Deming, Matter of
| Decision Date | 07 May 1987 |
| Docket Number | T,No. J,No. 1,1,J |
| Citation | 108 Wn.2d 82,736 P.2d 639 |
| Parties | In re the Matter of Honorable Mark S. DEMING, Judge, Pierce County District Courtacoma, Washington. D. 3. |
| Court | Washington Supreme Court |
Riddell, Williams, Bullitt & Walkinshaw by David Hoff, Seattle, for Com'n on Judicial Conduct.
Reed & Wright, Frank C. Wright (Douglas L. Applegate, of counsel), Laguna Beach, Cal., for the Judge.
John A. Strait, Tacoma, on behalf of the Bar Ass'n amicus curiae.
This case involves judicial disciplinary proceedings against District Court Judge Mark S. Deming. In this case, for the first time, the Judicial Qualifications Commission (Commission), held a public hearing regarding allegations of misconduct made against a judge. Since this appeal was argued to this court Judge Deming has resigned. We answer the issues raised because of their substantial public importance. Our de novo review indicates that Judge Deming's conduct did not comport to the standards of conduct imposed on judges in this state. As the final authority which can discipline judges, we find that Judge Deming's
conduct violated the Code of Judicial Conduct and warranted removal from office.
On July 3, 1985, the Commission served Judge Deming with a statement of allegations regarding: (a) his personal relationship with a Probation Department employee; (b) alleged sexual harassment of female employees; (c) threats to the Director of the Probation Department; and (d) aberrant and unstable courtroom behavior. In response, Judge Deming submitted information which he asserts placed the allegations in context by explaining that the charges were caused by political disputes in the Pierce County District Court system.
On October 21, 1985, the Commission served Judge Deming with a formal complaint which alleged numerous instances of conduct violating the Code of Judicial Conduct, and notice of a fact-finding hearing to be held in December at the University of Washington School of Law. On or about October 27, Judge Deming obtained legal counsel. On October 29, by letter, his counsel objected to the holding of a public hearing and requested an opportunity to appear and present oral argument. Counsel for the Commission advocated a public hearing, arguing by letter, that because of the media's substantial coverage of the matter a confidential hearing would not protect Judge Deming, and would harm the public's faith in the judicial system. On November 6, without hearing oral argument, the Commission ordered a public hearing. The Commission then made public the complaint. Judge Deming did not seek relief from this order.
Prehearing discovery and disclosure of witness lists followed. Depositions began on November 18, 1985, and continued until the evening of December 12, the first day of the hearing. Despite the shortness of time, neither counsel asked for a continuance. On December 9, a motion in limine made by counsel for the Commission was granted, excluding testimony about witnesses' sexual histories and certain The public fact-finding hearing took place between December 12 and 18, 1985. On January 10, 1986, the Commission filed a unanimous recommendation that Judge Deming be removed from office pursuant to Const. art. 4, § 31 (amend 71). On February 11, the Commission certified the matter to this court.
statements not made in Judge Deming's presence.
On February 25, 1986, the initial counsel for Judge Deming withdrew. Thereafter, Judge Deming, acting pro se, moved for reconsideration and to allow additional evidence. The above motions and a request for oral argument on post-hearing motions were denied by the Commission. On March 8, Judge Deming retained present counsel. On May 28, this court heard oral argument presented by Judge Deming and the Commission.
The Washington Constitution requires this court to conduct a hearing to review the Commission's proceedings and findings. Const. art. 4, § 31 (amend. 71) provides:
The supreme court may not discipline or retire a judge or justice until the judicial qualifications commission recommends after notice and hearing that action be taken and the supreme court conducts a hearing, after notice, to review commission proceedings and findings against a judge or justice.
A de novo review from which we make our own determination of the law and of the facts is required. In re Buchanan, 100 Wash.2d 396, 400, 669 P.2d 1248 (1983). Matter of Cieminski, 270 N.W.2d 321, 326 (N.D.1978) said:
[T]he 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 [Commission] or otherwise.
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).
(Italics ours.) In re Nowell, 293 N.C. 235, 246, 237 S.E.2d 246 (1977).
If necessary, supplemental materials may be accepted if they will aid this court. DRJ § 7. An "independent evaluation of the evidence" allows maximum flexibility for supplementing the record. DRJ § 7, comment. In re Kneifl, 217 Neb. 472, 477, 351 N.W.2d 693, 696-97 (1984), stated:
From the power to permit the introduction of additional evidence, we conclude that our review is to be de novo. When no new evidence is received, our review must be de novo on the record. See Matter of Cieminski, 270 N.W.2d 321 (N.D.1978). Our duty, then is to determine upon our own independent inquiry, as to the charges of alleged misconduct referred to us, whether the evidence clearly and convincingly proves that respondent acted in such a manner as to prejudice the administration of justice and bring the judicial office into disrepute. See In re Conduct of Roth, 293 Or. 179, 645 P.2d 1064 (1982); Matter of Heuermann, 90 S.D. 312, 240 N.W.2d 603 (1976).
Review by this court is not confined only to the record, therefore, our review is to be de novo. Regarding what a "de novo" hearing embraces, in 2 Am.Jur.2d § 698, p. 597 (1962), we find:
A trial or hearing "de novo" means trying the matter anew the same as if it had not been heard before and as if no decision had been previously rendered.... Even though designated an "appeal," a review in which the court is not confined to a mere reexamination of the case as heard before the administrative agency but hears See also Aiudi v. Baillargeon, 121 R.I. 454, 399 A.2d 1240 (1979); Herzberg v. State ex. rel. Humphrey, 20 Ariz.App. 428, 513 P.2d 966 (1973); State v. Pollock, 251 Ala. 603, 38 So.2d 870, 7 A.L.R.2d 757 (1948); Fowler v. Young, 77 Ohio App. 20, 32 Ohio Ops. 298, 65 N.E.2d 399 (1945); Cooper v. State Bd. of Med. Exam'rs, 35 Cal.2d 242, 217 P.2d 630, 18 A.L.R.2d 593 (1950); Commonwealth v. Cronin, 336 Pa. 469, 9 A.2d 408, 125 A.L.R. 1455 (1939). For almost the first hundred years of statehood the discipline and removal of judges lay with the judiciary itself and with the electorate. Now the judiciary is the only one of the three branches of government for which a separate administrative body has been established to review the performance of its elected officials. The independence of the referees of government must not be compromised nor judges intimidated by a judicial qualifications commission that fails to remember that its dual function is not only to protect the public from judges who violate the Code of Judicial Conduct, but also to protect judges from harassment and meritless complaints. The above principles apply to our analysis of the proceedings below.
the case de novo on the record before the agency and such further evidence as either party may see fit to produce is to be regarded as an original proceeding. iThus, on a trial or hearing de novo it has been held immaterial what errors or irregularities or invasion of constitutional rights took place in the initial proceedings
We turn to the Commission's investigation, prosecution and adjudication of the allegations made against Judge Deming.
CONSTITUTIONALITY OF PUBLIC HEARING
Judge Deming argues that Const. art. 4, § 31 (amend. 71) and RCW 2.64.110 () mandated that all Commission proceedings be kept confidential and that the holding of a public hearing was The commission shall establish rules of procedure for commission proceedings including due process and confidentiality of proceedings.
patently unconstitutional. Regarding confidentiality of proceedings, Const. art. 4, § 31 (amend. 71) 1 provided
RCW 2.64.110 provides in part:
The commission shall establish rules for the confidentiality of its proceedings with due regard for the privacy interests of judges or justices who are the subject of an inquiry and the protection of persons who file complaints with the commission. Any person giving information to the commission or its employees, any member of the commission, or any person employed by the commission is subject to a proceeding for contempt in superior court for disclosing information in violation of a commission rule.
Pursuant to Const. art. 4, § 31 (amend. 71) and RCW 2.64.110, the Commission promulgated JQCR 4(g):
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