"Other complaints concerned Judge Bourne's failure to conduct proper indigency determinations and failure to keep adequate records (Count 2)."
The Arkansas Judicial Discipline and Disability Commission started an investigation of Bourne in February 2021.
David Sachar, executive director of the commission, sent a letter of censure to Bourne on Aug. 1 and issued a news release that day.
Last Thursday, the commission filed a petition asking the Supreme Court for expedited consideration of sanction after its investigation of the complaints against Bourne.
The Supreme Court granted the request.
"Judge Bourne did not contest either count and instead waived a formal disciplinary hearing and accepted the Investigatory Panel's recommended sanction," according to the Supreme Court ruling. "The Commission voted 8-0 to approve the Panel's recommended disposition on both counts. Because the sanction for Count 1 includes a suspension without pay, the Commission submitted its recommendation to this court for review on an expedited basis."
After the commission's recommendation, the Supreme Court suspended Bourne without pay for 90 days, with 75 days held in abeyance for one year if he follows remedial measures during that time. Bourne's suspension will begin next Tuesday.
Reached by telephone Tuesday afternoon, Bourne said he hadn't seen the Supreme Court ruling.
"I am slightly hesitant to comment without having seen it," he said.
Bourne said he made an agreement with the commission, so he couldn't comment on the details.
"I don't want to get into the details that might conflict with findings," he said.
Bourne said he respects the work that newspapers do in informing the public, but anyone interested in the details should go to the 14-page letter from Sachar, which is available at https://bit.ly/3bPL32m.
The majority of his suspension -- 75 days -- will be held in abeyance as long as Bourne completes or adheres to the agreed remedial measures, according to the Supreme Court order. Those measures include but are not limited to:
• Spend the two-week suspension attending and observing other district court judges and write reflective reports on each visit.
• Obtain and maintain a digital-audio recorder in his courtrooms prior to the end of his suspension and preserve audio recordings of court proceedings.
• Allow the commission to monitor his courtroom and allow access to staff and documents as needed.
• Attend an approved online judicial ethics class.
• Read a report and complete online training about bullying and harassment in the legal profession.
"Additionally, Judge Don Bourne shall never again hold a judicial office after his current term expires," according to the Supreme Court order. "This court notes that in addition to the public signal that a suspension without pay sends, the suspension also imposes a financial penalty of several thousands of dollars in lost pay."
Justice Shawn A. Womack wrote a concurring opinion, stating that he agreed with the sanctions and expedited consideration.
"I write separately to again note that the passage of Amendment 80 rendered the Judicial Discipline and Disability Commission constitutionally invalid in its present form," wrote Womack. "Accordingly, the discipline administered today can and should be administered as part of the judicial power granted exclusively to this and other courts of this state by Amendment 80, and through a process designed and approved by us, rather than as a mere ratification of the actions of a defunct Commission."
In his letter to Bourne, Sachar wrote, "Judge Bourne had a pattern of injudicious conduct toward defendants."
According to the letter, Bourne told Spanish-speaking defendants they needed to learn English if they were going to live in "this country, county, city."
He would also make comments "on the appearance of litigants -- particularly haircuts and hairstyles," wrote Sachar.
In one instance noted by Sachar, Bourne told a defendant "[i]f you were a good employee, you wouldn't have been laid off. Go get a job and get that crap out of your eyebrows."
According to the letter, Bourne told different defendants: "You should have stayed in South Arkansas," "You should have stayed in Chicago," and "I get a lot of troublemakers from California."
"Also, general allegations of bullying, angry demeanor and impolite behavior have been cited in these complaints as well as prior complaints," wrote Sachar. "Taken as a whole, it amounts to serious, cumulative misconduct on the bench."
The second count of judicial misconduct concerned Bourne's failure to follow the law concerning appointing counsel, conducting indigency determination and retaining official records.
"Affidavits of indigency were submitted by defendants for years and rarely was one approved," wrote Sachar. "The affidavits were not kept as a public record and were destroyed before the filing of a complaint on this matter. (Note: The judge has indicated he was wrong not to preserve these records and has told the JDDC that the policy has been changed.)
"The decision to appoint counsel is a legal determination made by the court," Sachar's letter continued. "It is governed by rules and case law that judges must follow. ... Judge Bourne's pattern of failing to appoint counsel and his disregard for following the proper procedure and considering the legal standard is what pushes his legal error into the realm of judicial misconduct."
Many of the cases in which Bourne allegedly failed to appoint counsel were only in district court for "prompt first appearance," wrote Sachar.
"Those cases would be sent to Circuit Court and a judge could determine if counsel should be appointed," he wrote.
"As to misdemeanor cases with potential jail time that were in front of Judge Bourne -- he often discouraged defendants from seeking appointments, telling them they would 'probably not' qualify before even reviewing all of the factors and the affidavit. He would frequently just respond with 'I am not going to appoint a lawyer for you. Get a job,' instead of conducting a proper review."