Hanson, In re, 2311

CourtSupreme Court of Alaska (US)
Citation532 P.2d 303
Docket NumberNo. 2311,2311
PartiesIn re HANSON, Superior Court Judge.
Decision Date14 February 1975


RABINOWITZ, Chief Justice.

This petition marks only the second occasion on which a matter originating before the Commission on Judicial Qualifications has reached this court. 1 In this petition Superior Court Judge James A. Hanson asks us to reject the Commission's recommendation that he be publicly censured for conduct prejudicial to the administration of justice that has brought the office of superior court judge into disrepute.

Briefly the procedural background of this disciplinary matter is as follows: In October of 1973, an Anchorage superior court grand jury, which had been specifically empaneled to look into matters concerning the municipal government of Kenai, sent the Commission a letter in which certain purportedly improper conduct on the part of petitioner Superior Court Judge James A. Hanson was called to the Commission's attention. Subsequently, at a meeting which was held in November of 1973, the Commission determined that it was appropriate to commence a preliminary investigation. Pursuant to Commission Rule 5(b), 2 petitioner was advised by letter that an investigation was being undertaken, that Arden E. Page had been appointed as an independent investigator, and that the investigation would encompass ten specific incidents and one general area of inquiry. Following a preliminary investigation which spanned several months, on May 16, 1974, the Commission instituted formal proceedings against petitioner by issuing a written notice of formal proceedings. 3

Petitioner filed both a written answer to the charges and a discovery motion. In response, the Commission provided petitioner with certain documents and tapes, as well as access to grand jury testimony and exhibits. After timely notice, a hearing regarding the charges was held before the Commission. 4 Upon filing its findings of fact and conclusions of law, 5 the Commission recommended, in accordance with AS 22.30.070(c)(2), that the Supreme Court of Alaska publicly censure petitioner for 'conduct prejudicial to the administration of justice that brings the judicial office into disrepute.'

Before us petitioner makes the initial contention that the procedures of the Commission do not comport with the procedural requirements of due process. Under the due process clauses of both the United States Constitution and the Alaska Constitution, no person can be deprived of 'property' without due process of law. The Commission's procedures are required to meet constitutional due process standards since a judge's interest in continuing in public office is an individual interest of sufficient importance to warrant constitutional protection against deprivation. 6 In determining whether due process has been observed by an administrative agency of the State of Alaska, this court reviews the proceedings of the administrative body

to assure that the trier of fact was an impartial tribunal, that no findings were made except on due notice and opportunity to be heard, that the procedure at the hearing was consistent with a fair trial, and that the hearing was conducted in such a way that there is an opportunity for a court to ascertain whether the applicable rules of law and procedure were observed. 7

The principal thrust of petitioner's due process argument is directed against the Commission rules, which allow the Commission both to conduct a preliminary investigation and to adjudicate facts and make a recommendation to the supreme court. 8 Grounding his argument on this dual function, petitioner contends that he has been denied 'an impartial tribunal because the same agency and individuals, both investigated petitioner's conduct and adjudicated its propriety.'

Regarding petitioner's contention, the Commission points out that procedures similar to Alaska's are currently in effect in at least twenty-four states 9 and the District of Columbia. Research discloses that petitioner's due process argument has been rejected by all courts which have considered the question. Keiser v. Bell, 332 F.Supp. 608 (E.D.Pa.1971); In re Haggerty, 257 La. 1, 241 So.2d 469 (1970); In re Kelly, 238 So.2d 565 (Fla.1970); In re Diener and Broccolino, 268 Md. 659, 304 A.2d 587 (1973). These courts have elected to adopt the majority position as stated by Professor Davis in his treatise on administrative law. According to Professor Davis,

State courts, like federal courts, generally hold, with only occasional exceptions, that due process does not forbid the combination with judging of such functions as prosecuting, investigating, and accusing . . .. 10

Of significance to resolution of the due process question before us is our opinion in In re Cornelius, 520 P.2d 76 (Alaska 1974). There we observed:

The combination of investigative and judicial functions within an agency does not violate due process; a board may make preliminary factual inquiry on its own in order to determine if charges should be filed. 11

In light of the foregoing precedents, we hold that combination of judicial and investigative functions in the Commission did not violate petitioner's due process rights under eigher the federal constitution or Alaska's constitution. This dual function, in and of itself, did not result in a biased or partial tribunal. Further, our own review of the entire record fails to disclose any procedural irregularities upon which a claim of denial of procedural due process could be successfully grounded. 12

In reaching our holding on petitioner's due process claim, we are additionally influenced by the fact that article IV, section 10 of the Alaska Constitution lodges in the Supreme Court of Alaska the exclusive adjudicatory power to suspend, remove from office, retire, or censure a justice or judge in the Alaska Court System. Since this constitutional provision vests in us the ultimate authority in disciplinary matters affecting the judiciary, we hold that petitioner's constitutional rights to the protection afforded by due process have not been impinged upon.

The Alaska Commission on Judicial Qualifications was created by a constitutional amendment which became effective in 1968. 13 This amendment is based on a 1966 revision of the judicial article of the California Constitution. 14 In Alaska, after the Commission's preliminary investigation, a hearing may be held before either the Commission or a master. 15 Another facet of petitioner's due process attack on the Commission's procedures is the argument that due process is offended by the Commission's having the option to hear the matter itself or to refer the charges to a master for a hearing. Thus, petitioner contends that the Commission must always appoint a master. 16 We find this contention untenable. The Commission should have the option of referral to a master where the particular matter requires extensive testimony or specialized fact-finding. On the other hand, where the Commission wishes to handle the matter without appointment of a master, we can discern no legal impediment to proceeding in such a manner.

Before discussing the sufficiency of the evidence against petitioner in relation to the charges which were filed against him, two preliminary matters require disposition. Although AS 22.30.050 provides that '(n)o act of the commission is valid unless concurred in by a majority of its members', no statute or Commission rule specifies whether the alleged misconduct must be proved by a preponderance of the evidence, by clear and convincing evidence, or by evidence establishing the conduct beyond a reasonable doubt. In re Robson, 17 our only other opinion involving a petition to modify or reject a recommendation of the Commission on Judicial Qualifications, does not address the standard of proof question. 18

Of the courts of other jurisdictions which have considered the question of the appropriate standard of proof, all have rejected the beyond-a-reasonable-doubt standard that controls criminal prosecutions. 19 Most of these same courts have also declined to adopt the civil preponderance-of-the-evidence standard in favor of the seemingly higher burden of proof by clear and convincing evidence. 20 The rationale for the clear and convincing burden was articulated by the Supreme Court of Texas in In re Laughlin in the following manner:

(T)he serious nature of the proceeding in depriving one of a public office . . . ought, at the very least, to require proof by clear and convincing evidence. 21

Given the character of the proceedings below and the nature of the public office, we are persuaded that the appropriate standard to be applied in regard to Commission proceedings is that of clear and convincing evidence.

The second preliminary matter which requires our examination involves the scope of this court's review of the evidence adduced before and the recommendation of the Commission. In In re Robson, we observed:

Regarding the scope of review which this court should exercise in reviewing findings of fact of the commission, we see no reason to depart from the substantial evidence test which we have heretofore employed in reviewing matters coming to this court from administrative agencies and other governmental bodies. 22

In our opinion in In re Robson, we noted that the question of the scope of judicial review had 'not been alluded to in the parties' briefs.' 23 Here the question has been briefed in connection with the instant petition, and we thus consider this an appropriate occasion to reexamine the scope of this court's review in judicial qualifications proceedings. It appears that Alaska is the only...

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