In Re McVay

SUPREME COURT OF ARIZONA
En Banc

In the Matter of ) Arizona Supreme Court
) No. JC-06-0002
JACQUELINE McVAY, Justice of )
the Peace, ) Commission on Judicial
) Conduct
Respondent. ) No. 06-181
)
__________________________________) O P I N I O N

Review from the Commission on Judicial Conduct

RECOMMENDATION REJECTED; REMANDED
________________________________________________________________

JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By A. Melvin McDonald, Jr.
Attorney for Jacqueline McVay

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

WILENCHIK & BARTNESS, P.C. Phoenix
By Dennis I. Wilenchik
William P. French
Kathleen E. Rapp
Attorneys for Amicus Curiae Maricopa County Justice of the Peace
Bench
________________________________________________________________
R Y A N, Justice

¶1 This case requires us to decide whether the Commission

on Judicial Conduct (Commission) improperly considered the

effect a suspension would have on a judge’s retirement benefits

in approving agreed-upon sanctions. We hold that it did.

I

¶2 Judge Jacqueline McVay has served as a full-time

justice of the peace since January 1, 1989. In 1994, Judge
McVay was informally disciplined by the Commission for “being

late to court on numerous occasions without explaining the

reasons for her tardiness to counsel, litigants, and witnesses

who were waiting for trials to begin.” In 2003, after receiving

other allegations, the Commission reminded Judge McVay to begin

court proceedings on time. In 2005, Judge McVay was censured

for being habitually tardy. Judge McVay’s punctuality improved

for a time after her censure, but she arrived late to court on

several occasions in 2005 and then began arriving late more

often in 2006.

¶3 In May 2006, court staff filed complaints regarding

Judge McVay’s behavior. The complaints alleged that Judge McVay

often blamed clerks for her tardiness, chastised staff in the

“public areas,” criticized clerks when files were not in order,

and improperly interrupted meetings to require administrators,

rather than available clerks, to look for files. The Commission

filed formal charges against Judge McVay in October 2006. Count

I charged Judge McVay with habitual tardiness and Count II

charged her with improper judicial demeanor related to her

treatment of staff.

¶4 Judge McVay and disciplinary counsel subsequently

submitted an agreement to the Commission’s hearing panel. As

part of the agreement, Judge McVay conditionally admitted that

her habitual tardiness violated Code of Judicial Conduct, Ariz.

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R. Sup. Ct. 81, Canons 1(A) (“A judge should participate in

establishing, maintaining and enforcing high standards of

conduct, and shall personally observe those standards so the

integrity . . . of the judiciary will be preserved.”), 3(B)(8)

(“A judge shall dispose of all judicial matters promptly,

efficiently and fairly.”), and 3(C)(1) (“A judge shall

diligently discharge the judge’s administrative responsibilities

. . . and maintain professional competence in judicial

administration . . . .”). Furthermore, she conditionally

admitted that her absence from court during court business hours

violated Canon 3(A) (“The judicial duties of a judge take

precedence over all the judge’s other activities.”). She also

conditionally admitted that by not reforming her behavior in

response to previous discipline and censure she violated Canons

1 (requiring that “[a] judge shall uphold the integrity . . . of

the judiciary”), 3 (requiring that “[a] judge shall perform the

duties of judicial office . . . diligently”), and 3(C)(1). She

agreed that her habitual tardiness constituted “conduct

prejudicial to the administration of justice that brings the

judicial office into disrepute,” under Article 6.1, Section 4,

of the Arizona Constitution. In addition, she conditionally

admitted that several staff members requested transfers or left

their employment in part because of her behavior. Consequently,

Judge McVay also conditionally admitted that her treatment of

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staff violated Canons 1(A) and 3(B)(4) (“A judge shall be

patient, dignified and courteous to . . . [those] with whom the

judge deals in an official capacity . . . .”). Under the

agreement, the Commission would, in part, require Judge McVay to

pay a fine of $6,300;1 she also agreed to “a two-month

reassignment to court duties to be determined by the Maricopa

County presiding judge” and to attend courses “in time

management and . . . human resources management.”

¶5 The hearing panel initially “questioned the

appropriateness of the proposed sanction” in light of Judge

McVay’s prior disciplinary record and the seriousness of the

charges. Judge McVay’s counsel “explained that he had

determined after contacting the Elected Officials Retirement

Fund that . . . if she were suspended without pay for two

months, [she] would suffer a continuous financial loss in

retirement that would greatly exceed the amount of compensation

that would be lost as a result of suspension.” After further

1
The Commission believes, incorrectly, that the fine
represents two months of Judge McVay’s salary; it considered the
fine an additional formal sanction under Rule of the Commission
on Judicial Conduct 18(e). Rule 18(e) provides that “[t]he
commission may recommend the imposition of other formal
sanctions consistent with these rules, including, but not
limited to, the assessment of attorney fees and costs.” We do
not decide in this case, given Judge McVay’s consent to
imposition of the fine, whether the Commission would have the
power under Rule 18(e) to impose a fine on a non-consenting
judge.

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deliberations, the panel unanimously agreed to accept an amended

agreement that incorporated additional provisions, the most

significant being that Judge McVay would agree to retire at the

end of her term in December 2008.

¶6 Shortly thereafter, the parties filed an amended

agreement containing the additional provisions. The hearing

panel, through the presiding member, accepted the amended

agreement and submitted its recommendation to this Court. The

recommendation stated that “the hearing panel observed that

[Judge McVay’s] 2004 censure[2] would justify a recommendation

for a suspension but acknowledged, after discussing the matter

with both counsel, that such a suspension would

disproportionately affect [Judge McVay’s] retirement at the

conclusion of her current term of office.”3

¶7 Both parties waived their right to object to the

hearing panel’s recommendation and their right to petition this

Court for modification or rejection of the recommendation. See

R. Comm’n Judicial Conduct 29(a). We have jurisdiction under

2
The reference to 2004 is a mistake. Although a complaint
had been filed in 2004 charging Judge McVay with tardiness, this
Court censured Judge McVay for those charges in March 2005.
3
The amended agreement stated that the Commission would have
recommended a suspension but for her “long and faithful service
to the judiciary in her 18 years of dedicated and productive
service.” The Commission’s recommendation, however, made no
reference to Judge McVay’s service in deciding that censure and
a fine was an appropriate sanction.

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Article 6.1, Sections 4, 5, of the Arizona Constitution and Rule

29(a) of the Rules of the Commission on Judicial Conduct.4

II

¶8 Because Judge McVay had been censured in 2005 for

conduct similar to that charged here, the hearing panel

initially considered suspending her for two months. The

Commission’s recommendation and the supplemental briefs of both

parties acknowledge that the primary reason Judge McVay was not

suspended was because of the adverse effect on her retirement

benefits. Absent a suspension, at the end of Judge McVay’s

current term she will be eligible to receive her full retirement

benefits for twenty years of judicial service.

¶9 It was improper for the Commission to consider

collateral financial consequences in determining an appropriate

4
This Court may not exercise sua sponte review when the
Commission on Judicial Conduct recommends censure alone. R.
Comm’n Judicial Conduct 29(a) (“A recommendation of censure
shall be final unless the judge or disciplinary counsel files a
petition to modify or reject the recommendation as provided in
paragraph (c).”). This Court does have the authority to review
“[a]ll other recommendations for formal sanctions” on its own
motion. Id. In addition to censure, the Commission recommended
that Judge McVay pay a fine, which it viewed as a formal
sanction under Rule 18(e). We therefore exercise sua sponte
review of the entire recommendation, as the reviewable sanction
is inseparable from censure. Cf. In re Bemis, 189 Ariz. 119,
122, 938 P.2d 1120, 1123 (1997) (holding in an attorney
discipline case that because a probation order, a normally non-
reviewable sanction, was recommended in conjunction with a
censure, a reviewable sanction, this Court could review both
sanctions as they were inseparable).

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sanction. “[O]ur goal in imposing sanctions is to protect the

public and foster judicial integrity - not to punish.” In re

Lorona, 178 Ariz. 562, 567, 875 P.2d 795, 800 (1994) (citing In

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

also R. Comm’n Judicial Conduct 5.5 Taking into account the

financial impact that a suspension would have on a judge would

not “serve the objective of guarding the public’s interest.”6

In re Goodfarb, 179 Ariz. 400, 403, 880 P.2d 620, 623 (1994).

If financial consequences were permitted to be considered in

determining sanctions for judicial misconduct, many judges could

avoid appropriate sanctions. The Commission, and this Court,

must be guided by the goals of protecting the public and

fostering judicial integrity, and not the collateral

consequences a sanction may have on a judge. Therefore, in

5
Rule 5 provides in part the following:

The purpose of the judicial discipline . . . system is
to protect the public and to maintain high standards
for the judiciary and the administration of justice.
Any disciplinary remedy or sanction imposed shall be
sufficient to restore and maintain the dignity and
honor of the position and to protect the public by
assuring that the judge will refrain from similar acts
of misconduct in the future.
6
In conjunction with lawyer discipline, we have similarly
held that “[w]e do not consider the nature of the lawyer’s
practice, the effect on the lawyer’s livelihood, or the level of
pain inflicted when determining the appropriate sanction.” In
re Scholl, 200 Ariz. 222, 224, ¶ 10, 25 P.3d 710, 712 (2001)
(citing In re Shannon, 179 Ariz. 52, 71, 876 P.2d 548, 567

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recommending censure and fine, the Commission improperly

considered the financial consequences a suspension would have on

Judge McVay’s retirement benefits.

III

¶10 In the amended agreement, Judge McVay admitted the

facts on the condition that the identified sanctions would be

imposed. Because we reject the Commission’s recommendation, the

agreement’s terms preclude us from using the conditionally

admitted facts to impose a sanction that we would consider

appropriate. Accordingly, we remand this matter to the

Commission for further proceedings.

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

(1994)). We see no reason to treat judicial officers
differently.

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