Robson, In re
| Decision Date | 25 August 1972 |
| Docket Number | No. 1552,1552 |
| Citation | 500 P.2d 657 |
| Parties | In re Inquiry Concerning Arthur Lyle ROBSON, District Court Judge. |
| Court | Alaska Supreme Court |
Patrick E. Murphy, Fairbanks, for petitioner.
James N. Wanamaker, Wanamaker, Dickson & Perry, Anchorage, for Comm. on Judicial Qualif.
Before BONEY, C. J., and RABINOWITZ, CONNOR and ERWIN, JJ.
In 1968, the Constitution of the State of Alaska was amended 1 to establish a Commission on Judicial Qualifications. This constitutional revision provided in part:
In addition to being subject to impeachment under section 12 of this article, a justice or judge may be disqualified from acting as such and may be suspended, removed from office, retired, or censured by the supreme court upon recommendation of the commission. 2
The same amendment to Alaska's constitution stipulated that the legislature was to establish the powers and duties of the Commission on Judicial Qualifications, as well as the bases for judicial disqualification. 3 Acting pursuant to this mandate, the legislature provided, in part, that on recommendation of the Commission on Judicial Qualifications the supreme court may
censure or remove a judge for action occurring not more than six years before the commencement of his current term which constitutes wilful misconduct in the office, wilful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. 4
After investigation, complaint, and hearing, the Commission on Judicial Qualifications recommended that this court censure the petitioning judge for 'conduct prejudicial to the administration of justice and which has brought his judicial office into disrepute.' The commission further recommended that 'the censure be by way of a non-public reprimand inasmuch as it is felt that this will carry out the objectives creating the Commission on Judicial Qualifications.'
The petitioning judge in the case at bar does not question any of the commission's findings of fact, or object to any of the evidence admitted in the proceeding, or to the commission's censure recommendation. Petitioner admits that he was not prejudiced by any of the pre-hearing irregularities he is calling attention to in his petition. Rather, petitioner claims to be bringing his petition in order to establish what the proper procedures should be for proceedings before the judicial qualifications commission.
The case is the first to reach us arising under the 1968 amendment to article IV, section 10 of the Alaska Constitution and legislation enacted in implementation thereof. In light of this fact, we consider this an appropriate occasion to comment upon several facets of proceedings before the Commission on Judicial Qualifications which have not been alluded to in the parties' briefs. Regarding the scope of review which this court should exercise in reviewing findings of fact of the commission, we see no reason to depart from the substantial evidence test which we have heretofore employed in reviewing matters coming to this court from administrative agencies and other governmental bodies. 5
Applying the substantial evidence test to the commission's findings of fact pertaining to the eight counts brought against petitioner, we conclude that the commission's findings are supported by substantial evidence in light of the whole record. As to five of the counts, the commission found that petitioner's conduct was 'unjudicial,' reflected 'extremely poor judgment, not meeting the standards of a judicial officer,' and was 'obstructive to the administration of justice.' The commissioner further noted that petitioner had acknowledged the making of an inappropriate comment while presiding over a court matter, and that in regard to another count, the petitioner acknowledged he 'became too involved in the . . . case . . . to the point where he appeared to be a partisan' on behalf of one of the litigants. 6
Concerning the subject of sanctions article IV, section 10 of the Alaska Constitution, and AS 22.30.070(c)(2), provide that upon recommendation of the commission the Supreme Court of Alaska may suspend, remove, retire or censure a judge. Under this discretionary grant, our review of a particular recommendation by the commission is necessarily broader than the substantial evidence criterion adopted for review of findings of fact made by the commission. Normally considerable weight will be accorded to a given recommendation from the commission, if supported by an adequate factual basis. Nevertheless, both article IV, section 10 of the constitution and AS 22.30.070(c)(2) clearly establish that the Supreme Court of Alaska is to exercise its independent judgment in determining an appropriate sanction, if any, as to any recommendation made by the commission. It would be tantamount to an abdication of our constitutional and statutory obligations if we were to automatically adopt the commission's sanction recommendations. In every case of this character we must insure that procedural due process has been accorded the judicial officer proceeded against and that requisite findings of fact have been made and are supported by substantial evidence. We are further obligated to decide whether the commission's recommended sanction is justified by the record and is in accord with the objectives of the commission as reflected in the relevant constitutional and statutory provisions.
We hold that the commission's censure recommendation should be adopted in view of the evidentiary bases for the five counts as to which the commission concluded that 'respondent's conduct has been prejudicial to the administration of justice and has brought the judicial office into disrepute.' Weighing the conduct involved against the relative judicial inexperience of petitioner at the time, we have concluded that imposition of a more serious sanction would be inappropriate. Petitioner's conduct proved under the five counts in question falls short of the standards of conduct required of justices and judges in the State of Alaska under the Canons of Judicial Ethics of the American Bar Association. 7 On the other hand, we think adoption of that portion of the commission's censure recommendation which suggests that such censure be by way of a non-public reprimand is not warranted. Here the actions of the petitioner were serious enough infractions to justify following the commission's censure recommendation. Given the necessity for the creation of a Commission on Judicial Qualifications and the need for enforcement of standards of judicial conduct and canons of judicial ethics, we think that these ends are more fully served by making of record this court's sanction decision. By making our sanction part of the public record, we believe that the public's confidence will be maintained, both in the workings of the commission and in the ability of the judicial branch of government to insure its continued intergrity. 8 We thus conclude that the censure in the case at bar should be made a matter of record in these proceedings. 9
Inherent in the foregoing is our conclusion that there is no merit in pertitioner's contentions that he was denied procedural due process because the commission allegedly operated without procedural rules, or alternatively, if such rules existed, because the commission ignored them, particularly with respect to notice and complaints. 10 The record here leads to the conclusion that absent any action on the commission's part revoking or amending their promulgated rules, the rules remain in effect. 11 Further, petitioner has failed to show that he was prejudiced in any manner because of the purported procedural irregularities on the commission's part. This factor, together with our study of the record of the proceedings, leaves us with the belief that petitioner was accorded procedural due process. 12 Here petitioner had adequate notice of the changes against him and a reasonable opportunity to be heard in his own defense.
One additional aspect of this petition remains for decision. Petitioner has requested an award of attorney's fees arguing that as a matter of policy adversary presentations before the commission should be encouraged, and that after having 'substantially prevailed' he should be entitled to attorney's fees. The statutory scheme implementing the constitutional provision mandating a Commission on Judicial Qualifications does not directly provide for attorney's fees. 13 Arguably attorney's fees might be treated as an expense 'reasonably necessary for effectuating the purpose of (the judicial qualifications section of the Alaska Constitution).' 14 We agree with petitioner to the extent that in order to effectuate his right of counsel and not to be forced to appear as his own attorney, a judge prevailing in such proceeding may, in the discretion of the commission, be allowed reasonable attorney's fees. However, in the case at bar we do not believe that petitioner meets the requirements of a prevailing party. 15 Therefore, an award of attorney's fees would be improper.
The recommendation of the Commission on Judicial Qualifications is accepted in part and rejected in part. We therefore conclude that Judge Arthur Lyle Robson should be censured for conduct prejudicial to the administration of justice which conduct has brought his judicial office into disrepute. 16
BOOCHEVER, J., not participating.
APPENDIX
BEFORE THE COMMISSION ON JUDICIAL QUALIFICATIONS
Inquiry Concerning a Judge.
The Commission on Judicial Qualifications convened at 10:00 o'clock A.M., in Superior Courtroom C of the Superior Court, 604 Barnette Street, Fairbanks, Alaska, on June 14, 1971.
The following members of the Commission were present, constituting a quorum of the Commission:
1. Ralph E. Moody, Superior Court Judge
2. C. J....
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Goldman v. Nevada Com'n on Judicial Discipline, 18326
... ... Consequently, we perceive no procedural irregularity. See Gruenburg v. Kavanagh, 413 F.Supp. 1132 (E.D.Mich.1976). Nor do we perceive any actual prejudice that may be attributed to the purported irregularity. See In re Robson, 500 P.2d 657 (Alaska 1972) ... X. THE MOTION TO DISQUALIFY ... Nevada Supreme Court Justice Charles E. Springer sat as a member of the commission in this matter. At the commencement of the probable cause proceedings, ... Page 142 ... Justice Springer made the following ... ...
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