Amended June 21, 2016 in the Matter of the Inquiry Concerning Joseph Sevcik, Judicial Magistrate, First Judicial District. On Application of the Iowa ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 15–2008
Filed April 8, 2016
Amended June 21, 2016
IN THE MATTER OF THE INQUIRY CONCERNING JOSEPH SEVCIK,
Judicial Magistrate, First Judicial District.
On application of the Iowa Commission on Judicial Qualifications.
Commission on judicial qualifications filed application to discipline
part-time judicial magistrate for misuse of expunged court files.
APPLICATION GRANTED; JUDICIAL OFFICER REPRIMANDED.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Grant
Dugdale, Assistant Attorneys General, for complainant.
Joseph R. Sevcik, Cedar Falls, pro se.
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CADY, Chief Justice.
The Iowa Commission on Judicial Qualifications filed an
application for imposition of discipline against a part-time judicial
magistrate for misuse of expunged files. The Commission found the
magistrate violated the Iowa Code of Judicial Conduct and recommended
he be publicly reprimanded. We grant the application and agree on our
review that the appropriate sanction for the magistrate’s conduct is a
public reprimand.
I. Factual and Procedural Background.
Joseph Sevcik has served as a part-time magistrate in Black Hawk
County for nearly ten years. He has also practiced law in Iowa for more
than twenty-five years and maintains a law office in Cedar Falls. We
have never disciplined Magistrate Sevcik as a judicial officer or as an
attorney.
On November 5, 2013, Magistrate Sevcik, acting in his capacity as
a private attorney, represented a client in district court for a hearing on a
motion for temporary placement of a child. Prior to the hearing, he
retrieved four criminal and six domestic abuse court files from the office
of the clerk of court. He had notified the clerk of court in advance that
he wanted the files and intended to ask the judge to take judicial notice
of the contents of the files during the course of the hearing. Magistrate
Sevcik was uncertain whether he was on duty as a magistrate when he
requested the files, but was not on duty when he retrieved them from the
clerk’s office. He knew two of the criminal files included deferred
judgments and had been expunged. These files were marked as
expunged. He understood the expunged files contained confidential
documents and were only available to specific persons and agencies,
including magistrates. Iowa Code §§ 907.4(2), .9(4)(b) (2013). Magistrate
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Sevcik believed the district judge presiding over the hearing could take
judicial notice of all the files, and he requested such judicial notice
during the hearing, placing them on the courtroom bench. In addition,
Magistrate Sevcik used a document from one of the expunged files to
impeach a witness during the hearing.
The Commission found Magistrate Sevcik violated two of the
canons of judicial conduct with his actions. Specifically, the Commission
pinpointed rules 51:1.1, compliance with the law; 51:1.2, promote
independence, integrity, and impartiality of the judiciary while avoiding
impropriety; 51:1.3, abuse of judicial office to advance personal or
economic interests of the judge or others; and 51:3.5, intentional use of
nonpublic information for a purpose unrelated to judicial duties.
The Commission recommended Magistrate Sevcik be publicly
reprimanded. It relied on his candidness, his admission he should not
have requested or used the files, and his lack of prior discipline to
mitigate his conduct. Magistrate Sevcik requested a private
admonishment rather than a public reprimand.
II. Scope of Review.
It is our duty to discipline judicial officers for conduct violating the
canons of judicial ethics. Iowa Code § 602.2106(3)(b); see also Iowa
Const. art. V, § 19. We review recommendations for judicial discipline
de novo. In re Block, 816 N.W.2d 362, 364 (Iowa 2012). “The ethical
violation of a judge must be established by a convincing preponderance
of the evidence.” In re Dean, 855 N.W.2d 186, 191 (Iowa 2014).
III. Violations.
The Iowa Code of Judicial Conduct applies to both judges and
part-time magistrates, with some exceptions. See Iowa Code of Judicial
Conduct ch. 51, Application I, III. The exceptions recognize the leeway
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needed for magistrates to balance their duties and responsibilities in the
practice of law with the essential attributes of judicial service. The
exceptions carve out conduct relating to the judicial restrictions
governing the practice of law, select extrajudicial activities, and public
statements concerning pending and impending cases when not serving
as a judge. Id. Application III. Otherwise, the same canons of conduct
applicable to Iowa judges apply to magistrates. Additionally, the
applicable canons and rules apply to magistrates even when they are
wearing the hat of an attorney. In that respect, attorney-magistrates in
Iowa can be required to navigate through a host of challenges presented
by these dual ethical obligations. They must be vigilant of both sets of
rules and be cognizant of the critical importance of upholding both sets
of standards.
The conduct of Magistrate Sevcik at issue in this case boils down
to his actions in requesting and receiving two confidential court files from
a clerk of court, followed by his subsequent use of one of the files during
his cross-examination of a witness in a hearing before the district court
in which he represented a party in the case. The question is whether his
conduct violated rules 51:1.1, 51:1.2, 51:1.3, or 51:3.5.
A. Rule 51:1.1. Rule 51:1.1 provides that “[a] judge shall comply
with the law, including the Iowa Code of Judicial Conduct.” Id. r. 51:1.1.
Read in the context of the broader canon sought to be upheld and
promoted by rule 51:1.1, the rule addresses noncompliance with laws
that would undermine the independence, integrity, and impartiality of
the judiciary or project impropriety. See id. Canon 1. The rule
specifically identifies the code of judicial conduct as a part of the laws
covered by the rule, but not to make a violation of another judicial
conduct rule a separate violation of its provisions. Cf. Iowa Supreme Ct.
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Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010)
(“The purpose, however, of including [a rule requiring compliance with]
the Iowa Rules of Professional Conduct is to give notice to attorneys that
they are subject to discipline for violating the rules. The purpose of [the
rule] was not to create a separate violation.” (Citation omitted.)). Instead,
this portion of the rule clarifies that all judges must comply with the
rules of judicial conduct. See Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 889–90, 129 S. Ct. 2252, 2266–67, 173 L. Ed. 2d 1208, 1225–26
(2009) (indicating the integrity of the judiciary and the rule of law must
be upheld by all judicial officers). Thus, we must consider if the conduct
of Magistrate Sevcik constituted noncompliance with the law. If his
conduct violated the law, we must further consider if the violation
undermined the fundamental attributes of the judiciary sought to be
protected by Canon 1.
Under the law, a criminal record of a deferred judgment is
expunged following discharge from probation and payment of all financial
obligations. Iowa Code § 907.9(4)(b). The record is then segregated by
the clerk of court in a secure area or database exempt from public
access. Id. § 907.1(3). The file becomes a confidential record exempt
from public access under the open records law, but is available upon
request to those agencies or persons granted access to the deferred
judgment docket under section 907.4. Id. § 907.9(4)(b). A judicial
magistrate is a person given access to the deferred judgment docket. Id.
§ 907.4(2). The statute does not impose a further requirement that
access be limited to purposes related to judicial duties. Thus, a
magistrate in Iowa may request and is entitled to access expunged files
containing a deferred judgment.
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As a result, Magistrate Sevcik did not violate the law by requesting
and gaining access to the two expunged criminal files. Furthermore, the
Commission did not identify any law he violated by using one of the
expunged files other than rule 51:3.5, involving the disclosure or use of
nonpublic information for purposes unrelated to judicial duties. See
Iowa Code of Judicial Conduct r. 51:3.5. We conclude Magistrate Sevcik
did not violate rule 51:1.1 and separately consider whether he violated
rule 51:3.5.
B. Rule 51:3.5. Rule 51:3.5 provides that “[a] judge shall not
intentionally disclose or use nonpublic information acquired in a judicial
capacity for any purpose unrelated to the judge’s judicial duties.” Id.
Two records obtained by Magistrate Sevcik had been expunged. They
contained nonpublic information only available to Magistrate Sevcik
because of his status as a magistrate. See Iowa Code §§ 907.4(2),
.9(4)(b). As such, the files constituted nonpublic information acquired in
his judicial capacity. The remaining question is whether there was
evidence of intentional disclosure or use of the information for a purpose
unrelated to the judicial duties of the judge.
Magistrate Sevcik violated rule 51:3.5. The record supports a
finding that he intentionally disclosed and used information in the
expunged files for purposes totally unrelated to his duties as a
magistrate. This intentional conduct was most evidenced in his use of
one of the files to cross-examine a witness. Additionally, he acquired the
files from the clerk of court for purposes unrelated to his judicial duties.
C. Rule 51:1.2. Rule 51:1.2 requires judges to act “in a manner
that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and . . . avoid impropriety and the
appearance of impropriety.” Iowa Code of Judicial Conduct r. 51:1.2.
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“ ‘Integrity’ means probity, fairness, honesty, uprightness, and
soundness of character.” Id. Terminology. “Impropriety” includes
“conduct that undermines a judge’s independence, integrity, or
impartiality.” Id. The rule focuses on conduct of a judge, not the
subjective intent of the judge. In re Krull, 860 N.W.2d 38, 45 (Iowa
2015).
A judge who acquires nonpublic information in a judicial capacity
and uses the information for purposes unrelated to the judge’s judicial
duties can undermine the judge’s independence, integrity, and
impartiality. Here, the conduct by Magistrate Sevcik was in the nature of
abuse of power and projected a willingness to misuse judicial authority
to benefit his private practice of law. In this case, the violation of rule
51:3.5 also constituted a violation of rule 51:1.2.
D. Rule 51:1.3. Rule 51:1.3 provides, “A judge shall not abuse
the prestige of judicial office to advance the personal or economic
interests of the judge or others, or allow others to do so.” Iowa Code of
Judicial Conduct r. 51:1.3. A violation of the rule first requires conduct
that abuses “the prestige of judicial office.” Id. A judgeship is commonly
viewed with prestige in society, and a judge must avoid purposely using
that prestige to gain special treatment or favoritism. As with the misuse
of judicial authority, misuse of the prestige of judicial office can
undermine the essential and fundamental qualities of a judge. In re
Meldrum, 834 N.W.2d 650, 653 (Iowa 2013) (noting previously found
abuses of prestige included selling private merchandise in chambers and
identifying self as a judge in advertisement for private attorney services);
In re Harned, 357 N.W.2d 300, 302 (Iowa 1984) (using judicial letterhead
for a letter to other magistrate judges about daughter’s traffic ticket);
Charles Gardner Geyh, et al., Judicial Conduct and Ethics § 2.13, at 2-54
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to -64 (5th ed. 2013) (listing many possible abuses, including influencing
judicial proceedings for self or others, evading traffic tickets,
recommendation abuses, and testifying before a jury). As one judge
described it, this rule covers any “judge who in any manner gratuitously
interjects his or her judicial status in nonofficial dealings with law
enforcement officials, school officials, insurance agents, neighbors,
judges, or anyone else,” either through a specific request for favorable
treatment or when exploitation of the office can be inferred from the
circumstances. Raymond J. McKoski, Judicial Discipline and the
Appearance of Impropriety: What the Public Sees Is What the Judge Gets,
94 Minn. L. Rev. 1914, 1970–71 (2010).
Yet, the rule recognizes that a violation requires the judge to
engage in conduct that shows the judge is using or attempting to use the
prestige of office. The lynchpin of the rule is judicial complicity.
In this case, there was insufficient evidence presented that
Magistrate Sevcik projected the prestige of his office to gain access to the
expunged records or sought to use the prestige of his office. To the
contrary, the clerk of court viewed the request by Magistrate Sevcik as
any other request by a judge. Magistrate Sevcik did not display or use
his prestige of his judicial position to gain access, and the clerk
considered Magistrate Sevcik to be exercising his legal authority to
obtain the records. Thus, his conduct did not constitute an abuse of
prestige, but an abuse of authority previously addressed by rule 51:3.5.
IV. Sanction.
“The focus of sanctions in judicial disciplinary proceedings is not
to punish the individual judge, but to restore and maintain the dignity,
honor, and impartiality of the judicial office, and to protect the public
from further excesses.” In re McCormick, 639 N.W.2d 12, 16 (Iowa 2002).
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“The public must be protected, others must be deterred from similar
misconduct, and confidence in the judiciary must be vindicated.” In re
Eads, 362 N.W.2d 541, 551 (Iowa 1985). As with attorney discipline
cases, we do not have a standard sanction, but instead look to several
factors to impose the appropriate sanction for each individual case. In re
Meldrum, 834 N.W.2d at 654. These factors include,
(a) whether the misconduct is an isolated instance or
evidenced a pattern of [mis]conduct; (b) the nature, extent
and frequency of occurrence of the acts of misconduct;
(c) whether the misconduct occurred in or out of the
courtroom; (d) whether the misconduct occurred in the
judge’s official capacity or in his [or her] private life;
(e) whether the judge has acknowledged or recognized that
the acts occurred; (f) whether the judge has evidenced an
effort to change or modify his [or her] conduct; (g) the length
of service on the bench; (h) whether there have been prior
complaints about this judge; (i) the effect the misconduct has
upon the integrity of and respect for the judiciary; and (j) the
extent to which the judge exploited his [or her] position to
satisfy [any] personal desires.
In re McCormick, 639 N.W.2d at 16 (alteration in original) (quoting In re
Deming, 736 P.2d 639, 659 (Wash. 1987) (en banc)). We also consider
the sanctions imposed in similar cases. In re Krull, 860 N.W.2d at 46.
We have not been presented with a judicial discipline case similar
to the facts of this case. In a recent judicial discipline case involving a
part-time magistrate who failed to recuse himself from signing warrants
due to a conflict of interest, however, we imposed a public reprimand. Id.
at 49–50. In a case in which a magistrate advertised his services as an
attorney while noting he served as a magistrate, we again imposed a
public reprimand. In re Meldrum, 834 N.W.2d at 654. We have also
imposed a public reprimand on a judge convicted of operation of a
vehicle while intoxicated. In re Block, 816 N.W.2d at 366. We also
publicly reprimanded a judge who participated in political activities and
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subsequently made a false statement to the Commission regarding those
activities. In re McCormick, 639 N.W.2d at 17–18.
On the other hand, violations that harm public confidence in a
more severe way, such as intoxication while in the courtroom and
carrying on a campaign against a local attorney, have merited
suspensions. In re Dean, 855 N.W.2d at 188, 194 (imposing a thirty-day
suspension for holding court while intoxicated); In re Eads, 362 N.W.2d
at 551 (imposing a sixty-day suspension for “institut[ing] and then
carr[ying] on an inexcusable campaign against a lawyer”). We have also
suspended a judge for using her office to request leniency for her
daughter’s speeding ticket. In re Harned, 357 N.W.2d at 301–03
(imposing a four-day suspension for using official stationery to write a
letter and calling other magistrates to discuss her daughter’s speeding
ticket).
The Commission recommended a public reprimand. Magistrate
Sevcik has requested a private admonishment. “Where a violation
involves conduct that is negligent in nature, with little known injury, an
admonition or a private reprimand is normally appropriate. In re
McCormick, 639 N.W.2d at 17. But as we have noted before, “[o]nce we
grant an application in whole or in part, we are required to issue a
decree. This decree is made public.” In re Block, 816 N.W.2d at 366
(footnote omitted). Last year in In re Krull, we considered the possibility
of a public admonition as an intermediate sanction between a private
admonition and a public reprimand, noting the option was available if
appropriate although we had never issued a public admonition in a
judicial discipline application. 860 N.W.2d at 48 & n.4. “We employ
professional admonitions not so much by way of criticism as to
instruct . . . .” Comm. on Prof’l Ethics & Conduct v. Liles, 430 N.W.2d
11111, 113 (Iowa 1988); see also In re Krull, 860 N.W.2d at 48.
Admonitions do not amount to discipline, but signal we do not condone
the conduct giving rise to the complaint. See Iowa Supreme Ct. Bd. of
Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 383 (Iowa 2001);
Comm. on Prof’l Ethics & Conduct v. Zimmermann, 522 N.W.2d 619, 621
(Iowa 1994).
It is unnecessary for us to decide if we should adopt a public
admonition as a form of judicial discipline. Considering the nature of the
conduct, this case does not present a need for us to provide instruction
to magistrates on how to use their authority to access expunged records.
The misuse of authority in this case was not the result of a
misunderstanding, but a clear violation of the rule against using judicial
authority for purposes unrelated to the work of a magistrate.
We agree with the Commission that a public reprimand is the
appropriate sanction. It meets the goals of imposing sanctions and is
supported by the relevant circumstances in the case.
V. Conclusion.
We find Magistrate Joseph Sevcik violated Canons 1 and 3 of the
Iowa Code of Judicial Conduct as well as rules 51:1.2 and 51:3.5. We
reprimand Magistrate Sevcik for his conduct.
APPLICATION GRANTED; JUDICIAL OFFICER REPRIMANDED.