*1 for the same acts does separately tried were recanting character of the alter affidavit. We find no abuse of
former’s in the trial court’s action.
discretion fair received a trial and defendant no error.
there
Affirmed.
GUTHRIE, J., and THOMAS and C. JJ.,
ROSE, concur.
McCLINTOCK, J., concurring specially opinion. Justice,
McCLINTOCK, specially concur-
ring. of the convic- in the affirmance
I concur has been said in and with most of what
tion However, reference therein to opinion. State, 542 P.2d
Blakely Wyo., of review which as to “standard
(1975) me leaves with the court must follow”
this my dis- misgivings expressed as I
same that the I think instruc- in that case.
sent case, interpret which I given this
tion previous line with decisions of Blakely,
court, perhaps overruled became analyze and we should law of case whether the con- determine
the evidence I with those rules. was consistent
viction comply with that re- the evidence
find concur the con- and therefore
quirement
viction. R. Matter of the Removal Earl
JOHNSON, Jr., a of the Peace Justice County, Wyo- and for Natrona
within
ming. 2.No.
JPR Wyoming.
Supreme Court
Aug. *2 Miller,
Richard Miller G. of Miller & Cas- per, filed written brief appeared in oral argument Johnson, for Earl R. Jr. Tschirgi, Arnold B. County Fremont Pros. Lander, Atty., who designated was present complaint, filed written brief but appear did not in oral argument. J., GUTHRIE, leged grounds McCLIN- C. respon- Before removal of the ROSE, RAPER, JJ. TOCK, THOMAS and dent, justice of peace, and to deter- hearing whether mine on the charges ROSE, Justice. should held. Based the investiga- Jr., herein, Johnson, Earl R. tion, panel determined that such a hear- appointed first *3 held, ing should be and respondent was County, Wyoming, July on Natrona for with a served written notice of charges 28, 1976, January investigator 1970. On for his removal and the time and place for Casper Department Police filed a hearing, August on 1976. After a hear- respondent complaint against written ing on October 21 and the three- Pursu- certain acts of misconduct. alleging judge panel rendered its findings of fact 5(c), Wyoming Administrative to Rule ant and conclusions of law on January 1977. (W.Adm.R.J. Rules, of Peace Courts Justice report panel’s The set separate forth 14 hearing pan- three-judge a C.), we convened fact,1 judges investigate findings the al- and concluded el of district findings policy “5. to set out these It is a We find it advisable in the office of Justice of the entirety: Johnson, in their Peace Earl R. Jr. that in contested litigation hearing, which is set before “FINDINGS OF FACT him for Johnson, normally present Jr. has been a R. that Justice Johnson is not “1. Earl Wyo- County, parties in and for Natrona attorneys the ming and their when all present are present July, time. set, 1970 until the from at the time but will thereafter Johnson, February 18, Earl R. private “2. About come from law office in another private Jr., into a house drove an automobile away building from the courthouse after noti- by occupied Knerl. Mr. Mr. and Mrs. Don by by phone. his office staff fication at home. Earl R. Mrs. Don Knerl were and policy been established at has the direction of Jr., Johnson, thereafter left the scene of the Johnson, Earl R. Jr. persons notifying without accident explanation given past “No has been in the Johnson, dwelling. present Earl R. Jr. in the litigants Justice Johnson to the or attor- proper report accident did not neys in involved the cases when he arrives charges against were filed Two authorities. appearance after the scheduled time. Justice Johnson, Casper Municipal Jr. Earl R. Johnson, Jr.,’s Earl of the Peace R. own ex- Johnson, Earl R. based on these facts. Court planation for these occasions is that other plea of nolo contendere both Jr. entered a nature, legal private sometimes of business a charges. impossi- it to be has caused inconvenient or November, 1974, [sic], In Earl R. Johnosn “3. present him to be at ble for hearings the times set for Casper give an officer Jr. refused panel in his Court. This finds that investigating Department who was Police always given priority Justice Johnson has not apartment at an in which disturbance call of the Peace business over his own to Justice Johnson, present Casper, Jr. was Earl R. Johnson, Jr., private practice. Earl R. also although the offi- his name or identification acknowledges policy the office mentioned in requested same and was in uniform. cer paragraph. 23, 1975, Johnson, May Earl R. Jr. About “4. Johnson, “6. Justice of Peace Earl R. Jr. Casper, Wyoming, said to Sher- on a street occasionally risque jokes tell does before fe- Ketchum, Judge’. T Ron am iff’s Officer employees of the Justice of the male Court; Peace Johnson, Sheriff’s R. Jr. then directed Earl rapped and has on one occasion one Flagg Don without Ketchum arrest Officer on the buttocks of them with a book. alleged grand larceny, at a warrant for an Johnson does not intend to be offen- “Justice place the said Earl R. John- which time mannerisms and sive these considers the son, attorney employed Jr. was an in his proper, same to be because he knows that party claiming private capacity for the to be employees in the the female Justice Peace alleged goods. At owner of the stolen exceptions, one or with two have told was made Earl R. John- time this direction themselves; among risque stories and are son, Jr., holding a can of in his he was beer talking very not therefore offended his stories. loud manner. hand and was officer, Ketchum, of the Peace Johnson is casual in “7. Justice Ron believed com- the Justice of complaint. his dress in and about Peace plaint be a civil The officer Johnson, Flagg Earl R. Jr. chambers offices. to arrest Don without a war- refused Sellers, long investigated complaint Loretta has been told time rant. The officer sought County employee of the Justice of Peace Courts in advice of the Natrona Johnson, Attorney’s Casper, Earl R. Jr.’s dress and office. The officer never received arrest; sloppy unjudicial. Flagg’s appearance did not Justice for Don a warrant always appears Johnson almost arrest him. of the Peace REPORTER, 2d Wyo. PACIFIC SERIES of three of the as set guilty was not forth in Rule robe, although always manager, ant in a in his Court Tom Heinle. Tom Heinle ran of the Peace a tie. Justice Johnson out of the restaurant and saw pickup Johnson in appropriate, pickup to be be- considers his dress truck. Johnson locked the he does in what his cham- part cause he believes truck door. way rolled the Johnson window Johnson, you He also considers bers is his own business. asked down. Heinle ‘Are always said, going pay?’ only way does wear a tie in the fact that he Johnson ‘The physi- your you get money going because his the courtroom excusable is to have always my place beg make it cal dimensions do not conve- come to that bitch waitress up pickup swing- a tie. nient for him to wear for it.’ Johnson backed Johnson, July ing R. causing “8. Earl Jr. was toward the front end Heinle him Country present jump way. Kitchen restaurant in the to have out of the About 30 Johnson, Casper 4 A.M. Earl R. Jr. about minutes later Johnson called Heinle on says having thought said, phone. because of he was ‘out of sorts’ Heinle the caller ‘This Casper police Johnson, just gotten A offi- out of bed. is Jud Johnson.’ Earl R. Jr. then says Johnson, present phone, way Earl R. at time cer said to Heinle on you ‘The *4 Johnson, get your going money R. Jr. did en- was drunk. Earl Jr. gage are to is to have employ- up my place with a female in a conversation that bitch waitress come to Country ee, age beg paid any at Kitchen. about me for it. I never have woman presence in the This conversation was two her services.’ officers, Macy pickup registered corporation. Jack L. law enforcement “The was to a Casper Schilling Depart- Officer, Sgt. Police Sheriff’s Ron Ketchum traced the unlikely Judge pickup registration Johnson, Johnson ment. It to Earl R. Jr. present. by phone. these two men were The con- knew Ron Ketchum contacted Johnson phone, versation Johnson’s admission contained Johnson told Ron Ketchum on the ‘It strong language; nothing pickup. they and there is some was me in If want their police- money, they’ll one of the in the record to contradict have to come here and me ask testimony going men’s conversation was for it. January 15, I’m not down there.’ About essentially as follows: Johnson sent a cashier’s going you payment to vacuum this “Johnson: Are in check to the restaurant of the bill paid floor? that he had not on November Yes, “Employee: explanation I am. He also sent a letter No, you accompanied not. payment. “Johnson: “Employee: are incident which Yes, get my I have I am. to “10. Justice Johnson does not consider his Country sidework done. conduct at either of the Kitchen inci- going god improper. explains “Johnson: You are not run that dents to be He his con- you by saying I am in damned vacuum while here. If duct that it is his attitude that the bitch, you going always right; of a want to run that son customer is that if a customer may displeased, express displeasure over to the other side and run it. Either that he his there, you open up that section over can and in even to the extent the manner that my god Johnson, Country damned and I’ll eat breakfast over Jr. Earl R. did in the two you running god on there. If insist Kitchen incidents. here, it, thing you 16, 1975, I’ll take damned show “11. About March Justice Johnson you put City where can it. in was the defendant Corporation a trial in which Oil 23, 1975, Casper sought “9. About November Earl R. John- to recover son, Country appeared nonpayment Jr. at Kitchen from him for of rent for his early Casper morning. Following space. in in the restaurant the trial Justice presence wife; lounges Johnson was in the of his Johnson several went to bars or in ‘mildly Casper. Johnson was at least intoxicated’. Anderson, Johnson to Annette Bowen said “Martin was a Sanchez witness in the Oil him, age City Corporation waitress who waited on ‘You v. Johnson case. Martin have a nice ass.’ Johnson touched the wait- Sanchez is a friend Justice Johnson. Mar- old, years ress at time. Johnson offered least one man tin Sanchez is a about 50 table, pay height pounds the waitress at the was told about 5' 7" in and 190 in require weight. thirties, the waitress that the restaurant rules Johnson is in Justice his 6' paid register. pounds weight. that checks be at the cash 3" in and 230 Martin San- upset Johnson was because the waitress chez was intoxicated. Martin Sanchez ac- money Johnson, cording at would not take the the table. to Earl R. Jr. at this time register, long cash standing Johnson went to the tore his was a sick man with chronic problems. ticket in half and scribbled his address on alcoholic Martin Sanchez offend- waitress, Johnson, party half of the told the ticket. Johnson ed Jr. and his Earl R. at the your money, you you get Club, finally causing ‘If want to will have Moose Justice Johnson here,’ indicating address, to come ‘and to take Martin Sanchez outside on the side- , restaurant; Club, ask for it.’ Johnson left the walk in of Moose front a situation reported party waitress incident to this the assist- which either free to leave. Mar-
«59 decreed, W.Adm.R.J.C.,2 fice should not be con- “shown but was 5(b), prejudicial of conduct guilty be he from of- evidence tends cannot be removed or that the administration on other than those contained fice disrepute.” into judicial office brings the Wyoming. Constitution in Article 5(b), obligation, under Rule is our now supra, provides: Article appli- W.Adm.R.J.0., supra, to consider impeachment “All officers liable to make a record —and then law —the cable to removal for miscon- shall concerning reten- the removal disposition or malfeasance duct Jr., Johnson, justice of as a of Earl R. tion provided by law.” manner peace. [Emphasis supplied] hearing Respondent reasons that since FOR REMOVAL GROUNDS guilty him not of “wilful and panel found impres this is case first Since perform failure duties” persistent judi of a respect sion with office,” this court misconduct of “wilful it Wyoming, find neces we cial officer to remove him from office. has no mat dispose preliminary of certain sary argument further Justice Johnson’s re reaching the merits ters before 5-99.8, on the contention that premised response to this court’s action. moval W.S.1957,1975 why Cum.Supp.,3 of- which vests this cause removal from order to show Johnson, attempt lunged at Jus- Earl R. No was made tin Sanchez Justice Johnson. Jr. *5 any in part Judgment struck Martin Sanchez the pay tice Johnson of this until about to knocking fist Sanchez down on 1, with his paid face 1976 when Justice Johnson October got up, ad- the Martin Sanchez sidewalk. Judgment in full. the [sic], agressively and struck to the Johnson vanced him has, now, “13. Justice Johnson and ac- does face, knocking again the in him activities, cept of criminal accused clients second time. Martin Sanchez sidewalk a again got up employ- felony His and misdemeanor. both toward Johnson and advanced a capacity in clients his as an such ment again time and was knocked to the third practice attorney private is of sufficient in sidewalk. regularity he considered to be of that is one having admits to been “Justice Johnson counsel, particularly leading the defense drinking, to have but claims not been under appearances, Municipal of the Natrona Court any great of intoxicants to de- influence activity representing Johnson, County of Bar. gree at this time. R. Jr. Earl defendants criminal Casper Department Police was “The notified during period practiced of the same been has party, probably of this incident a third as of the Peace he Justice that has acted time manager the Moose Police of Club. Officer capacity has been called in such official and Ayers say Larry heard Justice Johnson to appearing judge upon those defendants him, ‘Marty following has been me around. I charged with misde- him who are before whether it a don’t know sexual advance or what, meanors. but I had to deck him.’ Later the same Johnson, Jr. admitted to District R. police him, say “14. Earl officer heard Justice Johnson Judge been that he had on M. Forrister hole R. ‘Get that ass out of here before I butt,’ capacity stomp as Justice of his and still later heard Justice in his bench him, say Marty, drinking T if on least Johnson love and he been at he had Peace while bond, put up I’ll and beat his ass needs it one occasion.” again.’ W.Adm.R.J.C., provides: 5(b), 2. Rule attempt any “Justice Johnson made no to call may peace removed for of “A personnel law in connection enforcement office, per- or wilful and misconduct wilful problem for rea- with the son that Sanchez was his with Sanchez duties, perform friend, habitual failure to sistent intemperance and he felt tank, prejudicial put or conduct Sanchez would be the drunk brings physically of or that and would suffer therefrom. administration 1976, March, day disrepute. “12. 6th Civil into also be On the He office Judgment seriously any disability for was rendered from the bench interfer- removed Johnson, against City Corporation R. Oil Earl ing performance duties which with approxi- nonpayment of rent in the Jr. for permanent likely character.” to become Judgment $1800. was not mate amount 5-99.8, provides: supra, 3. Section June, formally entered in this case until hereby supreme Wyoming is “The court then without Justice Johnson was entered powers justices disciplinary over with Judgment. vested approving post judgment of the No the form Wyo- supreme peace. proceedings court of the taken were 1967, 5, 1, of the powers Wyoming over Article disciplinary Consti- § give power tution-, us peace, provided: does not of the grounds for re- and different new create of the judicial power “The state shall those enumerated in in addition to moval senate, sitting vested in the as a court 3, 19, It has been stated supra. Article § court, impeachment, dis- courts, justices peace, trict of the courts to be the rule in appears .it leg- of arbitration courts as the any power existing in a many states general law, may, by islature establish a state from to remove state court incorporated cities or incorporated upon express consti- must be based [Emphasis supplied] towns.” valid statuto- provisions tutional joint 1, Resolution No. Session Laws Senate enacted thereun- ry enabling provisions 518, 1965, p. Wyoming, authorized the 882, A.L.R.3d der. . . .”53 following submission of amendment law, statement agree with that We section, adopted vote of time finding at the same while general at a election: people of a for removal judicial power “The state shall longer limited to are no those con- senate, sitting be vested as a court 19, supra. in Article tained supreme court, impeachment, in dis- general This court set forth rule in courts, and such trict subordinate courts Shawver, ex rel. Emerson People Wyo. may, law, legislature by general as (1924): 366, 222 P. and ordain from time to time.” establish Legislature “. . . That amending In addition to Article to this so without created supra, the constitutional amendment also Constitution, to add to by the the causes repeal for the of Article provided §§ therein for removal su- [Article Constitution, Wyoming relat- ” [Emphasis . pra] specified. ing jurisdiction jus- election of supplied] bracketed matter appeals jus- tices from went on in cite with We Sahwver *6 courts. Joint tices’ Senate Resolution No. Prater, the case State v. approval of 48 1, Wyoming, 1965, Laws p. of 519. Session 1240, 334, 189 wherein it N.D. N.W. It was further resolved the following stated: statement be endorsed on the proposed “ power legislative ‘This of removal Secretary amendment the of State of office concerning public created stat- Wyoming: the of State subject ute [italics ours] “Our state constitution establishes and the constitutional provi- restrictions of jurisdiction justice prescribes the of of concerning removal sions the of certain courts; also, peace the it gives legis- the by impeachment officers other officers authority lature to establish municipal ” grounds.’ [Emphasis stated and and proposed arbitration courts. This bracketed matter from text] amendment, adopted, if would eliminate The essential determination to be made and, all such courts the from constitution then, justice office is whether the of of the instead, the give legislature would the constitutionally-created is a peace legis- authority to establish the subordinate latively-created office. it suited to courts deems best our modern decision, jurisdiction for their provide needs and In order to come to several functioning. must In provisions constitutional be con- and manner of the meantime, system present sidered. Prior to its amendment the the would con- 17, effective people, proclaimed January existing tinue in effect under statutes shall, court, powers. ming disciplinary powers of the Said rule shall in- notice, concerning procedures op- justice establish clude the to remove a of the heard, discipline (Laws 1971, portunity peace to be to be from office for cause. ch. disciplinary 214, 8.)” imposed, of such in furtherance
«61 915, legislature.” (1923); the 221 P. changed 918 Egbert until v. City [Em- of Dunseith, supplied] 1, 74 phasis N.D. 24 907, N.W.2d 909 Field, People (1946); 367, v. 66 Colo. 181 P. justice review the of short 526, (1919); 527-528 Jackson v. Consolidat permits us to sev- system reach court peace Jacksonville, City Fla., ed Gov. of of 225 First, at one time the conclusions. eral 497, (1969); 500-501 16 So.2d C.J.S. result, and, peace as a justice of 7, Constitutional Law p. at To be of peace, were office of sure, repeals are not favored and will origin Wyoming. Ballan constitutional given effect not be unless there is an irrec- Bower, 356, 869, 17 99 P. 871 Wyo. tyne repugnance between the two pro- oncilable Second, the of people Wyoming (1909). Brown, 256, Moore v. visions. 350 Mo. 165 peace eliminated have 657, (1942); 663 and Adams v. City S.W.2d constitution, by constitu courts from Hobart, 267, 595, 166 Okl. 27 P.2d 599- usually true It is tional amendment. amendments, (1933). Constitutional if 600 is con with should harmonized other possible, office —as was to be a constitutional sidered constitution, effect provisions Bowman, Wyoming. In re the case once to every whole instrument and 368, given 364, 203, (1909). It is Pa. 74 A. 204 225 Higgins, and clause. Luikart v. 130 however, and, section now, creature statute (1936). 264 N.W. Neb. 903-905 If therefore, to the constitution’s reconciled, cannot be then the inquiry provisions end provisions. Our would removal subsequent provision prevail shall over the were it not the exist juncture at this if provision only partial re- prior consti apparently ence of other inconsistent —even implication necessary. Engelking peal by provisions. tutional Board, Idaho P.2d v. Investment 3, 18, Article Constitution (1969). Wyoming provides: ask, then, pro We must whether ju- governor and other state and “The 19, supra of Article §§ visions except justices of dicial officers —as relate to they impeachment for peace, shall be liable to —are 1967 constitutional irreconcilable misdemeanors, high or mal- crimes amendment, affecting Article §§ office, judgment in such feasance in but inquiry to this supra. answer from cases shall extend necessarily through its consid finds resolve disqualification any office and hold legislatively- honor, incidents of a profit office of trust or under eration opposed to those of a party, laws state. The whether created shall, holding acquitted, office. convicted or neverthe- constitutional *7 less, a prosecution, trial, assessor was not constitu judg- county liable to be office Smith, office, said in Reals v. punishment according ment and to law.” we tional 690, (1899): [Emphasis supplied] 56 P. 692-693 Wyo. “ therefore, office, if it arguable, is that if . even be a It .An office, impeachment, may be abolished at the constitutional constitution, provisions or the by by the removal of Article time a new any then limiting French supra, applied, existing must be thus one. amendment Com., principle 339. The specified. for removal to those v. 78 Pa.St. however, are, firmly jurisprudence unable to reach such established We provisions, country public Constitutional like not a conclusion. contract, express implied, be or or nor a statutory provisions, may repealed either arising regarded property nor as the abrogated by implication out of to be grant, settled, It changes is also well adoption of in other constitutional of the incumbent. conceded, obnoxious, be or ineffec- we it rendering understand provisions, re- that, tive, provisions absence of constitutional original expressly legislative Jordan, strictions, are Wright which repealed. 192 Cal. offices constitutional, only, may and not be abol- control over such offices. The fact that changed at the pleasure ished or an office is mentioned incidentally in the legislature; and the duties thereof may constitution does not make it a constitu- increased, diminished, or office, and the tional in the being sense of beyond rights privileges varied, thereof in- legislative control. Hermann, State v. creased, decreased, And, or is, abolished. in Mo.App. moreover, 43. It pro- further general, subject to provi- constitutional legislature that ‘the vided shall provide prohibitions, the authority sions by law for the election of county such Const, public over legislature complete offices is may officers as be necessary.’ art. Board, and absolute. Lee v. 3 Wyo. provision 5. This expressly dele- Respecting 31 Pae. 1045. an office not gates legislature absolute authority constitution, mentioned in it was said over the matter of the creation of county Pennsylvania: ‘Not having been men- It is probably offices. true that the sec- by constitution, tioned legislature requires tion offices as are covered was left power pre- unrestricted thereby by to be made elective peo- but, scribe'what the duties ple, appear on, of the office should it will as later be, length tenure, what the upon precise of its what decision question its is not emoluments, necessary. legislative and how it Such should be filled. authority, however, Having power create, is absolute only so they have far as unre- by also the other regulate, stricted provi- and even to constitutional only sions. The destroy. Undoubtedly, restrictions legislature upon are authority those may at found section 32 any repeal moment the act of already article alluded to. They pro- and abolish the They office. may * * * by hibit extension law of provide the term of a substitute for it. officer, public and the increase or de- put was never intended to offices created salary of his or emolument, crease legislature after beyond the control and or appointment. his election Neither of regulation of the creating power .’ prohibited the acts so is attempted or people What the may do by original accomplished by the statute under consid- constitution, new legislature may do eration. These restrictions of the section with reference public officers, except cited, together last with the possible re- restricted provisions. constitutional quirement that county officers shall be The office of county assessor is not a (and elected for the purposes of this case constitutional office. It is mentioned but may it be assumed they required instrument, once in that and then elected), to be are the only ones control- placing a maximum upon limit salary ling the action of the legislature in re- paid officer, to such an spect to the creation regulation connection with like limitations sal- offices, county so far as concerns the aries for other specifically named county presented questions in this officers; case.” but in the [Em- same article it is phasis supplied] provided that any county per- officers forming the usually performed duties peace, office of being a the officers named in the article shall be legislative can be abolished or considered as referred to the section changed at the will of legislature. embracing limitations, said *8 regardless so, of being rights the and privileges of such the title which may their offices there- an office can likewise be abolished. The designated (Const, 14, 3, after be art. provisions 5-114.4, 5-114.5, §§ of §§ and 5- 5), clearly recognizing thus legislative 114.7, W.S.1957, 1975 Cum.Supp.,4as they provide: 4. thirty The cited sections (30,000) thousand inhabitants accord- county ing 5-114.4. Establishment of the latest official “§ court to decennial census of 30,- population in counties with more county than the United States shall establish a county County 000. —The board of commissioners of court. courts hereafter established any county population with a pursuant of more than shall hereto be established on Janu-
«63
justice
provisions
3,
19,
the
then the
of Article
supra,
of
of
supplanting
§
relate
courts,
county
envision such
longer applicable
justices
courts
no
to
peace
are
of the
1, 1979,
January
counties
On
possibility.
provisions were,
a
We hold that
these
peace.
30,000
more than
in-
of
population
with a
therefore,
repealed by implication when the
justices
peace.
no
of the
will have
habitants
constitutional
amendment became
ef-
5-114.77, W.S.1957, 1975 Cum.
Section
fective.
5-114.4,
Supp.,5
supra.
and §
net result of this discussion
The
con
authority
the
which
We hold that
rejection
a
respondent’s
argu
of
stitutes
legislature,
have vested in the
people
the
grounds
removal,
the
for
ment
justice
the
respect
the office of
of
with
peace,
of the
justice
limited to those
right appurtenant
the
abolish
peace —and
3,
19,
Rather,
in Article
supra.
contained
§
rights
modify
privileges
the
and
of such
the
by virtue of
1967 constitutional
amend
irreconcilably
repugnant
office —is
5-99.7, supra,
and
ment
this court
§
has
19,
3,
provisions of Article
18 and
the
§§
power
vested with the
been
to define the
is
conclusion
further
supra. This
buttressed
justice
removal of a
grounds
phrase
the
“other
by the observation
5-99.8, supra, provides
Section
in
peace.
Ar
judicial officers” contained in
state and
part:
18,
3,
refers
to state and
supra,
ticle
§
“
powers
disciplinary
.
.
.
Said
officers created
the constitution.
jus-
the
a
shall include
remove
all
Clearly, not
state officers are
peace
of
tice
the
from office
cause.”
Shawver,
People
supra,
impeachment.
[Emphasis supplied]
then,
follows,
since
than provisions relating thousand governed 1971, 261, 2; 1975, (Laws 117, 1.)” 1971, § ch. 261, ch. county (Laws 5.)” courts. ch. [Emphasis supplied] 5-114.77(a), supra, provides: 5. Section county 5-114.5. Establishment of court “§ county in which the “In counties 30,000 those population less in counties with than established, primary system is elec- municipalities 15,000 court population with of general of election 1978 shall tion and in this state which have or less.—In counties persons 30,000, shall be population first which nom- less elections of than or with a 15,000 less, municipality population to the office of inated for and elected court, according sys- county county latest official cen- decennial and the court county sus, January operative the board of commissioners on tem shall become county county by their court in establish 1979.” adoption establishing the of a resolution has defined cause” been as: “F.or days adoption Within ten after the same. “ ‘including corruption, gen acts county board of com- resolution duty, delinquency affecting neglect of eral copies file certified of such missioners shall office; genera] fitness for character and acts resolution with clerk by interest; inspired oppres lawof violative examiner, Wyoming, with the state court conduct, arbitrary disregard reckless sive and and with clerk district court of litigants’ rights, justifying acts “the county. (Laws 3.)” ch. [Em- finding his future retention of office is phasis supplied] proper fair admin sup- inconsistent peace Justice of courts “§ 5-114.7. ’ (Matter justice” any county of Kane v. Ru planted replaced. istration of —In dich, established, App.Div. county 10 N.Y.S.2d court has been copied] 930).” [Emphasis county supplant replace in text In re Sari shall said sohn, county 26 A.D.2d N.Y.S.2d courts of the jurisdiction previously (1966). ex- shall exercise the certainly nothing 5(b), supra, courts. There Rule ercised provisions *9 relating general Wyoming goes beyond Statutes this standard. which 5(b), graver supra, represents of Rule than the ‘lesser adoption included offense’ The responsibility. of this prejudicial the exercise of ‘conduct to the administra justice that brings judicial tion of 5(b) OF MEANING RULE disrepute.’ into office The more serious 5(b), supra, portion of Rule should be charge unjudicial reserved for we are most provides with which concerned a judge which acting judi conduct in his as follows: faith, commits capacity cial in bad while justice peace may “A be re- charge lesser should applied prejudicial . conduct moved for judge which a conduct undertakes justice administration of or that to the but which faith nevertheless would good judicial brings disrepute. office into objective observer appear to be not only unjudicial conduct but prej conduct that language This similar to contained public esteem judicial for the udicial 5, 6(e)(2), Wyoming Consti- Article § office.11 tution7, grounds sets forth the for which “ti charge prejudicial The lesser of ‘conduct supreme jus- court censure or removal justice brings that to the administration disrepute’ judicial apply into would also judges. tices and district The Judicial Su- office, unjudi- out of to wilful misconduct i. e. Commission, provided for in Arti- pervisory by judge committed bad faith cial conduct 5, 6, procedure supra, is an innovative cle § judicial acting capacity. then in a essentially expe- from the taken California emphasized that our characteriza- should ground imposing discipline for tion one as having particular reference to Arti- rience or less serious than the other does more imply VI, 18(c), of the California Constitu- cle § given regard in a case we would We, therefore, find the tion. California unjustified ultimate sanction of as construing per- this language decisions solely prejudicial for ‘conduct to the adminis- justice brings judicial which tration of of- In Geiler Commission on Judi- suasive. ” [Emphasis disrepute.’ supplied] fice into Qualifications, 10 cial Cal.3d Cal. (1973), light In of the fact that our rules on 515 P.2d Rptr. do not reflect Supreme history made the follow- matter same Court California amendment, the California ing observations: we do not find prejudicial that “conduct to the administra- above, “As indicated the Commission in justice judicial tion of that brings the [or] instant matter concluded that disrepute” necessarily office into a “lesser proven previously in the dis conduct included offense” of “wilful misconduct in specifications constituted ‘wilful cussed do, however, office.” We embrace and sub- preju in office’ and ‘conduct misconduct meaning which the California to the administration of scribe dicial judicial placed language. on the brings disrepute.’ office into court has other above, words, As we have noted it is conduct includes certain second imposing judicial activities outside the of- ground discipline personal for was added in 1966. the im- Constitution We believe fice. The court Geiler stressed our construing objective this mandates of an portance ‘wilful mis rather than a sub- in office’ as connoting something judicial conduct, conduct jective appraisal 6(e), supra, provides: brings 7. Article § office into dis- repute.” judicial super- recommendation of the “On 5(b), supra, that Rule and not Since we find visory supreme commission the court 3, 19, supra, appropriate sets forth the (1) judge disability Article for retire removal, seriously performance we need not reach re- interferes with is, become, equal-protection argument. likely spondent’s his duties and permanent or is (2) argument based on the differences be- censure or remove a occurring during, above-quoted or not more than and the for action tween Article of, years prior 5, 6(e). to the commencement Since Article substantially term that wilful miscon- current constitutes similar to standards posed those im- persistent failure to duct in wilful and district duties, intemperance, perform his habitual judges, contention must fail. prejudicial to the administration of conduct
865 Bar judge canons of the American that the can be or noted censured removed “for ac- of Judicial occurring during, Code Conduct8 tion or not Association’s more than 6 give mean- to the usefully prior be consulted to might years of, commencement 5, Spruance standards. term.” Article proscribed 6(e)(2), current ing to supra. this Qualifications, 13 Whether court on Judicial has the authority, by v. Commission 5-99.8, 841, 1209, 778,119 Cal.Rptr. supra, 532 P.2d virtue to enact such a Cal.3d peace rule approach more is a (1975). question We find 1221 not before which is us. Suffice it say, know it I see to than the “I when we appropriate so, yet done have and as a (State result utilized some approach apparently it” Scott, supra), we are v. unable to consider Diener, 659, 268 Md. 304 A.2d In re courts. occurring respondent’s prior acts term to Diener, supra, In re at 587, (1973). 594 See be, themselves, grounds in and of for re- (dissenting opinion). 624-625 is not say, however, This moval. types of acts for related Somewhat such acts not be considered as eviden- peace of the can be removed justice bearing upon respondent’s tial facts general which asks when those acts question is the during present course of conduct term— in order to become occur must they as especially relate to motive and in- urges Respondent that under Ar- removal. concerning tent acts charged to during him the acts misconduct supra, ticle term. We his current find such considera- during the cur- have occurred officer’s must uniquely important tions in view of the Scott, Wyo. v. 35 of office. State rent term moral, heavy social professional respon- (1926). P. 712 In we Scott 247 sibility judges demanded of in the social stated: order of these times. We must remember us is one proposition “The thus before purpose disciplinary of this pro- which the authorities are direct ceeding punish is not to think, conflict, though pro- we and we as protect but rather public show, will endeavor ceed maintaining integrity of the office. rea- weight authority and the better that, support the view with some soning REVIEW OF THE FINDINGS exceptions, preceding acts of a possible With the previously-discussed legal the same office are not term in mind, we guidelines proceed to a consid for the removal of a competent ground disposition eration of the record and officer, public in the absence a statute Analogous disciplinary case. actions provid- inference so expressly fair attorneys, this court against is vested with supplied] ing.” [Emphasis discipline justices peace. equally se- divergence viewpoint 5-99.8, result, supra. As a Section judicial-removal context. Com- vere in the hearing three-judge panel judges of district Sarisohn, 275 In re 26 A.D.2d pare serves an arm of the court. See Relating (1966); Inquiry In re N.Y.S.2d Whitchurch, v. Wyo., 565 P.2d Mendicino Rome, (1975); P.2d 676 218 Kan. findings 460. and conclusions of the Diener, A.2d at 596- supra, and In re therefore, panel, merely advisory are —al Earle, Fla., ex rel. Turner State they are though entitled to the most serious 609, 613-619. 295 So.2d findings rulings consideration. The those, 5, supra, expressly however, does herein, Rule of this court and that a panel. reaching state can not of the these find occurring conclusions, the basis of dur ings removed on acts we hold the standard however, note, term. We do ing previous proof inquiry proof by in such to be convincing or district evidence clear and sufficient Conduct, excep- with an These rules have the The Code of Judicial force of law and can be 8. case, adopt- give meaning the instant tion not relevant relied on to to the standards set September 5(b), supra. on order of this court forth in Rule ed Wyoming, Supreme n. 1. Court Rules “A given charge with reasonable cer- . sustain should not lend *11 from the tainty.9 pro- different prestige Somewhat of his office to advance ” against actions su- disciplinary private others; in cedure interests of . district judges, and preme is a merely specific delineation of con- makes no reviewing panel here recommen- prohibited duct Canon Judge 2: “A We disposition. dation as to must make Impropriety Avoid Should and the Appear- on our own that determination based inde- All His Activities.” Impropriety of in ance these facts review of and the rec- pendent [Emphasis supplied] Although the record in this matter. ord before us entirely matter, clear on this objec- an panel’s respondent’s with the Initially, agree we Con- tive of observer in behavior 6, 7 clusions of Law numbered and 8. The situation have may this viewed it as judicial record does not disclose clear and to use the attempt convinc- office for his ing evidence of wilful misconduct in client’s benefit. A peace, by of the perform and failure to persistent capacities wilful virtue of the dual judge of intemperance. private practitioner, or habitual With re- duties which he par- often takes, panel’s respon- conclusion that be spect extremely diligent must in avoid- prejudicial ing conduct guilty appearance dent was of even the of impropriety in justice or brings respect. prestige the administration of this of the of office disrepute, in we view must never be used for 4, 8, 9, 10, Findings significant gain private and 11 as of interests. a Because in reading will discuss these some detail. careful of the record lends itself to and innuendos shades which could impart Finding to an 4 relates incident where judge’s remarks various meanings and respondent acting was in his capacity intentions, not, we therefore, convinced attorney problem and structures a private a beyond certainty a reasonable respon- given gravest possible that has us the con- dent’s conduct this in situation would war- According testimony cern. of an rant removal. officer, investigating respondent sheriff’s Findings 10 9 and relate sepa- to two judge told the officer he was a and that the rate occurring incidents at an eating estab- pick person should aup alleged- officer who Casper. lishment Both incidents were from ly property respondent’s had stolen characterized rude and insolent behavior Respondent at the hearing client. testified part respondent. on the of The commen- merely that he told officer to investi- tary 2, supra, to Canon clearly states the gate the matter a point from criminal appropriate view behavior: Clearly, justice of view. engage practice 5-99.6, in the law. “Public confidence in the judiciary W.S.1957, Cum.Supp. 1975 Canon 2B eroded by irresponsible or improper con- adopted of Judicial Conduct by judges. judge Code 1973 duct A must all avoid court, states: appearance impropriety and of improprie- convincing” convincing 9. The “clear and test is the test ‘clear and evidence.’ Such appears Proposed 5.17 provides adequate Stan- protection standard Relating Discipline dard party Judicial and Disabil- subject charges, but at the same ity, by the recommended A.B.A. committee on time does not so demand much evidence that subject. same said in Matter of ability of the Commission and this court Heuermann, S.D., 603, 605-606, 240 N.W.2d effectively judiciary oversee the is im- where conduct of was in issue: paired. We note this standard has been adopted California, upon appropriate Alaska “The first issue we consider is proof proceedings own is whose statutes our based. Re standard of See In under the Hanson, 1975, Alaska, 303; inapposite 532 note that it would be P.2d Act. We Geiler v. require proof ‘beyond Qualifications, Commission on Judicial reasonable doubt’ as prosecution. Cal.Rptr. 201, this is not a criminal 10 Proof Cal.3d 110 P.2d also, preponderance Haggerty, 1970, mere the evidence is See In also Re 257 La. inapposite severity 469, 479; Diener, because In Re So.2d 268 Md. imposed. 587; Rome, 1975, sanction' which can We con- 304 A.2d Re proper proof standard clude that the 676.” Kan. P.2d
«67 expect He must be the ty. “I say would he [respondent] is a highly public scrutiny. He must there- constant capable Justice of the Peace and has been accept fore restrictions on his conduct at all times since he was in that office.” viewed might as burdensome by Attorney Fagan Thomas J. testified that ordinary citizen should do so free- willingly.” ly highly competent “is and one of the best Respondent failed to meet these standards Justices Peace in the State two in these situations. His conduct was Wyoming.” reprehensible, improper and certainly *12 justification finding was for he District Judge Forrister, on cross-exami- judicial brought degree his office into some nation, testified: disrepute. judicial Such behavior “Q. K.O. Could we start then with cannot be officer sanctioned. opinion regarding very simply the Finding 11 relates to an incident where qualtity decisions, sir, his legal his [sic] became physical involved in a ability, rulings. his private altercation outside a Again, club. Oh, I think good.” “A. rather respondent’s behavior was improper —even under the circumstances —and cannot be Forrister Judge was then asked: condoned. The office of “Q. you Would have any reason, as a cannot be the peace public confi- Judge District in Natrona County, when the officeholder dence acts in such an judicial integrity doubt of Mr. John- unpeaceful especially when there manner — son prejudice in his bias or toward indi- were alternative courses of conduct availa- viduals? ble. And he answered:
We do not discount findings other panel, made but view them as “A. ... I know of no reason. cumulative indices of respondent’s behavior. I Again, have heard things about When combined with the specifically-men- that are strictly hearsay. I have no di- findings, tioned we are confronted with de- knowledge any rect way of basing an part on the portment respondent which that, impression of any- would be falls far short of the standards which thing unfavorable.” judicial officers must conduct themselves in However, this state. while respondent’s be- 5, W.Adm.R.J.C., Rule does not ex lends havior itself dangerously to a course pressly provide imposition censure, conduct which would result in his remov- to the opposed removal of a al, we say cannot there directed, peace. however, We are to “make beyond a reasonable certainty. disposition as is proper deemed Notwithstanding things those disclosed regard to removal or retention.” In addi by the record which respondent’s concern tion, 5-99.8, supra, vests in this court the conduct, it would be less than fair to fail to powers discipline, powers shall in take note of the fact that there were nu- power clude the greater to remove. The merous witnesses who were highly compli- power to remove from office includes the mentary concerning ability his integri- lesser DuPont, censure. In re ty on the Bench. Typical are the following: (La.1975). So.2d In order to make Attorney Laird said that while he did not the legislative grant disciplinary powers always agree [respondent’s] with his deci- meaningful, range the full powers of such sions must contemplated. This conclusion is “they have been based on the law as he fully consistent with the mandate of the it,” sees people which is reflected in Article and concluded that he has no reason to supra. We cannot believe that we are to integrity his doubt court. treat differently, with
Attorney Yapp testified: respect discipline, from RAPER, Justice, specially of conduct for these justices. concurring. Standards vary, and neither should the do officers concur with what has been I said in the for a violation of such standards. sanctions opinion and its result. I sug- court’s would Therefore, we while do not find it marginal that was gest between censure sufficiently-clear convincing evidence removal, but I willing give am respondent, removal of the we to warrant any Judge benefit doubt to Johnson with unbecoming personal his behavior find hope that these proceedings may have respects. Accordingly, in several we salutary effect some and he will desist from formally censure hereby Justice do unjudicial conduct in all categories. Johnson, Earl R. Jr. His conduct Peace The court of with the disparaging and inconsistent because it important proba- is one in which placed in him trust the electorate. bly greater persons number of in a counsel, Through Justice of the Peace John community exposure receive recognition of these facts son evidenced must system. certainly Some be left with by expressing stating his contrition and un impression unacceptable extrajudi- equivocally that there would be no further is a cial conduct reflection of the quality of *13 regard com similar occurrences. We found in justice to be the court of such a electorate, mitment as one made to his judge. Public confidence is thus eroded. of disposition our this matter assumes that commitment will be honored. me Judge It alarms Johnson should attempt even to justify gross conduct, then, fitting, speak plain Eng- language and persons treatment of at the atmosphere weighty lish of the concern Country Kitchen or his assault and battery with which we reach this decision. We live Sanchez, Martin upon part shown as when, now in times because of our recent “8,” “9,” findings “11,” “10” note experience, lawyers judges national opinion, the court’s comportment which public themselves on trial. Justice cannot inexcusable and a state of intoxication am- easily truly come to the American soci- plifies the seriousness. There is created an indeed, ety and, to the world—unless — image judicial unfavorable dignity and integrity is confidence in the there others, which welfare must have a tend- legal profession, particularly American itself ency to mirror unto the judici- entire judges. accepts in its When he his robes degrading and ary, demeaning an establish- lonely and as he lives the life— which can tolerate only highest ment heavy responsibility with unrewarded as it within standards itself. be—the must commit his entire being judicial integrity, but he hopeful public, I am the bar and also conduct himself in must all manner will Judge Johnson impact consider the things very so that his will infuse life-style reprimand, censure and the grave sort of public the members who observe it is. It punishment becomes a blot activities, Bench, on and off the with a Judge record Johnson must now live moral securi- quiet sense of confidence and eyes under watchful down and is of no ty- moment. small vigilant keep will be and will eye legal watchful over the conduct of the state, in this to the end that all
profession will
who are officers of our various courts charged serving them as a credit in eyes they of all with whom come in
contact. publicly is censured and
Justice Johnson we will remove him
reprimanded, but
from office.