Ackel, Matter of
| Decision Date | 27 October 1987 |
| Docket Number | No. JQ-87-0001,JQ-87-0001 |
| Citation | 745 P.2d 92,155 Ariz. 34 |
| Parties | In the Matter of Fred S. ACKEL, Justice of the Peace, Tempe Precinct, Maricopa County, State of Arizona. |
| Court | Arizona Supreme Court |
Burch & Cracchiolo by Jack D. Klausner, Marigene A. Dessaint, Anne E. Findling, Phoenix, for respondent.
Rubin, Croxen & Myers by Edith A. Croxen, Tucson, for Com'n on Judicial Qualifications.
Landau & Hamilton by Lynn Hamilton, Chandler, for amici curiae Justices of the Peace Lockwood, Goodman, Connor and Phares.
Richards & Eisenstein by Alyce Pennington and Robert B. Fleming and Arizona Women Lawyers Ass'n by Lynne O. Wood, Tucson, for amici curiae Pima County Gender and Justice Task Force, Pima County Bar Ass'n and Arizona Women Lawyers Assn.
The Commission on Judicial Qualifications (Commission) has recommended that we remove Fred S. Ackel from his position as Justice of the Peace, Tempe Precinct, Maricopa County, for violating Canons 1 and 2(A) of the Code of Judicial Conduct and Arizona Constitution article 6.1, section 4. 1 We have jurisdiction pursuant to Rule 15, Rules of Procedure for the Commission on Judicial Qualifications, 17A A.R.S.
In March 1985, Ackel issued a peace bond on behalf of Tina Randall against James Bankhead. Bankhead continued to harass Randall via the telephone. Randall met with Ackel on June 10, 1985, to discuss the possibility of amending the peace bond to preclude Bankhead from harassing Randall via the telephone. Ackel amended the peace bond and asked Randall to return to see him on June 14.
According to Randall, Ackel made several statements to her during the meeting on June 10 that concerned her. When Randall informed Ackel that she was living with her cousin, Ackel asked whether Randall and her cousin were "kissing cousins" and then proceeded to state that his cousin had taught him everything he knew, including "how to put a rubber on." Ackel later in the discussion said, Randall replied, "Not with you." At some point during the meeting Randall believed that Ackel was "staring at [her] chest." Ackel also hugged Randall "chest to chest" or "chest to belly" in a "snug" manner. Randall denied flirting with Ackel or in any manner encouraging Ackel's conduct. 2
Randall hid a tape recorder in her clothing and secretly recorded her discussion with Ackel on June 14. During their discussion Ackel referred to Randall as "honey" and commented to Randall that she was "cute" and "brightened" his day. Ackel also indicated that he had contemplated calling her to see if she wanted to get together that night to have a drink. When Randall replied that she was busy, Ackel remarked, "That's too bad." Ackel later asked Randall for the name of the person with whom she would be busy, and then he hugged Randall. The following conversation occurred during the embrace:
Ackel then released Randall. Later Ackel said to Randall, "I'm a very outgoing person, so don't get the wrong impression." He also told Randall, "I've never forced myself on anybody."
In addition to Ackel's sexual comments, the transcript also indicated that Ackel referred to Bankhead as a "son of a bitch" and said "If I have to raise some more hell, I'll have him arrested ... [i]f I have to make my God damned point," and commented on getting Bankhead "in [his] clutches."
Randall filed a Request for Investigation with the Commission on July 11, 1985. The Commission initiated formal proceedings against Ackel on September 17, 1985, and filed its amended findings of fact, conclusions of law, and recommendation on January 16, 1987. The Commission concluded as a matter of law that:
1. The Respondent's [Ackel's] conduct in "hugging" the litigant [Randall], using profanity and language with sexual overtones and asking the litigant to go "for a drink" with the Respondent was inappropriate judicial conduct which violated Canon 1 of the Code of Judicial Conduct. The Respondent's conduct described herein is an intentional and wilful course of conduct which constitutes misconduct in that it is prejudicial to the administration of justice so as to bring the judicial office into disrepute within the meaning of Article 6.1, Section 4 of the Constitution of the State of Arizona.
2. Respondent's overly familiar conduct with this litigant and others before him lends an aura of favoritism to the litigant's side of any peace bond action. The Respondent's conduct in general which encourages personal contact with litigants leads to an appearance of bias on the part of Respondent toward the litigants who have such contact. The above described conduct of Judge Ackel was a violation of Rule 45, Rules of the Supreme Court, specifically, Canons 1 and 2(a) of the Code of Judicial Conduct as amended and adopted by the Supreme Court of the State of Arizona. Such conduct is conduct which is wilful and intentional and brings the judicial office into disrepute within the meaning of Article 6.1, Section 4 of the Constitution of the State of Arizona.
Five members of the Commission recommended that Ackel be removed from his position as Justice of the Peace. Three members recommended that Ackel be publicly censured. 3
Ackel has challenged the Commission's findings of fact, conclusions of law, and recommendation by raising the following three arguments:
1. The procedures through which the Commission reached its decision were fundamentally unfair and violated Ackel's basic right to procedural due process.
2. The Commission's amended findings of fact, conclusions of law and recommendation to the Supreme Court improperly omitted all favorable and mitigating evidence and unfairly included as "fact" complaints previously filed against Ackel.
3. The Commission's recommendation of removal from office is excessive punishment for Ackel's conduct and is unsupported by the record.
Ackel argues that the Commission violated his procedural due process rights by (1) using prior Commission files as an "aggravating factor" without notice to him, (2) combining investigative, prosecutorial, and adjudicatory powers in the Commission's executive director who also acted as the Commission's counsel, and (3) permitting Commission members who had not attended all of the hearings to vote.
The Commission's Notice of Institution of Formal Proceedings dated September 17 1985, contained a single count charging Ackel with conduct towards Randall that demonstrated:
a[n] intentional, consistent and persistent course of conduct which constitutes willful misconduct, persistent misconduct in office and a willful failure of Justice of the Peace FRED S. ACKEL to perform the duties required of his office, and that said course of conduct is prejudicial to the administration of justice so as to bring the judicial office into disrepute.
The notice made no mention of several prior complaints that had been filed against Ackel.
Ackel did not learn of the Commission's interest in prior Commission files until the Commission filed its initial findings of fact, conclusions of law, and recommendation on August 6, 1986. Contained therein was a finding of fact listing eight prior complaints against Ackel and their respective resolutions, and a conclusion of law stating that "[t]he Commission's continued involvement with respondent since 1980 on numerous serious complaints warrants consideration of those previous complaints in aggravation of the present matter before the Commission." 4
Ackel contends that the Commission violated his due process rights by considering prior complaints as an aggravating factor. He relies on Matter of Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). In Ruffalo, the Ohio Board of Commissioners on Grievances and Discipline charged attorney Ruffalo with twelve counts of misconduct, including two counts of soliciting Federal Employers' Liability Act (FELA) plaintiffs as clients through Orlando, his agent. During state disciplinary hearings, Ruffalo and Orlando both testified that Orlando did not solicit clients but merely investigated FELA claims for Ruffalo. Orlando admitted, however, that he was an employee of the Baltimore & Ohio Railroad Co., an entity against whom Ruffalo's clients often filed suits. Based on this testimony, the Board amended its complaint to additionally charge Ruffalo with improperly having Orlando investigate his own employer. The Board found Ruffalo guilty of seven counts of misconduct, including the newly added charge. On review, the United States Supreme Court held that amending the complaint after disciplinary proceedings had commenced to charge Ruffalo with misconduct discovered during testimony violated Ruffalo's due process rights. Id. at 545-47, 550-52, 88 S.Ct. at 1223-24, 1226, 20 L.Ed.2d at 118-119, 121.
Ackel's reliance on Ruffalo is misplaced. Unlike the Board in Ruffalo, the Commission never amended its initial complaint to add new charges. 5 Ackel's misconduct for which the Commission has recommended removal is the same misconduct charged in the Commission's initial notice. We do not believe that the...
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