Piper, In re

• Decision Date: 17 April 1975
• Citation: 271 Or. 726,534 P.2d 159
• Parties: In re Complaint as to the conduct of Donald A. W. PIPER, Accused. . *
• Court: Oregon Supreme Court

Page 159

534 P.2d 159

271 Or. 726

In re Complaint as to the conduct of Donald A. W. PIPER, Accused.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted April 3, 1975.

Decided April 17, 1975.

Carl M. Brophy, Medford, argued the cause and filed the briefs for petitioner.

Donald H. Coulter, Grants Pass, argued the cause for the Oregon State Bar and Commission for Judicial Fitness.

PER CURIAM.

This is a proceeding to discipline a circuit judge for misconduct. It arises from two sources: (1) the findings and conclusions of the Commission on Judicial Fitness based upon a complaint isued by it, with the recommendation that the accused be suspended from office for three months, and (2) the findings and conclusions of a Trial Board of the Oregon State Bar based upon a complaint issued by it, with the recommendation that the accused be suspended from the practice of law for two months.

The two complaints alleged substantially the same acts of misconduct. A single hearing was held on both complaints before three attorneys, who were appointed both by the Commission on Judicial Fitness as masters to hear testimony on its behalf under its rules of procedure ¹ and by the Board of Governors of the Oregon State Bar as a Trial Board under ORS 9.560. ²

The facts are undisputed, except upon the issue of knowledge and willfulness. The accused became a circuit judge in Klamath County on August 9, 1961. At that time he had been a practicing lawyer in Klamath Falls for several years. He then referred to other lawyers all of his pending litigation except for four decedents' estates and one guardianship estate.

The accused testified that he 'knew that a judge was not supposed to practice law,' but that he 'checked some authorities' and 'made a conscious decision to go ahead an finish up the work that I had in progress in these estates.' He did so after he 'reached the conclusion that it was not improper to finish up routine office work * * * that didn't require appearances in court, * * *.' He recognized that the 'doing of such acts is the practice of law,' but said that he 'considered that this was a permissible exception to the general prohibition against practicing law.' ³

As matters then developed, however, the 'finishing up' of this 'routine office work' continued until October 18, 1971. During that period of over 10 years the accused prepared and filed with the probate court such documents as inventories and appraisements, accountings, affidavits, notices and receipts in three estates. He also prepared and filed State of Oregon income tax returns for the years 1961 to 1967, inclusive, as well as Oregon Inheritance Tax Returns, in one estate, including the preparation and submission of an order and notice of Determination of Inheritance Tax (signed by another judge) and made arrangements for obtaining inheritance tax clearance in another estate. He also prepared and submitted two petitions and orders for allowance of expenses in another estate (signed by another judge) and prepared and submitted a petition for allowance of a fee of $50 to himself for preparing tax returns in anothe estate, as well as a proposed order approving his final accounting in that same estate, a proposed order closing another estate, and a proposed decree of distribution in a third estate (all signed by another judge).

In addition, in two of these estates the accused continued to receive payments for services as the attorney in those estates from time to time over a perid from December 1961 to September 1968 and totaling over $4,000. These fees were in accordance with what was then the minimum fee schedule of the Oregon State Bar.

In was also found by the Trial Board that 'no person or estate, or anyone interested therein, was injured in any manner by the actions of the accused in the conduct described in the Bar's complaint.'

Because the constitutional and statutory provisions for proceedings by the Commission on Judicial Fitness for the discipline of judges are different from the statutory provisions for proceedings by the Oregon State Bar for the discipline of lawyers, we shall consider them separately.

I. Constitutional and statutory provisions for discipline of judges.

This is the first proceeding for the discipline of a judge to be brought to this court under provisions of Article VII, § 8, of the Constitution of Oregon, which was adopted by vote of the people in 1968 and which provides as follows:

'Section 8 Removal of Judges

'(1) In the manner provided by law, and notwithstanding section 1 of this Article, a judge of any court may be Removed from his judicial office by the Supreme Court for:

'(a) Conviction in a court of this or any other state, or of the United States, of a crime punishable as a felony or a crime involving moral turpitude; or

'(b) Wilful misconduct in a judicial office involving moral turpitude; or

'(c) Wilful or persistent failure to perform judicial duties; or

'(d) Habitual drunkenness or illegal use of narcotic drugs.

'(2) Notwithstanding section 6 of this Article, the methods provided in this section and in section 18, Article II of this Constitution, are The exclusive methods of removal of a judge from judicial office.' (Emphasis added)

Because the Commission on Judicial Fitness has recommended the suspension, rather than the removal, of the accused and because of the question whether adequate grounds for either removal or suspension have been proved in this case, the legislative history of this constitutional provision and of the related statutes becomes important.

A. Legislature history of Article VII, § 8, and related statutes.

The adoption of Article VII, § 8, was the result of a report and recommendation in December 1966 by the Judicial Council of Oregon, ⁴ in keeping with what was then described as 'the deepening concern over the lack of any realistic method of dealing with judicial misconduct.' ⁵ It was adopted, however, only after substantial changes were made by the 1967 Oregon Legislature before submitting the proposal for approval by the voters at the 1968 general election.

The proposal by the Judicial Council, introduced as Senate Joint Resolution 9, would have expressly provided that a judge may be 'suspended or censured,' as well as removed, for any 'conduct that brings the judicial office into disrepute' including but not limited to the specific grounds stated. One such specific ground was 'wilful misconduct in a judicial office.' ⁶

In hearings before the Senate Judiciary Committee, however, various amendments were proposed, ⁷ after which that committee deleted provisions for suspension or censure, as well as the general reference to 'conduct that brings judicial office into disrepute,' and omitted the entire provision relating to 'wilful misconduct in a judicial office,' among other changes. ⁸

Senate Joint Resolution 9, as thus amended, was then passed by the Senate. The measure was also passed by the House, which restored the provision relating to 'wilful misconduct in a judicial office,' but limited its application to misconduct involving 'moral turpitude,' after considerable discussion of the meaning of that term. ⁹ Senate Joint Resolution 9 was then submitted for approval by the voters at the general election in November 1968 and became effective on December 4, 1968.

That amendment to Article VII, § 8, of the Oregon Constitution was implemented by the adoption by the 1967 Oregon Legislature of ORS 1.410ff, providing for the establishment of the Commission on Judicial Fitness (Oregon Laws 1967, ch. 294). In 1969 that commission undertook the performance of its duties.

In 1971 the Oregon legislature amended ORS 1.420 and 1.430, to provide that the Oregon Supreme Court may 'suspend or censure' a judge for misconduct and that upon an order of suspension the judge would be 'suspended from office for the period specified in the order and his salary shall cease, if so ordered,' but that 'suspension does not create a vacancy in the office of judge during the period of suspension.' ¹⁰ The statute did not provide any specific grounds for 'suspension or censure.'

B. Application to this case of constitutional provision and related statutes.

At the time of the oral argument in this case the attorney for the Commission on Judicial Fitness conceded that although in has recommended the suspension of the accused for a period of three months, rather than his permanent removal from office, the Commission must nevertheless prove that the accused has been guilty of one of the specific grounds for removal as stated in Article VII, § 8. ¹¹

We agree with that conclusion. As previously noted, ORS 1.410 and 1.430, as amended in 1971, provide no separate grounds for suspension. And although ORS 1.430(3) provides that upon suspension the salary of a judge 'shall cease, if so ordered,' it is provided by Article VII, § 1 (amended), of the Oregon Constitution that the compensation of judges 'shall not be diminished during the term for which they are elected.' That requirement cannot be modified by statute, but only by constitutional provision, such as by the provisions of Article VII, § 8, for removal of judges for the grounds specified in that section.

The Commission on Judicial Fitness, neither in its complaint nor in its findings, conclusions and recommendation, has charged or found the accused to be guilty of 'wilful misconduct in a judicial office involving moral turpitude'--the only specific ground for removal of a judge stated in Article VII, § 8, that could have any possible application to the facts of this case.

Again, it was conceded on oral argument by the attorney for the Commission that in order to sustain its recommendations this court must find that the conduct of the accused was not only 'wilful misconduct' in his judicial office, but that such misconduct was so wrongful as to involve 'moral turpitude.'

Despite the protestations by the accused, we find that his continued...