Conduct of Roth, In re

• Decision Date: 02 June 1982
• Docket Number: No. 9,9
• Citation: 293 Or. 179,645 P.2d 1064
• Parties: In re Complaint as to the CONDUCT OF The Honorable Phillip J. ROTH, Accused. ; SC 28223.
• Court: Oregon Supreme Court

Page 1064

645 P.2d 1064

293 Or. 179

In re Complaint as to the CONDUCT OF The Honorable Phillip J. ROTH, Accused.

No. 9; SC 28223.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 6, 1982.

Decided June 2, 1982.

Jack L. Kennedy, Portland, argued the cause for the accused. With him on the briefs were Kennedy, King & McClurg, Portland.

Michael C. McClinton, Salem, argued the cause for the Commission on Judicial Fitness. With him on the brief were Clark, Marsh, Lindauer, McClinton & Vollmar, Salem.

PER CURIAM.

This is a proceeding pursuant to ORS 1.420 and 1.430 and Article VII, (Amended), Section 8 of the Oregon Constitution to inquire into the conduct of a circuit court judge. The Commission on Judicial Fitness found, after a hearing, that Judge Phillip J. Roth had willfully violated a canon of the Code of Judicial Conduct and recommended to this court that Judge Roth be censured. ORS 1.420 provides in part:

"(1) Upon complaint from any person concerning the conduct of a judge or upon request of the Supreme Court, and after such investigation as the Commission on Judicial Fitness considers necessary, the commission may:

"(a) Hold a hearing pursuant to subsection (2) of this section, to inquire into the conduct of the judge; or

" * * *

"(4) If, after hearing or after considering the record and report of the masters the commission finds that the conduct of the judge justifies censure, suspension or removal from office, the commission shall recommend to the Supreme Court the censure or suspension or removal of the judge.

" * * *

ORS 1.430 provides in part:

"(1) The Supreme Court shall review the record of the proceedings under ORS 1.420 on the law and facts and may receive additional evidence. The Supreme Court may censure the judge or it may order the judge suspended or removed from office."

The permissible grounds for discipline of a judge by this court are found at Article VII, (Amended), Section 8(1) of the Oregon Constitution, as amended effective June 24, 1976:

"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:

"(a) Conviction in a court of this or any other state, or of the United States, of a crime punishable as a felony or a crime involving moral turpitude; or

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

"(c) Wilful or persistent failure to perform judicial duties; or

"(d) Generally incompetent performance of judicial duties; or

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

"(f) Habitual drunkenness or illegal use of narcotic or dangerous drugs."

The basis of the commission's recommendation was that Judge Roth was guilty of a wilful violation of a rule of judicial conduct established by the Supreme Court, specifically Canon 2 A of the Code of Judicial Conduct adopted by this court March 11, 1975. Canon 2 A provides:

"A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Judge Roth admitted the following facts and the commission found them to be true:

"FINDINGS OF FACT

"Counsel for the Commission and counsel for Judge Roth having stipulated to certain facts (Commission Exhibit A), the Commission finds, by clear and convincing evidence, the following facts:

"1. Judge Phillip J. Roth is a Judge of the Circuit Court of the state of Oregon for the County of Multnomah and continuously served in such position since January 3, 1965.

"2. No complaints regarding Phillip J. Roth have ever been the subject of any prior proceedings before this Commission.

"3. An official complaint regarding Judge Phillip J. Roth has been filed with the Commission. Judge Roth has been notified of that fact and has been advised of his rights pertaining thereto.

"4. On and prior to February 12, 1981 Judge Roth was estranged from his wife Alison Blake Ramsey Roth.

"5. On or about February 12, 1981 one Mark Allen and Judge Roth's wife were together in Mr. Allen's automobile. Judge Roth struck said automobile and caused some damage to the automobile, and Mark Allen sustained lacerations from broken window glass. Judge Roth also slapped his estranged wife, which did not result in any injury to his estranged wife.

"6. Thereafter Mark Allen filed a misdemeanor charge of recklessly endangering another person and Alison Blake Ramsey Roth filed a misdemeanor charge of assault IV against Judge Roth.

"7. Prior to any judicial proceedings regarding the charges filed against Judge Phillip J. Roth, Alison Blake Ramsey Roth, Mark Allen, and Judge Roth entered into a civil compromise whereby a sum of money was paid to complainants, and the charges were dismissed pursuant to ORS 135.703-707 "8. Jackson L. Frost, District Attorney for Linn County, Oregon, was appointed as special prosecutor to handle the prosecution of said charges against Judge Roth. If called as a witness Jackson L. Frost would testify that the charges were appropriate, but under the circumstances did not reflect upon the fitness of Judge Roth as a judicial officer.

"9. Michael D. Schrunk, District Attorney of Multnomah County, Oregon, obtained the services of Jackson L. Frost as a special prosecutor. If called as a witness District Attorney Michael D. Schrunk would testify that he does not feel that the incident reflects on Judge Roth's ability as a jurist.

"10. The Honorable Charles S. Crookham is the Presiding Judge of the Circuit Court of the State of Oregon for the County of Multnomah and has continuously served as Presiding Judge since July 1, 1978. Judge Crookham is responsible for the supervision and administration of the circuit courts and judges in Multnomah County. If called as a witness Judge Crookham would testify that he does not feel that the incident reflects on Judge Roth's ability as a jurist. He would further testify that Judge Roth has regularly and satisfactorily performed all of his judicial functions and duties as a Judge of the Circuit Court."

Based on the stipulated facts, exhibits, and sworn testimony by Judge Roth, the commission made the following additional findings:

"11. The official conduct of the Honorable Phillip J. Roth has been consistent and satisfactory.

"12. The incident under investigation was an isolated occurrence arising out of domestic difficulties, with no likelihood of repetition in the future.

"13. The incident under investigation has not affected and is not likely to affect the ability of the Honorable Phillip J. Roth to perform his judicial duties."

It then concluded:

"As a result of all the findings of fact the Commission has concluded that Judge Roth is guilty of a wilful violation of Canon 2A of the Code of Judicial Conduct adopted by the Supreme Court of the State of Oregon on 11 March 1975."

In his brief and at oral argument before us, Judge Roth makes three arguments against the commission's action: (1) It is constitutionally permissible to discipline a judge only for behavior which affects judicial fitness or ability to perform judicial duties; (2) If discipline for behavior other than that relating to official conduct is permissible, then Canon 2 A of the Code of Judicial Conduct is too vague to be enforced, and finally; (3) Before a disciplinary body can find that a judge has failed to "respect and comply with the law" in violation of Canon 2 A, it is necessary that the judge have been convicted of the underlying criminal behavior. We discuss these issues in the order we have presented them here.

IS DISCIPLINE OF A JUDGE CONSTITUTIONALLY LIMITED TO

SANCTIONS FOR BEHAVIOR AFFECTING JUDICIAL FITNESS

OR ABILITY TO PERFORM JUDICIAL DUTIES?

Article VII, (Amended), Section 8 of the Oregon Constitution provides the basis for discipline of a judge by this court. That constitutional provision includes six specific grounds for which a judge may be removed, suspended or censured. Of those six grounds, three deal explicitly with the performance of judicial duties, namely subsections (1)(b), (c) and (d):

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

"(c) Wilful or persistent failure to perform judicial duties; or

"(d) Generally incompetent performance of judicial duties."

Subsections (1)(a), relating to conviction of a crime involving moral turpitude and (1)(f), relating to habitual drunkenness or illegal drug use, relate to the moral character of the judge rather than to performance of judicial duties per se. ¹ Subsection (1)(e), at issue here, makes punishable "(w)ilful violation of any rule of judicial conduct as shall be established by the Supreme Court." We do not interpret the phrase "rule of judicial conduct" as limited to rules governing only the conduct of judges while on the bench. The phrase obviously refers to the Code of Judicial Conduct adopted by this court in 1975. The present code contains seven canons governing judicial behavior, some dealing directly with the conduct of a judge while conducting judicial duties, ² and some regulating what is clearly off-the-bench behavior in terms of its effect upon judicial duties. ³ There are two canons which might be termed general canons mandating high standards of conduct for judges. These are Canon 1:

"A Judge Should Uphold the Integrity and Independence of the Judiciary

"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The...