'Judge Anonymous', In re, COC-77-115

• Decision Date: 10 October 1978
• Docket Number: No. COC-77-115,COC-77-115
• Citation: 590 P.2d 1181,1978 OK 132
• Parties: In re Complaint Against "JUDGE ANONYMOUS"
• Court: Oklahoma Supreme Court

Page 1181

590 P.2d 1181

In re Complaint Against "JUDGE ANONYMOUS"

No. COC-77-115.

Supreme Court of Oklahoma.

Oct. 10, 1978.

Rehearing Denied Nov. 13, 1978.

Council on Judicial Complaints certified to the Chief Justice the matter of contempt by a District Judge witness for refusal to answer a question. The Chief Justice then assigned the matter to another District Judge for hearing and determination. From a finding by the assigned District Judge of Not Guilty of Contempt, Council on Judicial Complaints seek appellate review.

JUDGMENT OF THE TRIAL COURT VACATED.

CASE REMANDED WITH DIRECTIONS FOR FURTHER PROCEEDINGS.

SIMMS, Justice:

Written complaint was filed with the Council on Judicial Complaints (Council) which alleged improper judicial conduct on the part of a District Judge of Oklahoma. Because the complaint still remains pending and unresolved before the Council, the legislative mandate of secrecy found in 20 O.S.1974 Supp., § 1658 ¹ will be observed in this opinion in that neither the names of the parties or their attorneys will be mentioned. The Judge against whom the complaint was lodged will be referred to as District Judge or Judge Anonymous. However, it is essential to the resolution of this controversy that certain testimony and events be recited so as to delineate the issues.

After written complaint was filed, the matter was set for hearing before the three-member Council. Judge Anonymous appeared in obedience to a subpoena with legal counsel. He was sworn as a witness to testify and the following proceedings are a part of the record:

"Q. (By lawyer for the Council) . . . prior to your ascending the bench, did you have a law partner in the practice of law?

A. (Counsel for Judge Anonymous) I would at this time inform the Council, it is the desire of the defendant upon advice of counsel to decline to offer any oral testimony to any matters or occurrences occurring more than one year prior to this date on the grounds and for the reasons that it is the opinion of counsel and the witness that under the statutes of the State of Oklahoma, the Statute of Limitations controlling the acts or occurrences of matters to be covered by oral testimony before the Council on Complaints or before the Judiciary would be one year and in support thereof, I would state that we rely upon the Title 12, Section 95.

Q. Judge (Anonymous), you have heard the statement by your counsel, is that your statement as well?

A. That's correct, . . .

Q. I would at this time repeat my question to you, sir. Prior to your ascending the bench, did you have a partner in the practice of law?

A. Mr. (Attorney for the Council), on advice of counsel, for the reasons stated, I decline to answer that particular question respectfully."

The Chairman of the Council on Judicial Complaints then advised Judge Anonymous that his refusal to answer the question would subject him to contempt proceedings to enforce an answer. Again, the Judge refused to answer on advice of counsel, whereupon the Council invoked the provisions of 20 O.S.1974 Supp., § 1658 ² and certified the matter to the Chief Justice of the Supreme Court. The Chief Justice, following procedural guidelines of § 1658, assigned the alleged contempt matter to a judge of a district court for trial and appropriate disposition.

Following a hearing on the contempt matter, the district judge to whom the matter was assigned said, "But in this case, the real question comes down in my judgment as to whether or not the Council on Judicial Complaints under Title 20, § 1658 ³ can subpoena and require a respondent judge who has an accusation filed against him to appear before said Council and give testimony."

The assigned district judge held that, "In this particular case, the Council on Judicial Complaints had no right to subpoena the respondent judge in front of them to start with, and that being so, he didn't have to testify, he didn't have to be there in my judgment." Whereupon, Judge Anonymous was found not guilty of the contempt for the reasons above quoted, and for the further reason that in the opinion of the district judge, under all facts and circumstances, the refusal to answer by Judge Anonymous was not contemptuous.

The Council on Judicial Complaints perfected this appeal and argues that the proceedings before the Council are not criminal in nature and therefore the constitutional protections afforded a criminal defendant do not evolve to a member of the judiciary, so as to preclude that member from being called as a witness before the Council while he is under investigation. Additionally, Council argues that a judge, subject to investigation by the Council upon the authority of the Council being invoked by written complaint, can only refuse to answer on matters that may tend to incriminate him.

On the other hand, Judge Anonymous urges dismissal of the appeal for the reason that the same is not provided for by statute nor court rules; that the trial authority did not rule that the proceedings were criminal in nature; that the Council is without power to grant immunity, and therefore may not call as a witness a judge against whom complaint is made; and that his refusal to answer on advice of counsel, was not contemptuous because it was not a "willful disregard or disobedience of a public authority."

RIGHT OF APPELLATE REVIEW BY THE COUNCIL FROM ADVERSE DECISION

Rule 1.10(c)(1), Rules of Appellate Procedure, 12 O.S. Ch. 15, App. 2, provides in part: "An appeal . . . to review a sentence imposed for contempt of court occurring in a civil action or proceeding shall be brought in the Supreme Court . . . " Judge Anonymous urges that by reason of 12 O.S.1971, § 990, the above cited rule has the force and effect of statute. Section 990 provides: "The Supreme Court shall provide by court rules, which will have the force (and effect) of statute . . . the procedure to be followed for the completion and submission of the appeal taken hereunder." Transok Pipe Line v. Darks, Okl., 515 P.2d 218, 219 (1973) is cited in support of the motion to dismiss. Transok holds that all appeals to the Supreme Court are governed by 12 O.S.1971, § 990. However, in Transok, we were dealing with a jurisdictional defect in the appeal by reason of failure to lodge the appeal within the time provided by 52 O.S.1971, § 113. The appeal herein is timely brought.

The thrust of Judge Anonymous' proposition is simply that there was no Conviction for contempt, therefore there could be no appeal.

We are not here concerned with a final order or judgment entered by the Council on Judicial Complaints, but we are asked to review a final order of a District Court. Appellate review from a final order or judgment of a district court is authorized by statute. 12 O.S.1971, § 990. While no appeal is specifically provided for from an adjudication of "not guilty" for contempt, nonetheless, Article VII, Sec. 4, Okl.Const., provides in part: "The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law." While this Court has been conservative in exercising the full powers vested in it by Art. VII, § 4, Supra, the exigencies of the circumstances in this case compel us to determine the issues now before us by granting appellate review of the judgment of the district judge assigned to hear the matter.

Appellate review is granted because we are treating a case of first impression and the judges of this state, as well as the Council on Judicial Complaints, must have definitive guidelines in order to function with consistency. Further, it is in the public interest to see that judicial integrity is preserved within Oklahoma by maintaining a viable agency where legitimate complaints concerning the conduct of any person occupying a position in the judicial branch of government may be efficiently and impartially investigated.

NATURE OF PROCEEDINGS BEFORE THE COUNCIL ON JUDICIAL COMPLAINTS

Council complains that the trial court proceeded under the assumption that proceedings before the Council were criminal in nature and that the judge was entitled to the broad constitutional guarantees afforded a defendant in a criminal case. The judge counters that the record negates this purported assumption because the record is devoid of any reference by the trial court as to the proceedings being criminal in nature and neither is there any finding of the trial court to that effect.

A reading of 20 O.S.1974 Supp., § 1658, reflects: "The Council shall promptly Investigate all complaints received by it, and shall determine the proper disposition thereof, as provided in this act. . . ." The dispositions of complaints available to the Council are limited. It may dismiss the complaint, or it may cause jurisdiction of the Trial Division of the Court on the Judiciary to be invoked through the Attorney General. See: 20 O.S.Supp.1974, § 1659. The Council is powerless to suspend or remove a judge from office; neither can it impose any sanction upon any member of the judiciary. The Council is not a body with authority to adjudicate any matter, but rather it is limited to Investigation of judges against whom formal complaint is made.

We note that a criminal action is defined by 12 O.S.1971, § 7, as "one prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof." Perusal of the complaint filed against Judge Anonymous indicates there is no "public offense" therein involved, nor is he being prosecuted by the state as a party. Section 7, Supra, negates the conclusion that the proceedings before the Council are criminal in nature. In distinguishing between criminal proceedings and sanctions imposed upon a member of the judiciary, the Court on the Judiciary of Oklahoma, Appellate Division, stated in Sharpe v. State, Okl.Jud., 448 P.2d 301, 305 (1968); cert. den., 394 U.S. 904, 89 S.Ct. 1011, 22...