The Supreme Court is facing an unprecedented crisis after the Chief Justice said Supreme Court judge Seamus Woulfe should resign over his handling of the controversy following his attendance at an Oireachtas golf society dinner.
The judge has told the Chief Justice he will not resign over the controversy, which saw 80 people attend a dinner at an event at a hotel in Clifden, Co Galway on August 19th, a day after the Government tightened Covid-19 restrictions on gatherings.
In a brief statement, the Government said: “The Attorney General has been asked to advise the Taoiseach and Government on the matter. It would be inappropriate to make any further comment at this stage.”
Mr Justice Frank Clarke told the judge at a meeting last Thursday he should resign and reiterated that view in letters last week and yesterday.
In a letter last Thursday, the Chief Justice also said the “unanimous view” of all members of the Supreme Court, including ex officio members, is that Mr Justice Woulfe has caused “significant and irreparable” damage to the court by how he has handled the matter.
Mr Justice Woulfe replied on Monday that he would not resign but would be willing to donate three months of his salary to charity, not sit as a Supreme Court judge until February 2021 and to sit as a High Court judge to help out that court.
He said he did not think any of the reasons proffered for his resignation “remotely constitute substantial reasons or grounds for my resignation, let alone amount to judicial misconduct.”
In his nine page reply, he said, despite former Chief Justice Susan Denham’s recommendation of an informal resolution process over his attendance at the August 19th dinner at an hotel in Clifden, he and the Chief Justice “have never met, formally or informally, to discuss the issues”.
The Chief Justice had “formed your personal view that I should resign without even discussing with me the shift in the goal posts when, faced with Ms Justice Denham’s unequivocal view that my attendance at the dinner did not warrant my resignation, you grounded your call for my resignation on how I had defended myself”.
In his reply on Monday, the Chief Justice said he “regrettably” remains of the view Judge Woulfe should resign.
The Supreme Court on Monday night published letters exchanged between the Chief Justice and Mr Justice Woulfe following meetings last week to address the controversy. Mr Justice Woulfe had opposed publication.
Last week’s meetings followed the publication on October 1st of a non-statutory review by Ms Justice Susan Denham which expressed the view Mr Justice Woulfe had not broken any law or knowingly breached any public health regulations by attending the dinner.
However, Ms Justice Denham expressed the opinion he should not have attended at the dinner and was not vigilant about how it appeared for a Supreme Court judge to attend a celebratory dinner in a public place in the middle of a pandemic. She was of opinion calls for his resignation over the matter would be unjust and disproportionate and the Chief Justice should resolve the matter informally. The review was perceived as not unkind to the judge but the publication of transcripts of his interview with Ms Justice Denham compounded the controversy.
In his letter of November 5th , the Chief Justice concluded Mr Justice Woulfe’s approach to handling the problem overall “has, in my view, added very substantially to the damage caused to the Court, the judiciary generally and thus to the administration of justice”.
He referred to a phone conversation between the two on August 21st, when he expressed “my considerable concern that damage was being caused to the judiciary and that the public view was being formed by reasonable people and not by a media frenzy”. The concentration on “narrow and technical issues rather than recognising the serious public concern and the consequent damage to the Court has only added to the seriousness of the situation”, he said.
He said further serious issues arise out of aspects of the transcripts of the judge’s interview with Ms Justice Denham and elements of the correspondence between the two men since delivery of her report.
That account appeared to show the judge “did not appreciate the genuine public concern about the event and your attendance at it, but rather continued to put the controversy down to a media frenzy”.
“Indeed, your statement that you did not understand what you were apologising for at the time when you issued your limited apology would now significantly devalue any further apology. There would be legitimate public scepticism about the genuineness of any such apology”.
The Chief Justice noted the judge had commented adversely on the government’s management of the public health crisis and made remarks critical of the Taoiseach and many other office holders which “created further genuine controversy”.
“It is a longstanding and important aspect of the reciprocal respect due by the institutions of the State to each other that judges do not engage in or give rise to matters of controversy most particularly involving the other branches,” he said.
He was also critical of what he said was the judge’s implication that some of his colleagues may have prejudged him.
The “reasonable response” of a great number of people to the transcripts of the judge’s interview by Ms Justice Denham has “caused even greater damage to the judiciary than did your attendance at the Clifden event”, he said.
His view, and the unanimous view of all of the members of the Court, including the ex-officio members, that the cumulative effect of all of these matters “has been to cause a very significant and irreparable damage” to the court and to the relationship within it “essential to the proper functioning of a collegiate court.
“It is not part of my role to ask, let alone tell, you to resign. Resignation is and can only be for the judge him or herself. Regrettably, however, I believe that I should make clear my personal opinion that, to avoid continuing serious damage to the judiciary, you should resign. “
He noted the judge has said he would not resign and also noted he had offered to donate a month’s salary to charity.
The Chief Justice said his own view had been, if matters had not worsened following the Denham review, that the judge should not sit until February 2021 and should waive or repay his salary until then.
In his letter of November 9th, the Chief Justice, while welcoming some aspects of the judge’s reply, said he “regrettably” remained of the view “that you should resign” in order to maintain public confidence in the Supreme Court, the judiciary generally and the administration of justice.
He also noted the judge had reaffirmed his view “to the effect that you will not resign”.