Cieminski, Matter of

• Citation: 270 N.W.2d 321
• Decision Date: 14 August 1978
• Docket Number: No. 9477,9477
• Parties: In the Matter of Disciplinary Action against C. James CIEMINSKI, Judge of the Barnes County Court with Increased Jurisdiction. JUDICIAL QUALIFICATIONS COMMISSION, Respondent, v. C. James CIEMINSKI, Petitioner. Civ.
• Court: United States State Supreme Court of North Dakota

Page 321

270 N.W.2d 321

In the Matter of Disciplinary Action against C. James CIEMINSKI, Judge of the Barnes County Court with Increased Jurisdiction JUDICIAL QUALIFICATIONS COMMISSION, Respondent, v. C. James CIEMINSKI, Petitioner.

Civ. No. 9477.

Supreme Court of North Dakota.

Aug. 14, 1978.

Rehearing Denied Sept. 20, 1978.

Gregory D. Morris, Bismarck, for respondent.

William D. Yuill, Fargo, for petitioner.

SAND, Justice.

This is a disciplinary proceeding against the Honorable C. James Cieminski, Judge of the County Court with Increased Jurisdiction of Barnes County, pursuant to Rule 25 of the Judicial Qualifications Commission, based upon Section 27-23-03(3), North Dakota Century Code, and Section 96 of Article IV, as amended, of the North Dakota Constitution. ¹ Complaints were filed with the Judicial Qualifications Commission (hereinafter JQC or Commission) which, after an investigation, instituted formal proceedings against Judge Cieminski.

The Commission, on 27 October 1977, served the Judge with notice which specified the charges against him and also advised that he could file written answers to the charges within fifteen days.

Judge C. James Cieminski filed an answer pursuant to Rule 9, JQC, denying the allegations of the formal complaint filed on 27 October 1977. He also moved that the JQC dismiss the complaint or in the alternative appoint an independent investigator to more fully explore the matter due to the alleged bias, prejudice, and conflict of interest exhibited by the staff attorney for the JQC. This motion was denied. The charges were amended 10 December 1977.

The JQC held a hearing, received testimony of witnesses, and made its findings of fact, conclusions of law, and recommendations. Judge C. James Cieminski petitioned the Supreme Court to modify or reject the recommendations of the JQC on the grounds that the conclusions of the Commission were not warranted by the findings of fact; that the testimony of witnesses does not support the findings of fact; and that the recommendations of the Commission are excessive and should be modified or rejected.

A summary of the pertinent findings of fact of the JQC are set out herein, followed by its conclusions of law, in parenthesis, specifying the Canons of the Code of Judicial Conduct allegedly violated by the Judge.

The Commission, in paragraph XI, found that the Judge willfully caused and allowed an unreasonable delay in the arraignment of Julie Ann Goeller and Debra Elaine Anderson on a class A misdemeanor, possession of a controlled substance, by failing to bring them before himself as the magistrate and judge of the Barnes County Court with Increased Jurisdiction (constituting willful violation of Canons 1, 2(A), 3(A)(1) In paragraph XIII it found that the Judge made the statement that Julie Ann Goeller was living at a house with four felons, which was inaccurate and misleading (constituting willful misconduct in office and willful violation of Canons 1 and 2(A), CJC 2).

and 3(A)(5) of the Code of Judicial Conduct. ²)

In paragraph XIV it found that the Judge failed to comply with the North Dakota Rules of Criminal Procedure in the arraignment of Julie Ann Goeller and Debra Anderson by not having a verbatim report of the proceedings kept either by a court reporter or by a mechanical recording of the proceedings (constituting willful failure to perform duties as prescribed by Rules 1 and 11(f), NDRCrimP, ³ and willful violation of Canons 1, 2(A) and 3(A)(1), CJC 2).

In paragraph XV it found that the Judge willfully gave the appearance of and entered into and did bargain five days of the criminal contempt sentence of Julie Ann Goeller and Debra Anderson in exchange for the non-filing of an appeal regarding the contempt charge earlier (constituting willful failure to perform duties as provided in Rule 56, NDRCrimP, ⁴ and willful violation of Canons 1, 2(A) and 3(A)(1), CJC 2).

In paragraph XVI it found that the Judge read mail belonging to an inmate of Barnes County jail without being aware of what it was at the time it was handed to him to read (constituting misconduct in office in violation of Canons 1 and 2(A), CJC 2).

In paragraph XIX it found that the "Judge did on five occasions display to eight individuals a badge or credentials issued to him as an Air Force reservist" and the "apparent purpose in doing so was to impress the viewers with the fact that he held such an assignment, that the effect of his doing so was to create in the minds of the viewers that he was involved in investigations for the purpose of prosecution, while at the same time sitting as a judge in similar cases" (constituting willful misconduct in office in violation of Canons 1, 2(A) 2 and 5(A), CJC ⁵).

In paragraph XX it found that the Judge in the course of his years as judge handled personal checking accounts on behalf of persons of the community who were having In paragraph XXI it found that the Judge was handling checking accounts on behalf of Mr. Byron Kreie, who, at the same time, had been named in a suit for the collection of the debts in the Barnes County small claims court over which the Judge presides (constituting willful violation of Canons 5(A) 5 and 5(D), CJC 6).

difficulty managing their own finances, which placed the Judge in a fiduciary relationship with these individuals in a position detrimental to the performance of his judicial duties (constituting a violation of Canons 5(A) 5 and 5(D), CJC ⁶).

In paragraph XXII it found that the voluntary action of the Judge in taking on these fiduciary duties regarding Mr. Kreie has created a conflict and has interfered with his performance of his official duties as judge of the Barnes County small claims court (constituting willful violation of Canons 5(A) 5 and 5(D), CJC 6).

The Judicial Qualifications Commission recommended that the Judge be suspended from office without salary for a period of not less than 90 days and, as a condition of reinstatement, that he first make a significant study of judicial conduct and judicial ethics or such other appropriate study as the Supreme Court may deem necessary.

The Commission on Judicial Qualifications was created pursuant to Chapter 283 of the 1975 Session Laws, now codified as §§ 27-23-01 through 27-23-12, North Dakota Century Code.

The Rules of the Judicial Qualification Commission were adopted by the Supreme Court pursuant to § 96 of Article IV, North Dakota Constitution, as amended, and § 27-23-03, NDCC.

The Code of Judicial Conduct was adopted by the Supreme Court effective 1 January 1977.

This matter is before the Court for review pursuant to Rules 24 ⁷ and 25, JQC.1

First we must determine the scope of review in this Court. While the JQC has many attributes which liken it to an administrative agency, nevertheless there is a substantial difference. An administrative agency generally has the power and duty to decide the issue before it, whereas the JQC only recommends to the Court. In determining the scope of review, consideration must be given to the particular responsibility and function of the reviewing authority over the basic subject matter, as well as the function and authority of the body whose action is reviewed. The JQC is required to make the investigation, conduct the hearing Accordingly our review, as established by case law, is de novo on the record. In the Matter of Heuermann, 240 N.W.2d 603 (S.D.1976); In re Hanson, 532 P.2d 303, 308 (Alaska 1975); Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973); and In re Diener, 268 Md. 659, 304 A.2d 587 (1973).

and makes it findings and recommendations, but the duty, authority, burden and responsibility of determining and making the actual judgment, together with the imposition of whatever penalty may be appropriate or necessary, rests with the Supreme Court. With this responsibility and power comes the concomitant obligation to conduct an independent inquiry into the evidence to determine whether or not the evidence merits the imposition of any penalty as recommended by the JQC or otherwise.

We next consider the standard of proof which applies to disciplinary proceedings, such as we have under consideration here. Disciplinary proceedings are neither civil nor criminal. Their aim is to maintain the honor and dignity of the judiciary and the proper administration of justice. The very nature and function of the judiciary can make it the target of dissidents. Case law has established that the proper standard of proof is by "clear and convincing evidence." In the Matter of Heuermann, supra; In re Inquiry Relating to Rome, 218 Kan. 198, 542 P.2d 676 (1975); In re Hanson, supra; Geiler v. Commission on Judicial Qualifications, supra; In re Haggerty, 257 La. 1, 241 So.2d 469, 479 (1970); In re Diener, supra.

The Commission in its findings separately stated that it was sensitive to what appeared to be an organized, orchestrated, vindictive campaign by one or more of the complaining parties. This, in itself, does not give us cause to more carefully scrutinize the evidence. We are concerned more with the relationship the witnesses may have, or had, with the complaining parties and, specifically, the interest and possible bias the witnesses may have had, because these items may be reflected in their testimony.

The findings of fact, conclusions and recommendations of the Commission were signed by the chairperson and staff attorney for the Commission. The document itself does not indicate whether the Commission's action was unanimous or if there were some dissents. If we are to give weight to the Commission's findings of fact as contended by its staff attorney, then the action of the Commission should be signed by each member or, in the alternative, a statement should be made that the action was unanimous, or the number for and the number against, as the case may be. This should be stated on the document itself. We nevertheless give...