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In Re Curda (6/21/2002) sp-5587
In Re Curda (6/21/2002) sp-5587
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the matter of the proceedings )
pursuant to AS 22.30.011(b) in ) Supreme Court No. S-
9907
relation to: )
) Alaska Commission on
DALE O. CURDA, ) Judicial Conduct No. 98-013
)
Judge of the Superior Court, )
Fourth Judicial District, at ) O P I N I O N
Bethel, Alaska, )
)
Petitioner. ) [No. 5587 - June 21,
2002]
)
Petition from the Alaska Commission on
Judicial Conduct, Jeffrey M. Feldman,
Chairman.
Appearances: Jonathon A. Katcher, Pope &
Katcher, Anchorage, Brennan P. Cain,
Middleton & Timme, Anchorage, for Petitioner.
Matthew D. Jamin, Jamin, Ebell, Schmitt &
Mason, Kodiak, Special Counsel to the Alaska
Judicial Conduct Commission.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I.W., subpoenaed to testify in Wilfred Raphaels
criminal trial in Bethel, arrived in court intoxicated on the day
she was scheduled to give testimony. In an ex parte meeting,
Assistant District Attorney Joe Wrona expressed concern to
Superior Court Judge Dale Curda that I.W. would either fail to
appear a second time to testify or would not be able to stay
sober. After holding a brief hearing with Wrona and I.W., Judge
Curda imprisoned I.W. for contempt. The Judicial Conduct
Commission has recommended to this court that Judge Curda be
reprimanded for ethical misconduct based on legal errors
committed in that contempt proceeding.
Judge Curda committed legal errors that violated some
of I.W.s and Raphaels rights. But because Judge Curdas legal
errors were neither willful nor part of a pattern of misconduct,
we conclude that they did not constitute ethical misconduct and
therefore that he should not receive any sanction.
I. FACTS AND PROCEEDINGS
I.W. was subpoenaed and scheduled to testify in Bethel
on Tuesday, September 5, 1995, at the trial of Wilfred Raphael
her former domestic companion who had been indicted for a series
of serious attacks upon her. Assistant District Attorney Joe
Wrona arranged for I.W. to be flown in from Mountain Village on
Monday and to stay in Pacifica House, a placement that did not
allow alcohol on the premises. I.W.s two children accompanied
her to Bethel. Wrona instructed I.W. to remain sober, telling
her that she would get in trouble if she did not.
On Tuesday morning, Raphaels lawyer, James Gould,
notified the court by telephone from Anchorage that he was too
sick to travel to Bethel that day. Judge Curda, who was
presiding over Raphaels trial, continued the trial until the next
day.
Wrona then learned that I.W. had been evicted from
Pacifica House for drinking and partying in her room. Wronas
supervisor instructed him to tell Judge Curda about his witness
problem. When Wrona arrived at the court, he encountered I.W.,
still intoxicated, pulling up in a taxi with her children. After
talking briefly with I.W., Wrona went into the courtroom to meet
with Judge Curda; I.W. remained behind in the foyer.
After Judge Curda directed that the proceedings be put
on the record, Wrona explained his problem to Judge Curda,
stating that he felt he could not control I.W. Wrona presented
Judge Curda with three potential options: (1) confining I.W. for
contempt; (2) sending I.W. home and bringing her back when trial
resumed; or (3) keeping I.W. in Bethel if the court could shape
some other sort of remedy.
As Wrona had told him that I.W. was a recalcitrant
witness and that she had threatened not to testify if her
testimony was not taken that day, Judge Curda decided that they
could not send I.W. home. Judge Curda also found that I.W. could
not safely remain in Bethel outside of custody, because her
children lacked an appropriate placement there. He thus
concluded that I.W. would likely have to be confined, and her
children taken into custody by the Division of Family and Youth
Services (DFYS). Although he stated Ive never found that . . .
me talking to someone, especially when theyre under the influence
is going to make any difference whatsoever, Judge Curda called
I.W. into the courtroom to question her.
Judge Curda asked I.W. if she had been subpoenaed to
testify; if she had been evicted from Pacifica House; if she had
been drinking; and if she was currently under the influence.
I.W. responded that she was under subpoena; that she had left
not been evicted from Pacifica House; that she had perhaps been
drinking; but that she was not currently intoxicated. I.W. then
admitted, however, that she had been intoxicated earlier.
Meanwhile, Judge Curda concluded that I.W. was too intoxicated to
drive or to testify in a criminal trial. He asked I.W. if it was
too hard for her to stay sober while in Bethel and what the court
could do to help her remain sober. I.W. responded that she could
stay sober. Judge Curda responded: Its not . . . just about you
being sober for this case, I mean, you need to be sober for your
kids to keep your kids safe whatever happens with the case and
also to keep yourself safe. I.W. in turn stated that she had a
room at the Kusko Inn; however, Judge Curda responded that that
would not work as it was just not a good place. When I.W. then
proposed staying at the Womens Shelter, Wrona reminded her that
she would have to remain sober there and that if theres one
little problem, youre going to get thrown in jail and your kids
will get taken away from you. When Wrona continued, Were here
today trying to think of ways to not do that to you, I.W.
responded that Wrona had lied to her by telling her that they
would be able to get her testimony in the trial over with that
day.
Following a confused series of exchanges, Judge Curda
told I.W. that as she hadnt been able to remain sober in town,
even with her children accompanying her, he was holding her in
contempt and remanding her. This, he said, was the only viable
solution for securing her protection, her childrens protection,
and her testimony. At the conclusion of these proceedings, Judge
Curda stated that when I.W. gave her testimony, then well revisit
the case and presumably let her, shell be able to be released.
Judge Curda then arranged for a social worker from DFYS to be
called to take custody of the children.
Because of Raphaels defense attorneys illness, the
trial ultimately did not resume until Thursday. I.W. testified
on Friday morning, but because Wrona indicated that he might need
her as a rebuttal witness, she was not released until Friday
afternoon.
Raphael was ultimately convicted, and his conviction
was upheld by the court of appeals despite a concurrence by Judge
Mannheimer that was strongly critical of Judge Curdas treatment
of I.W.1 This court, in a divided opinion, reversed the judgment
of the court of appeals, concluding that Raphaels right to be
present at every stage of the trial and his due process rights
had been violated.2
The Judicial Conduct Commission subsequently
investigated Judge Curdas actions and held a formal disciplinary
hearing. Five members of the Commission concluded that Judge
Curda had violated provisions of the Judicial Code during the
I.W. contempt hearing; three members concluded that he had not.
Only three of the Commissioners, however, felt that a public
reprimand was appropriate. Two felt a private reprimand was
appropriate, and three felt that if Judge Curdas actions were
found to violate the Code, the appropriate level of discipline
would be, at most, a private reprimand. The Commission filed a
recommendation for a private reprimand before this court, a
recommendation which Judge Curda opposes in his petition.
II. DISCUSSION
A. Standard of Review
Both Judge Curda and the Special Counsel for the
Commission agree that this court should conduct a de novo review
of the alleged judicial misconduct and the recommended sanction.3
In doing so, we recognize that judicial misconduct must be
established by clear and convincing evidence.4
B. Judge Curda Committed Legal Errors in the Contempt
Proceedings at Issue.
Judge Curda argues that he should not be disciplined
for this single incident in which he made unintentional legal
errors. Special Counsel, by contrast, contends that Judge Curdas
legal errors were sanctionable because they denied I.W. and
Raphael fundamental procedural rights. Such errors, argues
Special Counsel, constituted a violation of Judge Curdas ethical
duties even if they were unintentional.5
We conclude that Judge Curda did violate I.W.s right to
notice and a meaningful hearing, as well as Raphaels due process
rights and right to be present at every stage of his trial.
The Alaska rules governing contempt proceedings require
that I.W. be given a meaningful hearing regarding her alleged
contempt and what was to be done about it. Unstated, but
necessary, procedures governing the detention of a material
witness also require a meaningful hearing.6 Judge Curda gave
I.W. a hearing of sorts before holding her in contempt and
ordering her remanded; however, Judge Curda gave I.W. no advance
notice that she stood accused of contempt, and his questioning of
I.W. in her intoxicated state did not allow her a meaningful
opportunity to be heard. During his questioning, Judge Curda
determined that I.W. was too intoxicated to testify. If she was
too intoxicated to testify, it follows that she was also too
intoxicated to participate meaningfully in a hearing concerning
the sanction for her contempt. While this does not mean that
Judge Curda had to immediately release I.W., it does mean that he
should have given her notice of the purpose of the proceeding and
brought her back before the court as soon as she was sober, so
that, at least, she could have been heard on the question of the
continuing need for her confinement.
As to Raphael, this court has previously held that the
ex parte hearing in this case violated Raphaels right to be
present at every stage of his trial a right guaranteed by
Criminal Rule 38(a).7 In addition, we held that it was a
violation of Raphaels due process rights for Judge Curda to allow
the impression that I.W.s freedom and continued custody of her
children was contingent upon the nature of her testimony.8 We
continue to adhere to these views.
C. Judge Curdas Legal Errors Were Not Ethical Violations.
In order to help us determine the relationship between
legal error and ethical violation, we look to the decisions of
other state courts. The California Supreme Court has decided, in
the interests of safeguarding the independence of the judiciary,
that mere legal error is insufficient to support a finding of
ethical misconduct.9 However, that court went on to hold that
legal error may constitute ethical misconduct when it clearly and
convincingly reflects bad faith, bias, abuse of authority,
disregard for fundamental rights, intentional disregard of the
law, or any purpose other than the faithful discharge of judicial
duty.10 Commentators have expressed similar views, concluding
that legal error may amount to judicial misconduct if it is
repeated, motivated by bad faith, accompanied by intemperate or
abusive conduct, or irremediable by appeal.11 Our review of case
law from other jurisdictions indicates that courts most often
find judicial misconduct where judges have repeatedly or
willfully denied individuals their rights. Indeed, commentators
have stated that most cases of judicial misconduct of this type
involve both repeated and knowing violations of rights, thus
evidencing a pattern of misconduct.12
In Matter of Scott, the Massachusetts Supreme Court
noted the difficulty in distinguishing between mere errors . . .
on the one side, which would not call for discipline, and, on the
other side, what we have called patterns of disregard or
indifference, which do warrant discipline.13 The court further
stated that it was willing to consider disciplining a judge where
it [had been] established by credible evidence that [the] judge,
over a protracted period of time, [had] followed a course of
judicial conduct which [was] in utter disregard of the law and of
established rules of practice in continued violation of orders
pertaining thereto . . . .14 The court there decided to
discipline Judge Scott for her pattern of disregard of, or
indifference to, fact or law, largely in criminal and juvenile
cases,15 but in doing so warned that [t]o invoke the disciplinary
power of this court against a judge as a substitute for appellate
review would establish a practice dangerous to the independence
of the judiciary and equally dangerous to the publics
constitutional right to an independent judiciary.16
Several other cases support distinguishing between mere
legal error and patterns of repeated error. In Matter of Reeves,
the New York Court of Appeals upheld the decision of the State
Commission on Judicial Conduct to discipline Judge Reeves for his
repeated pattern of failing to advise litigants of their
constitutional and statutory rights.17 That court noted that the
purpose of judicial sanction was not to punish the judge, but
instead to safeguard the bench.18 The court held that the errors
[committed by Judge Reeves] were fundamental and the pattern of
repeating them, coupled with an unwillingness to recognize their
impropriety, indicate[d] that [Judge Reeves] pose[d] a threat to
the proper administration of justice.19 Similarly, in In re
Inquiry Concerning Perry, the Florida Supreme Court publicly
reprimanded a judge for repetitively abusing his contempt power.20
There, Judge Perry had intemperately incarcerated six defendants
for indirect contempt without following appropriate procedures
for such proceedings, and had set unreasonably high bail for two
defendants to punish their refusal to enter immediate guilty
pleas.21
The Supreme Court of Maine used a slightly different
standard to determine judicial misconduct in Matter of Benoit.22
While consistent with the above cases in its recognition that
[e]very trial judge will from time to time commit legal errors,
and that judicial discipline would be in order in almost none of
those cases,23 the Maine Supreme Court held that judicial conduct
constitutes a violation of [judicial canons] if a reasonably
prudent and competent judge would consider that conduct obviously
and seriously wrong in all the circumstances.24 In that case the
court censured and suspended Judge Benoit for a pattern of
obviously and seriously wrong practices.25 These practices
included unlawfully imposing bail on an indigent defendant, where
such imposition resulted in the defendants imprisonment for over
a month for a civil traffic infraction; unlawfully imprisoning a
second defendant for failing to pay a civil fine; and detaining a
juvenile defendant for six weeks without taking any evidence and
without affording the juvenile his right to counsel.26
Judge Curdas legal errors here were not comparable to
those in the above cases. While the judges in the above matters
were disciplined for patterns of repeated misconduct, Judge Curda
is charged with legal errors arising out of a single instance.
In addition, Judge Curda showed none of the willfulness present
in other cases in which judges were found to have committed
ethical violations.
In one case of willful misconduct Matter of Yengo the
New Jersey Supreme Court removed Judge Yengo for his repeated
failure to advise defendants of their constitutional rights, for
imprisoning defendants either without a proper hearing or based
upon inadmissible evidence, for using bail as an arbitrary weapon
to harass defendants, and for disregarding and mocking
controlling legal precedent with which he disagreed.27 Indeed,
the court found that Judge Yengo seemed to relish his judicial
power to imprison others than defendants,28 and that he seem[ed]
unable to understand the relationship between justice and the
defendant.29 Similarly, in Matter of Ross, the Supreme Court of
Maine suspended Judge Ross for willfully disregarding the law in
intemperately sentencing a defendant to jail for a civil
violation and for imprisoning another party without conducting a
hearing.30
In contrast to the examples above, Judge Curdas
commission of legal errors was not willful. Indeed, of the cases
reviewed by this court, the one that most closely resembles Judge
Curdas is Matter of Thomson,31 decided by the New Jersey Supreme
Court. In Matter of Thomson, a municipal court judge jailed a
defendant on charges of shoplifting and possession of stolen
property without individually advising the defendant of his right
to counsel,32 placing either the defendant or the testifying
police officer under oath, or explaining to the defendant the
reasons for his sentence as required by New Jersey law.33 As
explanation for his legal errors, the judge stated that he had
never faced such a situation before. The judge claimed that the
defendant had been virtually uncontrollable, blurting out the
charge against him, admitting his guilt, and then relaying the
details of the incident. The judge explained that he believed
the defendant would not return to court when instructed to do so,
and that he would represent a danger to himself and others if not
taken into custody.34 Within hours of sentencing the defendant,
the judge took steps to alert the probation department to the
defendants apparent problems; however, by that time the defendant
had already hanged himself.35
The New Jersey Supreme Court concluded that the judge
exercised poor judicial judgment and committed a serious
transgression. The court emphasized that [d]espite the best of
motives a judge cannot try to decide what is best for a
defendant, as distinct from what he knows is constitutionally
required. To do so is to depart from his or her role as a judge.36
The court went on, however, to note that the judges incorrect
rulings had been appealable, and that incorrect rulings even
with respect to a defendants constitutional rights normally
should not subject a judge to charges of judicial misconduct.37
The court also stated that [t]here were, and still are, no
guidelines in existence for the type of situation [involving an
apparently unstable defendant] in which [the judge] found
himself, and unanimously concluded in light of the unique
circumstances present in this case, the difficult position in
which [the judge] found himself, the time pressure under which
[the judge] was required to act, and [the fact] that this matter
represent[ed] a single unfortunate instance in [the judges] long
and otherwise unblemished professional record that the judge had
not committed ethical misconduct.38
Here, with regard to his treatment of I.W., Judge Curda
like Judge Thomson committed a single deprivation of an
individuals constitutional rights, motivated by good faith
concerns for orderly trial proceedings and the affected
individuals well-being, in the face of a unique situation39 for
which there was no available legal template.40 As Judge Curda
argued, this court is aware of no contested American case
approv[ing] the disciplining of a judge for a single incident of
good faith legal error when the judge acted without animus.
As the cases discussed above recognize, all judges make
legal errors. Sometimes this is because the applicable legal
principles are unclear. Other times the principles are clear,
but whether they apply to a particular situation may not be.
Whether a judge has made a legal error is frequently a question
on which disinterested, legally trained people can reasonably
disagree. And whether legal error has been committed is always a
question that is determined after the fact, free from the
exigencies present when the particular decision in question was
made.
Further, judges must be able to rule in accordance with
the law which they believe applies to the case before them, free
from extraneous considerations of punishment or reward. This is
the central value of judicial independence. That value is
threatened when a judge confronted with a choice of how to rule
and judges are confronted with scores of such choices every day
must ask not which is the best choice under the law as I
understand it, but which is the choice least likely to result in
judicial discipline?
For these reasons, we agree with those authorities
discussed above that hold that legal error that is neither
willful nor part of a repeated pattern of misconduct is not an
appropriate subject for discipline.
In light of this standard we conclude that Judge Curdas
treatment of I.W. is not properly subject to ethical sanction
because the errors he made were neither repeated nor willful.
The same conclusion applies to Judge Curdas denial of Raphaels
procedural rights. We note that prior to this courts decision in
Raphael II, the court of appeals unanimously concluded that the
ex parte proceedings did not violate Raphaels right to be
present.41 The fact that reasonable judges could and did differ
over whether the ex parte proceedings violated Raphaels rights
underscores the difficulty and uncertainty of the situation with
which Judge Curda was presented.
III. CONCLUSION
Because Judge Curdas legal errors as to I.W. and
Raphael were not willful nor part of a pattern of judicial
misconduct, we conclude that they were not ethical violations of
the Code of Judicial Conduct. Therefore, Judge Curda should not
be reprimanded.
_______________________________
1 Raphael v. State (Raphael I), 1998 WL 191159 (Alaska
App. 1998), reversed by Raphael v. State (Raphael II), 994 P.2d
1004 (Alaska 2000).
2 Raphael v. State (Raphael II), 994 P.2d 1004 (Alaska
2000).
3 In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000); In re
Inquiry Concerning A Judge (Judge I), 762 P.2d 1292, 1296 n.4
(Alaska 1988).
4 Johnstone, 2 P.3d at 1234; In re Hanson, 532 P.2d 303,
308 (Alaska 1975).
5 Special Counsels case is based primarily on Canon
3(A)(4) of the Code of Judicial Conduct, which bars ex parte
proceedings except as authorized by law, and requires a judge to
give each person legally interested in a proceeding a full right
to be heard according to law. In addition, Judge Curda is
charged with violating Canons 3(A)(1), 2(A), and 1. Canon
3(A)(1) requires a judge to be faithful to the law and maintain
professional competence in it [as well as to be] . . . unswayed
by partisan interests, public clamor, or fear of criticism; Canon
2(A) requires a judge to respect and comply with the law and . .
. conduct himself at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary;
and Canon 1 requires a judge to uphold the integrity and
independence of the judiciary.
6 The proceedings that resulted in I.W.s incarceration
could be characterized as direct contempt proceedings governed by
Civil Rule 90(a), indirect contempt proceedings governed by Civil
Rule 90(b), or material witness detention proceedings effecting
the express and implied principles and requirements of AS
12.30.050. The proceeding that is least protective of an
individuals rights is that for direct contempt. See Raphael II,
994 P.2d at 1013, n.39. But even in direct contempt proceedings
a contemnor is entitled to a meaningful opportunity to be heard
concerning the need for the sanction. In the other two cases
indirect contempt and material witness detention the individual
must be given notice of the character of the proceedings and the
specific reasons why they are being brought, in addition to a
meaningful opportunity to be heard.
7 Raphael II, 994 P.2d at 1012-13.
8 Id. at 1010.
9 Oberholzer v. Commn on Judicial Performance, 975 P.2d
663, 680 (Cal. 1999).
10 Id.
11 Jeffrey M. Shaman et al., Judicial Conduct and Ethics
(3d ed. 2000) 2.02, at 37-38.
12 Id. at 2.10, at 55.
13 386 N.E.2d 218, 220 (Mass. 1979).
14 Id. at 220-21.
15 Id. at 220.
16 Id.
17 469 N.E.2d 1321, 1323 (N.Y. 1984).
18 Id.
19 Id.
20 641 So. 2d 366 (Fla. 1994).
21 Id. at 367-68.
22 487 A.2d 1158 (Me. 1985).
23 Id. at 1162.
24 Id. at 1163.
25 Id. at 1164.
26 Id. at 1164-69.
27 371 A.2d 41, 49-51 (N.J. 1977).
28 Id. at 53.
29 Id. at 56.
30 428 A.2d 858, 862-63 (Me. 1981).
31 494 A.2d 1022 (N.J. 1985).
32 The judge read out a general statement of defendants
rights at the beginning of court, as was apparently general
practice in many municipal courts; perhaps because the judges
regular court clerk was not present, the judge was unaware that
the defendant was not present when the statement of rights was
read. Id. at 1023-24, 1025 n.2, 1026 n.3.
33 Id. at 1025-26.
34 Id. at 1026-27.
35 Id. at 1025.
36 Id. at 1027.
37 Id.
38 Id. at 1027-28.
39 Judge Curda testified that I.W. was the first person he
had ever incarcerated for contempt.
40 Judge Richard Savell, one of Alaskas most experienced
superior court judges, testified that the law involving the
treatment of intoxicated witnesses was murky. Our research
confirms this, for there are no Alaska cases on the subject,
there is little authority elsewhere, and that which we have found
is not consistent. Commonwealth v. Clark, 13 Pa. Commw. 439 (Pa.
Commw. Ct. 1893) (quoted in Commonwealth ex rel. Falwell v.
DiGiacinto, 471 A.2d 533 (Pa. Super. Ct. 1984)), indicates that a
drunken witness is guilty of contempt. But in Cameron v. State,
650 A.2d 1376 (Md. 1994), the court stated: We have found no
cases, nor are any cited by the parties, in which the court has
found a defendant, who is admittedly an alcoholic, in contempt of
court merely for appearing in court in an intoxicated condition.
Id. at 1380. See also Joan Teshima, Intoxication of Witness or
Attorney as Contempt of Court, 46 A.L.R. 4th 238 (1986), for
discussion of the various holdings that exist on this issue.
41 See Raphael I, 1998 WL 191159 at *5.
