Nicholson v. Judicial Retirement and Removal Commission

• Decision Date: 31 January 1978
• Citation: 562 S.W.2d 306
• Parties: S. Rush NICHOLSON, Appellant, v. JUDICIAL RETIREMENT AND REMOVAL COMMISSION, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 306

562 S.W.2d 306

S. Rush NICHOLSON, Appellant, v. JUDICIAL RETIREMENT AND REMOVAL COMMISSION, Appellee.

Supreme Court of Kentucky.

Jan. 31, 1978.

Frank E. Haddad, Jr., Louisville, for appellant.

Paul W. Willis, Executive Secretary of the Judicial Retirement and Removal Com'n, Larry S. Roberts, Amos S. Eblen, Chairman, Judicial Retirement and Removal Com'n, Lexington, for appellee.

PER CURIAM.

This is an appeal from a final order of the Judicial Retirement and Removal Commission which found that Nicholson, a judge of the Jefferson Circuit Court, so ineptly handled a RCr 11.42 proceeding as to bring the judicial office into disrepute. The Commission issued a public censure. RAP 4.020(b), now SCR 4.020(b). He appeals and attacks the order on three fronts.

I.

Nicholson contends that the "ex post facto" prohibitions of the state and federal constitutions prohibit the Commission from acting in this case because the conduct in question occurred after the effective date of Section 121 of the Kentucky Constitution but before that section was implemented by the promulgation of RAP 4.000, et seq. by the Supreme Court. His position is that the constitutional authorization for discipline of judges "for good cause" is so vague as to be ineffective without implementation by the publication of rules establishing more particular conduct guidelines. He asserts that this vague standard provides no advance warning of that conduct which would fall within its perimeter. Hence he claims that this proceeding deprives him of due process of law.

It is clear that the "ex post facto" prohibition applies only to criminal matters. Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883); Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). A proceeding before the Commission is not a criminal matter. See Napolitano v. Ward, 457 F.2d 279 (7th Cir. 1972), cert. den. 409 U.S. 1037, 93 S.Ct. 512, 34 L.Ed.2d 486, reh. den. 410 U.S. 947, 93 S.Ct. 1351, 35 L.Ed.2d 616; In re Haggerty, 257 La. 1, 241 So.2d 469 (1970); Sharpe v. State, 448 P.2d 301 (Okl.Jud.1968), cert. den. 394 U.S. 904, 89 S.Ct. 1011, 22 L.Ed.2d 216.

The purpose of Section 121 of our constitution is the regulation of the conduct of those persons charged with the administration of justice. The aim of proceedings instituted pursuant to this section is to improve the quality of justice administered within the Commonwealth by examining specific complaints of judicial misconduct, determining their relation to a judge's fitness for office and correcting any deficiencies found by taking the least severe action necessary to remedy the situation. The target is not punishment of the judge. Consequently, the action of the Commission does not constitute a violation of the "ex post facto" prohibitions of the federal and state constitutions. See Flemming v. Nestor, 363 U.S. 603, 614, 80 S.Ct. 1367, 4 L.Ed.2d 1435, 1446 (1960); DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109, 1120 (1960). Cf. Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866); Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356 (1866).

Nicholson can not claim a lack of notice that his conduct would be subject to review by the Commission. The authority to remove members of the judiciary for good cause is not ambiguous to the members of the legal profession. Such phrases as "for cause" or "for good cause" are terms of art which possess a special meaning manifest to the profession when used in this context. These terms denote a legal cause which affects the ability and fitness of a judge to perform the duties of the office. Napolitano v. Ward, 317 F.Supp. 79 (D.C.Ill.1970); Sarisohn v. Appellate Div., Second Dept., Supreme Court, 265 F.Supp. 455 (D.C.N.Y.1967).

Such a standard is not so vague as to violate due process requirements. Although the specific acts of misconduct encompassed within the phrase are numerous, ample guidelines for the determination of proper conduct may be found in the ethical standards applicable to lawyers and judges adopted by national and state bar associations and in the moral standards expected of judicial officers by the public. Sarisohn v. Appellate Div., supra. Such a standard is no more vague than that of "good behavior" used with respect to federal judges contained in Section 1 of Article 3 of the United States Constitution. Friedman v. State, 24 N.Y.2d 528, 301 N.Y.S.2d 484, 249 N.E.2d 369 (1969).

II.

The Commission investigated the allegations of misconduct, instituted formal proceedings and issued a public censure after conducting an evidentiary hearing. Nicholson contends that the mere combination of the investigative and adjudicative functions within the Commission violates his due process right to an unbiased trier of fact. He argues that involvement in the investigation of this incident so influenced the members of the Commission that they could in no way remain impartial at the adjudicative stage of the proceedings.

A similar position has been taken by others in similar situations in the past and has been rejected. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); NLRB v. Donnelly Garment Co., 330 U.S. 219, 67 S.Ct. 756, 91 L.Ed. 854 (1947). This issue was recently raised in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). This case dealt with the combination of investigative and adjudicative functions within an examining board vested with the authority to discipline physicians pursuant to a Wisconsin statute. The court rejected the argument that Nicholson raises here, 421 U.S. at 47, 95 S.Ct. at 1464, 43 L.Ed.2d at 723, 724:

"The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented."

This case does not present a situation where common sense dictates that the investigative and adjudicative roles must be played by different persons in order to avoid inevitable bias. E. g., Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Nicholson has not overcome the presumption of honesty and integrity of the members of the Commission, most of whom are members of the bench or bar and cognizant of the proper standards applicable at each stage of the proceedings. "The case...