Ark. Judicial Discipline & Disability Comm'n v. Simes

• Decision Date: 05 May 2011
• Docket Number: No. 10–1287.,10–1287.
• Citation: 381 S.W.3d 764,2011 Ark. 193
• Parties: ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner v. Honorable L.T. SIMES, Respondent.
• Court: Arkansas Supreme Court

2011 Ark. 193

381 S.W.3d 764

ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner

v.Honorable L.T. SIMES, Respondent.

No. 10–1287.

Supreme Court of Arkansas.

May 5, 2011.

Terrance Cain, and George E. Hairston, Esq., by: George E. Hairston, for appellant.

David A. Stewart and David J. Sachar, Judicial Discipline & Disability Commission, and J. Thomas Sullivan, Little Rock, for appellee.

JIM HANNAH, Chief Justice.

Petitioner Arkansas Judicial Discipline and Disability Commission (“the Commission”) has filed with this court its final findings, conclusions, and recommendations, pursuant to Arkansas Judicial Discipline and Disability Commission Rule 12(A) (2010), and recommends that this court remove respondent the Honorable L.T. Simes, II, from the office of Circuit Judge of the First Judicial District, First Division, of the State of Arkansas. The Commission bases its recommendation of removal on its conclusions that Judge Simes violated Canons 1, 2(A), and 3(B)(1), (2), (5), and (7) of the Arkansas Code of Judicial Conduct (2006).¹

The instant matter arises from this court's referral to the Commission to investigate Judge Simes's conduct in Weaver v. City of West Helena, No. CV05–4 (2005), which was appealed to this court, see Weaver v. City of West Helena, 367 Ark. 159, 238 S.W.3d 74 (2006).

In November 2004, West Helena Mayor Johnny Weaver fired West Helena Police Chief Vincent Bell, and Bell filed a notice of appeal in the Phillips County Circuit Court on December 15, 2004. That case was assigned to Circuit Judge Harvey Yates. The West Helena City Council, in a meeting called on January 1, 2005, declared the seat of Alderman Eddie Schieffler vacant, even though Schieffler disputed the declared vacancy and was present and was attempting to vote. James Parks was elected to fill Schieffler's position and voted to reinstate Bell with the two-thirds majority, which the council maintained rendered the vote “veto-proof.” The council then voted to abolish the Civil Service Commission. Weaver subsequently vetoed all measures taken by the city council at that meeting. The circuit court later ruled that there had been no vacancy for Schieffler's position, that Parks was thus a usurper, and that all actions taken by the city council at the January 1 meeting were null and void.

On January 3, 2005, Bell, Parks, and five other members of the city council who had voted to reinstate Bell filed suit in Phillips County Circuit Court, asking Circuit Judge L.T. Simes for a temporary restraining order (“TRO”) which he granted ex parte, reinstating Bell and restraining Weaver from interfering in the day-to-day operations of the police department.

On January 6, 2005, approximately one hour before the scheduled hearing on the TRO, Weaver filed a motion for recusal. In the motion, Weaver alleged that Judge Simes (1) had initiated an improper ex parte conversation with him and asked him to deal leniently with Bell; (2) owned an interest in a radio station that was going to be paid to air city council meetings; and (3) had issued the TRO despite knowing that a connected case was pending before another judge. A hearing on the motion for recusal was conducted in lieu of the scheduled TRO hearing, at which time Weaver testified about the matters contained in the motion for recusal. In the midst of Weaver's testimony, Judge Simes called a recess and moved the proceedings to his chambers.

The next day, January 7, 2005, Judge Simes issued an order scheduling a hearing on the motion for recusal for 1:00 p.m. that day in Forrest City, Arkansas. At that hearing, Judge Simes removed Weaver from the courtroom at the outset of the proceedings and then conducted an inquiry into possible Rule 11 violations by Weaver's attorney, Todd Murray. Weaver and Murray were given no notice that possible Rule 11 violations would be considered at the hearing, and the Rule 11 inquiry was taken up by the court before there had been a full hearing on the merits of the allegations in the motion for recusal.

On January 26, a full hearing on the TRO was conducted by Judge Simes. On April 28, Judge Simes entered an order in which he declined to recuse from the case and imposed Rule 11 sanctions on Murray and Weaver for filing the motion to recuse for an improper purpose and without a proper factual foundation. Judge Simes acknowledged the rulings that invalidated all the actions taken at the January 1, 2005 city council meeting, but he refused to dissolve the TRO, ruling that the TRO was to be held in abeyance pending further action by the city council and Weaver. Weaver appealed the rulings in the April 28 order, as well as Judge Simes's decision to remove him from the courtroom during the January 7 recusal hearing.

This court concluded that all of the points on appeal were moot with the exception of the imposition of sanctions under Rule 11, and we reversed on that point. We held,

In summation, the procedural requirements for the imposition of sanctions under Rule 11 were disregarded by Judge Simes, and the appellant was subjected to a de facto Rule 11 hearing of which he was given no notice. That hearing occurred before the court attempted to establish the falsity of the allegations in the motion for recusal, and the court ultimately failed to establish that the allegations were false. Judge Simes relied on improper bases in his order imposing the sanctions. For the foregoing reasons, we conclude that Judge Simes abused his discretion by imposing sanctions upon the appellant under Rule 11. Based on the record before us, it appears that Judge Simes has violated the Arkansas Code of Judicial Conduct. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the Arkansas Judicial Discipline and Disability Commission. See Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000).

Weaver, 367 Ark. 159, 165, 238 S.W.3d 74, 79 (2006).

As a result of this court's referral, the Commission investigated Judge Simes's conduct in the Weaver case and proceeded to a formal adjudication. Judge Simes and Todd Murray were called before a three-member panel of the Commission to testify about the facts surrounding the Weaver case. After the hearing, the panel concluded that Judge Simes violated Canons 1, 2(A), and 3(B)(1), (2), (5), and (7) of the Arkansas Code of Judicial Conduct and recommended that Judge Simes be removed from office. The full commission adopted the panel's report, which made the following findings and conclusions:

1. Judge Simes's failure to recuse from conducting the Rule 11 proceedings against Murray and Weaver violates Canons 2(A) and 3B(1).

2. Judge Simes subjected Murray and Weaver to a de facto Rule 11 hearing, of which they were given no notice, in violation of Canons 2(A) and 3B(2).

3. Judge Simes conducted the Rule 11 proceedings before the court attempted to establish the falsity of the allegations in the motion for recusal, and the court ultimately failed to establish the allegations were false. Judge Simes proceeded to court-initiated Rule 11 sanctions before the falsity of the motion for recusal allegations were established. Because Judge Simes was the subject of the allegations, it was improper for him to conduct the Rule 11 proceedings, in violation of Canons 2(A) and 3B(2), (7).

4. In his conduct of the hearing on the motion for recusal, which the following day became a Rule 11 proceeding, Judge Simes's facial expression and body language toward Murray gave an appearance of judicial bias, in violation of Canon 3(B)(5).

5. Judge Simes relied on improper bases in his order imposing sanctions. Ark. R. Civ. P. 11 applies only to assertions contained in papers filed with or submitted to the court. Judge Simes not only used written allegations that Murray had withdrawn prior to his decision on sanctions, but also considered oral statements made by Murray and Weaver in making his determination on Rule 11 sanctions. Further, Judge Simes misrepresented the testimony of Murray in his order when he found that Murray had admitted to “judge shopping” when he responded to Judge Simes's statement that there was an issue in this case about judge shopping. Judge Simes's conduct violates Canons 1 and 3(B)(2).

In accordance with the panel's recommendation for removal, the Commission made the following recommendation to this court:

Consistent with the Rules of Procedure of this Commission, a majority ² of all members of the Commission adopt the findings of fact and conclusions of law set forth herein, and pursuant to the factors enumerated by the Arkansas Supreme Court in Judicial Discipline & Disability Commission v. Thompson, 341 Ark. 253, 278 (2000), recommend that Circuit Judge L.T. Simes be removed from his position as the Circuit Judge of the First Judicial District.

We must now determine whether to accept the Commission's recommended findings and recommendation of removal.

I. Standard of Review

Based upon a review of the entire record, this court shall file a written opinion and judgment directing such disciplinary action as it finds just and proper. Ark. Jud. Discipline & Disability Comm'n R. 12(E) (2010). We may accept, reject, or modify in whole or in part, the findings and recommendation of the Commission. Id. This is a matter requiring de novo review, and we will not reverse the Commission's findings unless they are clearly erroneous. Ark. Jud. Discipline & Disability Comm'n v. Proctor, 2010 Ark. 38, 360 S.W.3d 61.

II. Rule 9(B) and Bad Faith

Before we consider the alleged violations, we must address Judge Simes's contention that he should not be subject to discipline for legal errors he made in the Weaver case. Judge Simes does not dispute the procedural errors determined by this court in Weaver; rather, he contends that the appropriate remedy for his errors has already been provided through appellate review in the Weaver case.

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