Walker, Matter of, 2

Citation153 Ariz. 307,736 P.2d 790
Decision Date07 May 1987
Docket NumberNo. 2,C,No. JQ-86-0003,2,JQ-86-0003
PartiesIn the Matter of H.W. WALKER, Justice of the Peace, Districtounty of Santa Cruz, State of Arizona.
CourtSupreme Court of Arizona

Hirsch & Harrison, P.C., by Gerald B. Hirsch, Tucson, for Com'n on Judicial Qualifications.

Smith & Curtis by David W. Curtis, Phoenix, for respondent.

HOLOHAN, Justice.

The Commission on Judicial Qualifications of the State of Arizona (Commission) recommended that H.W. Walker be removed from his position as Justice of the Peace, District No. 2, Santa Cruz County, for violating Canons 1, 2, 4, 5 and 7 of the Arizona Code of Judicial Conduct, 17A A.R.S. Walker filed a petition with this court to reject the findings of fact, conclusions of law and recommendation of the Commission. We have jurisdiction over the matter pursuant to article 6.1 of the Arizona Constitution and Rule 15 of the Rules of Procedure for the Commission on Judicial Qualifications, 17A A.R.S. 1

FACTS

"[I]n judicial discipline matters, we must make an independent evaluation, or de novo review on the record, of the evidence and recommendations of the Commission on Judicial Qualifications." In re Haddad, 128 Ariz. 490, 491, 627 P.2d 221, 222 (1981). The Commission has the power only to make recommendations. From our independent review of the record, we find the facts to be as follows.

When this inquiry began in 1985, H.W. Walker had served as justice of the peace for District No. 2, Santa Cruz County, Arizona, for approximately seven years. During part of his term as justice of the peace he had also been town magistrate for Patagonia, Arizona. He was not serving as town magistrate in 1985 or 1986.

On December 3, 1984, Walker made a written request to the Patagonia Town Clerk for a recall petition serial number under which a recall petition could be circulated. He acknowledged receipt of the serial number plus other related forms and information on December 7, 1984. On January 9, 1985, he notarized the affidavits of two persons who had circulated recall petitions to recall town council members. One of the petitions was circulated under the serial number received by Walker. Although the recall petitions were filed with the city clerk, the recall election did not occur because the targets of the recall resigned from the town council.

Walker made written requests to the Patagonia Town Council on three separate occasions to be considered for appointment as a member of the town council. He was successful on his third attempt. He was selected by the town council to replace one of the members who had resigned. Walker assumed office as a member of the town council of Patagonia on March 1, 1985. His duties as councilman include:

1) discussing and adopting proposed ordinances and resolutions 2) voting on the hiring of the town attorney;

3) voting on the hiring of the police chief;

4) voting on the hiring of the marshal, who supervises the operation of the police department;

5) voting on the hiring of the town magistrate.

The town council later selected Walker to be Vice-Mayor of the town.

Patagonia is within the boundaries of District 2, Santa Cruz County. Therefore, it is possible that in his capacity as justice of the peace, Judge Walker could be called upon to hear criminal charges arising out of activities in and around Patagonia. Furthermore, Walker could be faced with hearing civil matters that would require him to interpret Patagonia ordinances or which could, occasionally, involve testimony from Patagonia police officers. Finally, Judge Walker could hear civil matters in which the town attorney appears as counsel for private parties and not in his official capacity. 2

Prior to becoming a member of the town council, Walker conferred with the Patagonia Town Attorney to determine whether his service on the council would create a conflict of interest with his duties as justice of the peace. Walker did not make similar inquiry of the county attorney or the state attorney general.

After the inquiry conducted by the Commission, it found that:

The application by Judge Walker for a recall petition serial number, his subsequent acknowledgement of the affidavits of the recall peitition [sic] circulators from within the chambers of his judicial office, his subsequent applications, on three occasions, to serve as a town councilperson of the Town of Patagonia, and his contemporaneous service as justice of the peace and Vice-Mayor and Councilperson of the Town of Patagonia under the circumstances described herein, amount to willful misconduct, are prejudicial to public esteem for the office of justice of the peace, and have the appearance of impropriety and fails to maintain the appearance of impartiality on the part of Judge Walker in the discharge of his judicial duties. Judge Walker's conduct as described above violates Canons 1, 2, 4, 5 and 7 of the Code of Judicial Conduct as amended and adopted by the Supreme Court of the State of Arizona, which violations constitute willful misconduct in office, and are acts prejudicial to the administration of justice so as to bring the judicial office into disrepute.

As a result of its findings of fact and conclusions of law, the Commission recommended that Walker be removed from his position as justice of the peace and be ordered to pay costs, expenses and attorneys' fees incurred by the Commission in the amount of $2,108.35. Walker filed a petition challenging the Commission's findings of fact, conclusions of law, and recommendation.

ANALYSIS

As a justice of the peace, Walker was required to comply with the Code of Judicial Conduct adopted by this court in 1975. Haddad, 128 Ariz. at 492, 627 P.2d at 223; Rule 81, Rules of the Supreme Court, 17A A.R.S. Violations of the Code must be proved by clear and convincing evidence. Haddad, 128 Ariz. at 492, 627 P.2d at 223. We find, by clear and convincing evidence, that Walker has violated Canons 1, 2 and 7 of the Code of Judicial Conduct.

I. Violation of Canon 7

Canon 7 states that a judge is entitled to maintain his own personal views on political questions, but "[h]e should avoid political activity which may give rise to a suspicion of political bias or impropriety." Although the Commission made no clear finding that Walker engaged in improper political activity, our independent review of the record convinces us that the evidence compels that conclusion. Walker admits that he applied for a recall petition to be used to recall a councilperson. According to Walker's testimony, he applied for the recall petition on behalf of Virgil Smith, another citizen of Patagonia, who traveled a lot, making it inconvenient for Smith to obtain the recall petition. To accommodate Smith, Walker, who worked in the same building as the town clerk, applied for the recall petition numbers and signature forms. Walker stated that he engaged in no subsequent activity on the recall petition except to notarize the affidavits of recall petition circulators. Nonetheless, we find that his initial request for a petition was improper political activity. The recall process is an extraordinary political remedy that often creates a highly sensitive and politically-charged atmosphere. Even though the Patagonia town council is a nonpartisan council, in any recall action accusations often are made that split the electorate. Any involvement at all in the recall process by a judicial officer gives rise at least to a "suspicion of political bias and impropriety" sufficient to sustain a violation of Canon 7.

The violation becomes more egregious when, as here, it appears that the judge's motives were suspect. Walker applied for the recall petition number on December 3, 1984, notarized affidavits of recall petition circulators on January 9, 1985, and first applied for a vacancy on the town council on January 15, 1985. At the hearing before the Commission, Walker testified that his application for a recall petition number had nothing to do with his intent to become a member of the town council, and the Commission made no specific finding regarding Walker's credibility as a witness. However, in light of this chronology of facts, we question whether at the time Walker applied for the recall petition, he did not have some hope for the success of the recall.

Walker's involvement in the recall action, though limited, was sufficient political activity to support a conclusion that he violated Canon 7.

II. Violations of Canons 1 and 2

Canon 1 of the Code of Judicial Conduct requires that a judge uphold the integrity and independence of the judiciary. Canon 2 provides that a judge should avoid both impropriety and the appearance of impropriety in all of his activities. Walker violated both of these canons. As we stated earlier, Walker's action in applying for a recall petition to recall a town council member was improper, and his later applying for a position on the town council gave the appearance of impropriety. In addition, Walker violated both Canons 1 and 2 by holding office as justice of the peace and town councilperson simultaneously.

The separation of powers doctrine is a fundamental principle on which federal, state, and local governments are based. The doctrine protects the common interest of the public by requiring that those who make the law be different from those who execute and apply it. Comments, Separation of Powers and Judicial Service on Presidential Commissions, 53 U.CHI.L.REV. 993, 1001-02 (1986). Thus, the doctrine decreases the potential for a government to be controlled by one faction. Id. at 1002. To protect against unchecked power, it is necessary not only to have separate branches of government but also to have separate personnel in each branch. Id. at 1003. When a judge participates in enacting the law that he later is called on to interpret in deciding cases before him, the separation of powers doctrine has been violated.

When a judge acts both as legislator and...

To continue reading

Request your trial
8 cases
  • Wolfson v. Brammer
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 13, 2010
    ...by the Arizona Supreme Court to render, upon request, advisory opinions to judges and judicial candidates. See Matter of Walker, 153 Ariz. 307, 736 P.2d 790, 795 (1987); Ariz. Sup.Ct. Rule 82(b)(1). An advisory opinion would clarify, to some degree, whether the campaign activities and polit......
  • State ex rel. Woods v. Block
    • United States
    • Arizona Supreme Court
    • July 15, 1997
    ...branches of government requires that "those who make the law be different from those who execute and apply it." Matter of Walker, 153 Ariz. 307, 310, 736 P.2d 790, 793 (1987). Because Arizona's Constitution, unlike the United States Constitution, does not contain an appointments clause, a l......
  • Ackel, Matter of
    • United States
    • Arizona Supreme Court
    • October 27, 1987
    ...1, 9, 110 Cal.Rptr. 201, 209 (1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974); see also Matter of Walker, 153 Ariz. 307, 311, 736 P.2d 790, 794 (1987). Ackel justifies his conduct towards Randall by stating that he merely is a friendly judge who was attempting to put......
  • Disciplinary Proceeding Against Niemi, Matter of
    • United States
    • Washington Supreme Court
    • November 27, 1991
    ...The Commission cites Mistretta v. United States, 488 U.S. 361, 407, 109 S.Ct. 647, 672-73, 102 L.Ed.2d 714 (1989) and In re Walker, 153 Ariz. 307, 736 P.2d 790 (1987) to support its In Mistretta, it was claimed the participation of federal judges on the United States Sentencing Commission t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT