Judicial Qualifications Com'n v. Schirado, 10839

• Decision Date: 13 March 1985
• Docket Number: No. 10839,10839
• Citation: 364 N.W.2d 50
• Parties: In the Matter of Disciplinary Action against the Honorable Lester J. Schirado, County Judge, Morton, Grant, and Sioux Counties. JUDICIAL QUALIFICATIONS COMMISSION, Respondent, v. Lester J. SCHIRADO, Petitioner. Civ.
• Court: North Dakota Supreme Court

Page 50

364 N.W.2d 50

In the Matter of Disciplinary Action against the Honorable Lester J. Schirado, County Judge, Morton, Grant and Sioux Counties JUDICIAL QUALIFICATIONS COMMISSION, Respondent, v. Lester J. SCHIRADO, Petitioner.

Civ. No. 10839.

Supreme Court of North Dakota.

March 13, 1985.

Richard G. Carver, Vinje Law Firm, Bismarck, for petitioner.

Lester J. Schirado, pro se.

Vivian E. Berg, Staff Counsel, Judicial Qualifications Com'n, Bismarck, for respondent.

ERICKSTAD, Chief Justice.

This is a disciplinary proceeding against the Honorable Lester J. Schirado, Judge of the County Court of Morton, Grant, and Sioux Counties, pursuant to Section 12 of Article 6 of the North Dakota Constitution, Chapter 27-23, N.D.C.C., and the North Dakota Rules of Judicial Qualifications Commission (N.D.R.J.Q.C.). ¹

The Commission on Judicial Qualifications (Commission) instituted formal proceedings against Judge Schirado after conducting a preliminary investigation of two separate complaints against him. ² See Rule 6, N.D.R.J.Q.C. The Commission, through its staff counsel, served Judge Schirado with a Notice of Institution of Formal Proceedings specifying the charges against him and advising him of the right to file written answers to the charges within fifteen days. See Rule 8, N.D.R.J.Q.C. The charges in the notice alleged that Judge Schirado had violated Rules 2 A and 3 C(1)(a) and (b) of the North Dakota Rules of Judicial Conduct by hearing and deciding two Morton County small claims court cases (David Barth v. Lenny Gohl and Raymond Dockter v. Kenneth Thomas) after having represented David Barth and Lee Thomas in matters arising out of the same factual circumstances. Judge Schirado filed an answer generally denying the charges contained in the notice. See Rule 9, N.D.R.J.Q.C.

Upon request of the Commission, this Court appointed the Honorable Everett Nels Olson as Master to conduct a hearing in the proceedings and to report to the Commission. See Rule 10, N.D.R.J.Q.C. After conducting a hearing, Judge Olson prepared findings of fact and conclusions of law in which he concluded that Judge Schirado had violated Rules 2 A and 3 C(1)(a) and (b) of the North Dakota Rules of Judicial Conduct. Judge Olson recommended to the Commission that Judge Schirado receive a strict and public censure and that costs of the proceeding before the Commission be assessed against him.

Judge Schirado filed a statement of objections to the Master's report. See Rule 17, N.D.R.J.Q.C. After hearing oral argument from counsel for the Commission and counsel for Judge Schirado, the Commission adopted the findings of fact and conclusions of law of the Master, incorporated his recommendation as the recommendation of the Commission, and certified that recommendation to this Court. See Rule 23, N.D.R.J.Q.C. Judge Schirado then petitioned for review by this Court. See Rules 24 and 25, N.D.R.J.Q.C. (See fn. 1, supra.)

Pursuant to Section 27-23-03(3), N.D.C.C., the Supreme Court, on recommendation of the Commission, may censure or remove a judge for action that constitutes a willful ³ violation of provisions of the Code of Judicial Conduct. Before the Supreme Court may censure or remove a judge in a disciplinary proceeding, the charges must be established by clear and convincing evidence. Matter of Cieminski, 270 N.W.2d 321, 326 (N.D.1978); see Judicial Qualifications Commission v. Cieminski, 326 N.W.2d 883, 888 (N.D.1982).

This Court's review of findings and recommendations of the Commission is de novo on the record. Judicial Qualifications Commission v. Cieminski, supra, 326 N.W.2d at 885; Matter of Cieminski, supra, 270 N.W.2d at 326. Although our review is de novo on the record, we nevertheless must give due weight to the Master's findings because the Master had the opportunity to observe the demeanor of the witnesses. Matter of Cieminski, supra, 270 N.W.2d at 326.

With the foregoing principles in mind, we will examine the findings, conclusions, and recommendations made by the Master and adopted by the Commission, to determine whether the evidence clearly and convincingly establishes that Judge Schirado willfully violated Rules 2 A and 3 C(1)(a) and (b) of the North Dakota Rules of Judicial Conduct.

Rule 2 A provides as follows:

"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."

Rule 3 C(1)(a) and (b) provides as follows:

"C. Disqualification.

"(1) A judge's disqualification is appropriate when the judge's impartiality might reasonably be questioned, including but not limited to instances where:

"(a) a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

"(b) a judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; ..."

In Barth v. Gohl, the Commission adopted the following findings of fact made by the Master:

"I.

"That on January 3, 1983, the Honorable Lester J. Schirado assumed his duties as County Judge for Morton, Grant, and Sioux Counties.

"II.

"That on October 11, 1982, an automobile accident occurred in the city of Mandan between two vehicles operated by David Barth and Leonard Gohl, resulting in damage to both vehicles.

"III.

"That on or before November 19, 1982, Lester J. Schirado, while still in the private practice of law, undertook to represent David Barth in connection with the October 11, 1982, accident. That specifically, on November 19, 1982, a letter was sent to Gohl by the Schirado Law Office threatening litigation if Barth's claim in the sum of $295.35 for damages sustained in connection with the accident was not paid within five days.

"IV.

"That the Barth claim was not paid and action was commenced through Morton County Small Claims Court on December 16, 1982, wherein Dave Barth appeared as Plaintiff and Lenny Gohl appeared as Defendant. The matter was scheduled for trial on January 12, 1983, at 10:30 a.m.

"V.

"That at the time of the trial on January 12, 1983, at 10:30 a.m., the Honorable Lester J. Schirado undertook to preside over the above case and refused to disqualify himself. That during the course of the trial, Judge Schirado was reminded on three different occasions by Leonard Gohl that, as an attorney, Schirado had represented Barth on the same matter.

"VI.

"That as trial judge the Honorable Lester J. Schirado, after refusing to disqualify himself, entered judgment against Gohl and in favor of Barth in the total sum of $300.35.

"VII.

"That after entry of judgment on January 12, 1983, Judge Schirado advised Barth on steps to be taken in collecting his judgment against Gohl.

"VIII.

"That after the trial of January 12, 1983, Leonard Gohl sought legal counsel and subsequently reported Judge Schirado's refusal to disqualify himself to the Judicial Qualifications Commission by a letter dated January 19, 1983. Leonard Gohl was notified for the first time by a letter dated January 19, 1983, from the office of Judge Schirado that Judge Schirado had disqualified himself and that the matter would be assigned to another judge. That on January 19, 1983, Judge Schirado wrote Presiding Judge Graff requesting that the matter be reassigned because Judge Schirado 'knew one of the parties'.

"IX.

"That after reassignment of the matter of Morton County Small Claims No. 4600, judgment was entered in favor of Barth by Judge Schulz. Judge Schirado continued his involvement in the matter by directing his staff to reject Leonard Gohl's attempts to make partial payments on the Judgment."

Judge Schirado asserts that he learned of the letter he had written on behalf of Barth only when Gohl presented a copy of it to him after he had rendered a decision in the case. Judge Schirado contends that he immediately vacated the judgment and notified Barth and Gohl that he had disqualified himself. Judge Schirado further contends that the one-week delay in tendering the disqualification papers to presiding District Judge Benny Graff was because of an unfamiliarity with the paperwork for the disqualification procedure and because of the extraordinary backlog of cases left by his predecessor.

Gohl testified as follows concerning when Judge Schirado disqualified himself:

"And after we sat there a while, I asked him--I said, 'Are you the same Mr. Schirado who is representing this man?' And he didn't answer me. And I asked him three times, and then he told me--he said, 'It doesn't make any difference. This is the law.' And I was very upset about that."

Barth testified as follows:

"Well, we--Mr. Gohl and I had both stated our facts on what had happened in the accident and how the judgment should be paid and the damages and things like that. And Mr. Schirado had a book of codes or whatever he had in front of him, and he had read the law to both Lenny Gohl and I, stating how the accident had happened and why the damages should go to me and why they should be paid, and things like this. And at that time, why, Lenny Gohl had stood up in the courtroom and asked Lester Schirado, the Judge--he asked if he was Judge Lester Schirado, and he said, 'Yes, I am.' And at that time he said, 'I can't understand why--how a man can be one man's attorney and yet be his judge to hear the same case.' He said, 'I haven't got a chance.' And at that time Judge Lester Schirado said, 'Yes, I am Lester Schirado.' And he said, 'That doesn't make any difference who would hear the case. The law is the law.' "

Both Barth and Gohl testified that, when they left the January 12 trial, the decision was in Barth's favor. Barth also testified that, after Gohl left the courtroom on January 12, he talked with Judge Schirado about getting payment for the judgment.

Judge ...