State v. Rome, 55914

• Decision Date: 08 June 1984
• Docket Number: No. 55914,55914
• Citation: 235 Kan. 642,685 P.2d 290
• Parties: STATE of Kansas, Petitioner, v. Richard J. ROME, Respondent.
• Court: Kansas Supreme Court

Page 290

685 P.2d 290

235 Kan. 642

STATE of Kansas, Petitioner, v. Richard J. ROME, Respondent.

No. 55914.

Supreme Court of Kansas.

June 8, 1984.

Syllabus by the Court

1. The grounds for judicial disqualification are stated in the Rules Relating to Judicial Conduct. See Rule 601, Canon 3 C(1), 232 Kan. cciii-cciv. These rules are examined and it is held: The rules do not require the disqualification of any member of the Kansas Supreme Court in this case.

2. Procedural due process is always required in lawyer disciplinary proceedings. This has been interpreted to require notice of the charges to afford a meaningful opportunity for explanation and defense. In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1225, 20 L.Ed.2d 117, reh. denied 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1968). This rule is recognized in Kansas. See, e.g., State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), and State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974).

3. Individuals who are investigated by agencies and who will be "accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding," cannot successfully complain they were not given procedural due process. Hannah v. Larche, 363 U.S. 420, 446, 80 S.Ct. 1502, 1516, 4 L.Ed.2d 1307 (1960).

4. There is no abuse of discretion in allowing a disciplinary proceeding to continue while a civil suit, which decides the same issue, is also pending as long as there is no prejudice caused by the dual litigation and no constitutional rights have been violated.

5. In Kansas, to warrant a finding of misconduct by an attorney, the charges must be established by substantial, clear, convincing, and satisfactory evidence. State v. Scott, 230 Kan. 564, 570, 639 P.2d 1131 (1982).

6. An attorney who knowingly brings an unmeritorious suit, regardless of whether the legal technicalities have been complied with in bringing the suit, has failed to conduct himself professionally and has violated the attorneys' oath not to bring "groundless or unjust suits." Supreme Court Rule 702(i), 232 Kan. ccxx.

7. An attorney may not divorce himself from his ethical obligations as an attorney when acting as a private citizen and file unjust criminal cases in the district court.

8. In a case where an attorney brings frivolous actions against other persons for the purpose of harassment, it is held: Public censure is not an overly harsh punishment.

Roger N. Walter, Topeka, disciplinary counsel, argued the cause and was on the brief for petitioner.

Raymond F. Berkley, Hutchinson, argued the cause and was on the brief for respondent.

PER CURIAM.

This is an attorney discipline proceeding pertaining to the conduct of Richard J. Rome.

The origins of this controversy stem from events of years past. Richard J. Rome was admitted to the Bar of Kansas in 1961. He successfully served as Reno County attorney for a number of years. He later served as assistant U.S. district attorney for one year.

Kansas amended the judicial article to the Constitution in 1972. It provided for the nonpartisan selection of judges on a local option basis. Reno County opted for nonpartisan selection. Richard J. Rome was selected as an associate district judge in 1973. Subsequently, he became interested in returning Reno County to partisan election of judges. In 1974 Judge Rome insensitively wrote a decision in rhyme concerning women. He was censured. See In re Rome, 218 Kan. 198, 542 P.2d 676 (1975).

In 1978, while Richard Rome was president of the Reno County Bar Association, a vote was taken by that bar association on the issue of partisan election of judges. The vote was strongly in favor of nonpartisan selection, which was counter to the desire of Rome. Judge Rome's reaction to the vote was vindictive. He later advised an attorney who was seeking probation for a client, that the client's "fate was sealed" by her previous attorney's vote at the bar meeting.

That action coupled with other misconduct on the part of Rome caused a judicial qualifications complaint to be filed against him. After proper procedural due process, Richard Rome was ruled disqualified from serving as an associate district judge and was removed February 10, 1981. See State ex rel. Comm'n on Judicial Qualifications v. Rome, 229 Kan. 195, 623 P.2d 1307, cert. denied 454 U.S. 830, 102 S.Ct. 127, 70 L.Ed.2d 108, reh. denied 454 U.S. 1094, 102 S.Ct. 662, 70 L.Ed.2d 633 (1981).

Rome brought an injunction action in the U.S. District Court of Kansas to enjoin his ouster. He lost and appealed to the 10th Circuit where the appeal was dismissed. He then sued the members of this court for damages in federal court. Upon an adverse ruling he again appealed, which appeal is now pending.

This action originated in the investigation of Richard Rome's judicial misconduct but pertains only to Rome's conduct after his removal from the judiciary.

In 1979, Edward G. Collister, legal counsel to the Commission on Judicial Qualifications, was conducting the investigation into alleged judicial misconduct of Richard J. Rome. Mr. Collister subpoenaed Joseph P. O'Sullivan III, and consequently took his deposition on October 3, 1979. At the time O'Sullivan was the Reno County attorney. Mr. O'Sullivan was subpoenaed for the deposition because Judge Rome had listed him as a potential witness in his upcoming hearing before the Commission on Judicial Qualifications. As a result of information obtained during O'Sullivan's deposition, James Fountain, Reno County sheriff, was also interviewed by Mr. Collister. Mr. Fountain gave a sworn statement to Mr. Collister on October 4, 1979.

On November 6, 1979, and again on April 28, 1980, O'Sullivan and Fountain testified in hearings before the Judicial Qualifications Commission concerning misconduct of Rome. Both O'Sullivan's and Fountain's testimony in part concerned an alleged occurrence where Rome challenged Sheriff Fountain to a fight. In his testimony before the Commission, Judge Rome denied the alleged occurrence and contended the county attorney and the sheriff conspired against him.

The Commission found that on January 5, 1978, Respondent made the statement challenging Sheriff Fountain to a fight. Rome's removal as judge was then recommended and his removal followed, as previously stated.

On March 9, 1981, at 1:30 p.m., the Judicial Nominating Commission for the 27th Judicial District convened to consider potential nominees for the position of associate district judge vacated by Judge Rome. Joseph O'Sullivan III, the county attorney, was one of the potential nominees.

On the morning of March 9, 1981, at 10:52 a.m., a few hours prior to the judicial nominating committee hearing, Respondent, as complaining witness, filed two criminal cases in the Reno County District Court. One action, State ex rel. Richard Rome v. O'Sullivan, case No. 81-CR-118, alleged three counts of perjury against Joseph O'Sullivan III. The second, State ex rel. Richard Rome v. Fountain, case No. 81-CR-117, alleged two counts of perjury against James Fountain. The allegations of perjury were based upon the testimony given by Fountain and O'Sullivan in their sworn statements to Edward Collister on October 3 and 4, 1979.

In the case against O'Sullivan, Rome alleged O'Sullivan had falsely testified when he expressed his opinion that Rome in a preliminary hearing on a criminal case held the State to a beyond a reasonable doubt standard of proof. The complaint also alleged O'Sullivan perjured himself when he expressed the opinion that Judge Rome displayed favoritism to certain attorneys appearing before him. The final allegation of perjury was O'Sullivan's testimony that Rome admitted to O'Sullivan he had challenged Sheriff Fountain to a fight.

In the complaint against Fountain, it was alleged Fountain falsely testified when he recounted to Collister what an unidentified third person had related to him concerning a statement made by Rome in the third person's presence. Fountain admitted in the course of his statement that he had no personal knowledge as to whether Rome ever made the alleged comment.

The second count of the complaint alleged Sheriff Fountain perjured himself when he testified that Rome had challenged him to a fight. In his statement the sheriff recalled the event as occurring in September or October of 1978. When testifying before the Commission on Judicial Qualifications on April 28, 1980, Fountain corrected his prior statement and indicated the event occurred on January 5, 1978.

Respondent Rome did not consult with or obtain the consent of the county attorney or the attorney general before filing the complaints.

Respondent personally presented both complaints to the district court on the morning of March 9, 1981, and requested they be filed. Respondent expressed his opinion to the district court judge that O'Sullivan and Fountain lied under oath. The judge did not make an independent examination of the evidence, nor did he read the transcripts presented by Respondent which allegedly formed the basis of the perjury; rather, he accepted Respondent's word that the perjury occurred. The judge recognized that most of the allegations concerned opinion testimony which he believed could not be the basis for perjury allegations. He attempted to dissuade Rome from filing the complaints, but Respondent persisted in his efforts. The judge, after having Rome swear to the allegations of the complaints, allowed the complaints to be filed. Rome then requested the issuance of arrest warrants. The judge directed instead that notices to appear be issued to both O'Sullivan and Fountain.

Sometime before noon on March 9, 1981, Robert Mackey, News Director for WKHK radio station, Hutchinson, received an anonymous phone call advising him of the existence of the complaints against O'Sullivan and Fountain. On the same date, also prior to noon, Dan Deming, News Director for KWBW radio station, Hutchinson, received an anonymous phone call advising...