In re Complaint Against Schatz ( 2014 )

Nebraska Advance Sheets
952 287 NEBRASKA REPORTS
In re Complaint Against Gregory M. Schatz,
District Court Judge of the Fourth Judicial
District of the State of Nebraska.
State of Nebraska ex rel. Commission on
Judicial Qualifications, relator, v.
Gregory M. Schatz, respondent.
___ N.W.2d ___
Filed April 18, 2014. No. S-13-139.
1. Judges: Disciplinary Proceedings: Appeal and Error. In a review of the find-
ings and recommendations of the Commission on Judicial Qualifications, the
Nebraska Supreme Court shall review the record de novo and file a written opin-
ion and judgment directing action as it deems just and proper, and may reject or
modify, in whole or in part, the commission’s recommendation.
2. ____: ____: ____. In a review of the findings and recommendations of the
Commission on Judicial Qualifications, upon its independent inquiry, the
Nebraska Supreme Court must determine whether the charges against the
respond­ nt are supported by clear and convincing evidence and which, if any,
e
canons of the Nebraska Code of Judicial Conduct and subsections of Neb. Rev.
Stat. § 24-722 (Reissue 2008) have been violated.
3. ____: ____: ____. If violations of the Nebraska Code of Judicial Conduct and
subsections of Neb. Rev. Stat. § 24-722 (Reissue 2008) are found, the Nebraska
Supreme Court must then determine what discipline, if any, is appropriate under
the circumstances.
Original action. Judgment of public reprimand.
Anne E. Winner for relator.
Thomas F. Hoarty, Jr., of Byam & Hoarty, for respondent.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
P er Curiam.
This is a judicial misconduct case. Gregory M. Schatz,
a district judge for the Fourth Judicial District, improperly
intervened in a case involving his friend, Michael Davlin,
by ordering him released from jail on his own recognizance
before arraignment. Both the appointed special master and the
Commission on Judicial Qualifications (Commission) recom-
mended publicly reprimanding Schatz. Because of the nature
Nebraska Advance Sheets
IN RE COMPLAINT AGAINST SCHATZ 953
Cite as 287 Neb. 952of the misconduct and the presence of several mitigating cir-
cumstances, we agree with their recommendation and hereby
publicly reprimand Schatz.
BACKGROUND
The Commission’s complaint against Schatz charged him
with misconduct in violation of the Nebraska Code of Judicial
Conduct, the Nebraska Constitution,1 and Neb. Rev. Stat.
§ 24-722(6) (Reissue 2008). In essence, the complaint alleged
that Schatz had improperly intervened in a felony drunk driv-
ing case by contacting the jail and using his judicial authority
to instruct the personnel to release his friend Davlin without
paying a bond.
In his amended answer, Schatz admitted to the majority of
the complaint’s allegations. Schatz also affirmatively alleged
that he understood he had been wrong to intervene in Davlin’s
case, that he had no further involvement in Davlin’s case since
contacting the jail, and that he would not intervene in any such
matter in the future. Schatz alleged that he had acted without
any improper motive and that, when he contacted the jail, he
believed that a recognizance bond was proper. Schatz also
affirmatively alleged that he had since taken a judicial eth-
ics course, that he had never before received any disciplinary
sanctions, and that he generally had a good reputation with
members of the bar and voters in his area.
We appointed the Honorable Jeffre Cheuvront, a retired
district court judge, to serve as special master. At the hearing
before the special master, Schatz testified that he had received
a voicemail message late at night from Davlin’s girlfriend (also
Schatz’ friend) explaining what had happened to Davlin and
that he was in jail. Schatz testified that he listened to the voice-
mail early the next morning, that he called Davlin’s girlfriend
back around 7 a.m., and that he told her he would “see what
[he] could do.” Schatz testified that he then called the jail,
explained who he was, and told them to release Davlin on his
own recognizance.
1
Neb. Const. art. V, § 30.
Nebraska Advance Sheets
954 287 NEBRASKA REPORTS
Schatz testified that after he left for work, he felt he had
made a mistake and immediately went to see Donald Kleine,
the Douglas County Attorney. Schatz met with Kleine about an
hour after Schatz’ telephone call to the jail. Schatz told Kleine
what he had done and that he was sorry. The record shows
that Kleine had a policy in felony drunk driving cases to not
participate in setting a bond until arraignment before a county
judge. Schatz testified that he was unaware of that policy, but
now being aware of it, he intended to follow it in the future.
Schatz testified that he understood he had made a mistake, that
he had successfully completed a judicial ethics course, and that
he had not been disciplined in the past. Schatz also offered
into evidence many letters in support of his character and over-
all competence.
Other witnesses’ testimony corroborated and expanded on
Schatz’ testimony. The jail employee whom Schatz spoke
with that morning testified that Schatz called the jail around
7:15 a.m. She verified it was Schatz through his identifica-
tion code and then set Davlin’s release in motion, as Schatz
requested. The jail employee testified that although that was
not normally how things were done, she had to follow a
judge’s orders.
Kleine testified that before he became county attorney, there
was a policy or custom where, in felony drunk driving cases,
bond could be set early, before arraignment. But that changed
when Kleine became county attorney, and in such cases, his
policy was to not participate in setting a bond until arraignment
before a county judge. Kleine also testified about the conversa-
tion with Schatz. Kleine described Schatz as apologetic, and
after Kleine reviewed Davlin’s arrest report, he explained to
Schatz his policy and that he did not think Schatz’ mistake
would affect the progression of the case.
The Honorable Susan Bazis, a county judge, also testified.
Bazis explained that two other county judges informed her
of Schatz’ involvement in Davlin’s case. Bazis testified that
several days after Davlin’s release, she met with Schatz about
the incident. Bazis testified that she told Schatz she thought
he may have violated the judicial code and that she felt obli-
gated to report it if he did not, and she did in fact do so. Bazis
Nebraska Advance Sheets
IN RE COMPLAINT AGAINST SCHATZ 955
Cite as 287 Neb. 952testified that Schatz was not “at all” defensive when she came
to him, that he later apologized to her for putting her in that
position, and that she respected him as a judge.
Matt Kuhse, a deputy county attorney, also briefly testified.
He testified that Davlin would not have been released early but
for Schatz’ intervention, that Kuhse would not have agreed to
an initial recognizance bond, that subsequent judges contin-
ued Davlin’s recognizance bond, and that Schatz had a good
reputation. Stuart Dornan, a local attorney, similarly testified
regarding Schatz’ reputation, and he testified about the policy
regarding bond setting in felony drunk driving cases before
Kleine became county attorney.
The special master’s factual findings generally tracked the
testimony set forth above, as there was no real dispute as
to what happened. Based on those factual findings, the spe-
cial master found that Schatz had violated several provisions
of the judicial code and that he had violated the Nebraska
Constitution and § 24-722(6). The special master then noted
that Schatz had admitted his wrongdoing and had “expressed
genuine remorse for his conduct.” The special master also
observed that this was an isolated incident unlikely to recur
and that all the witnesses (and support letters offered into evi-
dence) praised Schatz’ abilities and integrity. In light of those
circumstances, the special master felt the appropriate sanction
was “no more than a public reprimand.”
The Commission, after independently reviewing the record
and hearing argument, adopted the special master’s factual
findings and likewise recommended a public reprimand.
Schatz subsequently filed a “Consent to Reprimand,” and
we ordered both the Commission and Schatz to submit briefs
on whether the Commission’s proposed disposition was just,
proper, and consistent with prior dispositions involving simi-
lar misconduct.
STANDARD OF REVIEW
[1-3] In a review of the findings and recommendations of
the Commission, this court shall review the record de novo
and file a written opinion and judgment directing action as
it deems just and proper, and may reject or modify, in whole
Nebraska Advance Sheets
956 287 NEBRASKA REPORTS
or in part, the Commission’s recommendation.2 Upon our
independent inquiry, we must determine whether the charges
against the respondent are supported by clear and convincing
evidence and which, if any, canons of the Code and subsec-
tions of § 24-722 have been violated.3 If violations are found,
we must then determine what discipline, if any, is appropriate
under the circumstances.4
ANALYSIS
Our first task in judicial misconduct cases is to determine
whether there is clear and convincing evidence to support the
charges.5 Here, there is. There is essentially no dispute that
Schatz used his judicial authority to order the release of Davlin
without Davlin’s paying a bond. The record shows that Schatz’
actions were not in accord with how bonds were normally set
in felony drunk driving cases. Specifically, the record shows
that without Schatz’ intervention, Davlin would have remained
in jail until his arraignment in county court, when presumably
either he would have been released on his own recognizance or
a monetary bond would have been set. In the latter and more
probable circumstance, Davlin would have been held in jail
until he posted bond.
Based on these facts, we agree with both the special master
and the Commission that Schatz primarily violated the fol-
lowing provisions of the Nebraska Revised Code of Judicial
Conduct: § 5-301.2 (judge shall act to promote confidence
in judiciary and avoid impropriety and appearance of impro-
priety), § 5-301.3 (judge shall not abuse office to advance
personal interests), § 5-302.4(B) (judge shall not allow per-
sonal interests or relationships to influence judicial conduct
or judgment), and § 5-302.9(A) (judge shall not, except for
certain limited situations, have ex parte communications or
2
See In re Complaint Against Florom, 280 Neb. 192, 784 N.W.2d 897(2010).
3
See id.4
See id.5
See In re Complaint Against Lindner, 271 Neb. 323, 710 N.W.2d 866(2006).
Nebraska Advance Sheets
IN RE COMPLAINT AGAINST SCHATZ 957
Cite as 287 Neb. 952communications outside presence of parties or their lawyers
concerning pending or impending matter). We also agree that
Schatz’ actions constituted willful misconduct prejudicial to
the administration of justice that brings the judicial office
into disrepute.6
Our second task is to determine the appropriate sanction for
Schatz’ misconduct.7 We note that both the special master and
the Commission independently determined that under the cir-
cumstances, a public reprimand was the appropriate sanction.
While we give some weight to these recommendations, we
must review the record ourselves and come to our own conclu-
sions as to the proper sanction.8
In doing so, we find it useful to look at past cases involving
judicial misconduct. Admittedly, as the Commission noted in
its brief, prior cases do not involve the same type of miscon-
duct present here. Nevertheless, we believe that parallels may
be drawn and comparisons made, and that by doing so, we
may be consistent in imposing discipline for judicial miscon-
duct. Moreover, a look at prior cases, regardless whether the
misconduct is of the same type, provides guidance as to the
general principles and factors we look at in determining the
proper discipline.
For example, in In re Complaint Against White,9 we sus-
pended a county judge without pay for her actions in trying to
obtain appellate review of a district court decision reversing
one of her orders. Over the course of several months, the judge
met with the deputy county attorney several times; provided
her with case law and reasons why the district court’s order
was allegedly incorrect; asked the district court to appoint a
special prosecutor to appeal the decision; and, through personal
counsel, later filed her own petition to appoint a special county
6
See, Neb. Const. art. V, § 30; § 24-722(6).
7
See In re Complaint Against Lindner, supra note 5.
8
See, e.g., In re Complaint Against White, 264 Neb. 740, 651 N.W.2d
551 (2002); In re Complaint Against Jones, 255 Neb. 1, 581 N.W.2d 876(1998).
9
In re Complaint Against White, supra note 8.
Nebraska Advance Sheets
958 287 NEBRASKA REPORTS
attorney to render an advisory opinion on the correctness of the
court’s decision.10
And in In re Complaint Against Florom,11 we removed a
county judge from office for his repeated and flagrant interven-
tion, over several months, in two cases involving his personal
acquaintances. There, the judge threatened reprisal against a
practicing attorney if he were to act against the judge’s inter-
ests, repeatedly made known his personal interest in the cases
to various lawyers, and “invoked his judicial office repeatedly
in serving as a character reference for a convicted criminal,”12
in violation of the judicial code.
Schatz’ misconduct comes nowhere close to the level
of impropriety in In re Complaint Against White and In re
Complaint Against Florom, or in other cases where we have
ordered suspension or removal from office.13 Further, we note
that the record shows that Schatz’ misconduct had no effect
(outside of the obvious) on the progression or outcome of
Davlin’s case. And we note that Schatz’ misconduct, while
clearly improper, was an isolated incident; there was no pattern
of misconduct.14
Also, there are mitigating circumstances. After calling the
jail, Schatz immediately recognized he had made a mistake,
met with Kleine to tell him what he had done, and was apolo-
getic.15 Schatz, since being appointed to the bench in 2000,
has never before been disciplined.16 After recognizing what he
had done was improper, and in an effort to improve his under-
standing of judicial ethics, Schatz enrolled in and completed
10
See id.11
In re Complaint Against Florom, supra note 2.
12
Id. at 203, 784 N.W.2d at 905-06.
13
See, e.g., In re Complaint Against Krepela, 262 Neb. 85, 628 N.W.2d 262(2001).
14
Compare id., with In re Complaint Against Jones, supra note 8, and In re
Complaint Against Staley, 241 Neb. 152, 486 N.W.2d 886 (1992).
15
Cf. In re Complaint Against Reagan, No. S-35-030003 (Neb. Comm. on
Jud. Qual. June 2, 2003).
16
See, In re Complaint Against Lindner, supra note 5; In re Complaint
Against White, supra note 8.
Nebraska Advance Sheets
IN RE COMPLAINT AGAINST SCHATZ 959
Cite as 287 Neb. 952a judicial ethics course.17 We note too that Schatz has, at all
times, cooperated with the Commission.18 Finally, the record
shows that Schatz, outside of this incident, has served the pub-
lic well as a judge, a factor to be considered in determining the
appropriate discipline.19
After considering our case law and the particular circum-
stances here, we agree with both the special master and the
Commission that a public reprimand is appropriate. We recog-
nize that the misconduct here does not necessarily match up
with that of prior cases where a public reprimand was issued.20
But a harsher sanction is unwarranted, because Schatz’ miscon-
duct is much less severe than in cases where we have ordered
suspension or removal from office21 and there are several miti-
gating circumstances.
CONCLUSION
Schatz improperly exercised his judicial authority for
Davlin, a friend. Such misconduct cannot be condoned. Both
the special master and the Commission suggested that a public
reprimand was the appropriate sanction. Considering the nature
of the misconduct and the various mitigating circumstances,
we agree.
Judgment of public reprimand.
Heavican, C.J., not participating.
17
See In re Complaint Against Lindner, supra note 5 (citing In re Complaint
Against Swartz, No. S-35-000003 (Neb. Comm. on Jud. Qual. Sept. 8,
2000)).
18
See id. (citing In re Complaint Against Huber, No. S-35-050003 (Neb.
Comm. on Jud. Qual. Aug. 11, 2005)).
19
See In re Complaint Against Krepela, supra note 13.
20
See, e.g., In re Complaint Against Lindner, supra note 5.
21
See, In re Complaint Against Florom, supra note 2; In re Complaint
Against White, supra note 8; In re Complaint Against Krepela, supra
note 13.