In re Conduct of Pendleton
| Decision Date | 14 October 2015 |
| Docket Number | No. A14–1871.,A14–1871. |
| Citation | 870 N.W.2d 367 |
| Parties | Inquiry into the CONDUCT OF the Honorable Alan F. PENDLETON. |
| Court | Minnesota Supreme Court |
William J. Egan, Aaron Mills Scott, Laura E. Stecker, Oppenheimer Wolff & Donnelly LLP, Minneapolis, MN, for the Board on Judicial Standards.
Douglas A. Kelley, Steven E. Wolter, Kelley, Wolter, and Scott, P.A., Minneapolis, MN, for the Honorable Alan F. Pendleton.
This proceeding arises from a formal complaint filed by the Minnesota Board on Judicial Standards (the Board) against the Honorable Alan F. Pendleton, Judge of the District Court for the Tenth Judicial District, alleging violations of the Code of Judicial Conduct and the Minnesota Constitution. Following a hearing, a three-member panel (the panel) that we appointed found that Judge Pendleton failed to reside within his judicial district from January 15, 2014, through June 2, 2014. The panel also found that Judge Pendleton knowingly made a false statement regarding his residency in his May 22, 2014 affidavit of candidacy. The panel concluded that Judge Pendleton violated Rules 1.1, 1.2, 2.1, and 4.1(A)(9) of the Code of Judicial Conduct and Article VI, Section 4, of the Minnesota Constitution. The panel recommended that Judge Pendleton be censured and suspended from judicial office without pay for at least 6 months. Judge Pendleton appealed the panel's findings, contending that the Board failed to prove that he committed judicial misconduct by clear and convincing evidence and that he was denied due process of law by irregularities in the proceedings before the Board and the panel. Judge Pendleton also appealed the panel's recommended sanctions.
We conclude that the Board has proven by clear and convincing evidence that Judge Pendleton failed to reside within his judicial district during his continuation in office and that he made a knowingly false statement regarding his residency in his affidavit of candidacy, in violation of Rules 1.1, 1.2, 2.1, and 4.1(A)(9) of the Code of Judicial Conduct and Article VI, Section 4, of the Minnesota Constitution. We further conclude that Judge Pendleton's due process claims lack merit. Finally, we conclude that the appropriate judicial discipline is removal from office.
Procedural background
On October 31, 2014, the Board filed a formal complaint against Judge Pendleton, alleging that he had violated the Minnesota Constitution and Rules 1.1, 1.2, 2.1, and 4.1(A)(9) of the Code of Judicial Conduct. The complaint alleged that Judge Pendleton failed to reside in the Tenth Judicial District during his term of judicial office. The complaint alleged that rather than residing in his judicial district, Judge Pendleton resided at his wife's home in Minnetonka, which is in the Fourth Judicial District, from November 26, 2013 through July 31, 2014. The complaint also alleged that Judge Pendleton made a knowingly false statement of his residence address in his May 22, 2014 affidavit of candidacy for re-election as a district court judge. We appointed a three-member fact-finding panel to conduct a hearing on the Board's allegations.
Hearing before the three-member panel
The panel held a hearing on January 22, 2015. The testimony at this hearing, as well as the exhibits admitted into evidence, establish the following facts. Judge Pendleton is a district court judge in the Tenth Judicial District. He was appointed in 1999, elected in 2002, and re-elected in 2008 and 2014.
Judge Pendleton is married, and his wife resides in Minnetonka. The couple married in September 2007, and except for a brief period in 2008, they maintained separate residences until November 2013.1
Beginning in 2012, Judge Pendleton lived in a townhouse in Anoka.2 In 2013 he decided to sell the Anoka townhouse, primarily for financial reasons. He listed the townhouse for sale in October 2013 and soon had a buyer. The sale closed on November 27, 2013.
On November 27, 2013, Judge Pendleton moved out of the Anoka townhouse and began staying at his wife's house in Minnetonka, which is in the Fourth Judicial District. Judge Pendleton moved the items from his Anoka townhouse into a storage unit in Hopkins, which is also in the Fourth Judicial District. He told someone from the moving company that he intended to find a new apartment in Anoka quickly, and that he would soon call the company to move his items back to Anoka. The billing invoice from the company that moved Judge Pendleton's furniture reflects this conversation. But Judge Pendleton did not contact the company soon after he moved. Rather, he stayed at his wife's house until August 1, 2014.
From late November 2013 through December 20, 2013, Judge Pendleton looked for an apartment in Anoka. He was on vacation from December 20, 2013, through January 6, 2014. When Judge Pendleton returned, he was out sick from work for several days. He returned to work on Monday, January 13, 2014.
On January 15, 2014, Judge Pendleton learned that his son had been caught with drugs and drug paraphernalia at school in Anoka, and that his grades had dropped dramatically. Judge Pendleton met with representatives of his son's school and sought drug treatment and tutoring for his son. By the end of January, Judge Pendleton's son was enrolled in drug counseling and intensive tutoring. Judge Pendleton spent several evenings a week, taking his son to dinner and then to either treatment or tutoring.
Judge Pendleton and his former wife discussed the possibility of moving their son from the Anoka school to a school in Andover. In order for their son to attend school in Andover, one parent would need to relocate to the attendance area for that school. Judge Pendleton and his former wife agreed to defer the decision on changing schools until they could evaluate how their son was doing in treatment and at school, but they did not set a deadline for making that decision.
Judge Pendleton made no attempt to find housing in the Tenth Judicial District from mid-January 2014 through the end of May 2014. Judge Pendleton admitted that he made a “choice” not to search for new housing in the Tenth Judicial District while the issues with his son were unresolved. He acknowledged that he could have found housing in the Andover attendance area, which would have preserved both school options for his son because his former wife lived in the Anoka attendance area, but he thought that was not a “good option” because it would have made no sense for him to live in Andover if his son went to school in Anoka. He also testified that he did not explore the possibility of a short-term lease in his judicial district because he was “focus[ed] on [his] son” and “did not know how long th[e] process [would] take” “[w]hen [he] put the search on hold.”
On May 22, 2014, Judge Pendleton completed an affidavit of candidacy for the November 2014 election. The affidavit includes a space for the candidate to list his or her “residence address,” but it also indicates that “[a]ll address and contact information is optional for” judicial candidates. Judge Pendleton listed on the affidavit of candidacy the address for the Anoka townhouse that he sold in November 2013, even though he had not lived there since the sale.
Judge Pendleton admitted that at the time he filled out the affidavit of candidacy, he “knew that that was not an accurate statement.” He testified that he was “in a rush” when he filled out the affidavit of candidacy because he had to get back for court and that it was “a spontaneous, split-second decision” to list his previous, Anoka County, address. He further testified that he “was not thinking of my wife's home as my home or my address or my residence.” Judge Pendleton admitted that using the wrong address was an “error of judgment” and “created an appearance of impropriety,” but he denied any “intent to deceive the electorate.”
On June 2, 2014, there was an incident at Judge Pendleton's current wife's house between one of his other sons and one of his stepdaughters. The police were called. As a result of this incident, Judge Pendleton testified his former wife stopped talking to him. That decision caused Judge Pendleton to believe that his son who attended school in Anoka would not be transferring schools.
Judge Pendleton resumed his search for housing in the Tenth Judicial District after the June 2 incident. On June 6, 2014, he talked to the manager of an apartment building in Ramsey and decided to rent a unit that would be available August 1, 2014. Judge Pendleton viewed the apartment on July 5, 2014. That same day, he filled out a rental application. On July 7, 2014, he paid the deposit and signed the lease, and then he moved in on August 1, 2014.
In addition to this evidence regarding Judge Pendleton's residence, the Board also introduced evidence regarding Judge Pendleton's efforts to explain his residential situation. Specifically, Judge Pendleton had communicated with David Paull, who was the Executive Secretary for the Board at the time, and judges and administrators in his district regarding his residency. In August 2005, after he had separated from his former wife, Judge Pendleton told Paull of his impending divorce and his intent to live with or marry his current wife, who was then living outside the Tenth Judicial District, when his divorce became final. He sought advice on handling his residency obligation. Paull informed him that other judges in similar situations had maintained a residence in their district of election.
In November 2010, Judge Pendleton contacted Paull after receiving a phone call from Judge Patricia Karasov, whose judicial disciplinary proceeding for residing outside of her judicial district was pending. During this call, Judge Karasov accused Judge Pendleton of living outside of his district. Paull told Judge Pendleton that his situation was different from Judge Karasov's because he owned a home in his judicial district and stayed there during the week, while Judge Karasov had rented out her house...
To continue reading
Request your trial