Kneifl, In re

• Decision Date: 01 June 1984
• Docket Number: No. JQ83-001,JQ83-001
• Citation: 217 Neb. 472,351 N.W.2d 693
• Parties: In re Complaint Against Francis J. KNEIFL, District Judge in and for the Eighth Judicial District of the State of Nebraska. STATE of Nebraska ex rel. COMMISSION ON JUDICIAL QUALIFICATIONS, Relator, v. Francis J. KNEIFL, Respondent.
• Court: Nebraska Supreme Court

Page 693

351 N.W.2d 693

217 Neb. 472

In re Complaint Against Francis J. KNEIFL, District Judge in and for the Eighth Judicial District of the State of Nebraska STATE of Nebraska ex rel. COMMISSION ON JUDICIAL QUALIFICATIONS, Relator, v. Francis J. KNEIFL, Respondent.

No. JQ83-001.

Supreme Court of Nebraska.

June 1, 1984.

Syllabus by the Court

1. Judges: Disciplinary Proceedings. Conduct which falls short of reaffirming one's fitness for the high responsibilities of judicial office constitutes conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

2. Judges: Disciplinary Proceedings. Conduct prejudicial to the administration of justice that brings the judicial office into disrepute is less grave than willful misconduct in office.

3. Judges: Disciplinary Proceedings: Appeal and Error. The Nebraska Supreme Court's review in matters of judicial discipline is de novo; when no new evidence is received, our review is de novo on the record.

4. Judges: Disciplinary Proceedings: Appeal and Error. This court must determine upon its own independent inquiry whether the evidence clearly and convincingly proves the alleged misconduct.

5. Judges: Disciplinary Proceedings: Appeal and Error. Although the recommendations of the Commission on Judicial Qualifications are entitled to be given weight, this court has the obligation to make its own determination of what discipline is appropriate.

6. Judges: Disciplinary Proceedings. A judge's general performance as a jurist may be a relevant factor to consider in determining the appropriate discipline.

7. Judges: Disciplinary Proceedings. A judge may be disciplined for misconduct arising outside the performance of his judicial duties.

8. Judges: Disciplinary Proceedings. The purpose of sanctions in cases of judicial discipline is to preserve the integrity and independence of the judiciary and to restore and reaffirm public confidence in the administration of justice.

9. Judges: Disciplinary Proceedings. The discipline imposed must be designed to announce publicly this court's recognition that there has been misconduct; it must be sufficient to deter respondent from again engaging in such conduct; and it must discourage others from engaging in similar conduct in the future.

10. Judges: Disciplinary Proceedings. A judge is disciplined not for purposes of vengeance or retribution, but to instruct the public and all judges of the importance of the function performed by judges in a free society, to reassure the public that judicial misconduct is neither permitted nor condoned, and to reassure the citizens of Nebraska that the judiciary of their state is dedicated to the principle that ours is a government of laws and not of men.

Paul L. Douglas, Atty. Gen., and Mel Kammerlohr, Lincoln, for relator.

Daniel D. Jewell, Norfolk, for respondent.

BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

This matter comes before this court pursuant to the provisions of Neb.Rev.Stat. §§ 24-715 et seq. (Cum.Supp.1982) upon the December 13, 1983, complaint of the Nebraska Commission on Judicial Qualifications against respondent, Francis J. Kneifl, a district court judge in and for the Eighth Judicial District of the State of Nebraska, which complaint charged respondent with four counts of misconduct.

A formal hearing on the complaint was had on February 14, 1984, before the master, the Honorable Dale E. Fahrnbruch, a district court judge in and for the Third Judicial District of the State of Nebraska, a court of record. Both the commission and respondent accepted the findings of fact made and conclusions of law reached by the master. On April 2, 1984, the commission determined that two of its charges of misconduct against respondent had been proved but that two had not, and, accordingly, dismissed the latter. On April 20, 1984, respondent accepted the report of the commission, except as noted hereinafter. Oral arguments before this court were held on May 11, 1984.

Neb. Const. art. V, § 30(1), and § 24-721 provide that if the commission finds the charges are established by clear and convincing evidence, it shall recommend appropriate disciplinary sanctions to this court. We, therefore, may only concern ourselves with the two counts which the commission found were proved.

The first of these counts (hereinafter designated as Count I) is that on March 29, 1983, respondent conducted himself in a manner prejudicial to the administration of justice, thereby bringing the judicial office into disrepute, contrary to the provisions of § 24-722(6), by threatening reprisals against and cursing certain police officers who were engaged in the lawful performance of their duties.

The second count with which we are concerned (hereinafter designated as Count II) is that on August 1 and 31, 1981, respondent conducted himself in a manner prejudicial to the administration of justice, thereby bringing the judicial office into disrepute by attempting to use the power of his office to influence a county attorney to either reduce or drop criminal charges against an acquaintance of respondent.

The relevant part of § 24-722, the statute on which the foregoing charges are founded, reads:

A ... judge of any court of this state may be reprimanded, disciplined, censured, suspended without pay for a definite period of time not to exceed six months, or removed from office for ... (6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute ....

Conduct which falls short of reaffirming one's fitness for the high responsibilities of judicial office constitutes conduct prejudicial to the administration of justice that brings the judicial office into disrepute. See Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 515 P.2d 1, 110 Cal.Rptr. 201 (1973), cert. denied 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974). It includes conduct which would justify a reasonable man in believing that a result achieved by a judge was achieved because of his position and prestige, see In re Foster, 271 Md. 449, 318 A.2d 523 (1974), and conduct which would appear to an objective observer to be not only unjudicial but prejudicial to public esteem for the judicial office, In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976). It depends not so much on the judge's motives but more on the conduct itself, the results thereof, and the impact such conduct might reasonably have upon knowledgeable observers. In re Stuhl, 292 N.C. 379, 233 S.E.2d 562 (1977). The "judicial office" refers not to the judge as an individual but, rather, to the judiciary. Matter of Dalessandro, 483 Pa. 431, 397 A.2d 743 (1979). Conduct prejudicial to the administration of justice that brings the judicial office into disrepute is less grave than willful misconduct in office. McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 526 P.2d 268, 116 Cal.Rptr. 260 (1974); Geiler v. Commission on Judicial Qualifications, supra.

The commission's findings with respect to Count I are that on March 28, 1983, in the course of being booked for driving while under the influence of intoxicants in Iowa, respondent cursed a police officer while she was in the performance of her duties, and threatened other officers, also while in the course of their duties, with reprisals by saying that they "better never be" in his court and that if they ever came before him in his court, they would "be sorry."

With respect to Count II the salient facts are that in August of 1981 respondent advised a county attorney's partner that one with whom respondent was acquainted had been charged with driving while under the influence of intoxicants and refusal to submit to testing. Respondent asked the partner and county attorney to help or see what could be done for the acquaintance. There is no evidence that respondent directly asked the county attorney or his partner to reduce or dismiss the charges against the acquaintance, nor any evidence that respondent gained any financial or personal gain from the request he made. The commission found that respondent attempted to influence the county attorney to reduce the charges.

Our first task is to determine the nature and scope of our review. Neb. Const. art. V, § 30(2), reads:

The Supreme Court shall review the record of the proceedings and in its discretion may permit the introduction of additional evidence. The Supreme Court shall make such determination as it finds just and proper, and may order the reprimand, discipline, censure, suspension, removal, or retirement of such Justice or Judge of the Supreme Court or other judge, or may wholly reject the recommendation[.] [U]pon an order for retirement, the Justice or Judge of the Supreme Court or other judge shall thereby be retired with the same rights and privileges as if he or she had retired pursuant to statute. Upon an order for removal, the Justice or Judge of the Supreme Court or other judge shall be removed from office, his or her salary shall cease from the date of such order, and he or she shall be ineligible for judicial office. Upon an order for suspension, the Justice or Judge of the Supreme Court or other judge shall draw no salary and shall perform no judicial functions during the period of suspension. Suspension shall not create a vacancy in the office of Justice or Judge of the Supreme Court or other judge.

Section 24-723 reiterates the same powers, although in slightly altered language. We note that respondent raises no issue with respect to the fact that although the charges involved allege a violation of § 24-722(6), the finding of the commission is that he violated Neb. Const. art. V, § 30(f) (sic), the relevant language of the two being identical.

From the power to permit the introduction of additional evidence, we conclude that our review is to be de novo. When no new evidence is received, our review must be de novo on the record. See ...