Field, Matter of

• Decision Date: 22 March 1978
• Citation: 281 Or. 623,576 P.2d 348
• Parties: In the Matter of the Honorable Shirley A. FIELD, Judge.
• Court: Oregon Supreme Court

Page 348

576 P.2d 348

281 Or. 623

In the Matter of the Honorable Shirley A. FIELD, Judge.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 13, 1978.

Decided March 22, 1978.

Margaretta M. Eakin, Portland, argued the cause for petitioner. With her on the brief were David F. Cargo, and Leslie M. Roberts, Portland.

John L. Schwabe, and George H. Fraser, Portland, argued the cause for the Commission. With them on the brief were Donald Joe Willis and E. Joseph Dean, Portland.

PER CURIAM.

This is a proceeding under amended Section 8 of Article VII of the Oregon Constitution and ORS 1.430 relating to the power of this court to remove, suspend or censure a judge. We are deciding upon the record made before the Commission on Judicial Fitness whether Judge Shirley A. Field should be removed from her position as Judge of the District Court for Multnomah County.

Judge Field was appointed a judge of the District Court for Multnomah County in July, 1972, and was elected to that position in November, 1972.

On May 25, 1977, a Notice of Complaint and Inquiry charging Judge Field with various acts of misconduct was filed by the Commission on Judicial Fitness (Commission). The complaint contained an allegation that the Commission "reserves the right to amend this complaint and inquiry at any time prior to hearing." On June 8, Judge Field filed an answer containing admissions, denials and explanations of the charges. The answer also contained a reservation of the right to amend at any time prior to trial. On July 8, 1977, the Commission advised Judge Field that the hearing on the charges was set for August 8, 1977. Several days before the hearing, counsel for Judge Field was notified that the Commission intended to file an amended complaint, and such amended complaint was filed on August 8, 1977. On September 19, 1977, the Commission filed Findings of Fact, Conclusions of Law, and a recommendation that Judge Field be removed from her position as a district judge for Multnomah County.

In November of 1968 the people of the State of Oregon added amended Section 8 to Article VII of the Oregon Constitution:

"Section 8 Removal of Judges

"(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.

"(2) Notwithstanding section 6 of this Article, the methods provided in this section and in section 18, Article II of this Constitution, are the exclusive methods of removal of a judge from the judicial office."

Effective June 24, 1976, the people amended this constitutional provision so that it now reads as follows:

"(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:

"(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 where such misconduct bears a demonstrable relationship to the effective performance of judicial duties; or

"(c) Wilful or persistent failure to perform judicial duties; or "(d) Generally incompetent performance of judicial duties; or

"(e) Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court; or

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

"(2) Notwithstanding section 6 of this Article, the methods provided in this section, section 1a of this Article and in section 18, Article II of this Constitution, are the exclusive methods of the removal suspension, or censure of a judge." (New material in italics.)

The Commission found that Judge Field's behavior throughout her tenure as judge constituted wilful misconduct, wilful failure to perform judicial duties, persistent failure to perform judicial duties, and also found her performance of judicial duties to be generally incompetent.

Preliminarily, Judge Field challenges the filing of the amended complaint before the hearing started on August 8, 1977, and contends the amended notice lacked sufficient information to apprise her of the charges and deprived her of an opportunity to refute them. She also contends that one or more of the members of the Commission had prejudged the facts before the hearing.

We shall discuss first the allegation of a prejudgment of the facts. She states that two of the commissioners had made public statements that she was incompetent. The record shows that Judge Field knew of the public statements prior to the hearing. Her counsel wrote a letter to these two commissioners before the hearing but did not request that they be disqualified. ¹ On the second day of the hearing, the chairman advised Judge Field and her counsel that the letters had been received. Again, no objection or request for disqualification was made.

In addition to the failure to request that the two commissioners disqualify themselves, there is another reason why this challenge to the Commission's findings must fail. We review the record to decide independently the facts and what action is to be ordered by this court. ORS 1.430(1) and see also Matter of Del Rio, 400 Mich. 665, 256 N.W.2d 727 (1977).

Judge Field's next contention is that the filing of the amended complaint deprived her of an opportunity to defend herself in that it was an untimely presentation of new charges. This contention must also fail. As previously noted, the original complaint advised Judge Field that the Commission reserved the right to amend at any time prior to the hearing, as she reserved the right to amend her answer at the hearing. Judge Field was advised several days before the hearing that an amended complaint would be filed. No motion for a continuance was made at that time or at the hearing. Moreover, at the conclusion of the hearing the Commission specifically offered to return for further consideration of any matters, and she declined.

Judge Field alleges that the new matter in the amended complaint consisted of Charges 33, 34 and 35 in Count II, ² and all of Count VII. Count VII, contrary to the allegation, is not new as it appeared in both the original and amended complaints. Charges 33 and 35 are also not new matter but are merely a delineation of Charge 24, which appears in both complaints and charges Judge Field with failure to give criminal defendants their constitutional and statutory rights. Charge 34, that she failed to appoint certain qualified attorneys to represent criminal defendants because such attorneys had filed affidavits of prejudice against her, is new and involved incidents that allegedly occurred subsequent to the filing of the original complaint.

Although we believe that Judge Field waived any alleged procedural defect and that she was not prejudiced, we shall decline to consider the incidents connected with Charge 34, the only new matter raised by the amended complaint.

Before discussing the merits of the charges against Judge Field, we should consider the quantum of proof necessary to censure, suspend, or remove a judge.

Both the Commission and Judge Field agree that the proof should be clear and convincing before a judge may be censured, suspended or removed from office. Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973); In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977). This is the standard of proof required in bar disciplinary proceedings, In re Farris, 229 Or. 209, 367 P.2d 387 (1961), and we believe the same standard should apply to members of the judiciary. In deciding whether the proof is clear and convincing, we review de novo and make our own independent evaluation of the evidence. We then decide whether the conduct, based on our findings of the facts constitutes conduct proscribed by the Oregon Constitution. Geiler v. Commission on Judicial Qualifications, supra.

Judge Field's initial contention on the merits is that we may not consider incidents which occurred prior to June 24, 1976, the effective date of the changes to Article VII, section 8, of the Constitution enacted in May of that year. Judge Field argues that to do so would give retrospective effect to the amendment, because none of the provisions of the 1968 version of the amendment apply. Judge Field also argues that such a retrospective application would be impermissible. We need not address this argument if the acts in the complaint occurring after June 24, 1976, are of sufficient weight to support a finding that the Constitution as amended has been violated. One of the findings against Judge Field was that her performance of judicial duties was generally incompetent. We agree, and conclude that the incidents outlined below demonstrate general incompetence. Because all of them occurred after June 24, 1976, we do not pass on the retroactivity of the 1976 amendments. We now turn to the facts that are the foundation of our conclusion.

A deputy district attorney testified that on September 7, 1976, a defendant who had been in custody since September 4 was brought before Judge Field for parking violations. He entered pleas of not guilty and advised the judge that he was not the driver or the owner of the vehicle. He also stated that he had no driver's license and had no interest in the vehicle that had received the tickets, and that the car belonged to a friend. The deputy testified:

"Now, that was Mr. Mellon's (defendant's) explanation of the situation. Judge Field, after listening to this...