Buford, Matter of
| Decision Date | 28 February 1979 |
| Docket Number | No. 60603,60603 |
| Parties | In the Matter of Honorable Winston V. BUFORD, Respondent. |
| Court | Missouri Supreme Court |
James M. Smith, Counsel, Commission on Retirement, Removal and Discipline, St. Louis, Dee Wampler, Springfield, for Commission.
Thomas B. Curtis, Leland B. Curtis, David R. Hensley, Thomas E. Allen, Clayton, for respondent.
This is a disciplinary proceeding brought by the Commission on Retirement, Removal and Discipline (Commission) pursuant to art. 5, sec. 27, Mo.Const., and Rule 12. Respondent is the circuit judge for the 37th judicial circuit which encompasses the counties of Howell, Shannon, Carter, and Oregon. The Commission found respondent violated the Supreme Court Rules, the Code of Judicial Conduct, and the statutes of the state of Missouri, and recommended that respondent be removed from office. This case is on review before this court pursuant to art. 5, sec. 27, Mo.Const., as amended 1970, 1 and Rule 12.
A unanimous opinion in this case was handed down on November 14, 1978, holding that respondent be suspended, without pay, for a period of thirty days. Subsequently, this court sustained the Commission's motion for rehearing. The court informed the parties it desired briefs and The case has now been reargued and the former opinion is withdrawn. 1a The court has concluded that it is important to state the reasons and set forth the authorities which bear upon the two methods of review substantial evidence test and independent review as this is of major concern to the Commission as seen in its motion for rehearing. The court has also concluded that no significant purpose is served by readopting verbatim the very lengthy opinion previously issued in this case. The following then is a modified opinion on the whole case after rehearing. The scope of review matter will be treated at some length and then the various charges, findings, conclusions, recommendations, and this court's adjudication of them will be discussed.
argument on the proper scope of review to be utilized by this court and the parties were informed they could argue other points.
Respondent contends the violation of a provision of the Supreme Court Canons of Judicial Ethics is not, per se, sufficient to constitute an offense warranting discipline under art. 5, sec. 27, Mo.Const., or Rule 12.08. However, this contention has already been ruled upon adversely to respondent's contentions in Matter of Kohn, 568 S.W.2d 255 (Mo. banc 1978), to which earlier ruling we adhere.
It is the Commission's initial point that the findings and conclusions of the Commission are binding on this court and only the recommendation of discipline is subject to review here. This point is overruled and the reasons therefor will appear infra in connection with the Commission's second position which is that this court's review is limited to a determination as to whether there is substantial evidence to support a finding or conclusion and that this court cannot, under the constitution, make an independent review of the findings made by the Commission.
In this connection, a substantial part of the Commission's motion for rehearing, brief and argument, concerns the court's holding in the earlier opinion that the court is not bound by the findings and conclusions of the Commission and the "credibility, weight, and value of the witnesses and the determination of all fact issues necessary to a decision in the case are for this court . . ." in short, that this court must make a de novo review of the facts citing In re Schiff, 542 S.W.2d 771 (Mo. banc 1976), a lawyer disciplinary case, and In re Duncan, 541 S.W.2d 564 (Mo. banc 1976), a judge disciplinary case where we adopted the "preponderance of evidence" as the burden of proof because that was the burden in lawyer disciplinary matters. In re Duncan at 568, and In re Fullwood, 518 S.W.2d 22, 24 (Mo. banc 1975), recognized that the Missouri constitutional provision is patterned after the California constitutional provision. However, neither the standard of proof nor scope of review issue were the subject of challenge or detailed discussion in Duncan or Fullwood.
The Commission argues this court must defer to the Commission's findings of fact and restrict its review of such matters to the question of whether there is competent and substantial evidence to support the Commission's findings and not conduct a de novo review; that the attorney disciplinary case of In re Schiff, supra, is not sufficient or relevant authority for adopting a scope Prior to the 1970 amendment to art. 5, sec. 27, Mo.Const., the only method of removing a judge from office for misconduct in office was by way of impeachment under art. 7, sec. 1, Mo.Const. Although In re Mills, 539 S.W.2d 447 (Mo. banc 1976), an attorney disbarment proceeding, is cited by the Commission as an alternative to impeachment prior to the amendment creating the Commission, the Mills case does not support an assertion that a disbarment proceeding can be utilized to oust a judge from office for judicial misconduct.
of review which requires this court to undertake a de novo evaluation of the evidence. Although the court is of the view that an Independent evaluation is required in this type proceeding, the complaint regarding Schiff as being inadequate authority has merit.
The removal of a judge from office for judicial misconduct by action of the Commission and this court is controlled by art. 5, sec. 27, Mo.Const., and the provisions pertinent to the instant matter are as follows:
Rule 12 was adopted by this court pursuant to subsection 6, Supra, to implement art. 5, sec. 27.
Rule 12.08(a) and (b) in part requires the Commission to make an informal investigation of complaints, which are not obviously unfounded or frivolous, of misconduct, etc., and upon completion of the investigation, if four members of the Commission who have read the investigation find there is probable cause to believe the judge is guilty, the Commission is to institute a formal proceeding against the judge.
Rule 12.08 in part provides:
It is noted here that the constitution does not, per se, require the Commission to make findings of fact or conclusions of law. The constitutional provision requires the Commission to, when the Commission deems it advisable, make a recommendation of discipline to this court. However, in order for this court to know what the underlying The constitution, art. 5, sec. 27.3, does not require the court to agree with the recommendation of the Commission. Indeed, the wording of art. 5, sec. 27.3, provides that the court shall discipline only "Upon concurring" with the recommendation. It seems clear, therefore, that the court may constitutionally Not concur. This provision is the one which makes discipline discretionary with this court.
facts were which formed the basis of the conclusions and ultimate recommendation, the court by rule provided that findings of fact and conclusions of law be set forth by the Commission.
It is also clear that the Commission cannot effect discipline. The constitution requires that discipline, when adjudicated, be adjudicated and imposed by the Supreme Court en banc, and, although deference should be shown to the recommendations of the Commission, the court is not bound by them.
How, then, can the court go about deciding whether or not to concur with the Commission's recommendation of discipline? It would seem that the court would, of necessity, examine into the evidence to decide whether it concurs with the fact findings and then whether it concurs with the conclusions that certain violations occurred. In other words provide an independent review of the case. It is difficult to understand how this court could concur with the recommendation if it were not in agreement with...
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