In re Miller

• Decision Date: 03 March 2016
• Docket Number: CJFD 14–50,SC S063788.
• Citation: 358 Or. 741,370 P.3d 1241
• Parties: Inquiry Concerning a Judge, Re: The Honorable Walter Randolph "Randy" MILLER, Respondent.
• Court: Oregon Supreme Court

358 Or. 741

370 P.3d 1241

Inquiry Concerning a Judge, Re: The Honorable Walter Randolph "Randy" MILLER, Respondent.

CJFD 14–50

SC S063788.

Supreme Court of Oregon, En Banc.

Submitted on the record Jan. 26, 2016.

Decided March 3, 2016.

Lisa Ludwig, Portland, represented the Commission on Judicial Fitness and Disability.

W. Michael Gillette, Schwabe Williamson & Wyatt PC, Portland, represented respondent.

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 that respondent, now a circuit court judge, had violated the Oregon Code of Judicial Conduct (Code) in connection with a 2014 voters' pamphlet statement supporting his judicial candidacy. The commission specifically alleged violations of Rule 2.1(D) (judge shall not engage in "conduct involving dishonesty, fraud, deceit, or misrepresentation") and Rule 5.1(D) (judicial candidate shall not knowingly or with reckless disregard for truth make any "false statement" concerning qualifications, education, experience, or other material fact relating to judicial campaign). The commission conducted a hearing and now recommends that we dismiss the formal complaint. See ORS 1.430(1)

(if commission holds hearing, Supreme Court shall review record of proceedings on law and facts and may discipline judge). We accept the commission's recommendation.

The facts, taken from the record, are as follows. In 2010, before he became a judge, respondent attended a week-long "trial academy" presented by the International Association of Defense Counsel (IADC), held on the campus of Stanford Law School. Although held on the Stanford campus, the academy was not affiliated with that school. Upon completion, respondent received a certificate stating that he "successfully completed the course of instruction at the IADC Trial Academy, Stanford Law School[.]"

In 2013, respondent filed for election to an open judicial position on the Deschutes County Circuit Court. As part of his initial form submission to the Secretary of State, under "Education Information," "Educational Background (schools attended)," respondent listed his college and law school degrees, and under a related section, "Educational Background (other)," respondent identified his participation in the academy as follows: "International Association of Defense Counsel: Trial Academy Graduate, at Stanford Law School." (Emphasis added.)

After respondent completed his Secretary of State submission, he prepared a voters' pamphlet statement, limited to a 325–word narrative. To prepare that narrative, he reviewed the Elections Division's Candidates Manual for compliance, and he also consulted with colleagues. Respondent decided to include a reference to the academy in a section that contained his college and law school information, which he entitled "Educational Background." In doing so, he did not include the word "at" before "Stanford Law School," as he had in his earlier Secretary of State submission; instead, he replaced "at" with a comma. He initially used "IADC" to describe the academy—specifically writing "IADC Trial Academy, Stanford Law School"—but he eliminated that modifier after a judge who reviewed the draft statement suggested that it was not recognizable. Respondent opted not to spell out "IADC" so that he could save four words to use elsewhere in his statement. He asked a different judge to review an updated draft that removed "IADC," and that judge told him that nothing about "Trial Academy, Stanford Law School," appeared misleading to him. Respondent's final voters' pamphlet statement therefore stated, "Trial Academy, Stanford Law School," as part of his educational background.

Respondent's reference to the academy and Stanford Law School in his voters' pamphlet statement became an issue during the campaign. After respondent was elected to a judicial position, the commission received a complaint, which it investigated, resulting in the filing of a formal complaint. At a hearing on that formal complaint, respondent asserted that the contested statement had not been false and that his decision to reword the description of the academy, following his initial Secretary of State filing, had been merely editorial in nature. He further asserted that, because Rule 2.1(D) applied to only "[a] judge," but not also "a judicial candidate," that rule did not apply to his conduct at the time of his candidacy, before he became a judge.

After the hearing, the commission filed an opinion with this court, which, as noted, recommended dismissal. As to Rule 5.1(D), which expressly applies to "a judge or a judicial candidate," the commission recommends dismissal on the merits, because respondent's voters' pamphlet statement was not "false" within the meaning of that rule. As to Rule 2.1(D), which expressly applies to only "[a] judge," the commission reasoned that, because Rule 5.1(D) sets out a more "specific" prohibition that applies to "a judge or a judicial candidate," that latter rule "govern[ed]" the conduct at issue here. As discussed below, although we do not precisely agree with the commission's particular reasoning, we conclude that Rule 2.1(D) did not apply to respondent's conduct and that the allegation under that rule therefore should be dismissed. We further conclude, as did the commission, that the allegation under Rule 5.1(D) also should be dismissed.

The commission must establish a violation of the Code by clear and convincing evidence. Commission on Judicial Fitness and Disability Rule of Procedure 16. "Clear and convincing evidence means that the truth of the facts asserted is highly probable." In re Jordan, 295 Or. 142, 156, 665 P.2d 341 (1983)

(internal quotation marks omitted). Additionally, under Article VII (Amended), section 8(1)(b), of the Oregon Constitution

, a judge may be removed, suspended, or censured for "[w]ilful misconduct" in judicial office, "where such misconduct bears a demonstrable relationship" to the effective performance of judicial duties; further, under section 8(1)(e), a judge similarly may be removed for "[w]ilful violation" of any judicial conduct rule. See also In re Schenck, 318 Or. 402, 405, 870 P.2d 185 (1994) (explaining section 8 (1)(e)). Our review is de novo. ORS 1.430 ; In re Ochoa, 342 Or. 571, 574, 157 P.3d 183 (2007).

The predicate question whether Rule 2.1(D) applies to respondent's conduct involves an examination of that rule as compared to Rule 5.1(D), as well as an additional rule, Rule 1.1, which describes the scope of the Code. Rule 1.1 provides, in part:

" * * * The Oregon Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. A judge or judicial candidate shall comply with the provisions of this Code and may be disciplined for violation of the Code.

"Because a judge or judicial candidate may be disciplined for violations of this Code, the provisions are limited to addressing specific circumstances where certain conduct is either prohibited or required. * * * "

(Emphasis added.) Rule 2.1(D) expressly applies to "[a] judge" and provides that a judge "shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." By contrast, Rule 5.1(D) expressly applies to "a judge or a judicial candidate" and provides that a judge or judicial candidate shall not, "[e]xcept as permitted by law,"

"knowingly or with reckless disregard for the truth, make any false statement concerning a judicial candidate's identity, qualifications, present position, education, experience, or other material fact that relates to the judicial campaign of the judge or any judicial candidate[.]"

In light of the commission's recommendation—which determined that Rule 5.1(D), rather than Rule 2.1(D), "govern[ed]" the conduct at issue—this case poses a construction question, most notably as to the "scope" rule, Rule 1.1.

Beginning very simply with the text of Rule 2.1(D), we observe, as did respondent and the commission below, that that rule expressly applies to only "[a] judge," contrasted against Rule 5.1(D), which applies to both "a judge or a judicial candidate." Rule 1.1 provides necessary context for that textual difference; that rule, however, could be read in more than one way, as discussed below.

As noted, Rule 1.1 provides, in part, that the Code "establishes standards for the ethical conduct of judges and judicial candidates " and that "[a] judge or judicial candidate shall comply with the provisions of this Code * * *. " (Emphasis added.) One way to read that rule is that all the Code's provisions apply to both judges and judicial candidates, with the exception of provisions that, by their nature, could apply to only judges. As an example of the latter, Rule 3 sets out provisions relating to the impartial and diligent performance of judicial duties that, in practical operation, can apply to only judges. See, e.g., Rule 3.2 (ensuring right to be heard); Rule 3.7 (decorum, demeanor, and communication with jurors); Rule 3.9 (ex parte communications); Rule 3.10 (disqualification). Other provisions of the Code that textually apply to only "a judge," however, could be read to apply to both judges and judicial candidates. For example, most, if not all, of Rule 2—which sets out provisions relating to maintaining the integrity of the judicial system—theoretically could apply to both judges and judicial candidates See, e.g., Rule 2.1 (various rules to promote confidence in judiciary); Rule 2.2 (avoiding misuse of prestige of judicial office, which could apply to both present and future office). Similarly, Rule 4—which sets out provisions about minimizing the risk of conflict between a judge's activities and the obligations of judicial office—contains some provisions that, by their nature, could apply to only judges, but also theoretically could apply to judicial candidates. Compare Rule 4.8 (prohibiting "[a] judge" from practicing law, which would apply to...