Fadeley, In re, 89-13

• Citation: 802 P.2d 31,310 Or. 548
• Decision Date: 03 January 1991
• Docket Number: No. 89-13,89-13
• Parties: In re Complaint as to the Conduct of the Honorable Edward N. FADELEY, Accused. ; SC S37022.
• Court: Supreme Court of Oregon

Page 31

802 P.2d 31

310 Or. 548

In re Complaint as to the Conduct of the Honorable Edward N.

FADELEY, Accused.

No. 89-13; SC S37022.

Supreme Court of Oregon.

Argued and Submitted June 7, 1990.

Decided Nov. 19, 1990.

Reconsideration Denied Jan. 3, 1991.

Clifford N. Carlsen, Jr., of Miller, Nash, Wiener, Hager & Carlsen, Portland, argued the cause and filed the brief on behalf of the Com'n on Judicial Fitness.

Susan G. Bischoff, Salem, argued the cause on behalf of Justice Fadeley. Paul J. De Muniz, of Garrett, Seideman, Hemann, Robertson & De Muniz, P.C., Salem, filed the briefs.

Allen L. Johnson, Eugene, filed a brief on behalf of amicus curiae American Civil Liberties Union.

Before PETERSON, C.J., CARSON, GILLETTE, VAN HOOMISSEN, UNIS and GRABER, JJ., and HOWELL, J. pro tem. ^*

PER CURIAM.

This is a case of mandatory review pursuant to ORS 1.430(1) of Findings of Fact, Conclusions of Law and Recommendation of the Commission on Judicial Fitness and Disability (the Commission) ¹ recommending that the Accused, the Honorable Edward N. Fadeley, an Associate Justice of this court, be censured for wilful violations of the Code of Judicial Conduct. The Accused admits the violations of the Code of which he is accused, but he argues that, for various statutory and constitutional reasons, he may not be disciplined for the conduct in question. We do not find any of the Accused's statutory or constitutional arguments to be well taken. The Accused is censured.

FACTS AND PROCEDURAL HISTORY

Personal solicitation of campaign funds by a candidate for judicial office is forbidden by Canons 7 B(7) and 7 D of the Code of Judicial Conduct, which provide:

"B. A judge may not:

" * * *

"(7) personally solicit campaign contributions; but a judge may establish committees to secure and manage financing and expenses to promote the " * * * * *

judge's election and to obtain public statements of support for the judge's candidacy;

"D. The provisions of this canon apply to each judge in the state at all times and to any other person who becomes a candidate for an elective judicial office. A person becomes a candidate for an elective judicial office when the person announces the candidacy or when steps are taken, with the person's approval, to place his or her name on an election ballot."

On May 12, 1989, the Commission notified the Accused that it had received a complaint that the Accused had personally solicited campaign contributions in connection with his 1988 campaign for the position that he now holds. An investigation followed, during which the Accused fully disclosed to the Commission those of his activities during his campaign for election to this court that clearly or even arguably fell within the prohibitions of Canons 7 B(7) and 7 D.

On September 1, 1989, the Commission served the Accused with a complaint, alleging that the Accused had violated Canons 7 B(7) and 7 D by personally soliciting campaign funds. The Commission held hearing on February 16, 1990, at which the Accused and counsel for the Commission stipulated as to these facts:

"1. [The Accused] was elected to the Supreme Court of Oregon in the November, 1988 general election, and has served as an associate justice on that court continuously since January 2, 1989.

"2. On or about December 2, 1988, the Oregon Labor Press published, as a letter-to-the editor, a letter signed by [the Accused, who was then an associate justice-elect of this court] soliciting contributions to defray expenses of his campaign committee incurred in the campaign for election to the court.

"3. In June, 1988, at a campaign organizer meeting, [the Accused] participated in a request for pledges to his campaign committee.

"4. Personal solicitation of campaign contributions to his committee occasionally resulted from [the Accused's] asking business representatives to serve on his campaign finance committee, during 1988.

"5. [The Accused] personally solicited campaign finance pledges from some members of the Oregon State Bar, during 1988."

On March 27, 1990, the Commission entered its Findings of Fact, Conclusions of Law and Recommendation. The Commission found the facts stipulated by the Accused. It concluded that the acts in question violated Canons 7 B(7) and 7 D of the Code of Judicial Conduct. It unanimously recommended that the Accused be censured "in the strongest terms" by this court. The matter is now before us for final action. ORS 1.420 and 1.430. ²

The Accused does not dispute the Commission's Findings of Fact. Neither does he dispute that those findings demonstrate

that he has violated both Canons 7 B(7) and 7 D of the Code of Judicial Conduct. Instead, the Accused confines his arguments in this court to legal assertions that (1) the Commission had no jurisdiction over the Accused, the acts in question, or both, and (2) if the Commission did have jurisdiction, then sanctioning the Accused for the acts in question would violate his free speech rights under Article I, section 8, of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution. The American Civil Liberties Union of Oregon (ACLU), amicus curiae, argues separately that, under the Oregon Constitution, regulation of elections is a matter entrusted to the legislature, not this court, and Canon 7 B(7) impermissibly encroaches on the [310 Or. 553] legislature's authority. We shall consider each of these contentions in turn. Before doing so, however, a brief historical discussion is in order.

THE COURT, THE COMMISSION, AND THE CODE

Until 1967, there was no provision in the Oregon Constitution specifically governing removal of judges from office by this court. ³ In that year, the legislature referred to the people an amendment to the judicial article, Article VII (Amended) of the Oregon Constitution, adding a new section 8:

"Section 8. (1) In the manner provided by law, and notwithstanding section 1 of this Article, a judge of any court may be removed from his judicial office 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 involving moral turpitude; or

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

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

Or.Laws 1967, Senate Joint Resolution (SJR) 9. The amendment was adopted at the November 5, 1968, general election.

Contingent on passage of SJR 9, the 1967 legislature also passed the act creating the Judicial Fitness Commission. Or.Laws 1967 ch. 294. Section 6 of that 1967 Act ⁴ became ORS 1.420. The section has since been amended to expand the range of sanctions that the Commission can recommend (Or.Laws 1971 ch. 511, § 3) and to add the phrase "and Disability" to the official name of the Commission (Or.Laws 1987 ch. 520, § 5), but its basic thrust has remained the same. Thus, since the adoption of Article VII (Amended), section 8, of the Oregon Constitution, there has been in place a mechanism for disciplining judges through a judicial fitness commission and this court. See In re Piper, 271 Or. 726, 730-33, 534 P.2d 159 (1975) (discussing history of the statute).

Neither the 1967 constitutional amendment nor its statutory implementation mentioned the Code of Judicial Conduct. The Code was not adopted by this Court until March 11, 1975. Before that time, judicial conduct was governed by the earlier Canons of Judicial Ethics, adopted by this court in 1952. In re Piper, supra, 271 Or. at 736 n. 12, 534 P.2d 159. Canon 7 B(2) of the 1975 Code contained essentially the same provision embodied today in Canon 7 B(7), but in the form of a recommendation. Former Canon 7 B(2) provided, in part:

"A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not himself solicit campaign funds; he may establish committees of responsible persons to secure and manage the expenditures of funds for his campaign and to obtain public statements of support for his candidacy. Such committees are not prohibited from soliciting campaign contributions and public support Roughly a month after the adoption by this court of the 1975 Code of Judicial Conduct, a resolution was introduced in the legislature, seeking to refer to the people an amendment to Article VII (Amended), section 8, that would permit this court to remove, suspend or censure judges for "[w]ilful violation of any rule of judicial conduct as shall be established by the Supreme Court." Or.Laws 1975, Senate Joint Resolution 48. The voters approved the referred constitutional amendment on November 4, 1975, thereby creating what is now Oregon Constitution, Article VII (Amended), section 8(1)(e):

from lawyers. A candidate's committees may solicit funds for his campaign."

"(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[.]"

Oregon Constitution, Article VII (Amended), section 8, thus assumed the form that it has retained to this day.

Most recently, on December 1, 1983, this court promulgated a revised Code of Judicial Conduct, this time couched in mandatory terms. ⁵ It contains the present form of Canons 7 B(7) and 7 D. With the foregoing history in mind, we turn to the arguments made by the Accused.

JURISDICTIONAL CONSIDERATIONS

The Accused first asks this court to hold that the Commission had no jurisdiction to inquire into his failure to abide by the Code of Judicial Conduct, because ORS 1.420 does not mention the Code in its description of the Commission's role. ⁶ The Accused reasons this way: At the same time the...