Conduct of Schenck, In re

• Decision Date: 28 April 1994
• Citation: 318 Or. 402,870 P.2d 185
• Court: Oregon Supreme Court
• Parties: In re Complaint as to the CONDUCT OF The Honorable Ronald D. SCHENCK, Accused. JFC 91-119; SC S40197.

Page 185

870 P.2d 185

318 Or. 402

In re Complaint as to the CONDUCT OF The Honorable Ronald D.

SCHENCK, Accused.

JFC 91-119; SC S40197.

Supreme Court of Oregon.

Argued and Submitted Nov. 3, 1993.

Decided March 10, 1994.

Reconsideration Denied April 28, 1994.

[318 Or. 403-C] Ronald D. Schenck, La Grande, in pro per, argued the cause and filed the briefs.

[318 Or. 403-D] Ronald L. Marceau, Bend, argued the cause and filed the brief on behalf of the Com'n on Judicial Fitness and Disability.

Thomas M. Christ, Portland, filed a brief amicus curiae on behalf of the ACLU Foundation of Oregon, Inc.

Before GILLETTE, P.J., VAN HOOMISSEN and UNIS, JJ., and RICHARDSON and WARREN, JJ. Pro Tem.

PER CURIAM.

This judicial discipline case is before the court on mandatory direct and de novo review of the Findings of Fact, Conclusions of Law and Recommendation of the Commission on Judicial Fitness and Disability (Commission). ¹ The Commission issued a complaint and notice of institution of formal proceedings against Ronald D. Schenck, a judge of the circuit court of the State of Oregon for Union and Wallowa Counties (the Judge), alleging that he had violated several canons of the Oregon Code of Judicial Conduct (the Code). After a hearing, the Commission found that the Judge had violated certain canons in several respects, and recommended that he be suspended from office without pay for three months.

The Commission concluded that the Judge had wilfully violated Canons 1, 2 A, and 3 C(1) when he refused to disqualify himself in cases in which his impartiality might reasonably be questioned, that the Judge had wilfully violated Canons 1, 2 A, and 3 A(4) when

he initiated ex parte communications concerning pending or impending cases, and that the Judge had wilfully violated Canons 1, 2 A, and 3 A(6) when he made public comments in a letter to the editor and in a guest editorial about pending or impending cases and about the District Attorney of Wallowa County. ² After discussing the law that applies generally to each canon that the Commission concluded the Judge had violated, we will consider each of the Commission's conclusions in turn. ³

STANDARDS FOR REVIEW AND DISCIPLINE

Article VII (Amended), section 8(1)(e), of the Oregon Constitution, provides in part:

"(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:

" * * * * *

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

Consistent with this constitutional recognition of its authority, the Supreme Court has adopted the Code. See In re Fadeley, 310 Or. 548, 560-61, 802 P.2d 31 (1990) (holding that the constitutional provision carried with it the acknowledgement of preexisting rules regulating judicial conduct). The canons of the Code at issue in this case were in effect at all material times.

This court reviews de novo the Commission's findings, conclusions, and recommendation. ORS 1.430(1); In the Matter of Field, 281 Or. 623, 627-28, 576 P.2d 348 (1978). In order to conclude that there had been a wilful violation of a rule of judicial conduct established by this court, we must find clear and convincing evidence of a wilful violation. See In re Gustafson, 305 Or. 655, 668, 756 P.2d 21 (1988) (applying that standard); In the Matter of Field, supra, 281 Or. at 629, 576 P.2d 348 (same).

In In re Gustafson, supra, 305 Or. at 660, 756 P.2d 21, this court held:

"[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."

The intent required is simply an intentional act, defined as an act done with "the conscious objective of causing the result or of acting in the manner defined in the rule of conduct." Id.

CANONS 1 AND 2 A

Canon 1 provides:

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

Canon 2 A provides:

"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."

With respect to each violation of Canon 3, the Commission found, without discussion, concomitant wilful violations of Canons 1 and 2 A. We conclude that the violations of

Canon 1 stand or fall with the conclusions respecting the violations of Canon 3. The same also is true of the violations of Canon 2 A, with the exception of the alleged violation of Canon 3 A(6), where Canon 2 A will be discussed separately below.

CANON 3 C(1)

Canon 3 C(1) provides:

"A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

"(a) the judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;

"(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously was associated served during such association as a lawyer concerning the matter or the judge or such lawyer has been a material witness concerning it;

"(c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or is a party to the proceeding, or have any other interest that could be substantially affected by the outcome of the proceeding;

"(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

"(i) is a party to the proceeding, or an officer, director or trustee of a party;

"(ii) is acting as a lawyer in the proceeding;

"(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

"(iv) is, to the judge's knowledge, likely to be a material witness in the proceeding."

The general standard of conduct stated in the first clause of Canon 3 C(1) expressly includes, but is not limited to, the four particular instances listed in Canon 3 C(1)(a)-(d).

The purpose and importance of Canon 3 C(1)'s admonition, viz., "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned * * *," should be evident, because not only the fact but also the appearance of impartiality are the very currency of judicial legitimacy. See In re Fadeley, supra, 310 Or. at 563, 802 P.2d 31 ("The stake of the public in a judiciary that is both honest in fact and honest in appearance is profound. A democratic society that, like ours, leaves many of its final decisions, both constitutional and otherwise, to its judiciary is totally dependent on the scrupulous integrity of that judiciary."); see also Code of Judicial Conduct, Canon 2 A ("A judge should * * * act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."); Abramson, Judicial Disqualification under Canon 3 of the Code of Judicial Conduct vii, 15 & n 26 (2d ed 1992) (the appearance of impartiality is important to developing public confidence in the judiciary). Indeed, the rules of judicial conduct are fashioned, in part, for the purpose of maintaining public confidence in the legal system, by imposing a system of ethical restraints that will further both the fact and the appearance of a system committed to providing equal justice under law. Abramson, supra, at 1, 15.

With the foregoing principles in mind, we consider each of the four cases in which the Commission concluded that the Judge had wilfully violated Canons 1, 2 A, and 3 C(1) when he refused to disqualify himself.

A. The Hopkins juvenile case

In 1989, Karen Hopkins pleaded guilty to charges of sodomy in the first degree and sexual abuse in the first degree, involving one of her two children. She was placed on probation with several special conditions. In August 1990, Children's Services Division (CSD) filed a dependency petition in juvenile court with respect to Hopkins' children. ORS 419.476(1)(d). Her children were placed in CSD's temporary custody. Periodic status reports filed by CSD stated that The Judge took office as a circuit judge in January 1991. In April 1991, Hopkins was charged with violating a term of her criminal probation that required her to participate in a treatment program for sexual offenders. The Judge presided over that probation violation hearing. In September 1991, he issued a written opinion in which he concluded that Hopkins had not wilfully violated her probation. That opinion also stated:

CSD's goal was to return the children to their parents.

"The Court is convinced that insofar as her children are concerned, this young woman, will not, in the foreseeable future, be able to participate in their lives, or to have any relationship with them whatsoever.

" * * * * *

"CSD should move to develop a permanent plan for the placement of [Hopkins'] children, which does not include contact with [Hopkins]. Termination of parental rights should be pursued."

Between September 4, 1990, and October 24, 1991, no hearings were held, no petitions were filed, and the court made no rulings in the Hopkins juvenile case. The children remained in CSD's custody subject to further order of the court. ORS 419.577(1)(e).

On October 25,...