*1 experienced juve- Judge Oleisky, an years. September by order dated judge,
nile court and C.K. K.K. found both by the father. sexually abused
had been no contact there be ordered that
The court children these two father and
between successfully completed had
until the father sex offenders. program for
the treatment of treatment for and lack
The record shows by the father. of sexual abuse
denial consistently identified with has
mother father rather than with
interests of the children.
interests record the trial the face of this
On only ex- required no treatment.
here is safe to return the
pert tells us it who parental home is the same to the
children young at trial that
expert who testified to an un- not be returned
children should time has come sex offender. The
treated readily pro- most determine “what action interests of the child.”
motes the best 390 N.W.2d
Matter Welfare of (Minn.1986). The courts have ex- long enough. The judicial caution
ercised require of K.K. and C.K.
best interests granting petition and the
reversal parental rights. I would so hold.
terminate
COYNE, (dissenting). Justice join
I in the dissent of Justice Wahl. Concerning Complaint the Honora MIERA, Judge of Dis
ble Alberto O. Court, Ramsey County, State
trict
Minnesota.
No. C6-87-1712.
Supreme of Minnesota. Court 5, 1988.
July
POPOVICH, Justice. proceeding
This from a formal arises August 31, 1987, complaint filed by the Minnesota Board on Standards Judicial Miera, against the Honorable Alberto O. Court, County, Ramsey District alleging violations of Judicial Canons Conduct and Rules of the Board on Following hearing Standards. Judicial 30, 1987, held between November and De- three-judge panel ap- cember court pointed found violated Canons had and of the Code on Judicial Conduct and Rule 4 of the Board.1 panel Specifically, the found there was convincing clear evidence that: (1) separate two On occasions while staying apartment of his court reporter, (hereinafter Neil “Johnson”), Judge Miera entered sleeping, lay room where Johnson was Johnson, down next to and touched John- son’s wishes. back Johnson’s Judge Miera later some told Johnson that day the two of them would have sexual relations; (2) Judge Miera kissed Johnson on the lips in court without chambers consent; Director, Shaw, Office of Betty Sr. Asst. (3) Judge shirt Miera touched the Responsibility, St. Lawyers Professional employee’s pocket over a female court Sheran, Reilly, Paul, D. Robert J. Denise offering payment while coins as breast Standards, Minneapolis, Board of Judicial coffee; for appellant. for (4) banana, Judge Mi- eating While Wallace, McNulty, Marcy employees, St. female “Do John C. S. era asked Paul, respondent. eat the vitamins you people bananas for symbol?”; phallic
or for the (5) Judge comments made news media that certain to the provisions provide: of the on Judicial Stan- applicable Rule Rules Board 1. The dards: 1, Code of Judicial Conduct: Canon (a) discipline include: Grounds for shall judiciary independent and honorable An ****** justice society. indispensable to A our which, (3) although maintaining, establishing, misconduct participate in Willful should duties, observe, brings judicial high judicial enforcing, and related to should himself disrepute; integrity and into of conduct office standards so that (4) prejudicial judiciary may preserved. to the administra- independence Conduct of the unbecoming judi- justice or conduct provisions of this be construed tion of Code should officer, or out- objective. whether in office applied cial conduct to further that duties, A, brings judicial Conduct: side of Canon 2 Code Judicial disrepute; respect comply into office A should (5) Any a violation in a conduct constitutes at all times law and should conduct himself professional or promotes public code of conduct confidence in manner that integrity judiciary. responsibility. impartiality County judges “bloodthirsty hypo- April home on several occasions. or May, discussing crites.” while his marital problems, Judge Miera informed Johnson found that Johnson was also he was bisexual. disrespectful sometimes discourteous and Miera, hours, kept short allowed in May, On two occasions work, private business to interfere with his stayed overnight apart- at Johnson’s satisfactorily *3 Judge Miera did not and that separated ment. Johnson then was from summarily explain why Johnson was not his wife and lived alone. Johnson and fired. Judge provided Miera different accounts of The on recom- Board Judicial Standards overnight stays. the Johnson testified on Judge Miera removed from mends that be Judge the first occasion Miera came to his addition, Lawyers the office. single-bedroom apartment and asked to (LPRB) Responsibility Board Professional stay having argument he because was an Judge Miera receive has recommended that agreed Judge with his wife. Johnson attorney, reprimand as an based slept in Miera the bedroom while Johnson involving solely upon the incidents John- slept living on floor in the room. John- Judge son. We hold Miera’s conduct war- Judge got up during son testified Miera public reprimand capacity rants a in his as night, lay down next to Johnson and attorney, public capacity an censure in his touched his back. When Johnson asked judge, one-year suspension, and a with- doing, Judge got him he what was Miera pay, out office effective from up and returned to the bedroom. Johnson opinion. the date of this morning Judge testified the next Miera told they him would have sexual relations some- I. day replied and Johnson that it would not appointed Alberto O. Miera was a munici- week, happen. following Judge The Miera pal Ramsey County in Au- stayed apartment again. Johnson’s gust, 1983, 1984’, elected in November Judge again lay Johnson testified Miera by unification with the district bench be- and, during night him down next to came a district court in 1986. His doing, when asked what he was returned to expires term of office as of the first Mon- Judge stay- the bedroom. Miera admitted day January, giving 1991. The facts rise apartment at Johnson’s on two occa- proceedings to these are as follows: sions, but denied that either occasion he lay they him next to Johnson or told would Involving Incidents Neil Johnson have sexual relations. 10, 1984, began On March Neil Johnson 26, 1984, Judge reporter. evening work as July Judge Miera’s court On the hired, Judge Soon after Miera Miera called Johnson and told him he was began socializing together, contemplating and Johnson in- suicide. Johnson went to cluding and, playing raquetball, running, Judge according Miera’s home to going Johnson, Judge out to lunch. Johnson ate dinner Miera made sexual over- Judge tures, including attempting Miera and his wife at Miera’s to unbuckle his findings, panel attorney represented In its also found several nal defendant allegations complaint simultaneously representing in the formal not were Miera in his mar- supported by dissolution; convincing riage clear and evidence. Allegations supported by (4)An Judge found not allegation to that Miera made evidence Ramsey County included: comments that certain racially racists or were motivat- were (1) allegation Judge attempt- An that Miera ed. pants ed to unbuckle Johnson’s at Miera's panel that Miera’s com- 26, 1986; further found July home on or about system regarding (2) ments his shaken belief in the allegation improp- An that Miera following justice the return of an adverse erly judge’s retained another law clerk as an jury did not violate attorney represent verdict in a related civil case him on a motion in dissolution; marriage Conduct or the Rules of the Canons of Judicial (3) dispute allegation improp- these An the Board. The Board does not erly presided sentencing findings. over the of a crimi- Lake, Bear Minnesota. On during of discussion White one occa- several hours pants, per- sion, Judge concerning Judge Miera’s marital Miera entered the clerk’s of- he Miera testified fice. employees sonal difficulties. Four female court suicide, contemplating banana, called Johnson while present. eating While Ac- making sexual overtures. but denied inquired, you people “Do eat ba- Miera, engage cording the two did phallic nanas for the vitamins or for the in a mutual nonsexual embrace. symbol they represent?” employee One convincing not clear and found there was testified comment was made all allegation support evidence present not a sexual ad- those and was advances made sexual however, employee, vance. The also testi- discussion, does the Board during shocking. fied the comment was Another finding. dispute employee she testified was embarrassed discussion, Following suicide the remark. Judge Miera relationship between
work “Bloodthirsty hypocrites” comment According strained. *4 and became Johnson leaving employment Judge as Mi- After 1984,Judge Johnson, in Miera December to reporter, era’s Neil Johnson filed a began and dis- him into chambers called Judge civil lawsuit Miera. Follow- testified cussing problems. their Johnson Miera, Judge jury a verdict adverse to conver- attempted to terminate the when he passed by judges a resolution was sation, Judge got up from his desk Miera requesting Ramsey County bench that leave, quickly if then turned and as to but Supreme Court remove Minnesota lips. Johnson testi- on kissed Johnson Judge pending Miera office Judge quit employment fied his with he proceedings. discipline After the resolu- 11, 1985, as January a result of Miera on representative public, tion was made the kiss. telephoned Judge Miera at the news media 1985, During the summer of Johnson Judge get response. Miera told home to agreed as Miera’s court to reten reporter that certain unnamed year. that He reporter September in Ramsey County “bloodthirsty hyp- in were October, alleging Miera quit in ocrites.” and to make sexual advances continued relationship him. pursue with a social
Shirt-pocket Incident II. June, 1986, Judge In or Miera was May proof standard proceedings at the Ram-
assigned to hear proceedings attorney disciplinary re Maple- sey County located in Courthouse full, convincing quires evidence. clear day Judge Miera wood, One Minnesota. n. Gillard, 271 805 3 In N.W.2d re during a court entered the clerk’s office McDonough, (Minn.1978). re also In See Kendall, Ramsey Jacqueline recess. (Minn.1979). 648, 691 Satisfac 296 N.W.2d supervi- employee, County Court and her requires more than a tion of this standard Weltzin, sor, present. Ken- Roberta evidence, but less preponderance of the pock- wearing a cotton blouse with dall was doubt. beyond reasonable proof than approached Miera ets the front. Anderson, Weber v. and, offering payment for Kendall while 1978). convincing proof (Minn. Clear coffee, pocket for a shirt over her reached facts the truth of the will shown where be in, change might drop if some as he breast probable.” “highly is Id. asserted flap, and touched the shirt. opened touching unwel- Kendall considered the panel’s argues the Miera come. unwelcome sexual findings that he made Banana remark sup are not toward Johnson advances evidence, convincing ported by clear Judge Miera During the summer testimony was uncorroborated. at the Johnson's assigned proceedings hear discussing the need previously in While County Courthouse located ness, Haakinson, pro- judicial disciplinary Mark testified that corroboration July, Johnson told him ceedings, have stated: had tried to kiss him. convincing arises standard The clear gravity of a appreciation of the from an Conlee, Kathleen a friend and co-worker magni- proceeding and the disciplinary Johnson, June, 1984, testified disciplined of the loss which a tude things going Johnson told her were not cor- subjected. is No mechanistic at Miera had made well work necessary; un- requirement overtures, stating roboration sexual he and Johnson may clear and someday. evidence corroborated would have sexual relations impose can convincing if the trier of fact also told Conlee about one occa- lay sion down next to discipline clarity and conviction where fact, staying depend- him and touched his back while justification. its factual apartment. Although no source, Johnson’s wit- evi- ing on its uncorroborated testimony corroborated nesses reliable than that dence be more lay during next to him remotely a dubious corroborated overnight stays, Judge Miera testified two source. apartment stayed he at Johnson’s on two N.W.2d at 692. Al- McDonough, occasions. require though we have declined corrob- convincing We hold there is clear and cases, oration in all we have looked for support panel’s findings evidence allega- corroborating evidence where the regarding involving Judge Mi- the incidents resulting disciplinary proceedings tions testimony era and Neil Johnson. Johnson’s possibly are the result of mistake. Id. See *5 by corroborating the testi- was buttressed concern, however, at 694. This is not Moreover, mony of several witnesses. present proceeding. in the current independent re- while the court makes an (1) occasions, panel found on two while judicial disciplinary view of the evidence staying apartment, lay at Johnson’s Miera proceedings, we are sensitive to the fact down next to Johnson and touched John- panel opportunity had to view the the the wishes; (2) son’s back Johnson’s they is witnesses as testified and therefore day Miera told Johnson that some the two credibility. superior position to assess a relations; of them would have sexual (3) lips Miera kissed Johnson on the argues 2. Miera next the evi- Miera’s court chambers without Johnson’s finding support panel’s the dence does involving consent. The incidents Johnson testimony provided by psychiatric that the subject are not to mistake. concerning experts, whether or not telling the Miera and Neil Johnson were Moreover, several witnesses corrobo- truth, was inconclusive. testimony. Berg, rated Johnson’s Paula a Johnson, friend of testified Johnson told presented testimony of the 1985, January, her in Miera had Dr. Meehl testified he had Dr. Paul Meehl. Similarly, kissed him. another friend of and tested Miera and examined Johnson, Seesel, Ellen testified at the relat- results to normal. Dr. Meehl found the be December, ed civil trial Johnson told her in interpreted a also interviewed Johnson January, or Personality Invento- Multiphasic Minnesota kissed him.3 Both women also testified (MMPI) ry completed by Johnson. As a MMPI, Johnson informed them of one occasion Dr. result of the interview stayed when at Johnson’s suffered determined that Johnson Meehl apartment, lay during next Johnson anti- personality a disorder known as night, and touched personality. Johnson without his Dr. Meehl testified social addition, Raymond placed consent. In Farrell tes- him in the MMPI results Johnson’s population tified him on the top percent Johnson told Miera had one of the advances, Meehl scale.” Dr. “psychological made sexual while another wit- deviate incidents, large portion transcript involving submitted A the same was of the civil proceeding. Ramsey County, trial in the case of Johnson v. into the record of the current disciplinary proceed of his examination as a result testified that ings, honesty. panel’s develop Dr. is Johnson’s function doubted he complete supported by possible upon most record determination was which Meehl’s expert, the Board on testimony of a second Dr. Judicial Standards’ recom Butcher, may mendation this court’s decision testified Johnson’s who James effectively rest. This function is most personality. car psychopathic reflected MMPI through ried out a liberal construction of testimony of presented the two Johnson admit the rules evidence. The failure Anderson, expert Dr. Loma witnesses. require this pro evidence does not further examined John- psychologist, testified she ceedings, however. this Because Although diag- she son four occasions. independent record, makes an review of the passive-aggres- having nosed Johnson may the opinion the failure admit be disorder, personality characterized sive Gillard, upon review. See In re corrected behavior, manipulative she testified she be- (Minn.1978). For this telling truth was re- lieved Johnson reason, panel’s failure to receive Dr. involving Judge garding incidente Mi- opinion Broadhurst’s is most harmless era. error. also testified on Dr. Maurice Martin Dr. Martin examined Johnson’s behalf. III. November, and adminis- Is the conduct found Dr. MMPI. Martin testified tered second Judges must conform to a misconduct? psychiatric he determined “there no higher expect- standard of conduct than John- diagnosis consequence.” While lawyers persons or in society. ed of other MMPI reflected a considera- son’s second Complaint Winton, Concerning 350 N.W. psychological bly on the devi- lower score (Minn.1984). 2d 1 of the Canon first, the teste were ate scale than the requires high Code of Judicial Conduct methods, using apparently scored different integrity “so and inde- standard that the making comparison difficult. pendence pre- judiciary presence opined Dr. Anderson 2A, judges must served.” Under Canon explain extremely rage could “respect and with the law” and act comply *6 high psychological on deviate score promotes “at all times a manner that scale on the first MMPI. Dr. Martin testi- integrity and im- public confidence in the possible judgment fied it not to form a is legal sys- The partiality judiciary.” regarding an individual’s truthfulness on judges, depends tem on confidence of an MMPI alone. the basis large on the power rests in measure whose opposing testimony The of Drs. Meehl ability respect judicial for deci- to command and Butcher and Drs. Anderson and Martin directly related to sions. Whether or not provides panel’s duties, determina- a basis for the by judicial misconduct psychiatric was in- disrepute thereby tion that the evidence brings and the office into justice. conclusive. of prejudices the administration Winton, at 350 N.W.2d 340. panel 3. next contends the Neil toward failing testimony Miera’s advances to admit the erred clearly of a sexual nature Broadhurst, physics professor were Dr. John unwelcome. Besides special just clearly as University with and at the of Minnesota Johnson, Judge Miera touching kissing and expertise regarding and me- the motion day sexual one have the two would body. While Dr. insisted chanics of the human argu- oral general- Miera contended testify relations. Broadhurst was allowed but, asking,” ment, harm in “[Tjhere’s no body, ly the movement about circumstances, disagree. we John- question in these objection an to a sustained personal simply a employee, not opinion expert son was eliciting Dr. Broadhurst’s reporter, Moreover, he was a court have oc- friend. alleged whether kiss could serves at the who personal assistant close curred described it. as Johnson 856 asked, employee Both the office a female court “Do
judge’s discretion.
you people
relationship
eat
for the vitamins or
unique
between
bananas
and the
agree
phallic symbol?”
for the
particu-
We
reporter
employee
make this
the Board
such conduct is embarrass-
larly
It is
power.
to abuse
vulnerable
judge.
inappropriate
for a
At the
sim-
disingenuous to assert Johnson could
time,
say
cannot
fact,
same
incidents
he
ply say “no.”
record shows
represented
willfully
were
offensive or
just
that,
did
to no avail.
Rather,
sexual
kind.
advance of some
both
panel made no
Judge Miera stresses the
slightly risque
incidents
intended as
seem
employment
findings
interference with
humor,
place
though
out
ill-con-
environment,
hostile work
or creation of a
ceived.
of sexual harass
required
for a claim
suggest
We do
humorous
intent ex
363.01, subd.
under Minn.Stat.
ment
§
Compare
cuses misconduct.
Gonzalez v.
10a(3) (1986).
need not
We
decide whether
Performance,
Commission on Judicial
33
conduct violated that stat
Miera’s
359, 376,
880,
Cal.Rptr.
890,
Cal.3d
188
657
us
ute.
The issue before
is not
372,
dismissed,
(1983),
appeal
P.2d
381-82
liability
damages
but his
Miera’s civil
1033,104
690,
464 U.S.
S.Ct.
857
well-intentioned,
a
their unortho-
Miera also asserts
first
but
amend
perhaps
right
public
petition to
ment
to his
of action—a
remarks. While
dox method
claim,
recognize
to
news media—
need
statements
the
we
not reach that
we
court and
response.
potential
Cor-
spark
problems
ground
a
constitutional
seems destined to
Indeed,
for the
ing discipline
public speech.
have been
procedure
rect
would
on
the
complain the
on Judicial
to
Board
Kelly
to
dissenters maintained that a
2,
relat-
Rule 5
pursuant
subject
to Rule
to
aggrieved by
Standards
election and
events
relating
7Rule
ing
confidentiality,
affecting
to
his
stature does not have
to interim sanctions.
merely
to stand mute
because he
a
rather,
judge;
the “constitutional scheme
citizens, will occasion-
Judges, like other
expression” guarantees
free
right
his
to
litigation.
in civil
ally
involved
become
publicly explain his
Kelly,
actions.
238
litigant, they
entitled to let
any
are
Like
vein,
at 575. In the same
one com
So.2d
course,
they
even if
run its
the action
suggests judicial speech
mentator
on a
separate
simultaneously
disciplinary
face
subject
matter
concern
to
colleagues
Judge Miera’s
proceedings.
discipline only
sys
if harm to the judicial
position
on his
as a
publicly commented
produced
the
outweighs
tem
benefits
a
In a dis-
pending
action.
defendant
Gross,
speech.
Speech:
the
Judicial
Dis
discretion,
maying lapse of
one even hosted
Amendment,
Syr
36
cipline and the First
victory party in
to celebrate
a
chambers
1181,
(1985).
gener
acuse L.Rev.
1228
See
trial verdict.
138,
Myers, 461
ally Connick v.
103
U.S.
light,
is at
In this
Miera’s outburst
1684,
(1983);
what it should be. may consider matters outside that record only after remand to the Board for further IV. proceedings, parties or if have notice both remaining question is what dis opportunity regarding and an to be heard cipline impose. The Board recommends Id., 13(d)(1),(3). supplementary material. public censure and removal from office. Though reported the media have other ac- record, After careful review of the entire Miera, by Judge tivities and statements we decline to follow that recommendation argument expressly Board’s counsel at oral completely. remand, request asserting waived guided Our purpose decision is adequate support record is tó its recom- action, disciplinary protect which is to position the mendation. The Board’s was that public by insuring integrity judi- bring the time has come to this matter to a *9 agree. attorney, Judge At the same As an completely Miera is close. We not held time, opportunity high had no Miera has to the same standards as judge. Nevertheless, not any raised at the power heard on claims of abuse that con- publicity hearing. about judicial Wide cerns us in the context is no less intervening months troubling in does engaged his actions by when in an attorney. requirements of due not us from the free imposed himself on a em- vulnerable own rules. process and the Board’s The ployee. Whether or not his conduct techni- solely on impose we is based sanction cally constitutes sexual harassment under us. record of misconduct before 363.01, Minn.Stat. it indif- shows least § legal obligations. ference to his and ethical view, discipline In short of our removal adversely Such conduct reflects on his fit- proceeding. of this purposes will serve the law, practice public ness to repri- and a one-year public find censure and sus- We is mand warranted. convey pension adequately from office importance the ethical violation. It As Snyder, we indicated from this sanction should be understood (Minn.1983), and McDon state, we, of this that and the citizens will ough, 296 N.W.2d at this court has the improper by not sexual advances tolerate authority reject modify or recommenda highest standard of judges bound to “the lengthy tions of the Board. After delibera Winton, personal and official conduct.” tion, we not will now remove 350 N.W.2d at being discipline from bench. The or protection dered here is sufficient for argues any Judge Miera sanction more public. year’s After one absence public reprimand than is unwarrant- severe judicial Miera can resume his duties ed, given previous disposition of our disci- year will be able to serve more than a full complaints involving plinary sexual miscon- standing before in 1990 if he for reelection points public He censure of duct. our run. The chooses to citizens dealing with Walter Mann for an County him his in a know and work and are reprimand prostitute, adult position performance. They his to evaluate for, among Darrell Sears other they him if can remove ballot determine employees things, advances to court sexual have too There been we been lenient. has Mann, attorneys. re No. 50982 See In present case. serious misconduct Sears, (March 5, 1980); In No. 81-1264 re censure, salary his for Public forfeiture of cases, 28, 1982). though, (July In both year, suspension year one is one for stipulation opinion, without affirmed a protection inter sufficient for expressed we have since reservations about' judi confidence est and to restore endorsing Judge summarily Mann’s modest healing ciary. permit It also a time for will Winton, 343, n. sanction. 350 N.W.2d at any parties the wounds all complicated 10. The Sears case is that necessary rehabilitation. judge’s drinking problem, and our severe prece- action there should not be read as public- hereby Miera is Alberto O. response proper disciplinary dent judicial and sus- ly censured for misconduct by judge. To the ex- sexual misconduct office, pay, pended without otherwise, suggests we will tent the case repri- publicly year. for one He also perpetuate it. See id. attorney. as an manded accept the recommendation of the We WAHL, (concurring part, dis- Justice Responsibility Lawyers Professional Board senting part). publicly repri- that Miera also be find- supports a agree I the evidence attorney. The LPRB cites manded making of Johnson, only involving ing of misconduct. the incidents Neil by judge to- duty to unsolicited sexual advances allegedly lawyer’s which violate the reporter dem- judge’s adversely reflects on ward the own avoid “conduct power serious abuse practice his law.” onstrates a fitness to Minn.Code my 1-102(A)(6). judge’s position. Prof.Resp., inherent in the DR *10 view, however, precedent we no have severity discipline of the ordered based AROUNI, Respondent, James Robert sure, on the facts of the To case. be v. discipline must determine an appropriate CONSTRUCTION, INC., KELLEHER by measuring misconduct Casualty Surety Aetna & ethical standards contained in the Code Co., Relators. must, just
Judicial Conduct but we as sure- ly, compare that No. misconduct to the miscon- C1-88-87. duct other cases this court where has Supreme Court of Minnesota. discipline judges. called
been July public only We have ordered censure paying where a admitted for sex with prostitute making as well state- press regarding
ments to the his involve- Mann, In re (Minn.,
ment. No. 50982 4, 1980)
March (unreported Supreme Court
order). public reprimand We ordered
where a conducted business occasions,
while inebriated on several
times failed to conduct business because of
inebriation, sexually harassed and em- employees
barrassed female and female at-
torneys repeated by making occasions
suggestive kissing comments or and touch-
ing female Sears, staff. No. 81-1262
(Minn., 26, 1982) July (unreported Supreme order).
Court That these earlier cases af- stipulations,
firmed or that one in- case alcoholism,
volved way no assured that
public confidence in the impartiality and
integrity of judicial system any
less harmed present than in the case.
Even with our statement that our action in
those cases should not precedent be read as proper
for the disciplinary response to sex-
ual by judge, misconduct the fact remains
that our treatment of involved
in those cases was far more lenient than
suspension office pay without year.
for one Though suspension from of- warranted,
fice period a shorter
time would protection be sufficient for interest.