In re Kroger
Annotate this Case
In re Kroger (96-495); 167 Vt. 1; 702 A.2d 64
[Filed 25-Jul-1997]
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. 96-495
In re Honorable Althea P. Kroger Supreme Court
Original Jurisdiction from
Judicial Conduct Board
March Term, 1997
David A. Otterman of Otterman and Allen, P.C., Barre, for Judicial Conduct
Board
James W. Runcie of Ouimette & Runcie, Vergennes, for respondent
PRESENT:Johnson, J., and Hudson, DiMauro and Skoglund, D. JJ, and
Dier, Supr. J. (Ret.), Specially Assigned
PER CURIAM. Respondent is charged with violating Canons 1 and 2A of
the Code of Judicial Conduct. A four-member majority of the Judicial
Conduct Board found that certain public statements made by respondent were
false, deceptive, and/or misleading, and concluded that respondent should
be disciplined for violating the Code. The Board could not recommend a
sanction because five members did not concur, as required by our rules.
Rules of Supreme Court for Disciplinary Control of Judges, Rule 6(17).
Respondent argues that the Board's findings are erroneous, and urges this
Court to dismiss the charges against her. We conclude that some of the
statements made by respondent violated the Code and accordingly sanction
respondent by suspending her from serving in a judicial capacity for one
year.
I. Factual Background
Respondent was elected as an assistant judge for Chittenden County in
November 1994 and took office in February 1995. Shortly after she took
office, she and incumbent Assistant Judge Elizabeth Gretkowski became
embroiled in conflicts over the administration of county business. These
disputes were reported by the press, and respondent felt that the press
coverage
was biased against her. In August 1995, respondent decided to express her
views on the management of the county budget by writing an article in the
Burlington Free Press. The article, published in the newspaper's "It's My
Turn" column, discussed a number of financial issues and also mentioned
respondent's concern that she was not permitted to audiotape assistant
judge meetings or to take notes at those meetings. Chittenden County Clerk
Diane Lavallee drafted a response to this article, which was later
published under Judge Gretkowski's name.
At the same time that respondent sent her article to the Free Press,
she filed a complaint against Judge Gretkowski with the Judicial Conduct
Board. Respondent attached a copy of the article to the complaint. A short
time later, respondent sent another letter to the Board, along with a
memorandum entitled "Documentation in Support of Complaint Against
Assistant Judge Elizabeth Gretkowski." In the memorandum, respondent
alleged that Judge Gretkowski had violated various provisions of the Code
of Judicial Conduct by failing to comply with the Open Meeting Law;
allocating capital construction funds in a manner prohibited by statute;
failing to respond to the judicial and administrative problems in
Chittenden County, specifically by refusing to enter mediation; and acting
discourteously and in an undignified manner to litigants, witnesses,
lawyers, and court personnel.
The Vermont Association of County Judges (VACJ) became increasingly
concerned about this unpleasant and very public dispute between respondent
and Judge Gretkowski. The organization decided to hold hearings about the
allegations in the two newspaper articles and about the working
relationship between the two judges. Although VACJ has no statutory or
other authority to hold such hearings, both respondent and Gretkowski
elected to participate. The procedural rules for the hearings, held in
October 1995, allowed each judge to testify, call witnesses, and present
documentary evidence, but did not permit cross-examination. The witnesses
were sworn and a record was made of their testimony. The present charges
against
respondent are based on statements that she made while testifying at the
VACJ hearings.(FN1)
II. Legal Standards
In a judicial conduct proceeding, this Court makes the only final and
ultimate decision. In re Bryan, ___ Vt. ___, ___, 674 A.2d 793, 796 (1996).
The findings made by the Board in this matter "carry great weight, but are
advisory, not binding." Id. We are obliged to review and evaluate the
evidence independently to determine if the charges against respondent are
supported by clear and convincing evidence. See id. at ____, 674 A.2d at
797 (misconduct must be proven by clear and convincing evidence).
Respondent maintains that the complaint against her should be
dismissed because only four members of the Board endorsed the findings.
Our rules do not support this argument. Although five members of the Board
must concur in a recommendation for sanction, the rules
do not require five members to concur in the findings. Rules of Supreme
Court for Disciplinary Control of Judges, Rule 6(17). Moreover, the Rules
specifically require the Board to transmit its findings to this Court
without a recommendation if five members cannot agree on a recommended
sanction. Id. As any findings made by the Board are merely advisory, we
see no reason to require more than a simple majority of Board members to
endorse the findings. That several Board members dissented from certain
critical findings may, of course, be a factor that the Court considers in
evaluating whether the charges against respondent have been proven by clear
and convincing evidence.
The ultimate question in this matter is whether respondent violated
the Code of Judicial Conduct. The complaint alleges that respondent
violated Canons 1 and 2(A) by making "false, deceptive and misleading
statements under oath" during the VACJ hearings. Canon 1 states:
An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing,
maintaining and enforcing high standards of conduct, and shall
personally observe those standards so that the integrity and
independence of the judiciary will be preserved. The provisions of
this Code are to be construed and applied to further that objective.
A.O. 10, Canon 1 (emphasis added). Canon 2(A) provides that "[a] judge
shall respect and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of
the judiciary." A.O. 10, Canon 2(A) (emphasis added). Both of these
canons establish mandatory standards, the violation of which may lead to
disciplinary proceedings. See A.O. 10, Preamble to the Code of Judicial
Conduct, (2) ("When the text uses `shall' or `shall not,' it is intended to
impose binding obligations the violation of which can result in
disciplinary action.")
Respondent maintains that she may be disciplined for violating these
canons only if she intentionally made false or deceptive statements. She
argues that the Board erred in concluding that her subjective intent in
making the statements was irrelevant. Special counsel points out that
Canons 1 and 2(A) do not explicitly include a scienter requirement, and
argues that it would be
inappropriate to interpret these mandatory standards of behavior in light
of an individual judge's subjective intent. Both the Board in its decision
and Special Counsel maintain that a judge may be disciplined for misconduct
even where the judge acted in good faith without intent to violate the
Code.
These arguments confuse two distinct issues. As a general matter, a
judge may be sanctioned for conduct that the judge sincerely believed to be
appropriate and correct. See, e.g., In re Douglas, 135 Vt. 585, 593, 382 A.2d 215, 219(1977) (good faith not bar to finding of breach of judicial
duty); Patterson v. Council on Probate Judicial Conduct, 577 A.2d 701, 708
(Conn. 1990) (scienter not essential to find ethical violation); In re
Neely, 364 S.E.2d 250, 255 (W. Va. 1987) (court convinced that judge
considered his actions legal, moral, and proper in every respect;
nonetheless, judge's improper use of public employee violated Canon 2A and
judge was subject to sanction). The Code imposes high standards of
behavior on judges, standards that are necessary because of the
"extraordinary responsibility of judicial office." Douglas, 135 Vt. at 592,
382 A.2d at 219. When a judge's behavior transgresses those standards, the
judge may be subject to sanction despite the absence of bad faith or evil
intent.
At issue here, however, is whether respondent should be disciplined
for making false, misleading and deceptive statements. Although the
standard is admittedly high, judges do not violate the Code when they
unintentionally (FN2) make false or misleading statements -- that is, when
they make mistakes. See In re Davey, 645 So. 2d 398, 406-07 (Fla. 1994)
(to constitute judicial misconduct, lack of candor must be knowing and
willful; giving inaccurate or false statement
under oath not misconduct unless when making statement judge did not
believe it to be true); In re Richter, 409 N.Y.S.2d 1013, 1016-17 (N.Y. Ct.
Jud. 1977) (charge that judge gave false testimony to judicial conduct
commission not proven where statements were not intentionally or willfully
false; mistake in testimony does not constitute false swearing). The
question before us, therefore, is whether respondent knowingly made false,
deceptive and misleading statements under oath (FN3) at the VACJ hearings.
Respondent does not dispute that such conduct, if proven, is an appropriate
basis for discipline. See, e.g., In re Fowler, 602 So. 2d 510, 511 (Fla.
1992) (judge convicted of giving false statements to police violated code
of judicial conduct; lying is serious offense that affects integrity of
judicial system as well as public confidence in both judicial process and
particular judge); In re Perry, 385 N.Y.S.2d 589, 590 (App. Div. 1976)
(giving of false testimony by member of judiciary is inexcusable, as
judicial officers have responsibility to seek out truth and evaluate
credibility of others).
III. Specific Allegations
Having established the legal standards that guide our decision, we now
turn to our evaluation of the statements made by respondent at the VACJ
hearings. We must determine whether some or all of the challenged
statements were false or deceptive.(FN4) The statements can
be divided into two groups: the first group consists of statements in which
respondent denied that she had accused anyone of wrongdoing or
mismanagement, and the second consists of statements in which she denied
secretly taping meetings or conversations. We consider each group of
statements in turn.
A.
A hotly contested subject at the VACJ hearings was Judge Gretkowski's
claim that respondent was "lying to the public in the media, particularly
with respect to her allegations of county wrongdoing." In her testimony,
respondent denied that she had made allegations of "wrongdoing" or
"mismanagement," arguing that those words were used by the press and by
Judge Gretkowski, but not by her. The Board found that several of the
statements she made in this context were false or deceptive. Respondent
argues that the Board took the statements out of context. She also claims
that the challenged statements were expressions of her opinion and
therefore should not be the basis for discipline.
As a general matter, we agree with respondent that the Board did not
fully consider the context of the statements. For example, the Board found
the following two similar statements to be misleading or deceptive:
I have never alleged wrongdoing or mismanagement.
. . . .
I have never publicly charged or privately charged mismanagement
at the court.
Respondent made both of these statements as she attempted to explain that
she personally had never used the words "wrongdoing" or "mismanagement."
The first statement, which comes early in respondent's testimony, appears
in the following context:
I want you to know that nowhere in press coverage, nowhere . . .
have I ever used the words wrongdoing or mismanagement. The
words are there, but I am not the one saying them. I have never
alleged wrongdoing or mismanagement.
We do not agree with the Board that this statement amounts to a "blanket
denial that [respondent had] alleged conduct amounting to wrongdoing or
mismanagement in her `It's My Turn' article." The context of the testimony
makes plain that respondent was merely denying that she had used those
specific words in her article or other contacts with the press. Similarly,
the second statement is part of respondent's lengthy discussion of various
newspaper articles and editorials. She was again trying to explain that she
had never used the word "mismanagement," a fact that the Board accepted as
true. Given this context, and keeping in mind that misconduct must be
proven by clear and convincing evidence, we cannot find that these
statements were deceptive.
Next, the Board took issue with respondent's response to a question
posed by her attorney during a discussion of certain county funds that
respondent had wanted moved to an account bearing a higher rate of
interest. After a review of the dispute over the funds, the following
exchange took place:
[Attorney]: Were you charging anybody with corruption or doing
something wrong?
[Respondent]: Of course not. I have never charged anybody with
wrongdoing.
The question and answer can fairly be read as referring to the specific
dispute over the interest rate for the county funds, and in that context,
respondent's answer was true. Although respondent had argued that the
funds should be placed in a different account as a policy matter, such a
policy dispute cannot be equated with an allegation of wrongdoing or
corruption. We do not accept the Board's finding that this statement was
false, deceptive, and misleading.
At another point in the hearings, respondent discussed her problem
with the use of capital construction or "fire fund" monies in the county
budget. She did not approve of the transfer of these funds for other uses,
but noted that "there is no evidence to indicate that this transfer of
monies was secret or under the table." Shortly thereafter, she stated:
At no time have I alleged that there is secrecy or lack of
accountability. . . . In no way did the article meant [sic] to imply
or accuse. I put down the facts that state law prohibits.
The Board found the reference to "lack of accountability" to be deceptive
and misleading, apparently because of respondent's assertion in her "It's
My Turn" article that assistant judges have "unchecked power to spend." As
we consider this statement in the context of the fire fund discussion, we
do not agree with the Board's finding. Respondent's concern in this matter
was that use of the funds violated state law, not that the transaction was
hidden or secret. Nor do we agree with the Board that respondent's denial
that the article "meant to imply or accuse" was misleading. The Board
supports its finding by stating that "[respondent] meant to imply [in the
It's My Turn article] that a violation of the law had taken place." But
respondent explains the statement as a continuation of her earlier point:
that she had not suggested or implied that the use of the fire fund monies
was secret or corrupt. As the statement is incomplete and grammatically
unclear, it is open to multiple interpretations; we are unable to find by
clear and convincing evidence that the Board's interpretation is the
correct one.
Near the end of the hearings, in response to a question from a member
of the "investigating committee," respondent returned again to discussing
the newspaper article and the media's misuse of the words "wrongdoing" and
"corruption." She concluded:
[T]here is no question, those words permeate the press. But I
never said them. There was no intention on my part in writing
that article to imply any wrongdoing at all.
The Board found that this statement was false, deceptive, and misleading.
The Board relied on respondent's use of the article to support a Judicial
Conduct Board complaint against Judge Gretkowski as evidence that
respondent intended to imply wrongdoing of some sort.
Finding that respondent's statement was knowingly false or deceptive
is a difficult task. To do so, we would have to find that respondent
intended her article to imply wrongdoing, despite her protests to the
contrary. As we have elsewhere noted, imposing disciplinary sanctions on
the basis of an implication "may raise intractable problems of perception
and
interpretation." Bryan, ____ Vt. at ___, 674 A.2d at 797.
The problem we identified in Bryan is far more pronounced in this
context. Respondent is not charged with concealing or lying about specific
facts, but with lying about what she meant to say when she expressed her
opinion in a newspaper editorial. A half-dozen different readers of the
article might have a half-dozen different interpretations of its meaning,
but who among them could say conclusively that a particular interpretation
is the one respondent intended? None of us is privy to respondent's inner
thoughts as she drafted the article. Absent this psychic connection, we
are hard-pressed to find that respondent lied when she explained what she
meant to say in the article. Cf. In re Kiley, 546 N.E.2d 916, 918 (N.Y.
1989) (court unable to conclude that judge dissembled at disciplinary
hearing when he gave his subjective intentions for engaging in particular
conduct at issue).
We note, moreover, that respondent has given a plausible explanation
for her statement. She maintains that she defines wrongdoing as synonymous
with corruption, and uses it to refer to acts done for personal gain or
with evil intent. Although, as she expressed in the article, she believed
that certain county practices were unwise and possibly illegal, she did not
believe that those practices were motivated by evil or corrupt intent.
Respondent's personal definition of wrongdoing has support. The Oxford
dictionary lists a number of definitions for wrongdoing: "[t]ransgression
of or offense against the moral or established law; reprehensible action or
behavior; evil-doing, misdoing; misconduct." XX Oxford English Dictionary
654 (2d ed. 1989). Thus, wrongdoing may refer to simple misconduct or a
violation of law, but it may also carry the stronger negative connotation
of immorality or evil upon which respondent relies. With respect to the
Judicial Conduct Board complaint, she states that she felt obligated to
report possible violations of the Code by Judge Gretkowski, but did not
believe that Judge Gretkowski had acted corruptly or with evil intent. As
we have previously discussed, judges may violate the Code despite their
subjective good faith. In light of respondent's explanation, and the
difficulty inherent in determining respondent's subjective intentions, we
are unable to find by
clear and convincing evidence that this statement was false or deceptive.
B. Secret Taping
We now turn to respondent's statements denying that she secretly taped
conversations. Fortunately, resolution of this matter is not complicated by
the same problems of interpretation and subjective intentions that we
confronted earlier. One of the allegations considered at the VACJ hearings
was Judge Gretkowski's claim that respondent secretly taped conversations
and meetings. Although she admitted one instance in which she secretly
taped a meeting, respondent otherwise flatly denied the allegation. During
her statements and testimony at the VACJ hearings, respondent repeatedly
defended herself against this charge:
Except for one incident which you will hear about tomorrow I
have never, ever taped an individual without letting them know
first that I have taped.
. . . .
[Attorney]: Judge, at any other time since you have been an Assistant
Judge have you secretly taped any meetings?
[Respondent]: Never.
. . . .
And I want to tell you that in no way, shape or form did I ever,
ever alter any tape; in the same way I am telling you I have never
taped a conversation where I didn't think the person knew that I
was taping.
Ironically, respondent herself produced the evidence that suggests
that she did, in fact, secretly tape a conversation. At the VACJ hearing,
respondent submitted a number of transcripts of meetings and conversations
that she had taped, presumably because the discussions related to the
various allegations covered at the hearings. One transcript recorded a
conversation between respondent and Probate Judge Susan Fowler. Judge
Fowler testified before the Board that she was not aware that this
conversation had been taped. Based on this testimony and the content of
the tape recording, the Board found the first of the above statements to be
false, deceptive, and misleading. The Board did not make such a finding
with respect to the other two
statements.(FN5)
Obviously, respondent does not dispute that she taped the
conversation, nor does she dispute that she never orally told Judge Fowler
that their conversation was being recorded. She argues, however, that her
tape recorder was on her desk in plain view during the meeting, and that
she reasonably assumed that Judge Fowler knew that the tape was running.
She also emphasizes that she voluntarily produced the transcript of the
meeting at the VACJ hearings, where she was defending herself against the
charge that she taped people secretly -- an action that makes little sense
unless she thought that Judge Fowler was aware of the taping.
Overall, however, the evidence leads us to conclude that respondent
secretly taped the meeting. The tape begins while respondent and Judge
Fowler are walking upstairs together, although respondent's transcription
does not reflect this part of the conversation. Respondent explains this
by saying that she must have accidentally turned on the tape recorder,
which was in her pocket, and that she did not realize what had happened
until she later listened to the tape. This claim is not credible. If
respondent did not know the recorder was already running, she would have
had to turn the recorder on -- or attempt to do so -- when she and Judge
Fowler reached the office. At that point she would have realized that it
was already running.
Respondent's claim is also at odds with Judge Fowler's testimony that
she did not see a tape recorder during the meeting. Because of the
conflicting testimony, we must weigh the credibility of the witnesses -- a
task made more difficult by the fact that this Court did not hear the
witnesses firsthand. The Board, which was in the best position to evaluate
the witnesses, found Judge Fowler's testimony to be credible. We agree.
Unlike respondent, Judge Fowler had no stake in these proceedings and thus
no motive for dishonesty. Moreover, the tangible
evidence -- that is, the contents of the tape -- supports Judge Fowler's
account. First, neither respondent nor Judge Fowler mention the tape
recorder during the conversation. We consider it highly unlikely that
Judge Fowler would have noticed respondent remove the tape recorder from
her pocket and set it on the desk, and make no comment. Second, Judge
Fowler spoke rather freely during the conversation, discussing the
sensitive topic of possible legal action against respondent. Again, we
think it unlikely that Judge Fowler would have spoken in this way had she
known the conversation was being recorded. For these reasons, we accept as
true Judge Fowler's testimony that she did not see a tape recorder during
the conversation.
According to Judge Fowler, upon entering the office she looked around
the room and on respondent's desk for a tape recorder, because she "had
been advised [that respondent] taped meetings." She did not see one,
although she did recall that the room was not unpacked and quite cluttered.
It is nearly impossible to square this testimony with respondent's claim
that she removed the tape recorder from her pocket and placed it on her
desk. We would have to believe that, as the two women continued to
converse with no noticeable break in the conversation, respondent removed
the tape recorder from her pocket, fiddled with it, and set it on her desk
-- yet Judge Fowler observed nothing.
Judge Fowler also testified that the last part of the conversation
took place in the hallway, not in the office. According to Judge Fowler,
after respondent signed some vouchers for computers for the probate court,
Fowler left the office and began walking down the hallway to the elevator.
Respondent then came out of her office and down the hall, seeking to ask
Judge Fowler a few more questions about possible legal action against
respondent. Judge Fowler testified that at this point, respondent stood
very close to her, and appeared intense, anxious, and agitated. She also
testified that no tape recorder was visible while they spoke in the
hallway. According to respondent, this final exchange occurred in her
office, not in the hallway. As evidence, she points to the brief pause in
the conversation, arguing that Judge Fowler would not have had time to walk
from the office to the elevator during those few seconds. Regardless of
of how far down the hallway Judge Fowler walked, however, the tape supports
Fowler's testimony that she left the office and respondent followed and
called after her.
Standing alone, each of respondent's explanations -- that the early
part of the conversation was taped by accident, that she had the tape
recorder in plain view on her desk, and that Judge Fowler was mistaken
about the conversation in front of the elevator -- might be plausible.
Strung together, however, the overall story is simply not credible. We are
asked to believe that after respondent met Judge Fowler on the way
upstairs, the tape recorder in her pocket accidentally turned on; that upon
entering the office, respondent took out the tape recorder and attempted to
turn it on, then set it on the desk without being observed by Judge Fowler,
even though Judge Fowler was looking for a tape recorder; and that Judge
Fowler's detailed and clear recollection of the conversation in the hallway
was entirely mistaken. The inescapable conclusion is that respondent taped
the conversation between Judge Fowler and herself without letting Judge
Fowler know, either by telling her or by placing the tape recorder in plain
view.
We therefore find that respondent knowingly made false statements at
the VACJ hearings. All three statements quoted above are inconsistent with
respondent's surreptitious taping of her meeting with Judge Fowler. Unlike
the Board, we see no meaningful differences among the statements. Although
phrased differently, each statement was essentially a denial of the
allegation that respondent had taped other people without their knowledge.
Based on the facts found above, respondent must have known that these
denials were false. Cf. In re Carver, 531 N.W.2d 62, 68 (Wis. 1995) (judge
disciplined for denying that defendant had contacted court or asked for
special treatment, where evidence showed that defendant had written to
judge and asked for his assistance). We agree with the Board that making
these false statements violated Canons 1 and 2A of the Code of Judicial
Conduct.
IV. Sanction
Our final task is to determine the appropriate sanction for
respondent's conduct. The
political context and highly publicized nature of these charges cannot
distract us from the seriousness of the underlying conduct: respondent
participated as a witness in a public hearing, took an oath to tell the
truth, and knowingly failed to do so. Regardless of the circumstances,
such conduct by a member of the judiciary is inexcusable. When a judicial
officer is dishonest, public confidence in the judiciary is threatened.
See Fowler, 602 So. 2d at 511 (judge's dishonesty affects integrity of
judicial system and public confidence in both judicial process and
particular judge). Although this a single instance of misconduct, it is
nonetheless a serious matter affecting the integrity of the judiciary. See
In re Kilburn, 157 Vt. 456, 458-59, 599 A.2d 1377, 1378 (1991) (where
honesty or integrity are at issue, single action could result in finding of
judicial misconduct); Perry, 385 N.Y.S.2d at 590 (ordinarily, isolated
incidence of misconduct would be balanced against prior unblemished record,
but giving of false testimony by member of judiciary is inexcusable).
We have looked to cases from this and other jurisdictions for guidance
in disciplining respondent, but have found little aid. The sanctions
imposed for this type of conduct range from reprimands, see Fowler, 602 So. 2d at 511 (judge pled guilty to offense of furnishing false information to
police officer; public reprimand); In re Brennan, 447 N.W.2d 712, 713-14
(Mich. 1989) (law review article published by judge contained substantial
plagiarized material; public censure), to suspensions of various length,
see Strickland v. Judicial Inquiry Comm'n, 388 So. 2d 1202, 1202-03 (Ala.
1980) (judge filed several false expense reports; six-month suspension);
Carver, 531 N.W.2d at 70 (judge failed to disqualify himself from criminal
case against defendant with whom he was personally acquainted and falsely
stated from bench that defendant had not contacted him to ask for special
treatment; fifteen-day suspension); In re Dreyfus, 513 N.W.2d 604, 605
(Wis. 1994) (judge filed false case status reports and misrepresented
status of cases to deputy chief judge and to judicial investigator;
fifteen-day suspension), to removal from the bench. See In re Mazzei, 618 N.E.2d 123, 126 (N.Y. 1993) (judge submitted two fraudulent credit card
applications to bank; removed from bench); Perry, 385 N.Y.S.2d at 590
(judge gave false testimony under oath to judicial conduct commission;
removed from bench); In re Ritchie, 870 P.2d 967, 968 (Wash. 1994) (judge
repeatedly misrepresented purpose of travel as related to judicial
activities and sought reimbursement for expenses; removed from bench).
Although some cases discuss mitigating factors, see, e.g., Fowler, 602 So. 2d at 511; Dreyfus, 513 N.W.2d at 607, none fully explain the choice of one
form of discipline over another.
In the absence of clear standards, we rely primarily on our experience
and judgment to evaluate the misconduct and reach a decision as to
sanction. Because of the seriousness of the offense, we do not believe
that reprimanding respondent for her conduct would be sufficient to repair
the damage to the reputation of the judiciary. See In re O'Dea, 159 Vt.
590, 606, 622 A.2d 507, 517 (1993) (purpose of judicial discipline is to
enhance public confidence in the integrity and fairness of the justice
system). Nor do we believe that respondent's behavior warrants the
ultimate sanction of removal. We conclude that respondent should be
reprimanded for this conduct and suspended from serving in a judicial
capacity for a period of one year.2
Assistant Judge Althea Kroger is hereby publicly reprimanded for the
violations of the Code of Judicial Conduct found herein. She is further
suspended from serving in a judicial capacity for a period of one year from
the date of this order.
BY THE COURT:
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Paul F. Hudson, District Judge
Specially Assigned
_______________________________________
Theresa S. DiMauro, District Judge
Specially Assigned
_______________________________________
Marilyn S. Skoglund, District Judge
Specially Assigned
_______________________________________
Hilton H. Dier, Jr., Superior Judge (Ret.)
Specially Assigned
--------------------------------------------------------------------------
Footnotes
FN1. To the extent the "allegations" addressed at the VACJ hearings
amounted to charges of judicial misconduct, evaluation of the charges was
the exclusive province of the Judicial Conduct Board, as established by the
rules of this Court. VACJ has no authority to hear such charges or to
discipline assistant judges, and should not have acted independently of our
procedures for investigating judicial misconduct. As best we can
determine, the hearings served no constructive purpose and merely provided
the two judges with another public forum in which to air their disputes.
We share the concerns of one of the dissenting Board members that
participation in these unauthorized public hearings, and particularly using
the hearings to raise questions about the integrity of a fellow judge, may
have violated the Code of Judicial Conduct. See A.O. 10, Canon 4(A)(2) ("A
judge shall conduct all of the judge's extra-judicial activities so that
they do not . . . demean the judicial office."); id. Canon 4(C)(1) (judge
"shall not appear at a public hearing before . . . an executive or
legislative body or official except on matters concerning the law, the
legal system or the administration of justice or except when acting pro se
in a matter involving the judge or the judge's interests.").
Our conclusion that these hearings should not have taken place is
underscored by these judicial conduct proceedings against respondent. The
peculiar circumstances in which respondent made these statements prompted
sharp disagreement among the members of the Judicial Conduct Board.
Although four members of the Board agreed that respondent had made false,
deceptive, and misleading statements at the hearings, two members wrote
dissents and a third dissented without opinion. The dissenters emphasized
the political nature of both the dispute between the judges and the
comments made at the hearings. One suggested, with some merit, that the
judicial conduct proceeding was being misused to break a political deadlock
between two elected officials.
FN2. This does not mean that a judge may always escape discipline by
claiming that he or she did not intend to deceive. Intent can, of course,
be inferred from the evidence. For example, if the evidence shows that a
judge had personal knowledge of facts contrary to the judge's statement,
the judge's intent to deceive may be inferred. See, e.g., In re Carver,
531 N.W.2d 62, 68 (Wis. 1995) (judge disciplined for denying that defendant
had contacted court or asked for special treatment, when in fact defendant
had written to judge and asked for his assistance; judge's claim that he
had forgotten was unreasonable given that he had received two letters from
defendant one day earlier).
FN3. Respondent maintains that the oath administered at the VACJ
hearings had no legal significance, because it was not an oath given at a
"proceeding in a court of justice" or an oath "required by law." 13 V.S.A.
ยงยง 2901, 2904 (establishing criminal penalties for perjury and false
swearing). She does not argue, however, that the absence of a legally
valid oath immunizes her testimony from sanction under the Code of Judicial
Conduct. In our view, what is relevant to this proceeding is that, in a
hearing open to the public, respondent took an oath to tell the truth.
Under those circumstances, regardless of the legal significance of the
oath, knowingly making false or deceptive statements would not comport with
the standards of judicial behavior imposed by Canons 1 and 2(A).
FN4. For purposes of this opinion, we make no distinction between
"deceptive" statements and "misleading" statements. The Board did make a
distinction, finding certain statements to be misleading but not deceptive,
but did not explain the difference. Although their definitions are not
identical, see, e.g., IV Oxford English Dictionary 328 (2d ed. 1989); IX
id. 873, the words may be used as synonyms. See American Heritage
Illustrated Encyclopedic Dictionary 443, 444 (1987) (listing "mislead" as
synonym for "deceive"; giving "misleading" as one definition of
"deceptive"). To the extent that "deceptive" may have a stronger
connotation of intent, see id. at 444 ("deceptive" may mean "intended . . .
to deceive"), that distinction is irrelevant here, for the reasons
explained in the text.
FN5. Respondent argues that the Board's finding that the first
statement was false and deceptive should be disregarded because it is
inconsistent with the Board's evaluation of the other two statements. It
would have been helpful had the Board explained why it viewed the first
statement differently from the others. In any event, we have reviewed the
evidence independently and make our own findings in this matter.
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