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In the matter of Johnstone (5/19/00) sp-5273
In the matter of Johnstone (5/19/00) sp-5273
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
In the matter of the )
proceeding under ) Supreme Court No. S-8387
AS 22.30.070(c) in )
relation to )
) O P I N I O N
KARL S. JOHNSTONE, )
) [No. 5273 - May 19, 2000]
Petitioner. )
)
Petition from the Decision of the Alaska
Commission on Judicial Conduct, File #95-002.
Appearances: George N. Hayes and Donald C.
Thomas, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc.,
Anchorage, for Petitioner. Matthew D. Jamin and Walter W. Mason,
Jamin, Ebell, Schmitt & Mason, Kodiak, Special Counsel to the
Judicial Conduct Commission, for the Commission.
Before: Bryner, Justice, Mannheimer, Pengilly,
Steinkruger, and Zervos, Justices pro tem.* [Matthews, Chief
Justice, and Eastaugh, Fabe, and Carpeneti, Justices, not
participating.]
BRYNER, Justice.
The Alaska Commission on Judicial Conduct recommended to
this court that former Superior Court Judge Karl Johnstone be
publicly reprimanded for creating an appearance of impropriety in
the hiring of Richard McVeigh as coroner for the Third Judicial
District of Alaska. We reject Judge Johnstone's contention that
the judge's retirement divested the commission of jurisdiction over
his disciplinary proceedings, and we agree with the commission that
Judge Johnstone's conduct created an appearance of impropriety. We
therefore accept the commission's recommendation to issue a public
reprimand.
I. FACTS AND PROCEEDINGS
In 1994 Alaska's coroner for the Third Judicial District
resigned. As presiding judge for the Third District, Alaska
Superior Court Judge Karl Johnstone was responsible for appointing
a new coroner. The coroner position was classified as a partially
exempt position, which, among other things, meant that Judge
Johnstone was free to appoint a coroner without engaging in a
standard hiring process. Nonetheless, when Judge Johnstone
instructed the area court administrator, Albert Szal, to commence
the recruitment process, Szal initiated a standard merit process.
A merit hire, in contrast to a partially exempt appointment,
requires a structured process involving publicity, specific
application requirements, deadlines, and assignment to eligibility
lists.
Szal issued a standard recruitment bulletin, which was
posted in court buildings and published in major newspapers
throughout the state. The bulletin specified that interested
applicants should possess certain minimum qualifications,
including: supervisory or managerial experience; a degree in
business administration, government, public administration, or a
related field; and three years of experience in a coroner's office,
public health setting, hospital, clinic, or a court system.
Following the application deadline, the court system's personnel
office screened the applications and determined that thirty-nine
individuals had the appropriate qualifications for the job.
Further screening narrowed the field to eight finalists.
On December 6, 1994, Szal appointed a committee to
interview these finalists and rank them according to predetermined
criteria. After the interviews, the committee agreed that one
particular individual stood out from the others and that two others
were a close second and third.
At some point during the recruitment process -- the
parties dispute the precise time -- Judge Johnstone informed Szal
that he wanted the person that he appointed to have legal training
and experience. This criterion had not been included in the
recruitment bulletin for the coroner's position. On or about
December 15, 1994, when Szal conveyed the results of the interview
process, Judge Johnstone expressed dissatisfaction that none of the
top-ranked candidates had legal training. The judge discussed the
situation with his own supervisor, then-Chief Justice Daniel Moore.
Chief Justice Moore suggested that Richard McVeigh either had
applied or might apply for the coroner position. McVeigh had legal
training and a history of employment in public service; he was also
a personal friend of the chief justice.
Shortly after this meeting, Judge Johnstone called
McVeigh and discussed the job with him. McVeigh applied for the
job the following day, submitting only a resume and cover letter --
not the standard application form that all other applicants had
submitted. The final application deadline for the position had
already passed when McVeigh submitted these materials. Szal was
out of the office on a short vacation. Judge Johnstone contacted
Szal's secretary and told her that he wanted the committee to
interview McVeigh. Three days later -- on December 19, 1994 -- the
committee interviewed McVeigh.
After interviewing McVeigh, the committee decided to
adhere to its original ranking of the top candidates. The
committee did not inform Judge Johnstone of its reasons for giving
McVeigh a low ranking. But Szal met with the judge and told him
that the committee still favored the candidates it had originally
recommended and that McVeigh ranked about sixth among all
interviewed applicants. Judge Johnstone nevertheless responded
that he was appointing McVeigh.
On December 20, 1994, Judge Johnstone met with the chief
justice and Szal to discuss the appointment. During the meeting,
Judge Johnstone placed a call to then-Deputy Court Administrative
Director Stephanie Cole. Cole advised against considering
McVeigh's application, pointing out that McVeigh was probably
ineligible because he filed his application after the deadline.
Cole warned that accepting the late application could jeopardize
the credibility of the court system's hiring process. She also
insisted that the only proper way to consider McVeigh's application
would be to close out the original merit hiring process and begin
an entirely new process.
Judge Johnstone ordered Szal to close out the application
process and to send rejection letters advising all candidates that
none had been selected and that a new hiring process would be
initiated. Szal believed that he could not justifiably declare all
thirty-nine candidates unsuitable for the job. Although he
informed or reminded Judge Johnstone that the applicant pool
included other attorneys, the judge showed no interest in reviewing
those applicants. On December 21, 1994, Szal sent rejection
letters informing all candidates that "the presiding judge chose
not to select any of the candidates and to close this particular
process." The letters also informed applicants that "[t]he
presiding judge has sought to fill the position through a
subsequent selection process."
But no "subsequent selection process" occurred. On
December 20, Szal telephoned McVeigh to discuss his appointment as
coroner. When initially offered the job, McVeigh was reluctant to
accept it on a permanent basis because he did not want to
jeopardize his previously earned state retirement payments. Szal
reported this development to Judge Johnstone later that day. The
judge directed Szal to appoint McVeigh on a temporary basis.
At Judge Johnstone's direction, Szal spoke with Cole
about the possibility of hiring McVeigh as a temporary employee,
which would enable him to continue to receive his previously earned
state retirement benefits. Cole counseled against this approach.
Nevertheless, on December 29, McVeigh's appointment as
coroner was announced. Soon afterward, Judge Johnstone left Alaska
on vacation without signing a formal appointment order. Sometime
during the first week of January 1995, Judge Johnstone transmitted
(or had someone transmit) to the acting presiding judge a proposed
order appointing McVeigh as a temporary employee for an indefinite
term. But Cole concluded that a temporary appointment for an
indefinite term would be illegal. She therefore counseled the
acting presiding judge not to sign the proposed order.
Judge Johnstone, through Szal, then submitted a second
order by fax, proposing to appoint McVeigh as temporary coroner for
a term of eleven months. On January 6 Cole sent the judge a memo
recapping prior events and expressing uncertainty as to whether
McVeigh's appointment would actually be temporary: "I asked Al
Szal today if, in fact, Mr. McVeigh's appointment had an expected
duration of eleven months or less. Al indicated that he did not
know."
Cole advised Judge Johnstone that he might apply through
established administrative channels for an exemption authorizing
him to fill the coroner's position with a temporary employee. Cole
feared that if Judge Johnstone acted without such an exemption, he
would seriously endanger the integrity of the court by making it
appear that he had permanently hired McVeigh as a temporary
employee merely to enable McVeigh to collect his retirement
benefits.
On January 11 Szal sent Cole a memo responding that
"Presiding Judge Karl Johnstone has informed me that he does not
expect Richard McVeigh to occupy the position of coroner for more
than 11 months. Therefore, . . . Mr. McVeigh can be placed on the
payroll as a temporary employee." McVeigh was then appointed.
Soon after McVeigh's appointment, the commission received
a complaint alleging that Judge Johnstone had committed ethical
violations in his hiring of McVeigh. The commission began a
preliminary investigation in February 1995. Judge Johnstone
retired from the bench in July 1996. Following the conclusion of
its preliminary investigation, in February 1997, the commission
hired special counsel to prosecute the case and issued a Notice of
Formal Investigation. Approximately three months later, upon a
finding of probable cause, the commission issued a complaint. A
formal disciplinary hearing was held on October 27, 28, and 29,
1997, and the commission issued its unanimous decision on
November 19, 1997. The commission found the evidence insufficient
to establish actual impropriety but sufficient to support the
conclusion that Judge Johnstone had created an appearance of
impropriety in hiring McVeigh. Based on these findings, the
commission recommended that Judge Johnstone be publicly
reprimanded.
The commission's findings and recommendation are now
before this court for review. [Fn. 1]
II. DISCUSSION
A. Alaska's Provisions for Judicial Discipline
Article IV, section 10 of the Alaska Constitution
establishes the Commission on Judicial Conduct, and states that the
commission's powers and duties shall be established by law. [Fn. 2]
Alaska Statute 22.30.011 provides that the commission shall inquire
into an allegation that a judge has committed an act or acts that
constitute:
(A) wilful misconduct in office;
(B) wilful and persistent failure to perform
judicial duties;
(C) conduct prejudicial to the administration
of justice;
(D) conduct that brings the judicial office
into disrepute; or
(E) conduct in violation of the code of
judicial conduct[.]
The commission investigated Judge Johnstone for
violations of provisions (A), (C), (D), or (E). The commission
also investigated Judge Johnstone for violations of Canons 2 and
3B(4) of Alaska's former Code of Judicial Conduct. [Fn. 3]
Former Canon 2 provided:
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.
Former Canon 3B(4) provided:
A judge should not make unnecessary
appointments. He should exercise his power of appointment only on
the basis of merit, avoiding nepotism and favoritism. He should
not approve compensation of appointees beyond the fair value of
services rendered.
Alaska Statute 22.30.011(a)(3) authorizes the commission
to begin an investigation within six years after judicial
misconduct allegedly occurs:
The commission [on judicial conduct] shall on
its own motion or on receipt of a written complaint inquire into an
allegation that a judge . . . within a period of not more than six
years before the filing of the complaint or before the beginning of
the commission's inquiry based on its own motion, committed an act
or acts [of misconduct or apparent misconduct].
Alaska Statute 22.30.080(2) broadly defines "judge" for
disciplinary purposes to include any judicial officer who is the
subject of an investigation:
"[J]udge" means a justice of the supreme
court, a judge of the court of appeals, a judge of the superior
court, or a judge of the district court who is the subject of an
investigation or proceeding under sec. 10, art. IV, Constitution of
the State of Alaska and this chapter, including a justice or judge
who is serving a full-time, part-time, permanent, or temporary
position.
B. The Commission Retains Jurisdiction over Judge Johnstone
Despite His Retirement.
1. Standard of review
The Alaska Supreme Court exercises its independent
judgment in matters of statutory interpretation. [Fn. 4]
"Statutory construction begins with an analysis of the language of
a statute construed in view of its purpose." [Fn. 5] We attempt to
"give effect to the intent of the legislature, with due regard for
the meaning that the statutory language conveys to others." [Fn. 6]
Although we normally give unambiguous language its plain meaning,
we may rely on legislative history as a guide to interpreting a
statute. [Fn. 7] But the "plainer the language of a statute, the
more convincing contrary legislative history must be" to interpret
a statute in a contrary manner. [Fn. 8]
2. The definition of "judge" in AS 22.30.080(2)
includes individuals who were acting in a judicial capacity at the
time the alleged misconduct occurred.
Judge Johnstone argues that AS 22.30.080(2) establishes
that current active judicial service in a "full-time, part-time,
permanent, or temporary position" is a prerequisite to disciplinary
jurisdiction. He thus maintains that his voluntary retirement in
July 1996 divested the commission of jurisdiction. The commission,
on the other hand, contends that its jurisdiction will always
extend to an individual who was a judge at the time the alleged
misconduct occurred, even if that individual has since retired, as
long as it commences investigation within the six-year limitation
period.
We agree with the commission that it retains jurisdiction
over Judge Johnstone despite his retirement. We reach this
conclusion based on the plain language of Alaska's statutes, which
extend the commission's jurisdiction to any "judge" who is "the
subject of an investigation." [Fn. 9] Here, Judge Johnstone was
actively serving as a full-time and permanent judge of the superior
court both when the alleged misconduct occurred and when the
commission opened its investigation. [Fn. 10] Because the
commission began its investigation within the six-year limitation
period and Judge Johnstone was then an active judge, the commission
unquestionably acquired jurisdiction over the alleged misconduct.
Having properly acquired jurisdiction, the commission did not lose
it merely because the judge subsequently opted to retire.
Judge Johnstone argues that the six-year limitation
period of AS 22.30.011(a)(3) refers to "how far back the Commission
can look in considering a judge's actions," but does not define the
scope of the commission's jurisdiction. But we decline to read the
provision so narrowly. The provision is plainly worded: the
commission may investigate alleged wrongdoing by an active judge as
long as a complaint is filed or inquiry commenced within six years
of the alleged actions.
The legislative history of this provision supports its
plain meaning, weighing strongly in favor of retained jurisdiction.
Alaska's judicial disciplinary scheme was discussed during the
1989-90 legislative session in the context of proposed House
Bill 268. [Fn. 11] House Bill 268 altered and clarified Alaska's
judicial disciplinary scheme in several respects. One of the
changes proposed in the infancy of H.B. 268 was to include "retired
judges" in the definition of judge. [Fn. 12] This proposed
language was ultimately rejected. [Fn. 13] While the reasons
underlying the legislature's decision to reject this language are
irrelevant here, the discussion prompted by the rejection is highly
significant. During a meeting of the House Judiciary Committee,
one representative questioned whether eliminating the words
"retired judge" would allow a judge to retire in order to avoid
being reprimanded or falling under the commission's jurisdiction.
[Fn. 14] The ensuing discussion clarified the judiciary
committee's belief that, notwithstanding the absence of specific
definitional language covering a "retired judge," a judge who was
alleged to have committed an ethical violation while on active duty
would remain subject to judicial misconduct proceedings even if a
charge had not yet been filed as of that judge's retirement. [Fn.
15]
The American Bar Association (ABA) agrees with this
approach. [Fn. 16] The ABA's Model Rules for Judicial Disciplinary
Enforcement specify that a disciplinary commission should have
continuing jurisdiction over former judges. [Fn. 17] The
Commentary to this rule explains:
This continuing jurisdiction ensures that
judges cannot avoid judicial discipline by resigning before
information regarding their misconduct was made known to
disciplinary counsel and thereafter seek judicial office with no
record of misconduct.[ [Fn. 18]]
A majority of states agree with the ABA that a
disciplinary body retains jurisdiction over a judge who has
voluntarily retired after alleged acts of misconduct. [Fn. 19]
Even courts that consider certain sanctions to be mooted by a
judge's voluntary resignation still retain jurisdiction. [Fn. 20]
Many of these courts support their retention of jurisdiction by
citing the need to preserve public confidence in the judiciary.
[Fn. 21]
Public respect for the judicial branch is a paramount
concern. In fact, the ABA Model Code of Judicial Conduct was
created largely to address a crisis of confidence in the judiciary.
[Fn. 22] Both the Model Code and the Alaska Code of Judicial
Conduct state in their preambles:
Our legal system is based on the principle
that an independent, fair and competent judiciary will interpret
and apply the laws that govern us. The role of the judiciary is
central to American concepts of justice and the rule of law.
Intrinsic to all Sections of this Code are the precepts that
judges, individually and collectively, must respect and honor the
judicial office as a public trust and strive to enhance and
maintain confidence in our legal system.
Judge Johnstone argues that because "the Alaska
disciplinary scheme contemplates private reprimands and censures,
AS 22.30.070, it is clear that education of the public, or even of
the bench generally, is not a primary goal of judicial discipline
in Alaska." We disagree.
In addition to the exhortation contained in the preamble
to the Alaska Code of Judicial Conduct, quoted above, we have held
that a primary purpose of judicial discipline in Alaska is to
protect the public rather than to punish the judge. [Fn. 23] In In
re Inquiry Concerning a Judge [Judge II], we noted:
Alaska statutory law and the Code of Judicial
Conduct hold judges to the highest standard of personal and
official conduct. . . . [a] judge's unethical or seemingly
unethical behavior outside the courtroom detracts from the
efficient administration of justice and the integrity of the
judicial office, as it diminishes respect for the judiciary in the
eyes of the public. . . . [T]he purpose of judicial discipline is
to protect the public rather than punish the individual judge[.][[Fn. 24]]
The public may be "protected" by judicial discipline in
several ways. One way to protect the public is to remove the
offending judge from office. And as we observed in the foregoing
passage, another way to protect the public is to keep it informed
of judicial transgressions and their consequences, so that it knows
that its government actively investigates allegations of judicial
misconduct and takes appropriate action when these allegations are
proved. [Fn. 25] Judicial discipline thus protects the public by
fostering public confidence in the integrity of a self-policing
judicial system.
Despite the above-quoted language from Judge II
indicating that punishment is not "the purpose of judicial
discipline," [Fn. 26] we recognize, of course, that imposing
sanctions on an offending judge has punitive effects. But while
punishment plays an undeniable role in judicial discipline,
punishment itself is not a goal of the process. The punitive
aspect of judicial discipline serves multiple purposes: it
discourages further misconduct on the part of the disciplined judge
and the judiciary as a whole; it reinforces the general perception
that judicial ethics are important; and it promotes public
confidence by demonstrating that the judicial system takes
misconduct seriously. Punishment thus subserves the various goals
of judicial discipline, but is a means, not an end. We therefore
reject Judge Johnstone's contention that public education and
protection are not primary goals of judicial discipline in Alaska.
In summary, we are persuaded to apply the plain language
of Alaska's judicial discipline statutes, which authorizes the
commission to retain jurisdiction over a retired judge whose
alleged misconduct occurs during a period of active judicial
service and who remained an active judge when the commission began
its investigation, provided that the investigation began within six
years of the alleged misconduct. The legislative history of these
statutes, the weight of authority from other jurisdictions, and
important policy concerns all support this conclusion.
Because in this case the alleged misconduct occurred and
the investigation commenced during Judge Johnstone's active
judicial service, the commission's jurisdiction over the judge is
clear. [Fn. 27]
C. Judge Johnstone's Actions Created an Appearance of
Impropriety.
1. Standard of review
The Alaska Supreme Court has the final authority in
proceedings related to judicial conduct in Alaska. [Fn. 28] We
conduct a de novo review of both misconduct charges and the
recommended sanction. [Fn. 29] The fact of judicial misconduct
must be established by clear and convincing evidence. [Fn. 30]
Clear and convincing evidence is "that amount of evidence which
produces . . . a firm belief or conviction about the existence of
a fact to be proved." [Fn. 31] Although our final authority over
judicial conduct proceedings requires us to conduct an independent
evaluation of the evidence, [Fn. 32] we give some weight to the
commission's factual determinations involving witness credibility,
since the commission is able to hear witnesses testify and can
evaluate their demeanor. [Fn. 33]
2. The facts surrounding McVeigh's hire, perceived
cumulatively by an objectively reasonable person, create an
appearance of impropriety.
The commission concluded that the special counsel did not
establish by clear and convincing evidence that Judge Johnstone had
actually acted improperly. But the commission found that the
evidence established that Judge Johnstone's actions did create an
appearance of impropriety. Specifically, the commission found:
[Judge Johnstone] was not legally obligated to
use a merit selection process to fill the Coroner/Public
Administrator position. But [Judge Johnstone] invoked a process by
which the public was informed of the qualifications for the
position, applications were solicited, and a process for review and
evaluation of the applicants was followed. [Judge Johnstone] could
not then go outside that process and appoint an individual:
-who had not applied during the
application period;
-whose name was suggested by the
Chief Justice;
-whom respondent knew to be a
personal friend of the Chief Justice;
-purportedly, on the basis of
criteria (legal training and experience) that were not part of the
position's stated qualifications; and
-on terms (temporary basis) that
were significantly different from those advertised to the general
public,
without creating an unmistakable appearance
that something improper was afoot.
To evaluate whether Judge Johnstone's conduct created an
appearance of impropriety, the commission relied on the objectively
reasonable person test set forth in our cases. [Fn. 34] Under this
test, the commission must evaluate whether the judge failed "to use
reasonable care to prevent objectively reasonable persons from
believing an impropriety was afoot." [Fn. 35]
Judge Johnstone challenges the commission's application
of this test, arguing that the commission arbitrarily assumed that
the reasonably objective person would be aware of certain facts but
not others. Specifically, the judge argues that he did not
actually know, nor would the objectively reasonable person have
known, that "McVeigh 'was poorly rated by those charged with
selection of the best candidate.'" Likewise, Judge Johnstone
complains, the commission improperly assumed that an unwritten
court system custom or practice limited him in appointing a
candidate whose application had not been received within the merit
recruitment process.
Having reviewed the commission's decision, however, we
conclude that the commission applied the objectively reasonable
person test correctly to the evidence before it. [Fn. 36] Its
findings give Judge Johnstone the benefit of the doubt with respect
to all of the facts that he disputes. The specific facts that the
commission relied on to find an appearance of impropriety did not
include details concerning McVeigh's interview or the screening
committee's impressions of his qualifications. And the commission
expressly stated that its conclusion "is not predicated on a
determination that respondent's actions violated a court system
practice or policy." Essentially, the commission decided that,
even when all of the facts are viewed in Judge Johnstone's favor,
the totality of the circumstances surrounding his decision to hire
McVeigh create an "unmistakable appearance that something improper
was afoot."
Even assuming that the commission reached this decision
by improperly applying the objectively reasonable person standard,
the error would be inconsequential. For we apply the same standard
anew when we independently review the record and decide whether to
follow the commission's recommendation. As we explain below, our
own application of this standard leads us to agree with the
commission.
The circumstances of this case strongly suggest that
Judge Johnstone settled on McVeigh as his candidate of choice early
on -- contemporaneously with or shortly after Chief Justice Moore
suggested McVeigh as a candidate for the coroner's position. Judge
Johnstone's first contact with McVeigh left the impression that the
job was his for the taking: McVeigh testified at the commission
hearing that he inferred from Judge Johnstone's initial telephone
contact around December 15 that he had a good chance of getting the
job. Yet at that time Judge Johnstone knew little about McVeigh's
specific qualifications, and McVeigh had not even applied for the
position.
On December 19 the screening committee interviewed
McVeigh at Judge Johnstone's insistence, even though the
application deadline had already passed, all qualified applicants
had already been interviewed and ranked, and McVeigh had only
submitted an informal application -- a letter and a resume rather
than the standard court system application form. In the following
days -- despite being told by Szal that the screening committee had
ranked McVeigh only sixth out of ten interviewed applicants, and
without inquiring about the reasons for this low ranking -- Judge
Johnstone announced that he intended to hire McVeigh, directing
Szal to notify the original applicants that the original merit
process would be "closed out" without selection of an applicant.
Although Judge Johnstone insists that he decided to hire
McVeigh based on his legal training and experience, there were
other candidates in the initial applicant pool who had this
training. Moreover, the rejection letters sent to the interviewed
applicants on December 20 represented that a candidate would be
chosen from a "subsequent selection process." Yet there would be
no subsequent process: by the time Judge Johnstone sent the letter
he had already decided to hire McVeigh. Thereafter, to accommodate
McVeigh's desire to retain his current retirement benefits, the
judge -- acting against the deputy court administrative director's
explicit advice -- took the unusual step of hiring McVeigh as a
temporary appointee to the traditionally permanent coroner's
position.
It is undisputed that because the coroner position was
partially exempt, Judge Johnstone initially had no duty to follow
a merit selection process. But once a merit process was underway,
it should have been obvious to Judge Johnstone that he could not
select an individual from outside that process without upsetting
the reasonable expectations of the many individuals who had relied
on the original employment bulletin and had followed established
procedures. Moreover, Judge Johnstone should reasonably have known
that special precautions would be required to avoid the appearance
of impropriety because McVeigh was a close friend of Chief Justice
Moore and had been recommended by the chief justice on a last-
minute basis. Even if the thought did not initially occur to Judge
Johnstone, Stephanie Cole's strongly worded advice expressly warned
him of the danger of perceived impropriety.
The question presented is not whether Judge Johnstone's
individual actions viewed in isolation would give rise to an
appearance of impropriety. Rather, the cumulative effect of these
actions is at issue. [Fn. 37] Our independent review of the record
convinces us that, in their totality, the events of this case give
rise to an overwhelming appearance of impropriety; they would leave
an objectively reasonable person with the indelible impression that
McVeigh's hiring involved favoritism.
By a vote of three to five, the commission declined to
find clear and convincing evidence of actual impropriety. Giving
appropriate deference to the commission's superior abilities in
determining the credibility of the witnesses who appeared before
it, we do not question the actual propriety of Judge Johnstone's
actions. But the commission unanimously found clear and convincing
evidence that Judge Johnstone's conduct created an appearance of
favoritism. Judge Johnstone's explanation for his decision to hire
McVeigh -- that he thought McVeigh was the most qualified applicant
-- may shed light on his after-the-fact, subjective belief. But
this explanation does nothing to eliminate the appearance arising
from the objective record: that Judge Johnstone chose McVeigh over
other candidates for reasons unrelated to McVeigh's qualifications.
This is the essence of an appearance of favoritism and,
consequently, the appearance of impropriety. [Fn. 38]
We acknowledge that the appearance of impropriety
standard can raise special problems in the arena of judicial
discipline. In some situations, a judge may be duty-bound to take
actions or make rulings that will predictably stir public
controversy. In such cases, duty certainly must prevail over
appearance: when duty requires a judge to take controversial
action, it would be logically untenable and morally repugnant to
suggest that the judge should be sanctioned merely because the
action raises a public clamor.
But our case law applying the appearance of impropriety
standard resolves this dilemma. As the commission observed,
quoting from this court's decision in Inquiry Concerning a Judge
[Judge III]: "A judge has a duty under Canon 2 to 'use reasonable
care to prevent objectively reasonable persons from believing an
impropriety [is] afoot.'" [Fn. 39] And in concluding that Judge
Johnstone's conduct created an impermissible appearance of
impropriety, the commission went out of its way to find that "there
were alternatives available that would have eliminated or
substantially reduced the appearance problem here."
In recognizing that an appearance of impropriety is
sanctionable only when the appearance could have been avoided by
reasonable care, and in expressly finding that Judge Johnstone
could readily have avoided the appearance of impropriety that he
created in this case, the commission correctly applied Judge III.
D. Sanction
In reviewing a recommendation for judicial sanctions, we
follow by analogy the ABA Standards for Imposing Lawyer Sanctions.
[Fn. 40] The analysis requires us to consider four primary
elements: the ethical duty violated, the extent of actual or
potential injury, the judge's mental state, and the presence of
aggravating or mitigating factors. [Fn. 41]
Here, the appearance of impropriety arising from Judge
Johnstone's conduct caused harm that is both actual and
significant. An appearance of favoritism will always impair the
general public's confidence in the judiciary. But here the
appearance also caused direct and immediate damage to the large
group of applicants who invested considerable time and effort in
applying for the coroner's position by following the announced
recruitment process and who had every right to expect fair
treatment in return for their efforts.
With respect to intent, Judge Johnstone's conduct was
negligent at best. The surrounding circumstances should reasonably
have alerted the judge that his actions would be perceived as
improper. And at worst, given that the judge was repeatedly
advised of the undesirable appearance that his actions would
create, his mental state could be classified as recklessness or
actual knowledge. [Fn. 42]
Even though we recognize -- and indeed emphasize -- that
we have found no actual impropriety on the part of Judge Johnstone,
we conclude that a public reprimand is appropriate in light of the
substantial harm caused by the appearance of impropriety that he
created and the compelling need to foster public confidence in our
judicial system's ability to protect against favoritism.
III. CONCLUSION
We AFFIRM the commission's jurisdictional ruling and its
finding that Judge Johnstone created an appearance of impropriety
in his appointment of Richard McVeigh. We also accept its
recommendation for discipline. Accordingly, Judge Johnstone will
be issued a public reprimand.
FOOTNOTES
Footnote *:
Sitting by assignment made pursuant to article IV, section 16
of the Alaska Constitution.
Footnote 1:
See AS 22.30.011(c)(2).
Footnote 2:
See Alaska Const. art. IV, sec. 10; see also AS 22.30.010.
Footnote 3:
The Alaska Code of Judicial Conduct was amended in 1998; the
provisions applicable to these proceedings are the 1997 versions
quoted here.
Footnote 4:
See In re Inquiry Concerning a Judge, 762 P.2d 1292, 1293
(Alaska 1988).
Footnote 5:
Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska
1998) (quoting Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 633
n.12 (Alaska 1993)).
Footnote 6:
Id. (quoting City of Dillingham v. CH2M Hill Northwest, Inc.,
873 P.2d 1271, 1276 (Alaska 1994)).
Footnote 7:
See id.
Footnote 8:
Id. at 1019.
Footnote 9:
AS 22.30.080(2).
Footnote 10:
See id.
Footnote 11:
See 1989 House Journal 869 (House Bill 268).
Footnote 12:
See Minutes of House Judiciary Comm. (Mar. 5, 1990).
Footnote 13:
See Minutes of House Judiciary Comm. (Mar. 2, 1990). The
version of H.B. 268 excluding "retired judge[s]" was signed into
law in September 1990. See Ch. 135, SLA 1990; AS 22.30.080(2).
Footnote 14:
See Minutes of House Judiciary Comm. (Mar. 5, 1990).
Footnote 15:
See id.
Footnote 16:
Alaska's Code of Judicial Conduct is based on the ABA's Model
Code of Judicial Conduct, with some modifications. See Preamble,
Alaska Code of Judicial Conduct.
Footnote 17:
See ABA Model Rules for Judicial Disciplinary Enforcement,
Rule 2(b)(2)(1994).
Footnote 18:
See id., Commentary at 14.
Footnote 19:
See, e.g., Cal. Const. art. VI, sec. 18(d); M.G.L.A. 211C
sec. 2(2);
N.Y. Jud. Law sec. 47 (McKinney 1983); 42 Pa.C.S.A. sec. 102; R.I.
Sup.
Ct. Rules, art. VI & Commentary; In re Weeks, 658 P.2d 174, 176
(Ariz. 1983); Kennick v. Commission on Judicial Performance, 787
P.2d 591, 596-97 (Cal. 1990); In re Inquiry Relating to Dist. Judge
Harold L. Hammond, 585 P.2d 1066, 1067 (Kan. 1978); In re Cox, 658
A.2d 1056, 1057-58 (Me. 1995); In re Probert, 308 N.W.2d 773, 775-
76 (Mich. 1981); In re Yaccarino, 502 A.2d 3, 30-31 (N.J. 1985);
In re Backal, 637 N.Y.S.2d 325, 327-28 (1995); In re Sherrill, 403
S.E.2d 255 (N.C. 1991); In re Judicial Inquiry and Review Bd. v.
Snyder, 523 A.2d 294, 298 (Pa. 1987), cert. denied, 484 U.S. 829
(1987); In re Fuyat, 578 A.2d 1387, 1388-89 (R.I. 1990); In re
Chiles, 490 S.E.2d 259, 260 (S.C. 1997); In re Sheppard, 815 S.W.2d
917, 920 (Tex. Spec. Ct. Rev. 1991); In re Steady, 641 A.2d 117,
118 (Vt. 1994); Judicial Hearing Bd. v. Romanello, 336 S.E.2d 540,
541 (W. Va. 1985); In re Complaint Against Sterlinske, 365 N.W.2d
876 (Wisc. 1985).
On the other hand, the federal government and
approximately five states allow a judge the option of voluntary
resignation to avoid investing resources in disciplinary
proceedings and to avoid a public spectacle. See In re Dempsey,
498 N.E.2d 240, 240 (Ill. 1986); In re Moroney, 914 P.2d 570, 574
(Kan. 1996); In re Naccari, 657 So. 2d 91, 91 (La. 1995); In re
DeLucia, 387 A.2d 362, 365 (N.J. 1978); In re Fienberg, 430 A.2d
1282, 1283 (Vt. 1981); see also Emily Field Van Tassel,
Resignations and Removals: A History of Federal Judicial Service--
And Disservice--1789-1992, 142 U. Pa. L. Rev. 333, 348, 364 (1993).
Footnote 20:
See, e.g., Snyder, 523 A.2d at 298; In re Brown, 512 S.E.2d
114 (S.C. 1999).
Footnote 21:
See, e.g., In re Cox, 658 A.2d at 1057; In re McKenney, 424
N.E.2d 194, 199 (Mass. 1981); In re Yaccarino, 502 A.2d at 30; In
re Fuyat, 578 A.2d at 1389.
Some other reasons cited by these courts include the
possibility that the judge might return to the bench in a pro
tempore capacity, providing guidance to other judges, and ensuring
that the transgression is public knowledge so that persons wishing
to employ the services of a retired judge (as a mediator, for
example) would be aware of it. See, e.g., In re Weeks, 658 P.2d at
176; In re Steady, 641 A.2d at 118; In re Complaint Against
Sterlinske, 365 N.W.2d at 876.
Footnote 22:
See Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use
But is it Ethical?, 18 Cardozo L. Rev. 1253, 1282, 1283 (1996).
Footnote 23:
See In re Inquiry Concerning a Judge [Judge II], 788 P.2d 716,
722 (Alaska 1990).
Footnote 24:
See id. (citations omitted) (emphasis added); see also In re
Robson, 500 P.2d 657, 661 (Alaska 1972), disapproved on other
grounds, Judge II, 788 P.2d 716.
Footnote 25:
See, e.g., In re Probert, 308 N.W.2d 773, 776 (Mich. 1981)
(citation omitted); see also In re Kneifl, 351 N.W.2d 693, 700
(Neb. 1984); In re Eastburn, 914 P.2d 1028, 1035 (N.M. 1996).
Footnote 26:
Judge II, 788 P.2d at 722.
Footnote 27:
Our conclusion that jurisdiction is clearly established and
retained when, as here, a judge remains in active service at the
inception of the commission's investigation makes it unnecessary
for us to decide the broader issue of whether the commission could
assert jurisdiction when a judge retires before the commission
receives a complaint or opens an investigation.
Footnote 28:
See Inquiry Concerning a Judge [Judge III], 822 P.2d 1333,
1339 (Alaska 1991).
Footnote 29:
See id. at 1339, 1344.
Footnote 30:
See In re Hanson, 532 P.2d 303, 307-08 (Alaska 1975).
Footnote 31:
Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994).
Footnote 32:
See Judge III, 822 P.2d at 1339.
Footnote 33:
See Kennick v. Commission on Judicial Performance, 787 P.2d
591, 598 (Cal. 1990).
Footnote 34:
See Judge III, 822 P.2d at 1340; Judge II, 788 P.2d 716, 723
(Alaska 1990).
Footnote 35:
Judge III, 822 P.2d at 1340 (quoting Judge II, 788 P.2d at
723).
Footnote 36:
This court has at various times described the objectively
reasonable person test in slightly different ways. Compare Judge
III, 822 P.2d at 1340-43 (describing and applying the objectively
reasonable person test) with Judge III, 822 P.2d at 1349-53 (Schulz
and Tunley, J.J., concurring in part and dissenting in part)
(criticizing formulation and application of the objectively
reasonable person test). We decline Judge Johnstone's invitation
to decide which specific form of the objectively reasonable person
test governs his case. In our view the differences in these
formulations are more semantic than real and create no substantive
ambiguity.
Footnote 37:
See Judge III, 822 P.2d at 1347 (Hodges, J., concurring and
dissenting) ("In isolation, the [conduct complained of] is not
improper, but when viewed in context -- which you must do -- it
is!").
Footnote 38:
In light of this conclusion, we see no need to attempt a
comprehensive definition of "appearance of impropriety." At a
minimum, an improper appearance could be found where a thorough
investigation of all available information would leave an
intelligent and reasonably informed member of the public with an
undispelled suspicion of actual impropriety. But the notion of
undispelled suspicion is not definitive. Because conduct that
necessitates a full-scale inquiry to allay public suspicion itself
suggests impropriety, an impermissible appearance also might be
found -- regardless of whether an investigation eventually
dispelled suspicion of actual misconduct -- if readily avoidable
conduct foreseeably caused reasonably intelligent and informed
members of the public to demand a full inquiry into suspected
impropriety. Ultimately, what qualifies as an appearance of
impropriety may defy precise definition. But this case requires no
such precision, for our acceptance of the commission's finding of
an "unmistakable appearance that something improper was afoot"
necessarily establishes that Judge Johnstone's conduct falls far
closer to the core of the prohibition than to its borderline.
Footnote 39:
Judge III, 822 P.2d at 1340 (emphasis added).
Footnote 40:
See Judge II, 788 P.2d at 723.
Footnote 41:
See id. at 724; see also Disciplinary Matter Involving
Buckalew, 731 P.2d 48, 51-52 (Alaska 1986) (quoting ABA Standards,
Theoretical Framework, ABA/BNA at 01:805-06).
Footnote 42:
Neither party has argued that any aggravating or mitigating
factors would apply to this case.
