In re Bryan

IN_RE_BRYAN.95-252; 164 Vt 589; 674 A.2d 793

[23-Feb-1996]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-252


In re Honorable Alden T. Bryan                    Supreme Court

                                                  On Appeal from
                                                  Judicial Conduct Board

                                                  November Term, 1995


       David A. Otterman of Otterman and Allen, P.C., Barre, for Judicial
  Conduct Board

       Peter B. Joslin and Jeffry W. White of Theriault & Joslin, P.C.,
  Montpelier, for respondent

       Matthew I. Katz, Burlington, for amicus curiae Chittenden County Trial
  Judges

       James R. Crucitti, Essex Junction, for amicus curiae Vermont Trial
  Judges Association


PRESENT:       Johnson, J., and Barney, C.J. (Ret.), Peck, J. (Ret.) and Dier,
               Super. J. (Ret.), Specially Assigned


       JOHNSON, J.   Judge Alden T. Bryan (respondent) appeals a
  recommendation of the Judicial Conduct Board that he be publicly
  reprimanded for violating Canons 1 and 2(A) of the Code of Judicial
  Conduct.  Because we find that the alleged violations have not been proven
  by clear and convincing evidence, we decline to impose the sanction
  recommended by the Board.

                                I.

       The charges against respondent stem from a letter written to the
  Judicial Conduct Board by Peter Freyne, a journalist, alleging three
  instances of misconduct by respondent.  The allegations relate to
  respondent's actions during and after a closed chambers conference held in
  the Chittenden District Court on December 21, 1993, in the case of State v.
  McKeen, No. 4737-7-92.  Specifically, Freyne claims that respondent:  (1)
  held a chambers conference closed to the public in violation of law; (2)
  directed court personnel to secretly escort the attorneys to his chambers
  for the conference; and (3) made untruthful statements in open court.  The
  Board

 

  recommended dismissal of the first two allegations, (FN1) but found that
  certain statements made by respondent in open court, although not
  untruthful, violated Canons 1 and 2(A).

       The facts as found by the Board are not in dispute.  The McKeen trial,
  a widely-publicized sexual assault and kidnapping case, had concluded with
  a jury verdict of guilty, but reports of juror misconduct had prompted the
  defendant to move for a mistrial.  Respondent, who presided over the trial,
  had the motion under advisement on December 20, 1993, when he told the
  clerk's office that he wanted to see counsel in the case the next
  afternoon.  The clerk's office notified counsel, characterizing the matter
  as a status conference.  The court schedule for December 21, 1993,
  indicated a status conference in the McKeen case scheduled for 2:00    
  p.m. in courtroom C.

       Freyne, who was covering the case for a Waterbury radio station,
  arrived at the courthouse at approximately 1:40 p.m., and saw the 2:00 p.m.
  status conference listed on the schedule posted in the courthouse.  On his
  way to the assigned courtroom, Freyne met the court officer assigned to
  respondent and mentioned that he was covering the McKeen status conference. 
  The officer informed him that the conference might be in chambers, and
  Freyne replied that he wanted to be present wherever the matter was heard. 
  Freyne also encountered James Murdoch, McKeen's attorney, and inquired
  about the status conference, but Murdoch did not know what was happening
  with the conference.

       Returning to the bench after a lunch recess, respondent heard another
  matter scheduled for 2:00 p.m.  Respondent then told the court officer to
  bring the attorneys involved in the McKeen case to chambers, announced a
  recess, and left the bench.  Neither respondent nor the court officer
  announced that the McKeen status conference would be held in chambers.  The

 

  court officer directed the deputy state's attorneys to chambers and left
  the courtroom to find a stenographic court reporter.  Freyne, witnessing
  this activity, approached the court recorder and asked whether the McKeen
  matter would be taken up when respondent returned.  The recorder told
  Freyne that he did not know; the recorder then left the courtroom,
  encountered the court officer, and told the officer that Freyne was in the
  courtroom asking about the McKeen matter.

       As respondent and the state's attorneys had left the courtroom, Freyne
  decided to follow Murdoch, who had gone to the court clerk's office,
  reasoning that the conference could not start without the defendant's
  attorney.  Meanwhile, another court officer sought out Murdoch to escort
  him to chambers.  Freyne saw the officer take Murdoch through a locked door
  into the clerk's office, and followed through the door before it closed. 
  Seeing Murdoch and the officer leaving through the back of the office,
  Freyne asked a court employee if respondent's chambers were back where the
  pair had exited.  The employee said no, that respondent's chambers were on
  the second floor.  In fact, the court officer led Murdoch up a set of
  stairs to respondent's chambers.

       Freyne returned to the courtroom and gave the court recorder a note
  for respondent, asking to attend the status conference.  The recorder left
  the courtroom, and gave the note to the court officer, who was in the
  hallway outside of chambers.

       Murdoch testified that, before the conference went on the record, he
  told respondent that Freyne was following him and wanted to know what was
  happening in the case.  He stated that he told respondent that he was
  uncomfortable because he believed Freyne wanted to attend the conference,
  and that he felt someone should speak to Freyne.  Respondent replied that
  Freyne was not invited to the conference.  The state's attorneys present at
  the conference did not recall, or at least did not fully recall, this
  discussion about Freyne, but the Board found their lack of memory to be
  "less than credible."

       The conference then went on the record.  Although the delivery of the
  note is not specifically noted in the transcript, page seven of the
  transcript records the following exchange,

 

  reflecting the arrival of Mr. Freyne's note:

  THE COURT:  Well, Peter Freyne wants in here so bad he can't stand it. 
  I am not about to put settlement negotiations on the record for the
  newspapers, thank you.

  MR. MURDOCH:  You're the judge.

  THE COURT:  I won't carry this conversation any further, because I
  don't want to fool with him.  And I  don't -- this isn't the kind of thing
  we should be talking in public about.

  MR. MURDOCH:  I am sure Ms. Maguire and I will be inundated, and the only
  thing I can say is, the Judge will issue a decision shortly.

  MS. MAGUIRE:  Right.

  (A discussion was held off the record.)

  The conference ended almost immediately after this exchange.  Freyne was
  not admitted, nor was he told why he was not admitted.

       Respondent returned to the bench, and heard the next matter scheduled
  for that afternoon. When that case concluded, Freyne asked to address the
  court.  The following conversation took place:

  MR. FREYNE:  --may I ask the Court.  I believe that the Court Officer,
  Miss White, gave you a note of my request to sit in on the status
  conference on the McKeen case, which is why I came here today.  The Officer
  was aware before the hearing of my desire to attend the status conference. 
  I just would like to ask the Court why I was not admitted.

  COURT:  Well, the conference was just about over by the time I
  received your note.  We only had two or three minutes of wind up
  discussions, we made no rulings.  I made them apprised that my decision was
  imminent and I would have it at the end of the week.   I urged counsel to
  negotiate and I thought it would be a good time if they -- I knew they had
  discussions prior to the case beginning I thought they might resume those
  and I showed them a letter I got from Kirk Wool which is one of the reasons
  I had them in.  I wanted to show them that because Kirk Wool wrote me from
  the jail and discussions were just about over when your note came in and it
  was rather late to have you in there and there's nothing to report anyway.


       The Board found that respondent's statement to Freyne indicating that
  the conference was almost over by the time he received the note was
  factually true. Nonetheless, the Board found

 

  that the statement implied that respondent had no knowledge of Freyne's
  desire to attend the conference, when in fact respondent knew before the
  conference began that Freyne wanted to be present.  Based on this
  implication, the Board found by clear and convincing evidence that
  respondent's failure to acknowledge to Freyne that he was aware of Freyne's
  desire to attend the conference when it began was "deceptive, misleading
  and lacking in candor."  The Board concluded that respondent's comments
  "did not display utter sincerity, honesty and candor," and did not meet the
  "standards of integrity" required by the Canons of Judicial Conduct.

                                II.

       We begin by noting that in judicial conduct proceedings, this Court
  makes the only final and ultimate decision.  In re O'Dea, 159 Vt. 590, 595,
  622 A.2d 507, 511 (1993).  The findings and recommendations of the Board
  carry great weight, but are advisory, not binding.  Id.; In re Hill, 152
  Vt. 548, 556, 568 A.2d 361, 365 (1989).  Moreover, the Board's
  recommendation for sanction must be based on clear and convincing evidence. 
  Rules of Supreme Court for Disciplinary Control of Judges, Rule 9(3).

       The Board concluded that respondent violated Canons 1 and 2(A) of the
  Code of Judicial Conduct.  At the time of the relevant conduct, Canon 1
  provided:

  An independent and honorable judiciary is indispensable to justice in
  our society.  A judge should participate in establishing, maintaining, and
  enforcing, and should himself observe, high standards of conduct so that
  the integrity and independence of the judiciary may be preserved.  The
  provisions of the Code should be construed and applied to further that
  objective.(FN2)

   Canon 2(A) provided:

  A judge should respect and comply with the law and should conduct
  himself at all times in a manner that promotes public confidence in the
  integrity

 

  and impartiality of the judiciary.(FN3)


       The Board recognized, and we agree, that the Code of Judicial Conduct
  sets a standard of conduct higher than that required of other public
  officials.  Hill, 152 Vt. at 570, 568 A.2d  at 373.  The Code does require
  stringent "tests of behavior relating to integrity and propriety," but
  judges must be held to such standards to protect the integrity of the
  judiciary and retain public confidence in our judicial institutions. 
  O'Dea, 159 Vt. at 604, 622 A.2d  at 516 (quoting In re Douglas, 135 Vt. 585,
  592, 382 A.2d 215, 219 (1977).

       Nonetheless, we are unable to conclude that respondent's comments to
  Freyne concerning Freyne's exclusion from the status conference constitute
  a violation of either Canon 1 or Canon 2(A).  Although respondent's
  comments were factually truthful, and provided a full and accurate
  explanation of why Freyne could not attend the status conference, the Board
  recommends disciplinary sanctions based on an implication of dishonesty. 
  Specifically, the Board argues that respondent's statement that Freyne's
  note did not arrive until the conference was almost over "carrie[d] with it
  an unmistakable implication" that respondent did not know of Freyne's
  desire to attend the conference until the note arrived.

       We find troubling the Board's willingness in this case to recommend
  disciplinary sanctions based on this implication, particularly where
  misconduct must be proven by clear and convincing evidence.  This
  implication is not especially clear.  Examining what was implied, rather
  than what was actually said or done, may raise intractable problems of
  perception and interpretation.  Indeed, the Board appeared to recognize
  this problem when it acknowledged that respondent's view of the situation
  differed from Freyne's.  Under some circumstances, of course, an omission
  can be so misleading as to render a statement simply false, but
  respondent's comments do not approach that level of deception.

 

       In fact, we disagree with the Board that respondent's comments carried
  a misleading or deceptive implication.  Respondent's reply to Freyne
  indicating that his note did not arrive until the conference was over must
  be considered in the context of both Freyne's question and respondent's
  entire reply.  Although Freyne asked why he was not admitted, he first
  stated that he believed a court officer had delivered to respondent his
  note asking to be admitted.  Freyne raised the issue of the note, and
  respondent told him, truthfully, that the note had arrived late. Moreover,
  respondent also gave the reason that the status conference was closed,
  namely that respondent wanted to encourage settlement negotiations.  Freyne
  thus received an honest explanation of two issues: first, why his note
  received no response, and second, why the status conference was closed.

       We cannot agree with the Board that respondent was required to go
  further, and inform Freyne that he knew at the beginning of the conference
  that Freyne wanted to attend.  Freyne never asked that question, and the
  information was simply not pertinent.  The Board is troubled that from
  Freyne's point of view, there was nothing more he could do to communicate
  his desire to attend the conference.  That may be true, but again, is not
  relevant.  Freyne had difficulty finding the conference and informing
  respondent that he wanted to attend because the conference was closed to
  the public.  As the dissenting member of the Board emphasized, Freyne, as a
  journalist, was sensitive to the exclusion of the press from the
  conference.  The point at which respondent learned of Freyne's desire to
  attend the conference, however, was not relevant to his decision to hold
  the conference in chambers.

       The crux of the case against respondent is the meaning of the
  statements made to Freyne regarding the McKeen status conference.  As
  respondent's comments were not misleading or deceptive, they could not
  undermine judicial integrity and independence, nor threaten public
  confidence in the judiciary.  We conclude, therefore, that respondent did
  not violate either Canon 1 or Canon 2(A) of the Code of the Judicial
  Conduct.

 

     The complaint against Judge Alden T. Bryan is dismissed.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice






  ------------------------------------------------------------------------
                                  Footnotes


FN1.  The Board concluded that respondent had not engaged in
  misconduct by holding a private chambers conference, that respondent had
  not directed the manner of bringing counsel to chambers, and that in fact
  counsel was not escorted to the conference in any particularly unusual
  fashion.


FN2.  Canon 1 has since been amended to remove gender-specific references.  
  A.O. 10, Canon 1.


FN3.  Canon 2(A) has since been amended to make it gender-neutral and
  mandatory.  A.O. 10, Canon 2(A).