Marquardt, Matter of

• Decision Date: 25 July 1989
• Docket Number: No. JQ-88-0002,JQ-88-0002
• Citation: 161 Ariz. 206,778 P.2d 241
• Parties: In the Matter of Philip W. MARQUARDT, Judge of the Superior Court, Maricopa County, Respondent.
• Court: Arizona Supreme Court

Page 241

778 P.2d 241

161 Ariz. 206

In the Matter of Philip W. MARQUARDT, Judge of the Superior Court, Maricopa County, Respondent.

No. JQ-88-0002.

Supreme Court of Arizona, In Banc.

July 25, 1989.

Lewis and Roca by John P. Frank and Janet A. Napolitano, Phoenix, for respondent.

Rubin, Croxen & Myers by Edith A. Croxen, Former Director of Commission on Judicial Qualifications, Tucson, and Hon. Noel A. Fidel, Chairman of Commission on Judicial Conduct, Phoenix, and E. Keith Stott, Jr., Director of Commission on Judicial Conduct, Tempe.

FELDMAN, Vice Chief Justice.

In this judicial misconduct case, we review the report of the Commission on Judicial Qualifications (Commission). See generally Rule 15, Rules of Procedure for the Commission on Judicial Qualifications, 17B A.R.S. (1988). We have jurisdiction under Ariz. Const. art. 6.1, §§ 2, 3, and 4.

By constitutional amendment adopted at the 1988 general election, the Commission is now known as the Commission on Judicial Conduct. Id., § 1. At all times during the Commission's existence, its general purpose was to investigate, hold hearings, make findings, and recommend to this court the disposition of judicial disciplinary cases. See In re Haddad, 128 Ariz. 490, 491-92, 627 P.2d 221, 222-23 (1981). In these proceedings, we make an independent review of the record and are the final judges of fact and law. In re Ackel, 155 Ariz. 34, 42, 745 P.2d 92, 100 (1987); In re Biggins, 153 Ariz. 439, 440, 737 P.2d 1077, 1078 (1987); Haddad, 128 Ariz. at 491, 627 P.2d at 222.

FACTS

The relevant facts are briefly stated. Respondent, Philip W. Marquardt, has served with distinction as a judge of the Arizona Superior Court, Maricopa County, for approximately eighteen years. The voters retained Judge Marquardt at each retention election he has faced, the latest being November 1988. ¹ Respondent has no previous disciplinary record as either a lawyer or member of the bench. He served as a colonel in the United States Air Force Reserve for some years.

In the summer of 1988, while returning from a vacation in Mexico, respondent was searched at the port of entry in Houston, Texas, and found in possession of less than nine-tenths of a gram of marijuana. The crime is a misdemeanor under Texas law. See Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.051(b)(1) (Vernon 1989). Consequently, respondent was charged with misdemeanor possession. At his bench trial, he testified that a stranger gave him the marijuana. It was, he said, wrapped in a small piece of plastic that he stuck in his watch pocket. Forgetting about it, respondent came across the border and was apprehended. He describes the incident as a "mistake" because he "should have known it was there." The judge in Harris County, Texas, evidently disagreed because he found respondent guilty of the offense charged. The conviction is now final.

Respondent informed the Commission of the accusation and conviction of misdemeanor possession of marijuana. The Commission commenced proceedings, charging respondent with conduct subject to discipline under article 6.1 of the Arizona Constitution. After a hearing, a preliminary review by this court, and a remand for further proceedings before the Commission,

[161 Ariz. 208] the matter is before us again for review and determination. ²

CONSTITUTIONAL PROVISIONS

Three sections of article 6.1 are relevant to the issues in this case. The first provides for disqualification "from acting as a judge ... while there is pending an indictment or an information charging [the judge] in the United States with a crime punishable as a felony under Arizona or federal law...." Ariz. Const. art. 6.1, § 2. After the Texas authorities charged respondent, the presiding judge of the Maricopa County Superior Court removed him from his judicial duties, reassigning him to administrative work. Respondent has been effectively "disqualified" ever since.

The constitution further provides that this court "may suspend a judge from office without salary when, in the United States, he ... is found guilty of a crime punishable as a felony under Arizona or federal law or of any other crime that involves moral turpitude under such law." Id., § 3 (emphasis added). The section directs that "if " a judge is so suspended, this court "shall remove him from office" when his conviction becomes final. Id. (emphasis added). Respondent argues that because the constitution uses the terms "may" and "if," suspension after conviction is discretionary with the court. He contends further that because the crime in question could have been punished in Arizona as either a felony or a misdemeanor, it is not one "punishable as a felony under Arizona ... law" within the meaning of section 3 so that suspension is not permitted in any event.

The third relevant constitutional provisions is art. 6.1, § 4. A constitutional amendment adopted at the 1988 general election substantially changed the article's original version. The amendment became effective after respondent was tried and convicted in the Texas court, but before the conviction became final. The provision as amended reads as follows, with the words added by the amendment emphasized:

[T]he Supreme Court may ... censure, suspend without pay or remove a judge for action by him that constitutes ... conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

ISSUES

The constitutional provisions, applied to the facts just discussed, present us with three ultimate questions:

1. Was respondent convicted "of a crime punishable as a felony" under Arizona law?

2. If so, is he automatically removed from office when the conviction becomes final or is removal discretionary with this court?

3. If respondent was not automatically removed under the provisions of sections 2 and 3 after his conviction became final, what action can and should this court take?

DISCUSSION

A. Was the crime one "punishable as a felony" under Arizona law?

Unfortunately, this issue is not clear-cut. Arizona law criminalizes the knowing possession of marijuana. See A.R.S. § 13-3405(A)(1). Subsection (B)(1) classifies the offense as a class 6 felony. However, the sentencing statute, which is part of the same title of the code, provides in part:

Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony ... and if the court ... is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly....

A.R.S. § 13-702(H). The statute further provides that [w]hen a crime or public offense is punishable in the discretion of the court by a sentence as a class 6 felony or a class 1 misdemeanor, the offense shall be deemed a misdemeanor if the prosecuting attorney:

1. Files an information in superior court designating the offense as a misdemeanor;

2. Files a complaint in justice court or magistrate court designating the offense as a misdemeanor.

Id. Thus, the statutes permit the offense to be either charged as a felony and subsequently treated as a misdemeanor or, at the prosecutor's discretion, initially charged as a misdemeanor rather than a felony.

At the Commission hearing, the Maricopa County Attorney testified that under its written procedures his office would not have treated respondent's conduct as a felony. The county attorney also testified that a defendant such as respondent would usually be charged with a felony but referred to an adult diversion program rather than being prosecuted to final conviction. Respondent argues this testimony compels a finding that the crime was not "punishable as a felony." We disagree.

We do not believe the definition of what is "punishable as a felony" may vary with the policies and procedures adopted or discarded from time to time by the particular county attorney having jurisdiction over the offense and offender. In our view, the words "punishable as a felony" refer to the maximum punishment that might be imposed for the conduct involved and not to the usual routine of prosecutorial discretion on how or whether to charge at all. State v. Mileham, 1 Ariz.App. 67, 69, 399 P.2d 688, 690 (1965) ("punishable" is defined as "the statutory maximum which could be imposed for the offense which was charged ") (emphasis added); cf. 1962 Ariz.Sess.Laws (1961 1st Spec.Sess.) ch. 1, § 1 (amending A.R.S. § 36-1001(33) to define "punishable as a felony" to include imprisonment in the state prison "as either an alternative or the sole penalty") (repealed by 1979 Ariz.Sess.Laws ch. 103, § 14).

As the Commission argues, other courts have consistently held the maximum penalty that could be imposed for the conduct involved determines the class of crime. See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983); United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987) (the cited cases illustrate that where the predicate conviction is for a crime punishable by more than a year in prison, it is considered a felony conviction even though the specific defendant was not sentenced to prison but instead was given probation and his conviction later expunged or reduced under state procedures); see also United States v. Pruner, 606 F.2d 871 (9th Cir.1979). Thus, we agree with the Commission's view: the maximum punishment imposable under Arizona law for the conduct involved, and not speculation as to how the case otherwise might have been handled, determines whether the crime charged was one "punishable as a felony" ³ within the meaning of art. 6.1, § 3. ⁴

The fact respondent was actually tried and convicted on a Texas misdemeanor charge presents some difficulty. Nevertheless, we believe the better interpretation, and that demanded by the constitutional text, is simply that respondent falls within the ambit of sections 2 and 3 so long as respondent's Texas conviction was for a crime...