Amended December 11, 2014 in the Matter of Emily Susan Dean, District Associate Court Judge. On Application of the Iowa

IN THE SUPREME COURT OF IOWA
No. 14–0510
Filed September 12, 2014
Amended December 11, 2014
IN THE MATTER OF EMILY SUSAN DEAN,
District Associate Court Judge.
On application of the Iowa Commission on Judicial Qualifications.
State commission on judicial qualifications filed application
recommending three-month suspension of district associate judge.
APPLICATION GRANTED; JUDICIAL OFFICER SUSPENDED.
Thomas J. Miller, Attorney General, and Grant K. Dugdale and
Kevin R. Cmelik, Assistant Attorneys General, for complainant.
Elaine F. Gray of Fehseke & Gray Law Offices, Fort Madison, for
respondent.
2
APPEL, Justice.
In this case, we consider a recommendation by the Iowa
Commission on Judicial Qualifications (the Commission) to suspend a
district associate judge for three months as a result of behavior related to
alcohol consumption. The gravamen of the original complaint that
triggered commencement of the proceeding was a report that the judge
arrived at a courthouse in an intoxicated state and could not perform her
scheduled judicial duties. For the reasons expressed below, we conclude
that a suspension without pay should be imposed, but limit the
suspension to thirty days.
I. Factual and Procedural Background.
A. The Precipitating Incident. On May 9, 2012, the Commission
received a complaint from a district court judge regarding District
Associate Judge Emily Dean. The precipitating incident that gave rise to
the complaint was the arrival of Judge Dean at the Henry County
Courthouse that morning where she was said to be physically unable to
take the bench. The complaint indicated reports that Judge Dean had
been consuming alcohol prior to her arrival at the courthouse. The
complaint also recited a history of Judge Dean’s absence from work for
health-related reasons presumed to be alcohol related. On May 10, the
Commission entered an order suspending Judge Dean from her judicial
duties pending investigation and action on the complaint.
B. Attorney General’s Report to the Commission. The attorney
general’s office conducted an investigation of the facts alleged in the
complaint and issued a report, which was admitted as State’s Exhibit 1
at the hearing. With respect to the incident on May 9, the attorney
general’s report indicated that Judge Dean had been drinking a colorless
liquid and fell asleep in the car while being driven by her court reporter
3
from Fort Madison to Mount Pleasant. Upon arriving at the courthouse,
Judge Dean swayed and was unsteady. Her court reporter recognized
that she was not in a condition to take the bench and obtained
assistance from an employee in the county attorney’s office to persuade
Judge Dean not to take the bench and to leave the courthouse. Her
court reporter drove her back to Fort Madison and contacted a family
member. Later that day, she was hospitalized for severe alcohol
intoxication. She remained in the hospital for three days. The attorney
general’s office interviewed the witnesses with firsthand knowledge of the
incident. There was no suggestion in the report of inappropriate conduct
on the part of Judge Dean on May 9, beyond her arrival at the
courthouse in a state of intoxication.
In a letter to the attorney general’s office submitted pursuant to
the investigation, Judge Dean began by admitting that she is an alcoholic
and generally recounted her struggle with the disease, stating she
initially addressed the problem locally through weekly substance abuse
counseling and additional mental health counseling. She suffered a
grand mal seizure in November 2011 as a result of alcohol withdrawal
and participated in inpatient alcohol treatment at Hazelden in Center
City, Minnesota, in December 2011. She stated that she attended a
second inpatient treatment program at The Abbey in Bettendorf, Iowa, in
April 2012. Upon further inquiry by the attorney general’s investigator,
however, Judge Dean admitted that she left both programs shortly before
completion.
Judge Dean did not contest the basic facts surrounding the May 9
incident, although she stated she had “very little recollection of that
morning.” After leaving the courthouse, Judge Dean stated that her
family took her to Great River Medical Center’s emergency unit, where
4
she was admitted into the intensive care unit. She remained hospitalized
for three days. She characterized the May 9 event as “hitting bottom” in
her struggle with alcoholism.
The report also noted other incidents of alcohol-related conduct.
An assistant county attorney stated that in February and March of 2012,
there were occasions when Judge Dean appeared “disoriented” and
“disheveled.” Additionally, the report described an incident in
Fort Madison in which lawyers and litigants were assembled in the
courtroom. According to the report, Judge Dean took the bench and
stated, “Why are all of you here?” The report stated Judge Dean’s court
reporter called Judge Dean’s father who arrived and escorted her from
the courthouse.
The report further described other events. Judge Dean apparently
decided to test a “panic button” to see if law enforcement would respond,
which they did. Additionally, in May of 2012 a citizen filed a complaint
alleging that a female driving Judge Dean’s husband’s car had urinated
in a public street. The citizen followed the car to a destination that fit
the description of Judge Dean’s mother’s residence. Judge Dean
admitted she knew of the allegation, but could not remember what
happened and could not deny it. No charges were filed.
The report also canvassed Judge Dean’s recovery efforts after
May 9. According to Hugh Grady of the Iowa Lawyers Assistance
Program (ILAP), Judge Dean had made excellent progress in a twelve-step
program. Judge Dean had also signed a contract to abide by all
conditions imposed by ILAP, including monitoring by Mr. Grady, regular
attendance at meetings with a sobriety support group, and preparation of
a relapse plan. Mr. Grady and professionals at Great River Addiction
5
Services did not recommend another round of inpatient treatment for
Judge Dean.
C. Charges Brought by the Commission. After the attorney
general’s investigation and subsequent report, the Commission filed a
notice of charges against Judge Dean and set the matter for hearing. In
the notice of charges, the Commission alleged that Judge Dean violated
canon one and canon two of the Iowa Code of Judicial Conduct,
including rule 51:1.2 and rule 51:2.5(A). See Iowa Code of Judicial
Conduct Canons 1, 2; id. rs. 51:1.2, 51:2.5(A). First, the Commission
charged that by appearing at the Henry County Courthouse while
intoxicated, Judge Dean failed to avoid impropriety, raised doubt about
her integrity, and eroded confidence in the judiciary. As a result, the
Commission alleged a violation of rule 51:1.2, which requires judges to
promote confidence in the judiciary. See Iowa Code of Judicial Conduct
R. 51:1.2. Second, the Commission charged that by being intoxicated
and unable to handle assigned cases on one or more occasions, Judge
Dean failed to demonstrate the competence and diligence required in the
performance of judicial duties. As a result, the Commission alleged a
violation of rule 51:2.5(A), relating to the competence, diligence, and
cooperation of a judge. See id. r. 51:2.5(A).
Judge Dean filed an answer admitting the charges. Although
Judge Dean admitted to the charges, it is our duty to review the findings
of the Commission de novo and evaluate the facts to determine if a
violation occurred. See In re Meldrum, 834 N.W.2d 650, 652 (Iowa 2013);
cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801,
804 (Iowa 2010) (“Our rules require us to determine whether [the]
conduct violates our ethical rules.”). In doing so, we look to both
attorney and judicial disciplinary cases and note that principles in
6
attorney disciplinary matters are generally applicable to judicial
disciplinary matters. See In re McCormick, 639 N.W.2d 12, 18 (Iowa
2002) (observing sanctions related to attorney misconduct should be
comparable in judicial disciplinary proceedings).
D. Hearing Before the Commission. The Commission held its
hearing on October 31, 2012. At the hearing, the State rested on the
admissions by Judge Dean that she had violated the rules of judicial
conduct. Later in the proceeding, however, in addition to the attorney
general’s report, the State offered into evidence medical records related to
Judge Dean’s efforts to address her alcoholism.
Judge Dean put on testimony from alcohol counselors and her
husband. James Towlerton, a substance-abuse counselor at Great River
Addiction Services, testified Judge Dean had made excellent progress in
dealing with her alcoholism since the May 9 incident. Mr. Towlerton
noted Judge Dean had “totally involved herself” in Alcoholics Anonymous
(AA) and attended two meetings a day the majority of time since May 9.
Mr. Grady testified that contrary to her efforts prior to May 9, Judge
Dean was now “fully invested in recovery” with “a completely different
commitment” to a recovery program. Her husband testified about the
long and painful family history of frustration and broken promises
related to Judge Dean’s alcoholic behavior, followed by “a complete 180
degree turn” after May 9.
Judge Dean also testified. She recounted the course of her
alcoholism and her unsuccessful past efforts to address it. She generally
asserted that other than the occasion on May 9, she did not come to
work intoxicated. She admitted that she lost her zest for the job and that
she quit doing any more than was necessary, but she asserted she
handled her workload in a timely manner. With respect to the citizen
7
report that she urinated in public, she had limited memory of the event
and could neither affirm nor deny what happened. She denied any
improper or alcohol-affected conduct in connection with testing the panic
button, though she admitted law enforcement was not pleased by her
experiment. Judge Dean stated she had no recollection of the assistant
county attorney’s report of an occasion when she was confused by the
presence of lawyers and litigants in the courtroom.
Notwithstanding failed past efforts to deal with her alcoholic
behaviors, Judge Dean testified that since May 9, AA has become the
center of her life. She now recognizes she is an alcoholic and she cannot
allow herself to drink. In light of her path to recovery, Judge Dean
declared she was desperately ready to go back to work. She recognized
her conduct “tarnished the reputation” of the judicial branch, but
suggested her experience would give her insight into her work as a judge.
At the hearing, a monitoring agreement between Judge Dean and
the ILAP was introduced into evidence. Under the terms of the
monitoring agreement, Judge Dean, among other things, agreed to
remain abstinent from alcohol and mood altering drugs, to attend a
minimum of five AA meetings per week, to find and use a sponsor, to
meet with Mr. Grady and Mr. Towlerton on a regular basis, to provide
random urine samples upon request, and to provide proof of compliance
to the ILAP on a quarterly basis. The monitoring agreement further
provided that any noncompliance would be reported to the Commission.
Mr. Grady called the monitoring agreement “the key” or, more
ominously, “the hammer.” Judge Dean testified she was in full
agreement with all of the provisions of the monitoring agreement. She
stated, “I can’t do my job appropriately if I’m actively using alcohol.”
8
On the issue of sanction, the State indicated that a private
admonition would probably do as much as anything for Judge Dean, but
the public and the profession needed to know the matter was being taken
seriously. Therefore, the State urged at the very least a public
reprimand. The State further recommended the sanction of removal from
office or a suspension without pay stayed pending Judge Dean’s
continued sobriety and compliance with the monitoring agreement with
the ILAP.
Judge Dean noted she had already been off work seeking
rehabilitation for five months. She was prepared to live with any
sanction the Commission proposed and noted that having the hammer
was probably a “good idea.” She primarily wanted to go back to work.
E. Commission Rulings.
1. Reinstatement order. On November 2, 2012, the Commission
entered an order reinstating Judge Dean to her judicial duties. The
reinstatement order, however, incorporated in substance the terms of the
monitoring agreement introduced into evidence at the hearing. The
reinstatement order provided that Mr. Grady or his designee shall
immediately report to the Commission any failure to meet the
requirements of the monitoring agreement. Upon such a report, the
Commission would determine an appropriate response depending upon
the nature of the failure. The monitoring agreement was to remain in
effect for two years from the date of the order.
2. Application to discipline a judicial officer. On March 27, 2014,
the Commission filed an application with this court to discipline a
judicial officer pursuant to Iowa Code section 602.2106 (2011). The
Commission entered findings of fact, noting among other things that
prior to May 9, 2012, Judge Dean wrestled with alcoholism and at times
9
appeared in court disoriented and disheveled. The Commission also
found that Judge Dean relieved herself on a public street while under the
influence of alcohol. The Commission further found that on May 9,
2012, Judge Dean arrived at the Henry County Courthouse in an
intoxicated state and, through the intervention of staff, was persuaded to
leave rather than take the bench. The Commission noted Judge Dean
acknowledged, and the Commission found, that Judge Dean violated
canon one and canon two of the Iowa Code of Judicial Conduct,
including rule 51:1.2 and rule 51:2.5(A).
The Commission noted that while alcoholism is an illness, there
remained the issue of an appropriate sanction for Judge Dean’s improper
conduct. The Commission recognized the challenging nature of the task
when alcoholism causes an otherwise competent and diligent jurist to
violate her professional responsibilities. While the Commission
applauded Judge Dean’s so far successful effort to control her alcohol
use since May 9, the Commission believed that in determining the
appropriate sanction, restoring public confidence in the judicial system
and deterring other judges from engaging in similar unethical conduct
were the main purposes of judicial discipline. The Commission noted
that while a lesser sanction might be appropriate for a single incident of
alcohol-induced behavior outside the courthouse, Judge Dean appeared
intoxicated on the bench, in the courthouse, and in public.
The Commission recommended that Judge Dean be suspended for
three months without pay. Because of potential disruption to the Eighth
Judicial District that would result from a three-month suspension, the
Commission recommended the suspension be imposed in increments of
no less than one week at a time, as scheduled by the chief judge of the
district. The Commission further emphasized that during the period of
10
suspension, Judge Dean should continue to comply with the monitoring
agreement described in the Commission’s order for reinstatement.
II. Scope of Review.
“Our standard of review of a recommendation of judicial discipline
by the commission on judicial qualifications is de novo.” In re
McCormick, 639 N.W.2d at 15. The ethical violation of a judge must be
established by a convincing preponderance of the evidence. In re Block,
816 N.W.2d 362, 364 (Iowa 2012).
III. Discussion.
A. Violations of Judicial Ethics. In this case, the Commission
charged, and Judge Dean has admitted, violation of rules 51:1.2 and
51:2.5(A). Rule 51:1.2 states that “[a] judge shall act at all times in a
manner that promotes public confidence in the independence, integrity,
and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” Iowa Code of Judicial Conduct R. 51:1.2.
Rule 51:2.5(A) provides that “[a] judge shall perform judicial and
administrative duties competently and diligently.” Id. r. 51:2.5(A). In
order to sanction a judge, a violation of the rules must be “substantial.”
Iowa Code § 602.2106(3)(b).
Like the Commission and Judge Dean, we find there is ample
evidence to support these charges. There can be little dispute that the
appearance of a judge in an intoxicated state at the courthouse unable to
perform scheduled judicial duties violates both rules. On that day,
Judge Dean did not promote public confidence in the independence,
integrity, and impartiality of the judiciary and did not perform her duties
competently or diligently.
In finding the violations, we do not base them upon Judge Dean’s
mere status as an alcoholic, but rather on her conduct. The purpose of
11
judicial disciplinary proceedings is “to restore public confidence in the
judicial system and its judges,” as well as deter future misconduct, not to
punish an individual judge. In re Meldrum, 834 N.W.2d at 653–54; In re
Block, 816 N.W.2d at 365. Thus, any disciplinary sanction we may
impose, as a result of the violations in this case, arises not as a result of
Judge Dean’s status as an alcoholic, but rather because of the effect of
her conduct on public confidence in the judicial branch and the need to
deter future similar misconduct.
B. Sanctions. Discipline may be imposed for a substantial
violation of the canons of judicial ethics. Iowa Code § 602.2106(3)(b); In
re Block, 816 N.W.2d at 364–65. In determining a suitable sanction, we
look to the goals of discipline and the entire record, considering both
mitigating and aggravating factors, including related misconduct
stemming from the judge’s alcoholism. See In re Block, 816 N.W.2d at
365–66; cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen, 779
N.W.2d 757, 765 (Iowa 2010) (noting even if the evidence failed to
establish an alleged charge, that evidence could constitute an
aggravating factor to support a more severe sanction). We must be
satisfied that there is a sufficient nexus between the other related
incidents in the record and the larger goals of judicial discipline in
imposing a proper sanction.
Initially, we note that in two cases we have imposed public
reprimands on judges who committed a first offense of driving a motor
vehicle while intoxicated. In re Block, 816 N.W.2d at 363; In re Weaver,
691 N.W.2d 725, 725 (Iowa 2004). An argument can be made that this
case is similar to the drunk-driving cases. The drunk-driving cases,
however, did not involve intoxication of a judge when reporting for
judicial duties at the courthouse but instead represented discrete and
12
uncharacteristic private events. We think the appearance of a judge in a
state of intoxication at the courthouse has an obvious direct linkage to
the performance of judicial duties and to public respect for the integrity
of the judicial process. Further, the record in this case shows additional
improper conduct related to alcohol consumption. The drunk-driving
cases do not provide us with much guidance here.
Other jurisdictions have dealt with alcohol-related misconduct by
judges. In In re Krake, 942 So. 2d 18, 20–28 (La. 2006), a judge was
suspended for six months due to appearing intoxicated at public and bar
events, appearing hung over on the bench, and requiring several leaves
of absences from the bench to obtain treatment. The judge was later
suspended for the balance of his term as a result of failure to abide with
ongoing monitoring requirements. In re Krake, 976 So. 2d 162, 163–64
(La. 2008).
Another case involving judicial misconduct arising from alcoholism
is Idaho Judicial Council v. Becker, 834 P.2d 290 (Idaho 1992). In this
case, the Idaho Supreme Court found that a judge’s habitual
intemperance, abuse of alcohol, and conviction for driving under the
influence detracted from public confidence in the integrity of the
judiciary and warranted a three-month suspension. Id. at 290. In
imposing its sanction, the Idaho court stressed the importance of
maintaining the integrity of the judiciary. Id. at 293.
There is some caselaw from other states imposing more lenient
sanctions than Krake and Becker. In In re Kirby, 354 N.W.2d 410, 421
(Minn. 1984), the Minnesota Supreme Court found that discourteous
treatment of female attorneys, public intoxication, conducting judicial
business with alcohol on his breath, and habitual tardiness warranted a
public censure. The Kirby court noted there was only one instance in
13
which Judge Kirby was intoxicated while performing judicial duties and
there was no showing the use of alcohol had an effect on any of his
decisions. Id. at 417. The Minnesota Court recognized, however, the
importance of “the perception of the public upon the administration of
justice in general and upon the over 200 other judges in this state in
particular.” Id.
On balance, we think the conduct demonstrated by the record in
this case requires a suspension. The public cannot accept, the bar
cannot condone, and we cannot tolerate judges showing up for work
intoxicated. In addition, Judge Dean’s alcohol consumption casts a
shadow across her discretionary decision-making, even if she was not
specifically intoxicated when in court and even if her discretionary
decisions were timely made and not subject to reversal on appeal.
We consider both aggravating and mitigating factors in determining
an appropriate sanction. In re Block, 816 N.W.2d at 365–66 (listing ten
factors we generally consider in determining an appropriate sanction in
each case); In re McCormick, 639 N.W.2d at 16 (same). In this case, there
are aggravating factors. There are reports in the attorney general’s
investigation, which we find credible, that Judge Dean was occasionally
disoriented and disheveled. While the evidence related to Judge Dean
relieving herself in public is an anonymous police report and therefore
problematic, we do not find Judge Dean’s asserted lack of memory
comforting. Ordinarily, such a remarkable charge would be met with a
quick and firm denial. It is apparent that Judge Dean had consumed
alcohol in sufficient quantities that she could not sufficiently remember
the nature of her conduct to deny the charge of highly unusual conduct.
See In re Block, 816 N.W.2d at 365 (noting factors include “whether the
14
misconduct is isolated or a pattern of misconduct” and “the nature,
extent, and frequency of the acts of misconduct”).
But there are also important mitigating factors. There have been
no prior complaints regarding Judge Dean. Cf. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Bieber, 824 N.W.2d 514, 527 (Iowa 2012) (noting, in
attorney disciplinary case, that the “lack of a prior disciplinary record is
an important mitigating factor”). While the misconduct was severe on
May 9 and obviously disrupted the judicial system, Judge Dean did not
assume the bench and preside over cases. Cf. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 110 (Iowa 2012) (noting
lack of harm to third parties is significant mitigating factor in attorney
disciplinary case). The State at the hearing emphasized that Judge Dean
had fully cooperated with the Commission in the investigation of this
matter. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d
98, 103 (Iowa 2010) (noting cooperation with attorney disciplinary
authorities as mitigating factor).
Our cases, however, hold that while alcoholism is no legal
justification, excuse, or defense for unethical conduct, the recognition of
alcoholism and rehabilitative efforts can be a mitigating factor in
disciplinary proceedings. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Clarity, 838 N.W.2d 648, 660–61 (Iowa 2013) (canvassing attorney
disciplinary cases); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Roush, 827
N.W.2d 711, 719 (Iowa 2013).
We recognize that Judge Dean was not working while she sought
rehabilitation between May and November of 2012. This absence is not a
substitute for the sanction of suspension in this case. Absence due to
rehabilitation and disciplinary sanctions serve overlapping, but distinct,
purposes. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Maxwell, 705
15
N.W.2d 477, 480 (Iowa 2005). Absence from duty due to rehabilitation
does not “specifically address unethical conduct and the need to deter
future conduct.” Id. Further, a rehabilitative absence for judicial officers
occurs with pay rather than without pay. By contrast, lawyers are not
permitted to earn fees while under disability suspension. See Iowa R.
Prof’l Conduct 35.17(5) (“No attorney suspended due to disability under
this rule may engage in the practice of law in this state until reinstated
by order of the supreme court.”). Nonetheless, absence for the purpose
of rehabilitation, like disability suspensions for attorneys, may be
considered a mitigating factor in determining the length and adequacy of
a disciplinary suspension. Cf. Clarity, 838 N.W.2d at 662–63; Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 543–44
(Iowa 2013).
The record in this case establishes that after a substantial period
of difficult and painful struggle with alcoholism, Judge Dean has
confronted her disease and now has demonstrated a deep personal
commitment to recovery. She appears to have overcome the denial,
recovered from the embarrassment, recognized the depth of the problem
of alcohol dependence, and most importantly has been able to establish
the kind of supportive framework associated with successful recovery
over a lifetime. It has not been an easy road for her and will not always
be an easy road in the future. But, the fact Judge Dean has chosen to
commit herself to a disciplined program of recovery is a significant
mitigating factor and offers her the potential of a continued successful
judicial career. Indeed, our state is no stranger to recovering alcoholics
who have performed outstanding judicial service after successfully
confronting the disease.
16
We note that Judge Dean and the ILAP have agreed to a monitoring
agreement that was in substance incorporated into the Commission’s
order for reinstatement. The monitoring agreement was to remain in
effect for two years from the date of the order, which time period has
nearly elapsed. We regard the monitoring agreement as an agreement
involving Judge Dean, the ILAP, and the Commission. We do not regard
the monitoring agreement as a formal sanction that requires our review
on this application. The parties agreed in the event that Judge Dean
fails to meet her obligations under the recovery monitoring agreement,
the Commission will be notified and additional sanctions will be
considered based upon the facts and circumstances of the violation. We
do believe, however, that the presence of this voluntary monitoring
agreement, and Judge Dean’s successful compliance with it, provides us
with additional confidence that the public will be adequately protected by
the sanction we impose here today.
Based upon the facts and circumstances of this case, we conclude
that in order to protect the integrity of and respect for the judiciary, the
application of the Commission should be granted and a thirty-day
suspension without pay should be imposed upon Judge Dean. Judge
Dean is entitled to no compensation during the course of the disciplinary
suspension, except for fringe benefits. In order to allow for the orderly
transition of judicial business, the suspension shall take effect seven
days after the entry of this opinion.
IV. Conclusion.
For the above reasons, we grant the application and hold that
Judge Dean should be suspended from her judicial position for a period
of thirty days without pay, except for fringe benefits. The suspension
shall commence on September 20, 2014.
APPLICATION GRANTED; JUDICIAL OFFICER SUSPENDED.