*1 2004 UT Inquiry Concerning Judge
In re
Joseph W. ANDERSON.
No. 200308345.
Supreme Court of Utah. 23, 2004.
Jan.
11836 *3 Winchester, *4 City,
Colin R. Salt Lake for the Judicial Conduct Commission. Wayne Petty, City, Lake for G. Salt Anderson. Gay Taylor, City,
M.
Salt Lake
for amicus
Legislature.
Utah State
Mitchell,
City,
Annina M.
Salt Lake
for
Attorney
amicus State of Utah
General.
PER CURIAM:
Through
tragic personal
T1
a
series
decisions,
years,
spread
period
over a
Judge Joseph
effectively
W. Anderson has
prevented
performing
himself
juvenile
court
duties
the office
choices,
appointed. These
which he was
consequences,
their
inevitable
were first
giving
made known
the facts
rise to the
complaints, and recommendation for disci-
pline, before the Judicial Conduct Commis-
gion, from which this action arises. More-
over,
impact
the choices and acts which most
appear
to have
the outcome
this matter
solely,
primarily,
if not
for
been undertaken
influencing
purpose
the outcome of the
inquiry.
Commission's
12 Pursuant
to our constitutional
responsibility to review recommendations
Commission, we have
the Judicial Conduct
report
regard
considered
Commission's
ing Judge Anderson. The constitution di
to review the recommendations as
rects us
fact,
accept
imple
law and
and to
both
it,
recommendation,
reject
or to
ment the
modify
proposed
the Commis
the action
sion,
after a
depending upon our conclusions
matter.
Const.
thorough review of the
Utah
VIII,
purpose
§
is to
art.
overall
citizens, the
the interests of Utah's
see
government,
choice,
Department
of state
own
Anderson has created a
judge,
priority,
in that order of
and the
are
situation from which he cannot now extricate
addition,
protected.
the constitutional
himself,
di-
virtually
and which has
made
im-
fact,
to both
rectives to review as
law and
possible
perform
for him to
significant por-
a
and to take additional evidence where re-
juvenile
tion of the
duties
his office as a
quired, contemplate
may
a review that
in-
judge. Although
Judge Anderson is
relating
clude
or cireumstances
facts
to not
solely responsible
for the
difficulties
the evidence heard
the Judicial Con-
himself,
which he now finds
predominant
Commission,
directly
duct
but also events
actions,
primary
causes are his
re-
proceedings
related to the Commission's
sponsibility
avoiding
for
such a situation is
recommendation,
including
mitiga-
matters
his alone.
aggravation.
tion or
T16 The Judicial Conduct Commissionrec-
unique complications
13 Because of the
given
ommended that
Anderson be
case,
appointed
spe-
public reprimand
engaging
in conduct
cial master
to take additional
factual evi-
prejudicial
justice
the administration of
dence on our behalf.
Anderson and
brings
disrepute,
office into
participated fully
his counsel
in this addition-
obligations imposed
violation of the
upon
fact-finding.
al
accepted
We have also
writ-
him
judge.
as a
accept
findings
We
Judge Anderson,
ten submissions from
rais-
the Judicial Conduct
given
but
*5
ing challenges
findings
to the factual
ongoing difficulty
the serious
by
occasioned
master,
special
challenges
as well as other
to
conduct,
Anderson's
we decline to
process
judicial
Utah,
discipline
in
adopt
the recommended sanction.
In its
including concerns about the fairness of the
place, we conclude
Anderson's
Judicial
proceedings
Conduct Commission
prejudicial
behavior has been so
to the ad-
issues,
and structure. On these
we have
justice
ministration of
justify,
as to both
and
received additional written submissions on
require, his removal from office.
Commission,
behalf of the Judicial Conduct
legislature through
Legisla-
its Office of
I. JUDICIAL DISCIPLINE IN UTAH
Counsel,
Attorney
tive
and from the
General
judicial
T7
process
on issues
Because matters of
discipline
related to the
and structure
rarely
reach the
the Judicial
level of discussion
Conduct Commission.
and dis
ad-
dition,
pute necessary for
argument
opinion,
we have heard
us to render an
and because
the Judicial
three such
Conduct
instances have
legislature,
occurred since the
Attorney
creation of the
General.
Commission,1
carefully
We have
pre
reviewed all of
we exercise our
the materi-
describe,
rogative
als
to
by
parties,
broadly
may
submitted to us
more
than
as well as
absolutely
be
necessary
the record of proceedings
to resolve
special
before the
case,
master, and
the law
it
proceedings
the record of
relates
judicial discipline.
guide
the Judicial
We do so as a
Conduct Commission.
the Judicial Conduct Commission to the de
Finally,
T4
unsure that
gree
doing
responsibility,
so is our
recognized the
position
seriousness of the
he
for the
reassurance of the
in,
placed
himself
we offered him an
recognize,
that we
seriously,
take most
opportunity
additional
to address the court
process.
our
in
role
specifically
question
on the
appar-
how the
inability
ent
might
resume his full caseload
18 With the modification and re-en
be resolved short of his removal.
actment of the Judicial Article to the Utah
T5
submissions,
On the basis of these
1984,
ar- Constitution in
people
of Utah vest
reviews,
guments, and
we have
responsibility
concluded
ed
discipline
for
behavior,
through
by
his own
separate,
independent,
three
processes.
en,
(Utah
1996).
Young,
the introduction of additional evidence" Commission is necessar necessary helpful. the Judicial Conduct Id. Once deems must, complaints made ily seope it to the of complete, the court "as limited review is court, judicial on the imple against a officer. just proper, issue its order finds hand, it for selection responsible as is rejecting, modifying the Com other menting, or Justice, presiding adminis of Chief mission's order." Id. argued legislature us that this court 3. These are: 2. The power manage judiciary, in- has inherent (1) willful misconduct action which constitutes judges cluding discipline as nec- and removal of office; pun- (2) of a crime final conviction not, not, We and do reach the issue need essary. However, law; or federal regard. as a under state powers this ishable our inherent felony exists, (3) perform persistent power failure to willful note that to the extent that such alone, duties; (4) disability seriously and not in other in- judicial it is vested in this court agencies government. a re- branches of As judicial or performance terferes with the can, sult, legislature is doubtful whether the (5) prejudicial the ad- duties; or conduct enactment, grant power discipline statutory us judicial brings justice ministration possess judges legislature that the itself does not disrepute. office into See, eg., Viah Code Ann. under the constitution. VIIL, § art. 13. Utah Const. 78-8-103(3) (2002) (purporting grant § suspend judge power if convicted of court felony). judiciary, officer of the trative state Utah authority exercise of our constitutional 78-21(8) (2002), responsibility. § Code Ann. and the State Administrator, non-judge Court the senior II. PROCEDURAL HISTORY judiciary,
the state Utah Code of Judicial AND BACKGROUND 3-801(8), unique relationship Admin. has a judiciary both the as a whole. By its formal reprimand, order of perspective, scope exposure Given that 27, dated March 2003 and filed with the court naturally greater of the court is than that of 28, 2008, April the Judicial Conduct Commis the Judicial Conduct Commission when con sion invoked jurisdiction the constitutional sidering impact alleged judicial review, mis the court to implement, and to then judiciary whole, reject, modify, conduct on as a or both the Judicial Conduct Com mission's judge (public) reprimand order of formal ability the individual and his or her against Judge Upon Anderson. initial review position to function as a official. The of the submission from the Judicial Conduct ing of the court as the final arbiter of mat Commission, record, supporting ters of conduct the constitution court determined that additional facts and consider, obligates us to where essential to a required evidence were complete the nec presented resolution of the issue to the Judi essary evaluation of the action of the Judicial Commission, cial Conduct facts and evidence By Conduct Commission. order referral ongoing difficulty directly resulting from 4, 2008, dated June the court directed arising upon out of the matters which the Anthony W. Schofield of the Fourth District Judicial Conduct Commission has deliberated Court, acting special as our master for the and made its recommendation for sanctions purpose, to conduct evidentiary hearings in cases, to the court.4 In most the act or acts matter, and to report return his subjected for which a to discipline 1, September 2008. through process have been and will be [ 14 delays As a result of conducting discrete, specific However, behaviors. evidentiary hearings, primarily due to activi- cases, rare the behavior for which the Judi requests ties and cial Conduct Commission recommends disci completed Schofield assignment, and de- pline ongoing is of an nature that itself re findings livered his and supporting documen- quires cases, correction. given such tation, on October process of the Judicial Conduct {15 position this court is in a immediately to consider and We issued our order di- any lingering difficulty. recting parties resolve *7 prepare the present This we do not, not, issues, their briefs on the lightly. and will Only undertake invited the participation legislature of the when and the ongoing presents such conduct Attor- both a ney General, Judge since Anderson was chal- problem judge serious for question, the in lenging constitutionality the of the Judicial and also reflects a lack of correction of the Conduct composition Commission's pro- problem addressed the Judicial Conduct cess. Commission, remotely are we likely even involve ourselves at inquiry. level of I Anderson, 16 by Judge Briefs were filed The Judge presents case of just Anderson Commission, the Judicial legisla- Conduct difficulty, such a demanding ture, the reluctant Attorney General. We have attitude, routinely inquire 4. court, We as to the condi- gaining any sometimes from tion, progress judge or of a al the time we meaningful awareness extent and nature of implementing consider recommended sanctions misconduct, any, occurring if within from the Doing Judicial Conduct Commission. judiciary. Should the Judicial Conduct Commis- determining so necessary assists us in sion feel that no sanction is warranted, public appropriate discipline. measure of complaint warning, dismissal of the with a or on misbehavior, may conditions of no further serve Although 5. the Judicial Conduct Commission has purpose correcting same laudable trou- made extensive use of what it refers to as infor- bling relatively but minor misbehavior without mal, we find private, no basis in reprimands, fact, offending language the constitution for such a sanction. of the constitution. doing generally prevented so public, both the
1141 nature of the conduct briefs, 19 Because of the rec- the voluminous all considered Judge original complaint, in addressed appointed master special ord of the responses to the late court, proceedings before Anderson's chosen of the the record Commission, being challenged and mat- on his as well as to cases Judge responses, and because of Anderson's by Judge supplementation in ters submitted against complainant, we found retaliation Anderson. necessary to seek additional it useful and on November argument was held T 17 Oral impact relating to the direct factual evidence time, was al- 19, argument At that 2008. arising Judge behavior from Anderson, Judge lowed giving original birth to the the cireumstances legislature, and the complaints. Judicial Conduct legis- Argument from the Attorney General. so, this court is neither strue- To do since Attorney was General lature and the taking of direct tured for nor skilled at the challenges as to the constitutional considered evidence, authority ap- we exercised our A hear- second by Judge Anderson. raised our point special a master to act as direct to allow ing was held December agent collecting in additional evidence specifically address the these matters. difficulty he possible solutions issue inability to legal hear as a result of the faced trial are skilled and 120 Because a caseload of portion of the significant evidence, appointed experienced taking judge. juvenile court than that a trial from a district other matter, facts appointed to particular In this Anderson was which period special act as our master. Over Conduct Commission upon which the Judicial weeks, conclusions, extensive many the master conducted findings, reaching its relied hearings to the time factual were limited recommendation part. com an active filing played of the initial and his counsel prior to the period hearings, transeripts 1999 and master submitted plaint con not reach us for and documents submit- copies The matter did of all exhibits Consequently, until mid-2008. ted, pages sideration report eighty-four and a complaint and inves which the facts derived from conduct from which he identified spawned additional conse arose had tigation re- and on which he presented, evidence made ensuing period, quences inquiries over we made in our sponded specific through state to the court appointment. known order of behalf, press re ments on findings factual rely upon We Anderson, and filings by Judge ports of court presented to us. special master as actions, difficulties due to his administrative to the Chief Justice which were directed BACKGROUNDOF III. FACTUAL We also re and solution. consideration AT THE CONDUCT ISSUE ceived, granted, petition for review appointed as a was Ap entered the Utah Court an order judge in the Third Judicial juvenile court barred by its terms peals which *8 by the retained He was any involving District hearing cases Anderson from Dur- in 1998. general election voters at the office as counsel for Attorney General's Family office, Judge of Child and Services.6 ing his term of the Division colleagues, to hear required, as are his been reflected considerable Briefs in that matter abuse, neglect, and de- involving the Judge Anderson cases existing between difficulties cases, generally These pendency of children. Attorney General and of the and the offices cases, are man- child welfare referred to as arising from the ad Litem of the Guardian imposed requirements time aged under strict to the Judicial Con complaints made same Although many of these dead- statute. in the matter now duct Commission onerous, equally foree and often such, lines are taken notice of we have also us. As involving children to be important matters matters. these App.2002). (Utah Ct. Oddone, v. No. 20020454-CA 6. State law, delayed, they are the and have been to pursue views an understanding of the facts during Judge Anderson's term of office. and circumstances complaint related to the allegations. 8, 2000, and its On December During period
€23 from which the pursuant original Judicial Conduct Commission com- procedure, to its rules of arose, 1999-2000, issued a notice of plaints Judge Anderson significant difficulty had commencement of formal managing proceedings his child against compliance Judge welfare cases in statutory upon Anderson based facts hearings deadlines for and action. generated His diffi- and issues complaint from culty parties resulted in seeking before him Litem, the Office of the Guardian ad and the the intervention of appeals the court of investigation. staff timely compliance. force repeated On occa- time, 128 At about Judge same sions, appeals the court of Judge ordered entered, motion, on his own orders comply. Judge Anderson, Anderson to disqualification in a number of cases in reasons, fully whatever did not do so. attorneys from the Office of the regular One of the participants Litem, Guardian General, ad Attorney childwelfare cases is the Officeof the Guard appeared. Attorney The General was includ- guardian ian ad A Litem. ap ad litem is attorneys ed because from that office had pointed represent the interests responded process to the of the Judicial Con- child, required by as statute.7 partic duct given Commission and statements re- ipation of the Office the Guardian ad Li- garding Judge performance. Anderson's In optional tem is not in child welfare cases.8 order, his Judge Anderson said that the Of- Similarly, Attorney General is most often fice of the Guardian ad Litem had filed a participant in child proceedings welfare Judicial Conduct Commission complaint juvenile court, before the required by him, and that the office of the Attor- statute.9 ney General provided had support for the 125 Both the Office of the Guardian ad complaint and had vowed to force him from Litem Attorney participated General such, the bench. As said in efforts in 1999 and 2000 to resolve the impartiality could reasonably ques- difficulty timely with the handling of child tioned, ethically and he required was to re- welfare in Judge cases Anderson's court. cuse himself from involving cases those two part because Anderson refused to ac- Although offices. was in specific cept responsibility difficulty, for the no solu- cases that disqualified Anderson then tion was reached either a formal or an himself, time, it was clear at the to both way, although informal both attempted. were colleagues and his on the 1 Noting these difficulties and the fruit- Court, Third District Juvenile that having less problem, efforts to correct in June position, taken that Judge Anderson should 2000, the Director of the Office of the Guard- not, likely not, could any hear other child ian ad Litem a request submitted for investi- they welfare matters since all involved attor- gation Anderson's conduct neys from the Office of the Guardian ad Judicial Conduct Specifically, Commission. Litem and the Attorney General. request sought investigation inability timely conduct hear- 8, 2000, 129 Since November the date of ings or issue decisions in child welfare mat- disqualifica- notice of his ters, to prejudice represented children tion hearing cases, child welfare he has by the Office of the Guardian ad Litem. not heard cases of type. His share has By fall investigation been was handled other who volun- underway, with the Judicial Conduct assigned Com- teered or were to do so for discrete *9 mission staff conducting a periods, series of inter- or the cases by were absorbed his 78-3a-116(2)(b) § 9. (Supp.2003). Id. 78-3a-314(3)(5), 7. -912(2) §§ Utah Code Ann. (2002). Id. Commis- complaint to the Judicial Conduct District Juvenile the Third colleagues on statements her about sion contained false Court bench. him. has since Judge Anderson Although T30 his load of willingness to reassume expressed amended questioned « about the 34 When cases, origi- circumstances child welfare that the complaint,Judge Anderson indicated disqualification from leading to his
nally
filing
a
filing
response
in
second
was
resolved,
nor
not been
cases have
complaint by
Judicial Conduct Commission
to do
action
taken sufficient
Judge Anderson
of the
ad
the Director of the Office
Guardian
so.
However,
Judge
against
Litem
Anderson.
2001,
{31
Judge Anderson
During late
notified of the
Judge Anderson had been
in the United
complaint
to file a civil
chose
prior
than two weeks
complaint more
second
Utah,
the District of
complaint.
District Court
filing of his first federal
States
'to the
of the Judicial
naming
executive directors
forthcoming.
explanation
further
was
No
Officeof
and of the
Commission
filing of the amended com-
1 35
Since
Litem,
as the Chairman
as well
ad
Guardian
court,
by Judge Anderson in federal
plaint
Commission, as de-
Judicial Conduct
of the
any
involving representation
matter
depriva-
alleged various
suit
fendants. The
assigned
Litem
of the Guardian ad
Office
rights
protected
Judge Anderson's
tions of
generated a motion to
Judge Anderson has
constitu-
and Utah
the United States
under
of ex-
Judge Anderson for reason
recuse
process, and
tions,
complaint,
by virtue of the
attorneys of that
pressed
bias
Conduct Commis-
proceedings of the Judicial
office, including the Director.
the suit were veri-
allegations of
sion. The
by Judge Anderson.
true
fied as
2002,
By August
Judge Anderson's
specific
makes
The federal
lawsuit
inability
child welfare cases had
to hear
Di-
of the
the conduct
allegations regarding
severely affecting his rela-
point
reached a
ad Litem
of Guardian
of the Office the
rector
judicial colleagues and re-
tionships with his
direction, indicating
attorneys under her
then-Presiding
in an effort
sulted
of children in
representation
Juvenile Court to
that their
Judge of the Third District
in a number
court was deficient
to child welfare
reassign Judge Anderson
federal com-
important
respects.
involving
of the Guardian ad
cases
the Office
of the
the Director
plaint specifically accuses
Judge Anderson's
despite concerns for
Litem
initiating
ad Litem of
of the Guardian
Office
A
the Office of
expressed bias.
motion
complaint
Commission
the Judicial Conduct
resulted
an order
ad Litem
the Guardian
previously
had been
knowing that the issues
to recuse
denying
attempt
corrected,
conspiring and of
resolved
twenty-one specific cases.
Anderson on
position
Judge Anderson
both
deprive
cited,
order,
among
Presiding
constitutionally protect-
and his
on the bench
motion,
for his denial of the
other reasons
rights
process.
in the
ed
impact on the
appalling
the "horrendous
ability
Third District Juvenile Court
filed an amended
cases"
20,
statutory obligations to hear
meet its
suit on December
complaint in the federal
prior dis-
as a result of
Director of the
he named the
the fact that
was
as well as
qualification,
a
ad Litem as
defen-
of the Guardian
Office
ju-
"administratively impossible for another
representa-
personally, not
her
dant
judge
assume
complaint, and
venile
first
capacity as
tive
cases,
cases as
handle their own
against her. As be- Anderson's
money damages
sought
well,
constraints of
meet
the time
al-
fore,
complaint made direct
amended
Noting the difficulties
Act."
Welfare
the Office of Child
against the Director of
legations
sig-
disqualifying
inherent
in which
ad Litem
the Guardian
for a
matters,
judge's caseload
portion of the
nificant
asserted,
among other
of time
period
and indeterminate
protracted
Director with the Judi-
filings from the
judge and
between the
antipathy
because
constituted retalia-
cial Conduct
firm,
Presiding Judge denied
lawyer or
and that
against Judge
tion
*10
disqualify
Third District Juvenile Court bench: his un-
Judge
motion to
relying
proof
timely
on the absence of
him;
actual bias.
action on
assigned
cases
his
reactions
challenges
untimely
to his
action
appeals
137 The court of
reversed the
cases;
on those
and his reaction to the activi-
presiding
only
judge,10
ordering Judge
not
ties of the Judicial Conduct
in
Commission
disqualification
twenty-one
untimely
review of his
action on cases.
cases,
pend
enumerated
but
all cases then
Judge Anderson has demonstrated an inabili-
ing,
pending,
and to become
that involved the
ty
responsibility
actions,
to take
for his own
Office of the Guardian ad Litem. Thereaf
particularly
respect
delays
with
beyond
ter,
Attorney
sought
General
a similar
experienced
by
other
in similar
disqualification.
order of
Presiding
circumstances. He has instead attributed
Judge again
request,
denied the
again
timely
difficulties with
performance to
the order was reversed
ap
the court of
the court staff
parties
and to the
and counsel
peals, again
present
with
prospective
appearing before him. His resistance
Presiding
effect.11 The
Judge sought our
suggestions
administrators,
from court
cleri-
review of the second decision of the court of
help,
cal
colleagues,
his
presiding
judge,
appeals
certiorari,
petition
which was
and others
resulted
a lack of cor-
granted and consolidated for decision with
rection of the
difficulties described
Oddone,
this matter. See State v.
1145 by one member of caseload, allegedly improper recusal Judge in his cases welfare Commission, evidentia- Conduct of his the Judicial the duties perform cannot Anderson master, special the thor- ry rulings inability per office. investigation by the Judicial oughness undue burden of the places an his duties form staff, matters whose and attribution of and families children Conduct Commission him, well as assigned to for which he claims delay have been would It Court. District Juvenile upon the Third responsibility. no judiciary to hear capacity of the reduces important critically timely resolve sub-issues, and Including assigned to otherwise be that would
matters fifty-two issues for presents some office, Anderson, in his successor or an additional He has also filed our review. im appalling and a "horrendous consider, and creates us to and motions for seven District Juve ability the Third pact on the filings. supplemental continuing series statutory obligations," its to meet nile Court carefully argu all of his have considered We in his order on judge wrote presiding as the Some we find ments and submissions. however, his significantly, More recusal.12 merit, will address no totally without and neutral, citizens a Utah's have denied actions address turn. further. The others we officer, thereby effective, law-abiding First, however, objec must consider the rep diminishing overall effectiveness by the Judicial Conduct Commis tion raised judiciary. utation of the General, Attorney sion, joined in failure to raise before ANDERSON®S JUDGE v. certain Conduct Commission Judicial CHALLENGES argues us is fatal to he now the issues response to the at this late consideration of those issues of the Judicial Conduct recommendation stage. disciplined, raises a he be
Commission among challenges. First number of OF ISSUES VI. PRESERVATION constitutionality challenges to the are Commis- composition of the Judicial Conduct apply appellate procedure T46 The rules of sion, constitutionality process of the fol- However, this court. to all matters before by the Judicial lowed appeals. court are before this not all matters constitutionality process of the posture. in a reach us different Some cases special master. appointing this court lawyer discipline discipline and regarding the also raises issues 143 He essentially original proceed- particular, are specify constitutionality of two statutes lawyer discipline, case of ings here. In the required to which he was frames within time lawyers rests en- authority discipline actions, which resulted failure of take delegated by our tirely this court and discipline, and the the recommendation fune- Bar for some State rules to the Utah disciplined as a constitutionality being of his tions, courts for others. to the district exercising "right" to file the result of 4; VIII, § Utah Rules art. Utah Const. lawsuit. federal 10(a), 18, Disability Discipline and Lawyer cases, they under our 19, act In both {44 23-25. of other Finally, raises a number he eventually matters authority, original specific findings of the Judi- regarding issues appeals, not as special for action come brought to us cial rejection by way of final confirmation but master, regarding bias members issues delegees. by our taken of actions Conduct Commission the Judicial special additional fact master for Denying Motion remand Guardian ad Litem's Order 12. (5) special master's August finding, objections to the to Recuse dated (6) master's to amend motion special report, (1) dismiss, motion to motions include: 13. These (7) find- additional report, motion to make (2) special concern- appeal master's order of the ings. files, (3) special appeal ing review of (4) evidence, allow master's refusal request under our VII. CONSTITUTIONAL CHALLENGES discipline, 147 Judicial constitution, entirely is not vested in our A. Composition *12 hands. The Judicial Conduct Commission Conduct Commission express grant has an of authority and re 149 Anderson raises chal sponsibility, ending with either exoneration lenges to the constitutionality of the Judicial charge of the or a recommendation for disci Conduct presently Commission as constitut pline in forwarded to us the nature of an argues, ed. He as has been done in "order" for sanctions. Utah Const. art. 6, In re Young, 581, 1999 UT 976 P.2d that VIII, However, § 18. may the order be the inclusion of four legisla members of the against enforced judge only upon our on essentially judicial ture what is body agreement implementation of the order. violates prohibition the Utah constitution's on process, Id. In that required we are to review government one branch of exercising authori proceedings of the Judicial Conduct Com ty reserved to another. He invites us to fact, mission as to both law and take addi revisit and reverse our Young, decision in needed, tional evidence as and enter an order simply grounds, on the apparently, that we just as proper seems to us under got wrong it last time. We decline this cireumstances. obligation We have no invitation. We see no upon basis which the defer to the Commission. very Id. This is reversed, decision in Young must be unlike appeal the nature of an from an ad here reaffirm holding our composi body, empowered ministrative one to decide tion of the Judicial Conduct Commission does matters, orders, enter and seek direct separation en violate the powers protec forcement of tions of those orders. In the case constitution. agencies,
administrative
we review their ac
B.
Judicial Conduct Commission Process
an appeal,
tions as
never take additional evi
dence,
always
defer,
and are
bound to
[
Next, Judge
50
alleges
a num-
extent,
some
to the determinations
of the
ber of
process
infirmities in
employed
by
agency.
agency appeals,
therefore,
it is
the Judicial Conduct Commission. Some of
logical
require
these,
says,
may
matters
he
deprivation
be dis-
amount
to a
process,
positive
guaranteed
due
presented
as
by
him
the first
the Unit-
instance
ed States Constitution and
agency,
to the
may
so that it
Constitution
consider them
of Utah.
consequence
Those of
we address in
at
reaching
the time of
its decision. Failure
turn.
so,
correctly
do
as
by
noted
the Judicial
Conduct
usually
is
a bar to later
1. One-tier Process
consideration.
But
the case of
matters,
conduct
151 The
challenge
where this
first
court is at
to the
liber
Judi
cial
ty
raise,
process
Commission's
rely upon,
is a chal
issues considered
lenge
to its division of
duties
judge
neither
nor the Commission
urges
that allowing the Commis
during
interaction,
their
grossly
would be
sion
investigate,
itself to
prosecute,
adju
prevent
unfair
judge
from raising seri
dicate
against judges
claims
great
creates too
may
ous issues that
bear on
proper
reso
a risk of bias to be constitutionally permissi
lution of the matter. No such bar exists.
ble.
Anderson cites no constitutional
said,
148 That
it is
provision
obvious that
being violated,
as
but we assume
degree possible,
judge
his
process
and the
reference is to
Commission
due
under
both benefit
United States
exploration
from a full
Constitution. He also
cites no
issues,
relevant
support
case law in
argument,
relevant
need for action
nor did he
meaningful
make a
argument
might
this court
be eliminated as a result.
point
at oral argument.
practice
Good
dictates that
issues should be
raised at
possible
the earliest
moment
1 52
type
argument
This
was addressed
proceedings, notwithstanding
right
to do
by the United
Supreme
States
Court
so later.
Larkin,
35,
Withrow v.
421 U.S.
95 S.Ct.
any provision of
in violation of
(1975),
involving
a case
L.Ed.2d
VIII,
Article
Section
Utah Constitution
func
adjudicative
investigative and
combined
78-8-101(2)(2002).
§
to disci
Ann.
authorized
Utah Code
board
a medical
tions of
the Court
Analogously,
physicians.
pline
(Utah
Worthen,
D. Special Master
days from the date of the shelter hearing,"
Next,
Judge Anderson asserts
and Utah Code
78-7-25(1),
section
which re
that the
Supreme
Utah
Court has no
quires
authori
that a judge of a trial court "shall
ty
appoint
to
special
a
master to take addi-
decide all matters submitted for final deter-
Anderson also
question
raises a
government
about
that lacks
purse
either sword or
to
ability
our
to withstand the
legislative
threat
protect
itself from the others. The courts must
displeasure. Again,
court,
the members of
rely
law,
on the rule of
ability
the ultimate
to
now,
in the
and in the
any
infringement
declare
past,
future, come to
by the other branches
their
posts recognizing
they
part
system
are
of a
in the exclusive
judiciary
business of the
uncon-
government
that entails stresses and checks
Historically,
stitutional.
proven
this has
suffi-
balances,
part
and are
of a branch of that
cient.
statutory
for
deadlines
submission,
to observe
refusal
months
two
within
mination
cases.
adjudicating
delay are
causing the
cireumstances
unless
control."
personal
judge's
beyond the
is not
from this
follows
What
T 66
held
be
cannot
that he
argues
Anderson
a
press
right
no
had
Anderson
two
these
either
violation
for
account
statutory
claim
constitutional
statutes,
as
appropri
is that
follows
What
deadlines.
power
beyond
it is
done, because
judge is to
for
behavior
standard
ate
for
deadlines
to set
legislature
time,
if
at
as it exists
the law
observe
func-
central
clearly the
what
accomplish
it,
forth his
to set
challenge
he seeks
hearings
holding
that of
judiciary,
tion of
a case
of decision
record
reasoning in a
making judgments.
seeking a
action
bring an
him or
law's
at the time
declaratory judgment
may
merit
be
there
While
his consti
infringe allegedly
requirements
does
claims,16Judge consti
offend
otherwise
rights or
tutional
objection
constitutional
that his
argue
acceptable behavior
It cannot
tution.
he
reason
was
statutory deadlines
at
obey
law without
fail to
judge to
If
deadlines.
to observe
failed
a consti
to believe
any reason
providing
time
by a constitu
motivated
had been
failure, only
motivated
objection
tutional
observe
refusing to
objection
tional
un
proceedings
disciplinary
later
years
such
cited
deadlines,
have
could
he
statutory
objection.
veil a constitutional
refusing to
when
his reason
objection
an
now
has no recourse
T 67
the statu
within
case
particular
adjudicate
Judges
itself.
the statute
challenge of
ato
of his
record
establishing a
thus
tory period,
in this
very high standard
to a
held
are
have
then
could
for decision
grounds
*15
exception.
no
is
Judge Anderson
regard.
have
Alternatively,
could
he
appealed.
been
the stat
that
judgment
declaratory
sought a
Lowsuit
Federal
Filing the
F.
unconstitutional.
were
utory requirements
in the
action
filing
ac
a civil
of these
168 In
neither
took
Anderson
Judge
Conduct
the
Judicial
consti
result,
courts
Judge
federal
aAs
tions.
ex
others,
Anderson
Judge
of
to be
too late
and
raised
is
Commission
argument
tutional
of
redress
for
petition
right to
his
ercised
help.
However,
he has
judge,
as a
grievances.
Judge Anderson
that
not hold
do
T 65 We
burdens.
other
ar-
constitutional
this
preserve
to
failed
has
sue
to
decision
T69
that
view
Rather,
the
express
gument.
challenge the constitutionali-
to
federal
objec-
his constitutional
record
failing to
Com-
Conduct
of
aspects
ty of
him,
cases before
in the
deadlines
tion
has no di-
composition
process
mission's
judgment,
declaratory
for
action
in an
or
his
ability
perform
to
his
impact
rect
his
register
to
has failed
Judge Anderson
bring the
such,
to
decision
the
As
duties.
with
contemporaneous
way
any
objection
review
in our
a concern
is not
action
statutory require-
the
to observe
his refusal
case.
of this
cireumstances
facts
no reason
us
given
has therefore
He
ments.
decision
However, Judge Anderson's
T70
moti-
principle
constitutional
that
to believe
attorneys who
the
about
allegations
to add
cannot
Judge
refusal.
that
vated
him
about
complaints
supported
or
initiated
obey
stat-
the
to
failure
his
excuse
therefore
ais
Commission
Conduct
Judicial
the
with
by applying
fact
the
after
requirements
ute's
to
is free
While
concern.
when
deadlines
attacking those
rationale
citizens,
wishes,
all
as are
he
whomever
sue
in his
role
no
played
plainly
rationale
reser-
appear to be a
not
does
legislation. There
the
not,
reach
question
and do
not,
We need
authority
any
legislative branch
the
power
set
vation
legislature has
whether
blush,
procedure
However,
process
does
it
rules
at first
to set
deadlines.
such
func-
entirely
respect
core
courts,
power
particularly
been
has
appear that
court,
the district
tions.
court,
vested in
supreme
may
established
as
courts
other
and such
subject
he is also
to the consequences of such
issue,
at
context,
additional
including where
a decision.17 Taking Judge Anderson at his
appropriate
general
practices of other
word in the verified
complaint
federal
similarly
judges,
situated
may be necessary.
complaint,
amended
he believed that
the at Worthen,
VIII. OTHER CHALLENGES *16 T 75 The Judicial Conduct Com A. Objections to Findings mission has proposed public a reprimand be 972 Judge issued to Judge Anderson expresses con Anderson for his failure to cern about findings timely by made hear both the and Judi decide the eleven matters cial Conduct Commission cited in the the order special issued the Commission. master. One concern centers on Judicial Conduct Commission deter mined that "Judge Anderson's belief that both the Anderson's failure to hold Commission and the special master must consider facts adjudication the nine hearings timely related to manner, question the and his holding of the two cases of whether the delay evidenced in Judge Anderson's behavior under is advisement period for a in excess of widespread among juvenile other months, two court pattern constitutes a of disre judges. reject We this challenge gard for two and indifference to the law" and there First, reasons. our decision in Worthen does "violated Code of Judicial Conduct Canon not require the Judicial 2A, Conduct Commission which requires judges to 'respect and find, to or consider, even whether or not a comply law,'" with the resulting in "conduct practice is widespread, if practice the prejudicial violates to the justice administration of clear mandates of law. It is the context of which brings judicial office into disre the unethical or improper behavior that mat pute." Ordinarily, we would not propose a ters our review. In instances where clear sanction more drastic than that ordered court rules or statutory requirements are not the Commission in a case involving specific, In McCully, re (Utah 1997) P.2d speech subject but would judicial herself disci- (holding that could right exercise to free pline). necessary type is of this A review mission. business to conduct failures discrete propri- suitability and However, for us to evaluate legal requirements. keeping by the Ju- recommended ety of the sanction involve not does case In cases where Conduct Commission. by the Judi- dicial identified events those discrete ceased, fully has behavior the sanctioned Commission. cial Conduct through alternative judge has evidenced Worthen, carefully defined we In T76 unlikely to re- is problem that behavior consti- necessary establish elements at problem cur, to see inclined we are discipline based ground tutional unlikely to resolved, and are partially least of administration to the prejudicial "conduct of the Judi- the recommendation depart from into judicial office brings a which justice more se- to direct Conduct Commission cial brief, In P.2d at 870-72. disrepute." cases where judge. In discipline for the vere of the administration prejudicial conduct continued, or has has behavior sanctioned into office judicial brings justice that judi- of breaches directly to more serious led (2) (1) at least that is conduct is: disrepute restrictions, may be forced we cial conduct ju- judge's within if it occurs negligent this In sanctions. more serious consider if outside or willful capacity, dicial case, is the removal sanction that (8) that re- judicial capacity, judge's judicial office. appli- canons the ethical a breach flects in the Code contained judges as cable most se it is the 179 Because Further, "unjudi- Id. Conduct. Judicial may impose, we re which we sanction vere (4) prejudicial must be: conduct" cial only after solemn office judge from move a it is meaning that justice, administration As holders consideration. deliberate injure impair, that tends conduct ourselves, are mindful judicial office to, to, to, damaging or detrimental hurtful judicial in the selec rigors judges endure the administra- constitute that activities rig evaluation, processes, tion, and retention range of including the entire justice, tion of Utah the citizens well serve ors sys- judicial of the functions activities pub able branch with judicial our populating (5) must: conduct Finally, tem. Id. therefore, acutely are, We lic servants. disrepute, into office bring the distress professional human and aware "the effect meaning conduct position so loss of accompanies the judi- particular for a lowering public esteem however, is, duty preeminent Our hard won. public to lower tend[s] thus cial office duty serve, which we to re- so as judiciary entire for the esteem convinced flinch when that we demands Id. at 871. effectiveness." duce its necessary sanc judge is of a that removal case, misconduct. tion for T77 found office, up judicial taking Upon 1 80 stat requirements of by the to abide failure rights to small measure no surrender *17 to be decid at issue cases directing the utes intercourse social participation political manner, specified the within timely in a ed They so in do generally. enjoyed citizens the to prejudicial conduct constituted period, integrity of the preserving of the interests his brought which justice of administration integrity government, of judicial branch the agree. disrepute. We into judicial office impartiality hallmarks as its has of law. fidelity the rule to uncompromising nearly addition, we have done as T In78 limita- the of the burden judges wear Most by the Judicial to us referred every case although from lightly, conduct their tions on the reviewed we have necessary to it find also time most time to behavior Judge Anderson's status current passionately express to impulse off the pinch brought and charges directly to the related benign mischief. participate haveWe views or by the Commission. held adjudicated the effec- judges to elevate on demands evidence, described additional sought preserva- justice and tive administration how above, question on over judicial office public esteem tion of difficulty led handled has Anderson a and limit to can extend interests personal Com- by the Judicial action judge's options against to defend allegations prejudice, bias or 3B(5); id. at Canon be of misconduct. For reasons known patient and courteous to all persons with himself, Judge Anderson engaged has in a whom he or she judicial deals in a capacity, course of conduct animated a single dis- including lawyers, 8B(4); id. at Canon turbing theme: the denial of blameworthi- disqualify himself or any herself in proceed- actions, ness for his and a concomitant un- ing where the judge's impartiality might rea- willingness way to find a job. to do his sonably questioned, be including situations in judge personal has a 181 Judge preju- bias or coupled has his dice concerning party a party's steadfast refusal accept lawyer. responsibility for 3E(I); 8E(1)(a). Id. at Canon his actions with wide-ranging accusations di- others, rected at both within and outside the case, In84 Judge Anderson created courts, tardy for his decisions in child welfare a circumstance where he allowed his non- cases. The master found these conclusions judicial activities, namely his federal action widely shared against the Director of the Office of the colleagues. The master noted that "[lt is Litem, Guardian ad priority take over his nearly opinion unanimous judicial duty to hear child welfare cases. He of the Third District Juvenile Court did so treating Director, the attorneys Judge Anderson could have and should have office, in her attorneys of the Attor- something done long ago bring to resolu- ney General's office with considerable disre- disqualification tion his from hearing large spect, creating a continuing situation where cages." classes of added, The master "[Clen- his impartiality might be, reasonably among tral these frustrations feeling, was, repeatedly questioned. expressed by several but attributed more widely, that Judge Anderson has not taken "unjudicial €85 This conduct" was also ownership problems, of these pointing the dramatically prejudicial to the administration blame elsewhere. These frustrations are justice, created, because it in the words of genuine and have basis in fact." the presiding judge Anderson's dis- trict, a recognizes now "horrendous appalling impact on difficulty ability imposed he has judicial Third his District col- Juvenile leagues, Court appellate courts, to meet its statutory attorneys obligations the Office of hear cases" in Guardian ad Litem was "administratively Attorney General, impossible for juvenile on the clients another attorneys, and on the staff and partici- other assume Anderson's cases" under the pants in child cireumstances. welfare brought cases in the Third District Juvenile Court past over the Finally, Judge Anderson's disastrous three-plus years. now, He has belatedly at choices regarding retaliation lawyers best, attempted to take steps to alleviate at from the Office of the Litem, Guardian ad a portion least of the ongoing difficulty he including Director, its and the office of the has Obviously, caused. he cannot any relieve Attorney General, has unquestionably past difficulty he has created. "brought office into disrepute." retaliation promoted and intemperate statements directed at the discussion of dispute attorneys attorneys required by law to appear on child he accuses of attempting to improperly re- welfare cases constitutes conduct that was at move him from office. His actions have been *18 negligent, least and runs afoul of Canon 3 of widely reported. The court, activities of this the Code of Judicial Conduct. Utah Code of a as result of the referral from the Judicial Conduct, First, Canon 3. Canon 3 Commission, Conduct brought have more ex- requires a give to precedence to posure his or of dispute. the As he has acknowl- judicial her duties over all other activities of edged court, before this his charges were too judge. Id. at Next, Canon 3A. in a made, series broadly made as a result of emotional of provisions, related Canon 8 requires a and conclusions, ill-advised and wrong- have Judge perform to judicial all duties fully without impugned integrity competence and behavior, espe- past T 90 he whom lawyers with of group large aof current light of cially when considered dispute. for basis has, no reasonable had, and cireumstances, easy solution. suggests no con- by Judge Anderson behavior I This interests of judiciary, the integrity The the administra- to prejudicial conduct stitutes Utah, of past behavior and people of office judicial a brings justice which of tion sanc- require a severe all Anderson Judge that have defined we as disrepute, into if problem tion, will correct that one in Worthen and here phrase to re- but no alternative see possible. We a result. discipline as merits Anderson a his office as from Judge Anderson move in a discipline Appropriate short of Any sanction judge. juvenile court to easy matter an this is as case such damage done correct will neither removal discipline judicial of purpose resolve. nor restore judiciary to the discour First, discipline judicial three-fold. dignity function and of proper level to the judges, given that behavior improper ages requires. office that his officials, uphold the to sworn they are of correc avenues subject limited law, to and X. CONCLUSION an Second, discipline affords judicial tion. findings, conclu upon the "91 Based opportunity and cause judge both errant sions, Judicial Conduct order of the and is correctable. that misbehavior correct Commission, that we hold judicial disd- Third, importantly, most judge, specif obligations as a judicial his has violated integrity of the protects pline adjudication to hold ically in that he failed people of interests in the system manner, two and held timely deciding on the in a hearings serves, people of Utah. period ex for a matter re advisement particular under a cases sanction of measure constituted This action months. cess of two quires, indifference disregard pattern of a the com purposes, these consider must of both in violation being law sanc severity the conduct of parative Con course, of Judicial We, the Code office and oath of of tioned, among issues. other respect and judges to duct, requires same. which do the must law, resulting in conduct comply with Anderson, he has of case In the justice of to the administration prejudicial inter- his individual placed choices that made disrepute. into judicial office brings a which the duties way performing in the ests conclude, based we also importantly, More severely He appointed. was he which by the adduced and evidence upon the facts ability of the ability, and the impaired his master, special proceedings Court, its to do District Juvenile Third entire those violations consequences the direct years. three more than period job for a creation, include also half of words, than for more In other him prevented have of cireumstances office, has not he six-year term current juvenile his duties performing from retained appointed and was job he done and that years, period of judge for a court interim, has continued he In the do. consti also by Judge Anderson behavior office, pursue enjoy the emoluments the administra prejudicial tutes conduct presented never of action a course office brings a justice which tion quick resolution. likelihood reasonable such, modify the order disrepute. As into date, to attrib- continues he this late Even at or of the Judicial others, has failed ute his difficulties be, and Judge Joseph W. der im- to relieve action any effective take juve aas is, his office from hereby removed oth- expense at he has created passe immediately. judge, effective court nile qualified propose Although he did ers. by this notified apology once self-justifying DURHAM, { Justice 92 Chief Justice jeopardy of in serious he was PARRISH, and Justice WILKINS, Justice office, admits he also being removed opinion concur has NEHRING he the mess now undo cannot that he *19 court. made. DURRANT, Justice, Associate Chief by Commission, we have considered a
concurring part in dissenting part: judge's response attitude in to the Commis- sion proceeding any by efforts judge agree 193 I with the conclusion my remedy to problem, my colleagues go far colleagues that public Anderson's ac- beyond that here. Rather merely than con- prejudiced cusations have the administration sidering the aggravating or mitigating effect justice imposed a substantial burden of Judge public accusations, Anderson's my on in the Third District Juvenile colleagues rely now upon those accusations however, Court. disagree, I that this court principal justification for his removal. empowered is remove Anderson Thus, we remove today from office for conduct that was neither con- played conduct that no role in the Commis- by sidered the Judicial Conduct Commission sion proceeding and that had bearing no nor a basis for the Commission's recom- upon the sanction by recommended the Com- mended sanction. mission. This I believe we are empow- not complaints 94 The the Guardian ad Li- ered to do. tem filed with the Commission alleged that 196 As the court of last resort in this had, occasions, numerous state, we are privileged with power. vast failed statutory to meet deadlines. After Attendant power, however, to that is an obli- appropriate investigation into and hearings gation to carefully police ourselves in its regarding complaints, these the Commission exercise. We only have that authority the ultimately judge found that had been us, grants constitution rigor- we must be untimely specific in eleven instances and rec- ous in limiting ourselves to the bounds set ommended that publicly he be reprimanded that document. for these failures. findings These of tardi- ness, significant while and warranting sance- view, my 197 In parameters of our tion, dwarfed, have now been any terms of authority to discipline judges fully are prejudicial effect on the administration exclusively VIII, defined article section justice, by Judge retaliatory re- 13.1 Section empowers the Judicial Con sponse to the Commission proceedings con- duct Commission investigate "to and conduct cerning Indeed, them. it is response this confidential hearings regarding complaints that now serves as the principal my basis for against any justice or judge," and to order a colleagues' decision remove sanction. It following such an order Anderson from words, office. In other jurisdiction that our is invoked: "Prior to the being is not removed implementation be- any order, commission cause he made decisions in an untimely man- Supreme Court shall view the commission's ner, but rather public because he made accu- proceedings as to both law and fact." sations against the offices of attorneys who conducting review, we are authorized to frequently appear him, thereby "permit ren- the introduction of additional evi dering disqualified himself from hearing the dence." We are further imple authorized to bulk of juvenile the cases a ment, must reject, modify or the Commission's hear. order. I do dispute that these My colleagues position take the that accusations relate to the proceedings before authority upon conferred us section 13 They were, Commission. fact, made to take additional evidence authorizes us to response direct complaints made with impose a sanction based on that evidence. I a linkage my colleagues true, believe this to provided the addition- consider adequate justify removal under al evidence serves support or undermine VIII, article section 18. But while it is true charges filed with the Commission. past, when determining Thus, whether case, in this clearly were authorized accept modify a sanction recommended to take additional evidence to determine I do not believe that we have cannot, legislature inherent purported as it has to do authority discipline Moreover, judges. agree I statute, confer us upon power does not implication with my colleagues possess. itself *20 consti- seope of our my interpretation tardiness findings of not or whether majori- with the authority. agree I tutional adequately were by the Commission made constitutionality analysis regarding ty's that tardi- the causes to assess supported, itas is Commission of the Judicial whether ness, determine constituted, process employed presently aber- was untimeliness pattern of considering the by the Commission juvenile other that of relative rational authority charges asserted as our inasmuch But judges. pro- review impartially reviewing the Commission's ability of our court limited to is recommendations, authority our our license agree that I not ceedings, do master, failure special appoint a basis qualifies evidence additional take statutory deadlines to meet Judge Anderson may remove we upon which the Commission basis for permissible evi- aas case, such additional given that in this Beneh's propriety proceedings, was neither that conduct concerned dence neutrality recusal, fairness and by the Commis- upon relied nor considered I concur as Accordingly, Commission. proceedings. in its sion majority VIILB of and parts VII.A-E authority under {99 our The extent remainder. as to the and dissent opinion, territory, concededly uncharted 13 is section that see- interpretation my colleagues' however, believe, I unreasonable. is not tion comports closely reading more my
that of the section. purpose language final arbi-
Moreover, we are the given that are to err authority, if we of our
ters judicial restraint. the side be on should App 2003 UT certain, are motivated colleagues my To be Appellee, Utah, Plaintiff STATE judiciary for the concern sincere their in our appear attorneys who parties and v. created problem juvenile courts. HANKERSON, Defendant Enoch public accusations Judge Anderson's Appellant. perplexing resulting disqualifications it is no reaching, and far consequences 20020974-CA. its No. resolve for us to more efficient doubt Appeals of Utah. Court being consid- it first directly without matter that But I believe by the Commission. ered 11, 2003. Dec. the Commis- requires our constitution allega- hearings on and hold investigate sion in- in the first judicial misconduct
tions of problem exists Merely because
stance. em- we are necessarily mean that
does Rather, it must remedy it.
powered constitutionally pre- through
addressed my view it is Consequently, channel. seribed with the Commis- is filed complaint if a public accu-
sion based a sanc- issues
sations, and the Commission then and complaint, based on
tion order to address empowered
only then are this view differs charges. As respectfully dissent. colleagues, I my however, my note, I wish to do appropriately issues with certain
agreement under even majority opinion by the
reached