Peck, Matter of
| Decision Date | 03 February 1994 |
| Docket Number | No. JC-93-0001,JC-93-0001 |
| Citation | 867 P.2d 853,177 Ariz. 283 |
| Parties | In re the Matter of Vinton M. PECK, Justice of the Peace, Apache Junction, Pinal County, State of Arizona. |
| Court | Arizona Supreme Court |
This is a judicial disciplinary proceeding in which we consider the recommendations of the Commission on Judicial Conduct (Commission). We have jurisdiction under Ariz. Const. art. 6.1, §§ 2, 3, and 4 and Rule 11, Rules of Procedure for the Commission on Judicial Conduct.
The Commission is a constitutional public body that investigates and, after hearings, makes findings and recommends disposition of judicial disciplinary cases. 1 See Ariz. Const. art. 6.1; in rE haddad, 128 ariz. 490, 491-92, 627 P.2d 221, 222-23 (1981). this court then independently reviews the record and acts as the final judge of law and fact. In re Ackel, 155 Ariz. 34, 42, 745 P.2d 92, 100 (1987); Haddad, 128 Ariz. at 491, 627 P.2d at 222.
Vinton M. Peck (Respondent) had been in the contracting business for some thirty years before being elected Apache Junction's justice of the peace in November 1990. Respondent is not an attorney and has little or no legal training. Subsequent to his election, but before taking office, he attended the required orientation and training programs this court requires of newly elected limited jurisdiction judges. See Ariz.Sup.Ct.Admin.Order 90-28; Ariz.R.Sup.Ct. 81.
In the current proceedings, following a hearing at which Respondent represented himself, the Commission found that Respondent violated numerous ethical rules and recommended a public censure and a thirty-day unpaid suspension. The Commission also recommended that Respondent spend two weeks observing other courts as part of a continuing education program and attend the new judges' orientation program again, at his own expense.
Respondent petitioned for review of the Commission's findings and recommendations, again appearing pro se. He does not dispute the findings of fact but objects to the Commission's conclusions and recommended sanctions, arguing that they are too harsh in relation to his conduct.
Four incidents form the basis of Respondent's present judicial misconduct charges:
A. Count I--Louis Gorenc (Case No. 91-CJC-041)
Louis Gorenc opposed Respondent in the election for justice of the peace. While campaigning, two of Respondent's friends, as complaining witnesses, made allegations that resulted in criminal charges being filed against Gorenc. A pro tem justice of the peace dismissed these charges after the primary election. About three weeks after the general election, Respondent, by then sworn and acting as justice of the peace, reinstated the charges. He concluded there was "reasonable cause" (see Ariz.R.Crim.P. 3.1(a)), decided the matter should be pursued, and signed and issued a summons requiring Gorenc to appear in his court. Respondent, who had not recused himself, apparently intended to preside over the proceedings against his former opponent. However, Gorenc filed a motion for change of judge claiming bias and prejudice. Ariz.R.Crim.P. 10.1. Respondent granted the motion.
Respondent agrees in hindsight that he improperly issued the summons. However, he blames this on lack of judicial experience and unfamiliarity with the rules of judicial conduct. He also states that he was very busy the day he signed the summons and that his clerks told him the "best way for [him] to get out of that, is just wait for [Gorenc's] move." Reporter's Transcript, Mar. 17, 1993 (R.T.), at 27.
B. Count II--Clinton Doan (Case No. 92-CJC-017)
On January 5, 1992, Respondent was assigned to preside over State v. Doan. Doan had been charged with burglary and attempted theft. At the time, another judge had already concluded Doan's bond hearing and set his bail. Shortly after the hearing, Respondent met privately with members of Doan's family and his employer. Respondent does not explain how the meeting came about, although its purpose was supposedly to discuss reducing the bond amount. During the meeting, someone suggested to Respondent that Doan had been mistakenly identified as the perpetrator. Respondent then telephoned the investigating police officer, telling him that members of Doan's family had given him strong reason to believe this was a case of mistaken identity. Because of these two ex parte conversations, the Pinal County Attorney's Office requested a change of judge, which Respondent granted.
Respondent claims he was concerned because unprocessed paperwork prevented Respondent from appointing counsel. Because of this alleged concern for Doan's rights, Respondent discussed reducing the bond with Doan's family and employer. Respondent agrees that his conduct was improper but again blames his ignorance. He also complains that "too much of this practice is standard to our local jurisdiction," R.T. at 33, suggesting it is common practice for justices of the peace to converse ex parte with police and parties about pending matters. Although we hope the claim is unfounded, other cases suggest, unfortunately, that this may occur all too often. See, e.g., In re Gumaer, 177 Ariz. 280, 282, 867 P.2d 850, 852 (1994).
C. Count III--Mary McConnell (Case No. 92-CJC-018)
Mary McConnell and her husband lived in Apache Junction and published a weekly area newspaper. Respondent advertised in this newspaper during his campaign. The McConnells also leased office space in a building owned by Respondent and his wife, but after three months the McConnells had paid no rent and vacated the office. In January 1992, Respondent issued a summons on an unrelated criminal complaint against Mary McConnell. At that time, he claimed the McConnells owed him about $300 in unpaid rent, plus damages for breaching the lease. At some later date, Respondent realized his involvement in this case was improper and in February 1992, sua sponte recused himself from the case.
D. Count IV--Robert James (Case No. 92-CJC-054)
In October 1990, before the election, Robert James filed a criminal complaint against Respondent, accusing him of fraudulently registering to vote in violation of A.R.S. §§ 16-182(A) and 16-184(A). The Department of Public Safety investigated but filed no charges against Respondent.
On April 2, 1992, Respondent presided over the case of Wentz v. James, a landlord-tenant dispute. Although the defendant in Wentz was the same person who had filed the complaint against him, Respondent never disqualified himself from hearing the case and eventually entered judgment against James.
The facts summarized above are contained in the Commission's findings, are supported by the record, and are not in dispute. We accept the Commission's findings.
The Commission found that Respondent's conduct in these four incidents violated Canons 1, 2(A), 2(B), 3(A)(4), 3(C)(1)(a), and 3(C)(1)(c) of the Code of Judicial Conduct (the Code) contained in Ariz.R.Sup.Ct. 81. 2 Conclusions of Law at 6. The Commission also found that his conduct was "prejudicial to the administration of justice that brought his office into disrepute within the meaning of Article 6.1, Section 4 of the constitution of the State of Arizona." Id.
The facts plainly show that Respondent violated the Code in the Doan matter. Respondent twice engaged in significant ex parte communications, first with the litigant's family and friends and then by arguing on their behalf with a law enforcement official. As the Commission concluded, this clearly violates Canon 3(A)(4), which provides that "[a] judge should ... neither initiate nor consider ex parte applications concerning a pending or impending proceeding."
In the counts involving Gorenc and James, the Commission concluded that Respondent failed to disqualify himself in cases in which his "impartiality might reasonably be questioned" because of his "personal bias or prejudice concerning a party." Canon 3(C)(1). We believe these conclusions are correct. Impartiality may be reasonably questioned when a judge presides over prosecutions based on the complaint of the judge's friends or brought against the judge's former opponent in a bitterly contested election. The same may be said when the judge presides over a civil case in which one of the litigants previously brought criminal charges against the judge. Surely, legal training or not, Respondent must have known that he could easily be suspected of using his office to "get even."
In the McConnell matter, Respondent acted in a judicial capacity while, at the same time, he claimed that one of the litigants was personally indebted to him. This violated Canon 3(C)(1)(c), which states that a judge should disqualify himself if he "knows that he ... has a financial interest in the subject matter in controversy or in a party to the proceeding." Nor was it necessary for Respondent to engage in difficult interpretation of the Code. Surely, a judge's impartiality might reasonably be questioned when he sits in judgment on those who owe him money. Specific admonitions are applicable to these counts. See Canon 3(C)(1)(a) (); 3(C)(1)(c) ().
Under the facts, there is no doubt that the Commission's legal conclusions are correct. We accept and adopt them. We turn, therefore, to sanctions.
We do not lightly undertake the difficult task of disciplining lawyers and judges. Our goal is not to punish but, rather, to impose sanctions to protect the public and foster judicial integrity. Haddad, 128 Ariz. at 492, 627 P.2d at 223. Imposition of proper and proportionate sanctions serves dual purposes. It deters similar conduct by others and, as a result, fosters public confidence in our self-policing...
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