Lockwood, In re
| Decision Date | 13 December 1990 |
| Docket Number | No. JQ-89-0001,JQ-89-0001 |
| Citation | 167 Ariz. 9,804 P.2d 738 |
| Parties | In re Edward D. LOCKWOOD, Justice of the Peace, West Mesa Precinct, Maricopa County, State of Arizona, Respondent. |
| Court | Arizona Supreme Court |
The Commission on Judicial Conduct (Commission) recommends that Edward D. Lockwood (respondent), Justice of the Peace, West Mesa Precinct, be publicly censured for violations of certain Canons of the Code of Judicial Conduct. See rule 81, Rules of the Arizona Supreme Court. We have jurisdiction pursuant to Ariz. Const. art. 6.1, § 4.
The Commission instituted formal proceedings against respondent on April 26, 1988, alleging 6 counts of misconduct. Although respondent is a justice of the peace, he is not a lawyer.
Count 1 alleged that respondent violated Ariz. Const. art. 6, § 26 (oath of office) and Canons 1, 2, 3(A)(1), 3(B)(1), and 3(B)(2) of the Code of Judicial Conduct, rule 81, Rules of the Arizona Supreme Court, by instructing or improperly permitting court clerks to follow incorrect procedures in misdemeanor cases involving driving while under the influence (DUI). These procedures were discovered when Ann Hutchison, a Deputy Public Defender, moved to dismiss the complaint and information in a pending felony DUI case. Ms. Hutchison argued that the DUI defendant had no allegeable prior misdemeanor DUI convictions. One of the DUI defendant's prior convictions alleged by the state was a case assigned to respondent's court. Ms. Hutchison made an offer of proof that Cathy Zink Larkin, a clerk in the West Mesa Justice Court, would testify she signed respondent's name to two forms in the case at respondent's direction--the guilty plea proceeding form and the judgment of guilt and sentence. Ms. Larkin would further testify that it was common practice for her, as respondent's clerk, to accept the guilty plea and that many people pleading guilty to DUI, including this particular defendant, did not see a judge at any stage of the proceeding.
Count 1 was further substantiated by Judge Michael Jones, then a judge pro tempore at the West Mesa Justice Court, who declined to issue arrest warrants in several DUI cases involving guilty pleas entered in respondent's court. Typically, warrants would be issued because defendants failed to comply with the terms of their sentences. However, in these cases, the documents relating to the plea had been signed in respondent's name by a court clerk, rather than by respondent. The two documents involved were again the guilty plea proceeding form and the judgment of guilt and sentence. Because of this defect, Judge Jones reasoned that the underlying judgments of guilt were invalid, and refused to issue the warrants.
Count 2 alleged that respondent attempted to mislead the Commission and interfered with its investigation of this matter, in violation of Ariz. Const. art. 6.1 and Canons 1, 2, 3(B)(1), and 3(B)(2). This charge arose from a letter from respondent to the Commission, in response to its inquiry, stating that he had taken steps to correct the improper procedures alleged in Count 1 and that the situation had been remedied. The complaint stated that respondent knew or should have known that the contents of that letter were untrue. Additionally, it charged that respondent misused his judicial authority by either requesting or permitting a court employee to give the Commission information that he knew or should have known was false.
On June 15, 1987, Judge Jones discovered 450 traffic citations in a waste basket at the West Mesa Justice Court, and brought the matter to the attention of the Maricopa County Attorney's Office and the Commission. The Commission alleged in Count 3 that 158 of these citations were required to be reported to the Motor Vehicle Department (MVD) for notation on the driving records of violators. An investigation revealed that only 5 of these citations actually were reported to MVD. The complaint alleged that respondent knew or should have known of the improper processing of traffic citations, and that his actions violated A.R.S. § 28-1061, Ariz. Const. art. 6.1, and Canons 1, 2, 3(A)(1), 3(A)(5), 3(B)(1), and 3(B)(2).
The allegations of Count 4 arose from procedures followed by the West Mesa Justice Court in its dealings with the Arizona Safety Bureau (ASB), a traffic safety school owned by Frederick Hartmann, a political acquaintance of respondent. See A.R.S. § 28-446. The Commission maintained that procurement of traffic safety school services by justice courts is subject to the Maricopa County Procurement Code, which requires open bidding and written contracts with all service providers. Neither of these requirements was observed by the West Mesa Justice Court in its dealings with ASB. The complaint alleged that the procedures followed by respondent violated A.R.S. § 28-692.01, Ariz. Const. art. 6.1, and Canons 1, 2, 3(A)(1) and 3(B)(1).
Count 5 related to the collection and accounting procedures the West Mesa Justice Court employed in receiving fees on behalf of ASB. The court collected these fees and remitted them to ASB from April through September 1985. The practice ceased when auditors examining court records suggested that the collection of such fees was not in the court's best interests and should be discontinued. Thereafter, persons attending traffic safety school paid the charge directly to the school. However, during the period that respondent's court collected the fines, it failed to account for these funds using the procedures set forth in the Uniform Accounting Manual for Arizona Justice Courts. The complaint alleged that the rules contained in the Manual applied to the traffic safety school funds, and that respondent knew or should have known of this requirement. His failure to follow the accounting procedures as to these monies is an alleged violation of A.R.S. §§ 11-414, 22-116, Ariz. Const. art. 6.1, and Canons 1, 2, 3(A)(1), and 3(B)(1).
On December 4, 1987, respondent telephoned Detective Joseph Otero, a Mesa police officer who was conducting a criminal investigation of respondent's son. Det. Otero returned respondent's call and tape recorded their conversation. At that time, respondent challenged Det. Otero's method of investigating the charge against his son and the amount of bail he requested. Count 6 alleged that respondent's conduct constituted improper interference with an ongoing investigation in violation of Ariz. Const. art. 6.1 and Canons 1 and 2.
The Commission conducted a hearing in this matter on July 28-29, 1988. It found that respondent was responsible for overseeing the administration of his court, and that Cathy Zink Larkin signed a guilty plea proceeding form using respondent's name and her own initials in a matter involving a DUI charge against a defendant.
The Commission found that respondent attempted to mislead the Commission and interfere with its investigation of this matter in his testimony at the hearing. There, the Commission pointed out, he claimed that the problem of clerks signing plea agreements was confined to Ms. Larkin and ceased upon termination of her employment. The Commission found that respondent knew or should have known that his testimony was untrue. It found that clerks routinely signed respondent's name to guilty plea proceeding forms, that respondent failed to institute corrective procedures, and that the problem neither was confined to Ms. Larkin nor ceased upon termination of her employment. The Commission also found that respondent misused his judicial authority by allowing Lori Leath to write a similar letter, although he knew or should have known that its contents were incorrect. The Commission found that respondent's conduct, as alleged in Counts 1 and 2, violated Canons 1, 2(A), 3(B)(1), and 3(B)(2).
The Commission further found that the charges contained in Count 6, relating to respondent's telephone conversation with Det. Otero, were proved by clear and convincing evidence. It found that respondent attempted to influence an ongoing investigation, in violation of Canons 1, 2(A), and 2(B).
The Commission found that Counts 3, 4, and 5 were not proved by clear and convincing evidence. It recommended that this court publicly censure respondent and assess costs and expenses of this proceeding in the amount of $6,702.54.
One member of the Commission dissented in part, arguing that the findings of misconduct based on Counts 1 and 2 relied on a theory varying from that charged in the complaint. The dissent interpreted the scope of the complaint, stating that it charged as follows: (1) it was the practice in respondent's court for clerks to take guilty pleas, rather than merely signing respondent's name to the supporting documents; (2) this practice was authorized by respondent; and (3) respondent and Ms. Leath lied when they reported that only Ms. Larkin had taken guilty pleas. Additionally, the dissent would have found that the allegations of Count 2 were not established by clear and convincing evidence because the letter from the Commission to which respondent and Ms. Leath replied is not part of the record in this proceeding.
Another Commissioner also filed a dissenting report concluding that the allegations of Count 3, relating to the improper disposal of traffic citations, were proved by clear and convincing evidence, and that A.R.S. § 28-1061 mandated removal from office.
In proceedings relating to judicial discipline, this court independently reviews the record and is the final trier of fact and law. In re Marquardt, 161 Ariz. 206, 778 P.2d 241 (1989); In re Haddad, 128 Ariz. 490, 491, 627 P.2d 221, 222 (1981). We have undertaken such a review, and find the following facts were proved by clear and...
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