In re Disciplinary Matter Involving a District Court Judge

         Original Application from the Alaska Commission on Judicial Conduct. No. 7156

          Timothy A. McKeever and Stacey C. Stone, Holmes Weddle & Barcott, P.C., Anchorage, for Petitioner.

          Maria N. Greenstein, Alaska Commission on Judicial Conduct, Anchorage, and Jeffrey M. Feldman, Summit Law Group PLLC, Seattle, Washington, for Respondent.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          BOLGER, Justice.

         I. INTRODUCTION

         Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission's admonishment and dismiss the Commission's complaint against the judge.

         II. FACTS AND PROCEEDINGS

         The petitioner is a state district court judge.^[1] In a previous disciplinary matter, the Alaska Commission on Judicial Conduct filed a recommendation for discipline against the judge. We adopted the Commission's disciplinary recommendation. Based on the same misconduct, the Alaska Judicial Council recommended that the judge not be retained in a subsequent election. The judge sought advice from counsel and chose not to mount his own retention campaign.

         A close friend of the judge's wife learned about the Council's recommendation and decided to fund an independent campaign to support the judge's retention. She was careful not to share her decision with the judge or his wife. A few weeks before the election she hired a local agent and told him "to put a face to the name and tell folks about [the judge]'s background and experience." The agent registered an independent expenditure group called "Friends of [the Judge], " and his team produced mailers, billboards, social media advertisements, and a website for the campaign. The friend was the sole financial contributor, and the agent exercised nearly complete control over the campaign's messaging.

         The judge was kept ignorant of the independent campaign, and the judge had no control over the campaign's activities. The friend stated that she "did not tell [the judge or his wife] of [her] plans, did not involve them in any way in any of the campaign activities, did not solicit or seek their input, and did not request their review or approval of the plans or any materials." Likewise, the agent said the judge had "no awareness or influence He didn't approve anything that we put out there." The agent did arrange to meet the judge in person and "snap[] a couple photographs" for the campaign, but the judge "seemed a little confused as to who [he] was." The agent told the judge only that he was "a fan of [the judge] and [they had] mutual friends."

         Although the judge was aware that he had supporters, he was not aware that there was a campaign. The judge avoided campaigning himself but understood from his counsel that allowing an anonymous supporter to take his photograph would not be improper. He rejected all other requests, telling supporters who wanted to help that he was not involved in any campaigns.

         Shortly after the election, the Commission initiated a complaint against the judge, alleging material misrepresentations in the items circulated by the campaign. The Commission later clarified that it was investigating the judge's duty to correct the independent campaign's alleged misrepresentations. The Commission focused its attention on three specific campaign items: a mailer, the website, and a social media advertisement.

         The mailer and the website prominently featured two quotes regarding the judge which arose from the judge's previous disciplinary action. Both quotes appeared in the public record and were chosen by the agent's team. The first quote was attributed to another judge: "An excellent knowledge of the law .. . Real skill at legal analysis [sic]."^[2] The second quote was attributed to the Commission itself: "An excellent character and reputation." Both the mailer and the website stated that they were "Paid for by Friends of [the Judge]" and that the communications were "not authorized, paid for or approved by the candidate."^[3]

         The social media advertisement featured an image of the judge tied to a stake and surrounded by flames with the caption: "Witch Hunts are so 18th century." The agent's team had digitally altered the judge's facial expression, added the stake and flames, and come up with the concept and text. The "witch hunt" image was used only online.

         The judge did not personally receive the mailer; he first learned about it four days before the election. He learned about the website two days before the election. The judge did not learn about the social media advertisement until well after the election.

         After an informal investigation the Commission found that the two quotes falsely implied endorsements from the other judge and the Commission, that the advertisement falsely implied that the recommendation of non-retention was a "witch hunt, " that the judge knew or had reason to know of the campaign's existence due to the photography session, that the judge had actual knowledge of the mailer before Election Day, and that the judge took no action to correct the campaign's misrepresentations despite this knowledge. Pursuant to AS 22.30.011(b), the Commission imposed an informal private admonishment on the judge after concluding that the judge's failure to publicly address the two quotes and the social media advertisement violated the Alaska Code of Judicial Conduct.^[4] The Commission also asked the judge to "correct the public record in some manner to address the concerns raised."

         The Commission denied the judge's motion for reconsideration. We granted the judge's original application for relief^[5] and now reverse the Commission's admonishment.

         III. PRELIMINARY DISCUSSION

         A. Application For Relief

         As a preliminary matter the Commission argues that we should not exercise our power of review over its informal private admonishments. The Commission makes three arguments: (1) the statute governing the Commission's disciplinary authority does not contemplate our review of informal admonishments; (2) informal admonishments are an important tool that will be compromised if they are subject to our review; and (3) an informal admonishment is not a sanction and therefore not a formal action to be reviewed. We are not persuaded.

         While it is true that AS 22.30.011 does not provide for supreme court review of the Commission's informal decisions, ^[6] this is not the first time that a pre- recommendation decision has been reviewed by this court.^[7] We have also previously determined that our review was appropriate under similar circumstances in the attorney discipline context. In Anderson v. Alaska Bar Ass 'n a complainant asked us to review the Bar Association's decision not to open an investigation into his grievance alleging attorney misconduct.^[8] The Bar Rules did not provide for supreme court review of these grievance-closing decisions, but we nonetheless concluded that such decisions "may, upon timely request of a complainant, be reviewed by this court."^[9] We explained that our conclusion was "based... on the presumption of reviewability pertaining to all final administrative orders, and the inherent authority of this court to regulate the practice of law."^[10]

         We apply similar reasoning here. The Commission's admonishment is a final disposition and thus presumed reviewable, and article IV, section 10 of the Alaska Constitution vests in this court "the ultimate authority in disciplinary matters affecting the judiciary."^[11] We conclude that we may, upon timely request, review the Commission's imposition of an informal private admonishment.

         As with all original applications for relief, a grant of this review is "not a matter of right but of sound discretion sparingly exercised."^[12] We appreciate the importance of informal disciplinary tools and the Commission's expertise in handling these matters. Nonetheless, an informal private admonishment can become an aggravating factor in a future disciplinary matter, ^[13] and Appellate Rule 404 is the only avenue of relief for a judge who wishes to challenge such an admonishment.^[14] And the mere possibility of ...