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In re Cummings

Supreme Court of Alaska

July 16, 2009

In re Dennis CUMMINGS, Judge of the District Court, Fourth Judicial District at Bethel, Alaska.

Page 1137

Before : MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

Order of Suspension

1. The Judicial Conduct Commission has referred to this court its findings and recommendation for suspension of Dennis Cummings

Page 1138

(respondent), a district court judge in Bethel. After an investigation and evidentiary hearing, six members of the commission voted to recommend that respondent " be sanctioned by a suspension and that prior to returning to the bench, the Judge receive additional training."

2. In judicial disciplinary proceedings, we conduct a de novo review of both the alleged judicial misconduct and the recommended sanction. [1] In doing so we recognize that judicial misconduct must be established by clear and convincing evidence.[2]

3. We have reviewed the record Before the commission and the brief that respondent's counsel submitted to the commission.[3] Neither special counsel for the commission nor counsel for respondent has submitted a brief to this court specifically addressing the charges, the evidence, or the recommended discipline.

4. There is little doubt about what respondent actually did, although there is some dispute about what he intended. In early March 2008 he was presiding over the criminal jury trial of Christopher Leonard, who was charged with violating the terms of an ex parte domestic violence protective order issued to Leonard's wife. Although the protective order explicitly indicated that Leonard was not allowed visitation with his four children, a state trooper called as a witness by the prosecution testified on cross-examination at Leonard's criminal trial that the order did not prohibit contact between Leonard and his children. During a recess in the trial, respondent called a different trooper, Trooper Beaudoin, to the bench, handed him a note, and contemporaneously stated: " Just in case you want to go fishing." The note respondent handed to Trooper Beaudoin stated: " Look at page 4 DVRO just above paragraph (d). About custody of children- cannot be protected no visitation. " Respondent did not give a copy of the note to defense counsel that day. Respondent initiated a second ex parte contact about the note with Trooper Beaudoin later that day. The prosecutor informed defense counsel about the note, apparently after the trial day ended. This caused defense counsel to ask respondent at the beginning of the next trial day to dismiss with prejudice the charges pending against Leonard. At the ensuing hearing conducted by respondent that day, respondent provided an explanation in open court of his purpose in giving the note to the trooper and produced a second, but not identical, note that he then gave defense counsel. Although respondent initially recused himself, he continued to preside over the hearing until he ultimately granted defense counsel's unopposed motion for a mistrial. [4] Soon after the end of that hearing, respondent telephoned the commission's executive director. The commission initiated an investigation, conducted a probable cause hearing, and issued formal charges against respondent in June 2008. The commission took videotaped depositions of six witnesses and, in November 2008, held a two-day evidentiary hearing at which respondent testified under oath.

5. There are substantial discrepancies in the explanations respondent gave in open court at Leonard's trial, in his response to the commission's complaint, and at the evidentiary hearing, concerning his purpose in giving the note to the trooper. The commission's findings and recommendation resolved these discrepancies largely against respondent.

Page 1139

In our view, the record demonstrates by clear and convincing evidence that respondent intentionally made an ex parte communication to the prosecution team in a criminal case concerning an important fact relevant to the criminal charges.

6. We accept and agree with the commission's findings in paragraph 1 of its findings that passing the note on the first day of trial and making the initial comment to Trooper Beaudoin were ex parte communications and that the " fishing" comment created an appearance of impropriety, in violation of AS 22.30.011(a)(3)(A), (C), (D), and (E), and Canons 1, 2(A) and (B), 3(B)(2)(a) and (b), and 3(E) of the Alaska Code of Judicial Conduct. We accept and agree with the commission's findings in paragraph 2 of its findings that the additional communication with Trooper Beaudoin about the note at a subsequent break was an ex parte communication that created an appearance of impropriety, in violation of AS 22.30.011(a)(3)(A), (B), (C), (D), and (E), and Canons 1, 2(A) and (B), 3(B)(2)(a) and (b), and 3(E) of the Alaska Code of Judicial Conduct. We accept and agree with the commission's findings in paragraph 3 of its findings that respondent's misstatement of his intention to distribute similar notes to both parties created an appearance of impropriety, in violation of AS 22.30.011(a)(3)(A), (C), (D), and (E), and Canons 1, 2(A) and (B), 3(B)(2)(a) and (b), and 3(E) of the Alaska Code of Judicial Conduct. We accept and agree with the commission's findings in paragraph 4 of its findings that respondent created an appearance of impropriety by continuing with the matter after he initially recused himself, in violation of AS 22.30.011(a)(3)(A), (C), (D), and (E), and Canons 1, 2(A) and (B), 3(B)(2)(a) and (b), and 3(B)(7) of the Alaska Code of Judicial Conduct. We also accept and agree with the commission's mental state findings that respondent: (1) acted intentionally when he passed the note and followed up with the trooper; (2) either knowingly or negligently misstated that he consistently intended to pass both notes; and (3) was negligent in continuing to act after first recusing himself.

7. Although the commission was unanimous in concluding that respondent's actions merit some form of sanction, two commissioners dissented from the commission's recommendation of suspension. Alaska Statute 22.30.070(c) authorizes this court to " reprimand, publicly or privately censure, or remove a judge for action ... which constitutes wilful misconduct in the office, ... conduct prejudicial to the administration of justice, or conduct that brings the judicial office into disrepute." The dissenting commissioners read AS 22.30.070(c) as implicitly withholding from us the power to suspend, theoretically leaving us with only a choice between public reprimand and removal, and not suspension, in this case. We nevertheless conclude that subsection .070(c) should not be read as a legislative attempt to withhold a power granted to this court by article IV, section 10 of the Alaska Constitution. That constitutional provision states in relevant part that " a justice or judge may be disqualified from acting as such and may be suspended, removed from office, retired, or censured by the supreme court upon the recommendation of the commission." [5] The constitution therefore explicitly authorizes us to suspend a judge upon the recommendation of the commission. We decline to read a contrary implicit limitation into AS 22.30.070(c)(3).

8. We conclude that respondent's ex parte communications with a witness for the prosecution created the appearance of impropriety and constituted wilful misconduct in office, conduct prejudicial to the administration of justice, conduct that brings the judicial office into disrepute, and a violation of the Alaska Code of Judicial Conduct. We accept and agree with the commission's determinations that these were significant violations of ethical duty owed the legal system, and that they affected the ability of the system to fulfill its obligation to resolve disputes impartially and maintain the public trust. The commission considered the potential harm of each violation. As to passing the note, it first observed that it " may have made conviction of the defendant more likely,"

Page 1140

a substantial harm. But the commission ultimately concluded that the potential harm of passing the note was minimal because the prosecution did not use the information and the prosecutor did not understand the note's relevance. We accept and agree with the commission's findings that the potential harm caused by all the breaches of duty was minimal. We accept and agree with the commission's findings concerning mitigators (respondent had no prior discipline record; there was no dishonest or selfish motive; respondent was relatively new to the bench; respondent has a reputation for truth and honesty; respondent is remorseful and recognizes that his conduct was wrong) and aggravators (respondent had at least one prior experience passing an ex parte note to a witness).

9. In discussing the appropriate sanction, the commission noted that 2.3 of the ABA Standards for Imposing Lawyer Sanctions provides that lawyer suspensions " generally ... should be for a period of time equal to or greater than six months." The commission also observed that we have not applied this standard in a judicial discipline matter. It therefore deferred to us as to whether the six-month ABA " baseline" suspension period should be adjusted by aggravating or mitigating factors. The commission recommended that respondent be suspended, but did not recommend the duration of suspension.

10. We conclude that a suspension of three months is appropriate. We apply to judicial discipline cases the same rule that we have applied in attorney discipline cases: if suspension is indicated, a six-month suspension is the baseline.[6] We then consider whether there should be a departure from the baseline on the basis of the harm to the administration of justice and the presence of aggravating or mitigating factors. Here, we regard the violations as significant and potentially harmful to the administration of justice, because they might have unfairly affected the outcome of the criminal trial, by making the possibility of conviction more likely. But we conclude that the actual harm to the administration of justice was minimal in this case, because the prosecution did not use the information provided by respondent and the prosecutor did not understand the note's relevance. In this regard, we also note that the respondent could have called attention to an obvious legal error on the part of a witness, as long as he notified both parties of the matter. We next consider, as the commission found, that several mitigators [7]-and only one aggravator [8]-are present. Finally, we also conclude that the suspension should be without pay, resulting in a very significant loss of income to respondent.

11. We also require respondent, Before returning to the bench, to acquire at his own expense additional training satisfactory to the commission. At a minimum, that training must generally cover the Code of Judicial Conduct, and must particularly cover the topics of ex parte communications, judicial impartiality, and the appearance of impropriety.

12. This order takes effect at 8:00 a.m. July 27, 2009.

FABE, Chief Justice, not participating.

APPENDIX A

IN THE SUPREME COURT FOR THE STATE OF ALASKA

In re DENNIS CUMMINGS,

Page 1141

Judge of the District Court, Fourth Judicial District at Bethel, Alaska,

Supreme Court No. S-13348

Alaska Commission on Judicial Conduct, Accusation No. 2008-004

RECOMMENDATION FOR DISCIPLINE

Procedures Before the Commission

This matter was brought to the attention of the Alaska Commission on Judicial Conduct ("Commission") in mid-March 2008 and the Commission initiated an investigation on its own motion at a special teleconference meeting on March 20, 2008. At its regular meeting on May 19, 2008, the Commission determined that it would hold a Probable Cause Hearing in this matter. A Probable Cause Hearing took place by teleconference on June 19, 2008. At the conclusion of the Probable Cause Hearing, the Commission issued Formal Charges by unanimous vote. A Formal Disciplinary Hearing pursuant to [AS 22.30.011(b)] and Alaska Commission on Judicial Conduct Rule 14 took place in Anchorage on November 17th and 18th. The attached Commission Determination recommends disciplinary action and is filed pursuant to Article IV, section 10 of the Constitution of Alaska, AS 22.30.011(d)(2) and Rule 406 of Alaska's Rules of Appellate Procedure.

SUBMITTED by the COMMISSION ON JUDICIAL CONDUCT, through its Executive Director, this 24th day of November 2008.

Marla N. Greenstein (Bar No. 9708048)

Executive Director

Commission on ...


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