Wisconsin Judicial Commission v. Honorable Frank M. Calvert

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Justia Opinion Summary

The Supreme Court ordered that the Honorable Frank M. Calvert be suspended from the office of circuit court commissioner without compensation and prohibited from exercising any of the powers or duties of a circuit court commission in Wisconsin for a period of fifteen days due to Commissioner Calvert’s judicial misconduct.

The Wisconsin Judicial Commission filed a complaint against Commissioner Calvert alleged that he had engaged in judicial misconduct in presiding over an action seeking a harassment injunction. The Judicial Conduct Panel made conclusions of law and recommended that the Supreme Court suspend Commissioner Calvert for no more than fifteen days. The Supreme Court adopted the panel’s undisputed findings and conclusions of law and agreed that a fifteen-day suspension was in order.

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2018 WI 68 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2017AP1735-J In the Matter of Judicial Disciplinary Proceedings Against the Honorable Frank M. Calvert. Wisconsin Judicial Commission, Complainant, v. The Honorable Frank M. Calvert, Respondent. JUDICIAL DISCIPLINARY PROCEEDINGS AGAINST CALVERT OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: June 15, 2018 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the complainant, there was a brief filed by Jeremiah Claude-Benedict Van Hecke and the Wisconsin Judicial Commission, Madison. For the respondent, Honorable Frank M. Calvert. there was a brief filed by The 2018 WI 68 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP1735-J STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Judicial Disciplinary Proceedings Against the Honorable Frank M. Calvert: FILED Wisconsin Judicial Commission, Complainant, JUN 15, 2018 v. Sheila T. Reiff Clerk of Supreme Court The Honorable Frank M. Calvert, Respondent. JUDICIAL disciplinary proceeding. Commissioner suspended from office. ¶1 PER CURIAM. We review, pursuant to Wis. Stat. § 757.91 (2015-16),1 a Judicial Conduct Panel's findings of fact, 1 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. Wisconsin Stat. § 757.91 provides: The supreme court shall review the findings of fact, conclusions of law and recommendations under s. 757.89 and determine appropriate discipline in cases of misconduct and appropriate action in cases of (continued) No. 2017AP1735-J conclusions of law, and recommendation for discipline for the Honorable Frank M. Calvert, a court commissioner for the Oconto County Circuit Court. We conclude that a 15-day suspension is the appropriate discipline for Commissioner Calvert's judicial misconduct. ¶2 Commissioner Calvert has been commissioner for Oconto County for 19 years. a circuit court He has not been the subject of any prior disciplinary action by the Wisconsin Judicial Commission. ¶3 The Judicial Commission filed a complaint against Commissioner Calvert on September 8, 2017, alleging that he had engaged in judicial misconduct by his actions, described below, in presiding over an action seeking a harassment injunction. ¶4 Commissioner Calvert did not file an answer to the complaint, which led the Judicial Commission to file a motion for default judgment. On January 2, 2018, Commissioner Calvert filed a letter with this court stating that he did not contest the facts alleged in the complaint. ¶5 Consistent with an order issued by the Judicial Conduct Panel, the parties filed briefs on the issue of the appropriate discipline to be imposed. After receiving these briefs, the Judicial Conduct Panel made findings of fact based on the uncontested allegations of the complaint. On the basis permanent disability. The rules of the supreme court applicable to civil cases in the supreme court govern the review proceedings under this section. 2 No. 2017AP1735-J of those facts, the Judicial Conduct Panel made conclusions of law and recommended that this court suspend Commissioner Calvert for no fewer than recommendation five and exceeded no the more than 15 disciplinary days. This sanction that Commissioner Calvert suggested in his brief to the panel and in his January 2, 2018 letter to the court: panel's recommendation more closely a reprimand. followed the The sanction proposed by the Judicial Commission, which suggested discipline ranging from a reprimand to a short suspension. ¶6 The facts giving rise to the complaint are as follows. In September 2015, Commissioner Calvert received and reviewed a petition for temporary a harassment restraining injunction order filed and the by a request attorney for for a the petitioners against the respondents, who were the petitioners' next-door neighbors. dispute between the This legal action was part of an ongoing petitioners and the respondents. The petitioners alleged that the respondents had engaged in repeated harassment of the petitioners, including pointing surveillance cameras at the petitioners' house to record the petitioners' conduct. ¶7 grant Before the holding petitioners' any hearing request for or a deciding temporary whether to restraining order, Commissioner Calvert, on his own initiative, went to the City of Oconto Police Station and spoke with the City of Oconto Police Chief Commissioner chief a concerning Calvert summary the asked regarding allegations for and the 3 in obtained history of the from petition. the police complaints and No. 2017AP1735-J conflicts between these neighbors and their contacts with the Oconto Police Department over the years. Commissioner residence Calvert and that that he there had were The police chief told visited no the cameras respondents' pointed at the petitioners' property. ¶8 Commissioner "contact file" kept included statements Calvert by of the also reviewed Oconto police Police relating to the neighbors' Department, the which conflict, and asked the police chief if there was any basis for a citation to be issued. attorney None of the parties to the case or the petitioners' was present for Commissioner Calvert's conversation with the police chief or given advance notice of it. ¶9 Commissioner Calvert denied the petitioners' request for a temporary restraining order. In doing so, he considered the information provided by the police chief and contained in the police "contact file" regarding the neighbors. ¶10 At an injunction hearing held on October 1, 2015, Commissioner Calvert heard the testimony of several witnesses and arguments from both sides. injunction request. Commissioner Calvert denied the Before announcing his ruling, Commissioner Calvert did not disclose to the parties or the petitioners' attorney his contact with the police chief or that he had reviewed the police "contact file." ¶11 After denying the injunction request, Commissioner Calvert made the following statements: What is going to happen, though, is that anything between these two neighbors is going to stop as of 4 No. 2017AP1735-J today. Period. End of story. And how it's going to stop is this: I've already talked to [the police] chief [ . . . ] as of yesterday. What's going to happen is, if you call the Oconto Police Department, or the Sheriffs Department, or, you call them, they are going to come out, they are not going to have to listen as to what took place because if they get called out to either of your places, complaining about each other, what's going to happen—they're going to issue mutual disorderly conduct tickets. So, I don't care who calls. You call, either of you call, they are going to come out, they are going to issue a disorderly conduct to you and they are going to issue a disorderly conduct to you. Alright? Now, if you wish to take that ticket into municipal court, and argue about whether you were disorderly or not, go ahead because I've already talked to [the municipal judge] in Oconto [ . . . ] and I've told him the problem with this situation, enough is enough, it's been going on for twelve/thirteen years, I'm putting an end to it, and I told him, "I don't care what either one of you say." He's going to find you guilty and issue you a fine. He knows that, he's with it, he's tired of it, the Police Department's tired of it, alright? If you want to de novo his decision, which you have a right to do[,] under the statute[,] upon finding you guilty, that's fine because it'll get de novo'd and it'll get de novo'd up here to me and guess what's going to happen? I'm going to uphold it and you're both going to pay a fine. Now, with regard to a court commissioner, you have a right to de novo that, too. Go ahead because I'm gonna tell either one of these circuit court judges, "Enough is enough. This is how we're going to handle it." I want nothing further going on. ¶12 In fact, Commissioner Calvert had not, as he told the parties, directed the police chief to issue mutual disorderly conduct citations to the neighbors regardless of fault, and he had not, as he told the parties, directed the local municipal 5 No. 2017AP1735-J judge (who would handle any citations) to find the neighbors guilty regardless of fault. ¶13 After pronouncing his ruling, but before the hearing concluded, Commissioner Calvert admitted to the parties that the police chief had previously told Commissioner Calvert that he had visited the respondents' residence and looked for cameras, and believed that there had been no cameras pointed at the petitioners' property. ¶14 No party sought de novo review of Commissioner Calvert's decision denying the injunction. ¶15 Subsequent Commissioner to Calvert the advised October the 1, person 2015 hearing, he regarded as his senior circuit court judge of his post-ruling comments to the parties, acknowledged to this judge that his comments had gone "beyond the normal course of action," and indicated that he intended all of his conduct in the case only to end a long standing neighbor conflict. ¶16 2015, After his handling of the injunction case in October Commissioner Calvert has three times (annually) been reappointed as a court commissioner. ¶17 The complaint alleged, and the Judicial Conduct Panel concluded, detail that with by the initiating City of contact Oconto Police and then Chief, speaking obtaining in the police chief's summary of the complaints and conflicts between the parties to the injunction action, reviewing the police "contact file," and being informed by the chief that no cameras had been pointed at the petitioners' 6 property, Commissioner No. Calvert violated officials from SCR 60.04(1)(g),2 2017AP1735-J prohibits permitting, initiating, which engaging judicial in, or considering ex parte communications concerning pending actions or proceedings. ¶18 The complaint alleged further, and the Judicial Conduct Panel concluded, that by initiating contact and then speaking in obtaining conflicts detail the with police between the chief's the City of summary parties to Oconto of the the Police Chief, complaints injunction and action, reviewing the police "contact file," and being informed by the chief that no cameras had been pointed at the petitioners' property, Commissioner Calvert violated SCR 60.04(1)(g), which 2 SCR 60.04(1)(g) provides: A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding except that: 1. A judge may initiate, permit, engage in or consider ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits if all of the following conditions are met: a. The judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication. b. When the ex parte communication may affect the substance of the action or proceeding, the judge promptly notifies all of the other parties of the substance of the ex parte communication and allows each party an opportunity to respond. 7 No. prohibits judicial officials from independently 2017AP1735-J investigating facts in a case. ¶19 The complaint alleged further, and the Judicial Conduct Panel concluded, that by telling the parties, falsely, that he had convinced local law enforcement and the municipal court judge to agree that any further neighbors would result in disorderly involved, which would be sustained police conduct calls to the tickets to all throughout the judicial system regardless of the circumstances; telling the parties that he himself in his official capacity would sustain such tickets, regardless of the circumstances; and telling the parties that he planned to convince the county circuit court judges to sustain such tickets, regardless of the circumstances, Commissioner Calvert violated his obligation, pursuant to SCR 60.03(1),3 to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and further violated his obligation, pursuant to SCR 60.02,4 to participate 3 SCR 60.03(1) provides: "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." 4 SCR 60.02 provides: 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. This chapter applies to every aspect of judicial behavior except purely legal decisions. Legal (continued) 8 No. 2017AP1735-J in establishing, maintaining, and enforcing high standards of conduct and to personally observe those standards. ¶20 these The Judicial violations Conduct was willful Panel and concluded thus that constituted each of judicial misconduct under Wis. Stat. § 757.81(4)(a).5 ¶21 We adopt conclusions of law. the panel's undisputed findings and We therefore turn to the question of the appropriate discipline for the misconduct. ¶22 In imposing discipline——which may be reprimand, censure, suspension, or removal——we must bear in mind that the goal of judicial discipline is not to punish the erring judge, but to protect the public from unacceptable judicial behavior, considering both the seriousness of the judge's misconduct and the likelihood that it would recur. See In re Judicial Disciplinary Proceedings Against Crawford, 2001 WI 96, ¶38, 245 Wis. 2d 373, 629 N.W.2d 1. The sanction that we impose must also "convey to the public the gravity with which this court views judicial misconduct." on a de novo basis, panel's recommendation. ¶23 Id. at ¶39. benefitting from We impose discipline but not bound by the See id. at ¶38. In recommending a suspension between five and 15 days, the Judicial Conduct Panel found both mitigating and aggravating decisions made in the course of judicial duty on the record are subject solely to judicial review. 5 Wisconsin Stat. § 757.81(4)(a) states that misconduct includes "[w]illful violation of a rule of the code of judicial ethics." 9 No. factors. On the mitigating side, these were isolated instances of misconduct. any 2017AP1735-J prior Commissioner Calvert has not been the subject of disciplinary action by the Wisconsin Judicial Commission over his 19-year career as a court commissioner. He has been reappointed as a court commissioner three times since the misconduct. He recognized his comments at the hearing were unusual and acknowledged as much by reporting the matter to a circuit court judge. The end goal of his misconduct was not to satisfy personal desires or receive any personal benefit. ¶24 noted On the aggravating side, the Judicial Conduct Panel that Commissioner Calvert's misconduct occurred in his capacity as a representative of the judicial system, both inside and outside of the courtroom. The panel further noted that, in Commissioner Calvert's brief on sanctions filed with the panel, he repeatedly asserted that the goal of his conduct was to end a long-standing dispute between neighbors, which suggests that he lacks insight conduct. on the regarding the need to change or modify his His misconduct also has a substantial negative impact integrity of and the public's perceptions of the case that it matter: In re independence of the judiciary. ¶25 thought Judicial The was Judicial Conduct particularly Disciplinary Panel analogous to Proceedings Wis. 2d 136, 531 N.W.2d 62 (1995). cited a this Against Carver, 192 In Carver, we imposed a 15- day suspension as a result of on-the-record comments that a judge made in the course of disqualifying himself at the initial appearance of a defendant——a friend of the judge——who had been 10 No. 2017AP1735-J charged with illegal sports gambling. In those comments, the judge the minimized the seriousness of offense charged; questioned the legitimacy of the investigation and prosecution in the case before him and in other cases of sports gambling pending in other circuit court branches; and suggested to the public and to his fellow judges that minimum sentences should be imposed for such crimes. The judge also lied when he stated on the record that he had not been contacted by the defendant; the judge in fact pertaining to had the received letters case. pending two We from wrote the that defendant "[i]t is essential to the proper functioning of our judicial system that its participants and the public be assured of the objectivity and impartiality of its judges." Judge Carver's Id. at 138. "aggravated himself . . . impartially, We concluded that failure objectively[,] to and conduct truthfully" warranted a 15-day suspension from judicial office. Id. at 155. Analogizing Carver to the facts of the instant case, the panel reasoned that like Judge Carver, Commissioner Calvert made onthe-record statements partiality. that were false and that exhibited The panel recommended that a suspension similar to that imposed in Carver should be imposed here, with the length ranging from five to 15 days. ¶26 We agree with the Judicial Conduct Panel that a suspension is in order, and we conclude that a length of 15 days is appropriate. serious. The misconduct in this case is undeniably As we stated in Carver, a judge's objectivity and impartiality are critical to the 11 proper functioning of the No. judicial system. objective and 2017AP1735-J Commissioner Calvert's behavior was far from impartial. He independently investigated the facts of a case pending before him——an effort that included engaging in an ex parte communication with the police chief. He then lied to the parties in a particularly manipulative manner, falsely claiming that he had communicated with individuals in the judicial and law enforcement systems in such a way that the parties were doomed to failure and future legal troubles should they ever seek additional recourse. We cannot abide such assurances by a judge to rig the judicial and criminal justice systems against its participants. ¶27 We are also troubled, as was the Judicial Conduct Panel, by Commissioner Calvert's argument to the panel that "it is difficult to understand how either party to this matter may have questioned fair treatment in this case when a rehearing of the matter requested." was an available alternative and was never This argument strongly suggests that Commissioner Calvert lacks insight into his own misconduct; it is no surprise the parties did not seek a de novo hearing of his decision given his assurance that he would see to it that any such effort would fail. In other words, Commissioner Calvert's argument seeks a reward for his asserted willingness to tilt the playing field against the parties. ¶28 No reward will be forthcoming here. Ultimately, we conclude that the appropriate sanction is a suspension from judicial office for a period of 15 days. This period is an adequate reflection of the seriousness of Commissioner Calvert's actions, 12 and is necessary to promote No. 2017AP1735-J public confidence in the soundness of the judicial system. is also consistent with our past precedent. It We are confident that a 15-day suspension will impress upon Commissioner Calvert the fundamental requirements of judicial office and will demonstrate to the public our dedication to preserving judicial integrity. ¶29 IT IS ORDERED that the Honorable Frank M. Calvert is suspended from the office of circuit court commissioner without compensation and prohibited from exercising any of the powers or duties of a circuit court commissioner in Wisconsin for a period of 15 days, commencing July 16, 2018. 13 No. 1 2017AP1735-J