Duncan, Matter of, 59539

Decision Date12 October 1976
Docket NumberNo. 59539,59539
Citation541 S.W.2d 564
PartiesIn the Matter of The Honorable Jack DUNCAN, Judge, Respondent.
CourtMissouri Supreme Court

Raymond R. Roberts, Roberts & Roberts, Farmington, for Commission.

Donald E. Lamb, Centerville, for respondent.

PER CURIAM.

The respondent is the probate judge and ex officio magistrate of Iron county, Missouri. The Commission on Retirement, Removal and Discipline (commission), pursuant to Art. V, sec. 27, Mo.Const., and Rule 12 of the Supreme Court, found respondent to have violated the constitution and statutes of Missouri, Supreme Court rules, and the Code of Judicial Conduct, in six of the seven charges filed against him. The commission unanimously recommended under Rule 12.08 that respondent be removed from office. This case is on review before this court pursuant to Art. V, sec. 27, Mo.Const., and Supreme Court Rule 12.

We cannot discern from the transcript or briefs the exact times during which respondent was probate judge and ex officio magistrate of Iron county. However, it is clear that of the seven findings made by the commission, the acts referred to in the third, fourth, and fifth findings occurred in 1970 while respondent was probate judge and ex officio magistrate; that sometime thereafter, but not as a result thereof, respondent returned to the private practice of law for about ten months; that respondent again became probate judge and ex officio magistrate and was reelected in 1974 to the four-year term which he is presently serving. Findings one, two, six, and seven relate to incidents alleged to have occurred during his present term.

Respondent lives on College Street in Arcadia, Missouri, is married, has five children, and his home is across the street approximately one-hundred yards from Mrs. Neiderjohn's home. On October 12, 1975, a Sunday, respondent's wife was out of town. The respondent was at home with his children until about noon at which time he had to leave. When he returned home at approximately 4:00 p.m., his children informed him a fight had occurred between his youngest son and Mrs. Neiderjohn's son. Furthermore, the children told respondent that Mrs. Neiderjohn had threatened to blow their brains out and she had bought a gun for that purpose which was in her house.

At the time respondent learned of the threats, Mrs. Neiderjohn and her son were at home. The respondent remained in his house until approximately 5:30 p.m. when he saw the Neiderjohns leave in their car. Respondent testified that he was very concerned that Mrs. Neiderjohn had a gun in her house, as he had heard four months before that she was shopping for one and he was now afraid she would shoot the children. With this in mind, he went across the street to the Neiderjohn home, kicked in the locked door, searched the house, ransacking drawers, but failed to find a gun. He did however find an axe handle and a length of pipe which he took but, according to his testimony, he dropped them on the front lawn and went home. He testified that subsequently he went back and picked them up and took them home. He then called the sheriff's office and told them what he had done and requested that the sheriff stop Mrs. Neiderjohn and search her for a gun since he had not found one in her home.

There was substantial evidence that over a period of a couple of years Mrs. Neiderjohn had made threats of one kind or another to the respondent and others; that she constantly complained about how her son was treated by school authorities, by neighbors, and by other children. Although these complaints extended over a couple of years, there is no evidence that she ever carried out any of the threats.

The events described above resulted in the most serious charge brought against respondent and triggered the complaint to the commission. Respondent admits the facts found by the commission as to this charge are true.

The commission's finding is as follows:

'1. On October 12, 1975, Respondent forcibly broke into and entered the residence of Mrs. Barbara Lewis Neiderjohn of Arcadia, Missouri, while Mrs. Neiderjohn was absent and while said residence was locked, by forcibly breaking the lock on the front door of said residence. The Respondent thereupon proceeded to enter the residence and to conduct a search of the Neiderjohn residence, ransacking and disturbing the contents thereof. Both the entry into the residence and search thereof were conducted without a search warrant and under circumstances where no legal search warrant could have been obtained. The Respondent took from the residence a tool handle and a length of metal pipe. The Respondent thereupon left the Neiderjohn residence taking such items, leaving its contents in a disturbed condition, the front door in an unlocked condition, and the front door lock in a broken condition. Respondent thereupon notified the Iron County Sheriff's Office of his conduct and directing such Sheriff's Office that he wanted 'the bitch', referring to Mrs. Neiderjohn, stopped and searched.'

The commission's conclusion of law as to the above finding is as follows:

'1. By breaking into and searching the Neiderjohn home Respondent violated Supreme Court Rule 2, Canon 2, and 3C, as amended, effective July 15, 1975, by his failure to comply with the law, by permitting his family relationships to influence his conduct and judgment, and by failing to disqualify himself from a matter in which he had a personal bias. In addition, this conduct, carried on without a search warrant, was in direct violation of Article I, Section 15, of the Missouri Constitution, the Fourth Amendment to the Constitution of the United States of America, and the following Missouri Statutes and Supreme Court Rules: Section 560.045 RSMo 1969 (burglary not first degree); Section 558.110 RSMo 1969 (oppression in office); Section 558.190 RSMo 1969 (seizing property without legal process or lawful authority); Rules 33.01 and 33.02 VAMR (search without a lawful warrant); and Senate Bill No. 366, effective August 13, 1974, of the unclassified laws of 1974 (search of a residence without a valid warrant).'

The respondent first claims that he was denied due process of law because the commission's structure combines both prosecutorial and adjudicatory functions in the same body. If this was actually the case, then we would agree with respondent that such a proceeding would be unfair. A fair trial and a fair tribunal are essential to due process and the combination of prosecutor and judge in one body creates a high probability of unfairness. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). However the respondent has cited no authority or facts which would lead us to the conclusion that the procedure followed by the commission fell short of the level prescribed by the due process clause.

Contrary to the respondent's assertion that the commission is both prosecutor and judge, we are of the opinion that they act as investigators and judges. Under Supreme Court Rule 12.08, the commission conducts an initial investigation to determine whether probable cause exists to believe the person under investigation is guilty of misconduct. If four members of the commission determine that probable cause exists, the commission holds a formal hearing. At the investigatory stage the respondent is given notice and a reasonable opportunity to present such matters as he may choose; at the formal hearing if probable cause is found an opportunity to present evidence and cross-examine witnesses is afforded. Rules 12.08 and 12.20. We are unable to conclude that this constitutes a prosecution as respondent contends even though the commission asks questions of the witnesses. Although an investigator is allowed to ask questions of witnesses, it does not necessarily make him a prosecutor. Using the respondent's ligic, we would have to conclude that every time a trial judge asked a witness a question to clarify a matter he would become a prosecutor.

The combination of the investigatory and adjudicatory functions does not violate the strictures of the due process clause. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Larkin involved the suspension of a doctor's license by the state medical board and the U.S. Supreme Court held that the combination of these functions did not contain in themselves an unacceptable risk of bias. In McCartney v. Commission on Judicial Qualification, 12 Cal.3d 512, 116 Cal.Rptr. 260, 267, 526 P.2d 268, 275, n. 7 (banc 1974), the Supreme Court of California reviewed a constitutional provision and hearing procedures similar to those in the instant case and rejected as without merit a claim that the combination of investigatory and adjudicatory functions constituted a denial of due process. Furthermore, we note that only this court can make the ultimate adjudication which removes a judge from office for misconduct, etc., or otherwise disciplines a judge. Art. V, sec. 27, subsec. 3, Mo.Const., as amended; Rule 12.08. And, where judicial review is afforded, as it is here, the fact that charges are initiated by the administrative agency which then tries the matter does not, of itself, constitute a denial of due process. See Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570, 574 (Mo.1965), and cases cited therein. The commission complied with the applicable rules of this court and those rules afforded respondent due process of law.

The respondent claims he is entitled to have the measure of the burden of proof be beyond a reasonable doubt rather than by a preponderance of the evidence. The present law in Missouri on retirement and removal of judges is patterned after the law in California (Cal.Const., VI, sec. 18). The Supreme Court of California has held the burden of proof in cases involving the removal of judges is to be measured by 'clear and convincing evidence'. Spruance v. Commission on Judicial...

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