*1 604
рrovide a sufficient
finding
(1978)
basis for
aff'd,
P.2d 1149
sentence
124 Ariz.
same aggravating
526,
denied,
16,
circumstance. The
cert.
606 P.2d
891,
449 U.S.
aggravating
paragraph
252,
circumstance in
5
101
(1980);
S.Ct.
cert. 882, 180, 459 U.S. 103 S.Ct. (1982) (homicides
L.Ed.2d 147 were commit
ted to secure a vehicle in which assailants
could continue
flight.
their
As to the mitigating factors the court In the Matter of a found that Member of the defendant had obtained a State Bar of Arizona degree. G.E.D. James mitiga- We find that RILEY, Respondent. Lawrence by appellant tion offered sufficiently is not outweigh substantial aggravating No. SB-289. circumstance. Arizona, Court of In Banc. PROPORTIONALITY REVIEW Lastly, pro this Court conducts a 28, Nov. 1984. portionality review to determine “whether thе sentences of death are excessive or
disproportionate penalty imposed cases, considering
similar both the crime Richmond, State
and the defendant.” 186, 196, 41, (1976)
114 Ariz. 560 P.2d denied,
cert. 433 U.S. 97 S.Ct.
L.Ed.2d We have considered
other in which defendants cases robbed and
murdered their victims. State v. Worat
zeck,
(1982);
134 Ariz.
State State v. Evans,
supra; State v. 120 Ariz. *3 Sophy,
Michael M. Martha McConnell Phoenix, Bush, State Bar Counsel. Shoenhair, Bilby & by P.C. William H. Tucson, Tinney, respondent. CAMERON, Justice.
Respondent,
Riley,
James L.
was
charged
eight
with
counts of unethical con-
by
duct
State
Bar of Arizona. Al-
though respondent
currently
a Cochise
County superior court judge, all conduct in
question
related
events which occurred
while he
a deputy county
attorney.
The Local Administrative Committee found
respondent guilty
of unethical conduct
concerning
eight
four
counts and
thirty-day
suspension.
recommended
Disciplinary
agreed
Board
the find-
ings and
conclusions
Adminis-
Local
Committee,
trative
respondent
and the
timely objected. We
jurisdiction pur-
36(d)
suant to Rules
Rules of the
Court,
17A
We
A.R.S.
must ad-
following
dress the
issues:
Attorney
I. Did
State
Discipli-
Bar
nary
jurisdiction
Board have
to deter-
mine
a judge
guilty
whether
unethical conduct
occurred
which
be-
fore
a judge?
he became
II. Did the Local Administrative Cоm-
in amending
complaint
mittee err
its
include two additional counts after the
respondent had testified?
III.
Was the
of un-
ethical conduct
that:
4.4,
discipline agencies,
Lawyer
1.
Stan-
parte
he made ex
communications
dards, supra,
matter;
states follow
criminal
and some
Earle,
Turner v.
rule. See State ex rel.
2. he made false denials as to said ex
Proposed
(Fla.1974);
295 So.2d
communications;
parte
Disciplinary
Action
the Florida Bar
3. while a
candidate
office
Judge,
Against a Circuit
ate
upon
position
under
of this case?
the individual held at the
the facts
alleged
time of the
misconduct:
May
required
V.
pay
[hjere,
Disciplinary
presented
cоsts
incurred
we are
with an action
investigating
Board
eight
discipline
person,
serving
while
all
now
as a
*4
counts,
though respondent
judge,
even
was
for misconduct committed while
lawyer
violations con-
he
a
he
ethical
and before
became a
cerning only
judge.
position
four of those counts?
Does
on the
his
bench
discipline
him
render
immune to
for vio-
lation of the Code of Professional Re-
sponsibility
persons
to all
applicable
li-
JURISDICTION
practice
censed to
law this state? Re-
Pursuant
to Art.
6.1
the Arizona Con-
spondent argues
may
since he
not
stitution,
Quali-
on Judicial
Commission
practice
judge, may
law while a
he
not be
fications has
jurisdiction
exclusive
to inves-
disciplined
judge
while a
for misconduct
tigate the
conduct of a
while he
lawyer. Although he
committed while a
remains
judge.
a
is
This
the law in most
judge,
may
practice
not
while a
he
law
jurisdictions, In
Investigation,
re
93 So.2d
(a
practice
still
to
law
holds a license
(Fla.1957), and the rule recommended
qualification
to hold the
he must have
by the American Bar Association. See
judge),
lawyer,
still a
office of
he is
3.1,
Rule
Relating
Standards
to Judicial
if he has
of Profession-
violated the Code
Discipline
Disability Retirement,
Pro-
is,
Responsibility
al
as an officer of
Discipline
fessional
Lawyers
for
* *
court,
discipline
*.
this
amenable to
Judges (1979), National Center for Profes-
refuge
judicial
in a
He
not
take
sional Responsibility and The American
prior
for
discipline
office from
miscon-
Bar Association.
duct,
would
of which
be remov-
effect
lawyer disciplinary
The
agency has
qualifications
occupy-
al
for
of one of
jurisdiction
lawyer
over a
for conduct
ing
refuge.
permit
To
the use of
a
lawyer,
which occurred while a
as well as
a
sanctuary
office as such
would
jurisdiction
lawyer
longer
over a
who is no
travesty upon justice.
be a
for conduct that
occurred
Mills,
(Mo.
539 S.W.2d
449-50
prior
lawyer
to the time the
becamе a
1976);
Spriggs,
see also In re
36 Ariz.
Standards,
3.2,
See
judge.
Judicial
II
Court
Appeals has stated:
AMENDMENT OF COMPLAINT
recommendation,
In reviewing this
we
initially
strictly
note
if
During
hearings
before the local dis-
Ruffalo
reads,
applied
literally
as
then its
it
ciplinary
committee the
testi-
holding
crippling
broad
would have
ef-
fied as to a matter in which he hаd been
primary purpose
discipli-
fect
on
jailed
eight
for
and fined $150
hours
which,
nary proceedings,
as we have
Judge
contempt.
Riley
Richard
After
held,
punishment
“not
rather
but
this testimony,
the State Bar added the
*5
profession
a catharsis for the
and
[is]
allegations of
unethical conduct found
prophylactic
public.”
the
For exam-
Counts Seven and Eight. The amended
ple, if
in all
means
cases what
complaint was
Ruffalo
respondent
served on
the
indicate,
its words seem to
an
once
attor-
and
granted
he was
opportunity
an
re-
to
ney
brought
disciplinary
is
before a
tri-
By
spond.
stipulation respondent’s counsel
bunal for some minor offense he can
and
agreed
Bar counsel
to waive further
every
take the stand and make known
hearings upon Counts Seven
Eight, the
professional
(perhaps
other
indiscretion
charges. Respondent
additional
alleg-
now
nature)
even those of a more
serious
right
procedural
to
es that his
process,
due
and, in
perpetrated
way,
ever
this
im-
Constitution,
States
V,
United
Amend.
any potential pro-
from
munize himself
§2, 4,
violated,
Art.
Ariz. Const.
was
citing
because,
censorship
fessional
for them
544,
Ruffalo, 390 U.S.
Matter
88 S.Ct.
Ruffalo,
process”
pre-
under
“due
would
(1968).
Eg.,
1222,
117
L.Ed.2d
Com-
20
vent
allega-
an amendment of the initial
Ethics and
mittee on
Griev-
Professional
tions.
Virgin
Bar
Islands
Associa-
ances of
Johnson,
Bar
(3rd
Cockrell, F.2d
173
tion
v.
447
Association
Cockrell,
(1975) (cita-
Md.
Association v.
Cir.1971);
Bar
612 it
told that would be an Judge insult to B. Campaign Judicial Conduct. Helm if I were to Moroy- sentence Mr. (1) A candidate, including an incum- now, oqui right that I was to leave him judge, bent judicial for a office dangling his term start after filled either by public election between competing or when he arrived at the State Prison. candidates or on the basis judge. that no ments in Committee dent knew such statements were dent to Respondent made an candidly attempt Based court was improper were upon charged was and forthrightly describe that “respondent’s false, made communication to a with that the testimony, denying false, respon- respon- state- Rule identity, qualifications, present posi- or other fact. tion, (c) should priate (a) should of 45, [******] merit Rules system judicial not maintain thе of the ** election: office Supreme * misrepresent * * * dignity Court, appro- 17A A.R.S. Even if not a candidate judicial parte ex the actual At conversation.” office, lawyer a is held to a narrower stan- time, respondent had been admitted to of dard speech non-lawyer free than a practice years, for less than five and even discussing when judiciary: though respondent’s improper conduct layman may, A perhaps, pursue his theo- parte the ex judge might comments to the ries of speech political free or activities respondent’s have been excused because of until he penalties runs of afoul of youth inexperience, respondent’s lack slander, libel or into some of infraction sentencing of candor at the It cannot. statutory our law. A member bar trying obvious that ex can, will, stopped point at the parte hope to influence the Ethics; infringes where he our Canon of impose would more a severe if he wishes remain a member sentence, respondent, a fact which after bar he will conduct himself in accord- reflection, years several did admit to the ance therewith. Local Respon- Administrative Committee. Woodward, dent In re violating 385, DR 1- 300 S.W.2d 393-94 102(A)(4), misrepresentation, Russell, 1-102(A)(5), (Mo.1957); e.g., State 227 Kan. 901-02, 897, 1122, In prejudicial (1980); conduct 610 administration of P.2d 1126 Raggio, re 7-102(A)(5), 369, 370-71, justice, 87 false Nev. statements. 487 P.2d 499, (1971). 29(a), 501 lawyer may A Rules the Arizona be disci Court, plined public if his comments 17A A.R.S. threaten
significant state interest. Polk v. State
Texas,
784,
Bar
F.Supp.
(N.D.
Tex.1974);
Russell, supra,
and feel that have been a waste case of with a mem- your your money time and of County and mine. ber the Cochise of Super- Board Respondent of I examples One the best that have visors. stated: seen, it happened has in the last all, First of I you would like to read to couple weeks, gentlemen, of ladies is of one canons of ethics. Can- Hargis. the case McMullin Many v. of 3, four, page “Adju- on it entitled you of are aware of the enormous Responsibilities”: dicative coverage amount of media of that case— judge A every person should accord indigent it is the one that involves the legally proceed- who is a interested in standards, couple health care and a of ing his lawyer, right full to be heard perhaps ago, slightly weeks more than according to the except law and as that, Judge Riley made a decision which law, by authorized either initiate nor indigent would have lowered the stan- parte ex applications consider concern- county point in dards that the ing pending a or impending proceed- impact you financial on and would have however, ing. A may obtain the Many people been tremendous. were advice a expert disinterested on the talking of bankruptcy in terms of the applicable proceeding. law to a (cid:127) county, laying county off employees. says, gentlemen, What that ladies and found, sup- The Committee and the record any proceeding, that criminal civil ports finding, quot- that “the statement criminal, right both sides have the to be ruling ed above was reference a [njeither right heard side has the Riley [made], Judge pursuant Richard be heard alone. Both sides havе the of Ap- mandate the Arizona Court case, right going to know what’s on peals; knew, that the or should by calling the phone Mr. Jones on known, Judge Riley had no dis- by discussing merits ruling; in making cretion and that the Jones, Hargis McMullen v. case with Mr. statement was made either with an aware- Judge Riley committed unethical untrue, ness that it was or with reckless act. simple as It’s as that. disregard falsity for the truth or of the grievance Any lawyer may have concern- ** statement ing by sitting judge ethical misconduct light Appeals’ ruling, of the Court of on should submitted to the Commission Judge Riley had no choice but to issue the Qualifications. “Going public” Judicial Respondent’s order did. statement con- appropriate a member of the Bar is not the cerning the McMullin case exceeded the method to redress misconduct limits fair comment and left his audience Supreme As South Dakota Court has impression with a false of what actually noted: occurred concerning this matter. This kind respondent sought Thаt instead voice of “campaign rhetoric” is contrary to Can- precisely the manner complaints on 7 of the Code Judicial Conduct which likely most cast and forum that would provides that a who is a candidate integrity competence and upon the doubt misrepresent political office should without judiciary the member of the 45, 7(B)(1)(c), Rule facts. Canon Arizona any con- slightest possibility Court, of the 17 Rules A.R.S. structive, actions would result remedial ex rel. Nebraska State Bar See State respondent’s from belies those remarks Michaelis, 545, 559-61, 210 Ass’n Neb. he made the statement assertions that 46, (1982). Respondent’s N.W.2d 54-55 316 good spirit and in the of construc- faith the realm of fair com- comments exceeded tive criticism. Richeson, 87, 85, In Re See ment. Ariz. 250, (S.D. Lacey, 283 N.W.2d 583, (1946). 166 P.2d 1979). Accord, People Chicago rel. ex Bar Metzen, 55, 58, criti Ass’n v.
We note also that 291 Ill. 125 N.E. Judge Riley allegedly discussing cized Wines, Ariz. 660 P.2d re
IV (1983). We believe that the sanctions APPROPRIATE SANCTION in the instant imposed the Committee note at first that a fair, reasonable, justified. case were *11 superior to the court shall be “admitted thirty-day suspension impose would practice of the in and a resident of the law respondent for the fact that the were it not years preceding next their state five purpose an incumbent The is now §6, taking office.” Ariz. 22. Const. Art. lawyers and disciplining judges both by provides This court rule protect “[m]em the courts and punish not to but to bers of the State Bar shall be divided into Echeles, public. 430 F.2d the active, retired, three classes: and honor 1.1, (7th Cir.1970). Comment See also ary.” Honorary judges. members include Relating Discipline to Judicial Standards 27(c), Court, Supreme Rule Standards, Rules of the Disability Retirement su- and § 17A Although A.R.S. 28 of Art. 6 of the pra. also note: The standards prohibits practice Arizona Constitution Apart suspension, from interim the stan- record,” “judge by any of law a court of suspension of dards do not recommend this does not mean that a need not pay. Suspension punishes judge without good standing in remain with the Bar when colleagues they judge’s because must judge. By including he becomes a both suspen- carry an extra burden in membership residency the Bar and sion. phrase, people, same we believe the 6.7, Relating to Judi- Standards Comment Constitution, that, adopting the intended as Disability Retirement. Discipline cial office, requisite holding judicial a The the court contains affida- record before good standing must remain both in judges vits from the other two Cochise Indeed, and be a resident of the state. as County concerning disruption § latter, provides Art. that if a respondent would occur if the were sus- judge “absents himself from the state for (both pended judges evidently assumed sixty days,” more than consecutive suspension would not result in forfei- judge shall deemed to have forfeited his office). ture of Because we believe that office. We believe it follows that disbar suspension unnecessarily disrup- would be suspension operatе ment or even would as tive, public we find that censure is the a removal from office. Spriggs, But see appropriate more sanction and so hold. supra, where the court refrained from de V
ciding question. this We must now determine whether a thir- ALLOCATION OF COSTS ty-day suspension appropriate is an sanc- Respondent argues that he because was respon- tion in case. We this believe guilty concerning eight found all prejudiced dent’s conduct the administra- alleged pay counts he should not have to justice, tion of undermined the decisions of expenses the total costs and incurred court, intentionally superior and was pro- the State Bar while investigating misleading. Additionally, although respon- ceeding argues with his case. further He judge, concern about the he dent voiced that he the costs pay should have to to contact the Commission on Judi- failed expenses arising the counts from following Qualifications. Instead of cial whereupоn unethi- redress, appropriate channels of cal conduct. public” his com- respondent “went Our that: rules state plaints part campaign as of his for office. any . 1. of this court judgment The that, We have noted “The disci fix proceedings shall disciplinary pline in each situation must be tailored for expenses paid to be amount of costs case; perfection neither attorney individual nor before he uniformity absolute can be achieved.” suspended and no at- be reinstated torney general power practice lawyer shall resume until court amount expenses of the costs and so control the conduct counsel. ** paid, fully fixed has been *. however, hesitancy, joining with the no holding par- that comments from a 37(g), Rules of the Arizona ticipating in trial characterize a which Court, 17A A.R.S. ruling “crazy” or or the as “insane” State Bar found majority opinion, ante 705-706) {see guilty of four counts unethical conduct inappropriate may form a proper are agree findings. we with these Al subject for imposition discipline under though the very State Bar submitted a Woodward, re 1-102(A)(5). See In DR detailed itemized list expendi of costs and (Mo.1957). Lawyers S.W.2d 385 are not tures, categorized list was not *12 try free in newspaper, to their the cases think, counts. We however, do not that bring nor they appeal are free to their ato categorization by counts necessary. is Re newspaper board editors rather than the spondent was found of four ethical appellate Thus, court. I believe that re- responsible violations therefore for spondent may disciplined be for comments costs and expenses during incurred this Judge Riley made about the Kleindienst, proceeding. See In re pendency of a case in appear- which he was (1982) Ariz. (attorney P.2d ing Judge Riley. before found guilty charges of two out of nine pay expenses ordered to costs and of thе agree I majority also with the re- that proceeding). Only pro if the Bar fails to spondent may disciplined criticizing be for vide an itemized breakdown of costs will Judge Riley entering for an order which the Bar be In re such disallowed costs. required by higher mandate of a Davis, 1, 4, Ariz. 628 P.2d Lawyers special court. obligation have a 37(g), not expressly does state uphold to integrity existence and of the expenses that costs and must be allocated (DR 102(A)(5)), judicial system and their 1— separate to counts. We have reviewed curtailed, rights may first amendment be Bar’s itemized list expenses of costs and little, accomplish at least a in order to this and have they determined that were neces objective. Therefore, lawyers may criticize sary and reasonable. We also believe that decisions, they a or his but are not pursued the Bar investigation each misrepresent free to or mislead to in good count respondent faith. respondent Judgе facts. When criticized pay should the amount assessed. Riley entering for the mandated order It is respondent, ordered that the James indicating Judge Riley without had no Lawrence Riley, publicly be for censured doing, intentionally choice in so he conduct, pay unethical further he misrepresented knowingly distorted to the State Bar of Arizona costs ex- the facts. of a While criticism or his penses $6,459.22 totaling days sixty within lawyer’s decisions is not a breach of the from the in issuance the mandate duty uphold judicial integrity to of the case. system, by knowing accomplished criticism misrepresentation or distortion of fact does HAYS, J., GORDON, Y.C.J., and concur. lawyer’s special duty breach is the subject proper discipline. FELDMAN, Justice, specially concur- ring, respondent I may do believe that be disciplined for his other comments or criti- disagree
I
I
separately
write
because
Judge Riley
Judge Riley’s
cisms of
portion
opinion
deci-
majority
with a
of the
right
sions. Whether
pertains
lawyer’s right
which
to the
to
wrong,
right
he
public
regarding
sitting
make
had a first amendment
statements
necessary
judge,
judge’s qualifications
I
do not believe that it is
criticize
judge’s
attempt
performance
this case to
to draw line be-
and a
office. This
rights
especially
tween the
such
first amendment
true
states
as Arizona
Although
majority
judges
acknowledges
where some
are elected and where
judges
authority
matter
there is substantial
which
the retention of other
is a
Const,
§§ 12,
for the
that an incumbent
voters. Ariz.
art.
holds
should not
Thus,
jurisdiction
I
subject
38.
do not believe that
to the
of a
ante,
disciplined
discipline
698;
can be
for all of the comments
agency,
neverthe-
less,
made.
majority
concludes that the better
practice
and more workable
is to allow the
I
be disci-
Because
do believe
lawyer agency
proceed
to hear the mat-
plined
involving the
the comments
ter.
pending
the en-
relating
case and those
try
order,
of the mandated
I concur
in the case of fifty years ago
Over
specifically join
portion
result.
Spriggs, (1930),
Ariz.
HOLOHAN, Justice, dissenting. Chief ty support in majority’s position of the except for one vital jurisdiction If had hear factor —the this court the Constitu- us, tion of Arizona was in agree matter as it came to I could amended 1970 tо add with provisions Article respondent guilty the 6.1. The of the court that of Article 6.1 of the provide in Arizona Constitution unethical conduct at least three instanc- the exclu- opinion remedy any I sive for disciplinary es. dissent from the of the action court against justices peace, of judges because I conclude that this the of the court has no court, jurisdiction matter, superior judges ap- to hear the of the court of be- peals, justices by lieve of this court. that the restrictions announced the limiting majority by lawyer statements can- Qualifications Whether the Judicial Com- judicial incompatible office didates for are by mission created Article 6.1 would have granted by the freedoms the First jurisdiction over judicial the acts of a offi- Amendment to the United States Constitu- judge cer committed before the assumed tion. the bench is a presently matter which is pending in before us another case. Irre- JURISDICTION spective question, of our answer to it The State Bar of juris- Arizona assumed gross appears me a that there has been diction to conduct hearings eight on counts in the method violation of the Constitution of unethical charged conduct against the act in this by presumed to which we have respondent for his activities as a candidate for this can be said case. The most that superior for judge. court The proceedings the conduct of the is that court’s decision were undertaken after respondent the be- majori- compelled the respondent may superior came a of the court. It is clear mandates of the ty ignore the my conclusion that the State Bar of Arizo- Constitution., Arizona jurisdiction na has no hearings conduct or make a recommendation discipline for of THE OF JUDICIARY CRITICISM superior judge. a court The Bar’s in action in assumption power case results an of The of vio- lawyer group a judiciary over the 1-102(A)(5), in lating prejudicial a DR conduct wаy that constitutes a threat to the inde- justice. of administration The ma- pendence judicial department. of the jority finding sustained of the commit-
618 704, ante at opinion, majority guaranteed
tee. The
Under the
freedom
Constitution,
states that the
comments of
begin
prop-
we must
with the
questioned the decisions of the court and
citizens, attorneys
osition that
other
“[l]ike
justice.
of
administration
“This a law-
protection
are entitled to
full
of the
yer
do,
cannot
campaign
even in a
for
Amendment,
participants
First
even as
in
Further,
704,
ante at
judicial office.”
justice.”
administration
of
In re
lawyers
court holds that
are candi-
who
Hinds,
614,
604,
483,
90 N.J.
449 A.2d
489
judicial
impugn
dates for
office
not
(1982). A
review
cases
which
judicial system ques-
integrity
or
of the
disciplined
attorneys were
campaign
for
tion the
decisions
The ma-
comments directed at an
incumbent
jority
lawyer
allows
to criticize a
that,
strongly suggests
misrepre-
absent
unnecessary delay
reaching
deci-
sentation, courts should be most reluctant
sion,
attorney may
question
but the
not
impose discipline upon
attorney
an
except
ante
appeal,
decision itself
on
judicial
comments
campaign
ex-
broad,
and 705.
sweeping
gener-
cept
egregious
circumstances where a
alities of these statements casts serious
seriously denigrates
candidate
constitutionality
doubt on their
view
impugns
system,
reputation
in-
the First Amendment to the United States
judge,
in any way
cumbent
interferes
6,
Constitution and Section Article II of the
ongoing
with an
proceeding. See In re
opin-
Arizona
If the
Constitution.
court’s
Donohoe,
173,
90 Wash.2d
ney warrants the law equally attorney may clear that an criti- legal cize decisions of a without
sanction, long so as these comments do not with ongoing proceedings. interfere See Sawyer, re
In U.S. S.Ct. Hinds,
L.Ed.2d Accord In re
supra. dealing
We are awith delicate balanc-
ing rights involving public, judge,
incumbent candi- judicial
date On the one office. hand courts, institution, as an are entitled respect due because office acceptance decisions ulti-
mately depends upon the citizens’ belief
in the integrity impartiality of the hand,
courts. On the other the members judiciary subject are legitimate
and accurate criticism and evaluation. Donohoe, re 90 Wash.2d at P.2d at political 1097. In a system in premium placed
which a upon the free
dissemination of information to allow the
electorate make an informed decision
concerning candidates, choice of however, to impose
courts should be hesitant rules
restricting the flow of information. general
The broad statements in the ma- opinion serve to stifle
jority honest and discussion about
truthful decisions of a court. As I read the majority lawyer may appeal case,
opinion, but lawyer may never comment after finally resolved case
case made law, poor policy, resulted in an injus-
bad position Such a contrary
tice. Constitution, deprives it also but necessary
public information make an performance decision
informed about the judges.
their