*1
13,
Arguеd January
petitioner
ordered removed from office March
petition
rehearing
opinion April
denied
See
In the Matter of
FIELD,
A.
Judge.
Honorable SHIRLEY
(SC 25453)
PER CURIAM.
[ 624] PER CURIAM. 8 of Section under amended
This is a proceeding 1.430 and ORS Constitution Oregon Article VII remove, suspend to the of this court relating power the record judge. deciding upon censure a We Fitness on Judicial made before Commission removed A. Field should be Shirley whether Court as of the District position from her County. Multnomah of the District Field was appointed 1972, and was Multnomah County July,
Court for November, 1972. position elected to 25, 1977, On May Notice of Complaint Inquiry charging Judge with various acts misconduct was filed by the Commission on Judicial (Commission). Fitness contained an complaint allegation Commission "reserves the right amend this complaint at time inquiry any prior On June hearing.” Field filed an answer admissions, *3 containing denials and the explanations of charges. answer also contained a reservation of the to amend at right 8, time any prior July to trial. On 1977, the Commission advised Field that the hearing 8, the set for charges was 1977. August Several days before the hearing, counsel Field was notified that the Commission intended to file an amended complaint, and such amended com- 8, was filed on plaint 1977. August September On 1977, the Fact, Commission filed Conclu- Findings of Law, sions of and a recommendation bе removed from her position as a district judge Multnomah County. of of the State of 1968 the people
In November 8 to Article VII added amended Section Oregon Constitution: Oregon Judges
"Section 8 Removal of "(1) law, notwith- by the manner provided In Article, any court judge 1 this a of standing section of [ ] 625 may by Supreme be from his office judicial removed for: Court
"(a) state, any in a or Conviction court of this or other States, felony a or punishable the United of crime as a of a involving turpitude; crime moral or "Ob) involving judicial misconduct in a office Wilful or turpitude; moral
"(c) judicial persistent perform Wilful or failure to duties; or
"(d) narcotic illegal or use of Habitual drunkenness drugs.
"(2) Article, the Notwithstanding 6 of this section and in methods this section section provided Constitution, II methods Article of removal of a of this exclusive
judge judicial from the office.” 24, 1976, this amended people Effective June so follows: it now reads as provision constitutional "(1) law, notwith- provided by In the manner Article, any court standing of this a of section by suspended judicial be or from his office may removed Court, Court, Supreme by Supreme or censured for: state,
"(a) or any or other in a court of this Conviction felony a or States, as punishable of crime the United or turpitude; moral involving a crime "(b) such misconduct office where judicial Wilful in a relationship misconduct bears demonstrable duties; judicial or performance of effective "(c) perform judicial persistent or failure to Wilful duties; or "(d) judicial Generally incompetent performance of duties; or "(e) as any judicial viоlation rule conduct Wilful Court; be or Supreme
shall established illegal use of narcotic "(f) drunkenness or Habitual dangerous drugs. "(2) Article, the Notwithstanding 6 of this section *4 section, la this Article in this section provided methods of Constitution, the Article in section II of this or censure suspension, of the exclusive methods removal italics.) (New judge.” of a material [ 626] The Commission found that Field’s behavior Judge wilful her tenure as constituted throughout duties, misconduct, wilful failure judicial to perform duties, to and also failure persistent perform judicial fоund her duties to be judicial gener- performance ally incompetent. Field the
Preliminarily, Judge challenges filing the amended complaint hearing before the started 8, 1977, and the amended notice August contends lacked the sufficient information her of apprise charges and her of an to refute deprived opportunity them. She also that of the contends one or more members of the Commission had the facts prejudged before the hearing.
We shall discuss first a allegation of prejudg ment of the facts. She states two of the commis that sioners had made she was statements that public incompetent. record that Field knew shows of the statements Her public prior hearing. counsel wrote letter to these two commissioners before the but did hearing not be request they disqualified.1 On the second day hearing, chairman advised Field and her counsel that letters had been received. no Again, objection request for disqualification was made. request
In addition to the failure two themselves, there is another disqualify cоmmissioners reason this why to the Commission’s find challenge ings must fail. We review the inde record to decide pendently facts what action is to be ordered by letter, 3, 1977, August part: 1 The dated stated client, Field, Shirley requested my "I have been you copy apparently appeared in an editorial which forward to February says that she has a Bend Bulletin on 1976. you impartiality question with in her mind as to whether or not camsit personal hearing as a member of the Commission her case. I have no couldn’t, knowledge you I and thus takе no as to whether could or thought position. Apparently you give as to she feels that should some any questions you impartially whether or not could serve have, might please free call with this matter feel connection me.”
[
]
*5
1.430(1)
Rio,
and see also Matter Del
this court. ORS
of
(1977).
665,
400 Mich
2 charges The new were as follows: to, Inquiree engaged highly likely "33. has in conduct intended or to, plead guilty. coerce a defendant qual- Inquiree intentionally appoint "34. certain has refused to experienced attorneys represent ified and criminal defendants faith, attorneys, good prejudice because those filed affidavits against attorneys provided her or because those information investigation by with thе this Commission. connection conducted Inquiree willfully persistently "35. has either failed or refused proper legal procedures accepting guilty pleas from to follow criminal defendants.”
[ ] occurred subsequent filing original complaint.
Although we believe that any waived alleged preju- defect and that she was not procedural diced, we shall decline to con- consider incidents nected with new raised Charge only matter the amended complaint.
Before
the merits of the
discussing
charges against
Field, we
should consider the
quantum
proof
сensure,
necessary
suspend, or remove a judge.
*6
Both the Commission and
that
Judge
agree
the proof should be clear and
a
convincing
judge
before
may
censured,
be
suspended,
removed
office.
from
Geiler v. Commission on
Qualifications,
Judicial
10
270,
1,
In re
(1973);
Cal 3d
515 P2d
110 Cal
201
Rptr
(1977).
Nowell,
235,
NC
293
SE2d 246
This is the
237
proof
standard of
required
bar disciplinary proceed
In re J.
Farris,
Kelly
ings,
209,
229
Or
we may not consider incidents prior which occurred 1976, 24, June the effective date of the changes VII, 8, Article section of the Constitution enacted in of that May year. Judge Field that to do so argues would amendment, to the give retrospective effect because none of the of the 1968 provisions version the amendment Field also that apply. Judge argues such a retrospective application would be impermiss- ible. need not address if We this the acts in argument 24, 1976, occurring after June are of complaint weight sufficient that the Con- support finding stitution as amended has been violated. One perform-
findings against that her Field was judicial generally incompetent. We duties was ance agree, below and conclude that the incidents outlined general incompetence. Because all of demonstrate pass after June we do not them occurred retroactivity now of the 1976 amendments. We that are the foundation of our turn to the facts conclusion. deputy attorney Sep-
A district testified that on custody 7, 1976, tember a defendant who had been in September brought Field for since before parking pleas guilty violations. He entered of not advised the that he or the was not the driver owner of the vehicle. He also stated that he had no driver’s license and had no interest in the vehicle belonged tickets, had received the car deputy friend. The testified: "Now, Mr. explana- [defendant’s] that was Mellon’s Field, listening to this tion of situation. after said, 'Well, explanation, going you I am to tell what we do, Mellon; going going you to Mr. we are to hold hostage. going get your We are to wait and see if we can friend in here.’ said, get
"Mr. Mellon 'Is there I can out of any way said, 'Yes, I think thing?’ pay this She can the fine.’ dollars, up something it totaled some of that $30 nature.
"Mr. indicated kind Mellon that he didn’t have that and whether not he could make a money inquired a phone call. The indicated that he could not make phone Tuesday. call. That concluded the on proceedings Mellon, in Wednesday, brought
"Then Mr. on again yet and he was had informed that his friend not —I might parenthetically add here that after Mr. Mellon a away Tuesday, Judge was taken Field entered friend, bench warrant for his Mr. had named who Mellon given approximate and an address for. Mr. in Wednesday, brought again
"On Mellon was time, that again and was informed or informed at that located; going his friend had not been that he was hostage remain as our think those are the words that —I used. "Mr. again Mellon inquired if he could make a phone Judge again said, 'No, call and the you cannot make a phone call.’ Thursday, "On which would day, have been the third
I, myself, contacted the American Civil Liberties Union if something see could be done Mr. Mellon. That morning he was by Judge released Field.
"Q When was Mr. put jail? Mellon first "A It would have been the Saturday prior. "Q And he was released on Thursday morning? "A Yes.
"Q Then he jail was in days? all five "A Saturday, Sunday, Monday, Tuesday, Wednes- day, part of Thursday.
* * * * "Q Do know what happened so far as the disposition of these parking tickets? Yes, "A on Thursday, brought when Mr. Mellon was
in, the Judge sentenced him to pay gave fine and him credit for the time jail. served in "Q That was despite his statement that he did not car, own this and that he did not have a Driver’s License? Yes,
"A is correct.” July, In custody 1976, a criminal defendant was in as a result of a bench warrant. His counsel and the attorney agreed guilty plea аppeared district on a following transpired, Field’s courtroom. The according to defendant’s counsel: "So it was 14], about 9:30 [July I say, maybe would o’clock,
10:00 perhaps a few minutes later but not too later, much I went to Judge Field’s courtroom and waited until she had finished her docket which was around 11:30, 11:15 or to the best of my recollection. I approached "Then the bench I my and told her client jail was in I represented Ronald Carter and he had placed jail been and was I upstairs, and asked her if she would take a Guilty plea he was here and since I since was in the courtroom and since the District
Attorney was willing to accept plea at that time.
"And she told me that accept Guilty she would not plea at that time but that placed the case would be down
[631] 19th, July 19th, Monday, on the docket at which July Guilty time she would take a plea.
"And I told that I and practicing her was in Woodbum it very that would be inconvenient for me to come back if I’d it the appreciate pleas she would take on I everybody 14th while was and while else was there there. me, McCann, 'Mr. I I you going
"And she told wаs told plea your this Monday. push take Now don’t luck.’ 'Well, said, Honor, I luck. I if push my you And did Your stay can’t take it I morning, willing this would be until if take it you around this afternoon would this I’m afternoon because Mr. Carter is here and here and Attorney ready go District is and we all here are this only now and will take about ten minutes.’ said, I 'If it it you today, "And don’t take will mean my jail days.’ client will have to five stay 'Well, McCann, said, happen
"And she it Mr. couldn’t along I guy. only put jail a nicer wish I could ” Unfortunately, jail attorney.’ with him. we can’t 1977, he February, A officer testified that police citation. in court in to DUII relation appeared he not present. but was name was called defendant’s asked the witness, the judge swearing Without he responded, reading, the breathalyzer officer for him fined "1.8.” found the defendant guilty She by anyone, offered no evidence was Although $250. operator’s of no guilty the defendant she also found him and fined $15. license a defendant’s revoked Field In May, al- attorney being present, his without probation had counsel. that he had been advised she though who he had counsel told her defendant When talk about stated, going she "We present, not else.” anybody attorney an not you, during testified attorney A district deputy attorney when an would not appoint heard by to have case agreed had the defendant instance, a woman In one a jury. without court with charged prostitution counsel be requested ap- *9 pointed. She was advised that her was "too request late.” At the time of trial she with her appeared mother; both advised the court were without they funds and again requested counsеl. The district deputy told the attorney court an attorney should be ap- pointed. The request was denied and defendant was found and guilty time sentenced to 30 At days. neither did the judge inquire concerning defendant’s financial situation or her ability to hire an attorney.3
As a district court misdemeanors, judge handling Field was Judge involved with closely the Metropoli- tan Public Defender’s Defender, Office. The Public who was concerned about the manner in which defend- ants were advised of being court, their rights by a requested meeting a district judge, dеputy attorney, himself. At the on meeting February 1976, he testified that "she seemed not to center on * * *” what we were talking about and would not listen to or comprehend felt problem. She "people the MPD were her, bad saying things about malicious rumors” and that her "primary job was to keep the court running quickly.” Office
The relations between the Public Defender’s result, and the court continued to deteriorate. As a counsel received more private appointments, would enter before her and defendants not guilty pleas then to another district change before pleas guilty number of There was evidence that a judge. large against were affidavits of attorneys filing prejudice testified Field. One of the district judges Field in a over 400 were filed against Judge affidavits other any to 10 against year, compared approximately result, assigned, As a cases were district when judge.4 appeared 3 There were other cases where it obvious that the defendant qualified court-appointed Field, counsel. in her answer tо the charges, prevented doing thorough stated the volume of cases her from as job determining indigency as she would like. imply 4 We do not intend to necessarily that the number of affidavits any bearing judge’s ability. may has on a There be other reasons for the filing of affidavits.
[ ] necessary assign judges, to it was them other increasing judges’ greatly caseloads. those individual several occasions judge he stated that also extremely distraught would observe an crying. time, At she refused to condition another rotating practice courts follow district court every change. months when the She refused six duties her furniture out of and even move her chambers resulting judge having door, locked the no one presiding judge until the convinced her chambers that, while move her furniture. He testified Field was well educated and not lacking in intelli- problem appar- gence, temperament and her was "her inability lawyers get along people and the ent with reluctantly that, He in his before the court.” stated opinion, perform competent not as district shе was County. court for Multnomah *10 Judge some of that Field, we find to In fairness all inconsequential of over- charges the result or the be could sight, criticisms others contain and any judge.5 trial to addressed general clearly shows duties. However, the evidence judicial performance Her treat incompetent of statutory disregard and for counsel, her ment of constitutional general rights defendants, her and of pressures reflect office inability cope of the with the to necessary judgment knowledge the a lack of justice courts. proper in our administration the performance on incompetent that her feel alsoWe instabili- emotional result of was the bench the district pressures duties.6 by of her ty caused examples, required lawyers As there was evidence to bailiff, argue objections jury, required before failed to swear the once exceptions jury, wrong to be taken before the and made the decision on merits a case. relating subpoenaed 6 Certain medical records Field were but objected were sealed not introduced into the when record she grounds they subject doctor-patient privilege were to the contained ORS requests pass upon admissibility side, 44.040. The this Commission court to of the records. matter has not been briefed either and we exception may any decline the invitation decide whether exist to privilege. The remain records sealed. we remove The Commission has recommended that only Field. Removal is not the solution available in cases of this kind. The 1976 amendments to the specifically provide Constitution for alternative sanc provisions. tions for violations of the constitutional depends appropriate Whether removal is the solution only magnitude not on the of the but also on violation probability If the violation’s recurrence. likely appropriate. recur, violation is removal is testify Field did not the Commission. before portions deposition However, of her were read into the record. She stated that her "tour of after she finished duty” in the 1974-75, traffiс court in the winter of she psychiatric University received treatment at the Oregon Medical School. She stated that the volume in extremely heavy the traffic court had been six months. She also stated: for those happened "What morning traffic court was one December, December, in—it was in I towards the end of went into the my courtroom and I couldn’t remember opening day statement that I made four times a six months. All of a sudden I it and I got couldn’t remember chambers; frightened by it. I came my back to someone said 'write it out.’ I it I just couldn’t write out. went I my blank. told secretary to take me to the Medical School.”
Again, hospitalized January, she psychiatric or and a half received three weeks. She testified in her treatment for two
deposition: "Q I see. happened your What as far as own observations? men- happened you physically What *11 tally or whatever?
"A I my just thinking properly. blew stack. I wasn’t mean, stack,’ "Q I you say your when 'blew how it would manifest itself? I just
"A wasn’t thinking properly. mean, "Q I did otherwise you things you do that might not have done?
"A I I thoughts anything had that —I didn’t do that done, I I might thoughts things not have but had about They have had weren’t real. thoughts shouldn’t about. [ ]635 "Q you Can describe that better for me? No, I "A can’t. reality;
"Q they I see. were sort of out of is that But you’re saying? what I
"A was overloaded.” explained She for her emotional also reason problems: up the sick
"Q you Can tell me what led leave what— had, the
"A Yes. I’ve stres- pressures The constant Commission, had Fitness by ses I’ve the Judicial done, ac- pressure everything on I’ve and the me was a cumulative affidavits of that lot prejudice; in the court pressure, plus year the one misdemеanor 6,000 I cases and had sentence where heard over hundreds of people—
"Q Uh-huh. exhausting just very expe- —and was "A that rience. Well, now, that
"Q taking I these one one see. mentioned, first Commission’s you taking have that to me? pressure, could describe I’ve become a very beginning "A Yes. that From letters, receipt gotten I’ve those certified return Judge, Commission, letters, And repeatedly. from the love cases, files, when I asked specifically number of the out, citations, the file got I them and checked when it likе letters were. anything wasn’t generalities of vague
"And then there were a lot that’s on the that weren’t —so my about behavior bench guess got I I thing. that a constant started —I all and I than after had been on first less six months letter the bench.” charges further
Her answer to the Commission’s explained January, treatment: Mental Health Center
"I was in Park Woodland Í977, part, by cumulative January, precipitated, Court year due to one tenure Misdemeanor exhaustion scrutiny your organi- pressure and the of incessant My I a judge. me ever have been put zation has since involuntary an civil commitment did not initiate doctor procedure.”
While we recognize a trial pressures upon in a court, we Field’s busy metropolitan believe Judge with her inability cope emotional after problems several with attempts professional help indicates is a removal It necessity. is that we appropriate mention here that are, district of courts this state Courts,” reality, and for it "People’s many may be only contact will they ever have with our сourts. "The impressions they receive their serve to shape opinion the judicial our system, laws and law enforcement. We cannot to be permit opinion but one of anything confidence and Matter respect.” NJ Yengo, 72 371 (1977), A2d 46 quoting Chief Justice Weintraub in L 81 NJ J.
It is the decision of this court that shall Judge Field be removed from office as District Court Multnomah County. order for removal shall issue not sooner than 20 after days the date of this decision.7 rehearing may petition be provides that a of this court 7 Rule 10.20 days decision. thе date of this court’s after filed within In the Matter FIELD, Judge. A. SHIRLEY THE HONORABLE 25453) (SC *13 M. Eakin Field, se, Margaretta A. Shirley pro Roberts, for the petition. M. and Leslie PER CURIAM.
PER CURIAM. Field has filed a for a petition rehearing reconsideration of our decision in which we found that her as a performance district court incompe- tent. We further found that Field must be removed from office because her was the incompetency result which, of emotional instability over a period time, she had been unable to overcome. In the petition she requests this cоurt or the Judicial Fitness Commission hear further evidence the ef- "regarding fect of past emotional on future problems stability.”1
One of the original made charges against Field before the Commission was that she suffered from mental impairment which affected her judicial At competency. the hearing certain deposition tes- timony relating to her emotional condition was re- ceived in evidence. The question of her emotional stability was one of the issues. During the hearing, counsel for the Commission attemрted to subpoena and introduce Judge Field’s medical records from both *14 Woodland Park Mental Health Center and the Univer- sity Oregon Health Sciences Center where she received treatment. Instead of meeting the issue of her present and future emotional condition perhaps offering testimony it, to explain vigorous- she ly objected to the introduction of her medical records grounds they were subject to the doctor-patient privilege contained in result, ORS 44.040. they As a were not received аnd have not been seen or considered by this court. It was Judge Field’s decision that records not be available for introduction and inspec- tion. petition for rehearing is denied. petition rehearing 1 The also raises the issues of the failure of one or more of the filing disqualify themselves, members of the Commission to and the complaint of an morning amended hearing. on the These two
matters were original opinion considered in upon reconsideration original opinion we adhere to our for the reasons stated therein. ]
[ 638-a