In re Assistant Judge Steady

ENTRY_ORDER.93-223; 161 Vt. 636; 641 A.2d 117

[Filed 30-Mar-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-223

                              MARCH TERM, 1994


 In re Assistant Judge             }          APPEALED FROM:
   Bernard Steady                  }
                                   }
                                   }          Judicial Conduct Board
                                   }
                                   }
                                   }
                                   }          DOCKET NO. 91-127


              In the above entitled cause the Clerk will enter:

      In October 1990, then Assistant Judge Bernard Steady purchased a paid
 political advertisement, published in a Grand Isle newspaper, supporting
 various candidates for national, statewide, and local offices.  On January
 1, 1991, Judge Steady left the bench, having previously chosen not to run
 for reelection.  In April 1991, a judicial conduct complaint was filed
 against him, and the judicial conduct board (JCB) subsequently found that
 placing the ad violated Canon 7A(1)(b) of the code of judicial conduct,
 which states that a judge may not "publicly endorse a candidate for public
 office."  The board divided on the appropriate sanction and made no recom-
 mendation on that issue, but forwarded its final disposition report for
 action by this Court.  Rules of Supreme Court for Disciplinary Control of
 Judges, Rule 11(1).

                               I. Jurisdiction

      A preliminary issue is whether this Court has jurisdiction to
 discipline Judge Steady for conduct committed during his judicial tenure if
 no complaint was filed against him until after he left the bench.  In In re
 Wheel, 148 Vt. 632, 632-33, 533 A.2d 1194, ____ (1987) (mem.), this Court
 stated that "jurisdiction for purposes of judicial discipline attaches when
 a complaint is filed during judicial tenure relating to acts done as a
 judicial officer, and persists until ousted by some affirmative legal
 requirement."  (Emphasis added.)  The quoted portion of Wheel, however, is
 dicta from a brief entry order and does not govern this case.  Jane Wheel
 was a sitting judge when the judicial conduct complaint was filed against
 her; the sole issue was whether her retirement divested this Court of
 jurisdiction over that complaint.  The Court did not need to decide what
 would have happened if no complaint had been filed during her tenure.  The
 jurisdictional issue raised here is, therefore, one of first impression.

 

      This Court's disciplinary power over judges is broad, commensurate with
 its status as a constitutional obligation.  In re O'Dea, ___ Vt. ___, ___,
 622 A.2d 507, 517 (1993); see Vermont Constitution, Ch. II, { 30 (Court has
 "disciplinary authority concerning all judicial officers").  The only rele-
 vant statute amplifying the constitutional provision, 4 V.S.A. { 3, places
 "disciplinary control of all judicial officers of the state" in this Court
 and authorizes us to issue rules for exercising that control.  Rule 3(1) of
 the Supreme Court Rules for the Discipline of Judges, enacted pursuant to
 that statute, establishes that the JCB's and this Court's disciplinary
 jurisdiction over "[a]ny duly elected or appointed judge."  Nothing in the
 Constitution, the statute, or the rule limits the disciplinary power over
 judicial officers to those who are currently serving.  Once a judge is duly
 elected or appointed, the Court is responsible for ensuring that he or she
 meets the high ethical standards of the judicial profession.

      A primary purpose of judicial discipline is "to preserve and enhance
 public confidence in the integrity and fairness of the justice system."  Id.
 at ___, 622 A.2d  at 515.  These goals cannot be accomplished using either of
 the methods proposed by the dissent -- disciplining ex-judges as attorneys
 through the Professional Conduct Board or disciplining ex-judges through the
 JCB only if they return to office.  Applying this rule, any nonattorney
 judge can escape discipline for a code violation, no matter how serious, by
 resigning.  Even after leaving office, an ex-judge retains the status of the
 judicial office on his resume.  The public is entitled to know if the record
 is tarnished.

      We agree with Justice Billings' observation that the judicial conduct
 rules never intended nonattorney judges to avoid discipline by resigning and
 "that to interpret the rules in accordance with that view would emasculate
 them and thwart the Court's duty to preserve and protect the integrity of
 the judiciary."  In re Fienberg, 139 Vt. 511, 513, 430 A.2d 1282, ____
 (1981) (Billings, J., dissenting); see also West Virginia Judicial Hearing
 Board v. Romanello, 336 S.E.2d 540, 541 (W. Va. 1985) (court "would be ill-
 advised to establish a precedent that would allow a judge to escape
 punishment for [ethics violations] by resigning from office"); In re
 Sheppard, 815 S.W.2d 917, 920 (Tex. Spec. Ct. Rev. 1991) (judicial conduct
 board retains jurisdiction over retired or former judges who have not
 renounced their intent to serve on bench in future).

                                 II. Merits

      The Board based its decision solely on stipulated facts that Judge
 Steady had placed the ad previously described.  That Judge Steady violated
 the code is clear.  Canon 7 needs no interpretation.  By its explicit terms
 -- a judge may not "publicly endorse a candidate for public office" -- it
 forbids the very behavior Judge Steady engaged in.  Although Judge Steady is
 not a lawyer, he is nonetheless subject to the judicial conduct code.  Igno-
 rance does not excuse a violation of ethical standards; even lay judges have
 an obligation to learn and follow the code.  In re Vonderheide, 532 N.E.2d 1252, 1254, ___ N.Y.S.2d ___, ___ (1988).

 
                               III. Sanction

      JCB made no recommendation on sanctions because it was unable to
 achieve the requisite five votes.  See Rule 6(17) of Rules of Supreme Court
 for Disciplinary Control of Judges (JCB recommendation is valid only if con-
 curred in by five members; if Board able to obtain concurrence, it "shall
 transmit its findings to the Court without recommendation").  This Court is
 not bound by board recommendations on sanction.  See O'Dea, ___ Vt. at ___,
 622 A.2d  at 511 (JCB recommendations "carry great weight but are not
 binding"; this Court makes the "only final and ultimate decision" in con-
 ducting proceeding).

      The stipulated facts concerning Judge Steady's placing the ad are the
 only record to rely on as the basis for sanctions.  He did not appear at the
 hearing or present any written statements about his conduct.  JCB heard no
 evidence of any aggravating or mitigating circumstances.

      Reprimand is the appropriate sanction for violating Canon 7.  See In re
 Pratt, 508 So. 2d 8, 9-10 (Fla. 1987), and In re Key, 508 So. 2d 329, 329-30
 (Fla. 1987) (judges publicly reprimanded for participating in a campaign
 mailing that gave the appearance that they endorsed each other and other
 judges running in same election; future candidates for judgeship forewarned
 that more severe disciplinary measures may be imposed for such violations);
 Office of Disciplinary Counsel v. Capers, 472 N.E.2d 1073, 1074 (Ohio 1984)
 (judge given public reprimand for mailing postcards and letters in support
 of another candidate for judge to potential voters); In re Turner, 573 So. 2d 1, 1-2 (Fla. 1990) (judge publicly reprimanded for soliciting support
 from local attorneys on behalf of his son who was running for judge; judge
 disciplined even though he was on verge of retiring from bench when he
 committed violation).

      Private reprimand, the sanction favored by a majority of the Board, is
 not an option provided in the disciplinary rules.  See Rule 9(1) of Rules of
 Supreme Court for Disciplinary Control of Judges (JCB's report to this Court
 "may include a recommendation for dismissal of the complaint, further hear-
 ings on the matter, suspension pending final disposition, public reprimand,
 suspension for a portion of the remainder of the respondent's term in
 office, or retirement."  The model standards omit the private reprimand
 option because a key purpose of judicial discipline is to "deter not only
 the judge in the immediate case, but also other judges, encouraging them to
 avoid similar conduct."  ABA Standards Relating to Judicial Discipline and
 Disability Retirement, Commentary to 6.7, at 53 (tentative draft 1977); see
 also In re Rules 7 and 9, 790 S.W.2d 143, 145 (Ark. 1990) (adapting ABA
 standards on discipline and doing away with private reprimand sanction to
 make discipline of judges more accessible to public).

-------------------------------------------------------------------------------
                               Dissenting

      Allen, C.J., dissenting.   Because I believe that this Court has no
 jurisdiction to discipline a judge who has left the bench, I respectfully
 dissent.  This Court's position in In re Wheel, 148 Vt. 632, 632-33, 533 A.2d 1194, ____ (1987) (mem.), that jurisdiction attaches only to complaints
 filed during judicial tenure, is both the majority rule and the correct one.

      Notice of the complaint, within the judicial tenure, establishes
 jurisdiction.  In re Hunt, 302 S.E.2d 235, 239 (N.C. 1983).  Although courts
 are divided about whether, once disciplinary proceedings have commenced
 against a judge, subsequent resignation or retirement can divest the court's
 jurisdiction over the matter, see Shaman, Lubet, and Alfini, Judicial

   

 Conduct and Ethics { 1.09, at 16 (1990), I find no court that has gone so
 far as to hold that it can take jurisdiction over a complaint filed against
 a judge who has already left the bench.  See In re Probert, 308 N.W.2d 773,
 777-78 n.10 (Mich. 1981).  Citing the ABA Standards Relating to Judicial
 Discipline and Disability Retirement (Tentative Draft, 1977) 2, the Probert
 court emphasized that the main purpose for judicial discipline is not to
 punish judges but to protect the public.  Id.  Once the offending judge is
 gone from the bench, this purpose no longer exists.  The rule operates like
 a statute of limitations.  Id.

      The model standards in judicial discipline take the position that the
 professional conduct board rather than the judicial conduct board should
 have jurisdiction over ex-judges who are accused of unethical conduct during
 their judicial tenures.  ABA Standard Relating to Judicial Discipline and
 Disability Retirement { 3.2, at 18 (tentative draft 1977); see also Florida
 Bar v. McCain, 330 So. 2d 712, 714-17 (Fla. 1976) (lawyer can be sanctioned
 for misconduct exhibited when formerly a judge); In re McKenney, 424 N.E.2d 194, 199 (Mass. 1981); In re DeLucia, 387 A.2d 362, 366 (N.J. 1978).

      Under this rule, assistant judges, who are usually not attorneys, may
 escape discipline altogether, but only if they never attempt to return to
 the bench.  If the judge does return to the bench, the complaint can be
 revived because the judge's previous acts of misconduct, committed during a
 prior term as judge, "follow the judge to any subsequent judicial office."
 In re Romero, 668 P.2d 296, 299 (N.M. 1983); see also In re Briggs, 595 S.W.2d 270, 279 (Mo. 1980).  The concerns for public protection are then
 revived.  Moreover, if the behavior is sufficiently serious to be criminal,
 the ex-judge can be prosecuted regardless of the retired status.  See, e.g.,
 State v. Wheel, 155 Vt. 587, 590, 589 A.2d 933, ___ (1991) (assistant judge
 convicted of false swearing).

      Because I do not believe the Court has jurisdiction over this matter, I
 do not reach the merits and cannot agree that any sanction can be imposed
 even for a clear violation of the code.

-------------------------------------------------------------------------------
                             Concurring and Dissenting

      Gibson, J., concurring and dissenting.    I agree with the dissent on 
 the issue of jurisdiction.  Nevertheless, because a majority of the Court
 has found jurisdiction, I will join in Parts II and III of its decision on
 merits and sanction.


                                    BY THE COURT:




                                    John A. Dooley, Associate Justice
                                    James L. Morse, Associate Justice
                                    Denise R. Johnson, Associate Justice


 Dissenting:


 _________________________________  
 Frederic W. Allen, Chief Justice   


 Concurring and dissenting:

 _______________________________________
 Ernest W. Gibson III, Associate Justice 




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