Inquiry Concerning Complaint of Judicial Standards Comm'n of State v. Judge G. Todd Baugh, PR 14–0078.

• Citation: 334 P.3d 352,375 Mont. 257
• Decision Date: 04 June 2014
• Docket Number: No. PR 14–0078.,PR 14–0078.
• Parties: INQUIRY CONCERNING COMPLAINT OF JUDICIAL STANDARDS COMMISSION of the State of Montana, Complainant, v. Judge G. Todd BAUGH, Respondent.
• Court: United States State Supreme Court of Montana

375 Mont. 257

334 P.3d 352

INQUIRY CONCERNING COMPLAINT OF JUDICIAL STANDARDS COMMISSION of the State of Montana, Complainant,

v.Judge G. Todd BAUGH, Respondent.

No. PR 14–0078.

Supreme Court of Montana.

June 4, 2014.

Suspension ordered.

Laurie McKinnon, J., issued dissenting opinion.

OPINION and ORDER

MIKE McGRATH, Judge.

¶ 1 This matter comes before the Court on a formal complaint filed by the Judicial Standards Commission against Montana District Court Judge G. Todd Baugh. Judge Baugh has waived formal proceedings before the Commission, admitted that he violated Montana's Code of Judicial Conduct, and consented to judicial discipline by this Court. The Commission has filed with the Court its recommendation that the Court accept Judge Baugh's acknowledgement of violation, waiver of formal proceedings, and consent to discipline in the form of public reprimand or censure. The Commission further recommends that this Court publicly censure Judge Baugh for the conduct set forth in the formal complaint filed against him.

¶ 8 The State appealed the criminal case against Rambold. We recently vacated his sentence and remanded for resentencing by a new judge. See State v. Rambold, 2014 MT 116, 375 Mont. 30, 325 P.3d 686.

DISCUSSION

¶ 9 Rule 1.2 of the Code of Judicial Conduct requires judges to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and avoids impropriety or the appearance of impropriety. Judge Baugh has admitted that he violated that rule.

¶ 10 The comments to Rule 1.2 state, in relevant part, that public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.

¶ 11 Judge Baugh's comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse. His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control. In addition, Judge Baugh's later attempt to retract his sentence and rationale was inconsistent with Montana law. Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions. Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct. He has caused Montana citizens, as well as others, to question the fairness of our justice system and whether prejudice or bias affected the outcome of the Rambold case. There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them.

¶ 12 Article VII, section 11(3) of the Montana Constitution and § 3–1–1107, MCA, allow this Court, upon recommendation of the Judicial Standards Commission, to impose discipline upon any Montana judge for violation of the Code of Judicial Conduct. We adopt the recommendation of the Judicial Standards Commission that we accept Judge Baugh's admission that his actions violated the Code of Judicial Conduct and his consent to submit himself to this Court for public censure.

¶ 13 In addition, we conclude that Judge Baugh's actions warrant his suspension without pay for 31 days. Judge Baugh's current term in office expires December 31, 2014. He has announced that he will not seek reelection to another term. In light of those facts and in order to minimize the impact of his suspension on the parties whose cases are pending before him and on the other judges in the Thirteenth Judicial District, we conclude the suspension should commence on December 1, 2014.

¶ 14 Because Judge Baugh has not consented to a suspension, and because the Commission has not recommended suspension, we will allow Judge Baugh 15 days from the date of this Opinion and Order in which to withdraw his consent to discipline.

¶ 15 IT IS ORDERED that Judge Baugh is granted until June 19, 2014, in which to withdraw his consent to judicial discipline, in writing filed with the Clerk of this Court. If Judge Baugh withdraws his consent to judicial discipline, the Court will return this matter to the Judicial Standards Commission for formal proceedings.

¶ 16 IT IS FURTHER ORDERED that, if Judge Baugh does not withdraw his consent to discipline, he shall appear before this Court in our courtroom in Helena, Montana, at 9:30 a.m. on July 1, 2014, for the delivery of a public censure by this Court.

¶ 17 IT IS FURTHER ORDERED that, if Judge Baugh does not withdraw his consent to discipline, he will be suspended from the bench without pay for a period of 31 days beginning on December 1, 2014.

We Concur: MICHAEL E. WHEAT, BETH BAKER, PATRICIA COTTER and JIM RICE, JJ.

Justice LAURIE McKinnon, dissenting.

¶ 18 “[N]either laws nor the procedures used to create or implement them should be secret; and ... the laws must not be arbitrary.” ¹ Public confidence in the judiciary, which is at issue in these proceedings, depends on laws that are predictably and uniformly applied. I cannot agree, therefore, with this Court's decision to impose a sanction more severe than the one recommended by the Judicial Standards Commission when we have not articulated a single rule, standard, or analysis justifying this decision. In rejecting the Commission's recommendation, the Court fails to set forth a standard of review and fails to articulate any factors or objectives that guide our determination to impose a particular sanction. Our decision today may be viewed by some as arbitrary and predicated solely upon the personal opinion of any particular Justice. As a result, we have ultimately exacerbated the breach in public confidence initially wrought by Judge Baugh.

¶ 19 Because public confidence in the judiciary is earned through decisions that are transparent and nonarbitrary, this Court's decisions must demonstrate that our discretion has been exercised in an evenhanded and uniform manner, to the extent humanly possible. Public confidence is restored only if the remediating court arrives at its decision as a neutral and independent arbiter and through the application of clear and articulable standards. The old Latin question, “Quis custodiet ipsos custodes?” (Who guards the guardians?) implies that in a society governed by laws, rather than by individuals, someone must guard the guardians-or else, ultimately, there is nothing but the rule of men.² Standards of review, identifiable factors and objectives for imposing sanctions, and a review limited to the record before us are checks on the potentially unfettered discretion of this Court. Because we have failed to articulate these standards and rules in today's Opinion, and thus have strayed from fundamental principles of American jurisprudence, I dissent.

2. As James Madison noted, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Federalist No. 51, at 320 (Isaac Kramnick ed., 1987).

Standard of Review

¶ 20 Montana regulates judicial conduct through a system involving both this Court and the constitutionally created Judicial Standards Commission. Article VII, Section 11 of the Montana Constitution provides for the removal and discipline of judges and directs the Legislature to create a judicial standards commission to investigate complaints of judicial misconduct. In accordance with this provision, the Legislature created the Judicial Standards Commission consisting of five members: two district court judges, who are elected by the district judges; one attorney, appointed by the Supreme Court, who has practiced law in this State for at least ten years; and two citizens, appointed by the Governor, who are not attorneys or judges. Section 3–1–1101, MCA. Other provisions in Title 3, chapter 1, part 11, MCA, set out the procedures and authority of the Commission and provide for action by this Court.

¶ 21 The Constitution directs the Judicial Standards Commission to “ make rules implementing this section.” Mont. Const. art. VII, § 11(2). Pursuant to this authority, the Commission has adopted the Rules of the Judicial Standard Commission (hereinafter, “Rule––––”). Under these rules, the Commission investigates allegations of judicial misconduct upon receipt of a complaint or on the Commission's own motion. Rule 10(b), (c). Based on its investigation, the Commission may summarily reject or dismiss a complaint because it “fail[s] to state any possible grounds for disciplinary proceedings.” Rule 10(e), (f). If there is cause to proceed,³ the investigation may result in the filing of a formal complaint. Rule 11(a). The judge who is the subject of the proceedings is entitled to discovery, Rule 12(f); to a formal hearing, Rule 13(a)-(f); and to a majority decision of the Commission before a sanction may be recommended to this Court, Rule 13(h). The Commission and the judge may, at any time, agree to a particular disposition of the matter. Rule 10(h).

¶ 22 As an alternative to dismissing a complaint or filing formal charges, the Commission may impose an informal sanction without any involvement by this Court. Rule 10(g) states that, after receipt of...