Disciplinary Action Against Hoffman, In re, s. 990060-990063

• Decision Date: 07 July 1999
• Docket Number: Nos. 990060-990063,s. 990060-990063
• Citation: 595 N.W.2d 592
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST the Honorable Randall L. HOFFMAN, Judge of the District Court. Judicial Conduct Commission, Petitioner, v. Randall L. Hoffman, Respondent.
• Court: North Dakota Supreme Court

Page 592

595 N.W.2d 592

1999 ND 122

In the Matter of the Application for DISCIPLINARY ACTION AGAINST the Honorable Randall L. HOFFMAN, Judge of the District Court Judicial Conduct Commission, Petitioner, v. Randall L. Hoffman, Respondent.

Nos. 990060-990063.

Supreme Court of North Dakota.

July 7, 1999.

Paul W. Jacobson, Assistant Disciplinary Counsel, Bismarck, for petitioner.

Randall L. Hoffman, Jamestown, respondent.

PER CURIAM.

¶1 This is a disciplinary proceeding against Randall L. Hoffman, former district court judge. We conclude Hoffman violated the North Dakota Code of Judicial Conduct. We impose a disciplinary suspension and a condition for reinstatement.

¶2 Randall and Wanda Hoffman married in 1975. They had two children. Randall was elected a district judge in 1994. When Randall and Wanda Hoffman were divorced in 1996, the Honorable Kirk Smith presided over the proceedings. The divorce judgment entered on November 22, 1996, decreed a divorce, awarded Wanda Hoffman the family home, divided the parties' other marital assets and debts, awarded them joint legal custody of the minor children, with physical custody to Wanda Hoffman and visitation rights to him, and ordered him to pay child support.

¶3 Conduct by Randall Hoffman ("Hoffman") after his divorce ultimately led to disciplinary proceedings against him. This Court rejected an affidavit of consent and agreement and remanded the matter "for consideration of all charges and consideration of the apparent pattern of conduct reflected by all charges" on September 23, 1998. Four members of the Judicial Conduct Commission were appointed to serve as a hearing panel. The hearing panel conducted a hearing on January 7, 1999. After a meeting on January 28, 1999, the hearing panel issued findings of fact, conclusions of law, and a recommendation. In its findings of fact, the hearing panel reported clear and convincing evidence established the following facts:

II.

Judge Hoffman was divorced from Wanda Hoffman [hereinafter Wanda], with the Judgment and Decree entered on November 22, 1996, in Stutsman County Case No. 96-C-238. The judge in the divorce case was the Honorable Kirk Smith. Thereafter, Judge Hoffman embarked upon a course of conduct marked by harassment, stalking, and abusive conduct towards Wanda and disrespect for courts.

III.

The course of conduct referenced in paragraph II, above, consisted of the following:

(a) Letters and messages to Wanda with name-calling, and threats of actions against her for civil or criminal contempt and theft of property or conversion....

(b) A public encounter with Wanda at the golf course in Jamestown wherein he used obscene gestures and words.

(c) Sitting in a vehicle outside Wanda's home for extended periods of time, sometimes after midnight.

....

(e) Entering Wanda's home and the home of her friend Doug Wahl uninvited, including at least the following instances:

(1) On or about March 29, 1997, when Wanda encountered Judge Hoffman in the garage of her home. In the ensuing confrontation, Judge Hoffman caused physical injury to Wanda....

(2) On or about June 4, 1997, in the early hours of the morning, Judge Hoffman entered the garage of Wanda's home.

(3) On or about August 31, 1997, Judge Hoffman entered the home of Doug Wahl, to which he had never been invited, in the early hours of the morning, and called to Wahl and Wanda in the darkened room, "I see you fucking people in there." The ensuing confrontation led to a Dual Protection Order against both Judge Hoffman and Wanda.

IV.

The hearing, which resulted in the Dual Protection Order, was heard by the Honorable Donald L. Jorgensen on September 30, 1997. At hearing, Judge Hoffman demonstrated his disrespect for the Judgment and Decree, of Judge Smith, entered on November 22, 1996, which he characterizes as Judge Smith's "fiasco" and "Judge Smith's bullshit." Additionally, at the hearing on September 30, 1997, Judge Hoffman demonstrated his disrespect for the Court in which he was appearing, and challenged the Court's authority by his outbursts and objections though represented by counsel.

V.

Jill M. Quarstad, formerly Christianson, appeared before Judge Hoffman on or about May 5, 1998, as a witness in a Class B misdemeanor harassment case wherein the defendant had been charged with making some 110 telephone calls to her. Though not relevant to the case, Judge Hoffman suggested a theory of self-defense and informed Christianson that she had an affirmative duty to facilitate a psychological relationship between the noncustodial parent and the child, and that Christianson is guilty of criminal contempt if she does not do that. Judge Hoffman inserted his personal situation and arguments as a noncustodial parent into the proceedings, and demonstrated a lack of dignity and courtesy to those appearing before him.

....

VII.

On or about March 23, 1998, Peter J. Koble appeared before Judge Hoffman on a Class C felony charge, violation of a protection order, regarding contacts with Lisa Koble. Judge Hoffman presented himself in the proceedings as reporting violation by Lisa Koble to law enforcement as well, as there was a dual protection order. Judge Hoffman's conduct was colored by his own situation and arguments regarding his dual protection order, and criminal charges against him wherein he, but not Wanda Hoffman, was charged.

VIII.

Judge Hoffman has failed to recognize or admit any responsibility for most of his actions.

¶4 The hearing panel concluded Hoffman violated the provisions of Canon 2A, ¹ Canon 3B(4), ² Canon 3B(5), Canon 3E(1), and Canon 4A ³ of the North Dakota Code of Judicial Conduct. The hearing panel concluded Hoffman's violations were willful. The hearing panel recommended "that Judge Randall L. Hoffman be suspended for a period of six months and that he is to attend and participate in an anger management program."

¶5 "We are empowered under N.D.C.C. § 27-23-03(3), on the Commission's recommendation, to censure or remove a judge for a willful violation of the Rules of Judicial Conduct." Disciplinary Action Against Grenz, 534 N.W.2d 816, 817 (N.D.1995). "We review the Commission's findings and recommendations de novo on the record." Id. at 817-18. We accord due weight to the hearing body's findings, because it had the opportunity to observe the demeanor of the witnesses. Id. at 818. "Before a judge may be censured or removed, the charges must be established by clear and convincing evidence." Id. at 818. "The term 'willfully,' when used in disciplinary proceedings, means acts that were the performer's free will and were not done under coercion." Judicial Qualifications Comm. v. Schirado, 364 N.W.2d 50, 52 n. 3 (N.D.1985).

¶6 At oral argument, Hoffman admitted he violated the Code of Judicial Conduct, but not to the extent or in the manner alleged. He said he used language for which a public censure would be an appropriate sanction. Hoffman also said he was angry, which is normal in a divorce, and he is only human. However, judges are held to a higher standard than others:

[J]udges must be and are held to higher standards than laymen. Judges hold a unique position of administering justice. They symbolize the law and justice and, consequently, their action and behavior will reflect favorably or unfavorably on the integrity of the judiciary and the high respect required in the administration of justice.

Matter of Cieminski, 270 N.W.2d 321, 327 (N.D.1978).

¶7 In his brief, Hoffman contends the heading of the hearing panel's findings, conclusions, and recommendation states he is a judge of the county court, when he is a judge of the district court. The offices of judge of the county court in each county were abolished on January 1, 1995, and district court judgeships equal to the lesser of the number of county judges serving on January 1, 1991, or January 1, 1994, were established on January 2, 1995. 1991 N.D. Sess. Laws ch. 326, § 1. The designation in the caption of the hearing panel's findings, conclusions, and recommendation is mistaken, but irrelevant to any issue in this case, and we will not further address it.

¶8 Hoffman objects to the hearing panel's second finding of fact for several reasons, stating in part:

The Counsel alleged and the Hearing Panel found that after the divorce I "embarked upon a course of conduct marked by harassment, stalking, and abusive conduct towards Wanda and disrespect for the courts." ... Harassment and stalking are crimes. See 12.1-17-07; 12.1-17-07.1 NDCC. If my actions consisted of a pattern of misconduct, specifically harassment, stalking, then I should be accused with committing acts consisting of the elements of these crimes....

....

I object to the use of the term, "marked by" instead of using the term, "consisting".... If my specific conduct is such that there is a pattern of improper activity, then I will accept the discipline.... I do not willingly accept the discipline of a course of conduct marked by harassment and stalking unless my specific conduct constitutes the elements of these crimes.

....

I specifically object to the use of the term "stalking".

....

I object to the use of this entire paragraph, as alleged and found, as the paragraph stands alone with no definitions or alleged specific misconduct.... The reality of my present situation is that the accusations are nonsense. When I was back on the farm in central North Dakota, for longer than I have been an attorney, cattle ranchers had another name [for] this kind of stuff.

¶9 Whether or not any of Hoffman's conduct was criminal is irrelevant. "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." Matter of Cieminski, 270 N.W.2d 321, 326 (N.D.1978). The relevant question is whether or not Hoffman violated the Code of Judicial Conduct. Further, whether Hoffman's post-divorce "course of conduct" was "marked by" ...