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Inquiry Concerning a Judge (12/6/91), 822 P 2d 1333
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-3675
)
INQUIRY CONCERNING A JUDGE ) O P I N I O N
)
)
) [No. 3782 - December 6, 1991]
Appeal from the Judicial Conduct
Commission.
Appearances: George N. Hayes, Delaney,
Wiles, Hayes, Reitman & Brubaker, Inc., for
Petitioner. Philip R. Volland, Rice, Volland
& Gleason for Respondent.
Before: Cutler, Carpeneti, Hodges,
Schulz, and Tunley, Judges.*
CUTLER, Chief Justice, Pro Tempore.
HODGES, Judge, concurring in part and
dissenting in part.
SCHULZ, Judge, concurring in part and
dissenting in part.
TUNLEY, Judge, concurring in part and
dissenting in part.
This is a petition to reject a determination made by
the Judicial Conduct Commission on December 7, 1989. The
Commission __________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution and Appellate Rule 406(f).
found that petitioner violated several judicial canons and
recommended that petitioner be publicly admonished. Petitioner
challenges the Commission's determination that there were
violations as well as the Commission's recommendation for a
public admonition. The petition is brought pursuant to Appellate
Rule 406. We accept the Commission's recommendations in part and
reject them in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was an officer, director and shareholder of
City Mortgage Corporation (CMC). Petitioner also is a justice of
the Alaska Supreme Court. Petitioner held both of these
positions throughout 1987. Preceding and during 1987, CMC
managed a portfolio of home and mobile home loans made by a state
public finance corporation, the Alaska Housing Finance
Corporation (AHFC). In 1987, AHFC sued CMC in state court for
money that CMC had withheld from AHFC. The case was assigned to
Superior Court Judge Peter Michalski. CMC counterclaimed for
breach of contract, claiming the money withheld was for expenses
incurred in its management of mobile homes covered by foreclosed
AHFC mortgages. CMC sought reimbursement for the management
expenses.
AHFC requested that CMC participate in a settlement
conference. Petitioner was asked to be one of three members of a
settlement panel. The proposed settlement, if one were reached,
would be put to the Boards of Directors of AHFC and CMC.
Petitioner agreed to be on the settlement panel.
On November 6, 1987, petitioner met with Charles Evans,
counsel for AHFC. Petitioner and Evans agreed on the format and
procedures for presenting evidence to the settlement panel. They
also agreed to file a stipulation with Judge Michalski to delay
rulings on certain motions then pending in the case. Later that
afternoon, petitioner met Judge Michalski by chance in the
courthouse parking lot and verbally related the stipulation to
him. Judge Michalski requested that petitioner put their
discussion into writing and send it to Evans.
On November 9 and 10, 1987, petitioner sent three
letters to Evans. These letters were sent on petitioner's
judicial "chambers"stationery and were typed by his secretary at
the supreme court. The first letter, dated November 9, confirmed
the agreement between petitioner and Evans regarding the
procedures to be followed by the three-member settlement panel
for hearing evidence. The second letter, also dated November 9,
informed Evans that petitioner had encountered Judge Michalski in
the courthouse parking lot. The third letter, dated November 10,
confirmed petitioner's mailing of a settlement package to Evans.
On November 14, 1987, the settlement panel negotiated a
settlement. The proposed settlement recommended that AHFC pay
CMC $573,000 in exchange for CMC's release of claims against
AHFC. The settlement subsequently was approved by CMC's Board of
Directors. It was disapproved, however, by AHFC's executive
director, Ron Lehr, and its attorney, Evans. Nonetheless, AHFC
was required to present the proposed settlement at a public
hearing to decide whether to accept the settlement. The hearing
was scheduled for December 10, 1987.
Petitioner learned prior to the public hearing that
Lehr intended to use his influence with the Governor to delay or
cancel the public hearing. Petitioner called the Governor's
office on December 7, 1987, to counterbalance Lehr's anticipated
action. Petitioner was a long time acquaintance and friend of
the Governor. Petitioner asked the Governor to meet with him on
a personal matter.
A meeting was scheduled and took place the following
evening at Anchorage International Airport. Petitioner met with
Governor Cowper and Charity Kadow, director of the Anchorage
Governor's office. At the meeting, petitioner expressed his view
that the pubic hearing should go ahead as scheduled. The
Governor took no action as a result of the meeting.1
The public hearing was conducted as scheduled on
December 10, 1987. AHFC went into executive session in the
middle of the public hearing and then postponed the public
hearing. The board of AHFC met again on December 21, 1987, at
which time the settlement was approved. Reports of petitioner's
involvement in the case subsequently became public.
The Judicial Conduct Commission filed a formal
complaint against petitioner, after an initial investigation,
pursuant to AS 22.30.011(a) and Rule 9C(4) of the Commission
rules. The Commission found probable cause to believe that
petitioner had engaged in misconduct requiring discipline. The
complaint alleged that petitioner had violated Canons 1, 2, 3,
and 4 of the Code of Judicial Conduct as well as subsections
(3)(C), (3)(D), and (3)(E) of AS 22.30.011(a).
Petitioner filed his answer on September 28, 1989,
denying the allegations. The Commission appointed William
Bankston as special counsel to present the formal charges,
pursuant to Commission Rules 2C and 10A.
Bankston made an oral motion to dismiss the charges
against petitioner on November 22, 1989, before the Commission
Chairman. The Chairman denied the motion without prejudice,
asking that it be re-presented to the full Commission at the
formal disciplinary hearing scheduled for November 27, 1989.
Petitioner joined in special counsel's motion to
dismiss before the full Commission. Petitioner and special
counsel also stipulated to a set of facts for the Commission to
consider on the motion. The Commission heard oral argument on
the motion to dismiss and denied it.
Petitioner filed a motion for reconsideration with the
Commission. The motion was based on the fact that he and special
counsel had stipulated to dismiss the charges. The motion for
reconsideration also was denied by the Commission.
The Commission adjudicated the complaint on December 7,
1989, finding that petitioner's use of court stationery, his
manner of arranging a meeting with the Governor, and his actual
meeting with the Governor created an appearance of impropriety in
violation of Canons 1 and 2 of the Alaska Code of Judicial
Conduct and AS 22.30.011(a)(3)(D) and (E). The Commission
dismissed several other charges, finding that the other acts
alleged did not result in a violation of any of the Judicial
Canons or statutes. The Commission recommended to this court
discipline in the form of a public admonishment.2
The Commission thereafter filed its determination and
record pursuant to Commission Rule 12. On January 7, 1990,
petitioner filed his petition to reject the recommendation of the
Commission.
II. PRELIMINARY DISCUSSION
A. THE ALASKA CODE OF JUDICIAL CONDUCT
The applicable judicial canons from the Code of
Judicial Conduct are Canons 1, 2, 4 and 5.
Canon 1 states:
A Judge Should Uphold the Integrity and
Independence of the Judiciary
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining, and
enforcing, and should himself observe, high standards
of conduct so that the integrity and independence of
the judiciary may be preserved. The provisions of this
Code should be construed and applied to further that
objective.
Canon 2 states:
A Judge Should Avoid Impropriety and the
Appearance of Impropriety in all His
Activities
A. A judge should respect and comply with the
law and should conduct himself at all times in a manner
that promotes public confidence in the integrity and
impartiality of the judiciary.
B. A judge should not allow his family, social,
or other relationships to influence his judicial
conduct or judgment. He should not lend the prestige
of his office to advance the private interests of
others; nor should he convey or permit others to convey
the impression that they are in a special position to
influence him. He should not testify voluntarily as a
character witness.
Canon 4 states:
A Judge May Engage in Activities to
Improve the Law, the Legal System, and the
Administration of Justice
A judge, subject to the proper performance of his
judicial duties, may engage in the following quasi-
judicial activities, if in doing so he does not cast
doubt on his capacity to decide impartially any issue
that may come before him:
A. He may speak, write, lecture, teach, and
participate in other activities concerning the law, the
legal system, and the administration of justice.
B. He may appear at a public hearing before an
executive or legislative body or official on matters
concerning the law, the legal system, and the
administration of justice, and he may otherwise consult
with an executive or legislative body or official, but
only on matters concerning the administration of
justice.
C. He may serve as a member, officer, or
director of an organization or governmental agency
devoted to the improvement of the law, the legal
system, or the administration of justice. He may
assist such an organization in raising funds and may
participate in their management and investment, but
should not personally participate in public fund
raising activities. He may make recommendations to
public and private fund granting agencies on projects
and programs concerning the law, the legal system, and
the administration of justice.
Canon 5 states in pertinent part:
A Judge Should Regulate His Extra-
Judicial Activities to Minimize the Risk of
Conflict with His Judicial Duties
C. Financial Activities.
(1) A judge should refrain from financial and
business dealings that tend to reflect adversely on his
impartiality, interfere with the proper performance of
his judicial duties, exploit his judicial position, or
involve him in frequent transactions with lawyers or
persons likely to come before the court on which he
serves.
(2) Subject to the requirement of subsection (1),
a judge may hold and manage investments, including real
estate, and engage in other remunerative activity
including the operation of a business.
(3) A judge should manage his investments and
other financial interests to minimize the number of
cases in which he is disqualified. As soon as he can
do so without serious financial detriment, he should
divest himself of investments and other financial
interests that might require frequent disqualification.
B. THE STANDARD OF REVIEW
This court has the final authority in proceedings
related to judicial conduct in Alaska. Alaska Const. art. IV,
1, 10; In re Inquiry Concerning a Judge, 762 P.2d 1292 (Alaska
1988) (hereinafter Judge I); In re Hanson, 532 P.2d 303 (Alaska
1975). In exercising this power, the court is required to
conduct an independent evaluation of the evidence. In re Inquiry
Concerning a Judge, 788 P.2d 716 (Alaska 1990) (hereinafter Judge
II). Independent review is required to ensure that "procedural
due process has been accorded the judicial officer proceeded
against and that the requisite findings of fact have been made
and are supported by substantial evidence." Judge I, 762 P.2d at
1294.
Before we conduct a de novo review of the Commission's
determination that petitioner created an appearance of
impropriety in violation of the Code of Judicial Conduct, we
first address a procedural issue raised by petitioner in regard
to the Motion to Dismiss.
C. THE COMMISSION DID NOT ERR IN DENYING SPECIAL
COUNSEL'S MOTION TO DISMISS.
The motion to dismiss was based on special counsel's
view that petitioner had not violated any of the judicial canons.
This motion was denied by the Commission, even though petitioner
joined in the motion.
Petitioner contends that the Commission erred in
denying the motion to dismiss. Petitioner argues that the motion
to dismiss should have been treated as an Alaska Civil Rule 41(e)
dismissal that the Commission was obliged to accept. He contends
that the Commission's discretion in regard to the stipulated
motion is analogous to that of a trial court faced with a
stipulated dismissal.
The Commission disagrees and responds by noting that
the rules of civil and criminal procedure do not apply in their
entirety to judicial conduct proceedings. The Commission argues
that these proceedings are neither civil nor criminal but are
special proceedings. The Commission further argues that the role
of special counsel is merely to collect and present evidence and
does not include the authority to dismiss charges. The
Commission argues that only it is authorized to dismiss cases
after a finding of probable cause. The Commission contends it
fulfilled its duty by conducting an independent review of the
motion to dismiss. The Commission disagreed with special
counsel's findings after reviewing them upon consideration of the
motion, and therefore denied the motion to dismiss.
We agree with the Commission's position regarding its
discretion to deny the motion to dismiss. The Commission
appropriately heard oral argument on the motion to dismiss and
reviewed the record independently before denying the motion.
Under Alaska law, the Commission is the only entity authorized to
make judicial conduct recommendations to the supreme court or to
decide not to make any recommendation. AS 22.30.011(d). A
contrary finding would undermine the purpose and integrity of the
Commission by permitting a sole individual to make an ultimate
decision regarding judicial discipline.
III. INDEPENDENT REVIEW ON THE MERITS
A. PETITIONER'S CONDUCT CREATED AN APPEARANCE OF
IMPROPRIETY IN VIOLATION OF JUDICIAL CANON 2.
The Commission determined that petitioner's conduct
violated Canon 2 by creating an appearance of impropriety in
three instances: petitioner's use of chambers stationery,
petitioner's phone call to the Governor's office requesting a
meeting with the Governor, and petitioner's meeting with the
Governor.3 The Commission declined to find that any of the
conduct was actually improper, although the basis for that
determination is not fully explained.
Petitioner challenges all three of the Commission's
determinations of appearance of impropriety. Moreover,
petitioner argues that the Commission applied the wrong test in
evaluating his conduct.
1. The Appropriate Test
Both petitioner and the Commission have argued
extensively over the test to be used to evaluate petitioner's
conduct. They both argue that the test should be objective, but
they propose different objective tests. The Alaska Supreme Court
decided Judge II since the date the parties completed their
briefing. Judge II is controlling as to the appropriate test.
The test is whether a judge fails "to use reasonable care to
prevent objectively reasonable persons from believing an
impropriety was afoot." 788 P.2d at 723. The Judge II court
stated that "[t]he duty to avoid creating an appearance of
impropriety is one of taking 'reasonable precautions' to avoid
having a 'negative effect on the confidence of the thinking
public in the administration of justice.'" Id. (quoting In the
Matter of Bonin, 378 N.E.2d 669, 682-83 (Mass. 1978)).
We reject both parties' arguments about how
petitioner's conduct should be judged, and also reject the test
actually used by the Commission. Instead, we employ the Judge II
test. We decide whether petitioner failed to use reasonable care
to prevent a reasonably objective individual from believing that
an impropriety was afoot. This hypothetical objectively
reasonable person forms his or her belief upon learning that
petitioner had used chambers stationery in private litigation in
writing letters to opposing counsel, had called the Governor to
meet with him personally regarding a private business matter, and
had met with the Governor on this private matter, with the matter
ending in a settlement apparently favorable to petitioner's
private business interest.4
The objectively reasonable person is not a well trained
lawyer or a highly sophisticated observer of public affairs.
Neither is this person a cynic skeptical of the government and
the courts. Moreover, an objectively reasonable person is not
necessarily one who is informed of every conceivably relevant
fact. He or she is the average person encountered in society.
We now proceed to evaluate each instance of
petitioner's disputed conduct through the eyes of this
objectively reasonable person.
2. Petitioner's Use of Chambers Stationery Created an
Appearance of Impropriety.
We agree with the Commission that petitioner's use of
chambers stationery for the three private letters created an
appearance of impropriety. We find by clear and convincing
evidence5 that a reasonably objective person would believe that
the stationery was an attempt to influence opposing counsel and
other viewers of the letters or that it had this effect.
Petitioner defends his use of the stationery by
claiming he used chambers stationery, not official stationery,
and by pointing out that the court system lacks any written
policy restricting the use of chambers stationery. These
arguments are weak. An objectively reasonable person would not
know the difference between the two types of stationery or
whether any policy existed.6 Moreover, individual judges have an
obligation to follow ethical constraints concerning the use of
judicial stationery, notwithstanding any court system policy or
lack of policy.
Petitioner next claims that the intended recipients of
the letters were not influenced in fact by the chambers
stationery. We find this fact irrelevant to the opinions of the
thinking public who might see the letters in the public records.
We find the stationery as used likely to cause members of the
thinking public to believe that petitioner was unable to distin
guish his judicial activities from his personal ones. This
failure to maintain separate interests could lead a reasonable
person to believe that petitioner's judicial decision-making
ability similarly might be flawed.
Petitioner easily could have avoided risking a negative
effect on the confidence of the public in the administration of
justice. Petitioner could have used CMC's own stationery or
plain stationery. Either would have avoided creating an
appearance of impropriety.
3. The Wording of Petitioner's Request to Meet with the
Governor Did Not Create an Appearance of Impropriety.
We reject the Commission's finding that petitioner's
manner of arranging a meeting with the Governor violated the
judicial canons. We do not agree that petitioner violated Canon
2 by the way he worded his phone call to the Governor's office.
The Commission found that petitioner violated the Canon
by identifying himself as a justice when calling the Governor's
office and by failing to clearly identify as personal the nature
of his requested meeting with the Governor. Petitioner agrees
that he identified himself as a justice when calling, but claims
he specifically stated that he wanted "to speak with the Governor
on a personal matter." Before the Commission, the parties
stipulated to a set of facts supporting petitioner's assertion on
this latter point, even though the Commission now argues that
petitioner's statement that "he wanted to personally meet with
the Governor"failed to specify that the meeting itself would be
on a personal matter.
We do not find that a reasonably objective person would
believe that an impropriety was afoot from petitioner's
identification of himself as a "justice" when calling the
Governor in the same conversation in which petitioner stated he
was calling on a personal matter. The thinking public would know
that many persons of title such as doctors and judges identify
themselves or are identified by others, by their title, by habit.
There is no evidence that petitioner intentionally used his title
to get quick attention or failed to follow the use of his title
with a statement that he was calling on a personal matter. We
therefore find that the identification of petitioner by his title
in the circumstances did not create the appearance of
impropriety.
We have reviewed the stipulation entered into by
petitioner and the commission as to petitioner stating he wanted
to speak with the Governor on a personal matter. We find that
the stipulation in petitioner's favor is supported by the record.
We therefore accept the stipulation and find petitioner requested
to meet on a personal matter creating no impropriety or
appearance thereof.
4. Petitioner's Meeting with the Governor Created the
Appearance of Impropriety.
We agree with the Commission that petitioner's meeting
with the Governor created the appearance of impropriety.
Petitioner challenges this determination, arguing that the
Commission's decision means any private business meeting between
a judge and the Governor violates the judicial canons. He
contends such a result is at odds with Canon 5, which permits a
judge to conduct business activities. Petitioner also argues
there was no appearance of impropriety in the meeting because he
never asked the Governor directly to do him any favors, but
merely reported Lehr's anticipated actions to the Governor.
We use the Judge II test in rejecting petitioner's
arguments. The reasonably objective person would conclude that
impropriety was afoot because petitioner had substantial private
business interests that were involved in litigation against the
state, petitioner was a justice of the state supreme court, and
petitioner met personally with the Governor to discuss this
litigation in an attempt to persuade the Governor to intervene in
a manner favorable to petitioner's interests. We make this
finding after careful review of the text and context of Canons 1,
2, 4 and 5.
Our analysis must start and end with the relevant
canons. Canon 1 sets out the importance of an independent and
honorable judiciary. This canon requires judges to participate
in establishing and maintaining high standards of conduct to
preserve the integrity and independence of the judiciary. Canon
1 also requires the other canons to be read and construed in such
a manner as to further this objective.
Canon 2 echoes this emphasis on the integrity of the
judiciary by requiring judges to avoid impropriety and the
appearance of impropriety at all times. Canon 4 permits judges
involved in quasi-judicial activities to consult with members of
the executive or legislative branches "but only on matters
concerning the administration of justice."
Finally, Canon 5 requires a judge to regulate his or
her extra-judicial activities to minimize the risk of conflict
with his or her judicial duties. Section C focuses on financial
activities. Subsection C(1) clearly requires a judge to refrain
from financial and business dealings that tend to reflect
adversely on his impartiality, interfere with the proper
performance of his judicial duties or exploit his judicial
position. Subsection C(2) limits a judge to holding and managing
investments only if they do not conflict with the requirements of
subsection (1).7
It is evident in reading all of these canons together
and in focusing on the specific language the drafters employed
that petitioner should have conducted his business activities
only if they would not create the appearance of impropriety.
Here, the creation of the appearance of impropriety is obvious.
The reasonably objective person would be justified in believing
that an impropriety was afoot upon learning of a personal meeting
between a justice of the state supreme court and the Governor
involving the justice's private business matters that were then
in litigation with the state, notwithstanding the fact that the
Governor took no action after the meeting.
There were reasonable steps that petitioner could have
taken to avoid creating the appearance of impropriety.
Petitioner could have foregone any meeting with the Governor.
Petitioner could have asked someone from CMC to seek a meeting
with and to actually meet with the Governor to argue CMC's
position, although not on petitioner's behalf. Either action
would have avoided petitioner's direct involvement on this issue
and would have avoided the appearance of impropriety.
Petitioner's conduct created precisely the appearance
of impropriety that the canons guard against. The reasonably
objective person could easily conclude that petitioner was using
the prestige of his office to encourage the Governor to intercede
on his behalf. Petitioner stood to gain personally from the
proposed settlement, from all appearances. This apparent self-
interest distinguishes this case from one with no appearance of
impropriety. The thinking public easily could conclude that the
justice might someday return the favor to the Governor.
Precisely this sort of conduct jeopardizes and erodes public
confidence in the integrity and impartiality of the judiciary,
and is prohibited by the judicial canons.
The judicial canons reflect the drafters' intent to
limit judges' activities in a fashion that is not required of
other citizens, even other citizens of public note. A judge may
participate in extra-judicial activities only if these activities
do not compromise the integrity of the judicial system. A judge
carries restrictions on his or her personal life that are not
imposed on members of the general public, on other public
officials, on members of bar associations, or on anyone else. A
New York court appropriately stated that "[m]embers of the
judiciary should be acutely aware that any action they take,
whether on or off the bench, must be measured against exacting
standards of scrutiny to the end that public perception of the
integrity of the judiciary will be preserved." Lonschein v.
State Comm'n on Judicial Conduct, 408 N.E.2d 901, 902 (N.Y.
1980).
We therefore accept the Commission's determination with
respect to petitioner's meeting with the Governor that the
meeting created the appearance of impropriety.8
B. PETITIONER'S CONDUCT WARRANTS A PRIVATE
REPRIMAND.
We next review the sanction recommended by the
Commission. The Commission requested this court to publicly
admonish petitioner. Alaska Statute 22.30.011 does not expressly
authorize public admonishment as a sanction, however.9 Moreover,
a public admonishment appears inconsistent with the Commission's
expressed view that "the least severe sanction is appropriate"
because there was only the appearance of impropriety. The
Commission gave two reasons for opting for a public admonition.
The Commission felt there was a need to emphasize to the public
and other judges that a judge has an obligation to avoid the
appearance of impropriety. The Commission also found that
petitioner should be publicly cleared of any accusation of actual
impropriety due to publicity about his role in the settlement.
Petitioner opposes any public admonition based on such reasons
and requests a private admonition if an admonition is to be
administered.
The appropriate rules for judicial sanctions may be
drawn from the test for determining appropriate sanctions against
lawyers developed by the American Bar Association, even though
judges are held to a higher standard of conduct than lawyers.
Judge II, 788 P.2d at 723 & n.11; Disciplinary Matter Involving
Buckalew, 731 P.2d 48, 51-52 (Alaska 1986). This court has used
the ABA Standards before to organize and analyze the relevant
factors to be considered in both judicial and lawyer discipline
sanction cases.
The ABA framework for determining appropriate sanctions
is a four pronged test:
1. What ethical duty did the lawyer (judge) violate?
2. What was the lawyer's (judge's) mental state?
3. What was the extent of the actual or potential injury
caused by the lawyer's (judge's) misconduct?
4. Are there any aggravating or mitigating circumstances?
Judge II, 788 P.2d at 724; Buckalew, 731 P.2d at 52 (quoting ABA
Standards, Theoretical Framework, reprinted in ABA/BNA Lawyers'
Manual on Professional Conduct, 01:805 - 01:806 (1986)).
The disciplining body first examines prongs 1 through 3
to determine the baseline sanction. Subsequently, the
disciplining body determines whether any aggravating or
mitigating circumstances justify a departure from the baseline
sanction.
The duty violated here was the duty of the judicial
officer to avoid creating an appearance of impropriety. This
duty is only indirectly addressed in the ABA Standards because
the appearance of impropriety is forbidden to lawyers in only
limited ways whereas it very broadly applies to judges. "This is
one area in which the Code of Judicial Conduct demands more of
judges than the Disciplinary Rules do of lawyers." Judge II, 788
P.2d at 724. We therefore must decide for ourselves the
seriousness of the violation. We do so in conjunction with
addressing the third prong of the test, the amount of harm
caused.
We thus turn to a determination of petitioner's mental
state. Specifically we must decide whether petitioner's mental
state was negligent, or purposeful and knowing. Id. Negligence
is a failure "to be aware of a substantial risk that
circumstances exist or that a result will follow, which failure
is a deviation from the standard of care that a reasonable lawyer
would exercise in the situation." Id. (quoting ABA Standards,
Definitions, ABA/BNA 1:807). Here the record fails to clearly
and convincingly prove a knowing or purposeful state of mind. It
does reflect a negligent one, however. Petitioner failed to be
aware of a substantial risk that his actions could result in a
reasonably objective person believing that an impropriety was
afoot.
Next we address the actual or potential harm caused by
the violation. Judge II performed a lengthy analysis of these
two types of harm. We give the Judge II analysis great
deference. In Judge II, the court found no actual harm even
though the judge had made an unreasonable attempt to issue
himself a reduced fare airplane ticket through a defunct airline.
The court found no actual or significant harm because the
potential difference in ticket price was only $20.60. The court
recognized, however, that other harm was foreseeable from the
judge's continued possession of a validating plate and blank
stock. Id. at 724-25. Accepting the analysis of Judge II, we do
not find any actual harm here because the Governor did not do
petitioner any favors after the meeting. We clearly find that
potential harm could result from the undermining of the public's
confidence in the judiciary, however. We find therefore that the
violation is moderately serious even though no actual harm
resulted.
Accordingly, we find using the first three parts of the
test above that the appropriate baseline sanction here is a
private reprimand. Our conclusion is supported by the ABA
sanction philosophy that has been commented on by this court
before. Id. at 726. This sanction philosophy suggests that
"[w]here the violation, whatever its nature, involves only
negligent conduct which occasions little injury, the recommended
sanction is admonition, or private reprimand." Id. at 725. We
follow the Judge II application of the baseline sanction of
private reprimand for a violation involving the same mental state
and degree of injury.
We note that public admonishments generally are
administered only in cases involving blatant violations of the
Code of Judicial Canons, according to cases from other
jurisdictions. See Gubler v. Commission on Judicial Performance,
688 P.2d 551 (Cal. 1984) (wrongful attorney fee collecting
practices against criminal defendants, doubling attorney fees
imposed on defendant represented by public defender, authorizing
release of confiscated guns for sale by defendants); In re Hayes,
541 So.2d 105 (Fla. 1989) (judge's discussions with journalist of
progress of murder trial on multiple occasions knowing journalist
would use material); In re Ford, 535 N.E.2d 225 (Mass. 1989)
(judge serving as CEO of non-profit corporation while serving as
a judge); In re Kiley, 547 N.Y.S.2d 623 (N.Y. 1989) (lending and
appearing to lend the prestige of office to advance private
interests of criminal defendants); In re Derrick, 392 S.E.2d 180
(S.C. 1990) (conviction of crime of moral turpitude based on
breach of trust with fraudulent intent); In re Pearson, 386
S.E.2d 249 (S.C. 1989) (referring to another person as a "nigger
lover"). Petitioner's conduct does not rise to the level of
severity of the conduct in these other cases. The ABA Standards
are designed to promote consistency in discipline. ABA Standards
for Imposing Lawyer Sanctions, ABA/BNA 01:801 - 01:804. We find
that the reasoning of Judge II applies well to the case before
the court, and therefore we conclude that a private reprimand is
the appropriate baseline sanction.
Finally we consider whether this private reprimand
should be subject to increase or decrease depending upon the
presence of aggravating or mitigating factors. Judge II, 788
P.2d at 725. We use the aggravating and mitigating factors set
out by the ABA Standards.10
We find five mitigating factors in this case. There is
an absence of prior disciplinary proceedings, petitioner has
cooperated with the disciplinary process although he does not
admit wrongdoing, petitioner has asserted he subsequently
divested himself of his business interest before the press
reported the matter and in fact took a loss in so doing, the
petitioner has an excellent reputation, and there was a delay in
the initiation of disciplinary proceedings. We find two
aggravating factors. There was selfish motive on petitioner's
part at the time, and he has had substantial experience in the
practice of law.
We find there should be no departure from the baseline
sanction, after balancing the applicable mitigating and
aggravating factors and upon review of the sanctions imposed by
other courts. We have weighed most heavily among the aggravating
factors petitioner's substantial experience in the practice of
law. We take particular note with respect to the three letters
sent to Evans. Petitioner should have realized that these
materials could come to the attention of the public and therefore
harm the judiciary, even if he meant no harm by them. This
aggravating factor is offset by the mitigating factors of timely
effort to rectify consequences, the lack of actual harm from the
conduct and petitioner's continued excellent reputation.
Additionally, there was nearly a two-year delay between the
conduct in question and the bringing of charges by the
Commission, with petitioner's conduct remaining above reproach
throughout. A private reprimand best serves the paramount
concern of "protection of the public, the courts, and the legal
profession." Buckalew, 731 P.2d at 56.
IV. CONCLUSION
We accept in part and reject in part the recommendation
of the Judicial Conduct Commission that petitioner be found in
violation of several judicial canons. We reject the
recommendation of the Judicial Conduct Commission for a public
admonishment. The reprimand will be private.
HODGES, Judge, concurring and dissenting.
I concur with the majority on the following issues:
1. The standard of review to be
applied is independent review;
2. The Commission did not err in
denying special counsel's motion to dismiss;
3. The test articulated in In re
Inquiry Concerning a Judge, 788 P.2d 716
(Alaska 1990) (Judge II), is the test to be
applied;11
4. The use of chambers stationery
created the appearance of impropriety; and
5. A private reprimand is the appropriate sanction.
I dissent from the majority on the following issues:
1. Their reversal of the Commission's
finding that calling the Governor's office
was the appearance of impropriety; and
2. Their finding that meeting with the
Governor was only an appearance of
impropriety.
The Commission determined that calling the Governor's
office to arrange a meeting, identifying himself as a justice but
not clearly indicating it was on a purely private matter created
the appearance of impropriety. I agree that this creates an
appearance of impropriety. An objectively reasonable person
would conclude that petitioner was using his position as a
supreme court justice--that is, his judicial position--to arrange
a meeting with the Governor on a purely private business matter.
In the factual context of the call to the Governor's
office, I find that a reasonably objective person would believe
that an impropriety was afoot. The majority views the call to
the Governor's office in isolation. Under the facts of this
case, that view is unrealistic--the call must be viewed in light
of all the surrounding circumstances. When this is done, a
reasonably objective person would believe that petitioner was
attempting to use his judicial position for private gain--using
his judicial position to influence the Governor regarding the
settlement.
In isolation, the mere call to the Governor's office is
not improper, but when viewed in context--which you must do--it
is!
The Commission determined that petitioner's meeting
with the Governor did not constitute an actual impropriety, but
only the appearance of impropriety. It is not entirely clear how
the Commission reached this conclusion. It appears that the Com
mission based its determination on the relationship of Canons 2,
4 and 5.
Petitioner challenges the determination that the
meeting created even the appearance of impropriety. He contends
that the Commission's decision means any private business meeting
between a judicial officer and the Governor violates the judicial
canons. He argues that this result is at odds with Canon 5,
which permits a judge to engage in business activities. He
further contends that since the Governor took no action--was not
influenced by the meeting--there was no apparent or actual
impropriety. Apparently petitioner feels that you can attempt to
improperly influence someone, but if they are not influenced,
there is no improper conduct. This argument is patently without
merit.
Canon 5 permits judicial officers to engage in private
business matters. It does not grant carte blanche to permit en
gaging in private business and violate the Canons. Extreme care
must be exercised by judges in their private business affairs.
Upon independent evaluation of the evidence, I find
that the meeting with the Governor was actually improper.
Therefore, I disagree with the Commission's finding that the
meeting with the Governor was only an appearance of impropriety.
In making this determination, the judge's conduct must be
analyzed in relation to the Judicial Canons. Canon 1 emphasizes
the need for an independent and honorable judiciary; judges must
maintain high standards of conduct to preserve the integrity and
independence of the courts. The other judicial canons must be
construed to further this objective.
That judges should avoid impropriety and the appearance
of impropriety is re-emphasized in Canon 2. Canon 3 dictates
that a judge's judicial duties take precedence over all of his
other activities. Canon 4 permits, subject to the proper
performance of his duties, engaging in activities to improve the
"Law, Legal System and the Administration of Justice." Canon 5
requires that a judge should regulate his extra-judicial
activities to minimize the risk of conflict with his judicial
duties. Specifically, Canon 5 provides:
C(1) A judge should refrain from
financial and business dealings that tend to
reflect adversely on his impartiality,
interfere with the proper performance of his
judicial duties, exploit his judicial
position, or involve him in frequent
transactions with lawyers or persons likely
to come before the court on which he serves.
Subsection C(2) provides that a judge may manage investments, but
only if it does not conflict with subsection C(1). Thus it is
clear that a judge must refrain from financial or business
dealings that tend to reflect adversely on his impartiality,
interfere with the proper performance of his judicial duties or
exploit his judicial position. If there is any conflict or
potential conflict the judge must refrain from acting in
furtherance of his business activity.
In evaluating petitioner's conduct in light of the
Canons, I find that petitioner's meeting with the Governor on a
private business matter in litigation against a state public
finance corporation was an actual impropriety. Petitioner is a
member of the state's highest court. He arranged a meeting with
the Governor, the highest member of the executive branch, to
attempt to have the Governor intercede for him on a purely
private financial matter. This is precisely the kind of activity
that the Judicial Canons prohibit. An objectively reasonable
person would conclude that petitioner was using his judicial
position for his own direct financial interests.
Petitioner apparently had a large personal financial
stake in the proposed settlement.12 An objectively reasonable
person would conclude that petitioner would use his judicial
position to further his own financial interests. This casts
doubt on petitioner's judicial integrity.
It is this apparent large financial self-interest that
distinguishes the facts of this case from other judicial conduct
cases where the court has found only an appearance of
impropriety.
In re Hanson, 532 P.2d 303 (Alaska 1975), is an
example. In the Hanson case, the sole resident judge of Kenai
had dinner in a public restaurant with the Mayor, who was a "old
friend,"for the purpose of encouraging the public to support the
Mayor's troubled grocery business. The Commission concluded that
the judge's conduct constituted use of his judicial office "to
promote private business interests, in violation of Canon 25 of
the Canons of Judicial Ethics . . . and . . . conduct prejudicial
to the administration of justice that brings the judicial office
into disrepute, in violation of AS 22.30.070(c)(2)." 532 P.2d at
309. We held that the Commission was in error in concluding that
there was a violation of Canon 25 or AS 22.30.070(c)(2). In so
holding we stated:
The instant case presents a single
isolated occasion of a judge having dinner
with a family friend, who has not been
indicted. This is a far cry from the type of
improper conduct which Canon 25 was designed
to prohibit. Judged by objective standards,
any signal emanating from this public repast
was rather weak and ambiguous and one that we
cannot characterize as involving improper
persuasion or coercion, or the appearance
thereof, employed to promote the grocery
business of Mayor Steinbeck.
Id. at 311.
The present case is readily distinguished from the
Hanson case. A justice of the highest court of the state met
with the Governor, the state's highest executive officer, to
persuade him to intercede on petitioner's behalf in a matter
involving litigation between petitioner's company and a state
public finance corporation. If the proposed settlement went
forward, petitioner apparently stood to gain financially from the
settlement. An objectively reasonable person could easily
believe that any involvement by the Governor favorable to
petitioner would result in a quid pro quo--that the justice would
someday return the favor to the Governor. It is precisely this
type of conduct that jeopardizes and erodes public confidence in
the integrity and impartiality of the judiciary. This is clearly
prohibited by the Code of Judicial Conduct.
The Code of Judicial Conduct limits judges' extra-ju
dicial activities more so than the ordinary citizen or other
public figures. A judge may participate in extra-judicial activi
ties only if they do not compromise the integrity of the judicial
system. In some situations it may be acceptable for a private
person to act, but not a judge. There may be some instances
where the judge has to decline to participate.
Petitioner had a range of choices in his involvement
with CMC. Although a director and shareholder it was not neces
sary for him to become actively involved in the settlement negoti
ations. If he did, as he did here, he had to act cautiously to
make sure that what occurred here did not happen. Clearly he
should not have used court stationery--there was a reasonable
alternative--blank or CMC stationary; he should not have called
or met with the Governor--there was a reasonable alternative--he
could have ignored the possibility that the public hearing might
be delayed or canceled, or he could have requested another member
or employee of CMC to meet with the Governor. A better approach
would have been to decline participation in the settlement panel,
since a reasonable alternative would have been to have another
member of CMC participate. A judge may have business dealings
but must do so cautiously; passive rather than active par
ticipation is the watch word. Here petitioner became actively
involved, casting a shadow on his ability to be impartial in his
judicial duties.
A judge's responsibility and obligation to maintain the
public's confidence in the judicial system is clearly set out in
the Code of Judicial Conduct. These restrictions apply to both
judicial and non-judicial activities. The Code places restric
tions on a judge's personal life that are not imposed on members
of the general public, public figures, or members of the bar. As
pointed out in Lonschein v. State Comm'n on Judicial Conduct, 408
N.E.2d 901, 902 (N.Y. 1980):
Members of the judiciary should be
acutely aware that any action they take,
whether on or off the bench, must be measured
against exacting standards of scrutiny to the
end that public perception of the integrity
of the judiciary will be preserved. There
must also be a recognition that any actions
undertaken in the public sphere reflect,
whether designedly or not, upon the prestige
of the judiciary. Thus, any communication
from a Judge to an outside agency on behalf
of another, may be perceived as one backed by
the power and prestige of judicial office. .
. . Judges must assiduously avoid those
contacts which might create even the
appearance of impropriety.
(Citation omitted).
I find that the Commission erred in concluding that
petitioner's conduct created only the appearance of impropriety.
I find that the meeting between petitioner, a justice of the
state's highest court and the Governor, the highest executive
officer in the state, on personal business of the justice
relating to a financial dispute with a state agency constitutes
actual impropriety.
SCHULZ, Judge, concurring in part and dissenting in
part.
The Alaska Commission on Judicial Conduct (the
Commission) found the petitioner violated Canon 2 of the Code of
Judicial Conduct.13 That finding compelled the further finding
that petitioner's conduct violated Canon 114 and AS
22.30.011(a)(3)(D) and (E).15
Based on an incomplete recitation of "facts" and an
erroneous application of the objectively reasonable person test
enunciated by this court in In re Inquiry Concerning a Judge, 788
P.2d 716 (Alaska 1990) (Judge II), a majority of this court today
affirms the Commission's findings in two respects.
I dissent.
In Judge II, this court said:
The duty to avoid creating an appearance of
impropriety is one of taking "reasonable precautions"
to avoid having "a negative effect on the confidence of
the thinking public, in the administration of justice."
Otherwise stated, did appellant fail to use reasonable
care to prevent objectively reasonable persons from
believing an impropriety was afoot?
778 P.2d at 723 (quoting In the Matter of Bonin, 378 N.E.2d 669,
682-83 (1978))(emphasis added).
That is the test which the court applies today.
Unfortunately, the court has become very selective in determining
what it is that the "thinking public"or "objectively reasonable
persons" think about. For instance, the court either totally
ignores, or gives far too little weight, to the fact that while
petitioner used court stationery in a private matter, the
stationery was provided for whatever purpose the justice wanted
to use it.16 As the court points out, the petitioner used the
chambers stationery to memorialize agreements between him and
opposing counsel in litigation in which he was directly involved,
and in which he was participating at the opposing parties'
request. Why it is that "objectively reasonable persons"have to
ignore those facts is beyond my ken.17
While I agree with the premise that an objectively
reasonable person is not necessarily fully informed, (Maj. Op. at
13-14), it does not seem that the objectively reasonable person
should be aware of at least some of the surrounding circumstances
and at least a little of the content of the letters before
jumping to the conclusion, as the majority does, that an
impropriety may be afoot.18 The court also concludes that
petitioner's meeting with the Governor created the appearance of
an impropriety because "petitioner had substantial private
business interests that were involved in litigation against the
state, petitioner was a justice of the state supreme court, and
petitioner met personally with the Governor to discuss this
litigation in an attempt to persuade the Governor to intervene in
a manner favorable to petitioner's interests." (Maj. Op. at 17).
First, the court is simply wrong when it says that
petitioner met with the Governor to discuss the petitioner's
business interests. That conclusion is not supported by the
record in the case. Neither the nature of petitioner's business
interests nor the terms of the settlement agreement were ever
mentioned in the meeting with the Governor. Petitioner met with
the Governor because the petitioner had information that Evans,
who represented AHFC in the litigation, and the Executive
Director of AHFC were trying to torpedo a settlement process that
CMC had entered into in good faith. Petitioner never asked the
Governor to change anybody's mind or to attempt to influence the
AHFC board to accept or reject the settlement. Second, the
court's conclusion that the litigation concluded with a favorable
settlement for petitioner is not supported by the record.
According to the record, the settlement proposal was reached
after the use of a well recognized "mini-trial"procedure and was
ultimately approved by both parties. The record contains no
information and the Commission made no findings on whether or not
the settlement was favorable to CMC, to petitioner, or to AHFC.
The record in this case would not support a finding on that point
in any event.
Third, the court cavalierly suggests that petitioner
could have avoided the appearance of impropriety by foregoing the
meeting with the Governor entirely. (Maj. Op. at 18). The court
cites no authority for the proposition that the petitioner should
roll over and play dead simply because he happens to be a
justice, when confronted with at least delay, and quite probably
deliberate obstruction, by executive branch officials. Until
today, there was no authority for that proposition.
Next, the court suggests that petitioner could have
done indirectly what he should not do directly by having someone
on the CMC staff arrange a meeting and actually meet with the
Governor. (Maj. Op. at 18-19). To suggest that such a
manipulative course of action would avoid the appearance of
impropriety only recognizes that it would be more difficult for
the objectively reasonable person to find out about it. More
troublesome, however, is the question of what test we apply in
the case of a sole proprietorship without executive type staff.19
The court also considers it significant that the litigation
concluded with a favorable settlement for petitioner. (Maj. Op.
at 19). What this has to do with the meeting with the Governor
is not divulged by the majority probably because there is no
evidence that the terms of the settlement were discussed at the
meeting. In fact, the record discloses that the terms of the
settlement and who it was favorable or unfavorable to were never
discussed at the meeting.
Finally, since the court has correctly concluded that
there was nothing wrong in asking for the meeting in the first
place, it seems a strange leap in logic to conclude that the
meeting itself somehow created an appearance of impropriety.
I have absolutely no quarrel with the proposition that
judges, because of the nature of their office, must maintain the
highest standards of conduct in both their judicial and extra
judicial affairs, and, further, it must appear that judges
maintain those standards. Until today, I had thought that Judge
II provided a reasonably objective standard by which to measure
that conduct in appearance of impropriety cases. Unfortunately,
for the public and the bench, I am apparently wrong.
I agree with the majority that the Commission did not
err in denying special counsel's motion to dismiss. Otherwise, I
dissent.
TUNLEY, Judge, concurring in part and dissenting in
part.
I concur with the dissent of Judge Schulz, respectively
adding a few further comments.
Petitioner was requested by all parties to sit on the
settlement panel. While serving thereon he used his judicial
chambers court stationery to memorialize agreements and meetings.
These writings were only distributed among the other members of
the settlement panel. There was at that time no court rule or
policy against justices using their chambers stationery for such
purposes nor is there presently. Any objectively reasonable
person who was reasonably informed could only conclude no
impropriety was afoot when reviewing the files containing these
letters as that person would understand the background of these
letters and such was only private chambers stationery.
Concerning the meeting with the Governor, petitioner
was only making sure the agreement agreed upon by the settlement
panel would see the light of day at a public hearing. It was not
for a private purpose. Any objectively reasonable person who was
reasonably informed could only conclude no impropriety was afoot.
Petitioner, as a member of the settlement panel, met with the
Governor so as to prevent Lehr from using his influence with the
Governor to delay or cancel the public hearing taking place
whereat the Board of AHFC would decide whether to accept the
settlement agreement approved by the panel. No discussion was
had concerning the settlement agreement itself. Ms. Kadow,
Director of the Governor's Anchorage office, attended the meeting
so it cannot be labeled a private meeting.
Certainly the test of In re Inquiry Concerning a Judge,
788 P.2d 716 (Alaska 1990) (Judge II), must include the
requirement that objectively reasonable persons be reasonably
informed. In my opinion, the majority fails to acknowledge that
the reasonable person must also be reasonably informed of the
surrounding circumstances. The test of Judge II certainly is not
a "hindsight" test. I believe the majority employ a test of
"hindsight"in determining the appearance of impropriety in this
case while professing they do not. Based upon such "hindsight,"
the majority today condemn business activity of a most respected
member of the highest court of this state, a state that allows
members of the judiciary to "engage in other remunerative
activity including the operation of a business." Judicial Canon
5C(2). Also, petitioner was asked by all involved to partake
therein. Further, based on information now before this court,
petitioner divested himself of his interest in the business long
before this matter was publicly reported, petitioner losing a
considerable amount of money in such divestment. Pursuant to the
test of Judge II, the complaints against petitioner just do not
establish an appearance of impropriety, and the majority opinion
is just completely wrong.
As I pen my thoughts herein, a wave of deep concern for
the judiciary of this state washes across my spirit. Judges must
live in the real world, and I don't believe they should be
expected to sever all ties with it upon taking the bench. They
would thus isolate themselves from the rest of society.
Involvement in the outside world is necessary to enrich judicial
temperament and to enhance a judge's ability to make difficult
decisions.20 I am fearful the majority's decision will further
isolate our judiciary from the real world. My brethren and I,
both at bench and bar, must have faith that today's
interpretation of what is an appearance of impropriety when
washed with the sands of time, will not last long.21
I concur with the majority in concluding that the
petitioner's request to meet with the Governor did not create the
appearance of impropriety. Lastly, I concur with the majority in
concluding that the Commission did not err in denying special
counsel's motion to dismiss.
I am authorized to say that Judge Schulz joins in the
above comments.
_______________________________
1 No written record exists of what transpired at the
meeting.
2 At the time AS 22.30.011(d) provided:
(d) The Commission may, after a hearing held under (b) of
this section,
(1) exonerate the judge of the charges;
(2) informally and privately admonish
the judge or recommend counseling;
(3) reprimand the judge publicly or
privately;
(4) refer the matter to the supreme
court with a recommendation that the
judge be suspended, removed, or retired from
the office or publicly or privately censured
by the supreme court.
In In Re Inquiry Concerning a Judge, 762 P.2d 1292 (Alaska
1988) (hereinafter Judge I), the Alaska Supreme Court ruled that
subsection (3) of this statute was in conflict with article IV,
section 10 of the Alaska Constitution. The court found the
Commission was without power to impose sanctions itself and could
only recommend sanctions to the supreme court.
Here, the Commission was aware of Judge I when it made its
determination. The Commission recommended a public admonition
without citing either AS 22.30.011(d)(2) or (d)(3). The
Commission noted that public admonitions exist in many states.
Determination at 12.
We reject the Commission's recommendation for the reasons
expressed in this opinion. We elect to impose a private
reprimand under former AS 22.30.011(d)(3). This discipline is
the same discipline chosen in Judge I.
3 The Commission found that petitioner's parking lot
encounter with Judge Michalski did not violate any of the
judicial canons because "it was apparent at the time of the
contact that no further legal proceedings were contemplated."
We accept this finding by the Commission.
4 This description of the basis of the objectively
reasonable person's belief is not changed by petitioner's
assertions on rehearing. Petitioner asserts on rehearing that
the objectively reasonable person should find no appearance of
impropriety because petitioner ultimately received no actual cash
return due to the fact that later he divested himself of his
interest in CMC subsequent to the settlement being paid. We find
this later conduct irrelevant to the opinions of the thinking
public at the time of the original acts. Later attempts to undo
the harm may be considered in mitigation but they are not
properly a part of the determination of whether an actual
impropriety or the appearance of impropriety occurred. (We have
considered petitioner's assertions about divesting himself of his
interest, even though these assertions are outside the stipulated
facts.)
5 The "clear and convincing"standard is required by In
re Hanson, 532 P.2d 303, 308 (Alaska 1975).
6 The appendix contains sample "official"stationery and
"chambers" stationery. In conformity with the rules of
confidentiality that govern these proceedings, the petitioner's
name, which appears on the "chambers" stationery, has been
deleted from the copy appearing in the appendix.
7 The formal complaint of the Commission does not charge
petitioner with a violation of Canon 5.
8 We have considered whether petitioner's conduct
amounted to an actual impropriety, in violation of Canon 4,
because he consulted with an executive official other than
regarding the administration of justice. We find that Canon 4,
by its title, applies only to quasi-judicial activities. The
proscription in Canon 4 is not applicable because petitioner was
not involved in quasi-judicial activities.
We note that Canon 4C of the ABA's new proposed Model
Code of Judicial Conduct (1990), addressed in Judge Tunley's
dissent, provides:
Governmental, Civic, or Charitable Activities
(1) A judge shall not appear at a public hearing
before, or otherwise consult with, an executive or
legislative body or official except on matters
concerning the law, the legal system or the
administration of justice or except when acting pro se
in a matter involving the judge or the judge's
interests.
We conclude from the title of this section that it also
would not apply to petitioner's activities because they were not
"governmental,""civic,"or "charitable." Moreover, we note that
even were the above code adopted for Alaska, a judge could only
do what is permitted by that section if the judge could do so
without creating an appearance of impropriety.
9 See footnote 2.
10 The mitigating factors set out by the ABA are:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or
to rectify consequences of misconduct;
(e) full and free disclosure to disciplinary board or
cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical or mental disability or impairment;
(i) delay in disciplinary proceedings;
(j) interim rehabilitation;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
Judge II, 788 P.2d at 725 (quoting ABA Standard 9.32, reprinted
in ABA/BNA Lawyers' Manual on Professional Conduct 01:842
(1986)).
The aggravating factors set out by the ABA are:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding
by intentionally failing to comply with rules or
orders of the disciplinary agency;
(f) submission of false evidence, false statements, or
other deceptive practices during the disciplinary
proces;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution.
Id. (quoting ABA Standard 9.22, ABA/BNA 01:841-42).
11 The majority discusses the test in the context of an
objectively reasonable person and goes on to define in some
detail what that "person"is. I do not feel that it is necessary
to define "an objectively reasonable person"other than it is "an
objectively reasonable person." Further, in the majority's
opinion (at 12, 13 n.4, 15), they use the "thinking public" in
applying the test. I disagree with the majority's use of the
"thinking public." The majority either equates the "thinking
public" with the "objectively reasonable public"or changes the
test in its application.
12 Although not included in the record before the Commission
evidence has been received that shortly after the settlement was
reached Petitioner divested himself of any interest in CMC, did
not receive any monies as a result of the settlement, and
transferred his stock to the corporation at a financial loss.
13 Canon 2:
A Judge Should Avoid Impropriety and the
Appearance of Impropriety in all His Activities
A. A judge should respect and comply with the law
and should conduct himself at all times in a manner
that promotes public confidence in the integrity and
impartiality of the judiciary.
B. A judge should now allow his family, social or
other relationships to influence his judicial conduct
or judgment. He should not lend the prestige of his
office to advance the private interest of others; nor
should he convey or permit others to convey the
impression that they are in a special position to
influence him. He should not testify voluntarily as a
character witness.
14 Canon 1:
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining, and
enforcing, and should himself observe, high standards
of conduct so that the integrity and independence of
the judiciary may be preserved. The provisions of this
Code should be construed and applied to further that
objective.
15 AS 22.30.011(a)(3)(D) and (E):
(a) The Commission shall on its own motion or on
receipt of a written complaint inquire into an
allegation that a judge
. . . .
(3) within a period of not more than six years
before the start of the current term, committed an act
or acts that constitute
. . . .
(D) conduct that brings the judicial office into
disrepute; or
(E) conduct in violation of the code of judicial
conduct;
16 I express no opinion as to whether or not that is a
good or a bad rule. If the rule is bad, however, the rule should
be changed before we sanction someone for violating what I can
only characterize as a highly subjective expectation for judicial
conduct.
17 It is interesting that the thinking public or
objectively (emphasis added) reasonable persons of Judge II have
become so selective. For instance, the record in this case makes
it clear that petitioner took part in the settlement process in
1987 because he was asked by the other parties. They knew who he
was, and apparently were not terrified by his position. Further,
petitioner tendered all of his stock in the corporation at no
cost to the corporation on December 29, 1987, well before this
matter became a subject of public discussion. In short, whether
the settlement was favorable or unfavorable to CMC or petitioner
is irrelevant because petitioner took no part of the settlement
in any event. The record is also clear that the merits of the
settlement were never discussed between the Governor and
petitioner at their meeting. The majority never addresses a
central issue in this case and that issue is simply why all of
the facts are not relevant and if all of the facts are not
relevant, what is the test for determining what is relevant and
what is not. So much for the objective test.
18 The majority's conclusion on the use of chambers
stationery cannot rest on a violation of some rule against using
the stationery for the simple reason that there is no rule.
19 This, of course, assumes that CMC had "staff" that
could arrange a meeting with the Governor and discuss the AHFC
board meeting. The record seems quite silent on what sort of
"staff"options petitioner actually had.
20 Acknowledgement for my statements on the role of the
judiciary is given to the authors of Judicial Conduct and Ethics,
J. Shaman, S. Lubet & J. Alfini, at 2 (1990).
21 I refer also to the final proposed 1990 Model Code of
Judicial Conduct of the American Bar Association (ABA) which was
recommended by the Standing Committee on Ethics and Professional
Responsibility of the ABA for consideration by the House of
Delegates of the ABA in 1990. I can find nowhere in this Model
Code of Judicial Conduct any transgression thereof in the conduct
of petitioner condemned by the majority today. In fact, Proposed
Canon 4C(1) clarifies that a judge may consult with an executive
official "in a matter involving the judge or the judge's
interests."
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