In Re Jett

court of appeals mind. Our own has ac-

knowledged past deceptive that a merchant’s practices

sales are relevant to both the issue currently

of whether a merchant is involved deceptive practices, sales and to the issue Jimmy Dunlap v. punitive damages. Tucson, Inc., GMC (App.1983). prior examples then would be

What bad

acts would not relevant would be prove

offered bad character of the prior

defendant? submit that a bad act

wholly practices unrelated to business properly

the defendant would be excluded. such things

This include as drunken- prostitution, wholly

ness unrelated to underlying intent consumer fraud. remand,

Perhaps light opinion on our

today, the trial will make different

discretionary call about this evidence and opinion

admit it. the majority’s read

suggesting that it is within the court’s discre-

tion do so. JETT,

In re Rita Tucson, Municipal

Court, Respondent.

No. JC-94-0001. Arizona,

Supreme Court of

En Banc.

Sept. Counsel, Turney, Phoe-

Harriet L. Chief nix, Bar of Arizona. for State Director, Stott, Jr., E. Executive Keith Phoenix, for Judicial Con- Commission on duct.

O’Dowd, Lundquist, Burke P.C. & Burke, Tucson, respondent. Bruce A. for OPINION CORCORAN, Justice. THE OF CASE

STATEMENT on Conduct The Commission Judicial (Commission) Respondent, Rita found that Jett, city magistrate, Can- a Tucson violated 2(A), 3(E) 2(B), of the Code of ons Conduct; 81, Arizona Rules of rule Court; Art. and Ariz. Const. 6.1, § rec- Accordingly, 4. the Commission publicly that this court censure ommends pay, peri- for a suspend Respondent, without days. also recom- od The Commission require Respondent to contin- mends that we psychol- counseling program until her ue her counseling longer no ogist determines require required, Respondent to and that we in, attend, complete a coun- participate seling of domestic vio- program victims lence, psychologist. as recommended jurisdiction pursuant to Ariz. Const. haveWe 6.1, § Art. AND HISTORY

FACTS PROCEDURAL by the as found The facts Commission, Respondent undisputed. are city magistrate in Tucson has as a served early During morn- years. more than Re- Saturday, June hours of intoxicated, boyfriend, Ben live-in spondent’s sleep Andrews, from her woke subjected 19(a)(3), pursuant her to several hours of verbal to rule Arizona Rules abuse. After Andrews refused to leave Re- Appellate granted of Civil Procedure. We house, spondent’s police. she called the petition to transfer. arrival, Upon police their arrested An- pursu- At the same time violence, suspicion drews on of domestic against City, her action the the Commis- trespass, disorderly criminal and conduct. investigating Respondent’s sion was conduct. County Andrews was detained in the Pima incident, As a result of the June the assigned pretrial Jail where his case was to proceedings Commission instituted formal services release assessment. Later that against Respondent. public hearing, After a morning, Respondent jail went to the and Fact, Findings the Commission issued its of pretrial instructed the pre- services staff to Law, Recommendations, Conclusions of and pare containing a release order conditions of Respondent which later were amended. release for Respondent signed Andrews. the right object waived her to: to the Commis- capacity judge, release order in her as a conclusions, findings, sion’s and recommenda- released, bond,

Andrews was without on his tions; petition reject modify file a to the signature, several hours before the scheduled recommendations; request Commission’s arraignment time. argument. oral the matter was Monday, Respondent On June reported 11(b), deemed submitted to this court. Rule presiding magistrate her conduct of Arizona Rules of Procedure for the Commis- Court, Municipal the Tucson the chairman of sion on Judicial Conduct. the Commission on Judicial and the purposes argument For only, of oral we presiding judge of County Superior the Pima concerning Respon- consolidated the action Respondent Court. admitted to each that City dent’s removal Council and she had egregious committed an in error disciplinary action before the Commission. judgment that caused a loss of confi- argument The court heard oral on March judiciary. dence in the And, although disciplinary 1994. this matter triggered This incident pro- different two court, was deemed submitted we al- (1) ceedings: hearing before the Tucson argue lowed what sanction Council, City which in resulted the removal appropriate light in of her misconduct. of from her of City office Tucson Magistrate subject appeal and which is the of DISCUSSION case, companion Tucson, in the City Jett v. 1. (2) Standard Review (1994); 882 P.2d 426 disciplinary subject action that is the grants Our constitution the Com appeal. mission on Judicial Conduct being office,

After removed from Respon- disposition recommend to this court the to be City dent City sued the judicial Council discipline, made each case of reinstatement, seeking members damages, we serious consideration to the Commis attorney’s Haddad, reasonable findings. fees and costs. sion’s 128 Ariz. Respondent argued (1981). that the Council did 627 P.2d The ultimate authority not have the authority impose to remove her from discipline on a member parties office. The judiciary, however, filed cross-motions rests with this Const, summary judgment, 6.1, 4; §§ after which the trial court. See Ariz. art. 3 and motion, granted Respondent’s Haddad, see also (the granted the Arizona imposing Constitution at 222 burden the sanction is jurisdiction Court; Commission exclusive put squarely over the on the city recommend) magistrate. City ap- removal of a power only The Commission has (citations pealed. omitted). Thus, Because the ap- issue raised disci peal directly pending matters, related to a proceeding plinary independently we review the Commission, before which this court Commission’s record because we are the ulti consider, ultimately Lockwood, ap- the court of mate trier of fact and law. peals petitioned (1990). to transfer the case to this 167 Ariz. justice, the administration of which is less Violations than willful misconduct. Al serious violation Although accept we find- Commission’s though this court has not the ef addressed

ings reject partially of fact fect a mental condition on determina the Commission’s conclusions of law. misconduct, tion of we have ad Commission concluded that: lawyer the issue in the context of dressed signing an order actions I, In re Hoover 155 Ariz. misconduct. See jail that resulted the release from 192, 198-99, personal person whom she had a I, adopted reasoning Hoover we prior relationship, intimate sched- his Stout, arraignment, ethically ... im- uled held that: proper because she showed favoritism and obligation primary court’s in admin- [TJhis gave person deferential treatment to a istering discipline protecting bar relationship whom she a with had close public analyzing rather than the reasons in a position who was to influence lawyer’s pri- delinquency. “Our judgment____ conduct or mary concern must be the fulfillment of Thus, Respon that the Commission found standards, proper professional whatever 3(E) 1, 2(B), 2(A), dent violated Canons cause, the unfortunate emotional or other- 81, of the Code of Judicial rule wise, attorney’s for the failure to do so.” Supreme Arizona Rules Court. With attorney [Citations omitted.] An cannot much, agree.1 we discipline by urging miscon- escape bar his disagreement Our with the Commis duct was result a mental condition. Re sion rests with its determination that (emphasis 155 Ariz. at 745 at 945 P.2d spondent’s conduct was not willful miscon added). actions, lawyer disciplinary Thus in duct, prejudicial but rather to was lawyer’s the nature of a misconduct does not justice brought administration of that change merely the misconduct was because judicial disrepute. office into The Commis the result of a mental condition. We hold sion’s conclusion was based on this court’s in judicial disciplinary that the same true Haddad, in which we decision defined judge’s cases. The nature of misconduct “unjudicial misconduct as willful change merely miscon- does not because the judicial judge acting capacity in his condition, duct the result of a mental was 128 commits in bad faith.” Ariz. at 627 judge escape discipline by urging cannot found P.2d 228. Because that her misconduct was the result of such a suffering that was from “bat condition. syndrome” sleep depriva tered woman boyfriend tion when she ordered her released Second, appears to the Commission jail, “Respondent that did from it concluded interpreted requirement faith” have the “bad requisite state mind requiring an intent violate Canons permit finding faith” neces bad Haddad, this court of Judicial Conduct. sary engaged in willful mis to find that she by the adopted the used California standards Although Respon conduct. we concede con Supreme distinguish Court “willful suffering from “battered woman dent “prejudicial to the duct” from conduct syndrome” sleep deprivation when brings judi justice administration of boyfriend jail, we ordered her released Haddad, disrepute.” into cial office disagree Commission’s conclusion 228-29, 497-98, citing 627 P.2d at for two reasons. Qualifica on Judicial Geiler v. Commission First, Cal.Rptr. disagree Cal.3d we Commis agreed There with the Respondent’s mental sion’s use of state support prejudicial Court that: of conduct California Charges. admitted her actions violated these sion’s Statement of particular Canons in her Answer to Commis- charge “implies requires The more serious [willful miscon- misconduct office ac faith, unjudicial contrary tions or in should be reserved for con- taken bad to law duct] jurisdiction, judge acting judicial conscious excess of or for a cor duct which a in his motive.”). faith, improper in rupt “The lesser capacity commits in bad while the charge prejudicial cluded of conduct charge [to the prejudicial [conduct lesser justice] administration of connotes ‘conduct justice brings administration of good which a judicial undertakes faith but disrepute] ap- office into should be objec appear which nevertheless would to an plied to conduct which a undertakes unjudicial tive observer to be con good faith but which nevertheless would prejudicial duct but conduct appear objective esteem to an observer to be not judicial for the office’ as well as wilful mis only unjudicial preju- conduct but conduct office,____” Gonzalez v. Com conduct out of dicial to esteem for the of- Performance, mission on Judicial 33 Cal.3d fice. Cal.Rptr. Haddad, 627 P.2d at Geiler, quoting Cal.Rptr. rule, 228-29. under this the less seri n. 515 P.2d at n. 11. charge prejudicial ous of conduct to the ad case, Respondent acting In this within ministration applies only her lawful boy- when she released her Haddad, good undertaken faith.2 evidence, jail. friend from find no We how- 497-98, (citations Ariz. at 627 P.2d at 228-29 ever, suggests omitted). Respondent acting faith,” “good any “good definition of This court has not defined the terms “bad faith,” Respondent when did so. admit- “good faith” and faith” in the context of ted that John Coleman from Pretrial Release judicial however, approve, misconduct. We phoned Services her because she was the recognized of the distinction by the Califor- victim of a crime. She stated that after Court, nia initially from which we call, receiving go she “decided to down to adopted faith/good the bad faith distinction. jail get boyfriend] jail and [her out of put since had him there.” quintessentially “[B]ad faith is She testified concept specific jail of that she drove requiring intent down and talked to conscious gave John Coleman purpose ness of as who her various forms judge’s an antecedent to a sign. corruptly.” Spruance acting maliciously signed She stated that she or the forms v. Qualifications, Commission on Judicial magistrate judge. where it said or Respon- 778, clearly 841, power 13 Cal.3d 119 dent used the Cal.Rptr. lawful of her 532 P.2d (1975). 1209, purely personal office 1221 for Essentially types reasons. And us- two of judicial ing any purpose her office for acts fall other than the scope within the of bad faith: (1) discharge judicial “intentionally faithful of her committed duties con- acts which [the Spruance, judge] corrupt purpose. See knew or stitutes a should have known were beyond Cal.Rptr. 119 at judge’s] power” [the 532 P.2d at 1221. Ac- lawful and that cordingly, Respondent’s involve “actual we find that conduct malice as the motivation for a (2) faith, thus, judge’s acting vires”; was committed in bad ultra intention charge ally more serious committed “acts within the willful misconduct lawful applies. of a which nevertheless are committed i.e., any purpose corrupt purpose,

for a for 3. Sanctions discharge judicial other than the faithful Spruance, duties.” Cal.Rptr. 119 Having 532 found that violated (citations omitted) 1, 2(A), 2(B), (emphasis 3(E), Canons and that her Hendrix, added); see also In re 145 actions willful constituted misconduct (willful (1985) 701 P.2d prejudicial conduct to the administration of emphasized 2. “It prejudicial should be that our character- for 'conduct to the administration of ground imposing discipline ization one justice brings judicial office into disre- more or less serious than the other does not Geiler, pute.”' Cal.Rptr. at 209 n. imply given regard case we would P.2d at 9 n. 11. unjustified solely ultimate sanction of removal as Mitigating Aggravating and brought office into b. disrepute, appropri Considerations we must now decide the recommends sanction. The Commission ate Respondent’s Having found publicly censure that we of the Code to be a serious violation suspend days, its based on any additional we consider con actions constituted indicating public and the factors jus prejudicial duct administration protection judiciary not need either do do Although ordinarily great we def tice. Peck, Respondent. from See erence to the Commission’s recommenda aggra (discussing 867 P.2d authority determine the ultimate judi vating public and factors that indicated proper See sanctions rests with this court. Peck). ciary Rele protection needed Peck, include, but are not limited to: vant factors (1994) (citations omitted). In this (1) record, (2) acknowledg prior disciplinary reject the Commission’s recommendations (3) misconduct, ef ment rehabilitative we find that because forts, length of service on the bench. misconduct, rather than conduct was willful Deming, 108 Wash.2d See merely prejudicial to the adminis that was by 744 P.2d 340 659 amended justice.3 tration of Additionally, fashioning appropriate an sanction, may properly consider determining appropriate sanc any will factor that indicates that tion, guided principle that the we are by retaining than rather be better served goal discipline punish, but judge. suspending removing See polic protect the interest rather to Qual McCartney v. on Judicial maintaining profession confi Cal.Rptr. ifications, Cal.3d Haddad, judicial system. in the dence (1974) (court 268, considered 526 P.2d 288 Thus, 492, P.2d at 223. 627 mitigation judge’s to fairness “commitment by examining Respondent’s begin reform”), procedural over and innovative public impact the its light of its harm to Spruance grounds by v. Com ruled on other judicial sys perceived integrity of the on the Qualifications, 13 mission on Judicial tem. 778, Cal.Rptr. 532 P.2d Cal.3d

(1975); 282-83, Gumaer, In re 177 Ariz. (court a. Harm Caused (1994) considered ability mitigation judge’s demonstrated instance, Respondent particular In this jus efficiently run fairly, effectively and his‘ get her position Jett used her official court, case which had one of heaviest tice jail. attempt boyfriend from In an released state); Riley, In 142 Ariz. loads in re cf. impact of her actions to the to minimize (despite con Council, her she offered evidence that cluding 30-day suspension practice that boyfriend being re- in her actions resulted warranted, censured attor of law was court earlier than he 3 or hours leased one ney, at that time of three who was Re- have otherwise been released. County, judges in Cochise superior court point: using spondent misses the unnecessarily disrupting judiciary). avoid rea- purely personal office for of her case, prior Respondent’s of In we find improper. Such misuse grossly sons disciplinary highly on the in the record instructive destroys confidence office Respon- protection from judiciary, public’s need for integrity of impartiality Respon- that This is not the first time Respondent’s personal rela- dent. that and shows run of the Code her con- dent has afoul tionships have influenced Conduct; informally disciplined she has been duct. intent, requisite findings, implied "without it stated that: In its the Commission imposed penalty require more severe would have much the most actions do "guilty had it concluded that penalty under the constitution.” severe Commission in office." The willful misconduct prior disciplinary sanc- separate court will consider misconduct in incidents.4 informal, determining formal or 2 incidents occurred within 6 months last judi- imposed in a disciplinary appropriate sanction to be giving incident rise to this And, insofar as Ack- pattern disciplinary cial action. find that action. We not consider public, suggests el will presents misconduct a threat prior judicial strong imposed consider it to be a informal sanctions and therefore we Peck, actions, hereby overruled. disciplinary it aggravating factor. Cf. 867 P.2d at 859. Despite recognizing she committed a misconduct, Respondent argues act of serious judi recognize that in an earlier We suspension appropri- that a short-term is the disciplinary this court refused to cial support her for this case. ate sanction disciplinary consider informal sanctions be claim, that her misconduct Respondent notes proceeding cause the earlier did not involve single directly was a incident of misconduct charge conduct related to the then under impaired Respon- attributable to her state. Ackel, investigation. 155 Ariz. that, because of her state dent claims Ackel, mind, consciously willfully per- “she did not discounted the seriousness that she did in bad faith.” form complaints, stating that if the conduct had Moreover, Respondent points to her immedi- serious, truly been the Commission “should wrongdoing, acknowledgment ate of her her have recommended censure or removal rath Commission, cooperation with the re- merely leaving open er than the file or ad actions, morse over her the rehabilitative Ackel, monishing judge].” 155 Ariz. [the psychological counseling that she has under- We, along 745 P.2d at 99. with other taken, willingness and her to continue such issue, courts that have addressed this counseling the conditions recognized since that “an accumulation of appropriate. deemed incidents,” ostensibly small and innocuous together pattern when taken can indicate “a We with the Commission’s remorseful, unbecoming readily ac- hostile a member of judiciary.” Deming, knowledged transgressions, 736 P.2d at 658 and was co- (citations omitted); Peck, operative hearing. Commission’s cf. But, record, light past disciplinary 867 P.2d at 860-61. of her 91-CJC-068, knowledged primarily In case No. which was decided in that the mistrial occurred misconduct, August reprimanded prosecutorial the Commission Re- because of the record 1, 2(A), 2(B), spondent violating Respondent for Canons is clear that had not held the com- 3(B)(6) of the Code of Judicial Conduct. This parte, prosecutor's munication ex misconduct Respondent’s violation concerns involvement likely have been discovered and the mistri- with members of a local homeowners’ associa- al avoided. tion, councilman, ci1y city pros- a 93-CJC-028, Tucson Tucson In which decided in case was ecutors, magistrate city and another Tucson July Respondent disciplined for two problem prostitutes an effort to address the separate of misconduct. Count 1 in- incidents neighborhood. a local handling Respondent’s volved of a traffic viola- tion, during impatient Respondent which became Respondent’s The Commission concluded that upset pro per with the defendant. The Com- brought involvement with these activities into her miscon- mission admonished for question relationship city the court's with the I, finding duct in Count that her conduct violated appear made it council and that the court had 3(B)(3) Conduct, Canon of the Code of Judicial joint entered a into venture with law enforce- patient requires a be and courte- This, which prosecutors. ment and the Commission ous at all times. concluded, impression "created an that members Respondent’s handling Count 2 involved of a prosecutors of the homeowners’ association and proceeding civil domestic violence in which she special position were in a to influence the court parties both failed to allow one of the a full and that the court was biased.” 92-CJC-066, opportunity participated to be heard and in ex In case which was decided in parte communications with law enforcement offi- September the Commission admonished Respon- reprimanded holding cials. The Commission parte for an ex communica- II, finding city prosecutor dent for her misconduct in Count tion with a in violation of Canon 3(B)(4) 3(B)(4) of the Code her conduct violated Canon of the Code of Judicial Conduct. Be- communication, prohibits parte parte ex of this ex a mistrial of Judicial cause Although was declared. the Commission ac- communications. carry recommendations. weight little In several these factors terms Commission’s actions, mitigation. prior disciplinary cases, In all 4 unanimously deter- recent Respondent acknowledged that her conduct mined that the recommended sanction was case, various Canons of the Code of violated Judi- In inappropriate. the recent Peck prior disciplinary In all 4 in- cial Conduct. 30-day suspen- a Commission recommended stances, cooperated she with Commis- unanimously sion. This removed instances, prior disciplinary Peck, In sion. all Judge Peck. 177 Ariz. at appeared repeated remorseful. After vi- In Lorona 867 P.2d at 860-61. the recent olations, however, case, these lose factors their 15-day the Commission recommended a impact. judi- court, We cannot continue to excuse suspension. justices This with four judge repeatedly because cial misconduct sitting, unanimously suspended Judge Loro- acknowledges wrongdoing, cooperates Lorona, days. na Ariz. for 90 re (1994). disciplinary process, and is remorseful. the Good- a the Commission recommended 3- farb Respondent argues “mental court, however, suspension. month This impairment” reduces seriousness of her unanimously imposed longer suspension, misconduct, thus a lesser calls for sanc suspending entire Goodfarb appreciate tion. We mis Goodfarb, of his balance term. being attributable to her de (1994). prived sleep suffering and her from “bat presents tough for the syndrome.” explained This case decision tered woman As we earlier, however, responsible protect- court. This court is use of her aims, public from those who are unfit public pursue personal regard office to reasons, Arizona of the still serve. We believe that is entitled less constitutes willful get keep, possible judges it can Although best misconduct. misconduct commit judge’s demand impaired should does ted as result of mental judges expect’ much of their in view preclude will state willful misconduct, granted Respon- the vast to them. we will consider the condition repeated dent’s violations the Code determining and what kind of disci whether she is un- imposed procedures Judicial Conduct demonstrate that pline is and what Lawyers, fit for service at this time. protect public. are to be followed Cf witnesses, I, litigants, jurors, general and the Hoover 745 P.2d at 946. by com- are entitled to courts staffed Disposition c. petent judges repeatedly who have not violat- ed canons set forth the Code of Judi- lightly do from the We deviate Com- Jordon, cial Or. Conduct. mission’s recommendations. We that a We believe the dissent that we serious con- should repeatedly that she who demonstrates sideration to the recommendations high unwilling is to adhere to the unable do have in Commission. We and we this judges in expected of Arizona can- standards However, responsibility case. deter- judge indefinitely. expect remain mining appropriate sanction ours Particularly given fact alone. that we however, recognize, Respondent’s We applied have that the concluded to an last violations are attributable three standard, improper legal are in an we this resulting reaction emotional battered follow rec- case unable to the Commission’s which, syndrome, according to Re woman dissenting ommendation as the recog spondent’s expert, is treatable.5 We do. judges lawyers per nize also that have relationships, Despite sonal lives and all the dissent’s statements prob contrary, improper problems attendant. Such nothing even sometimes there lems, further, seriously recognize varying from the have unusual about the court we urging, con- of the same emotional 5. At the Commission found stress syndrome sleep Respondent's de- dition woman [battered that the behavior that resulted privation] suggests disciplinary "she when those incidents occurred." last two actions

Ill FELDMAN, Justice, specially Respondent, impaired perfor- Chief affected office, concurring. part mance in and are of the cause of improper past cases. conduct analysis I the court’s and re- however, thing, failed to It is one separately only sult. I write to indicate perform personal to standards because of day I the case in leave for another which problems seriously and another commit impairment judge suffers from a mental so improper problems. act as a result of those deprives cogni- him serious that it or her serious, if, present It more as in the is even view, ability my In tive or volitional control. judge’s recurring personal problem violation of the Rules of Judicial Conduct repeated has caused her to commit acts of by impairment gen- caused such a mental case, although abuse of office. such a we erally only by compulsory re- to be handled may understand the actions of a so disability rather than sanc- tirement affected, duty public requires our us to preju- tion for willful misconduct or longer per- that the ensure will no justice. dicial to the administration of 4(A) (B). repeat improprieties 6.1, mitted to such or abuse § Art. Const. office. case do not such a situa- facts involve tion. appropriate feel that an we sanction suspend Respondent. in this case would be to ZLAKET, Justice, dissenting. Respondent, Were we remove we would Tucson, City In view of Jett v. holding forever bar her from office. which a Const, 6.1, § See Ariz. art. 4. Under these City of this court held that the Tucson Coun- circumstances, removing Respondent goes Judge cil had the to remove Jett from necessary protect pub- farther than is office, presently believe issues before Respondent may lic. Because be fit to hold Additionally, my us are moot. because of future, judicial office at some time in the disagreement legal analysis with the City because the Council has removed her here, applied respectfully sanction dissent. term, from office for the balance of her we The Commission on Judicial hav- adequately conclude that will be ing viewed the witnesses and heard the evi- protected simply suspend Respondent if we dence, unequivocally found that Jett City effective the date on which the Council syndrome suffered from battered woman’s so, doing removed her. we a simi- follow sleep deprivation the time of the procedure lar and rule to that which we question. incident This was based followed in Because the action of Goodfarb. expert testimony. on uncontroverted Fur- Council ensures that thermore, undisputed hearing evidence at the term, will not serve the balance of her established these disorders resulted struggle problem need not with the of decid- pattern compan- from a of abuse her male ing just ap- what sanction would have been fact, period many ion over a months. propriate had the Council taken no action. “sug- found commission that the evidence

gests that she under the stress of the CONCLUSION same emotional condition” two of her when occurred, previous incidents of misconduct We conclude that private one of resulted in informal constitutes willful misconduct in office and is reprimand private and the other in a infor- prejudicial to the administration of mal admonition. The concedes all brings disrepute. the office into this, yet inexplicably places of substantial Const, 6.1, § Am. art. is weight prior disciplinary on these events as suspended, therefore effective June part “pattern of a of misconduct” that consti- holding office for the remainder “strong aggravating Ante at tutes factor.” term, April expires of her which 1997. 109, agree. I 882 P.2d at 420. cannot

Relying duty public,” on “our to the ante MOELLER, V.C.J., suspends concurs. 882 P.2d at the court prejudice ac- Judge from office the of avoid that would their Jett remainder impartially term, April perceived abilities to sit expires in 1997. De- tual her important of majority’s pronouncements the difficult and task determin- spite the to the obligations ing rights and of other citi- contrary, effectively the this sanction have would city zens? course not. Neither do I believe in her office if Of resulted removal from the society that we as a should tolerate for one already See Jett v. council had done so. Tucson, Yet, corrupt the or evil who dishon- supra. ten-person second of us lawyers ors all. But that is what this case is judges, of and commission about. came a far different conclusion members firsthand, viewing hear- after the witnesses Jett, psychological serious testimony, questioning respon- their live stress, As commission made a mistake. the counsel, examining her dent and found, prejudicial properly her conduct was exhibits in the context of all other evidence. justice. I to the administration of do not suspension That commission recommended a obviously condone what she did. We should days. I am uncomfortable with every make reasonable effort to see that disparity. significant such a poses presence no continued on bench integrity threat or the suggest I do not that we should ever While justice system. I be should ignore responsibility protecting our “for suspended until there is no doubt about public,” ante at 882 P.2d at or that ability In fairly impartially. to serve it would be wise to restrict the court’s fact, longer I no problem with a would review, reject I of de the notion that novo suspension by the than that recommended our conclusions about what best for the required accomplish commission it was if populace justice system are somehow nothing in this these ends. But there is enlightened more than those citizens who suggest suspension record to that a until together represent significantly broader necessary. I 1997 is believe that the fact, they segment society. may In be imposed court is extraordi- sanction so, considerably given less the isolation that narily my'judg- harsh and unwarranted. inevitably judges. upon appellate falls ment, unsupported it is also the law and most, however, me What troubles the evidence. majority’s implicit suggestion that a human Moreover, majority’s of “wil- discussion justice system judges. tolerate human cannot misconduct,” faith,” “good ful and “bad faith” premise judges I accept do not who and, my confusing say the least daily succumb to emotional stresses badly example, For opinion, flawed. living necessarily My unfit become to serve. Hoover, 155 Ariz. court cites given the privi- belief is that those who are support of its .in lege judging able to others should be of misconduct conclusion that the “nature” understand, recognize through their own change merely because it does not “was folly personal experiences, the weakness Ante result of a mental condition.” go being human. Otherwise we P.2d at 417. am uncertain to what judiciary having composed arrogant, risk event, any language means. I do not elitists—people with little sanctimonious proposition. Hoover stands for such a believe humility compassion, free of emotion Rather, a men- that case concludes that while lives, personal professional their both may complete not act as a bar tal illness and well out of touch with the world. I can discipline, “it must be considered deter- dangerous think of little that would be more mining discipline is and what kind of whether daresay society, most citizens to our to be imposed procedures and what are justice system

who encounter protect public.” followed agree. Couser, 946; 745 P.2d at see also (citing with judges Does this mean that I believe our California, 14 circumspect say approval v. State Bar they in Glenn should not be what (1939) (mental do, 94 P.2d 43 they should not careful to Cal.2d or that short, mitigation)). in that misconduct” it states “wilful financial strain considered faith,” in means a means “bad turn obviously is principle This correct because we “any in means “corrupt purpose,” which turn properly permit one who suffers could not discharge of purpose other than the faithful debilitating illness to from a mental resume judicial description duties.” This last is judge, lawyer regard- as his or her duties any that, enough to cover act of broad almost again, is culpability. less of But not misconduct. this case. Thus, opinion remarkably seems to the Hoover, apparently Unlike in we are not liability impose in a standard strict dealing a true mental illness. Nonethe- I discipline can think of no other area cases.

less, sug- before the commission evidence permit of law that not does consideration gests syndrome may that battered woman’s assessing legal an actor’s state in the mental cognitive affect a victim’s and volitional func- conduct, implications especially where a tioning. expert The uncontroverted testimo- specific required. be self- intent is It should was, ny hearing in part, as follows: of mind evident Jett’s state Q: syndrome Is the battered-woman essential to a of “wilful mis- determination illness? mental say conduct” faith.” To that “the and “bad No, A: not. it’s judge’s nature of a misconduct does not it, Q: psychological in What terms? change merely because the misconduct was syndrome A: is a Battered-woman set of condition,” the mental ante at result of a generally behaviors that are in re- sequitur. is a non More- sponse experi- to recurrent traumatic over, because these are factual determina- accompanied And it’s ence. often ones, legal not was in commission depression, depression but is not position the best to make them. depression, bipolar not [a] clinical it’s opinion important The quotes following thing, something it’s kind of that is language Spruance v. Commission on diagnose, a mental illness that it is Qualifications, 13 Cal.3d relevant. when situation And the situ- 119 Cal.Rptr. gone, depression ation is lifts. (1975), attempting to define “bad accompanied by It’s often also inabili- faith,” ignore meaning: to plain but seems its ty By make memory decisions. sum, quintessentially “In ‘bad faith’ a con- loss, by insecurity, low self-esteem intent, cept specific requiring conscious- ..., thing produces that kind of purpose judge’s ness an antecedent to a great depression deal of confusion acting maliciously corruptly.” (empha- Id. uncertainty. added). majority’s attempt sis The make expert The produced evidence forego- facts of matter fit this within hearing conclusively that, extremely given also established definition seems strained counseling, with some this can return undisputed judge’s evidence of men- perform city magistrate. her duties during as a tal state question. time justified finding simply the commission how the can fail to cannot see long-term finding that she did suffer from a effect to the commission’s condition rendered her unable serve there was neither bad faith nor miscon- wilful capacity. in an official duct here. specifically interesting opinion

The commission also found that also find it judge, by psychological attempt distinguish reason of her makes no In re Hen- stress, drix, requisite not have did “the state of support “wilful

mind” to miscon- which this court characterized similar con- simple enough duct.” words “a merely thoughtless seem duct as series of Yet, opinion pursues by judge forgotten apparently understand. a most who had position reaching consequences convoluted course definition of of her she held arguably permits wilfulness that a basis for actions.” Id. at P.2d at De- disagreement spite its case the commission. the fact that had 114 privileges that at least two of special to made mention of the fact her office obtain

used clerk, agreed her the court prior favors for occurred a time when these incidents not constitute “willful Judge likely that actions did suffering from the Jett was office,” only in but “violated the less- importantly, More same behavioral stresses. prejudicial er standard of ‘conduct however, previous all of infractions were judi- brings administration of that in only to minor resulted determined disrepute.’” Id. at cial office into reprimands,3 or both of private admonitions2 no judge, P.2d The who had 701 at 844-45. types possible among are the lowest impairment, was censured. psychological disposition. agree that I do informal Furthermore, infractions, together, indi majority’s observation these when taken however, evidence, no pattern here that find of hostile conduct unbecom “[w]e cate “a acting suggests Respondent ‘good 109, in judiciary.” that was ing a Ante at member of the ” faith,’ faith,’ any ‘good under definition of Deming, In re 108 (quoting P.2d at 420 882 107, great me Ante at 882 (1987)). causes concern. 639, 82, 118, 736 P.2d 658 Wash.2d suggests erroneously It P.2d at 418. of the commission Neither did the members obligation dem Judge Jett was under an to special or counsel. burden, “good faith.” The how onstrate pay I do needs ever, upon urging those existence ap more to her conduct and attention prove by and convinc “bad faith” to it clear gives. suspension give it A should pearance 490, Haddad, 128 Ariz. ing evidence. re things ponder and obtain her time to these (1981); 221, 492, 497-98, 223, 228-29 627 P.2d majority, counseling. continued Unlike Qualifica v. on Judicial Geiler Commission however, deny her credit unwilling am 201, 203- Cal.Rptr. 10 Cal.3d 110 reported her behavior denied, for the fact that she cert. 417 U.S. wrongdoing from the promptly and admitted 94 S.Ct. L.Ed.2d factors, fact, together with re beginning. Such met here. after That burden was not credentials, morse, strongly expert’s miti having stipulated to the have been considered See, e.g., In special gating if the commis re counsel conceded that in other cases. (Iowa 1984) expert Hamed, testi sion believed the uncontroverted N.W.2d “entitled, evidence, to mony, J., it on (Schultz, concurring dissenting part, judgment a Jett’s state make (forthright cooperative com part) such she did mind on this date was Hormes, mission); 291 Md. consciously wilfully perform (1981) (same); Kay, 508 So.2d A.2d 457 ex did in bad faith.”1 The commission did (Fla.1987) (remorse); In re Lo see also actly that. (1994) rona, P.2d 795 178 Ariz. (failure acknowledge wrongs considered Finally, prior disciplinary I return to the Peck, aggravation); 289- “highly majority to be which the finds record (1994) (accusatory, public’s protection need for instructive on implicitly tone with commission defensive Respondent.” Ante at noted, no reason aggravation).4 see previously the commission considered 419. As prior Rules of Procedure. Two of 1. same concession made counsel argument were dis- relied on oral before this court. infractions by simple posed letters of admonition. private re- 2. An admonition communication minding responsibilities of ethical private reprimand "A communication that 3. gentle friendly warning giving fu- avoid unacceptable judge's declares a practices. inappropriate An ture misconduct grounds discipline but not one of the may be authoritative used admonition Com- so as to merit sanction.” serious express disap- encouragement or to advice and Conduct, "Definitions of on Judicial mission suggests appearance proval of behavior that Sanctions,” 4(f)(1), supra. See Rule Com- also though impropriety even it meets minimum Conduct, Rules Procedure. on Judicial mission on conduct. Commission standards Conduct, “Definitions of Sanctions” course, disciplinary pro- (included cooperation Of Con- on Judicial Commission 8, 1994). voluntary disciplinary au- ceedings, disclosure March Notice of Transmittal filed duct’s thorities, mitigating 4(f)(2), are considered and remorse on Judicial See also Rule why this matter should be treated different

ly. JETT, Plaintiff/Appellee, Rita period suspension I concur that a While v. appropriate judge, respectfully is I extraordinarily punitive disagree with the TUCSON, municipal corpora- CITY OF length imposed majority. of time I tion; City City Tucson, Court of the analysis, also cannot subscribe court’s court; Mayor Miller; municipal George especially pertains as it the issue mental Wheeler; Councilman Bruce Council- impairment disciplinary matters. Marcus; Janet Mi- woman Councilman Haggerty; Roger

chael M. Councilman MARTONE, Justice, concurring Leal; part Sedlmayr; Councilman Steve dissenting McKasson, part. Molly Defen- Councilwoman dants/Appellants. agree majority suspended. should But I Jus- No. CV-94-0042-T/AP. suspended tice Zlaket that she should not be Arizona, majori- for the full balance of her term. Court ty says struggle prob- it “need not with the En Banc. deciding just

lem of what sanction would Sept. appropriate have been had the taken Council Ante, no action.” 882 P.2d at 422. I period

am of the view that because a

suspension much than entire shorter bal- appropriate, of her term

ance simply avoiding the dilemma it creates for acknowledging

itself in city suspend

council to her at all. See Jett v. Tucson, J., (Martone, (“Suppose dissenting) city judge, council removes the but we appropriate.”).

believe lesser sanction today’s

believe that decision is driven more

by majority’s its need harmonize result v. City

here with that Jett Tucson than independent judgment. consideration and lawyer discipline Imposing Lawyer cases. See Standards dards Sanctions 9.32(e), (l), Bar American Association’s Stan-

Case Details

Case Name: In Re Jett

Court Name: Arizona Supreme Court

Date Published: Sep 29, 1994

Citation: 882 P.2d 414

Docket Number: JC-94-0001

Court Abbreviation: Ariz.