Rome, In re
| Decision Date | 08 November 1975 |
| Docket Number | No. 47843,47843 |
| Citation | 218 Kan. 198,542 P.2d 676 |
| Parties | In re Inquiry relating to Richard J. ROME, Magistrate Court Judge. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The method of removal from office of judges pursuant to the provisions of section 15, article 3 of the Kansas constitution is cumulative to any method prescribed by statutory law in effect at the time of the adoption of section 15.
2. A judge of a magistrate court is subject to discipline, suspension and removal for cause by the supreme court after appropriate proceedings before the commission on judicial qualifications.
3. Acts or omissions of a judge committed during a prior term of office may be considered in determining whether removal or disciplinary measures are warranted against the judge.
4. The right to trial by jury as guaranteed by the state and federal constitutions extends only to cases where the right existed at common law. There is no entitlement to the right in a judicial disciplinary proceeding.
5. The fact that the commission on judicial qualifications has the dual function of investigation and making findings and recommendations does not result in a biased or partial tribunal violative of the due process rights of a judge appearing before it.
6. A judge's right to freedom of speech is circumscribed by the code of judicial conduct.
7. A judge is not subject to discipline for exercising his discretion in performing a judicial act, even if his decision be erroneous.
8. Canon 3A. (3), mandating that a judge be patient, dignified and courteous to litigants with whom he deals in his official capacity, relates to the manner in which a judge conducts his court rather than to the rulings or judgments made about which a contention might arise as to abuse of judicial discretion. In the manner of exercising judicial discretion a judge is governed by the provisions of canon 3A. (3).
9. The standard of proof to be applied in an inquiry relating to judicial conduct is that of clear and convincing evidence.
10. The record in an inquiry relating to judicial conduct is held to show by clear and convincing evidence that a magistrate court judge issued a memorandum decision holding a defendant in a criminal action up to public ridicule or scorn in violation of canon 3A. (3) of the code of judicial conduct, for which he is censured.
Richard J. Rome, Hutchinson, argued the cause and was on the briefs pro se.
Edward G. Collister, Jr., Lawrence, argued the cause and was on the brief for Commission on Judicial Qualifications.
This is an original proceeding in discipline against the Honorable Richard J. Rome, Judge of the Magistrate Court of Reno County. The Commission on Judicial Qualifications found that respondent Judge Rome, in issuing a written memorandum decision in a criminal case before him, had violated Canon 3A. (3) of the Code of Judicial Conduct, for which it recommended that he be publicly censured. Judge Rome rejected the commission's finding and recommendation and the matter is here for determination.
The rule which respondent is charged with violating is a part of the code of judicial conduct adopted by this court effective January 1, 1974. It provides:
'CANON 3
'A Judge Should Perform the Duties of His Office Impartially and Diligently
* * *
* * *
'(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity . . ..' (Rule No. 601, 214 Kan. xciv-xcv.)
The evidence before the commission on judicial qualifications consisted of exhibits stipulated to by its examiner and respondent, plus the testimony of respondent.
On January 30, 1974, a woman was arrested in the south part of Hutchinson and charged with agreeing to perform an act of sexual intercourse for hire. Her arrest derived from her unwitting soliciation of a Hutchinson police officer to engage her services. Thereafter the defendant made bond for her court appearance. Trial to the court was had on February 26, 1974, in the tribunbal presided over by respondent. Defendant was represented by a Hutchinson attorney, Kerry Granger. She was found guilty and given the maximum sentence-six months' confinement in the Kansas correctional institution for women and a fine of $1,000. The defendant then filed a notice of appeal to the district court. The appeal was subsequently dismissed with her consent and the case was remanded to the magistrate court. There, on May 20, 1974, defendant appeared with her attorney and applied for probation. Respondent took the matter under advisement and on May 23, 1974, he placed the defendant on probation for a period of two years. In addition to filing an order of probation and making routine notations in his docket respondent also filed in the case a written instrument entitled 'Memorandum Decision'. The writing, which constitutes the subject matter of this proceeding, states (name of defendant deleted):
This is the saga of _ _
Whose ancient profession brings her before us.
Was the enticing of a cop named Harold.
Unknown to _ _, this officer, surnamed Harris,
Was duty-bent on _ _'s lot to embarrass.
At the Brass Rail they met,
And for twenty dollars the trick was all set.
In separate cars they did pursue,
To the sensuous apartment of _ _.
She was arrested by Harris, to her great
She was arrested by Harris, to her great dismay!
Off to the jailhouse poor _ _ was taken,
Printed and mugged, her confidence shaken.
Formally charged by this great State,
With offering to Harris to fornicate.
Her arraignment was formal, then back to jail,
And quick as a flash she was admitted to bail.
On February 26, 1974,
The State of Kansas tried this young whore.
A prosecutor named Brown,
Represented the Crown.
_ _, her freedom in danger,
Was being defended by a chap named Granger.
Testimony was presented and arguments heard,
Poor _ _ waited for the Judge's last word.
The finding was guilty, with no great alarm,
And _ _ was sentenced to the Women's State Farm.
An appeal was taken, to a higher court _ _ went,
The thousand dollar fine was added to imprisonment.
Trial was set in this higher court,
But the route of appeal _ _ chose to abort.
And back to Judge Rome, came this lady of the night,
To plead for her freedom and end this great fight.
So under advisement _ _'s freedom was taken,
And in the bastille this lady did waken.
The judge showed mercy and _ _ was free,
But back to the street she could not flee.
The fine she'd pay while out on parole,
But not from men she used to cajole.
From her ancient profession she'd been busted,
And to society's rules she must be adjusted.
If from all of this a moral doth unfurl,
It is that Pimps do not protect the working girl!
Subsequent to its filing the memorandum decision was widely published by quotation in the local news media, as well as over the state. This publicity evoked complaint against Judge Rome from a feminist group in Hutchinson in the form of a letter to the editor of the Hutchinson newspaper, with copies to bar association and judicial authorities. The burden of the complaint was that the defendant in the case had been held up to public ridicule by Judge Rome. Publication of the protest letter evoked a citation by respondent of its three signers to appear in magistrate court and show cause why they should not be held in indirect comtempt of court. The three engaged legal counsel and appeared as directed. There, in an overcrowded courtroom, after voicing his views on the prostitution problem in the city of Hutchinson, respondent dismissed the contempt charges. The whole matter eventually reached the commission on judicial qualifications and this proceeding ensued.
In defending himself before the commission respondent raised jurisdictional as well as other issues, which were decided adversely to his position, and he renews all of them here.
Respondent challenges the jurisdiction of the commission and of this court to act at all under the particular circumstances of this case. He first points out the provisions of two statutes which were in effect on May 23, 1974, when he wrote the memorandum decision in question, providing a method of removal of county judicial officers. The first, K.S.A. 19-2609, provides:
'If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.'
A magistrate court judge is paid from county funds and may properly be considered a county officer for the purpose of this discussion.
A second method of removal was contained in K.S.A.1973 Supp. 20-2544. This section, part of an act providing for the establishment of a magistrate court in certain-sized counties which includes Reno county, contained this proviso:
'Should any such judge violate any of the provisions of this or any other section of this act, he shall, upon trial and conviction thereof, be judged guilty of malfeasance in office and his tenure of office shall immediately cease and he shall be further removed therefrom. . . .'
This quoted language was removed by the legislature effective January 13, 1975 (Laws 1974, Chap. 361, § 18).
Respondent further points out that section 16 of article 3 of our state constitution expressly provides that nothing contained in the recent amen...
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