In Re Inquiry Concerning Judge Anderson , 491 Utah Adv. Rep. 29 ( 2004 )

DURRANT, Associate Chief Justice,

concurring in part and dissenting in part:

193 I agree with the conclusion of my colleagues that Judge Anderson's public accusations have prejudiced the administration of justice and imposed a substantial burden on the judges in the Third District Juvenile Court. I disagree, however, that this court is empowered to remove Judge Anderson from office for conduct that was neither considered by the Judicial Conduct Commission nor a basis for the Commission's recommended sanction.

94 The complaints the Guardian ad Li-tem filed with the Commission alleged that Judge Anderson had, on numerous occasions, failed to meet statutory deadlines. After appropriate investigation into and hearings regarding these complaints, the Commission ultimately found that the judge had been untimely in eleven specific instances and recommended that he be publicly reprimanded for these failures. These findings of tardiness, while significant and warranting sancetion, have now been dwarfed, in terms of any prejudicial effect on the administration of justice, by Judge Anderson's retaliatory response to the Commission proceedings concerning them. Indeed, it is this response that now serves as the principal basis for my colleagues' decision to remove Judge Anderson from office. In other words, Judge Anderson is not being removed because he made decisions in an untimely manner, but rather because he made public accusations against the offices of attorneys who frequently appear before him, thereby rendering himself disqualified from hearing the bulk of the cases a juvenile court judge must hear.

195 I do not dispute that these public accusations relate to the proceedings before the Commission. They were, in fact, made in direct response to the complaints made with the Commission, a linkage that my colleagues consider adequate to justify removal under article VIII, section 18. But while it is true that in the past, when determining whether to accept or modify a sanction recommended by the Commission, we have considered a judge's attitude in response to the Commission proceeding and any efforts by the judge to remedy the problem, my colleagues go far beyond that here. Rather than merely considering the aggravating or mitigating effect of Judge Anderson's public accusations, my colleagues now rely upon those accusations as the principal justification for his removal. Thus, we remove Judge Anderson today for conduct that played no role in the Commission proceeding and that had no bearing upon the sanction recommended by the Commission. This I believe we are not empowered to do.

196 As the court of last resort in this state, we are privileged with vast power. Attendant to that power, however, is an obligation to carefully police ourselves in its exercise. We have only that authority the constitution grants us, and we must be rigorous in limiting ourselves to the bounds set by that document.

197 In my view, the parameters of our authority to discipline judges are fully and exclusively defined by article VIII, section 13.¹ Section 13 empowers the Judicial Conduct Commission "to investigate and conduct confidential hearings regarding complaints against any justice or judge," and to order a sanction. It is only following such an order that our jurisdiction is invoked: "Prior to the implementation of any commission order, the Supreme Court shall view the commission's proceedings as to both law and fact." In conducting this review, we are authorized to "permit the introduction of additional evidence." We are further authorized to implement, reject, or modify the Commission's order.

198 My colleagues take the position that the authority conferred upon us by section 13 to take additional evidence authorizes us to impose a sanction based on that evidence. I believe this to be true, provided the additional evidence serves to support or undermine the charges filed with the Commission. Thus, in this case, we were clearly authorized to take additional evidence to determine whether or not the findings of tardiness made by the Commission were adequately supported, to assess the causes of that tardiness, or to determine whether Judge Anderson's pattern of untimeliness was aberrational relative to that of other juvenile court judges. But inasmuch as our authority is limited to reviewing the Commission's proceedings, I do not agree that our license to take additional evidence qualifies as a basis upon which we may remove Judge Anderson in this case, given that such additional evidence concerned conduct that was neither considered nor relied upon by the Commission in its proceedings.

{99 The extent of our authority under section 13 is concededly uncharted territory, and my colleagues' interpretation of that seetion is not unreasonable. I believe, however, that my reading more closely comports with the language and purpose of the section. Moreover, given that we are the final arbiters of our authority, if we are to err it should be on the side of judicial restraint. To be certain, my colleagues are motivated by their sincere concern for the judiciary and the parties and attorneys who appear in our juvenile courts. The problem created by Judge Anderson's public accusations and his resulting disqualifications is perplexing and its consequences far reaching, and it is no doubt more efficient for us to resolve the matter directly without it first being considered by the Commission. But I believe that our constitution requires that the Commission investigate and hold hearings on allegations of judicial misconduct in the first instance. Merely because a problem exists does not necessarily mean that we are empowered to remedy it. Rather, it must be addressed through the constitutionally pre-seribed channel. Consequently, it is my view that if a complaint is filed with the Commission based on Judge Anderson's public accusations, and the Commission issues a sanction order based on that complaint, then and only then are we empowered to address those charges. As this view differs from that of my colleagues, I respectfully dissent.

1100 I do wish to note, however, my agreement with certain issues appropriately reached by the majority opinion even under my interpretation of the seope of our constitutional authority. I agree with the majority's analysis regarding the constitutionality of the Judicial Conduct Commission as it is presently constituted, the process employed by the Commission in considering the charges asserted against Judge Anderson, the ability of our court to impartially review Commission recommendations, our authority to appoint a special master, the failure by Judge Anderson to meet statutory deadlines as a permissible basis for the Commission proceedings, the propriety of Judge Beneh's recusal, and the fairness and neutrality of the Commission. Accordingly, I concur as to parts VII.A-E and VIILB of the majority opinion, and dissent as to the remainder.

1 . I do not believe that we have the inherent authority to discipline judges. Moreover, I agree with the implication of my colleagues that the legislature cannot, as it has purported to do by statute, confer upon us power that it does not itself possess.