In re Disciplinary Action Against McGuire, 20040073.

• Decision Date: 31 August 2004
• Docket Number: No. 20040073.,20040073.
• Citation: 2004 ND 171,685 N.W.2d 748
• Parties: In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael O. McGUIRE, Judge of the District Court. Judicial Conduct Commission, Petitioner v. Michael O. McGuire, Respondent.
• Court: North Dakota Supreme Court

685 N.W.2d 748

2004 ND 171

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Michael O. McGUIRE, Judge of the District Court.

Judicial Conduct Commission, Petitioner v. Michael O. McGuire, Respondent.

No. 20040073.

Supreme Court of North Dakota.

August 31, 2004.

Paul W. Jacobson (argued), Disciplinary Staff, Bismarck, N.D., for petitioner.

Mark J. Condon (on brief), Johnson & Condon, P.A., Minneapolis, MN, for respondent.

Michael O. McGuire (on brief), pro se, Fargo, ND, for respondent.

SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] This is a disciplinary proceeding against Michael O. McGuire, Judge of the District Court for the East Central Judicial District. We conclude there is clear and convincing evidence that Judge McGuire violated N.D.Code Jud. Conduct Canons 1A, 2, and 3B(4). We suspend Judge McGuire from his position as a district judge, without net pay from November 1, 2004, through the end of his term of office on December 31, 2004, and assess against him the costs and attorney fees necessary for the prosecution of these proceedings.

I

[¶ 2] Judge McGuire graduated from the University of North Dakota School of Law in 1970 and was first elected Cass County Judge with Increased Jurisdiction in 1978. He was appointed district judge in 1979 and was elected district judge in 1980, 1986, 1992 and 1998. He currently serves in Judgeship Number 4 of the East Central Judicial District in Fargo and was Presiding Judge of the District from February 2001 until May 23, 2003. He is not seeking re-election and will end his term of office on December 31, 2004.

[¶ 3] In November 2003, the Judicial Conduct Commission initiated formal proceedings against Judge McGuire concerning allegations of inappropriate behavior directed at seven female employees in the Cass County Courthouse. In a 14-count complaint, Judge McGuire was charged with violating N.D.Code Jud. Conduct Canons 1A, 2, 3B(4), and 4A(2). A hearing was held before a four-person hearing panel on March 2, 2004. The panel found the following facts:

4.

Count I. It was alleged that on or about January 24, 2002, there was a meeting in [employee's] office regarding DNA testing. After the meeting, Judge McGuire returned to [employee's] office with a new computer mouse. He is alleged to have said, "I thought you might like this model. It's gray with a red ball." He is then alleged to have gotten under the desk to attach the mouse to [employee's] computer. At that point he was to have turned to [employee] and said, "Kind of reminds you of a testicle, doesn't it?" Judge McGuire denies that the statement was made. [Employee] further testified that she reported this incident to [other employees] and Judge Georgia Dawson within several weeks of it happening.

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the testimony of [employee] to be the more credible version of the actual facts surrounding this incident. The Hearing Panel further finds that the evidence does establish by clear and convincing evidence that Judge McGuire did make the statement as related by [employee] in the context she has related in her testimony.

5.

Count II. It was alleged that on March 11, 2002, while in [employee's] office at the Cass County Courthouse, Judge McGuire engaged [employee] in a discussion about how the word clitoris was to be pronounced. [Employee] testified that the conversation was not a subject of a court proceeding but rather an informal conversation initiated by Judge McGuire without invitation of [employee]. Judge McGuire gave testimony attempting to explain the context of the discussion, suggesting that the conversation had to do with his criminal court caseload. [Employee] testified that she reported this incident to Dorothy Howard, Clerk of the District Court and Judge Georgia Dawson within days of the incident.

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the testimony of [employee] to be the more credible version of the actual facts surrounding this incident. The Hearing Panel further finds that the evidence does establish by clear and convincing evidence that Judge McGuire made the statement as related by [employee] in her testimony.

6.

Count III. It was alleged that on February 4, 2003, Judge McGuire upon observing a letter wherein [employee] was specifically referred to in the body of the letter as "Madam", stated to [employee] that such reference would put her in the same category as "Heidi Fleiss." ... The Hearing Panel takes notice of the reality that Heidi Fleiss refers to the notorious "Hollywood Madam" who was convicted of running a high-priced prostitution ring in Hollywood, CA. Judge McGuire gave testimony attempting to explain the context of the statement, suggesting that he was merely making comment that the term was an old fashioned method of referring to women and that his comment was innocent of interpretation.

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the testimony of [employee] to be the more credible version of the actual facts surrounding this incident. The Hearing Panel further finds that the evidence does establish by clear and convincing evidence that Judge McGuire made the statement as related by [employee] in her testimony.

7.

Count IV. It was alleged that on February 24, 2003, Judge McGuire came into [employee's] office, closed the door and apologized for his behavior regarding the clerk's office reorganization. Judge McGuire was to have said that he had handled the reorganization poorly and [employee] responded saying she accepted the apology. At that point, Judge McGuire by testimony of [employee] put his left elbow on the desk and leaned over and stated to [employee], "Now can I sleep with you?" Judge McGuire categorically denies that any statement of that nature was made by him, although he admits that he did speak with [employee] about the issue of the reorganization of the clerk's office. [Employee] reported the incident within days to Dorothy Howard, Clerk of the District Court and Judge Norman Backes.

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the testimony of [employee] to be the more credible version of the actual facts surrounding this incident. The Hearing Panel further finds that the evidence does establish by clear and convincing evidence that Judge McGuire made the statement as related by [employee] in her testimony.

8.

Count V. On November 19, 2000, there appeared in the Fargo Forum a wedding announcement concerning Judge McGuire's daughter.... At a date following publication, [employee] commented to Judge McGuire that she had seen the announcement and told the judge that it was a nice photograph of the couple. Judge McGuire by the testimony of [employee] was to have responded, "Don't you think her breasts are too large? She is on birth control and it makes her breasts large." As he made the statement, [employee] testified that Judge McGuire cupped his hands at the breast level of his chest. She also testified that the announcement was not in her hands at the time the statement was made to her by Judge McGuire. In contrast, Judge McGuire testified that absolutely no statement regarding his daughter's anatomy was made by him during this contact. [Employee] related the incident to Dorothy Howard, Clerk of the District Court following the incident.

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the testimony of [employee] to be the more credible version of the actual facts surrounding this incident. The Hearing Panel further finds that the evidence does establish by clear and convincing evidence that Judge McGuire made the statement as related by [employee] in her testimony.

9.

Count VI. At a time described to have taken place in the last six years, Judge McGuire is alleged to have approached [employee], while she was in the coffee room at the district court and twirled her hair. On another occasion thereafter Judge McGuire came into the same coffee room and declared, "Let's talk about how satisfying our sex lives are and, [employee], let's start with you." Other district court personnel were present when this conduct occurred. [Employee] while testifying about the actual words and conduct and while stating that she believed it occurred within the last six years could not be definitive. Judge McGuire in his response to the complaint does not recall the twirling of hair incident and while admitting that he did make the comment concerning a discussion of "sex lives" was only making a demonstrative statement to the collective group in the coffee room to discourage them from gossiping about other employees.

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the testimony of [employee] to be the more credible version of the actual facts surrounding these incidents. The Hearing Panel further finds that the evidence does establish by clear and convincing evidence that Judge McGuire made the statement as related by [employee] in her testimony. The Hearing Panel nonetheless also finds that the evidence does not establish that these events occurred within six years before the receiving of the complaint. N.D.C.C. § 27-23-03(3).

10.

Count VII. At a Secretaries Day Luncheon at the Fargo Country Club during the first week of May, 2003, Judge McGuire was alleged to have said to [employee], "What are you going to have, my little teacup?" The statement was made in the presence of Judge Frank Racek, Judge John Irby, and Judge Lawrence LeClerc, all of whom gave testimony of their recollection of the comment. Judge McGuire testified that the comment was more accurately "How's your ice tea, teacup?" rather than "my little teacup."

Weighing the credibility of the witnesses with respect to this incident the Hearing Panel finds the

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