Atty. Disciplinary Bd. v. Weaver

• Decision Date: 28 March 2008
• Docket Number: No. 07-0671.,07-0671.
• Citation: 750 N.W.2d 71
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. JAMES Andrew WEAVER, Respondent.
• Court: Iowa Supreme Court

750 N.W.2d 71

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. JAMES Andrew WEAVER, Respondent.

No. 07-0671.

Supreme Court of Iowa.

March 28, 2008.

Charles L. Harrington and Elizabeth E. Quinlan, Des Moines, for complainant.

James A. Weaver, Muscatine, respondent, pro se.

TERNUS, Chief Justice.

The complainant, Iowa Supreme Court Attorney Disciplinary Board, filed a two-count complaint against the respondent, James Weaver. Weaver, an Iowa attorney, was charged with ethical violations based on (1) his commission of second-offense operating while intoxicated (OWI), and (2) his statements to a newspaper reporter challenging the honesty of the judge presiding over Weaver's criminal OWI prosecution. The matter was heard before a panel of the Iowa Supreme Court Grievance Commission, which determined Weaver had violated the Iowa Code of Professional Responsibility for Lawyers and recommended that Weaver's license to practice law be suspended for three months. After reviewing the record and considering the arguments of the parties, we agree that Weaver has committed ethical infractions, and we suspend his license to practice law with no possibility of reinstatement for three months.

I. Scope of Review.

This matter is before the court for review of the Grievance Commission's report and for final disposition of the charges lodged against the respondent by the Board. See Iowa Ct. Rs. 35.9, .10(1). The Board has the burden to prove the alleged ethical violations by a convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 130-31 (Iowa 2004). "A convincing preponderance of the evidence is a greater quantum of evidence than that required in a civil trial, but less than that required to sustain a criminal conviction." Comm. on Prof'l Ethics & Conduct v. Hurd, 375 N.W.2d 239, 246 (Iowa 1985).

We review the factual findings of the Grievance Commission de novo. Iowa Ct. R. 35.11(3). Although we give weight to the Commission's findings, especially when considering the credibility of witnesses, we find the facts anew. Iowa Supreme Ct. Att'y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). "We also respectfully consider the discipline recommended by the Commission, but we are not bound by such recommendations." Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 655 (Iowa 2001).

II. Factual Findings.

A. Weaver's Alcoholism and OWI Violations. Weaver, who was fifty-one at the time of the conduct giving rise to this case, has practiced law in Iowa since his admission to the bar in 1979. From 1982 until December 2004, he served as an associate district court judge. In December 2004, this court granted Weaver's request for a disability retirement from his judicial position. Since that time, he has engaged in the private practice of law in Muscatine.

On November 15, 2002, Weaver was convicted of the crime of operating while intoxicated, first offense. As part of his sentence, he was ordered to complete inpatient treatment for alcoholism. So, in late 2002, Weaver spent twenty-eight days in an inpatient treatment program called New Beginnings. He thereafter remained alcohol free until July 2003.

Meanwhile, the Commission on Judicial Qualifications determined that Weaver's conduct of driving while intoxicated violated the Iowa Code of Judicial Conduct. As part of its investigation of this incident, the Commission on Judicial Qualifications required Weaver to undergo a substance abuse evaluation at Rush Behavioral Health Center. This evaluation, conducted in September 2003 after Weaver's relapse, led to Weaver's inpatient treatment in a Florida program designed for professionals. After his second treatment was completed in November 2003, Weaver remained abstinent until August 2004.

In late 2004, the Commission on Judicial Qualifications recommended to this court that Weaver receive a public reprimand for the conduct that had resulted in Weaver's first OWI conviction. Acting on this recommendation, we entered an order on December 10, 2004, finding Weaver had violated Canons 1 and 2A of the Iowa Code of Judicial Conduct and publicly reprimanding him for these violations.¹ That same month, the court granted Weaver's application for disability retirement based on his alcoholism.

On November 8, 2004, approximately one month before Weaver was publicly reprimanded for his first OWI offense, he was arrested for second-offense OWI after a citizen called police with a reckless-driving report. Weaver was subsequently charged with OWI, second offense, after testing revealed he had a .185 blood alcohol content.

After his second arrest, Weaver was admitted to the Multiple Addictions Recovery Center (MARC) in Davenport on November 10, 2004, where he underwent his third inpatient treatment for alcoholism. Weaver was successfully discharged from that program on December 7, 2004, and reported at the hearing on the current disciplinary charges that he has remained alcohol free since that date. Weaver resumed the practice of law in January 2005.

Judge Denver Dillard was assigned to preside over Weaver's second OWI prosecution, and on April 18, 2005, he accepted Weaver's guilty plea to OWI, second offense. Because Weaver had waived any delay in sentencing, he was sentenced on the same day. Pursuant to a plea agreement between Weaver and the State, the State recommended a $1500 fine, payment of costs, and 180 days in the county jail with all but seven days suspended. Weaver asked the court that he be given credit against any jail time for the period he spent in inpatient treatment in MARC after his second arrest.

Following a nearly two-hour hearing, Judge Dillard rejected the State's recommendation and, invoking Iowa Code section 904.513,² sentenced Weaver to the Iowa Department of Corrections for an indeterminate term not to exceed two years. The court ordered that Weaver, upon mittimus, be immediately placed at an appropriate alcohol treatment correctional facility, and upon achievement of the maximum benefits from the treatment program, be released on parole. He also fined Weaver $1500 plus surcharges. Because Weaver had spent no time in jail following his arrest, the court allowed no credit for time previously served.

Weaver immediately asked the court to keep the record open so he could submit his MARC records to show that he had already completed the same program that would be available through the Department of Corrections. The judge responded that he would entertain a motion to reconsider the sentence and would schedule a hearing for that purpose, but he was not going to change his mind about the sentence at the sentencing hearing. He set the date of May 6, 2005, for Weaver to report to the department for commencement of his sentence.

The day after sentencing, April 19, Weaver filed a motion to reconsider sentence, arguing that he would not benefit from the sentence imposed, as he had already undergone the inpatient treatment program that would be available through the Department of Corrections. He also filed several other motions, attaching reports from his MARC treatment to a motion to reopen the record. On May 6, Judge Dillard denied Weaver's motions, stating in pertinent part:

The Defendant [Weaver] has filed Motion for Reconsideration of Sentence, Motion to Delay Mittimus, Motion to Reopen the Record and Motion for a Presentence Addendum. All of said motions are directed at the request of the Defendant that the court reconsider its sentence before the Defendant begins serving any portion thereof. Based upon the conclusions reached by the court that the defendant has a serious alcohol and substance abuse addiction problem and the past failures of treatment, the court believes that the Defendant's sentence should commence and that any reconsideration of sentence would be based, in part, upon the progress of the Defendant in the treatment program pursuant to Iowa Code section 904.513.

The judge scheduled a hearing for June 3, 2005, for purposes of reconsidering Weaver's sentence.

The same day that Judge Dillard's order denying Weaver's motions was filed, Weaver filed a notice of appeal of his conviction and sentence. Due to his appeal, Weaver did not report to the department to begin his sentence as scheduled on May 6.

On May 31, when Judge Dillard became aware that Weaver had appealed, Judge Dillard signed an order canceling the June 3 hearing "[f]or the reason that the Defendant has filed a Notice of Appeal in this matter." Weaver immediately filed a motion to reconsider the cancellation of the hearing, which the judge denied on June 1, 2005, stating:

The Defendant's appeal of the judgment and sentence of the court and his posting of the appeal bond has stayed the execution of the sentence. The Defendant's rejection of the court's judgment makes it impossible for the court to evaluate the rehabilitative effect of the sentence.

On the same day this order was filed, Weaver spoke with a newspaper reporter from the Muscatine Journal. An article published the following day was headlined: "Bias on the bench. Ongoing court battle pits judge against retired judge as Weaver makes allegations of personal bias, dishonesty against presiding judge." The reporter included quotes from Weaver in the body of the article, which stated in pertinent part:

"When Judge Dillard sentenced me in April, he felt that I was in need of substance abuse treatment," Weaver said. "I pointed out to him that I had completed the same treatment program in November 2004."

Although Weaver was supposed to report to the Davenport facility on May 6, Davenport attorney, James D. Hoffman, filed four motions before Dillard on May 3, asking that Weaver's alcohol treatment program records be added into the court's records and contending that Weaver would not gain any benefit from the Davenport substance abuse program because he received...