Biggins, Matter of

• Decision Date: 14 May 1987
• Docket Number: No. JQ-86-0004,JQ-86-0004
• Citation: 153 Ariz. 439,737 P.2d 1077
• Parties: In the Matter of Leland J. BIGGINS, Justice of the Peace, Seligman, Yavapai County, State of Arizona.
• Court: Arizona Supreme Court

Page 1077

737 P.2d 1077

153 Ariz. 439

In the Matter of Leland J. BIGGINS, Justice of the Peace, Seligman, Yavapai County, State of Arizona.

No. JQ-86-0004.

Supreme Court of Arizona, In Banc.

May 14, 1987.

Rubin, Croxen & Myers by Edith Croxen, Tucson, for Com'n on Judicial Qualifications.

Eaton & Furlong by William Lee Eaton, Prescott, for respondent.

HOLOHAN, Justice.

Arizona's Commission on Judicial Qualifications (Commission) recommended that Leland J. Biggins be removed from his position as Justice of the Peace for Seligman and Ashfork, Yavapai County, for violating Canons 1, 2, 3(A)(4) and 3(C)(1) of the Arizona Code of Judicial Conduct, 17A A.R.S., and for engaging in conduct that is prejudicial to the administration of justice and that brings the judicial office into disrepute. Judge Biggins filed a petition with this court to reject the amended findings of fact, conclusions of law, and recommendation of the Commission. We have jurisdiction over the matter pursuant to Ariz. Const. art. 6.1, and Rule 15, of the Rules of Proc. for the Comm. on Jud.Qual., 17A A.R.S.

FACTS

In judicial discipline matters we have the duty of making an independent evaluation, or de novo review on the record, of the findings, conclusions and recommendations of the Commission. In re Walker, 153 Ariz. 307, 308, 736 P.2d 790, 791 (Ariz.1987); In re Haddad, 128 Ariz. 490, 491, 627 P.2d 221, 222 (1981).

The Commission began to investigate Leland J. Biggins in 1985 to determine whether he was qualified to serve as justice of the peace because of his alleged drinking habits. Evidence in this matter consists of eight depositions presented by counsel for the Commission and five presented by Biggins, as well as the testimony of Biggins, the sole witness who actually appeared in front of the Commission. ¹ Some of the evidence is contradictory.

Leland J. Biggins is currently the justice of the peace for Seligman and Ashfork, Yavapai County, Arizona. Biggins was appointed as justice of the peace in 1976 and was elected in 1978 and reelected in 1982. At the time of the hearing before the Commission, he planned to run again in the 1986 election. At oral argument, his attorney informed this court that he had won the 1986 election as well. Thus, Biggins has been justice of the peace for more than 10 years, over 8 of those years the result of public election. In addition, he won the latest election despite the fact that by then it was public knowledge that these proceedings had been filed against him.

The Commission's recommended findings of fact state that Biggins pled guilty to a DUI charge in 1985 and did not receive subsequent counseling. Biggins does not dispute that he was arrested for driving under the influence of alcohol on May 3, 1985. He had purchased the Black Cat Bar in Seligman earlier in the day and he had gone to the Pour House Bar in Chino Valley to celebrate. The police arrested him as he was driving away from the Pour Witnesses testified to at least three other specific occurrences in years past where the police had restrained Biggins from driving because he had been drinking, although no citations were given. Once, four to five years ago Biggins dropped by the Seligman sheriff's substation after he had been drinking, and asked to take a breathalyzer test just to experiment. His blood alcohol level at that time was .13%. Biggins testified he had not driven to the substation but the officer disagreed. Another time Biggins was "staggering" from a party and had a six-pack on the top of his car when an officer kept him from driving. Finally, a cafe manager at the Monte Carlo Truck Stop testified to an incident that she said occurred 10 to 11 years ago. Biggins came into the truck stop at about 4:00 a.m. and ordered pie and coffee. The manager claimed she tried to have Biggins arrested for being drunk and disorderly. She said she smelled alcohol on Biggins' breath and the pie and coffee ended up on the floor. The police finally drove him home, but according to the manager, before Biggins left he told her never to appear before him in Seligman. Biggins remembered the incident much differently than the manager described it, and in any case, he said that the incident in question occurred before he was appointed as justice of the peace. He said that he had been drinking and that the sheriff gave him a ride home, but Biggins denied that he was ever disorderly at the truck stop or that he threatened the manager. The Commission adopted the manager's account of the incident in its findings of fact.

[153 Ariz. 441] House. The police report indicated that at the time of the arrest, Biggins stated that he had had five drinks. The intoxilyzer test showed that his blood alcohol level was .17%. Biggins pled guilty to the DUI charge and, as part of his sentence, was ordered to go to a mandatory alcohol abuse screening session at the Yavapai Guidance Center. Biggins visited a Catholic priest in November regarding the arrest and the priest wrote a letter stating that Biggins was not an alcoholic, but the court found that this visit was insufficient to satisfy the screening requirement. Although Biggins later did attend the screening, he testified that he never received a December 5, 1985 report from the screening counselor recommending that he seek private counseling on alternatives to alcohol abuse. Biggins said that he did receive a report from the center in April, 1986, but it did not recommend that he get counseling and he did not seek treatment.

The Commission's findings of fact also discuss Biggins' ownership of the Black Cat Bar in Seligman. Biggins acknowledged that he owns the Black Cat Bar. However, Biggins did not see that his ownership creates a conflict of interest with his judicial duties, even though in 1984 he heard 93 DUI/serious traffic cases. Biggins claimed that his judgment would not be affected in spite of the fact that a DUI case might involve a patron of his bar or require his bartender to testify. Biggins stated that he had not considered the potential conflict of interest in his hearing a DUI case where his own dram shop liability as owner of the bar might later be an issue in civil tort proceedings.

The testimony of a few of the witnesses suggests that they thought Biggins had been faced with a conflict of interest in some instances. One such occurrence was suggested by a patrol deputy of the sheriff's office, Gregory Deems, who lost to Biggins in the justice of the peace election in both 1982 and 1986. Deems stated that a man whom he had cited and released for disorderly conduct in a local restaurant, told him that earlier in the evening he had been in the Black Cat Bar drinking and shooting pool with Biggins. Deems said that the man appeared in court the next day and Biggins suspended his fine.

A private attorney testified that Biggins bought one of his clients a drink after the client had appeared in front of Biggins on a preliminary matter earlier in the day. However, Biggins did not handle any part of the case beyond the initial appearance. This attorney also told of a DUI case where the defendant pled not guilty and Biggins told the defendant that the jury would probably find him guilty. The defendant then changed his mind and pled Recently the management unit of the Administrative Office of the Courts commended Judge Biggins for the smooth running of his court.

[153 Ariz. 442] guilty. This same attorney also testified that over the past five years Biggins had become very strict in following the proper procedure in handling a change of plea, and currently he did it "by the book."

The two Yavapai Deputy County Attorneys who had prosecuted DUI cases before Biggins testified that he treats DUI offenders the same as other courts do and does not deviate from normal procedures. However, Biggins testified that he always gives defendants the mandatory prison sentence for a DUI conviction, but that he does not always order the alcohol abuse screening that is required by statute. Biggins stated that ordering the screening is useless when the defendant is a "transient" (a person merely passing through the state), because the defendant will not go to the screening anyway. Biggins estimated that approximately 90% of the DUI cases he hears involve "transients" and only 10% involve local citizens.

The Commission also found that "[o]fficers of the Yavapai County Sheriff's Department state that there is difficulty enforcing alcohol-related offense laws in Seligman because of BIGGINS' reputation as a heavy drinker." The finding is based on the depositions of Gregory Deems and Marshall Davis of the Sheriff's Department. Deems testified that during about half of the DUI arrests he made on local people, the arrestee would comment on Biggins' drinking. ² However, Deems also testified that he had no information whether Biggins deals with DUI offenders differently than other courts because Deems is seldom present when DUI offenders are in court. Furthermore, he stated that aside from the disorderly conduct arrest where he thought Biggins had a conflict of interest, there had been no other arrests that he had made that had been handled inappropriately by Biggins. Davis, who was not a traffic officer but did mostly criminal work on day shifts, thought Biggins treated the local people more leniently than he treated out-of-staters, but gave no facts or statistics to back up this allegation.

The Commission found that Biggins "has a reputation as a heavy drinker in his own community and in the legal community in Prescott." Some of the witnesses testified that they had heard of Biggins' reputation for being a heavy drinker, but the same witnesses also stated that they knew of no instance where Biggins had been drinking prior to being on the bench. Biggins confirmed that he never drank while on the bench or even at lunch, but only after court hours. Although the client record prepared as a follow-up to Biggins'...