JUDICIAL DISCIPLINE DECISIONS. November 1990-January-February 1991

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1 JUDICIAL DISCIPLINE DECISIONS November 1990-January-February 1991 In re Lockwood, 804 P.2d 738 (Arizona 1990) Following the recommendation of the Arizona Commission on Judicial Conduct, the Arizona Supreme Court publicly censured a justice of the peace 1) for failing to ensure that court employees properly processed guilty pleas in misdemeanor DUI cases, 2) for telling the Commission that the improper procedure had been remedied, which he should have known was false, and for allowing a court employee to give the Commission information that the judge should have known was false, and 3) for challenging a police officer s investigation of a charge against the judge s son. The court found that the judge had not known that the court employees were using an improper procedure but that the judge should have known that the errors were being made. Because he had not been renominated, the court did not consider suspending or removing the judge but stated that in censuring the judge, it did not intend to minimize the seriousness of his misconduct. Letter from Arkansas Judicial Discipline & Disability Commission to Judge Tom Keith (July 24, 1990) ( The Arkansas Judicial Discipline & Disability Commission publicly admonished a circuit court judge who unreasonably delayed the decision in a case for approximately twenty-two months. The Commission directed the judge to keep better records of pending cases. Letter from Arkansas Judicial Discipline & Disability Commission to Judge Van B. Taylor (July 24, 1990) ( The Arkansas Judicial Discipline & Disability Commission publicly admonished a chancellor who had been in a car accident while he had a blood alcohol content of.12 and who had been charged with DWI and related charges. Memorandum of Understanding between H. Paul Jackson and Arkansas Judicial Discipline & Disability Commission (November 13, 1990) ( Pursuant to a Memorandum of Understanding, a part-time municipal court judge resigned and agreed not to serve in a judicial office or run for judicial office in Arkansas, and the Arkansas Judicial Discipline & Disability Commission dismissed three complaints pending against the judge. The complaints alleged 1) that the judge had been charged with unlawfully operating a motor vehicle while intoxicated, violating the implied consent law, and operating a motor vehicle without a valid driver s license, 2) that the judge presided at a hearing where he assessed himself a fine for not having a valid driver s license, that he failed to promptly dispose of the court s business and gave preferential treatment in the matter of traffic tickets issued to two people, and that he failed to properly administer his court or to comply with several state statutes; and 3) that

2 in his capacity as a judge, he signed an order that he had prepared in his capacity as an attorney, canceling a lien on land owned by a client. Letter from Arkansas Judicial Discipline & Disability Commission to Judge Francis Donovan (November 16, 1990) ( The Arkansas Judicial Discipline & Disability Commission publicly admonished a circuit court judge for promising during his re-election campaign to stop plea bargains. Letter from Arkansas Judicial Discipline & Disability Commission to Judge Francis Donovan (November 16, 1990) ( The Arkansas Judicial Discipline & Disability Commission publicly admonished a circuit court judge not to address attorneys or other persons in his court, when members of the public are present, in a manner that is or may be perceived to be derogatory regarding their appearance, manner of performance of duties, or competence. Duty v. Judicial Discipline & Disability Commission, 801 S.W.2d 51 (Arkansas 1990) The Supreme Court of Arkansas denied petitions for certiorari seeking review of the disposition of a complaint the petitioner had filed with the Arkansas Judicial Discipline and Disability Commission. The Court noted that there is no provision for appeal from a Commission decision by anyone other than the judge who was a respondent before the Commission. The court found that certiorari only lies to correct proceedings erroneous on the face of the record and that the petition did not allege an error on the face of the record. A dissenting opinion joined by two judges stated that an error on the face of the record is only one basis for certiorari and that the rule providing for certiorari from Commission actions was intended to be interpreted more broadly than the interpretation adopted by the court. Hopper v. Judicial Discipline & Disability Commission, 800 S.W.2d 722 (Arkansas 1990) The Arkansas Supreme Court denied a petition for certiorari seeking review of the disposition of a complaint the petitioner had filed with the Arkansas Judicial Discipline and Disability Commission. The petition stated that the Commission erred in finding a lack of probable cause to proceed with formal charges and that the judge who was the respondent had lied to the Commission. Noting that certiorari only lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, the court found that the petition did not allege an error on the face of the record. The court stated that evidence that the judge lied was not a basis for certiorari and that the Commission was the proper forum in which to present that evidence. Two judges dissented. 2

3 Gannett River States Publishing Co. v. Judicial Discipline & Disability Commission, 801 S.W.2d 292 (Arkansas 1990) Affirming the judgement of the circuit court, the Arkansas Supreme Court held that its 1990 order eliminating the authority of the Arkansas Judicial Discipline and Disability Commission to issue private reprimands was not retroactive and the Commission was not required to divulge prior actions that had been protected under the former rule. The court found that nothing in the new rule requiring greater disclosure suggested that its application would be retroactive. Rejecting the newspaper s argument that the disclosure it sought was not retroactive because the question was whether it was entitled to the records now rather than whether it was entitled to them before, the court stated that the release of records of Commission action that had been protected under the former rule would affect antecedent rights of judges who had been investigated and cleared or reprimanded under the assumption that the nondisclosure rule applied. Inquiry Concerning Capua, 561 So. 2d 574 (Florida 1990) Approving the stipulation between the Judicial Qualifications Commission and a circuit court judge and the recommendation of the Commission, the Florida Supreme Court publicly reprimanded the judge 1) for commingling client funds with his funds in twenty-six instances between January 1985 and November 1987, 2) for failing to properly prepare and give to clients required closing statements in twenty-one instances between January 1985 and September 1988, and 3) for signing an order releasing his son on his son s recognizance even though he had been arrested on a non-bondable charge. The stipulation stated that none of the judge s former clients had lost any funds as a result of the commingling and that, with regard to the judge obtaining his son s release from jail, the judge had allowed his parental inclinations to override his responsibilities as a judge. Inquiry Concerning Carnesoltas, 543 So. 2d 83 (Florida 1990) Approving the stipulation between the Florida Judicial Qualifications Commission and a county judge and the recommendation of the Commission, the Florida Supreme Court publicly reprimanded the judge who 1) while appearing as counsel in a case, used obscene language with respect to a United States District Judge and falsely accused that judge of having personal animosity towards her, 2) while appearing as counsel in another case, engaged in an emotional outburst and made threats towards opposing counsel during a deposition, and 3) while presiding in a case, demeaned, ridiculed, and personally humiliated an attorney, who had previously opposed her in a case, by ordering the attorney removed from the courtroom, and continuing to act as a judge in the matter after granting the defendant s motion for recusal. Inquiry Concerning Zack, 570 So. 2d 938 (Florida 1990) Approving the stipulation between the Florida Judicial Qualifications Commission and a county judge and the recommendation of the Commission, the Florida 3

4 Supreme Court publicly reprimanded the judge for twice in court using very profane language in reference to the county sheriff. Inquiry Concerning Turner, 573 So. 2d 1 (Florida 1990) Accepting the stipulation between the Florida Judicial Qualifications Commission and a circuit judge and the recommendation of the Commission, the Supreme Court of Florida reprimanded the judge for contacting attorneys to seek help for his son s candidacy for county court judge, for asking the honorary chairman for his son s opponent why he was backing the opponent, and for soliciting his fellow judges in writing to give his son guardian ad litem appointments. The stipulation stated that the judge regretted and apologized for his conduct. The court noted that the judge s term of office would expire on January 7, 1991, that he was retiring, and that the court s jurisdiction to discipline him would terminate on the date he leaves office. In the Matter of Sauce, 561 N.E.2d 751 (Indiana 1990) Accepting a statement of circumstances and conditional agreement for discipline between the Indiana Commission on Judicial Qualifications and a county judge, the Supreme Court of Indiana reprimanded the judge 1) for obtaining an ex parte order granting him temporary custody of his son and 2) for making off-color and outrageous comments implying that he would retaliate against his wife s attorney. The court noted the conditional agreement between the judge and the Commission had listed as mitigating factors the judge s belief that an emergency existed regarding the son s schooling and that the judge was both personally and professionally sorry for any appearance of impropriety he created, had publicly apologized for the language he had used in his conversation with his wife s attorney, and regretted that this domestic matter had tarnished his fifteen years of service. The court also stated that the fact that the judge would not be re-elected to office for the term beginning January 1, 1991, played a role in its decision to accept only a public reprimand. In the Matter of LaBelle, Determination (New York State Commission on Judicial Conduct February 6, 1991) ( The New York State Commission on Judicial Conduct determined that removal is the appropriate sanction for a city court judge who, over a four year period, 1) on 96 occasions in 59 cases involving 44 defendants, committed defendants charged with misdemeanors or violations to jail without bail, in violation of state statute; 2) in 12 cases, set bail on arrest warrants or ordered defendants held without bail when the defendants were not before him and without reviewing those factors that he was required to consider by state statute; 3) in two cases, held defendants in jail without bail for periods longer than the maximum sentence after conviction; and 4) had a practice of holding non-felony defendants without bail for psychiatric examinations without apparent or express legal or rational justification and failed to follow statutory procedures to ensure that the examinations were promptly performed and reported to the court, resulting in some defendants being held long after the reports were completed. 4

5 In re Fadeley, 802 P.2d 31 (Oregon 1990) Accepting the recommendation of the Oregon Commission on Judicial Fitness and Disability, the Supreme Court of Oregon censured an associate justice of the Supreme Court for soliciting contributions to his election campaign. The justice had signed a letter to the editor that solicited contributions and was published in the Oregon Labor Press, had participated in a request for pledges to his campaign committee at a campaign organizer meeting, had asked business representatives to serve on his campaign finance committee, which occasionally resulted in personal solicitations, and had personally solicited pledges from some members of the Oregon State Bar. The justice did not dispute that he had personally solicited contributions nor did he dispute that his actions violated Canon 7 of the Code of Judicial Conduct. Instead, he argued that for various statutory and constitutional reason, he could not be disciplined for the conduct. The court rejected all of his arguments. The justice argued that the Commission did not have jurisdiction to enquire into his failure to abide by the Code because the Code was not in existence when the Commission was created in 1967, and when the court did adopt the Code in 1975, the legislature did not amend the statute creating the Commission to specify that violations of the Code came within the purview of the Commission. Finding that argument to be unacceptably hypertechnical, the court reasoned that because the Commission had originally been granted jurisdiction to review the conduct of a judge and a wilful violation of the Code is conduct of a judge, legislative expansion of the Commission s jurisdictional statement was unnecessary when the Code was adopted. Rejecting the justice s argument that the Commission did not have jurisdiction over acts that occurred when he was a candidate or a judge-elect, the court noted that the Code specifically provided that it applied to a judicial candidates and that applying the Canon 7 limitations to sitting judges while allowing their as yet unelected opponents to campaign unfettered would create an advantage for the challenger. The court also rejected the argument by the ACLU (an amicus curiae) that the Oregon constitution leaves to the legislature alone the power to regulate elections. The court found that nothing in the constitution establishes that the judicial branch may not regulate the election activities of its members and potential members and that to the extent such matters are deemed to have been originally within the purview of the legislative branch or the people, the adoption of the constitutional amendment creating the commission was a relinquishment of a portion of that power to the judicial branch. The court also rejected the justice s argument that Canon 7 violated the justice s right under the Oregon constitution to speak, write, or print freely on any subject. Noting that a restriction on judges personally soliciting campaign funds existed when the public adopted the constitutional amendment giving the court the power to discipline judges, the court held that that amendment modified judges right to free speech under the Oregon constitution. The court further found that the Oregon constitutional right to free speech could be curtailed in the regulation of a profession and that the public had a profound interest in a judiciary that is both honest in fact and honest in appearance. The court stated that [a] judge s direct request for campaign contributions offers a quid pro quo or, at least, can be perceived by the public to do so. Insulating the judge from such direct solicitation eliminates the appearance (at least) of impropriety and, to that extent, preserves the judiciary s 5

6 reputation for integrity. On the other side of the ledger, the candidate is not seriously impaired either in the ability to solicit and receive funds -- a committee is permitted to do that -- or in the ability otherwise to communicate the candidate s position on any issues the candidate is entitled to address -- something the candidate himself or herself may do, as long as the message does not include a request for funds. The court also rejected the justice s arguments based on the First Amendment of the United States Constitution. The court found that Canon 7 s interference with the First Amendment rights of the justice was minimal, that the state s interest in protecting the integrity of its judiciary is profound, and that the means chosen to carry out the state s purpose are the least intrusive possible. In finding that censure was the appropriate sanction, the court reasoned that while the justice undoubtedly violated the Code wilfully, his conduct was not surreptitious or underhanded, he not only admitted his actions, but also assisted the Commission in identifying the extent os his personal contacts with potential contributors, and there was no reason to think that he would repeat the conduct or that the justice required any greater sanction than the publication of the court s opinion and the publicity attendant to the proceeding. The court quoted the Commission s statement that the ignominy of being the first Supreme Court Justice in Oregon to be subjected to discipline by his colleagues is no minor penalty. Two justices dissented from the holding that Canon 7 did not violate the justice s freedom of speech and argued that the majority s conclusion that the justice s personal solicitation of campaign funds harmed the health or image of the judiciary was supported only by surmise, not by any evidence or empirical data. In the Matter of Johnson, 397 S.E.2d 522 (South Carolina 1990) The Supreme Court of South Carolina publicly reprimanded a probate judge who 1) failed to remit to the county the fees the judge had received from the Department of Mental Health for holding hearings for certain involuntarily committed DMH patients and 2) signed the petitioner s name to the verification of a petition in a probate matter and then notarized her purported signature to expedite the matter. The court found that several state statutes required the judge to remit to the county the fees from DMH. An audit had revealed that the judge had collected $199,970 from July 1981 through September 1988; he had remitted only $97, to the county. $6, remained in a checking account in the judge s name entitled Mental Health Fund -- Lex. Cty. Probate. $8,000 was unaccounted for. The judge had spent $96, at his own discretion -- $769 for donations, $2, on medical expenses for mental health patients, but over half on what the court found were less altruistic projects : $18,555 for supplements to the judge s salary; $5,074 for the judge s automobile insurance and expenses; $27,113 for the travel expenses for conferences and meetings; and $5,770 for cash advances or cash withheld from deposits. State Commission on Judicial Conduct v. Gist, Opinion (Texas Court of Appeal November 14, 1990) Affirming the declaratory judgement of the trial court, the Texas Court of Appeals held that the public reprimand of a district judge by the Texas Commission on Judicial 6

7 Conduct was void. The Commission had reprimanded the judge for a sentencing practice in which the prosecuting attorney, criminal defendant, and judge agreed in open court that in return for pleading guilty to a felony offense, a defendant would be sentenced to a prison term that would be back-dated as if the defendant had already served time when he actually had served little or no time. The court held that, although at the time of the proceeding before the Commission, the judge did not have the right to appeal the Commission s finding, the district court had jurisdiction to hear the declaratory judgment action because the Commission had exceeded its constitutional and statutory authority by acting in a judicial rather than an administrative capacity. The Commission had interpreted the law, rather than applying the facts to determined law because, at the time the judge entered the sentences, the sentencing practice had not been expressly prohibited by any appellate court. After establishing that the district court had jurisdiction, the court held that an element of bad faith must be shown to sanction a judge for willful misconduct, rejecting the Commission s argument that a judge s conduct is willful if it is intentional. The court found that the judge did not act in bad faith because the judge had engaged in the sentencing practice before its legality was decided by the court of criminal appeals, he had offered to cease and did cease the practice until its legality was decided, and he believed the practice was legal and had practical benefits. Finally, the court held that the judge was entitled to attorney s fees. One judge concurred but expressed a concern that the decision might leave the impression that no judicial conduct not previously addressed by an appellate court can be wilful. In the Matter of Blauvelt, 801 P.2d 235 (Washington 1990) Rejecting the recommendation of the Washington Commission on Judicial Conduct, the Supreme Court of Washington refused to admonish an appointed, part-time municipal court judge for attending a local caucus and a county caucus for the Democratic party and being chosen as a delegate. The court concluded that, as a delegate controlling the proxy of party members, the judge wielded influence at the party convention and acted as a leader in a political party. The court rejected the judge s argument that the term leader in Canon 7 was unconstitutionally vague; noting that Canon 7(A)(1) prohibits attendance at political gatherings, the court stated it would be reasonable for a person of ordinary intelligence to conclude that taking an additional, active role by standing for election as a delegate is prohibited. The court also held that Canon 7 applies to appointed as well as elected judges. But the court concluded that no sanction was necessary. The court noted that the challenged activities took place during a single election, were limited to attendance at a precinct caucus and a county convention, and were solely for the purpose of participating in the selection of a presidential nominee. The court also found that there was no reason to believe that the judge would attend partisan conventions in the future, noting that as soon as the judge had received notice of the charges, he had refrained from attending the district and state conventions and that under Washington s new presidential primary election law, in the future, the judge would cast his vote for a presidential nominee by secret ballot. The court also stated that no prior complaints had been made against the judge. Finally, the court found that there was no indication that the judge s activity influenced his behavior on the bench or that the judge was exploiting his position to satisfy his personal desires. The court noted the 7

8 Commission s finding that the judge had acted with a good faith belief that he was exercising his constitutional rights. The court found that there was no reason to address the judge s argument that the prohibition violated the state and federal constitutions because the court lifted the admonishment and because the state s adoption of a presidential primary system had rendered the issues moot. In re Niemi, Decision (Washington State Commission on Judicial Conduct January 4, 1991) ( The Washington Commission on Judicial Conduct of the State of Washington publicly censured a pro tempore judge who had served on a county superior court for ninety-two days in 1990 while also serving as a senator in the state legislature. The Commission found that the senate committees on which the judge served (the law and justice committee and the ways and means committee) had substantial responsibilities in enacting laws and regulating the courts and the judicial system. The Commission concluded that the dual service could cause substantial concerns on the part of the public about the judge s integrity and independence and could seriously affect public confidence in the integrity and impartiality of the judiciary. The Commission also held that the judge s activities as a partisan member of the state legislature constitute partisan political activity prohibited to a judge. The Commission noted that the Code of Judicial Conduct clearly states that judges pro tempore are not exempted from the provisions of the Code except in those situations specifically set forth in its Preamble. The Commission also stated that the separation of the branches of government is improperly eroded by the necessity of a legislator appearing before the Commission to receive a reprimand or censure as a judge. Noting the judge s offer to recuse herself from any matters in the senate committees that concern the Commission, the Commission stated that the judge had been elected to serve the citizens of the district and should continue to do so and that the offer to recuse tacitly acknowledged the inherent conflict of interest. In response to the judge s argument that legislators should be permitted to serve as judges pro tempore because of a shortage of elected judges and a backlog of untried cases, the Commission held that expedience should not reign over ethics. Stating that it is an administrative body, the Commission concluded that it had no constitutional or statutory authority to determine the constitutionality of specific canons. Noting that on July 14, 1986, the Ethics Advisory Committee had issued an opinion stating that a member of the state legislature should not sit as a pro tempore judge, the Commission concluded that the judge s service as a pro tempore judge after notice of the advisory opinion and from the Commission, was, while not egregious conduct, greater than a minor violation. The Commission specified as a corrective course of action that the judge could no longer serve as a judge pro tempore until she is no longer a member of the legislature. Four (of ten) commissioners disagreed with the sanction (but not the corrective course of action), stating that the judge s conduct did not fall to the level of a censure, but that a reprimand was the proper sanction. In the Matter Suder, 398 S.E.2d 162 (West Virginia 1990) 8

9 Adopting the recommendation of the West Virginia Judicial Hearing Board, the Supreme Court of Appeals of West Virginia admonished a magistrate for receiving campaign contributions without having formed a committee of responsible persons to solicit, accept, and manage campaign funds. The magistrate had received two contributions of $300 to his campaign and had timely and accurately reported those contributions in a financial statement filed with the county clerk. The court found that when the clerk had advised him that the financial statement must be signed by his campaign treasurer, the magistrate had attempted to comply by appointing his wife as treasurer and having her sign the statement. The court also found that the magistrate had received from the West Virginia Judicial Investigation Commission advice that formation of a campaign committee was necessary. The court concluded that his failure to form a committee was a technical violation of the Code. 9