Worthen, In re

• Decision Date: 22 October 1996
• Docket Number: Nos. 950536,950537,s. 950536
• Citation: 926 P.2d 853
• Parties: In re Richard WORTHEN, Justice Court Judge. William Gibbs, Complainant. In re Gaylen BUCKLEY, Justice Court Judge. Robert Newton, Complainant.
• Court: Utah Supreme Court

Page 853

926 P.2d 853

In re Richard WORTHEN, Justice Court Judge William Gibbs, Complainant In re Gaylen BUCKLEY, Justice Court Judge Robert Newton, Complainant.

Nos. 950536, 950537.

Supreme Court of Utah.

Oct. 22, 1996.

Stanley R. Smith, Lisabeth Joner, American Fork, for Judge Worthen.

Benson L. Hathaway, Salt Lake City, for Judge Buckley.

Steven H. Stewart, Salt Lake City, for the Commission.

ZIMMERMAN, Chief Justice:

These matters came before us on the motions of Justice Court Judges Richard Worthen and Gaylen Buckley. Both requested a hearing at which they could present additional evidence and argument prior to our issuance of any order implementing, modifying, or rejecting the orders of the Judicial Conduct Commission ("Commission"), entered under section 78-7-28 of the Utah Code, sanctioning each judge for willful misconduct in office and for conduct prejudicial to the administration of justice. The judges also requested that we close our hearings to the public. We granted their request for hearings but declined to close the hearings. ¹ Having heard oral argument, we now remand these cases to the Commission for further proceedings.

A prefatory note is in order. These are the first cases to come before us where the Commission has entered an order imposing sanctions against Utah judges and the judges have challenged the Commission's action. As a result, these are the first cases where we have been called upon to construe the relevant constitutional and statutory provisions and to scrutinize the Commission's conduct of its business. Our conclusion that errors have been committed and that these cases should be remanded should not be construed as an indication that the Commission has in some manner fundamentally failed in the performance of its duties or that the conduct of these judges does not merit the Commission's attention. Rather, due to the relative newness of the Commission and the paucity of guidance provided it by the constitution, statutes, and case law, it is not surprising that we find the proceedings before us wanting in some respects. Today, we undertake to supply some of the guidance the Commission needs if it is to fulfill the essential tasks that it has been assigned.

We begin with a brief review of the Commission's history and function. From 1896 to 1971, there were only two methods for disciplining judges whose conduct violated ethical norms, removal from office and impeachment. "Removal from office" was authorized under article VIII, section 11 of the Utah Constitution (repealed 1984). Removal could be accomplished only by a concurrent vote of both houses of the legislature, with two-thirds of the members of each house concurring in the removal. Utah Const. art. VIII, § 11. The article provides that removal should be "for cause" but does not specify any particular causes. In contrast, article VI, section 19 provided (as it does today) for impeachment of judicial officers for high crimes, misdemeanors, or malfeasance in office. Impeachment could be initiated only by a vote of two-thirds of the members of the house of representatives, and trial was had to the senate, with conviction only upon the vote of two-thirds of the senators. Utah Const. art. VI, §§ 17, 18. The only penalty which could be imposed was removal from office. Id. § 19. Both processes were too cumbersome and removal from office was too draconian a penalty for either to be an effective means of dealing with allegations of judicial misconduct, as is demonstrated by the fact that no impeachment or removal from office proceedings were held in the eighty years that these remained the exclusive remedies under the constitution.

In 1971, the legislature enacted the Judges' Retirement Act, section 38 of which established a Commission on Judicial Qualifications. Ch. 113, 1971 Utah Laws 412. The section was amended in 1975 and repealed and reenacted as the Judicial Qualifications Commission Act in 1977. See ch. 92, 1975 Utah Laws 374; ch. 145, 1977 Utah Laws 636.

In 1984, as part of the revision of the Judicial Article of the Utah Constitution, a provision was added creating the Judicial Conduct Commission. The provision was approved by the voters in November of 1984 and became effective on July 1, 1985. The aim was to provide a specialized and flexible means for disciplining judges, one that would be more effective than the empty threats of impeachment and removal from office. The current version of the provision reads:

A Judicial Conduct Commission is established which shall investigate and conduct confidential hearings regarding complaints against any justice or judge. Following its investigations and hearings, the Judicial Conduct Commission may order the reprimand, censure, suspension, removal, or involuntary retirement of any justice or judge for the following:

(1) action which constitutes willful misconduct in office;

(2) final conviction of a crime punishable as a felony under state or federal law;

(3) willful and persistent failure to perform judicial duties;

(4) disability that seriously interferes with the performance of judicial duties; or

(5) conduct prejudicial to the administration of justice which brings a judicial office into disrepute.

Prior to the implementation of any commission order, the Supreme Court shall review the commission's proceedings as to both law and fact. The court may also permit the introduction of additional evidence. After its review, the Supreme Court shall, as it finds just and proper issue its order implementing, rejecting, or modifying the commission's order. The Legislature by statute shall provide for the composition and procedures of the Judicial Conduct Commission.

Utah Const. art. VIII, § 13.

In 1986, the 1971 statute creating the Judicial Qualifications Commission was again amended to reflect changes prompted by the new constitutional provision. Ch. 47, § 78, 1986 Utah Laws 144.

The current statute fixes the composition of the Commission at two members of the House of Representatives, two members of the Senate, three members of the board of commissioners of the Utah State Bar ("Bar"), two persons who are not members of the Bar, and one judge of a trial court of record. Utah Code Ann. § 78-7-27. The legislature has also specified procedures to be followed by the Commission, although only in the barest of detail. The Commission may gather evidence in one of two ways: (i) It may conduct an investigation and hold a hearing, or (ii) it may appoint special masters to take evidence and report their determinations to the Commission. Id. § 78-7-30(1)-(2). If, after either type of proceeding, the Commission finds good cause, "it shall order the removal, suspension, censure, reprimand, or involuntary retirement of the justice, judge, or justice court judge." Id. § 78-7-30(2).

Although the Commission has been in existence in one form or another for some twenty-three years, it has not been particularly visible. Its level of appropriations was initially very low, and as a consequence, it had to make do with a one-person, part-time staff charged with all administrative functions. ² One formal proceeding resulted in a recommendation for a sanction coming to this court, but that recommendation did not result in a detailed examination of the adequacy of the Commission's practices or procedures because it was not challenged by the judge. Until recently, the Commission lacked any detailed rules describing how such proceedings should be conducted. These deficiencies have recently received attention. In the past few years, an infusion of new resources has permitted the Commission to acquire office space and to hire a full-time executive director and part-time secretarial and investigative staff to perform the Commission's investigatory and prosecutorial functions. See supra note 2. During the same period, the Commission adopted rules of procedure. See Utah Admin. Office of the Courts, Compilation of Laws 53-58 (1995). A 1996 legislative amendment to the Commission's governing statute (which was sought by the Commission) will likely result in further formalization of the procedures by which such proceedings will be conducted. ³

The very presence of these cases before this court indicates that the Commission is now moving vigorously to perform the functions contemplated by the constitution and the legislature. And the newly energized Commission has done so despite the lack of any opinion from this court interpreting its rather scanty governing constitutional and statutory provisions or the other legal standards which it must apply in its proceedings. The instant cases compel us to issue an opinion clarifying the issues faced by the Commission.

This prologue should explain why these cases present so many issues of first impression concerning the fundamental structure and meaning of the constitutional and statutory provisions governing the Commission, as well as its rules and procedures. In the course of setting forth the basic legal standards applicable to the Commission, this opinion addresses issues either not raised or only briefed in passing by the parties. This is not our usual practice. However, the broad scope of today's opinion is consistent with the provisions of the Utah Rules of Appellate Procedure, which state that when we send a matter back for further proceedings, we "may pass upon and determine all questions of law involved in the case presented upon the appeal and necessary to the final determination of the case." Utah R.App.P. 30(a). By this opinion, we attempt to resolve much of the uncertainty that surrounds this area of the law and to anticipate problems that may arise on remand.

Turning to the cases before us: We first present the facts that gave rise to these cases and then present our analysis of the applicable legal standards. That analysis begins with a discussion of the appropriate standard of review to be applied in reviewing a Commission order...