Conduct of Gustafson, In re

• Decision Date: 17 May 1988
• Parties: In re Complaint as to the CONDUCT OF the Honorable Bert GUSTAFSON, Accused. 86-6-8; SC S34669.
• Court: Oregon Supreme Court

Page 21

756 P.2d 21

305 Or. 655

In re Complaint as to the CONDUCT OF the Honorable Bert GUSTAFSON, Accused.

86-6-8; SC S34669.

Supreme Court of Oregon In Banc.

Argued and Submitted March 3, 1988.

Decided May 17, 1988.

Jacob Tanzer, of Ball, Janik & Novack, Portland, argued the cause and filed a brief on behalf of Judge Gustafson.

Gary A. Rueter, of Haugeberg, Rueter, Stone & Gowell, P.C., McMinnville, argued the cause and filed a brief on behalf of the Com'n on Judicial Fitness.

PER CURIAM.

The Commission on Judicial Fitness conducted an inquiry into allegations of misconduct against Judge Bert Gustafson, a judge of the Tillamook County District Court. After a hearing, the Commission found that charges arising in 13 cases were proved by clear and convincing evidence, and that those in 14 other cases were not proved. The Commission recommended that this court censure Judge Gustafson. Three members of the Commission also recommended a six-month suspension. Upon our own review of the record, we agree with the Commission and censure Judge Gustafson.

The pertinent constitutional provisions governing discipline of judges are set out in Article VII (Amended), section 8(1)(b) and (e) of the Oregon Constitution. They provide:

"(1) In the manner provided by law, and notwithstanding section 1 of this Article, a judge of any court may be removed or suspended from his judicial office by the Supreme Court, or censured by the Supreme Court, for:

" * * *

(b) Wilful misconduct in a judicial office where such misconduct bears a demonstrable relationship to the effective performance of judicial duties; or

" * * *

(e) Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court"

The rules of judicial conduct anticipated in subsection (1)(e) were previously established by this court in the Code of Judicial Conduct.

Under the constitutional provisions, both "misconduct" related to the performance of judicial duties and "violation of any rule of judicial conduct" must be "wilful" before a judge can be removed, suspended, or censured by this court. Although we review "the law and facts" upon the record made before the Commission, ORS 1.430(1), in this case the objective facts as found by the Commission are, with immaterial exceptions, essentially undisputed. There is a dispute between the Commission and Judge Gustafson whether the Commission misconstrued the term "wilful" in some or all of the instances in which the Commission found "wilful" violations or misconduct. Judge Gustafson concedes that the acts found censurable by the Commission were improper, but he denies that they were wilfully so, and the Commission in turn does not press the dismissed charges in this court.

The Commission's findings occupy 24 pages, and in view of the nature of the disagreement we need not set out the facts of each in detail here. Most of the charges arose from Judge Gustafson's conduct toward defendants and their counsel in a number of criminal cases. Because the disputed issue is whether the conduct was "wilful," the parties begin their briefs with a discussion of that issue, and so shall we.

I.

The Commission's opinion acknowledges that a judge's errors of law are reviewable in an appellate court and ordinarily do not constitute "wilful" misconduct subjecting the judge to disciplinary action. The opinion continues:

"We construe 'wilful' as used in Article VII (Amended) Section 8(1)(e) of the Oregon Constitution to mean not only to act intentionally or deliberately, but to do such an act with bad or evil purpose, or wantonly and in disregard of the rights of others, or contrary to a known duty, or without authority and in reckless disregard of whether the judge had the right or not.

"We construe 'wilful misconduct' as used in Article VII (Amended) Section 8(1)(b) of the Oregon Constitution to require improper or wrongful use of the powers of judicial office by a judge acting intentionally or with gross unconcern for his or her conduct and generally in bad faith. Bad faith involves more than an error of judgment or mere lack of diligence. Bad faith may be shown by specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known as beyond the legitimate exercise of judicial authority."

(Citations omitted.) Judge Gustafson's brief states that "wilful" takes its meaning from the context in which it is used, citing a number of illustrations in Oregon cases. The brief continues:

"The constitutional term 'wilful' sets a subjective standard, not an objective one. Thus, the constitution establishes as a prerequisite to official sanction that it be proved that a judge knew his conduct to be improper, but did it anyway. It is not sufficient to show that he reasonably should have known; disregard of a known rule or criterion must be clearly and convincingly proved.

"A judge who acts in the mistaken belief that his conduct is legally authorized makes an error of law. The law provides procedures for the correction of such errors, e.g., appeal, mandamus, etc. A judge commits a wilful violation only when he knows his conduct to be contrary to law and proceeds despite that knowledge. Judges violate the law daily, but they are not in wilful violation of the law unless they have intentionally, knowingly or purposely violated the law."

" * * *

"In this constitutional context, involving the gravest of public action against elected judicial officials, wilfulness should be deemed to refer to intentional, knowing, deliberate abuse of judicial office of a magnitude sufficient to warrant disciplinary action."

In this court, the Commission defends its interpretation of "wilful" and insists upon an objective rather than subjective standard covering "wanton" or "reckless" disregard of his duties or the rights of others, and "gross unconcern for his or her conduct," regardless whether the judge realized its impropriety. Our prior decisions applying Article VII (Amended), section 8 have not dealt extensively with the question. ¹

"Wilful" is a notoriously problematic word, and defining it by its cousins, "wanton" and "reckless," merely triplicates the problem and does nothing to clarify it. In the context of providing for discipline, including possible removal, of an elected judge, we agree with Judge Gustafson's contention that "wilful" was used to include subjective as well as objective elements of culpability in assessing a judge's departure from the prescribed norms of conduct. It is not enough that a judge was negligent, that he "should have known better." Ignorance and incompetence are covered by a separate standard. ² Adding the quantifying "gross" before negligent raises the degree of departure from proper conduct, but it bears on subjective culpability only when it leads to the inference that the judge necessarily must and in fact did know better.

A judge's act falls within Article VII (Amended), section 8(1)(b) or (e), only if the judge wilfully violates a rule of judicial conduct or otherwise misbehaves in relation to judicial duties to any degree, large or small; and error from carelessness or incompetence also must be wilful, if it is charged under those provisions rather than under section 8(1)(d) as "generally incompetent performance of judicial duties." An improper motive can taint an otherwise permissible act, and a benign motive will not excuse the intentional or knowing violation of a nondiscretionary norm. Also, ignorance of the governing standards of conduct themselves no more excuses judges than those whom they judge.

As Judge Gustafson's brief notes, in the criminal law "wilful" and its synonyms have been replaced as tests of culpability by the mental states of "intent" and "knowledge." ORS 161.085(7) and (8). Neither requires knowledge of the law alleged to have been broken, as distinct from knowledge of some other law that may be an element of an offense. The mental element of knowledge in any offense refers to awareness of conditions and circumstances in which the rule of conduct applies, and intent refers to the conscious objective of causing the result or of acting in the manner defined in the rule of conduct. Similarly, we hold that a judge's conduct is "wilful" within the meaning of Article VII (Amended), section 8, if the judge intends to cause a result or take an action contrary to the applicable rule and if he is aware of circumstances that in fact make the rule applicable, whether or not the judge knows that he violates the rule.

II.

The Commission grouped its allegations into four types of charges:

(1) violations of Canon 2 A ("A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,") and 3 A(3) ("A judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity");

(2) failure to afford litigants and their lawyers full rights to be heard according to law, contrary to Canon 3 A(4) ("A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding");

(3) ex parte contacts or communications contrary to the same canon; and

(4) failure to "disqualify himself or herself in proceedings in which the judge's impartiality might reasonably be questioned" for "personal bias or prejudice" or "personal knowledge of disputed evidentiary facts," as required by Canon 3 C(1).

The Commission also charged and found "wilful misconduct" under section 8(1)(b), and it charged but did not find that Judge Gustafson was generally incompetent to perform judicial duties within the meaning of section 8(1)(d). It is apparent...