Simmons, In re

• Decision Date: 22 October 1964
• Docket Number: No. C,C
• Court: Washington Supreme Court
• Parties: In re Disciplinary Proceedings as to William H. SIMMONS, An Attorney at Law. D. 4026.

Page 88

65 Wn.2d 88

395 P.2d 1013

In re Disciplinary Proceedings as to William H. SIMMONS, An Attorney at Law.

No. C.D. 4026.

Supreme Court of Washington, En Banc.

Oct. 22, 1964.

Rehearing Denied Dec. 7, 1964.

Jeremiah M. Long, Bar Counsel, Washington State Bar Assn., Seattle, for Washington State Bar Assn.

Philip R. McIntosh, Seattle, for respondent.

HAMILTON, Judge.

On September 10, 1952, respondent was admitted to the practice of law. He thereupon commenced practice in Seattle, King County, Washington. In November, 1958, he was elected to and assumed the full-time position of Judge of the Municipal Court of the City of Seattle, Department No. 2. About noon, on July 14, 1960, a Mrs. Betty Adams contacted respondent, in his official capacity, relative to a traffic citation. After some discussion, respondent endorsed the citation as a 'warning.' Mrs. Adams and he then went to a restaurant and cocktail lounge. Following several cocktails and affectionate expressions, they went to an apartment, where disagreement or misunderstanding as to their respective intentions developed. They left the apartment, respondent returning to his office and Mrs. Adams to downtown Seattle. As an outgrowth of this incident, respondent was charged with a felony--assault with intent to commit rape. Respondent pleaded not guilty. A jury trial ensued resulting in a verdict of guilty.

On February 21, 1961, judgment was entered and respondent was sentenced to serve ten years in the penitentiary, execution of which sentence was suspended upon condition that respondent resign his position as municipal court judge. Respondent appealed the conviction and continued in his judicial office.

On March 6, 1961, the council of the city of Seattle passed an ordinance declaring vacant the office of Judge of the Municipal Court, Department No. 2, by virtue of respondent's conviction of the crime charged, and requested the Prosecuting Attorney of King County to institute ouster proceedings. The Mayor of the City of Seattle appointed a successor and advised respondent of the ordinance and his action. Respondent refused to honor the ordinance or recognize a successor to his office. He continued to hold court. On the evening of March 6th, the official records were removed from the court offices.

The prosecuting attorney, on March 7, 1961, served and filed an information in quo warranto together with a 20-day summons. At the same time, the prosecuting Attorney applied for an order to restrain respondent from acting as judge of the municipal court during the pendency of the quo warranto proceeding. Respondent was directed to appear in superior court on March 8, 1961, and show cause why he should not be so restrained. Respondent continued to hold court despite the absence of official records, clerical personnel, and the city attorney. He dismissed a number of cases for lack of prosecution due to the absence of counsel for the city. He spent the night of March 7th in the chambers adjacent to the courtroom. On March 8th respondent removed a notice of continuance of pending cases posted on the courtroom door by his successor and dismissed additional cases for lack of prosecution.

On the morning of March 8, 1961, hearing was commenced in superior court upon the order to show cause and respondent's challenge to the jurisdiction of the superior court. Respondent was personally present for a portion of the hearing in the afternoon, and was otherwise at all times represented by counsel.

The superior court, on the morning of March 9, 1961, orally announced its intention and thereafter formally entered a temporary injunction ordering respondent to forthwith vacate the offices of and to cease and desist acting as Judge of the Municipal Court, Department No. 2, pending further order of the court. The record before us in this proceeding is not clear as to whether or not respondent was personally present in superior court at the time the court orally announced its intention to enter the temporary injunction. In any event, respondent returned to the offices of the Municipal Court, Department No. 2, undertook the performance of some functions in connection therewith, and, at 10:36 a. m., was served with a certified copy of the temporary injunction. At 11:45 a. m., respondent departed the offices. Thereafter, a bench warrant was issued out of superior court directing the sheriff to apprehend and bring respondent before the court to show cause why he should not be adjudged in contempt for his failure or refusal to abide the temporary injunction. The bench warrant fixed bail at $500 and was returnable forthwith, or at 9 a. m., March 10, 1961, if served after 4 p. m. The warrant was served after 4 p. m., and respondent elected not to post bail. As a result, he spent the night in jail. On March 10, 1961, respondent was adjudged in contempt. Respondent did not thereafter seek to physically reclaim or exercise any functions of the office of municipal court judge. He did, however, continue to maintain his claim thereto and to challenge the legality of his removal and of the quo warranto proceedings.

On April 20, 1961, following a contested motion for summary judgment in the quo warranto proceedings, formal judgment of ouster was entered. Respondent appealed from this judgment. This court subsequently affirmed the judgment. State ex rel. Carroll v. Simmons, 61 Wash.2d 146, 377 P.2d 421.

As might be expected, widespread publicity accompanied the foregoing events. Extensive coverage was afforded by all news media. Editorials appeared relating to respondent's activities and the responsibility of the bench and bar. A number of impolitic statements, derogatory of the city officials, the prosecuting attorney, and the action of the superior court, were publicly attributed to respondent.

On July 20, 1961, the Washington State Bar Association initiated disciplinary proceedings by serving a formal complaint, which contained two items of alleged misconduct: (a) The conviction of a crime involving moral turpitude, and (b) the filing of a false affidavit in connection with the appeal of the conviction. Respondent denied the charges. Hearing was deferred pending disposition of respondent's appeal in the criminal proceedings. On January 12, 1962, respondent's conviction was reversed by this court and a new trial granted. State v. Simmons, 59 Wash.2d 381, 368 P.2d 378. The state did not prosecute further.

On June 26, 1962, the bar association served respondent with an amended formal complaint containing nine items of alleged misconduct. Respondent in most part denied the charges and, on August 10, 1962, served interrogatories, going to each of the charges, upon counsel for the bar association. On September 11, 1962, the amended complaint came on for hearing before a hearing panel consisting of one member of the Board of Governors of the Washington State Bar Association, as chairman, and two members of the bar of King County. Respondent's request for answers to his interrogatories was denied, and the hearing proceeded. Respondent was personally present and represented by counsel at all times during the hearing.

On October 3, 1962, the hearing panel filed its findings, conclusions, and recommendations. The hearing panel dismissed four items of alleged misconduct, found respondent had committed five of the items of alleged misconduct, and recommended disbarment. Respondent filed a statement in opposition to the findings, conclusions, and recommendation of the panel. The board of governors, with the exception of the member of the board serving as chairman of the hearing panel, thereafter reviewed the record of the proceedings and, on June 21, 1963, approved and adopted the findings, conclusions, and recommendation of the hearing panel. The proceedings were certified to this court for review and final disposition.

Four of the charges of misconduct, which the hearing panel and the board of governors found respondent had committed, essentially relate to public and published statements made by respondent, particularly concerning the events transpiring during the week beginning on March 6, 1961. In connection with these charges, the hearing panel and board of governors found that respondent did make defiant statements of a derogatory, inflammatory, and offensive nature concerning the actions and attitudes of the city officials, the prosecuting attorney, and the superior court judge hearing the quo warranto rpoceedings, when he knew, or should have known, that such statements would receive widespread publication. The hearing panel and the board of governors took judicial notice, evidentially supported by photostatic copies of numerous newspaper articles, of the notoriety attending the statements and concluded that respondent's conduct and reflected attitude constituted, in varying degrees, a violation of Rule for Discipline of Attorneys 1, subds. C, J, and M, ¹ and of Canon of Professional Ethics 29, ² RCW Vol. O.

The remaining charge of misconduct related to respondent's official and unofficial conduct concerning Mrs. Betty Adams on July 14, 1961. The hearing panel and the board of governors found and concluded, upon this charge, that respondent's conduct violated Rule for Discipline of Attorneys 1, subds, A, ³ C, J, and M, and Canon of Professional Ethics 29.

Upon review before this court, respondent challenges the findings, conclusions, and recommendation of the hearing panel and board upon four grounds: (1) Denial of his request for answers to his interrogatories; (2) failure or insufficiency of the proof in connection with the four charges relating to respondent's public and published statements; (3) failure to establish a course of conduct demonstrating respondent's unfitness to practice law; and (4) failure to establish moral turpitude in connection with the charge relating to respondent's conduct concerning Mrs. Betty Adams.

Before approaching a consideration of the...