In re Nelson

Decision Date26 March 2004
Docket NumberNo. JC-03-0002.,JC-03-0002.
Citation86 P.3d 374,207 Ariz. 318
PartiesIn the Matter of Hon. Michael C. NELSON, Respondent.
CourtArizona Supreme Court

Commission on Judicial Conduct by Gerald A. Williams, Disciplinary Counsel, Phoenix, Attorney for Arizona Commission on Judicial Conduct.

Thomas A. Zlaket, Tucson, Attorney for Michael C. Nelson.

OPINION

RYAN, Justice.

¶ 1 The Commission on Judicial Conduct brought formal charges against Respondent, Judge Michael C. Nelson, for judicial misconduct while serving as a superior court judge in Apache County. After a formal hearing, the Commission found that Respondent violated several Canons of the Code of Judicial Conduct. The Commission filed its findings and recommendations with this court recommending that Respondent be removed from office and that he be ordered to pay the costs and fees associated with the disciplinary proceeding.

¶ 2 Electing not to file a petition to modify or reject the Commission's recommendations, Respondent resigned from office, but reserved the right to contest individual items of costs and fees that might be assessed against him. The Commission subsequently filed its Statement of Costs, which included investigative costs as well as the costs of lodging the Commission members during the hearing. Respondent did not contest the assessment.

¶ 3 All recommendations in excess of censure "are subject to review by the supreme court, either by petition or on the court's own motion." R. Comm'n Judicial Conduct 29(a). We exercised sua sponte review solely to decide whether the Rules of the Commission on Judicial Conduct allow costs in addition to those permitted by Arizona Revised Statutes ("A.R.S.") section 12-332 (2003).1 We have jurisdiction under Article 6.1, Section 5, of the Arizona Constitution and Rule 29(d) of the Rules of the Commission on Judicial Conduct.

I.

¶ 4 Article 6.1 of the Arizona Constitution created the Commission on Judicial Conduct, which has the power to recommend censure, retirement, suspension, or removal of a judge. Ariz. Const. art. 6.1, §§ 3, 4. Section 5 of Article 6.1 states that this court has the power to "make rules implementing [Article 6.1]." In accordance with that power, we approved and adopted the Rules of the Commission on Judicial Conduct. Under Rule 18(e), when the Commission recommends formal sanctions, it also "may recommend the imposition of other measures consistent with these rules, including, but not limited to, the assessment of attorney fees and costs."

¶ 5 The Commission recommended that we assess costs in the amount of $5494.65. The Commission's recommendation included investigative costs, which itemized mileage, lodging, and per diem for the Executive Director and Disciplinary Counsel to interview witnesses. The Commission also recommended that Respondent pay hearing costs, which included mileage reimbursement for witnesses; mileage, lodging, and per diem for the hearing panel members to travel to the hearing; and court reporting transcription costs, including the deposition of a witness and the hearing transcript.

¶ 6 Neither Rule 18(e), nor any other provision of the rules governing the Commission, defines the term "costs." Thus, the issue before us is whether the term "costs" as used in Rule 18(e) encompasses all the items requested by the Commission.

II.
A.

¶ 7 Relying on Harris v. Smartt, 316 Mont. 130, 68 P.3d 889 (2003), Respondent initially argues that this court lacks the authority to assess any costs against him. Harris held that the imposition of costs or attorney's fees in judicial disciplinary proceedings violated the Montana Constitution. Id. at 892-93. The court concluded that the list of sanctions found in Montana's constitution—retirement, censure, suspension, or removal—were exclusive, and the Judicial Standards Commission therefore could not adopt a rule that permitted the assessment of costs in a judicial disciplinary proceeding. Id. at 891.

¶ 8 Respondent argues that because Article 6.1, Sections 32 and 43 of the Arizona Constitution similarly enumerate the possible sanctions that this court may impose, we are limited to imposing only the listed sanctions—censure, suspension, retirement, or removal. For the following reasons, we disagree that our constitution precludes an assessment of costs in a judicial disciplinary proceeding.

¶ 9 First, our constitution expressly gives this court the power to promulgate rules "implementing [Article 6.1]." Ariz. Const. art. 6.1, § 5. Montana's constitution does not have a comparable provision. See Mont. Const. art VII, § 11. We thus find Smartt distinguishable.

¶ 10 Second, Respondent's narrow reading of Article 6.1 would mean that this court could impose only the sanctions of retirement, censure, suspension, or removal. We do not read Article 6.1 so narrowly. Several other state supreme courts, in addressing this issue, have rejected such a limited view of their disciplinary power. For example, the Supreme Court of Kentucky held that "the express grant of authority to retire, suspend or remove judges for good cause contained in Section 121 of the Kentucky Constitution includes by implication the authority to impose the lesser sanctions set forth in [the Rules]." Nicholson v. Judicial Ret. and Removal Comm'n, 562 S.W.2d 306, 310 (Ky.1978). North Dakota's supreme court also concluded that its statutory provision, which listed only censure or removal as possible sanctions, "impliedly also includes any appropriate action in between," including the assessment of costs. In re Cieminski, 270 N.W.2d 321, 334 (N.D.1978); see also In re Anderson, 312 Minn. 442, 252 N.W.2d 592, 595 (1977)

(holding "that the grant of absolute power to remove from office implicitly gives us the power to impose lesser sanctions short of removal, in the absence of specific indication to the contrary"). We likewise conclude that if we have the power to remove a judge, we also have the power to impose lesser sanctions, including an assessment of costs and attorney's fees. See also R. Comm'n Judicial Conduct 16 (permitting the Commission to issue advisory letters or direct diversion "to assist a judge in improving or modifying behaviors or procedures"); id. R. 17 (providing for informal sanctions such as an admonition, reprimand, or other appropriate measures).

¶ 11 Third, the disciplinary process is procedural, not substantive. See In re Shannon, 179 Ariz. 52, 77, 876 P.2d 548, 573 (1994)

(concluding that the attorney discipline process is procedural). Because this court has the exclusive power to regulate the practice of law, which includes disciplining attorneys, see In re Creasy, 198 Ariz. 539, 541, ¶ 6, 12 P.3d 214, 216 (2000), we have held that this court has the power to assess costs in attorney disciplinary proceedings. Shannon, 179 Ariz. at 78-80,

876 P.2d at 574-76.

¶ 12 Likewise, Section 5 of Article 6.1 authorizes us to make procedural rules for judicial disciplinary proceedings. As such, Rule 18(e) appropriately permits the Commission to recommend, and for us to impose, an assessment of costs in judicial disciplinary proceedings. See Cieminski, 270 N.W.2d at 334

. Therefore, we reject Respondent's argument that the constitution does not permit an assessment of any costs in a judicial disciplinary proceeding.

B.

¶ 13 The Commission, on the other hand, argues not only that this court has authority to assess costs, but that such authority is unlimited. It therefore urges that all costs should be assessed against Respondent. Relying on Cieminski, the Commission contends that the assessment of costs in a judicial disciplinary proceeding is fundamentally different from awarding costs in a civil case. Cieminski states that because "[d]isciplinary proceedings are neither civil nor criminal, ... the rules pertaining to either do not necessarily apply." 270 N.W.2d at 334. The Commission maintains that we are not limited by civil costs statutes, such as A.R.S. § 12-332, because those statutes apply only to civil actions and not to the imposition of sanctions in a judicial disciplinary proceeding. We agree that judicial disciplinary proceedings are neither civil nor criminal; rather they are sui generis. In re Marquardt, 161 Ariz. 206, 214, 778 P.2d 241, 249 (1989) (citing In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981)). But that does not end the inquiry.

¶ 14 The Cieminski court, in recognizing the difference between assessing costs in a judicial disciplinary proceeding and awarding costs in a civil proceeding, explained that "[t]he funds collected pursuant to the [judicial disciplinary] assessment inure to the benefit of the state and not to a party or parties in the proceedings." 270 N.W.2d at 334 (citation omitted). The court reasoned that the "assessment of costs is a part of the disciplinary action and is not the same as awarding costs to either party [in a civil action]." Id. at 334-35. The court also concluded that with the power to assess costs comes the power to set limits upon such an assessment. Id. at 335. Consequently, albeit without any explanation or reasoning, the court limited the costs in that particular case to $5000. Id.

¶ 15 Like the court in Cieminski, we conclude that if we have the power to assess costs, we likewise have the power to limit them. But the Commission argues it is unnecessary for us to set limits on the type of costs that can be assessed because "any judge would be able to file objections concerning the reasonableness of the proposed costs and whether any undue hardship would result from their imposition." Although this argument has some appeal, we believe the type of costs that may be assessed should be known beforehand so a judge can reasonably anticipate what the cost of a defense to the Commission's charges may involve. Moreover, "the goal of judicial discipline is not to punish the judge but to protect the public and the judiciary's integrity." Marquardt, 161 Ariz. at 214, 778 P.2d at 249 ...

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