Ross, Matter of

Decision Date23 April 1981
Citation428 A.2d 858
PartiesIn the Matter of Ralph H. ROSS.
CourtMaine Supreme Court

Pierce, Atwood, Scribner, Allen, Smith & Lancaster by Ralph I. Lancaster, Jr. (orally), Daniel W. Emery, Portland, for Committee for Judicial Responsibility.

Berman, Simmons, Laskoff & Goldberg, P.A. by Jack H. Simmons, Lewiston, (orally), Edward G. Hudon, Brunswick, for Ralph H. Ross.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.

PER CURIAM.

This is an original proceeding commenced in the Supreme Judicial Court by the filing of a report by the Committee on Judicial Responsibility and Disability. 1 The report alleged that the respondent, Ralph H. Ross, a Judge-at-large of the District Court, has engaged in conduct violative of the Code of Judicial Conduct 2 and recommended that discipline be imposed. Immediately upon receipt of the report, this Court issued a procedural order the most significant provisions of which were:

1. The respondent was suspended, until final action by the Supreme Judicial Court, from the performance of judicial duties except to the extent reasonably necessary for the completion of cases already heard in part and then pending before him.

2. The Chief Justice was to designate a single Justice of the Supreme Judicial Court to serve as a hearing Justice to hold such evidentiary hearings as were necessary "and to report to the Court his findings of fact on the issues raised by the Committee's report and respondent's answer."

3. The full Court would receive briefs and hear oral argument after the hearing Justice reported and would "thereupon determine whether the charges, or any of them, have been proved by a preponderance of the evidence, and, if so, the appropriate sanction or sanctions to be imposed."

Pursuant to that order, the Chief Justice designated a single Justice as the hearing Justice in this matter. The report of the Committee, together with copies of the procedural order and the order designating the hearing Justice, was served upon the respondent personally. Thereafter, in accordance with the procedural order, the respondent filed his written answer to the report of the Committee. The hearing Justice held a prehearing conference at which the Committee and the respondent appeared through counsel. At the prehearing conference, it was agreed that this matter should be submitted to the full Supreme Judicial Court on the stipulation of facts submitted to the Committee and the exhibits attached thereto as supplemented by a written motion which had been filed with the Committee. It was further stipulated that an evidentiary hearing would not be required and that the issues to be addressed by the Supreme Judicial Court were:

1. Did the procedure of the Committee violate the due process provisions of the United States Constitution or the Maine Constitution?

2. Did the conduct of the respondent described in the stipulation of facts constitute a violation or violations of the Code of Judicial Conduct?

3. If the Court concludes that the conduct of the respondent did constitute a violation or violations of the Code of Judicial Conduct, what sanctions, if any, should be imposed?

The hearing Justice set times for filing briefs and scheduled the matter for hearing on April 1, 1981, before the full Supreme Judicial Court sitting in exercise of its original jurisdiction, not as the Law Court.

I.

The respondent had contended that the procedure before the Committee violated due process in that there were combined in the Committee investigative, prosecutorial and adjudicative responsibilities. At the hearing before the full Court, counsel for the respondent conceded there was no due process violation. This concession was based on a recognition that in this original proceeding before the Supreme Judicial Court the Court would not be functioning as an appellate tribunal, would give no deference to the purported findings and conclusions of the Committee and would independently find the facts and reach the appropriate legal conclusions. We therefore find it unnecessary to engage in any extended discussion of the first issue identified in the pretrial order. The Committee on Judicial Responsibility and Disability functions as an investigative agency similar to a grand jury in criminal proceedings. The report of the Committee is nothing more than a charging document containing the Committee's allegations concerning the conduct of the respondent. The burden is on the Committee to prove those allegations before the full Court. Thus, the Committee performs no adjudicative functions whatsoever but is merely the investigative agency which formally prepares a charging document filed with the Supreme Judicial Court. Under such circumstances, there is no due process violation. See Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1974); Cohn, The Limited Due Process Rights of Judges in Disciplinary Proceedings, 63 Judicature 232 (1979).

II.

Because this is the first occasion which this Court has had to address the problem of judicial discipline where a sitting judge has been charged with misconduct, we note at the outset the extreme sensitivity of the task in which we are engaged. It is axiomatic that an independent and vigorous judiciary is essential as a bulwark to protect the rights of our citizens. 3 An infringement on the independence of the judiciary is an immediate threat to the fundamental concept of government under law. Independence of the judiciary is not inconsistent with accountability for judicial conduct. Lawless judicial conduct the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself is as threatening to the concept of government under law as is the loss of judicial independence. We see no conflict between judicial independence and judicial accountability. Indeed, a lack of judicial accountability may itself be the greatest danger to judicial independence.

We are aware that judicial accountability does not require that judges be mere robots or be of precisely the same character with precisely the same personal qualities and attitudes. There is room in a judiciary which serves a pluralistic society for differences in judicial style. There is room for the colorful judge as well as the more conventional judge. Differences in style and personality do not of themselves suggest misconduct. To the end that a courtroom may truly be a temple of justice and not the personal domain of the man or woman who happens to be presiding, any differences in style must always result in justice administered according to law and must be in accord with minimum standards of propriety. To establish such minimum standards of conduct and propriety, we promulgated the Code of Judicial Conduct in 1974. It is against this Code that allegations of judicial misconduct must be measured.

In this case there are no factual disputes. The matter was submitted to the Court upon a stipulation of facts, agreed to by both parties, which details the conduct of the respondent. Thus, we need not engage in a fact-finding process. Rather, we are engaged in the delicate task of applying to the admitted facts the legal standards found in the Code of Judicial conduct to determine whether the admitted conduct of the respondent has violated the Code. Before discussing the specific conduct of the respondent, we must emphasize that there is neither an allegation nor a suggestion that in any of these matters Judge Ross acted for personal gain or benefit. For ease in description, we will group similar allegations of misconduct and will treat each group separately.

A.

In two of the matters, the respondent imposed sentences of imprisonment without affording the persons sentenced the hearings to which they are entitled by law. In these two matters, the Court concludes that the respondent violated Canons 2(A), 4 3(A)(1) 5 and 3(A)(4) 6 of the Code of Judicial Conduct.

On or about October 17, 1979, Jeffrey L. Powell appeared in the District Court in Springvale, Maine and admitted to having committed a civil violation, possession of a usable amount of marijuana, in violation of 22 M.R.S.A. § 2383. The respondent sentenced Powell to pay a forfeiture of $100 and further ordered him, in default of payment, to be imprisoned to serve out that fine at the rate of $10 per day. Powell left the courtroom and, in the presence of court officers and others, made vulgar and derogatory statements about the respondent. A court officer reported these statements to the respondent including the words "fucking dink." The respondent had Powell recalled to the courtroom and in vulgar, abusive and intemperate language increased the forfeiture from $100 to $200 and changed the per diem rate for serving out the forfeiture from $10 per day of confinement to $5 per day of confinement.

The judgment was illegal in several respects: In the first place, the only penalty provided for a civil violation is a fine, penalty or forfeiture. 17-A M.R.S.A. §§ 4(3), 4-A(4). Even in criminal proceedings it is unconstitutional to imprison a defendant for failure to pay a fine without a showing that the defendant willfully failed to pay the fine having the financial ability to do so. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). M.D.C.Civ.R. 80H(i) provides: "Judgments in civil violation proceedings shall be enforced as in other civil actions."

Secondly, it is apparent that the respondent increased Powell's fine and charged the per diem rate to lengthen the term of imprisonment because of what the respondent considered to be contumacious conduct. The procedure for dealing with contumacious conduct evidencing disrespect for a court is specified in M.R.Crim.P. 42 made applicable in the District Court through M.D.C.Crim.R. 42. If the judge sees or hears the conduct constituting the contempt and if...

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