Hon. Michael K Carroll v. Comm on Judicial Conduct

SUPREME COURT OF ARIZONA
In Division

HON. MICHAEL K. CARROLL ) Arizona Supreme Court
(Retired), ) No. CV-07-0066-SA
)
Petitioner, ) Commission on Judicial
) Conduct
v. ) Nos. 1181310617A
) 1181310617B
COMMISSION ON JUDICIAL CONDUCT, )
)
Respondent. )
) O P I N I O N
__________________________________)

Special Action from the Commission on Judicial Conduct

ORDER VACATED; REMANDED
________________________________________________________________

TIFFANY & BOSCO, P.A. Phoenix
By James E. Padish
Attorneys for Michael K. Carroll

COMMISSION ON JUDICIAL CONDUCT Phoenix
By Linda Haynes, Disciplinary Counsel
Attorneys for Commission on Judicial Conduct
________________________________________________________________

B A L E S, Justice

¶1 Judges on Arizona state and local courts are subject

to disciplinary proceedings before the Commission on Judicial

Conduct (“Commission”), which may recommend that this Court

impose formal sanctions for judicial misconduct. See Ariz.

Const. art. 6.1. We hold that Commission Rule 23(c) entitles a

judge, upon timely request, to a hearing when the Commission

itself imposes informal sanctions such as a public reprimand.

PROCEDURAL BACKGROUND

¶2 In March 2006, a judicial ethics complaint was filed

with the Commission against Judge Michael K. Carroll of the City

of Phoenix Municipal Court. The complaint alleged that Judge

Carroll had inappropriately objected to the appointment of a new

assistant presiding judge for his court. Judge Carroll filed a

written response denying any improper conduct and asking the

Commission to dismiss the complaint.

¶3 On July 11, 2006, the Commission issued an order

finding that Judge Carroll had violated the Code of Judicial

Conduct and imposing an informal reprimand pursuant to

Commission Rule 17(a). Judge Carroll filed a timely motion for

reconsideration or, in the alternative, for a formal hearing

under Commission Rules 23(b) and (c). On October 3, 2006, the

Commission issued an amended order but denied Judge Carroll’s

request for a hearing. Judge Carroll renewed his motion for a

hearing on October 13, 2006, and the Commission denied this

request on November 3, 2006. Judge Carroll then filed this

special action challenging the Commission’s denial of his

request for a hearing.

¶4 Our special action review is discretionary. Haywood

Sec., Inc. v. Ehrlich, 214 Ariz. 114, 115 ¶ 6, 149 P.3d 738, 739

(2007). We exercise jurisdiction here because this case

presents a legal issue of statewide importance that is likely to

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recur. Id. Moreover, Judge Carroll has no “equally plain,

speedy, and adequate remedy by appeal,” Ariz. R.P. Spec. Act.

1(a), because informal sanctions are not subject to review by

this Court, R. Comm’n Judicial Conduct 28(c). We have

jurisdiction pursuant to Article 6, Section 5(4), of the Arizona

Constitution and Arizona Rule of Procedure for Special Actions

4(a).

DISCUSSION

¶5 Arizona regulates judicial conduct through a system

involving both this Court and the constitutionally-created

Commission. See Ariz. Const. art. 6.1; R. Comm’n Judicial

Conduct pmbl. The Commission performs “a central and essential

role in imposing appropriate judicial discipline.” In re

Carpenter, 199 Ariz. 246, 248 ¶ 8, 17 P.3d 91, 93 (2001). “On

recommendation of the commission,” this Court “may censure,

suspend without pay or remove a judge for . . . willful

misconduct in office, willful and persistent failure to perform

his duties, habitual intemperance or conduct prejudicial to the

administration of justice.” Ariz. Const. art. 6.1, § 4(A). The

Constitution does not itself specify procedural rules for

judicial disciplinary proceedings, but instead directs this

Court to make rules implementing the constitutional provisions.

Id. § 5; see also In re Nelson, 207 Ariz. 318, 320 ¶ 4, 86 P.3d

374, 376 (2004).

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¶6 Under the rules adopted by this Court, the Commission

investigates allegations of judicial misconduct upon receipt of

a written complaint or on its own motion. R. Comm’n Judicial

Conduct 20. Based on the investigation, “the commission may

issue an order dismissing the complaint.” Id. 23(a). If there

is reasonable cause to proceed, the investigation may instead

result in the filing of formal charges. Id. 24(a). In that

event, the judge who is the subject of the proceedings is

entitled to discovery, id. 26; to a formal hearing at which the

judge may, among other things, “present evidence and produce and

cross-examine witnesses,” id. 27(f)(6); and to file a petition

requesting this Court to modify or reject any recommendation by

the Commission for the imposition of censure, suspension,

removal, or retirement from office, id. 29(a), (c).

¶7 As an alternative to either the dismissal of a

complaint or the filing of formal charges, the Commission’s

rules contemplate that an investigation may result in the

imposition of an “informal sanction.” Id. 23(a). Such

sanctions are governed by Commission Rule 17, which provides:

(a) Reprimand. The commission may reprimand a judge
without a formal hearing for conduct that is
unacceptable under one of the grounds for judicial
discipline but that is not so serious as to warrant
formal proceedings or further discipline by the
supreme court.

(b) Other informal sanctions. The commission may
take any other informal action consistent with these

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rules, including, but not limited to, the assessment
of attorney fees and costs.

The Commission rules thus provide that “informal sanctions” may

be imposed based on the Commission’s investigation and without

any formal hearing.

¶8 The imposition of informal sanctions, however, has

significant consequences. Such sanctions reflect a Commission

finding that the judge has violated the Code of Judicial Conduct

or otherwise committed acts deserving discipline. See id. 6,

17(a). Consequently, a reprimand or other informal sanction may

be an aggravating factor that supports more severe disciplinary

action in future disciplinary proceedings. Id. 19(g) (noting

prior disciplinary action as factor for determining discipline);

In re Peck, 177 Ariz. 283, 289, 867 P.2d 853, 859 (1994) (noting

prior reprimands and admonishments as aggravating factor).

Moreover, once the proceedings are concluded, the Commission’s

finding of improper conduct and its resulting informal sanction

are made public. R. Comm’n Judicial Conduct 9(a). Thus, the

imposition of such sanctions may affect the judge’s reputation

among other judges, the legal profession, and the public.

¶9 Within fifteen days after the issuance of an order

imposing informal sanctions, the affected judge “may file a

motion for reconsideration, which may include a request to

appear before the commission.” Id. 23(b). Alternatively,

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within the same fifteen days, the judge may “file a request for

a hearing conducted pursuant to Rule 27.” Id. 23(c). Rule 27

is the rule governing formal hearings before the Commission.

¶10 The issue presented here is whether Commission Rule

23(c) entitles a judge, upon timely request, to a hearing in

connection with the Commission’s imposition of informal

sanctions.1 The Commission contends that the Rule merely allows

a judge to “request” a hearing, which it may grant or deny in

its discretion. Judge Carroll argues that the Rule affords a

judge the right to a hearing, and thus the Commission erred by

denying his request.2

¶11 We conclude that Rule 23(c) affords a judge the right

to a hearing and not merely the right to ask for one to be

granted or denied at the Commission’s discretion. Rule 23(b)

1
Rule 23 was amended effective September 18, 2006 -- after
Judge Carroll requested a hearing in connection with the
Commission’s July 11 order but before he renewed his request in
response to the Commission’s October 3 amended order. The
September 18 amendments clarified that a request for a formal
hearing is an alternative to a motion for reconsideration, while
the prior version of Rule 23 allowed the request to be in
addition to such a motion. Judge Carroll’s initial request was
governed by the January 20, 2006 version of Rule 23.
Nonetheless, because the September 18 amendments do not affect
whether the Judge was entitled to a hearing, we direct our
discussion to the current version of the Rule.
2
Judge Carroll has not challenged, and we do not address,
the Commission’s general authority to impose informal sanctions,
which are not expressly authorized by Article 6.1 of the Arizona
Constitution. Cf. In re Nelson, 207 Ariz. at 320-21 ¶ 8, 86
P.3d at 376-77 (recognizing this Court’s implied authority to
assess costs in judicial disciplinary proceedings).

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allows a judge to file a “motion” for reconsideration and

directs the Commission to “promptly notify the judge and the

complainant of its decision.” In contrast, Rule 23(c) allows

the judge to request a hearing, and rather than suggesting that

the Commission may issue a “decision” granting or denying such a

request, the Rule states that such a hearing “shall be conducted

before the commission” itself.

¶12 Our conclusion also finds support from the fact that a

judge, as Commission Rule 8 recognizes, is entitled to due

process in connection with disciplinary proceedings. As

explained above, the imposition of an informal sanction

represents a Commission finding that the judge has acted

improperly; the sanction is made public and may lead to enhanced

sanctions in later disciplinary proceedings. Under the

Commission’s interpretation of Rule 23(c), these consequences

could result without the judge having any opportunity to appear

in person before the Commission or to directly present or

confront evidence on disputed facts. This outcome would raise

potential due process issues, which are obviated by interpreting

Rule 23(c) as entitling a judge to a hearing upon timely

request. Cf. State v. Gomez, 212 Ariz. 55, 60 ¶ 28, 127 P.3d

873, 878 (2006) (declining to construe statute in a manner that

would raise serious constitutional questions).

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CONCLUSION

¶13 Because we conclude that the Commission erred in

denying Judge Carroll’s timely request for a hearing, we vacate

the Commission’s order of October 3, 2006, and remand this

matter to the Commission for further proceedings.

___________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

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