In Re Nelson

SUPREME COURT OF ARIZONA
En Banc

) Arizona Supreme Court
In the Matter of ) No. JC-03-0002
)
HON. MICHAEL C. NELSON, ) Commission on Judicial
) Conduct No. 02-0307
Respondent. )
) O P I N I O N
)
__________________________________)

Review from the Arizona Commission on Judicial Conduct
No.02-307

REMANDED

________________________________________________________________

Commission on Judicial Conduct Phoenix
by: Gerald A. Williams, Disciplinary Counsel
Attorney for Arizona Commission on Judicial Conduct

Thomas A. Zlaket Tucson
Attorney for Michael C. Nelson
________________________________________________________________

R Y A N, Justice

¶1 The Commission on Judicial Conduct brought formal

charges against Respondent, Judge Michael C. Nelson, for

judicial misconduct while serving as a superior court judge in

Apache County. After a formal hearing, the Commission found

that Respondent violated several Canons of the Code of Judicial

Conduct. The Commission filed its findings and recommendations

with this court recommending that Respondent be removed from

office and that he be ordered to pay the costs and fees

associated with the disciplinary proceeding.
¶2 Electing not to file a petition to modify or reject

the Commission’s recommendations, Respondent resigned from

office, but reserved the right to contest individual items of

costs and fees that might be assessed against him. The

Commission subsequently filed its Statement of Costs, which

included investigative costs as well as the costs of lodging the

Commission members during the hearing. Respondent did not

contest the assessment.

¶3 All recommendations in excess of censure “are subject

to review by the supreme court, either by petition or on the

court’s own motion.” R. Comm’n Judicial Conduct 29(a). We

exercised sua sponte review solely to decide whether the Rules

of the Commission on Judicial Conduct allow costs in addition to

those permitted by Arizona Revised Statutes (“A.R.S.”) section

12-332 (2003).1 We have jurisdiction under Article 6.1, Section

5, of the Arizona Constitution and Rule 29(d) of the Rules of

the Commission on Judicial Conduct.

1
Because Respondent resigned, the only sanction left to us
is censure. See In re Fleischman, 188 Ariz. 106, 113, 933 P.2d
563, 570 (1997) (citing In re Lehman, 168 Ariz. 174, 176, 812
P.2d 992, 994 (1991)). In Fleischman, although the judge had
resigned, we nevertheless issued an opinion in part “to provide
guidance to other judges and to avoid future confusion.” Id.
However, given the nature of Respondent’s misconduct, we find
such an exercise to be unnecessary.

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 I.

¶4 Article 6.1 of the Arizona Constitution created the

Commission on Judicial Conduct, which has the power to recommend

censure, retirement, suspension, or removal of a judge. Ariz.

Const. art. 6.1, §§ 3, 4. Section 5 of Article 6.1 states that

this court has the power to “make rules implementing [Article

6.1].” In accordance with that power, we approved and adopted

the Rules of the Commission on Judicial Conduct. Under Rule

18(e), when the Commission recommends formal sanctions, it also

“may recommend the imposition of other measures consistent with

these rules, including, but not limited to, the assessment of

attorney fees and costs.”

¶5 The Commission recommended that we assess costs in the

amount of $5494.65. The Commission’s recommendation included

investigative costs, which itemized mileage, lodging, and per

diem for the Executive Director and Disciplinary Counsel to

interview witnesses. The Commission also recommended that

Respondent pay hearing costs, which included mileage

reimbursement for witnesses; mileage, lodging, and per diem for

the hearing panel members to travel to the hearing; and court

reporting transcription costs, including the deposition of a

witness and the hearing transcript.

¶6 Neither Rule 18(e), nor any other provision of the

rules governing the Commission, defines the term “costs.” Thus,

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the issue before us is whether the term “costs” as used in Rule

18(e) encompasses all the items requested by the Commission.

II.

A.

¶7 Relying on Harris v. Smartt, 68 P.3d 889 (Mont. 2003),

Respondent initially argues that this court lacks the authority

to assess any costs against him. Harris held that the

imposition of costs or attorney’s fees in judicial disciplinary

proceedings violated the Montana Constitution. Id. at 892-93.

The court concluded that the list of sanctions found in

Montana’s constitution — retirement, censure, suspension, or

removal — were exclusive, and the Judicial Standards Commission

therefore could not adopt a rule that permitted the assessment

of costs in a judicial disciplinary proceeding. Id. at 891.

¶8 Respondent argues that because Article 6.1, Sections 32

2
On recommendation of the commission on
judicial conduct, or on its own motion, the
supreme court may suspend a judge from
office without salary when, in the United
States, he pleads guilty or no contest or is
found guilty of a crime punishable as a
felony under Arizona or federal law or of
any other crime that involves moral
turpitude under such law. If his conviction
is reversed the suspension terminates, and
he shall be paid his salary for the period
of suspension. If he is suspended and his
conviction becomes final the supreme court
shall remove him from office.

Ariz. Const. art. 6.1, § 3.

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and 43 of the Arizona Constitution similarly enumerate the

possible sanctions that this court may impose, we are limited to

imposing only the listed sanctions — censure, suspension,

retirement, or removal. For the following reasons, we disagree

that our constitution precludes an assessment of costs in a

judicial disciplinary proceeding.

¶9 First, our constitution expressly gives this court the

power to promulgate rules “implementing [Article 6.1].” Ariz.

Const. art. 6.1, § 5. Montana’s constitution does not have a

comparable provision. See Mont. Const. art VII, § 11. We thus

find Smartt distinguishable.

¶10 Second, Respondent’s narrow reading of Article 6.1

would mean that this court could impose only the sanctions of

retirement, censure, suspension, or removal. We do not read

Article 6.1 so narrowly. Several other state supreme courts, in

3
On recommendation of the commission on
judicial conduct, the supreme court may
retire a judge for disability that seriously
interferes with the performance of his
duties and is or is likely to become
permanent, and may censure, suspend without
pay or remove a judge for action by him that
constitutes wilful misconduct in office,
wilful and persistent failure to perform his
duties, habitual intemperance or conduct
prejudicial to the administration of justice
that brings the judicial office into
disrepute.

Ariz. Const. art. 6.1, § 4(A).

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addressing this issue, have rejected such a limited view of

their disciplinary power. For example, the Supreme Court of

Kentucky held that “the express grant of authority to retire,

suspend or remove judges for good cause contained in Section 121

of the Kentucky Constitution includes by implication the

authority to impose the lesser sanctions set forth in [the

Rules].” Nicholson v. Judicial Ret. and Removal Comm’n, 562

S.W.2d 306, 310 (Ky. 1978). North Dakota’s supreme court also

concluded that its statutory provision, which listed only

censure or removal as possible sanctions, “impliedly also

includes any appropriate action in between,” including the

assessment of costs. In re Cieminski, 270 N.W.2d 321, 334 (N.D.

1978); see also In re Anderson, 252 N.W.2d 592, 595 (Minn. 1977)

(holding “that the grant of absolute power to remove from office

implicitly gives us the power to impose lesser sanctions short

of removal, in the absence of specific indication to the

contrary”). We likewise conclude that if we have the power to

remove a judge, we also have the power to impose lesser

sanctions, including an assessment of costs and attorney’s fees.

See also R. Comm’n Judicial Conduct 16 (permitting the

Commission to issue advisory letters or direct diversion “to

assist a judge in improving or modifying behaviors or

procedures”); id. R. 17 (providing for informal sanctions such

as an admonition, reprimand, or other appropriate measures).

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¶11 Third, the disciplinary process is procedural, not

substantive. See In re Shannon, 179 Ariz. 52, 77, 876 P.2d 548,

573 (1994) (concluding that the attorney discipline process is

procedural). Because this court has the exclusive power to

regulate the practice of law, which includes disciplining

attorneys, see In re Creasy, 198 Ariz. 539, 541, ¶ 6, 12 P.3d

214, 216 (2000), we have held that this court has the power to

assess costs in attorney disciplinary proceedings. Shannon, 179

Ariz. at 78-80, 876 P.2d at 574-76.

¶12 Likewise, Section 5 of Article 6.1 authorizes us to

make procedural rules for judicial disciplinary proceedings. As

such, Rule 18(e) appropriately permits the Commission to

recommend, and for us to impose, an assessment of costs in

judicial disciplinary proceedings. See Cieminski, 270 N.W.2d at

334. Therefore, we reject Respondent’s argument that the

constitution does not permit an assessment of any costs in a

judicial disciplinary proceeding.

B.

¶13 The Commission, on the other hand, argues not only

that this court has authority to assess costs, but that such

authority is unlimited. It therefore urges that all costs

should be assessed against Respondent. Relying on Cieminski,

the Commission contends that the assessment of costs in a

judicial disciplinary proceeding is fundamentally different from

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awarding costs in a civil case. Cieminski states that because

“[d]isciplinary proceedings are neither civil nor criminal,

. . . the rules pertaining to either do not necessarily apply.”

270 N.W.2d at 334. The Commission maintains that we are not

limited by civil costs statutes, such as A.R.S. § 12-332,

because those statutes apply only to civil actions and not to

the imposition of sanctions in a judicial disciplinary

proceeding. We agree that judicial disciplinary proceedings are

neither civil nor criminal; rather they are sui generis. In re

Marquardt, 161 Ariz. 206, 214, 778 P.2d 241, 249 (1989) (citing

In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981)).

But that does not end the inquiry.

¶14 The Cieminski court, in recognizing the difference

between assessing costs in a judicial disciplinary proceeding

and awarding costs in a civil proceeding, explained that “[t]he

funds collected pursuant to the [judicial disciplinary]

assessment inure to the benefit of the state and not to a party

or parties in the proceedings.” 270 N.W.2d at 334 (citation

omitted). The court reasoned that the “assessment of costs is a

part of the disciplinary action and is not the same as awarding

costs to either party [in a civil action].” Id. at 334-35. The

court also concluded that with the power to assess costs comes

the power to set limits upon such an assessment. Id. at 335.

Consequently, albeit without any explanation or reasoning, the

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court limited the costs in that particular case to $5000. Id.

¶15 Like the court in Cieminski, we conclude that if we

have the power to assess costs, we likewise have the power to

limit them. But the Commission argues it is unnecessary for us

to set limits on the type of costs that can be assessed because

“any judge would be able to file objections concerning the

reasonableness of the proposed costs and whether any undue

hardship would result from their imposition.” Although this

argument has some appeal, we believe the type of costs that may

be assessed should be known beforehand so a judge can reasonably

anticipate what the cost of a defense to the Commission’s

charges may involve. Moreover, “the goal of judicial discipline

is not to punish the judge but to protect the public and the

judiciary’s integrity.” Marquardt, 161 Ariz. at 214, 778 P.2d

at 249 (citing Haddad, 128 Ariz. at 492, 627 P.2d at 223). An

interpretation of Rule 18(e) that permits the potential

imposition of all costs incurred by the Commission could be more

punitive than protective of the public and the judiciary’s

integrity. Accordingly, we conclude that there should be limits

on what costs may be assessed under Rule 18(e). The bounds of

those limits must be determined by reference to the language of

the Rule itself. We therefore turn to the interpretation of

Rule 18(e).

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 III.

¶16 In interpreting rules, we apply the same principles

used in construing statutes. See State ex rel. Romley v.

Martin, 205 Ariz. 279, 281, ¶ 6, 69 P.3d 1000, 1002 (2003). The

term “costs” is not defined by Rule 18, thus we must apply its

“usual and commonly understood meaning unless the legislature

clearly intended a different meaning.” State v. Korzep, 165

Ariz. 490, 493, 799 P.2d 831, 834 (1990) (citing Kilpatrick v.

Superior Court, 105 Ariz. 413, 421, 466 P.2d 18, 26 (1970)).

¶17 Courts have recognized that the word “costs” is a term

of art, which must be given a limited meaning. See, e.g., Van

Winkle v. Nash, 761 N.E.2d 856, 861 (Ind. Ct. App. 2002) (“The

term ‘costs’ is an accepted legal term of art that has been

strictly interpreted to include only filing fees and statutory

witness fees.” (quoting Midland-Guardian Co. v. United Consumers

Club, Inc., 499 N.E.2d 792, 800 (Ind. Ct. App. 1986))). Our

court of appeals has also noted that the word “costs” is a term

of art. Schritter v. State Farm Mut. Auto. Ins. Co., 197 Ariz.

411, 413 n.3, ¶ 7, 4 P.3d 466, 468 n.3 (App. 2000) (“It is well

recognized that ‘costs’ and ‘expenses’ are not the same, and

that ‘costs’ is a term of art referring only to recoverable

expenses.”), vacated on other grounds, 201 Ariz. 391, 36 P.3d

739 (2001).

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¶18 Generally, “the term ‘costs’ refers specifically to

those items of expense incurred in litigation that a prevailing

party is allowed by rule to tax against the losing party.” 20

Am. Jur. 2d Costs § 1 (1995). And “[b]ecause ‘costs’ are

limited to necessary expenses, they may not include everything

that a party spends to achieve victory.” Id. Thus, we think

the costs that may be assessed under Rule 18(e) should be

limited to those commonly considered to be recoverable expenses.

¶19 To decide what may be recoverable expenses in a

judicial disciplinary proceeding, we turn to the civil cost

statutes, such as A.R.S. § 12-332, for guidance.4 We acknowledge

4
In Shannon, we rejected the argument that the power to
assess costs in attorney disciplinary proceedings was limited to
the costs that may be taxed in civil actions. 179 Ariz. at 74-
78, 876 P.2d at 570-74. On this point, we distinguish Shannon
from the present case because Shannon was an attorney discipline
case and this is a judicial conduct proceeding. The State Bar
and the Commission are distinct bodies, which serve distinct
purposes. For example, the State Bar is an arm of this court,
while the Commission is a separate entity specifically created
by Article 6.1 of the Arizona Constitution. As such, the State
Bar receives no appropriation from the legislature.
Consequently, the funding of disciplinary proceedings must come
from the members of the bar and those who are disciplined. See
Shannon, 179 Ariz. at 79, 876 P.2d at 575. For this reason, we
concluded that it is appropriate to shift the financial burden
of disciplinary proceedings to those who are responsible for the
costs, thus ensuring “the ability of the State Bar to continue
its efforts in this area without having to ask the State Bar’s
members to further subsidize the Bar’s disciplinary efforts.”
Id. This conclusion is critical because attorney discipline is
only one of many functions of the State Bar. On the other hand,
the Commission on Judicial Conduct operates exclusively to
regulate judicial conduct. As a separate entity, the Commission
has its own budget, which it uses almost entirely to regulate

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that the plain language of the civil costs statutes limits their

application to civil proceedings. And as discussed above,

judicial conduct proceedings are neither civil nor criminal

proceedings. Marquardt, 161 Ariz. at 214, 778 P.2d at 249;

Cieminski, 270 N.W.2d at 332. But because the term “costs” is a

term of art having a limited meaning, we find the civil costs

statutes, which define that term, useful guides in determining

what costs may be assessed under Rule 18(e).

IV.

¶20 The costs that may be imposed in superior court for

civil actions are limited to taxable costs and jury fees.

A.R.S. § 12-332. This statute states in part the following:

A. Costs in the superior court include:
1. Fees of officers and witnesses.
2. Cost of taking depositions.
3. Compensation of referees.
4. Cost of certified copies of papers
or records.
5. Sums paid a surety company for
executing any bond or other
obligation therein . . . .

. . . .

B. A jury fee shall also be included in
the judgment and taxed as costs and
shall be fixed by the court at the time
the judgment is given. The jury fee
shall include the cost of reimbursement
for juror travel expenses.

A.R.S. § 12-332(A)(1)-(5), (B). Using A.R.S. § 12-332 as a

judicial conduct. We therefore find Shannon’s holding
inapplicable on this score.

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guide, we now turn to the Commission’s recommendations.

A.

¶21 We first address the investigative costs. The

Commission recommended an assessment of costs for the Executive

Director and Disciplinary Counsel to travel to Springerville,

Eager, and Show Low to interview witnesses. These costs include

such things as mileage, lodging, and per diem. Such

investigative costs would not be recoverable in a civil case

under A.R.S. § 12-332(A). Similarly, the Commission’s

investigative expenditures are not recoverable expenses here.

¶22 The Commission urges us to rely on In re Braun, 180

Ariz. 240, 883 P.2d 996 (1994), for the proposition that we

should award investigative costs. In Braun, we ordered that

“[r]espondent shall pay the Commission’s costs and attorneys’

fees resulting from the investigation and resolution of this

case.” Id. at 243, 883 P.2d at 999. Citing this language, the

Commission contends that an award of investigative costs is

permissible. In Braun, however, we did not specify what the

awarded costs entailed nor did we explain how costs should be

defined for the purposes of Rule 18(e). In addition, Braun

involved the award of both costs and attorneys’ fees, which

encompassed more than an award of costs alone. Because the term

“costs” has a limited scope, we decline to read the brief

statement in Braun as authority for the proposition that the

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term “costs” includes investigative expenses. We therefore

reject the Commission’s recommendation to assess the

investigative costs against Respondent.

B.

¶23 We now turn to the Commission’s recommendation that

hearing costs be assessed against Respondent. First, the

Commission requests mileage reimbursement for six witnesses in

the amount of $774.87. One of those witnesses, Harold Goings,

was not permitted to testify at the hearing. Witness fees are

included as costs under A.R.S. § 12-332 but are limited by

A.R.S. § 12-303 (2003). Section 12-303 provides that material

witnesses “shall also be paid mileage at the rate of twenty

cents for each mile actually and necessarily traveled from his

place of residence in the [s]tate of Arizona to the place of

trial, to be computed one way only.” The Commission did not

specify how the mileage was calculated for each witness. We

find that A.R.S. § 12-303 is a useful guide in calculating

mileage reimbursement for witnesses appearing at a judicial

disciplinary hearing and conclude that the Commission must

calculate mileage fees accordingly. But A.R.S. § 12-303

compensates only for fees paid to “material witnesses.” Because

Goings did not testify, we cannot say that he was a material

witness. Therefore, in its calculation of witness fees, the

Commission should not assess Goings’ travel expenses against

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Respondent.

¶24 Second, the Commission recommends that we assess costs

against Respondent for the mileage, lodging, and per diem for

the hearing panel members to travel to and conduct the

disciplinary hearing. Respondent argues that A.R.S. § 12-332(B)

applies only to jury fees in superior court and a judicial

disciplinary panel is not acting as a jury. We agree with

Respondent. A disciplinary hearing panel’s function is similar

to that of a judge conducting a bench trial. We therefore

conclude that the travel and lodging costs of the hearing panel

members are not assessable costs.

¶25 Third, the Commission recommends that we assess

transcription costs for the deposition of Doug Brown.

Deposition costs are specifically included in A.R.S. § 12-332.

In addition, as noted in Schritter, this court has held “that

the costs of depositions include fees for the court reporter and

transcripts, reasonable travel expenses for attorneys and court

reporters attending the deposition, and costs of copies of

deposition transcripts.” 201 Ariz. at 392, ¶ 9, 36 P.3d at 740

(citing cases).

¶26 Nonetheless, Respondent argues that because Brown’s

deposition was not admitted into evidence at the hearing — the

panel found the testimony irrelevant — he should not have to pay

for the deposition. “In Arizona the cost of taking a deposition

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is a taxable cost if it was taken in good faith, even though the

deposition is not used.” State ex rel. Corbin v. Ariz. Corp.

Comm’n, 143 Ariz. 219, 229, 693 P.2d 362, 372 (App. 1984)

(citations omitted). The Commission deposed Brown to preserve

his testimony for the hearing because Brown was going to be on

vacation and unable to attend the hearing. Accordingly, the

deposition was taken in good faith and the Commission’s

recommendation that Respondent pay the costs for Brown’s

deposition is appropriate.

¶27 Finally, the Commission recommends that we assess

costs for the hearing transcript. Respondent argues that the

cost of the court reporter at the hearing should not be assessed

against him because it is not a taxable cost under A.R.S. § 12-

332. Rather, according to Respondent, it is an expense

associated with preserving the record. Because preserving the

record is the responsibility of the forum, Respondent maintains

that requiring him to pay the court reporting costs is

tantamount to compensation of required personnel. Respondent

also contends that because he did not seek review of the

Commission’s findings, the need for a transcript is not “readily

apparent,” thus the cost of the transcript should not be
5
assessed against him.

5
In an appeal of a civil case, costs may be assessed against
an appellant if the appellant does the same as or worse than he

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¶28 Respondent is correct that A.R.S. § 12-332 does not

list the expense of hearing transcripts as a taxable cost. But

a unique circumstance arises in judicial discipline cases. As

discussed previously, the Commission only has the power to make

recommendations to this court. After the Commission makes its

recommendations, we ultimately decide if the recommendations are

appropriate. Ariz. Const. art. 6.1, § 4; R. Comm’n Judicial

Conduct 29; In re Flournoy, 195 Ariz. 441, 442, ¶ 5, 990 P.2d

642, 643 (1999). Accordingly, Rule 27(d)(9) of the Rules of the

Commission on Judicial Conduct requires that “[t]he hearing

shall be transcribed by a court reporter or tape recorded for

use by the supreme court, and a transcript shall be filed with

the commission’s recommendations.” Therefore, although

Respondent did not file a petition to modify or reject the

Commission’s recommendation, the transcript is still an

essential element of a judicial disciplinary proceeding

regardless of whether the respondent files a petition with this

court or whether we exercise sua sponte review. Consequently,

the Commission properly recommended that the costs of the

hearing transcript be assessed against Respondent.

or she did at trial. A.R.S. § 12-342 (2003). Assessable costs
include the costs of hearing transcripts. A.R.S. § 12-331
(2003). We do not find these provisions helpful in our analysis
on this point because disciplinary proceedings are unusual in
that review by this court is mandatory.

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 V.

¶29 We remand this matter to the Commission to calculate a

new statement of costs consistent with this opinion.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Charles E. Jones, Chief Justice

_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Rebecca White Berch, Justice

_________________________________________
Andrew D. Hurwitz, Justice

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