Haddad, Matter of, JUD-4

• Decision Date: 26 March 1981
• Docket Number: No. JUD-4,JUD-4
• Parties: In the Matter of Kelly HADDAD, Justice of the Peace, Pinal County, Arizona.
• Court: Arizona Supreme Court

Page 221

627 P.2d 221

128 Ariz. 490

In the Matter of Kelly HADDAD, Justice of the Peace, Pinal County, Arizona.

No. JUD-4.

Supreme Court of Arizona, In Banc.

March 26, 1981.

Bruce A. Burke, Tucson, Atty. for Commission on Judicial qualifications

Gerald S. Maltz, Tucson, Atty. for respondent.

CAMERON, Justice.

The Arizona Commission on Judicial Qualifications found that the respondent, Kelly Haddad, Justice of the Peace, Pinal County, Arizona, violated Canons One, Two and Three of the Code of Judicial Conduct, Rule 45, Rules of the Supreme Court, 17A A.R.S., and Article 6.1, § 4 of the Constitution of the State of Arizona, and censure was recommended. We have jurisdiction pursuant to Article 6.1 of the Arizona Constitution and Rule 11 of the Rules of Procedure for the Commission on Judicial Qualifications, 17A A.R.S.

This is the first time we have been called to write upon findings and recommendations of the Commission on Judicial Qualifications since it was created by constitutional amendment approved by the voters on 3 November 1970. This then is a case of first impression. Fortunately, there is adequate and generally consistent case law from other jurisdictions, as well as Standards Relating to Judicial Discipline and Disability Retirement adopted by the American Bar Association in 1978 to guide us in reaching our decision. National Center for Professional Responsibility and the American Bar Association, Professional Discipline for Lawyers and Judges (1979). See Judicial Discipline and Disability Symposium, 54 Chi.-Kent L.Rev. 1 (1977).

Judicial discipline is analogous to lawyer discipline in that both lawyer discipline commissions and judicial qualification commissions can only recommend to the Supreme Court the disposition to be made in each case of discipline. While we will give serious consideration to the findings of the attorney discipline committee, we must also make an independent determination of the facts of the case, In re Stewart, 121 Ariz. 243, 589 P.2d 886 (1979); In re Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976), and we are the ultimate trier of the facts as well as the law. In re Moore, 110 Ariz. 312, 518 P.2d 562 (1974). Likewise in judicial discipline matters, we must make an independent evaluation, or de novo review on the record, of the evidence and recommendations of the Commission on Judicial Qualifications. In re Cieminski, 270 N.W.2d 321 (N.D.1978).

"The rationale for requiring an independent evaluation of the evidence and recommendation is that the Act puts the burden of imposing the sanction squarely on the Supreme Court; the Commission has power only to recommend. With the power to impose a punishment comes the concomitant obligation to conduct an independent inquiry into the evidence to determine whether that evidence merits imposition of the sanction recommended. (footnote omitted)" In re Heuerman, 90 S.D. 312, 317, 240 N.W.2d 603, 606 (1976); see also Judicial Standards, supra, 7.8, 7.9, and 7.11; In re Buford, 577 S.W.2d 809 The purpose of judicial discipline is not to punish the individual judge, but to maintain the high standards of the judiciary and the proper administration of justice. In re Diener, 268 Md. 659, 304 A.2d 587 (1973), cert. denied 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974). Judicial discipline protects the public and the integrity of the judicial process and is a balancing of the need for an independent judiciary with the necessity for removal of those who do not measure up to the high standards required of a person holding judicial office. In re LaMotte, 341 So.2d 513 (Fla.1977). As such, the proceeding is neither civil nor criminal, In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977), but sui generis. In re Cieminski, supra. Neither should judicial discipline be used as a substitute for appeal:

(Mo.1979); McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 526 P.2d 268, 116 Cal.Rptr. 260 (1974).

"In the absence of fraud, corrupt motive, or bad faith, the commission should not take action against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he understands it. Claims of error should be left to the appellate process." Judicial Standards, supra, 3.4.

The burden of proof in judicial discipline is by clear and convincing evidence:

"(1) The first issue we consider is appropriate standard of proof in proceedings under the Act. We note that it would be inapposite to require proof 'beyond a reasonable doubt' as this is not a criminal prosecution. Proof by a mere preponderance of the evidence is also inapposite because of the severity of the sanction which can be imposed. We conclude that the proper standard of proof is by 'clear and convincing evidence.' Such a standard provides adequate protection for the party subject to charges, but at the same time does not demand so much evidence that the ability of the Commission and this court to effectively oversee the judiciary is impaired * * *. See In Re Hanson, 1975, Alaska, 532 P.2d 303; Geiler v. Commission on Judicial Qualifications, 1973, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1. See also, In Re Haggerty, 1970, 257 La. 1, 241 So.2d 469, 479; In Re Diener, 1973, 268 Md. 659, 304 A.2d 587; In Re Rome, 1975, 218 Kan. 198, 542 P.2d 676." In re Heuerman, supra, 90 S.D. at 316, 240 N.W.2d at 605-06; see also In re Cieminski, supra; Judicial Standards, supra, 5.17 and 7.10.

Article 6.1 of the Arizona Constitution provides for the establishment of a judicial qualifications commission and the article is similar to constitutional provisions enacted by a majority of the states since the first constitutional provision was adopted by the California voters in 1960. See Schoenbaum, A Historical Look At Judicial Discipline, 54 Chi.-Kent L.Rev. 1 (1977); Gillis & Fieldman, Michigan's Unitary System of Judicial Discipline: A Comparison With Illinois' Two Tier Approach, 54 Chi.-Kent L.Rev. 117 (1977).

Our Constitution reads:

"Section 4. On recommendation of the commission on judicial qualifications, the supreme court may * * * censure or remove a judge for action by him that constitutes wilful misconduct in office, wilful and persistent failure to perform his duties, habitual intemperance or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. " Ariz.Const., Art. 6.1, § 4.

The Code of Judicial Conduct adopted 16 August 1972 by the American Bar Association has been adopted by the Arizona Supreme Court, as amended, and applies to all judges in the state including non-lawyer justices of the peace, as is the respondent in this case. That code provides in pertinent part:

"Canon 1

A Judge Should Uphold the Integrity and Independence of the Judiciary

Canon 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

Canon 3

A Judge Should Perform the Duties of His Office Impartially and Diligently. " Rule 45, Rules of the Supreme Court, 17A A.R.S.

In the instant case, respondent Kelly Haddad is the Justice of the Peace in Justice Court Precinct 7 of Pinal County. In 1978, there were 1,709 registered voters in this precinct. At the time of the hearing, he had been a justice of the peace for over 22 years. He is not a lawyer.

The Commission heard evidence concerning three counts of alleged judicial misconduct. Count II was dismissed, and findings of misconduct with recommendations of censure were made as to Counts I and III. Respondent made no objections to the findings and recommendations as to Count III, but as to Count I he did object to some of the findings and also conclusion of law number 2.

COUNT I

Prior to September 1978, the Department of Public Safety believed that respondent was dismissing too many cases filed in his precinct. Highway Patrolman Don Judd stated that respondent was "too easy" on traffic offenders. As a result, it was decided to make an investigation of respondent's procedures. Judd testified as to his instructions:

" * * * I was to go up there and work with a radar. They had some bought new radar. I was supposed to write good citations, no making anything up in Mr. Haddad's precinct. I was supposed to keep a record of all the citations that I wrote and do follow-up on disposition from the court. That was basically it."

And:

"They would at one point I was supposed to go in and talk to Judge Haddad, and they put a microphone on me, hidden microphone and a tape recorder and I was supposed to find out the dispositions and why he dismissed a couple of citations, well, more than two citations. They were in the vehicle outside recording all this. But that's about, basics."

On the back of each uniform traffic ticket is a place to check which indicates the disposition of the complaint. These dispositions are "coded" and mesh with computerized accounting systems. Code 30 is "not guilty, acquitted." Code 43 is "charged dismissed by judge." Code 44 is "charge dismissed by judge at the request of prosecutor," and Code 45 is "charge dismissed by judge at request of officer." Other codes concern pleas of guilty, fines and the appearance of the defendant. The testimony indicated that of about 52 citations issued by Officer Judd in August and September of 1978, 18 or 34.6% were dismissed by the judge pursuant to Code 43. The testimony indicated that dismissal by a judge pursuant to "Code 43" without consultation with the officer is commonly done, and respondent's jurisdiction and discretion in making this disposition of a traffic citation is not in question. Also, it should be noted that the state could have refiled some of the matters in the Superior Court and, in fact, when this procedure was suggested to respondent by Judd, respondent did not object. As Judd testified:

"Q Again, you had this surreptitious well, this concealed device on your person and taped that conversation?

"A Yes, sir.

"Q That's the tape that is now in evidence?

"A Yes.

"Q What did Judge Ha...