Opinion
SUPREME COURT NO. 2007-SCC-0029-JDA
December 17, 2008, Decided
Bruce A. Bradley, Esq., Rule 5(K) Special Ethics Prosecutor, for the Commonwealth.
Steven M. Newman, Esq., and F. Randall Cunliffe, Esq., for Associate Judge Juan T. Lizama.
DEMAPAN, C.J.:
Before this Court are the findings and recommendations of the Rule 5(K) special ethics prosecutor ("SEP") regarding judicial disciplinary procedures against Juan T. Lizama, associate judge of the Commonwealth Superior Court. This Court has jurisdiction pursuant to the Commonwealth Rules of Judicial Disciplinary Procedure. This Court approves the SEP's recommendations regarding summary disposition and imposes sanctions on Lizama as specified later in this opinion.
Judge Lizama retired from the bench effective May 24, 2008.
I
On April 10, 2007, Presiding Judge Robert C. Naraja sent Chief Justice Miguel S. Demapan a letter regarding alleged judicial misconduct. The Supreme Court treated the letter as a disciplinary complaint and initiated the current proceedings. On April 13, 2007, the Supreme Court issued an order to appoint an investigative judge, and pursuant thereto, Richard H. Benson was appointed pro tem.
The disciplinary complaint is based on: (1) Lizama's July 17, 2006 letter to the Presiding Judge, copied to Judge David A. Wiseman, alleging misconduct by Judge Wiseman; and (2) Lizama's March 28, 2007 letter to the Presiding Judge, copied to Judge Wiseman and the six attorneys appearing in the Maliti case, further alleging misconduct by Judge Wiseman and attaching the 2006 letter.
In July 2006 Judge Wiseman was assigned to decide a motion to disqualify Lizama from presiding further in the Maliti case. Lizama's 2006 letter stated that because comments by Judge Wiseman indicated bias, he should be replaced and another judge assigned to decide the motion. Lizama wrote the letter when both the Maliti case and the motion to disqualify were pending.
Lizama's 2007 letter was written about a week after Judge Wiseman granted the motion disqualifying Lizama, and while the Maliti case was still pending. The letter is critical of Judge Wiseman in the following ways: Judge Wiseman was biased and commented on a pending case, Judge Wiseman improperly handled the disqualification matter, and Judge Wiseman's language unnecessarily degraded a member of the judiciary. When asked at the May 24, 2007 disciplinary hearing what evidence led him to believe that Judge Wiseman was biased, Lizama admitted it was based on hearsay, suspicion, and surmise.
Pursuant to notice, a preliminary investigation was held on May 24, 2007. Lizama filed a written response to the complaint on May 21, 2007, stating that he wrote the 2006 letter: (1) to alert Judge Naraja and Judge Wiseman of a potential conflict, (2) to alert the Presiding Judge of a problem in the Superior Court's procedure for handling recusals, and (3) to keep the proceedings transparent in the eyes of the Maliti counsel and their clients. Lizama acknowledged that he wrote the 2007 letter to Presiding Judge Naraja, attached the 2006 letter, and distributed copies to the Maliti attorneys.
At the May 24, 2007 hearing, Judge Wiseman testified that he had transcripts of two proceedings in which Lizama spoke negatively of him in open court. In an effort to determine whether Lizama's letters were part of a broader course of judicial impropriety, especially with regard to disparaging a fellow judge, Judge Wiseman was requested to produce the transcripts.
On May 25, the investigative report was filed, which found a lack of evidence that Judge Wiseman violated the Rules of Judicial Disciplinary Procedure. However, the Supplemental Investigative Report ("SIR"), filed on October 1, 2007, concluded regarding Lizama that reasonable cause existed to submit the complaint to the Supreme Court for a formal hearing.
On January 29, 2008, the SEP filed a motion for summary disposition which this Court will now address. SEP amended formal proceedings on February 7, 2008, to add an additional charge to conform to proof already on record.
II
The imposition of judicial sanctions is a matter of first impression for this Court. In addition to the Commonwealth's Rules of Judicial Disciplinary Procedure, this Court looks to other jurisdictions to establish our standard of review. Other courts have stated that in order to impose any degree of discipline upon a judge, the evidence regarding the charges against him or her must be clear and convincing. In re LaMotte, 341 So.2d 513, 516 (Fla.1977). While this Court primarily focuses on the specific charges enumerated by the SEP, this Court, under Rule 3(s) of the Commonwealth Rules of Judicial Disciplinary Procedure, can order sanctions based on the entirety of the record of conduct. Graham, 620 So. 2d 1273, 1276 (1993) (finding that "[c]onduct unbecoming a member of the judiciary . . . may also be proved by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary."). In reviewing the investigative judge's findings and conclusions, this court undertakes an independent examination of the record to determine which, if any, of the charges are supported by clear and convincing evidence. Wenger v. Commission on Judicial Performance, 29 Cal.3d 615, 622, 175 Cal. Rptr. 420, 630 P.2d 954 (1981). This Court gives weight to the findings and conclusions of the SEP. Id. at 622-23.
III
Ex Parte or Other Communication: Canon 3(A)(4)
As detailed in the SIR, Lizama's 2006 and 2007 letters violated Canon 3(A)(4) of the Commonwealth Code of Judicial Conduct. The Canon requires that "A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." NMI C. Judic. Cond. 3(A)(4). An ex parte communication is defined as contact that does not involve all interested parties to a case, but is more importantly one that improperly advances certain parties' interest. Roberts v. Commission on Judicial Performance, 33 Cal.3d 739, 747, 190 Cal. Rptr. 910, 661 P.2d 1064 (1983). Lizama does not contest that he sent the 2006 and 2007 letters. This Court gives great deference to the findings of the SEP, in that both letters concern a pending matter, even if they are not necessarily ex parte.
In this case, Lizama is a party to the motion to disqualify; Judge Wiseman is the judge overseeing the case. However, Lizama is still a jurist subject to the Canons of Judicial Conduct. By including Judge Wiseman in the 2006 letter, Lizama departed from the required neutrality of a jurist to an advocate for his own interests. Similarly, his 2007 letter also advocates his interests, this time including the parties to the case as his audience. This Court cannot speculate as to Lizama's motives in sending these letters. However, it is clear that a judge subject to a motion to disqualify cannot attempt to sway the judge overseeing his disqualification. Presiding Judge Naraja had referred the motion to disqualify to Judge Wiseman. Lizama must proceed no further in his cases until all recusal issues are resolved. Even if Lizama felt Judge Wiseman was biased, these communications undermine the fundamental tenet that the disqualifying motion judge decides the matter, not the judge being considered for disqualification. Regardless of whether either letter was truly ex parte in the traditional sense of not including all parties, both were "communications concerning a pending . . . proceeding" that is prohibited by Canon 3(A)(4). SEP cites Roberts for the proposition that Lizama's letters were examples of "impermissible personal involvement in the litigation" and improper advocacy. Id. at 747; see also Re Inquiry concerning Judge No. 1228, 259 Ga 146, 378 S.E.2d 115 (1989) (where disciplinary sanctions were filed when a judge initiated communications regarding his recusal to an attorney); Ryan v. Commission On Judicial Performance, 45 Cal.3d 518, 247 Cal. Rptr. 378, 754 P.2d 724 (1988) (holding that despite the lack of prejudice as a result of a judge's ex parte communications, his behavior was sanctionable). The SIR must be given its proper weight; therefore, this Court finds that clear and convincing evidence has been presented to find a violation of Canon 3(A)(4).
The Canons mandate that a judge may proceed no further in a case where he or she is subject to disqualification. NMI C. Judic. Cond. 3(D)(c). This charge is addressed later in this opinion.
Public comment: Canon 3(A)(6)
The charge of inappropriate public comment pertains specifically to the 2007 letter, which was provided to the six attorneys in the Maliti case. At issue is whether Lizama's dissemination to the six attorneys constitutes public comment. While it is arguable that Lizama could not know for sure that the attorneys would reveal the letters to the public, as the SEP states, these letters, like officially filed motions, are accessible as public information, especially in such a high profile, media covered trial. Specifically, Canon 3(A)(6) prohibits "public comment about a pending or impending proceeding in any court." NMI C. Judic. Cond. 3(A)(6).
Other jurisdictions indicate that comments which may affect a proceeding's outcome cannot be tolerated. See In re Charge of Judicial Misconduct, 47 F.3d 399, 400 (10th Cir. 1995) (a judge's public comments clearly related to a matter before him, and were made outside the context of the official proceedings). Most dangerous is the public perception that a judge is impartial and that his objectivity has been compromised as an actor in the proceedings. In re McCully, 942 P.2d 327, 331 (Utah, 1997). Lizama's motivation behind these comments was to ensure that the proceedings remained transparent to the counsel and the Maliti heirs. While this may be well-intentioned, it is not his duty, as the party potentially to be disqualified, to sway the outcome of the case. U.S. v. Microsoft Corp., 346 U.S. App. D.C. 330, 253 F.3d 34, 112 (2001) ("It is no excuse that the Judge may have intended to 'educate' the public about the case or to rebut 'public misperceptions' purportedly caused by the parties"); see also In re Boston's Children First, 244 F.3d 164, 167 (1st Cir. 2001); In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995); United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993). Lizama was not merely discussing procedural matters with the Presiding Judge; he was attempting to inform the public, which necessarily creates culpability under Canon 3(A)(6). While Lizama did not alert the press himself, including the attorneys in his letter is tantamount to doing so.
This Court must protect against the appearance of impropriety in order to instill public confidence because "[j]udges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media." Microsoft, 346 U.S. App. D.C. 330, 253 F.3d 34 at 115. Lizama's public comments were not only improper, but also would lead a reasonable, informed observer to question his impartiality. Since the time for rehearing was still pending, and the letter itself discussed such confidential, court-sensitive procedural matters, its dissemination was in violation of Canon 3(A)(6).
Impugning the Integrity of the Judiciary: Canons 1 and 2(A) and Proposed Rule 6(a)(1)
SEP also avers that Lizama violated Canons 1 and 2(A). Canon 1 decrees that "[a] judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so the integrity and independence of the judiciary may be preserved." NMI C. Judic. Cond. 1. Canon 2(A) requires that a judge should "conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." NMI C. Judic. Cond. 2(A). As the sole means to regulate judicial conduct, the Commonwealth Code of Judicial Conduct "should be construed and applied to further that objective." NMI C. Judic. Cond. 2(A). SEP provides ample case authority from other jurisdictions to support the proposition that Lizama's violation of Canons 3(A)(4) and 3(A)(6) necessarily violate the general requirements of Canons 1 and 2(A). See Matter of Kellam, 503 A2d 1308, 1310 (Maine, 1986); In the Matter of Benoit, Jr., 523 A.2d 1381, 1382 (Maine, 1987).
It is difficult to precisely define what exact standard of conduct a judge should strive toward. While the Code of Judicial Conduct provides a basic framework, it is often easier to provide examples of what not to do. Certainly in this case, Lizama did not perform outrageous acts or give inflammatory speeches. Nevertheless, the letters criticizing the Presiding Judge and recusal judge show a disdain for the standards of conduct in the Code, and undermine public confidence in the judiciary. Most significantly, Lizama admits to all the facts behind his violations of the two canons above, yet argues in his opposition to the motion for summary judgment, that there was no violation of Canons 1 and 2(A). Courts have excused an honest error in judgment in regard to violations to these canons. Mississippi Com'n on Judicial Performance v. Martin, 921 So.2d 1258, 1265 (2005) (stating that there is no corollary that an honest error equates to a violation of the integrity and independence of the judiciary). However in this case, Lizama's ex parte attempts to inform the public about an impending case do not amount to a mere honest error in judgment. As a judge of the Superior Court, Lizama is charged with compliance with the Code of Judicial Conduct. It is fundamental to any novice jurist as he or she ascends to the bench, let alone a seasoned jurist like Lizama. To equate Lizama's willful disobedience of fundamental tenets of the judicial system with an honest error would be disastrous to the maintenance of judicial standards. As a result, this Court finds that Lizama's actions also violate Canons 1 and 2(A).
Rule 6(A)(1) of the Rules of Judicial Disciplinary Procedure, now written into law, sets forth grounds for discipline, specifically for "[w]illful misconduct in office." NMI R. Jud. Disc. 6(A)(1). The delivery of the letters satisfies the three elements of willful misconduct: a judge "1) engage[s] in conduct that is unjudicial and 2) committed in bad faith 3) while acting in a judicial capacity." Broadman v. Commission on Judicial Performance, 18 Cal.4th 1079, 1091, 77 Cal. Rptr. 2d 408, 959 P.2d 715 (1998). It is already established that Lizama's acts were unjudicial as they violated the Code, and since the letters were on official letterhead, he was also acting in his judicial capacity. The SEP correctly points to Lizama's "bad faith" in making these accusations as a judge, which Lizama later admitted to basing on "hearsay," "suspicion," and "surmise." SIR P 28. While it is undisputed that the relationship between Judges Lizama and Wiseman is less than cordial, Lizama owes the public the duty to perform his judicial activities free of animosity and conflict. Lizama attempts to excuse the letters as an attempt to clarify the recusal process with the Presiding Judge. However, in doing so, he failed to ensure that he followed the rules of judicial conduct. Lizama cannot base his accusations on extrajudicial conversations and potential biases stemming from other cases, specifically, Commonwealth v. Demapan Castro, Civ. Action No. 04-0563. (regarding which Lizama disclosed Judge Wiseman's statements supposedly indicating bias, SIR Exhibit B P 2). It is not Lizama's role to be a watchdog over cases not on his docket. All judges are subject to the rules of recusal, and the responsibility to avoid any appearance of improper bias rests solely with the judge hearing each case. NMI C. Jud. Cond. 3(C)(a). All judges must be careful to maintain effective working relationships with our fellow jurists, for it is only in a climate of judicial harmony that we can properly administer justice. Accordingly, this Court finds that Lizama's actions violated Rule 6(A)(1) of the Rules of Judicial Disciplinary procedure.
Proceeding in a Matter While Motion to Disqualify Pending: Canon 3(D)(c)
This Court will not address the amended charge of Canon 3(D)(c), "Proceeding in a matter while motion to disqualify pending." While the SEP followed proper procedures in filing the amendment, the lack of investigation by the investigative judge precludes this Court from considering the charge. The SEP's duty is to prosecute the charges found by the investigative judge. The investigative judge determines whether there is reasonable cause to submit charges for a formal hearing. Before reporting findings of fact to this Court, the investigative judge must conclude that they have been established by clear and convincing evidence. In re McAllister, 646 So.2d 173, 177 (Fla. 1994). This Court must then review the findings and determine whether they meet such a quantum of proof, which requires more proof than a "preponderance of the evidence" but the less than "beyond and to the exclusion of a reasonable doubt." In re Davey, 645 So.2d 398, 404 (Fla. 1994). If the findings meet this standard, then they are of persuasive force and are given great weight by this Court. See In re LaMotte, 341 So.2d 513, 516 (Fla. 1977). The findings carry this weight because the investigative judge is in a position to evaluate the testimony and evidence first-hand. See In re Crowell, 379 So.2d 107, 109 (Fla. 1979). Despite the amended charge's conformity with the proof already on record, this Court is hesitant to adjudicate matters not considered by the investigative judge. In accordance with our powers delineated in Rule 33(a) of the Rules of Judicial Discipline, this Court dismisses the 3(D)(c) complaint.
Sanctions
This Court finds as a matter of law that clear and convincing evidence exists to charge Lizama with violations of the Rules of Judicial Conduct. Thus, summary disposition is proper, and this Court now orders formal sanctions. In judicial discipline actions, this Court is the trier of fact and alone possesses the power to impose sanctions. Miss. Comm'n on Judicial Performance v. Carr, 786 So.2d 1055, 1058 (Miss. 2001). The guiding factor in assigning an appropriate sanction is that it must fit the offense, which is best measured by comparison with sanctions handed down in prior cases for the listed offense. As judicial sanctions are an issue of first impression in the Commonwealth, this Court shall employ a six-part test adapted from other jurisdictions to determine the appropriateness of a sanction. The test balances the following factors: "(1) the length and character of the judge's public service; (2) whether there is any prior case law on point; (3) the magnitude of the offense and harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances." Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss. 2004).
Lizama is a seasoned and accomplished jurist. Lizama's motives in disseminating the letters may have been proper, but his methods were not. In the process of maintaining the transparency of the judicial system, Lizama departed from the requirements of the Judicial Code. This Court will not tolerate such behavior, for if our own judges do not follow the rules, how can we expect the public to do so? Rule 34 of the Commonwealth Rules of Judicial Discipline lists possible sanctions available to the Supreme Court: (a) Suspension; (b) Imposition of limitations or conditions on the performance of judicial duties; (c) Public reprimand or censure; (d) Monetary fine; (e) Assessment of costs and expenses. NMI C. Jud. Cond. 34. However, this is not a comprehensive list of possible sanctions. Rather, the legislature "delegated to the judiciary the task of fashioning the remedies that will best serve the purpose" of the disqualification statute. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 862, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988).
While this Court chooses to sanction Lizama to maintain high standards of judicial conduct, removal is not appropriate. See Kennick v. Commission on Judicial Performance, 50 Cal.3d 297, 317, 267 Cal. Rptr. 293, 787 P.2d 591 (1990). (finding that judicial misbehavior, though deplorable and clearly calling for censure, fell significantly short of the showings of willful misconduct and prejudicial conduct on which removal orders were based). Taking into account the entire breadth of Lizama's judicial career, the instant case at hand, along with the transcripts provided, lead us to believe that the most appropriate sanctions are continuing legal education and the assessment of costs and expenses. Before resuming the practice of law, if he chooses to do so, Lizama must take the Multistate Professional Responsibility Examination and achieve a passing score in this jurisdiction, as well as reimburse the judiciary for the costs of this disciplinary action. This Court does not wish to minimize Lizama's transgressions, but does not believe that he is unfit to serve on the bench or as a practicing attorney. Now that this Court has informed him of his errors, Lizama should be allowed to continue to serve the Commonwealth in whatever way he so chooses.
IV
For the foregoing reasons, this Court approves the findings of the investigative judge and the SEP. Summary disposition is appropriate, as there are no genuine issues of material fact in dispute. Accordingly, Lizama is ordered to take and successfully pass the Multistate Professional Responsibility Examination and reimburse the judiciary for the cost of investigating and prosecuting this disciplinary action before he may resume the practice of law.
SO ORDERED this 17th day of DECEMBER 2008.
/S/
MIGUEL S. DEMAPAN
Chief Justice