In re Day, SC S063844

• Decision Date: 15 March 2018
• Docket Number: SC S063844
• Citation: 362 Or. 547,413 P.3d 907
• Parties: Inquiry Concerning a Judge re: The Honorable Vance D. DAY, Respondent
• Court: Oregon Supreme Court

362 Or. 547

413 P.3d 907

Inquiry Concerning a Judge re: The Honorable Vance D. DAY, Respondent,

SC S063844

Supreme Court of Oregon.

Argued and submitted June 14, 2017.

March 15, 2018

Janet M. Schroer, Hart Wagner LLP, Portland, argued the cause and filed the briefs for the respondent. Also on the briefs were Ruth C. Rocker, Portland, and James Bopp, Jr. and Anita Milanovich, The Bopp Law Firm, Terre Haute, Indiana, and Bozeman, Montana.

Timothy R. Volpert, Tim Volpert PC, Portland, argued the cause and filed the brief for the Commission on Judicial Fitness and Disability. Also on the brief were Darlene D. Pasieczny and Victoria D. Blachly, Samuels Yoelin Kantor LLP, Portland.

Herbert G. Grey, Beaverton, filed the brief for amici curiae Christian Legal Society and Professor Mark David Hall. Also on the brief were Robert A. Destro, Washington, D.C., and Kimberlee Wood Colby, Springfield, Virginia.

Stefan C. Johnson, Los Angeles, filed the brief for amici curiae Lambda Legal Defense and Education Fund, Inc. Also on the brief were Peter C. Renn, Los Angeles, California, and Eric D. Lesh and Ethan D. Rice, New York, New York.

Before Balmer, Chief Justice, Kistler, Walters, Nakamoto, and Flynn, Justices, and Landau and Brewer, Senior Justices pro tempore.^*

PER CURIAM

This case is before us on a recommendation from the Commission on Judicial Fitness and Disability. The commission filed a formal complaint alleging 13 misconduct counts against respondent, involving the following judicial conduct rules and constitutional provisions: Oregon Code of Judicial Conduct Rule 2.1 (promoting confidence in the judiciary); Rule 2.2 (prohibiting using judicial position for personal advantage); Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties); Rule 3.7(B) (judge must be patient, dignified, and courteous to litigants); and Article VII (Amended), sections 8(1)(b), (c), and (e), of the Oregon Constitution (prohibiting willful misconduct bearing a demonstrable relationship to the effective performance of judicial duties; willful or persistent failure to perform judicial duties; and willful violation of a judicial conduct rule). After conducting a hearing, the commission filed a recommendation with this court, to the effect that clear and convincing evidence supported a conclusion that respondent had violated multiple rules with respect to eight of the counts, including violations not alleged in the complaint. The commission further recommended that respondent be removed from office. See ORS 1.430(1) (if commission holds hearing, Supreme Court shall review record of proceedings and may discipline judge); Or. Const., Art. VII (Amended), § 8(1) (in manner provided by law, Supreme Court may censure, suspend, or remove a judge from judicial office for specified misconduct). Respondent argues that we should dismiss all or several counts for procedural reasons; that the commission did not sufficiently prove the alleged misconduct; and, in any event, that the only appropriate sanction is a censure.

For the reasons explained below, we dismiss two of the eight counts of complaint that are at issue, and we also do not consider any violation that the commission now recommends that it did not allege in its complaint. We further conclude, however, that the commission proved by clear and convincing evidence that respondent engaged in some of the misconduct alleged in the remaining six counts. We suspend respondent, without pay, for three years.

I. FRAMEWORK FOR ANALYSIS AND EVALUATION OF RECORD

We begin by describing the constitutional and statutory framework that defines our task in this case.

A. Authority to Censure, Suspend, or Remove a Judge

Under Article VII (Amended), section 8(1), of the Oregon Constitution, this court may censure, suspend, or remove from judicial office a judge who has engaged in certain willful misconduct, as follows:

"(1) In the manner provided by law, *** a judge of any court may be removed or suspended from his [or her] judicial office by the Supreme Court, or censured by the Supreme Court, for:

"* * * * *

"(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

"* * * * *

"(e) Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court[.]"¹

That constitutional provision was originally adopted by the people in 1968, following a 1967 legislative referral; it was amended to its current form in 1976. Or. Laws 1967, Senate Joint Resolution 9; Or. Laws 1975, Senate Joint Resolution 48; see also In re Fadeley , 310 Or. 548, 553, 802 P.2d 31 (1990) (describing history). Pursuant to the authorization in Article VII (Amended), section 8(1)(e), this court has established a Code of Judicial Conduct, revised from time to time, that applies in judicial fitness proceedings.² In re Schenck , 318 Or. 402, 405, 870 P.2d 185, cert. den. , 513 US 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994).

Also in 1967, the legislature passed an accompanying act that created what is now the Commission on Judicial Fitness and Disability, and established the process for judicial fitness and disability proceedings. Or. Laws 1967, ch. 294; Fadeley , 310 Or. at 553, 802 P.2d 31 ; see also ORS 1.410 - 1.480 (current statutes). Under that statutory framework, the commission may hold a hearing following an investigation, ORS 1.420 (1)(a) ; if the commission finds that the judge's conduct justifies censure, suspension, or removal from office, the commission then "shall recommend to the Supreme Court" one of those three identified sanctions, ORS 1.420(4). Consistent with the constitutional provisions just cited, however, only this court has authority to censure, suspend, or remove a judge from office. See also ORS 1.430(1) (if commission holds hearing, this court shall review the record of proceedings on law and facts, and may impose an identified sanction); In re Jordan , 290 Or. 303, 308, 622 P.2d 297, clarified on petition for reh'g , 290 Or. 669, 624 P.2d 1074 (1981) ( Jordan I ) (commission's statutory duty is to make recommendation to this court concerning censure, suspension, or removal).³ And, as alleged in this case and as required by the Oregon Constitution, such a sanction may be imposed only as a result of willful misconduct or willful violation of a judicial conduct rule. In re Gustafson , 305 Or. 655, 657, 756 P.2d 21 (1988).

B. "Wilful" Misconduct

This court has explained that, for constitutional purposes, "wilful" misconduct under Article VII (Amended), sections 8(1)(b), (c), and (e), combines elements of "intent" and "knowledge": A judge's conduct is "wilful" "if the judge intends to cause a result or take an action contrary to the applicable rule and if [the judge] is aware of the circumstances that in fact make the rule applicable, whether or not the judge knows that he [or she] violates the rule." Gustafson , 305 Or. at 660, 756 P.2d 21 (emphasis added); see also Schenck , 318 Or. at 405, 870 P.2d 185 (judge must have "the conscious objective of causing the result or of acting in the manner defined in the rule of conduct" (internal quotation marks omitted) ). "It is not enough that a judge was negligent [and] should have known better," but, conversely, a "benign motive" will not excuse either an intentional or knowing violation "of a nondiscretionary norm." Gustafson , 305 Or. at 559-60, 756 P.2d 21 (internal quotation marks omitted).

C. Burden of Proof and Standard of Review

The commission must establish alleged violations of the Code of Judicial Conduct by clear and convincing evidence. Commission on Judicial Fitness and Disability Rule of Procedure (CJFDRP) 16.a.; Schenck , 318 Or. at 405, 870 P.2d 185 ; see also ORS 1.415(3) (commission shall adopt rules of procedure governing proceedings under ORS 1.420 ); Jordan I , 290 Or. at 307, 622 P.2d 297 (purpose of judicial fitness proceeding is "proper administration of justice for the public good"; proceedings are not criminal in nature, and burden of proof is clear and convincing evidence, rather than proof beyond reasonable doubt). "Clear and convincing evidence means that the truth of the facts asserted is highly probable." In re Miller , 358 Or. 741, 744, 370 P.3d 1241 (2016). If witness testimony about key facts is in conflict, then the record must establish that it is "highly probable" that the testimony that supports the allegations is true. See In re Knappenberger , 344 Or. 559, 571, 186 P.3d 272 (2008) (lawyer discipline, so demonstrating); In re Bishop , 297 Or. 479, 485, 686 P.2d 350 (1984) (same). Respondent is entitled to a presumption that he did not engage in the alleged misconduct. See In re Jordan , 295 Or. 142, 156, 665 P.2d 341 (1983) ( Jordan II ) (lawyer discipline; so stating).

This court's review of the record is de novo . See In re Gallagher , 326 Or. 267, 284, 951 P.2d 705 (1998) (citing ORS 1.430(1) for that proposition). As this court previously has explained, in deciding whether the commission's proof is clear and convincing, we "make our own independent evaluation of the evidence" and then "decide whether the conduct, based on our findings of the facts, constitutes conduct proscribed by the Oregon Constitution." In re Field , 281 Or. 623, 629, 576 P.2d 348, reh'g den. , 281 Or. 638, 584 P.2d 1370 (1978).

II. FACTS

A. Introduction

Respondent is a Marion County Circuit Court judge, who was appointed to the bench in fall 2011 and then elected in 2012. The events at issue occurred beginning in fall 2012 and continuing through 2014. The commission initially, and briefly, investigated a particular 2012 incident, as described below, but decided not to file a formal complaint. About 18 months later, it commenced a more expansive investigation about additional allegations, and it revisited the 2012 incident. The commission filed a formal complaint in ...