Wisconsin Judicial Commission v. Frank M. Calvert

2018 WI 68
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1735-J
COMPLETE TITLE: In the Matter of Judicial Disciplinary
Proceedings Against the Honorable Frank M.
Calvert.
Wisconsin Judicial Commission,
Complainant,
v.
The Honorable Frank M. Calvert,
Respondent.
JUDICIAL DISCIPLINARY PROCEEDINGS AGAINST
CALVERT
OPINION FILED: June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the complainant, there was a brief filed by Jeremiah
Claude-Benedict Van Hecke and the Wisconsin Judicial Commission,
Madison.
For the respondent, there was a brief filed by The
Honorable Frank M. Calvert.
2018 WI 68
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1735-J
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Judicial Disciplinary
Proceedings Against the Honorable
Frank M. Calvert:
Wisconsin Judicial Commission, FILED
Complainant, JUN 15, 2018
v. Sheila T. Reiff
Clerk of Supreme Court
The Honorable Frank M. Calvert,
Respondent.
JUDICIAL disciplinary proceeding. Commissioner suspended
from office.
¶1 PER CURIAM. We review, pursuant to Wis. Stat.
§ 757.91 (2015-16),1 a Judicial Conduct Panel's findings of fact,
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated. Wisconsin Stat.
§ 757.91 provides:
The supreme court shall review the findings of
fact, conclusions of law and recommendations under s.
757.89 and determine appropriate discipline in cases
of misconduct and appropriate action in cases of
(continued)
No. 2017AP1735-J
conclusions of law, and recommendation for discipline for the
Honorable Frank M. Calvert, a court commissioner for the Oconto
County Circuit Court. We conclude that a 15-day suspension is
the appropriate discipline for Commissioner Calvert's judicial
misconduct.
¶2 Commissioner Calvert has been a circuit court
commissioner for Oconto County for 19 years. He has not been
the subject of any prior disciplinary action by the Wisconsin
Judicial Commission.
¶3 The Judicial Commission filed a complaint against
Commissioner Calvert on September 8, 2017, alleging that he had
engaged in judicial misconduct by his actions, described below,
in presiding over an action seeking a harassment injunction.
¶4 Commissioner Calvert did not file an answer to the
complaint, which led the Judicial Commission to file a motion
for default judgment. On January 2, 2018, Commissioner Calvert
filed a letter with this court stating that he did not contest
the facts alleged in the complaint.
¶5 Consistent with an order issued by the Judicial
Conduct Panel, the parties filed briefs on the issue of the
appropriate discipline to be imposed. After receiving these
briefs, the Judicial Conduct Panel made findings of fact based
on the uncontested allegations of the complaint. On the basis
permanent disability. The rules of the supreme court
applicable to civil cases in the supreme court govern
the review proceedings under this section.
2
No. 2017AP1735-J
of those facts, the Judicial Conduct Panel made conclusions of
law and recommended that this court suspend Commissioner Calvert
for no fewer than five and no more than 15 days. This
recommendation exceeded the disciplinary sanction that
Commissioner Calvert suggested in his brief to the panel and in
his January 2, 2018 letter to the court: a reprimand. The
panel's recommendation more closely followed the sanction
proposed by the Judicial Commission, which suggested discipline
ranging from a reprimand to a short suspension.
¶6 The facts giving rise to the complaint are as follows.
In September 2015, Commissioner Calvert received and reviewed a
petition for a harassment injunction and a request for a
temporary restraining order filed by the attorney for the
petitioners against the respondents, who were the petitioners'
next-door neighbors. This legal action was part of an ongoing
dispute between the petitioners and the respondents. The
petitioners alleged that the respondents had engaged in repeated
harassment of the petitioners, including pointing surveillance
cameras at the petitioners' house to record the petitioners'
conduct.
¶7 Before holding any hearing or deciding whether to
grant the petitioners' request for a temporary restraining
order, Commissioner Calvert, on his own initiative, went to the
City of Oconto Police Station and spoke with the City of Oconto
Police Chief concerning the allegations in the petition.
Commissioner Calvert asked for and obtained from the police
chief a summary regarding the history of complaints and
3
No. 2017AP1735-J
conflicts between these neighbors and their contacts with the
Oconto Police Department over the years. The police chief told
Commissioner Calvert that he had visited the respondents'
residence and that there were no cameras pointed at the
petitioners' property.
¶8 Commissioner Calvert also reviewed the neighbors'
"contact file" kept by the Oconto Police Department, which
included statements of police relating to the conflict, and
asked the police chief if there was any basis for a citation to
be issued. None of the parties to the case or the petitioners'
attorney was present for Commissioner Calvert's conversation
with the police chief or given advance notice of it.
¶9 Commissioner Calvert denied the petitioners' request
for a temporary restraining order. In doing so, he considered
the information provided by the police chief and contained in
the police "contact file" regarding the neighbors.
¶10 At an injunction hearing held on October 1, 2015,
Commissioner Calvert heard the testimony of several witnesses
and arguments from both sides. Commissioner Calvert denied the
injunction request. Before announcing his ruling, Commissioner
Calvert did not disclose to the parties or the petitioners'
attorney his contact with the police chief or that he had
reviewed the police "contact file."
¶11 After denying the injunction request, Commissioner
Calvert made the following statements:
What is going to happen, though, is that anything
between these two neighbors is going to stop as of
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No. 2017AP1735-J
today. Period. End of story. And how it's going to
stop is this: I've already talked to [the police]
chief [ . . . ] as of yesterday. What's going to
happen is, if you call the Oconto Police Department,
or the Sheriffs Department, or, you call them, they
are going to come out, they are not going to have to
listen as to what took place because if they get
called out to either of your places, complaining about
each other, what's going to happen—they're going to
issue mutual disorderly conduct tickets. So, I don't
care who calls. You call, either of you call, they are
going to come out, they are going to issue a
disorderly conduct to you and they are going to issue
a disorderly conduct to you. Alright?
Now, if you wish to take that ticket into
municipal court, and argue about whether you were
disorderly or not, go ahead because I've already
talked to [the municipal judge] in Oconto [ . . . ]
and I've told him the problem with this situation,
enough is enough, it's been going on for
twelve/thirteen years, I'm putting an end to it, and I
told him, "I don't care what either one of you say."
He's going to find you guilty and issue you a fine.
He knows that, he's with it, he's tired of it, the
Police Department's tired of it, alright? If you want
to de novo his decision, which you have a right to
do[,] under the statute[,] upon finding you guilty,
that's fine because it'll get de novo'd and it'll get
de novo'd up here to me and guess what's going to
happen? I'm going to uphold it and you're both going
to pay a fine.
Now, with regard to a court commissioner, you
have a right to de novo that, too. Go ahead because
I'm gonna tell either one of these circuit court
judges, "Enough is enough. This is how we're going to
handle it." I want nothing further going on.
¶12 In fact, Commissioner Calvert had not, as he told the
parties, directed the police chief to issue mutual disorderly
conduct citations to the neighbors regardless of fault, and he
had not, as he told the parties, directed the local municipal
5
No. 2017AP1735-J
judge (who would handle any citations) to find the neighbors
guilty regardless of fault.
¶13 After pronouncing his ruling, but before the hearing
concluded, Commissioner Calvert admitted to the parties that the
police chief had previously told Commissioner Calvert that he
had visited the respondents' residence and looked for cameras,
and believed that there had been no cameras pointed at the
petitioners' property.
¶14 No party sought de novo review of Commissioner
Calvert's decision denying the injunction.
¶15 Subsequent to the October 1, 2015 hearing,
Commissioner Calvert advised the person he regarded as his
senior circuit court judge of his post-ruling comments to the
parties, acknowledged to this judge that his comments had gone
"beyond the normal course of action," and indicated that he
intended all of his conduct in the case only to end a long
standing neighbor conflict.
¶16 After his handling of the injunction case in October
2015, Commissioner Calvert has three times (annually) been
reappointed as a court commissioner.
¶17 The complaint alleged, and the Judicial Conduct Panel
concluded, that by initiating contact and then speaking in
detail with the City of Oconto Police Chief, obtaining the
police chief's summary of the complaints and conflicts between
the parties to the injunction action, reviewing the police
"contact file," and being informed by the chief that no cameras
had been pointed at the petitioners' property, Commissioner
6
No. 2017AP1735-J
Calvert violated SCR 60.04(1)(g),2 which prohibits judicial
officials from initiating, permitting, engaging in, or
considering ex parte communications concerning pending actions
or proceedings.
¶18 The complaint alleged further, and the Judicial
Conduct Panel concluded, that by initiating contact and then
speaking in detail with the City of Oconto Police Chief,
obtaining the police chief's summary of the complaints and
conflicts between the parties to the injunction action,
reviewing the police "contact file," and being informed by the
chief that no cameras had been pointed at the petitioners'
property, Commissioner Calvert violated SCR 60.04(1)(g), which
2
SCR 60.04(1)(g) provides:
A judge may not initiate, permit, engage in or
consider ex parte communications concerning a pending
or impending action or proceeding except that:
1. A judge may initiate, permit, engage in or
consider ex parte communications for scheduling,
administrative purposes or emergencies that do not
deal with substantive matters or issues on the merits
if all of the following conditions are met:
a. The judge reasonably believes that no party
will gain a procedural or tactical advantage as a
result of the ex parte communication.
b. When the ex parte communication may affect the
substance of the action or proceeding, the judge
promptly notifies all of the other parties of the
substance of the ex parte communication and allows
each party an opportunity to respond.
7
No. 2017AP1735-J
prohibits judicial officials from independently investigating
facts in a case.
¶19 The complaint alleged further, and the Judicial
Conduct Panel concluded, that by telling the parties, falsely,
that he had convinced local law enforcement and the municipal
court judge to agree that any further police calls to the
neighbors would result in disorderly conduct tickets to all
involved, which would be sustained throughout the judicial
system regardless of the circumstances; telling the parties that
he himself in his official capacity would sustain such tickets,
regardless of the circumstances; and telling the parties that he
planned to convince the county circuit court judges to sustain
such tickets, regardless of the circumstances, Commissioner
Calvert violated his obligation, pursuant to SCR 60.03(1),3 to
act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary, and further
violated his obligation, pursuant to SCR 60.02,4 to participate
3
SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary."
4
SCR 60.02 provides:
An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining and
enforcing high standards of conduct and shall
personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. This chapter applies to every aspect of
judicial behavior except purely legal decisions. Legal
(continued)
8
No. 2017AP1735-J
in establishing, maintaining, and enforcing high standards of
conduct and to personally observe those standards.
¶20 The Judicial Conduct Panel concluded that each of
these violations was willful and thus constituted judicial
misconduct under Wis. Stat. § 757.81(4)(a).5
¶21 We adopt the panel's undisputed findings and
conclusions of law. We therefore turn to the question of the
appropriate discipline for the misconduct.
¶22 In imposing discipline——which may be reprimand,
censure, suspension, or removal——we must bear in mind that the
goal of judicial discipline is not to punish the erring judge,
but to protect the public from unacceptable judicial behavior,
considering both the seriousness of the judge's misconduct and
the likelihood that it would recur. See In re Judicial
Disciplinary Proceedings Against Crawford, 2001 WI 96, ¶38, 245
Wis. 2d 373, 629 N.W.2d 1. The sanction that we impose must
also "convey to the public the gravity with which this court
views judicial misconduct." Id. at ¶39. We impose discipline
on a de novo basis, benefitting from but not bound by the
panel's recommendation. See id. at ¶38.
¶23 In recommending a suspension between five and 15 days,
the Judicial Conduct Panel found both mitigating and aggravating
decisions made in the course of judicial duty on the
record are subject solely to judicial review.
5
Wisconsin Stat. § 757.81(4)(a) states that misconduct
includes "[w]illful violation of a rule of the code of judicial
ethics."
9
No. 2017AP1735-J
factors. On the mitigating side, these were isolated instances
of misconduct. Commissioner Calvert has not been the subject of
any prior disciplinary action by the Wisconsin Judicial
Commission over his 19-year career as a court commissioner. He
has been reappointed as a court commissioner three times since
the misconduct. He recognized his comments at the hearing were
unusual and acknowledged as much by reporting the matter to a
circuit court judge. The end goal of his misconduct was not to
satisfy personal desires or receive any personal benefit.
¶24 On the aggravating side, the Judicial Conduct Panel
noted that Commissioner Calvert's misconduct occurred in his
capacity as a representative of the judicial system, both inside
and outside of the courtroom. The panel further noted that, in
Commissioner Calvert's brief on sanctions filed with the panel,
he repeatedly asserted that the goal of his conduct was to end a
long-standing dispute between neighbors, which suggests that he
lacks insight regarding the need to change or modify his
conduct. His misconduct also has a substantial negative impact
on the integrity of and the public's perceptions of the
independence of the judiciary.
¶25 The Judicial Conduct Panel cited a case that it
thought was particularly analogous to this matter: In re
Judicial Disciplinary Proceedings Against Carver, 192
Wis. 2d 136, 531 N.W.2d 62 (1995). In Carver, we imposed a 15-
day suspension as a result of on-the-record comments that a
judge made in the course of disqualifying himself at the initial
appearance of a defendant——a friend of the judge——who had been
10
No. 2017AP1735-J
charged with illegal sports gambling. In those comments, the
judge minimized the seriousness of the offense charged;
questioned the legitimacy of the investigation and prosecution
in the case before him and in other cases of sports gambling
pending in other circuit court branches; and suggested to the
public and to his fellow judges that minimum sentences should be
imposed for such crimes. The judge also lied when he stated on
the record that he had not been contacted by the defendant; the
judge in fact had received two letters from the defendant
pertaining to the pending case. We wrote that "[i]t is
essential to the proper functioning of our judicial system that
its participants and the public be assured of the objectivity
and impartiality of its judges." Id. at 138. We concluded that
Judge Carver's "aggravated failure to conduct
himself . . . impartially, objectively[,] and truthfully"
warranted a 15-day suspension from judicial office. Id. at 155.
Analogizing Carver to the facts of the instant case, the panel
reasoned that like Judge Carver, Commissioner Calvert made on-
the-record statements that were false and that exhibited
partiality. The panel recommended that a suspension similar to
that imposed in Carver should be imposed here, with the length
ranging from five to 15 days.
¶26 We agree with the Judicial Conduct Panel that a
suspension is in order, and we conclude that a length of 15 days
is appropriate. The misconduct in this case is undeniably
serious. As we stated in Carver, a judge's objectivity and
impartiality are critical to the proper functioning of the
11
No. 2017AP1735-J
judicial system. Commissioner Calvert's behavior was far from
objective and impartial. He independently investigated the
facts of a case pending before him——an effort that included
engaging in an ex parte communication with the police chief. He
then lied to the parties in a particularly manipulative manner,
falsely claiming that he had communicated with individuals in
the judicial and law enforcement systems in such a way that the
parties were doomed to failure and future legal troubles should
they ever seek additional recourse. We cannot abide such
assurances by a judge to rig the judicial and criminal justice
systems against its participants.
¶27 We are also troubled, as was the Judicial Conduct
Panel, by Commissioner Calvert's argument to the panel that "it
is difficult to understand how either party to this matter may
have questioned fair treatment in this case when a rehearing of
the matter was an available alternative and was never
requested." This argument strongly suggests that Commissioner
Calvert lacks insight into his own misconduct; it is no surprise
the parties did not seek a de novo hearing of his decision given
his assurance that he would see to it that any such effort would
fail. In other words, Commissioner Calvert's argument seeks a
reward for his asserted willingness to tilt the playing field
against the parties. No reward will be forthcoming here.
¶28 Ultimately, we conclude that the appropriate sanction
is a suspension from judicial office for a period of 15 days.
This period is an adequate reflection of the seriousness of
Commissioner Calvert's actions, and is necessary to promote
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No. 2017AP1735-J
public confidence in the soundness of the judicial system. It
is also consistent with our past precedent. We are confident
that a 15-day suspension will impress upon Commissioner Calvert
the fundamental requirements of judicial office and will
demonstrate to the public our dedication to preserving judicial
integrity.
¶29 IT IS ORDERED that the Honorable Frank M. Calvert is
suspended from the office of circuit court commissioner without
compensation and prohibited from exercising any of the powers or
duties of a circuit court commissioner in Wisconsin for a period
of 15 days, commencing July 16, 2018.
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