Powers v. Board of Control of Judicial Retirement Fund

• Decision Date: 29 April 1983
• Citation: 434 So.2d 745
• Parties: William P. POWERS, Circuit Judge of the Twenty-Ninth Judicial Circuit of Alabama v. BOARD OF CONTROL OF the JUDICIAL RETIREMENT FUND and Board of Control of State Employees' Retirement System and William P. POWERS, Circuit Judge of the Twenty-Ninth Judicial Circuit of Alabama v. The JUDICIAL INQUIRY COMMISSION OF ALABAMA 81-12, 81-14.
• Court: Alabama Supreme Court

Page 745

434 So.2d 745

William P. POWERS, Circuit Judge of the Twenty-Ninth Judicial Circuit of Alabama v. BOARD OF CONTROL OF the JUDICIAL RETIREMENT FUND and Board of Control of State Employees' Retirement System and William P. POWERS, Circuit Judge of the Twenty-Ninth Judicial Circuit of Alabama v. The JUDICIAL INQUIRY COMMISSION OF ALABAMA

81-12, 81-14.

Supreme Court of Alabama.

April 29, 1983.

Rehearing Denied June 24, 1983.

Alex W. Newton of Hare, Wynn, Newell & Newton, Birmingham, Maury D. Smith of Smith, Bowman, Thagard, Crook & Culpepper, Walter R. Byars of Steiner, Crum & Baker, for appellant.

William T. Stephens, Montgomery, Charles A. Graddick, Atty. Gen., and Ed Carnes and Gregory J. Robinson, Asst. Attys. Gen., for appellees.

PER CURIAM.

Judge William P. Powers brings two appeals, which have been consolidated for our review. One is from the decision of the Board of Control of the Judicial Retirement Fund. That decision denied Judge Powers (Powers) disability retirement which he sought voluntarily under Code 1975, § 12-18-7. The other appeal is from the judgment of the Court of the Judiciary (C.O.J.) of July 11, 1981, entered on a complaint filed by the Judicial Inquiry Commission (J.I.C.). That judgment censured Powers, suspended him from office with pay until December 31, 1981, and, thereafter, suspended him without pay for the remainder of his term.

The central issue to these appeals is whether Powers is entitled to be retired due to mental disability, instead of being denied retirement, censured, and ultimately suspended from office without pay. We find the judgment of the C.O.J. to be supported by clear and convincing evidence and we, therefore, affirm it. For reasons explained below, we find it unnecessary to review the determination of the Board.

Powers served as a circuit judge in the 29th Judicial Circuit from January 18, 1971, to March 27, 1981. He elected to become a member of the Judicial Retirement Fund on September 18, 1973. On February 12, 1981, Powers filed his declaration of intention for voluntary retirement with Chief Justice Torbert of this court. That declaration was filed pursuant to Code 1975, § 12-18-7. In support of his declaration, Powers filed written statements from five medical doctors citing mental and physical causes making him permanently disabled from performing his duties as circuit judge. The Chief Justice requested that Powers be examined by Patrick H. Linton, M.D., Chairman of the Department of Psychiatry at the School of Medicine of the University of Alabama in Birmingham. Dr. Linton's written report concluded that Powers suffered from "an anxiety disorder manifested by insomnia, multiple somatic complaints and inability to organize and plan intellectual activity." Linton found Powers unable to function in his role as judge, but also found that he was treatable in a different setting.

After Powers filed his declaration with the Chief Justice, the J.I.C. filed its complaint against Powers with the C.O.J. on March 27, 1981. Powers knew of the J.I.C.'s investigation of him as early as December 18, 1980. At that time the J.I.C. had advised Powers of its investigation. In connection with that investigation, Powers appeared before the J.I.C. on January 30, 1981.

The complaint filed against Powers contained six counts. Count one charged him with violating Canons 2 and 3 A(5), Alabama Canons of Judicial Ethics. Canon 2 requires a judge to "avoid impropriety and the appearance of impropriety in all his activities." Canon 3 A(5) mandates that a judge promptly dispose of court business, and requires the filing of semi-annual reports with the J.I.C. and Department of Court Management (now Administrative Office of Courts), disclosing all matters or cases under submission or advisement for six months or more.

Count one alleged Powers delayed action for an unreasonable time on 26 cases that had come before him. Count two alleged Powers moved to dismiss the complaint on April 28, 1981, raising various grounds, including the ground that the Court of the Judiciary lacked jurisdiction because he voluntarily elected to file for retirement with the Chief Justice of this court. The Court of the Judiciary denied Powers's motion.

Powers also violated Canon 3 A(5) by his failing to report four cases taken under submission for six months or longer. Count six alleged that, at the time of the filing of the complaint, Powers was mentally unable to perform his duties as circuit judge. This charge was founded on Ala. Const. 1901, amend. 328, §§ 6.17(b)(2) and 6.18(a)(2), each of which addresses the matter of removing from office a judge who is no longer mentally capable of performing his duties. Count three was struck as a separate count on motion of the J.I.C. The C.O.J. did not find Powers guilty of counts four and five. These counts are not at issue on this appeal; therefore, we will not review them.

In his amended answer to the complaint, Powers pleaded not guilty to the charges, raised various defenses, and set up two counterclaims. Powers admitted that he was mentally unable to perform his duties as circuit judge, stating that for some time prior to the filing of the complaint, he had been permanently mentally unable to carry out his duties. His counterclaims alleged that he was both physically and mentally unable to function in his capacity as circuit judge.

Powers sought to establish at trial that his mental disability is permanent and that the matters complained of were a product of his mental disability. He contends that he is, in effect, a casualty of the stresses and strains of his office. Powers's deposition, introduced into evidence, reflected numerous personal and professional problems. Those included the hospitalization of his son due to acute depression, his divorce, an alleged confrontation between him and a sheriff resulting in a pistol being pointed at him and his being challenged to a duel, the fire bombing of his house, as well as other problems and difficulties which he encountered as circuit judge.

The C.O.J. heard extensive testimony regarding Powers's mental disability. It is unnecessary for us to set out, in synopsis, all of that testimony. For the purpose of our review, we note the testimony of the physicians, which provides sufficient background to understand the judgment entered by the C.O.J. Four physicians testified. Three, Drs. Phillips, Duke, and Nuckols, had earlier provided written statements in support of Powers's declaration seeking voluntary retirement. The fourth, Dr. Linton, had evaluated Powers at the request of the Chief Justice, and was called by Powers as a witness.

Harry L. Phillips, M.D., is a family practitioner in Columbiana, Alabama. He is not a psychiatrist. Although Phillips had known Powers since the mid-1960's, he had not seen Powers professionally until January 1981. Phillips testified that Powers was physically and mentally incapable of functioning as a circuit judge. In response to questions propounded by the C.O.J., Phillips stated that Powers's disability would continue for the forseeable future. He explained he did not see Powers functioning as a judge for one to three years.

Warren C. Duke, M.D., is a family physician who practices in Talladega, Alabama. He, too, is not a psychiatrist. Duke had known Powers, both as a friend and patient, since 1970. Duke noticed a change in Powers's mental attitude after his house was fire bombed. ¹ The changes he noticed were "depression, anxiety progressed into paranoia at times." About a year and one-half before trial, Duke recommended to Powers that he receive psychiatric treatment. Duke continued seeing Powers at "irregular" intervals until the time of trial. In Duke's opinion, Powers was mentally unable to perform his duties as circuit judge on a full-time basis.

Joe Nuckols, M.D., is a physician specializing in psychiatry. He is one of the chief psychiatrists at Hillcrest Hospital in Birmingham, Alabama. Nuckols first saw Powers on February 16, 1981, for an examination. Nuckols concluded that Powers suffered from a neurosis, and he found Powers's illness to be a reaction to the events which transpired during his judgeship. In Nuckols's opinion, it would take from two to four years for a change to be brought about in Powers's condition.

Patrick H. Linton, M.D., saw Powers at the request of the Chief Justice. Linton testified Powers suffered from an "anxiety disorder with some symptoms of depression." According to Linton, "there is nothing ordinarily about this illness that is total and/or permanent by itself." He stated that Powers would not be able to continue as circuit judge and undergo treatment. However, Linton observed that if taken out of the situation he was in, Powers could be treated. Linton acknowledged that no qualified psychiatric expert could conclude Powers's condition was permanent.

The trial lasted from July 9-11, 1981. On July 11, the C.O.J. granted the J.I.C.'s motion to strike Powers's counterclaims. At the conclusion of the trial, the C.O.J. entered its judgment finding that Powers violated Canons 2 and 3 A(5). It found, on counts one and two, that he failed to promptly dispose of cases under submission, and that he failed to report cases pending before him for more than six months. On count six, the C.O.J., citing Powers's admission to that count and the stipulations of the parties, ² found Powers to be "mentally unable to perform his duties as a circuit judge at the present time." After the C.O.J. rendered its judgment, the Chief Justice declined to find, as a matter of fact, that Powers was mentally or physically unable to carry out his duties on a full-time basis, citing the fact that the C.O.J. did not retire Powers. The Chief Justice's findings were endorsed by him and forwarded to the Secretary-Treasurer of the Judicial Retirement Fund.

Powers contends that the unrebutted medical testimony established that he was permanently mentally...