Arkansas Judicial Discipline & Disability Comm'n v. Proctor

• Decision Date: 25 January 2010
• Docket Number: No. 09–738.,09–738.
• Citation: 360 S.W.3d 61,2010 Ark. 38
• Parties: ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner, v. Honorable Willard PROCTOR, Jr., Respondent.
• Court: Arkansas Supreme Court

2010 Ark. 38

360 S.W.3d 61

ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner,

v.Honorable Willard PROCTOR, Jr., Respondent.

No. 09–738.

Supreme Court of Arkansas.

Jan. 25, 2010.

Judicial Discipline & Disability Commission, by: David A. Stewart, Executive Director, Little Rock, for petitioner.

Austin Porter, Jr., Little Rock, for respondent.

PAUL E. DANIELSON, Justice.

Petitioner Arkansas Judicial Discipline and Disability Commission (“the Commission”) has filed with this court its final findings, conclusions, and recommendation, pursuant to Arkansas Judicial Discipline and Disability Commission Rule 12(A) (2009), in which it recommends that this court remove respondent the Honorable Willard Proctor, Jr., from the office of Circuit Judge of the Sixth Judicial District, Fifth Division, of the State of Arkansas. The Commission bases its recommendation of removal on its conclusions that Judge Proctor willfully violated Canons 2, 2(A), 2(B), 3(B)(4), 3(B)(7), 4(A), and 4(C) of the Arkansas Code of Judicial Conduct (2007).¹ We accept the Commission's recommended findings in part, modify them in part, and reject them in part; we accept the Commission's recommendation of removal; and we order Judge Proctor removed.

The instant matter arises from allegations regarding Judge Proctor's involvement in and relationship with a probation-type program, known as Cycle Breakers; ² the impropriety of relationships with defendants within his jurisdiction; and his treatment of his staff. During a hearing before a three-member panel of the Commission, testimony was presented from several witnesses, including several current and former employees of Judge Proctor; a deputy prosecuting attorney from the Pulaski County Prosecutor's Office, who was the former division chief for the Fifth Division; a deputy over the Investigative Special Reporting Section of the Legislative Joint Auditing Committee; a certified public accountant; the attorney for Cycle Breakers, Inc.; a Little Rock City Director; the Pulaski County Civil Attorney; the court administrator of the Pulaski County Clerk's Office; and Judge Proctor himself. Following the hearing, the panel issued its opinion, which included findings of fact and conclusions of law and recommended removal based solely upon the allegations regarding Judge Proctor's contact and interaction with one specific defendant in his court, Demoreo Davis. Specifically, the three-member panel concluded:

Given all of that which is before the full commission, it is our belief that there is compelling proof, and there are, as well, compelling reasons for Judge Proctor to be removed from the bench for the Demoreo Davis allegations alone. The contact and interaction the judge had with Demoreo Davis, alone in his home, alone in car rides, in the office, and, most of all, in the fact and in the manner that Proctor sent money to him at the ADC are beyond reproach. These allegations alone require this three-member panel to find unanimously that Judge Willard Proctor, Jr. should be removed from the bench.

If the Demoreo Davis allegations are not accepted by the full Commission or by the Arkansas Supreme Court for any reason, which we find there is none, there are other remaining allegations that we have found as fact and have concluded as violations of law. It is our belief that while actionable as misconduct, there are modes of punishment more measured and less drastic than removal that could address and sanction the allegations sustained. All of the problems set forth within the complaints before us occurred while Proctor disposed of a criminal docket, not a civil docket. A lesser punishment that seems fitting to us for the remainder of the allegations would be a six-month suspension from the bench, without pay for three months, with pay for three months, as well as a fine or assessment of $25,000.00 to be paid for the costs of the staff's investigation and prosecution of this petition and these cases, and a directive from the Arkansas Supreme Court that Judge Proctor be relieved of conducting criminal and juvenile dockets so long as he serves as a judge in this state, restricting his caseload to handling civil and/or probate matters only.

In accordance with the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission (2007), the full commission reviewed the panel's decision and entered its own findings of fact, conclusions of law, and recommendation. Specifically, the Commission found the following violations of the judicial canons:

1. Judge Proctor willfully violated Canon 2(B) by preparing a “profit & loss” statement for his Division and sending it to the bank for a determination of the credit worthiness of Cycle Breakers, Inc.

2. Judge Proctor served as an officer, director, trustee or non-legal advisor of an organization that was be [sic] engaged in proceedings that ordinarily came before the judge in violation of Canon 4(C).

3. Judge Proctor willfully violated Canon 4(C) by lending the prestige of his office to a private corporation by preparing a “profit & loss” statement for his Division and sending it to the bank for a determination of the credit worthiness of Cycle Breakers, Inc.

4. Judge Proctor willfully violated Canon 4(A) of the Code by involving himself in the operation of Cycle Breakers, Inc. to the extent that it cast reasonable doubt on the judge's capacity to act impartially as a judge.

5. Judge Proctor willfully violated Canon 4(A) of the Code by personally involving himself with party defendants in his Court to the extent that it cast reasonable doubt on the judge's capacity to act impartially as a judge.

6. Judge Proctor willfully violated Canon 2 by failing to avoid the appearance of impropriety by sending money to a convicted robber that he sentenced to the Department of Corrections [sic].

7. Judge Proctor willfully violated Canon 2 by failing to avoid the appearance of impropriety by allowing a party defendant in his Court to live at the Judge's personal residence for over a week.

8. Judge Proctor willfully violated Canon 2 by failing to avoid the appearance of impropriety by allowing a party defendant in his Court to live at the Judge's personal residence on certain weekends.

9. Judge Proctor willfully violated Canon 2 by failing to avoid the appearance of impropriety by giving rides in his personal vehicle to at least eight (8) party defendants.

10. Judge Proctor willfully violated Canon 2 by failing to avoid the appearance of impropriety by having inappropriate contact with party defendants subject to his jurisdiction, by collecting money from them in open court and eating lunch and visiting with them in chambers.

11. Judge Proctor willfully violated Canon 3(B)(7) by engaging in ex parte contact with party defendants subject to his jurisdiction, by giving them car rides, by visiting with them at Cycle Breaker [sic] meetings, and by visiting with them in the courthouse outside of a court setting without counsel or the State present.

12. Judge Proctor willfully violated Canon 4(A) of the Code by stating that he knew he might lose his judicial office based on his actions regarding party defendants subject to his jurisdiction.

13. Judge Proctor willfully violated Canon 4(A) of the Code by allowing his personal interests regarding rehabilitating criminals to be superior to his sworn duty as a judge.

14. Judge Proctor willfully violated Canon 3(B)(4) by coercing his staff into working for Cycle Breakers, Inc.

15. Judge Proctor willfully violated Canon 2(A) of the Code by failing to respect and comply with the law by ignoring and by-passing laws that were an impediment to his interest in Cycle Breakers, Inc.

16. Judge Proctor willfully violated Canon 2(A) of the Code by failing to respect and comply with the law by enforcing payment of “civil fees” from these defendants with the jail [sic] or with the threat of jail, knowing the money would go to his non-profit corporation.

The Commission then made the following recommendation to this court:

Given all of that which is before the full commission, it is our belief that there is clear and convincing evidence and proof, and there are, as well, compelling reasons for Judge Proctor to be removed from the bench.

We must determine whether to accept the Commission's recommended findings and recommendation of removal.³

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. See Ark. Jud. Discipline & Disability Comm'n R. 12(E) (2009). We may accept, reject, or modify in whole or in part, the findings and recommendation of the Commission. See id. See also Judicial Discipline & Disability Comm'n v. Simes, 2009 Ark. 543, 354 S.W.3d 72. This is a matter requiring de novo review, and we will not reverse the Commission's findings unless they are clearly erroneous. See Judicial Discipline & Disability Comm'n v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000).

I. Impropriety of Relationships with Defendants

At issue, first, is whether Judge Proctor had relationships of an improper nature with defendants subject to his jurisdiction. The Commission concluded that he did, and it found that Judge Proctor's conduct violated Canons 2, 3(B)(7), and 4(A).

A. Canon 2

Canon 2 of the Arkansas Code of Judicial Conduct provides that “[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.” Ark.Code Jud. Conduct Canon 2 (2007). Here, the Commission made several findings regarding Judge Proctor's relationships with defendants, which it concluded were violative of Canon 2. Specifically, the Commission made findings that Judge Proctor failed to avoid the appearance of impropriety by: (1) sending money to a convicted robber that he had sentenced to the Department of Correction (“ADC”); (2) allowing a party defendant in his court to live at his personal residence for...