BEFORE THE COURT OF THE JUDICIARY OF ALABAMA In the Matter of STUART C. DUBOSE ...

113 Pages·2008·2.01 MB·English

BEFORE THE COURT OF THE JUDICIARY

OF

ALABAMA

In the Matter of STUART C.
DUBOSE, Circuit Judge of the Court of the Judiciary
First Judicial Circuit Case No. 36
of Alabama
COMPLAINT
The Alabama Judicial Inquiry Commission brings this
complaint against Judge Stuart C. DuBose, Circuit Judge of
the First Judicial Circuit of Alabama. The facts and
charges, upon which this complaint is based, averred
separately and severally, are as follows:
COUNT ONE

Facts

1. Stuart C. DuBose (hereinafter "Judge DuBose,"
except in allegations of fact occurring prior to his
assuming the bench, in which instance, "Mr. DuBose") took
1
office as a circuit jUdge of the First JUdicial Circuit of
Alabama on January 16, 2007.
2. On May 5, 2005, prior to Judge DuBose's assuming
the bench, Attorney Peter F. Burns of Mobile, Alabama, filed
a lawsuit on behalf of Ms. Cheryl Weaver, as the sole
beneficiary and the executrix of the Estate of Joseph J.
Sullivan, against Mr. DuBose and styled Cheryl L Weaver,
Individually and as the Executrix of the Estate of Joseph J.
Sullivan v. Stuart C. DuBose, CV-2006-002709.5l ("the Estate
case"). The case was originally filed in Washington County,
Alabama, but was assigned to Mobile County Circuit Judge
John R. Lockett after the judges of the First Judicial
Circuit recused.
3. Ms. Weaver's claims against Mr. DuBose in the
Estate case included the following: that the decedent was a
wealthy widower who required long-term care provided by Ms.
Weaver; that a close bond developed between them; that the
decedent stated on numerous occasions that it was his wish
that at his death his assets pass to Ms. Weaver; that, in
spite of never having met or had any contact with the
2
decedent, Mr. DuBose drafted a will on or about April 11,
2003, designating Ms. Weaver as the sole beneficiary and
delivered the will to Ms. Weaver for her to have the
decedent execute it; that without establishing an attorney­
client relationship or ever having communicated with the
decedent, Mr. DuBose designated himself as successor
executor and as the attorney for the estate; that, after the
decedent's death on April 29, 2003, Ms. Weaver reported to
Mr. DuBose's office on May 6, 2003, pursuant to his
directive, and Mr. DuBose obtained Ms. Weaver's signature to
a retainer agreement providing, among other things, that
after expenses, Mr. DuBose would receive a fee of 33 percent
of the estate if any will contest were settled without a
trial and, in the event of a trial, Mr. DuBose would receive
40 percent of any settlement. Ms. Weaver further alleged in
the Estate case that a will contest was filed and that after
the contest was settled, Ms. Weaver, on the advice of Mr.
DuBose, made a partial resignation of her status as
executrix and petitioned for Mr. DuBose to be appointed co­
executor; that four days after being appointed co-executor,
3
Mr. DuBose filed a claim against the estate that included
requests for $127,630 in administrative fees, attorneys fees
in the amount of 40 percent of the estate (which for tax
purposes was valued at $2,566,975), and out-of-pocket
expenses; and that Mr. DuBose refused to provide Ms. Weaver
with documentation concerning the estate, including
documentation in support of his claims.
4. The Estate case was set for trial on or about
October 2, 2006. At the beginning of the trial proceeding on
October 2, 2006, Judge Lockett made the following
announcement from the bench:
Okay. I have been presented with, I guess,
several documents for consideration.
One, an order rescinding and vacating the
order revoking letters entered by this Court on
June 16t 2006.
\
An order which sets forth that the matter has
been settled.
And a third document representing Letters
Testamentary to be granted to Stuart C. DuBose in
the matter.
Upon the affirmation of the parties that they were in
agreement as to each of these documents, Judge Lockett
4
indicated on the record that he would sign the three
documents and discharge the jury that had been called
for that day. Mr. DuBose then read the settlement into
the record, stopping after each paragraph for Judge
Lockett to ascertain the acquiescence of the parties.
(Judge DuBose testified before the Judicial Inquiry
Commission that he read the settlement agreement into
the record because he wrote it.) The agreement
provided for the appointment of Mr. DuBose as sole
executor of the estate and dismissed a special
administrator appointed by the Court. The agreement
further provided that Ms. Weaver was to receive a $1.2­
million cash settlement plus three designated parcels
of land; and that the estate would be closed as soon as
Mr. DuBose could transfer the specified property and
sell sufficient stock to provide the necessary funds
for the $1.2 million cash allotment to Ms. Weaver. Mr.
DuBose was to receive the entire remainder of the
estate and assume all tax liabilities and was to be
provided all depositions and tapes of all persons
5
deposed in the case, and it was agreed that no one was
to talk about the case or publish statements. Mr.
DuBose agreed to be personally liable to the Internal
Revenue Service for any tax consequences. (Ms. Weaver
agreed to assist, in any non-financial way, in the
resolution of any tax issues.)
5. When Mr. DuBose took office as Circuit Judge of the
First Judicial Circuit of Alabama on January 16, 2007, he
still had not honored the settlement agreement that he had
entered into before Judge Lockett on October 2, 2006. As a
result, Ms. Weaver filed post-settlement motions seeking
enforcement of the settlement agreement, including a motion
to reduce the settlement to judgment. JUdge Lockett conducted
a hearing on these motions on August 2, 2007. At the
conclusion of the hearing, Judge Lockett announced that he
would reserve ruling for 30 days for the attorneys to brief
the issues.
6. The day follOWing the hearing of August 2, 2007,
Judge DuBose, without the permission of the Court, executed
or caused to be executed, transactions involving the assets
6
of the estate that were to his financial benefit and in
direct violation of the settlement agreement. These
transactions include his attempt to divide all the real
estate in the estate by allocating 60 percent to Ms. Weaver
and 40 percent to himself and his attempt to allocate 40
percent of the estate's stock and all of the estate's cash to
pay attorney fees and estate administrative fees.
7. In response to these transactions by Judge DuBose,
Ms. Weaver filed a Motion for Judgment and Instanter Relief
in the Estate case. On August 17, 2007, Judge Lockett awarded
Ms. Weaver a judgment against Judge DuBose in accordance with
the terms of the existing settlement agreement in the Estate
case. The Order awarded Ms. Weaver $1,190,000 and ordered
Judge DuBose, within 30 days, to convey to Ms. Weaver the
three parcels of land designated in the settlement agreement,
with the proviso that if Judge DuBose failed to make the
conveyances, the clerk of the court was authorized to do so.
In Judge Lockett's order, he expressly found that Judge
DuBose's actions, as set out in paragraph 6 above, were in
derogation of the settlement agreement.
7
8. Two days after Judge Lockett's judgment order of
August 17, 2007, Judge DuBose sent by facsimile to Judge
Lockett copies of two letters that Judge DuBose had written
to his attorney. The letters were on Judge DuBose's official
court stationery and were signed by Judge DuBose using his
designation as a judge of the first JUdicial Circuit. The
letters were very critical of Judge Lockett's order and
stated that the order was illegal, was without justification,
and was immoral; that the order must not become public
knowledge or be recorded; that the order would ruin Judge
DuBose professionally and financially; and that the order
would irreparably destroy Judge DuBose's credit. Upon
receipt of the facsimile, Judge Lockett issued an order
finding that because there was no certificate of service on
the communication, as required by Rule 5, Ala. R. Civ. P.,
and because the documents had not been filed with the circuit
clerk, he considered the letters as ex parte communication by
Judge DuBose. further, Judge Lockett enjoined Judge DuBose
from making any further ex parte communications with the
Court. Judge DuBose, in testimony to the Judicial Inquiry
8
Commission, defended the ex parte communication by
misrepresenting facts to the Commission, by stating that Mr.
Burns, opposing counsel, had asked Judge DuBose not to send
him copies of Judge DuBose's communications with the Court.
Mr. Burns denies that he made such a statement.
9. Judge DuBose has not complied with Judge Lockett's
judgment order in the Estate case and, on September 17, 2007,
filed a motion to alter, amend, or vacate judgment. In the
motion, he states that he declines to obey the order, in
part, because the order requires him to do an illegal act and
to participate in the perpetration of a fraud on certain non­
parties, including any subsequent arm's-length purchaser of
any interest in said land or its timber.
CHARGES

Charge One

10. Judge DuBose, a circuit judge of the First Judicial
Circuit, while serving in that capacity, failed to uphold the
integrity and independence of the judiciary, as required by
Canon 1 of the Alabama Canons of Judicial Ethics, in that,
9
separately and severally, he engaged in the conduct alleged
in paragraphs 5 through 9, in the matter described in
paragraphs 2 through 4 of this complaint, more specifically
as follows:
a. He failed to implement the settlement agreement
he had entered into and presented to the trial judge In
open court in the lawsuit described in paragraphs 2
through 3 of this complaint, after he used the agreement
to prevent a trial of the matters scheduled to begin on
the date the agreement was entered in the court records.
b. He willfully acted outside the settlement
agreement, as though it did not exist, without
authorization to do so and after having personally
entered the settlement agreement into the record.
c. He willfully, 11 months after reaching the
settlement agreement and entering the agreement as a
matter of record, acted outside the agreement to his
personal benefit on the day after the trial judge held a
hearing to determine whether the agreement should be
10