Judicial Qualifications Com'n v. Cieminski, 10253

• Decision Date: 02 December 1982
• Docket Number: No. 10253,10253
• Citation: 326 N.W.2d 883
• Parties: JUDICIAL QUALIFICATIONS COMMISSION, Petitioner, v. C. James CIEMINSKI, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 883

326 N.W.2d 883

JUDICIAL QUALIFICATIONS COMMISSION, Petitioner, v. C. James CIEMINSKI, Respondent.

Civ. No. 10253.

Supreme Court of North Dakota.

Dec. 2, 1982.

Joseph F. Larson II, Bismarck, for petitioner.

Steven Kaldor and George E. Duis, Fargo, for respondent, and C. James Cieminski, pro se.

PEDERSON, Justice.

Here, for the second time, we must review findings and recommendations made by the Judicial Qualifications Commission, which conclude that C. James Cieminski, Judge of the County Court With Increased Jurisdiction of Barnes County, has engaged in behavior violative of the Rules of Judicial Conduct, formerly called Canons of Judicial Conduct. On this occasion, the Commission recommended that Judge Cieminski be removed from office. We decline to remove him from office but conclude that we should publicly censure Judge Cieminski, suspend him from office without compensation for a period of three months, ¹ and require that he satisfactorily correct deficiencies.

This disciplinary proceeding is brought pursuant to Chapter 27-23, North Dakota Century Code. ² See also Rule 25, Rules of Judicial Qualifications Commission ³ (hereinafter referred to as NDRJQC), and Section 12 of Article VI of the North Dakota Constitution. ⁴

In Matter of Cieminski, 270 N.W.2d 321, 332 (N.D.1978), this court publicly censured Judge Cieminski for conduct prejudicial to the administration of justice, ordered Judge Cieminski to read and study the Canons of Judicial Conduct and the North Dakota Rules of Criminal Procedure, and ordered the judge to pay for the costs incurred by the Commission in investigating and hearing the matter.

The record further discloses that on June 21, 1977, the Commission admonished Cieminski for failing to promptly dispose of business before the small claims court and that, on April 11, 1978, the Commission privately censured Cieminski for violating The Judicial Qualifications Commission (the Commission) instituted formal proceedings against Judge Cieminski after conducting a preliminary investigation of complaints concerning Cieminski's conduct not involved in the 1978 proceeding, made by various individuals and by the state auditor's office. (Rules 6 and 8, NDRJQC). The Commission served the judge with notice, specifying the charges against him, on September 15, 1981. Additional charges and amendments to the original charges were served on December 1, 1981, February 23, 1982, and March 24, 1982. The Commission also served a Request for Admissions on February 17, 1982. Cieminski did not answer any of the complaints or respond in any way to the Request for Admissions. Under Rule 36(a), NDRCivP, matters in a request may be considered admitted when there is no timely response. See, e.g., Latendresse v. Latendresse, 294 N.W.2d 742 (N.D.1980).

"Canon 3A. (4) of the Code of Judicial Conduct."

Upon request of the Commission, this court appointed the Honorable James H. O'Keefe as Master to hear and take evidence in the proceeding involving Judge Cieminski. See Rule 10, NDRJQC. Judge O'Keefe held a hearing and received testimony of witnesses. Cieminski appeared in his own behalf, called witnesses and introduced exhibits, but personally declined to testify. Judge O'Keefe prepared findings of fact and conclusions of law, and included a recommendation ⁵ to the Commission that, among other things, Judge Cieminski be suspended without pay for three months. A Master may, but is not required, to include a recommendation in his report to the Commission. A copy was promptly mailed to Cieminski. See Rule 16, NDRJQC. Cieminski made no objection, pursuant to Rule 17, NDRJQC.

The Commission, pursuant to Rule 18, NDRJQC, notified Cieminski that a hearing would be held to determine whether or not the findings and conclusions of the Master should be modified. Cieminski did not appear at that hearing. The Commission heard no additional evidence under Rule 19, NDRJQC, but unanimously adopted a modified version of Judge O'Keefe's findings ⁶ and made a recommendation ⁷ to this court, pursuant to Rule 21, NDRJQC, that Cieminski be removed from office. A copy was mailed to Cieminski as required by Rule 23, NDRJQC. Cieminski did not petition this court to modify or reject the recommendations of the Commission as he could have done under Rule 24, NDRJQC.

When the Commission then asked that this court consider the recommendation upon the record filed, we asked that Cieminski and the Commission file briefs. Cieminski then obtained counsel and filed a Motion to Remand to permit the introduction of additional evidence.

ON MOTION TO REMAND

Before we discuss the merits of this disciplinary proceeding, we will consider the motion by Cieminski that we should remand for additional evidence "because the record is incomplete and unbalanced." This court reviews the evidence "de novo on the record." Matter of Cieminski, supra, 270 N.W.2d at 326. Evidence which was not We have compared the evidence presented at the hearing before Judge O'Keefe with the statements made by Cieminski in his affidavit and by counsel at oral argument. We conclude that, in all significant respects, the statements made in the affidavit and at the oral argument contain only information duplicating that which was presented by the evidence offered at the hearing. In the final analysis it appears that Cieminski believes that his conduct was justified under the circumstances--not that the findings of fact fail to correctly describe his conduct. We are aware, as is Cieminski, that he attended only the evidentiary hearing before Judge O'Keefe and declined to attend and participate in the Commission's hearing. Objections to the Master's report could and should have been raised at or before that hearing. Rule 17, NDRJQC.

                admitted cannot be considered unless the case is remanded for additional evidence.   Matter of Cieminski, supra, at 327
                

Cieminski must assume the responsibility for his actions. See Matter of Maragos, 285 N.W.2d 541, 546 (N.D.1979). He did not answer the complaint. He failed to respond to a Request for Admissions. He had ample opportunity to present evidence at the hearing before Judge O'Keefe. He called three witnesses, introduced five exhibits, and cross-examined the witnesses who were called by the Commission at the hearing. He did not utilize his privilege to question the findings. Under these circumstances, justice and fair play do not suggest that a remand is necessary. We deny the motion to remand.

ON THE MERITS

Rule 3 A(5), Rules of Judicial Conduct

The Commission concluded that Cieminski had violated Rule 3 A(5) of the Rules of Judicial Conduct, which provides:

"A judge shall dispose promptly of the business of the court."

The Commission's conclusion is supported by findings of fact that:

(1) In the case of Moore v. Sjostrom, tried before Cieminski in his capacity as the "small claims court" under Chapter 27-08.1, NDCC, on April 4, 1978, entry of judgment was delayed until December 18, 1978;

(2) In the case of Anderson v. Stenson, tried before Cieminski as county judge in 1974, entry of judgment was delayed until December 1980;

(3) In the case of Jung v. Webster, tried before Cieminski as the "small claims court" on April 28, 1981, to date no judgment has been entered;

(4) In two "small claims court" cases, John's I-94 v. Orness and K & K Storage v. Orness, tried February 4, 1981, to date no judgment has been entered.

(5) In 204 "small claims court" cases (listed in Exhibit 8), no judgments have been entered;

(6) In 102 "small claims court" cases (listed in Exhibit 9), judgments were not entered for 90 days or more;

(7) In six county court cases (McGough v. Schroeder, filed June 4, 1975; Anderson v. Sailer, filed September 2, 1975; Red River Collection v. Morehouse, filed January 25, 1977; United Accounts v. Risser, filed May 2, 1977; Oberg v. Sheyenne Tire, filed March 8, 1978; and Sather v. Blue Cross, filed November 27, 1978), no action has been taken.

Rule 3 B(1), Rules of Judicial Conduct

The Commission concluded that Cieminski had willfully ⁸ violated Rule 3 B(1) of the Rules of Judicial Conduct, which provides:

"A judge shall diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials."

This Commission conclusion is supported by findings of fact that:

(1) Cieminski's practices do not meet minimally acceptable accounting procedures in that, among other things, he has failed to make procedural changes requested by the state auditor; maintains his own trust fund, including maintaining a $10,000 public fund certificate of deposit in the court's name in violation of Sec. 29-27-02.1, NDCC, rather than using the county treasurer; issues "partial receipts" that are not prenumbered; does not maintain complete ledger books or adequate records permitting auditing;

(2) Cieminski, in his capacity as clerk of the district court, does not maintain a separate volume index for civil cases labeled "General Index--Plaintiffs" and "General Index--Defendants," or a judgment docket, as required by Sec. 11-17-01(8) and (9), NDCC;

(3) Cieminski, as a judge of the county court with increased jurisdiction, fails to maintain a register of criminal actions as required by Sec. 27-08-24(12), NDCC; and

(4) Cieminski has permitted an accumulation of approximately $63,000 in uncollected costs, restitutions and fines.

Rule 2 A, Rules of Judicial Conduct

The Commission concluded that Cieminski had willfully violated Rule 2 A, Rules of Judicial Conduct, which provides:

"A judge shall respect and comply with the law and shall act in such a manner that promotes public confidence in the integrity and impartiality of the judiciary."

This Commission conclusion is supported by findings of fact that:

(1) Cieminski has failed to report all convictions of reckless driving or of...