Voorhees, In re, 69338

• Decision Date: 13 October 1987
• Docket Number: No. 69338,69338
• Parties: In re In the Matter of the Honorable Alphonso H. VOORHEES, Respondent.
• Court: Missouri Supreme Court

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739 S.W.2d 178 In re In the Matter of the Honorable Alphonso H. VOORHEES, Respondent. No. 69338. Supreme Court of Missouri,
En Banc. Oct. 13, 1987.
Opinion by Donnelly, J., Concurring
in Result was Withdrawn and New
Opinion Filed Oct. 19, 1987.

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Eugene K. Buckley, St. Louis, for respondent.

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James M. Smith, St. Louis, for the Commission.

BLACKMAR, Judge.

Respondent, The Honorable Alphonso H. Voorhees, is a Circuit Judge of the Twenty-First Judicial Circuit, and was the presiding judge during late 1985 and all of 1986. The Commission on Retirement, Removal and Discipline established by Art. V, Sec. 24, of the Missouri Constitution served a notice on him charging violation of this Court's Rule 2, Canon 3B(1), (2), (3). After hearing, the Commission ¹ filed Findings of Fact, Conclusions of Law and Recommendations. The Commission found violation only of Canon 3B(3), reading as follows:

A judge should report what he believes clearly to be professional misconduct of a judge or lawyer to the appropriate disciplinary agency.

It recommended that Respondent be reprimanded for this perceived violation.

The matter is now before us on the respondent's exceptions to the Findings, Conclusions and Recommendations of the Commission. We conclude that the record does not support the recommendation for discipline, and direct that the respondent stand fully discharged.

It is important at the outset to consider the governing law. The grounds for discipline are set forth in Art. V, Sec. 24(3) of the Missouri Constitution. The only grounds which could conceivably be applied in this case are "misconduct," "oppression in office," and "willful neglect of duty." We will use the term "misconduct" as a convenient collective term for all three of these constitutional standards.

Our Rule 2 adopts the Canons of Judicial Ethics of the American Bar Association. Violation of these canons may be considered as probative of misconduct, In re Kohn, 568 S.W.2d 255 (Mo. banc 1978), but the ultimate finding must be of violation of the constitutional standard. ² No discipline may be imposed unless it meets that standard. The canons are not statutory, and a charge of violation of the letter of the canons must be squared with the constitutional provisions.

Any discipline of a judge, even a reprimand, is a serious matter, and should be imposed only for substantial reasons and with all due process rights preserved. A reprimand is a public denunciation which permanently scars the judge's record. Cf. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 636-37, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652 (1985). It is not a minor matter and should not be lightly imposed. While complaints of violation of the constitutional standards should be thoroughly investigated when complaint is made, zealously prosecuted when possible cause is shown, and punished by appropriate sanctions when proved, judges should not be held up to public censure on account of good faith exercise of judgment. Our system provides other means of correction for erroneous decisions.

Of the contested cases construing Art. V, Sec. 24 which have reached this Court, most are of very little pertinence. In re Kohn, 568 S.W.2d 255 (Mo. banc 1978) makes it clear that matters of court administration are not subject to circumspection through the disciplinary machinery. The other cases involved patent misconduct ³ or neglect of duty. ⁴

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The ultimate decision on discipline, furthermore, is for this Court and not for the Commission. In re Duncan, 541 S.W.2d 564 (Mo. banc 1976). The Commission hears the witnesses and we do not, and so deference to its credibility calls is appropriate. In re Buford, 577 S.W.2d 809 (Mo. banc 1979). This case involves very little by way of factual dispute, and none of the Commission's findings appears to turn on matters of credibility. We believe, specifically, that the respondent is a credible witness, and the Commission does not seem to disagree. ⁵ Our basic task, then, is to examine the record with reference to appropriate legal standards.

THE FACTS

The amendments to Art. V of the Constitution, adopted by the voters on August 3, 1976 and effective January 2, 1979, sought to establish a unified court system for the state and for each of the 44 judicial circuits. An important part of the new program was the upgrading of magistrates to associate circuit judges, and the authorization for associates to sit on circuit court cases when authorized by the circuit judge or judges.

Attempts at unification of the Twenty-First Judicial Circuit, serving St. Louis County, did not come easily. Although this proceeding is not an appropriate vehicle for the review of all the problems of that Circuit, because the only issues before us are those relating to the recommended discipline of the respondent, ⁶ some background is necessary. In Gregory v. Corrigan, 685 S.W.2d 840 (Mo. banc 1985), we made it clear that under Art. V, Sec. 15.1 the circuit judges of each circuit, without the participation of associate circuit judges, had the authority to prescribe rules for the conduct of judicial business in the circuit. By In re: Rules of the Circuit Court for the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985), we authorized the circuit judges of the Twenty-First Judicial Circuit to elect the presiding judge. The rationale is stated in that opinion.

Following the decision in that case the circuit judges of the Twenty-First Judicial Circuit elected the respondent presiding judge on November 15, 1985. He immediately appointed a reorganization committee composed of five circuit judges and one associate circuit judge. The committee proposed a reorganization plan which was approved by vote of the circuit judges on December 19, 1985. The general purpose of the plan was to establish central control over the docketing and assignment of all cases in the circuit and associate divisions and to transfer all clerical employees of the associate divisions, with the exception of one clerk for each judge, to the central clerk's office. The plan was strongly opposed by some of the associates, apparently because they wanted to maintain their own dockets, clerical staffs, and bank accounts, and were dissatisfied with some of the clerical promotions. The conduct of some of the associates is described by the Commission in its Findings of Fact as follows:

9. Tension continued to mount between the associate circuit judges and Judge Voorhees over the impending reorganization plan. On or about January 17, 1986, Judge Goeke prepared approximately 40 pill bottles (exhibit B) with the inscription "No. 31-43. Date 1/17/86 'I

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DON'T GIVE A SHIT PILLS' Take one pill whenever the urge to worry about reorganization and docket mismanagement occurs." These bottles were distributed by Goeke to judges, clerks, and other persons. On or about January 22, Judge O'Toole removed a sign bearing his name from his courtroom door. The next day, Judge Gerhard removed his name plate and, in early February, Judge Quillin removed his. The judges' stated purpose in removing their name plates was that, since they were facing a retention election, they felt that their names being associated with the confusion resulting from implementation of court reorganization would hurt their chances of being retained. The removal of the name plates caused more confusion as the general public did not know where the courtrooms of the three judges in question were.

10. Sometime during the week following January 23, Judge Gerhard placed a hand-lettered sign (exhibit G) on his courtroom door which read, "The judge of this court is not responsible for this disruption. See: Judge A. Voorhees, Div 13, 3rd Floor, Judge B. Corrigan, Div 7, 3rd Floor, Judge M. Nolan, Div 1, 4th Floor, Judge M. Saitz, Div 17, 4th Floor, Judge R. Saitz, Div 6, 3rd Floor, Judge T. Eberwein, Div 35, 2nd Floor." The named judges were the members of the reorganization committee. The placing of the sign caused a number of lawyers and litigants to approach Judge Voorhees with complaints, which caused a disruption of his work schedule.

As the March 3rd date for putting the reorganization into effect approached there was reason to fear that the four associates named above might not cooperate in the reorganization. At a meeting of associates with unit managers on February 20, 1986, two of the four said that they would accept only 150 cases on a docket, two said that they did not want certain types of adult abuse cases, and one said that he did not want afternoon assignments. One demanded additional clerical personnel he had not used before, one said that he would not sign warrants out of hours, and one refused to make entries on the docket sheets as he was hearing cases, thereby requiring additional clerical labors.

On February 21, 1986, the unit managers met with the reorganization committee to report on their problems. The respondent was present for parts of this meeting. A transcript was made, of which copies were later furnished to all judges of this Court and to the Commission on Retirement, Removal and Discipline. A copy was offered in evidence at the hearing, to show the information which the respondent had before him when he issued the orders of February 27, 1986, and is now before us for consideration. ⁷ The transcript detailed the incidents set out in Findings 9 and 10, as well as other problems with the four associates.

On February 25, 1986, the respondent, together with Judge William M. Corrigan, a former presiding judge, and Judge Robert W. Saitz, chairman of the reorganization committee, met with then Chief Justice Andrew Jackson Higgins in Jefferson City. The meeting consumed approximately two hours. The Chief Justice, acting within his administrative responsibility under Art. V, Sec. 8, assured the three that the Supreme Court would back the circuit judges up in their enforcement of the rules made by their...