IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,955
In the Matter of DAVID R. PLATT, Respondent.
ORIGINAL PROCEEDING RELATING TO JUDICIAL CONDUCT
Original proceeding relating to judicial conduct. Opinion filed June 16, 2000.
Public censure.
Edward G. Collister, Jr., of Lawrence, examiner for the Commission on Judicial Qualifications, argued the cause and was on the brief for the petitioner.
Thomas D. Haney, of Fairchild, Haney & Buck, P.A., of Topeka, argued the cause and was on the briefs for the respondent. David R. Platt, respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline involving David R. Platt, a District Judge of the 8th Judicial District (Respondent). In a formal proceeding before the Commission on Judicial Qualifications (the Commission), Respondent was charged with two counts alleging violations of the Code of Judicial Conduct (the Code). Supreme Court Rule 610A (1999 Kan. Ct. R. Annot. 461). Following a formal hearing, the Commission recommends the discipline of public censure. The Commission concluded:
"[W]ithout dissent, the Commission on Judicial Qualifications recommends that Respondent be disciplined by public censure for violations of Canons 1; 2A; 3B(1), (5) and (7); 3C(1); and 3E(1) of the Rules of the Supreme Court Relating to Judicial Conduct. The Commission further notes that the effect of each of these violations was to the professional and financial detriment of those against whom the Respondent had expressed either bias or prejudice or a concern about the appearance of bias or prejudice. The clients of those attorneys likewise suffered a detriment.
"Canon 1 provides that an independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. Provisions of this code should be construed and applied to further that objective. The violations described above are not of the high standards required by the Code of Judicial Conduct and thus raise questions about the integrity of the judiciary.
"This recommendation for public censure is made after consideration of the fact that Respondent has previously been admonished for a violation of Canons 2A and 3B(7) after a hearing on Notice of Formal Proceedings in Commission on Judicial Qualifications Docket No. 612 and has stipulated to a cease and desist order in lieu of hearing on Notice of Formal Proceedings in Commission on Judicial Qualifications Docket No. 652."
Respondent takes exception to and appeals from the Commissions' findings, recommendation, and refusal to recuse itself from hearing his case.
A majority of the court adopts the recommended discipline of public censure. "'Discipline' means public censure, suspension or removal." Supreme Court Rule 620 (1999 Kan. Ct. R. Annot. 498). The minority would impose either suspension for a definite period or removal.
RESPONDENT'S ISSUES
The issues raised by Respondent are whether: (1) the Commission's findings of fact and conclusions of law are supported by clear and convincing evidence; (2) the Commission's consideration of a prior admonishment and cease and desist order in reaching a disciplinary recommendation was appropriate; (3) the Examiner failed to disclose or withheld exculpatory evidence; (4) the Commission procedures violated either the Kansas or United States Constitution separation of powers provisions; (5) the Commission procedures violated equal protection principles; (6) the Respondent's right to procedural and substantive due process was violated by the participation of nonlawyer commission members in the decision-making process; (7) the Commission failed to properly recuse itself from hearing this case; and (8) the Respondent received a fair and impartial hearing under applicable statutes, rules, and regulations of the Commission.
THE COMMISSION HEARING
In December 1998, a Notice of Formal Proceedings was filed with the Commission under Supreme Court Rule 611(b) (1999 Kan. Ct. R. Annot. 494) alleging violations of the Code of Judicial Conduct, Canons 1 (1999 Kan. Ct. R. Annot. 465); 2A (1999 Kan. Ct. R. Annot. 465); and 3B(1), (5) and (7); 3C(1); and 3E(1) (1999 Kan. Ct. R. Annot. 466).
At the August 16, 1999, Commission hearing, the Examiner and the Respondent called witnesses, introduced evidence, and presented arguments. A unanimous eight-member Commission made findings of fact and conclusions of law establishing violations of the Canons charged. Commission members present for the hearing were: David J. Waxse, an attorney, Chair pendente lite; District Magistrate Judge Kathryn Carter; Chief Judge J. Patrick Brazil, of the Kansas Court of Appeals; Ray Call, a lay member; Robert A. Creighton, an attorney; Senior Judge James W. Paddock; Carol Sader, a lay member; and Mikel L. Stout, an attorney. District Judge Theodore B. Ice did not participate.
The specific Canons charged and found by the Commission to have been violated provide in part:
"CANON 1
"A Judge Shall Uphold the Integrity and Independence of the Judiciary
"A judge. . . shall. . . observe those standards so that the integrity and independence of the judiciary will be preserved. . . 1998 Kan. Ct. R. Annot. 449.
"2. Canon 2 of the Rules of the Supreme Court Relating to Judicial Conduct, as set out in Rule 601A of the Rules of the Kansas Supreme Court provides, inter alia:
"A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities
"A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 1998 Kan. Ct. R. Annot. 449.
"3. Canon 3 of the Rules of the Supreme Court Relating to Judicial Conduct, as set out in Rule 601A of the Rules of the Kansas Supreme Court provides, inter alia:
"A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
"B. Adjudicative Responsibilities.
(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.
. . . .
(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so.
. . . .
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
. . . .
"C. Administrative Responsibilities.
(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.
. . . .
"E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . . .
"Commentary
"Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules of Section 3E(1) apply.
. . . .
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding. 1998 Kan. Ct. R. Annot. 450-455."
Respondent answered, denying the allegations. He asserted that the procedures established by the Commission are fundamentally unfair and violate constitutional safeguards.
A review of the hearing is helpful in understanding the Commission's findings.
The proceedings began with opening statements by the Examiner and Respondent. The Examiner explained that the complaint against Respondent stemmed from Respondent's disqualification policy with respect to several attorneys. In 1995, Respondent decided he would not hear newly filed cases from the Junction City law firm of Hoover, Schermerhorn, Edwards, Pinaire and Rombold (the "Hoover firm"). The Hoover firm attorneys were Richard Pinaire, Peter C. Rombold, and Mark Edwards. In 1997, Respondent decided he would no longer hear cases filed by a solo practice Junction City attorney, Walter P. Robertson. Respondent also established an "informed consent policy." Members of the Hoover firm and Robertson could appear before him, but only if they obtained, in writing, an informed consent document from their client. Respondent refused to disqualify himself from ongoing cases involving either the Hoover firm or Robertson. In the Examiner's view, Respondent's behavior in setting his policy of refusing to hear certain cases without an "informed consent" violated the Code. Specifically, the Examiner argued, the policy does not conform to the procedure set forth in Canon 3E and F (1999 Kan. Ct. R. Annot. 466) for disqualifying oneself from hearing cases. In addition, the Examiner argued that the manner in which the Respondent dealt with the attorneys and their clients evidenced further violations of the Code.
We note here, to aid the reader, that these "informed consent" documents were to explain to the clients of the Hoover firm that Respondent did not normally hear cases from the firm, but the case would proceed if the client consented. Respondent never formally instructed the Hoover firm as to the exact language required for the informed consent. Examples of informed consents are included in the Commission's findings which are set out in our opinion. (Finding of Fact 4, Count I, a form used by Pinaire, Finding of Fact 4, Count II, the Robertson form.) Respondent did instruct Robertson as to the content of his informed consent documents.
The Respondent countered the Examiner's contentions, asserting that his disqualification policy conformed to the Canons. He explained that he and the other judges of the 8th Judicial District were informed of a lawsuit filed by the Hoover firm naming the district as a defendant. At that time, he and other judges expressed a concern that hearing cases from the Hoover firm would create an appearance of impropriety. Respondent therefore established his disqualification policy, refusing to hear cases from the Hoover firm. Respondent contends Judges Bengtson, Johnson, and Powers all initially advised the Hoover firm that they would not hear its cases.
There were different reasons for the disqualification with respect to Robertson. Respondent decided not to hear Robertson's cases because "Mr. Robertson had not been truthful with me and the requirement of candor to a tribunal I felt had been violated and considered actually filing a complaint with the disciplinary administrator." Respondent did not file a complaint, but did write to Robertson and explain he would no longer hear Robertson's cases.
Respondent sees nothing improper about his informed consent policy, likening it to a Canon 3F "remittal of disqualification." Respondent denied a personal bias or prejudice toward the Hoover firm, but admitted he expressed a personal bias toward Robertson. Respondent viewed the conflict with the Hoover firm as one of the firm's own making. In other words, because the Hoover firm filed the lawsuit, the firm created the conflict, and the firm had the burden of remedying the conflict. Respondent expressed the view that it was the responsibility of the attorneys involved to file a K.S.A. 20-311d disqualification motion if they had any problems with his policy. Respondent also expressed a concern that the attorneys were "judge shopping" or using his disqualification for a tactical advantage.
The Testimony
Administrative (Chief) Judge Michael Powers was called by Respondent. He testified that, although a concern was expressed about a conflict, none of the judges other than Respondent instituted a formal disqualification policy. Respondent did not discuss his policy with Judge Powers before implementing it. When asked about the lawsuit, Judge Powers stated the district's name was deleted from the caption of the suit shortly after it was filed. Judge Powers also testified that the petition did not name any specific judge of the district.
Lawyers from the Hoover firm also testified. Pinaire first learned of Respondent's disqualification policy in December 1995 when he came before Respondent in a contested divorce case. Pinaire represented the husband, a soldier stationed in Korea. The soldier had traveled to Junction City from Korea for the hearing. Upon arriving at the courthouse for the hearing, Pinaire was informed Respondent would not hear the case. Pinaire contacted Judge Powers. Respondent then agreed to hear the soldier's testimony for preservation purposes only. The case was heard by Judge Scott 10 months later. The soldier traveled from Korea a second time to attend the contested hearing before Judge Scott. Respondent failed to inform Pinaire or the Hoover firm of his new policy before Pinaire and his client arrived at the courthouse for the hearing.
Rombold, another member of the Hoover firm, learned of Respondent's policy when he was scheduled to appear before Respondent on a domestic case. In that instance, Judge Bengtson announced that Respondent had recused himself from the case. This was the first time Rombold heard of the disqualification policy. Respondent never communicated the parameters of his policy nor the basis for it to Rombold. On the next occasion Rombold was to appear before Respondent, Respondent asked Rombold to prepare an informed consent or the case could not proceed.
It then became understood to members of the Hoover firm that Respondent would not hear their cases unless they obtained an informed consent document from their clients. Cases filed by the Hoover firm would be assigned to a different judge. However, in ongoing cases in which the Respondent was already involved, and new cases in which the Hoover firm entered as defense counsel, the informed consent policy would apply. In other words, the disqualification policy came to be selectively enforced by Respondent. For example, in a later case in which Rombold appeared on behalf of a DUI defendant, Respondent did not recuse, but asked Rombold to obtain an informed consent from his client. The case proceeded after Rombold prepared and filed the consent. (Respondent did not create a form. Drafting was left to the attorneys.)
Edwards of the Hoover firm also testified. Edwards did not use a written form in his dealings with Respondent. In a contested custody hearing, Respondent asked Edwards whether his client knew Respondent did not hear Hoover firm cases. Edwards then stated for the record, "Judge Platt for some reason doesn't like our law firm and he doesn't hear our cases, now if you want me to go forward we will but you're going to need to acknowledge to the judge that you have been informed about this." After the client acknowledged these remarks, the case proceeded. In a second case where the same exchange occurred, the client did not agree to proceed. The case was then reassigned.
Later, Respondent modified his informed consent policy again. He decided he should remain on a case despite an appearance by the Hoover firm or Mr. Robertson, even if the client did not wish to give informed consent. In another case assigned to Respondent, Rombold entered an appearance but also filed a motion for recusal under K.S.A. 20-311d. Rombold sent a copy of the motion to Administrative Judge Powers. Respondent refused to recuse and insisted on hearing the case. Respondent suggested that Rombold file an affidavit with the administrative judge (Judge Powers) because it was Rombold's conflict and not the Respondent's conflict. Upon seeing the 20-311d motion, Judge Powers automatically reassigned the case, believing it error that the case was ever assigned to Respondent in the first place. At this time, Rombold and Edwards concluded that Respondent now wished them to file 20-311d motions for recusals in cases assigned to Respondent.
Robertson also testified. Respondent wrote a July 24, 1997, letter to Robertson stating he had a bias against Robertson because of some "untruthful statements" allegedly made by Robertson. The alleged untruthful statements related to a woman named Javette Campbell. These facts are lengthy, but assist in understanding the actions Respondent took toward Robertson.
Campbell is the juror at the center of Respondent's first judicial disciplinary proceeding (Docket 612), resulting in admonishment. Campbell failed to appear on numerous occasions for jury duty. As a result, Campbell was arrested several times on bench warrants. Later, Respondent issued a bench warrant and instructed on the warrant that no bond would be set.
A friend of Campbell's, a client of Robertson's, contacted him on behalf of Campbell. Robertson went to the courthouse to examine the Campbell file. He was told that Respondent kept the Campbell file in his chambers. Robertson went to Respondent's chambers to view the file. Robertson asked Respondent's secretary to speak with Respondent. The secretary said, "No you may not." She further said, "He has told me to tell you and all other attorneys that he will see them in court if they want to assist Javette Campbell." Robertson decided not to handle the case himself. He contacted three attorneys to ask whether they might help Campbell. Tom Barnes, a Topeka attorney, indicated he might represent Campbell. Robertson then wrote to Campbell informing her Barnes might take her case. At the request of Barnes, Robertson copied the Campbell court file and mailed it to Topeka. According to the record here, that was the substance of Robertson's involvement in the Campbell case. Campbell was incarcerated and later released on a K.S.A. 60-1507 habeas corpus petition after spending approximately 40 days in jail. Respondent incarcerated Campbell without formally finding her in contempt and without formally imposing a sentence. The Commission found:
"There was no court hearing where Ms. Campbell had been confronted with an accusation in contempt, where she was determined to be in contempt, or where a sentence of six months incarceration had been imposed.
"Ms. Campbell was confined for approximately 40 days, and, in addition, a Child in Need of Care (CINC) action was commenced against her in the District Court of Geary County, Kansas, because she was unable to care for her children while incarcerated."
At a May 1996 hearing on a matter unrelated to Campbell pending before Respondent, Respondent informed Robertson, in open court, that Respondent should recuse himself from all of Robertson's cases. Respondent asked whether Robertson was going to sue him on behalf of Campbell. Robertson replied, "Judge, I'm not going to sue you, I'm not involved in those cases." Later, during the Commission proceedings involving Campbell's incarceration, Respondent obtained from the Examiner the letter written by Robertson to Campbell. Respondent then wrote the July 24, 1997, letter to Robertson stating he would no longer hear Robertson's cases because Robertson had been untruthful about his involvement in the Campbell case.
Robertson had no further proceedings in front of Respondent except for an uncontested divorce. Robertson submitted a proposed agreed-upon journal entry and a signed client informed consent form. In another case, Robertson asked Respondent to recuse. Robertson represented a client, T.J., in a medical malpractice action. T.J.'s leg had to be amputated after it became infected. (The malpractice action was not before Respondent.) T.J. then sought Robertson's aid in having a divorce settlement set aside. The divorce case was already before Respondent. T.J. did not wish to sign an informed consent but wished to retain Robertson as her attorney. Robertson wrote to Respondent and attached a 20-311d motion on July 29, 1998. Robertson filed the motion on August 3. The hearing was set for August 10. Robertson received no response to his letter or motion. Because of a scheduling conflict, Robertson asked another attorney to appear for him and request a continuance at the August 10 hearing. (Robertson informed Respondent of the conflict in his July 29 letter.)
At the August 10th hearing, Respondent refused to recuse himself. In a journal entry reflecting his ruling, Respondent stated there was "no valid reason for th[e] Court to voluntarily recuse." Respondent stated that the only way he would hear Robertson's case was with an informed consent. Respondent also made a veiled threat of referring Robertson to the Disciplinary Administrator if Robertson attempted to appear without the informed consent. Upon hearing these statements, T.J., according to Robertson, was "very upset, tearful." She eventually terminated Robertson's services and hired alternate counsel. Robertson went to the Geary County courthouse to listen to the tape recording of T.J.'s August 10th post-divorce matter. He testified before the Commission:
"Well, I've got to say the reason I listened to this tape at least three times is I couldn't, it was hard to determine his [Respondent's] position, there's at least two or three positions on this tape. He says that he's going to, he will not recuse himself, he then says that if I file a motion he may recuse himself, and then he says that if I enter a case without an informed consent and that results in delay of the case he will refer the matter to Stan Hazlett, disciplinary administrator, and so I don't -- since I've never talked to Judge Platt, I've written him a few letters, none of which he's ever responded to, it has been my understanding that he was not going to recuse himself and that if I came, attempted to come in without an informed consent something bad would happen to me. Now what that bad thing was going to be I don't know."
Respondent's testimony mirrored his opening statement. Respondent denied a personal bias toward the Hoover firm. He simply believed there was an appearance of impropriety in his handling cases from the Hoover firm. His rationale for refusing to disqualify himself in certain cases was twofold. First, he viewed the conflicts as the attorneys', not his. Second, in cases already pending before him, he did not automatically recuse because he did not want the attorneys to "judge shop" or cause delay. Respondent argued a Hoover firm attorney might enter an appearance in a case pending before Respondent so that the case would automatically be transferred to another judge. When asked by the Examiner whether such a situation had ever presented itself, Respondent admitted no such event had occurred.
The Examiner also questioned Respondent about the lawsuit that prompted his disqualification policy with the Hoover firm. Respondent stated there were rumors circulating about the underlying facts of the case. The substance of the rumors was not discussed. However, the rumors, according to Respondent, were bordering on a scandalous nature, and he testified, "I think in the rumors that were circulating I think that my name had been mentioned there, though." Respondent admitted none of the Hoover attorneys were responsible for the rumors. Respondent also admitted he was neither a party defendant nor a person identified as sharing responsibility for the wrongs alleged in the lawsuit filed by the Hoover firm. In fact, that lawsuit was dismissed in 1998, but Respondent did not change his disqualification policy, and it continued up until today.
THE COMMISSION'S FINDINGS AND CONCLUSIONS
The Commission set out its findings and conclusions in its September 30, 1999, opinion.
"COUNT I
FINDINGS OF FACT
"The Commission concludes the following facts are established by clear and convincing evidence.
"1. That from a period of 1995 to 1999, Respondent for a reason then unknown to the Hoover, Schermerhorn, Edwards, Pinaire and Rombold law firm informed Mark Edwards, Richard Pinaire and Peter Rombold that any new causes filed by their firm which might be assigned to him through the standard procedure of rotating assignment would be re-assigned randomly to another judge, and he would not hear those cases. Respondent did not disclose on the record the basis of his disqualification and ask the parties and their attorneys to consider out of his presence the basis of his disqualification, as would have been required by Canon 3F. He informed the members of that law firm that they would have to secure a document called an 'informed consent before he could hear any case in which they wished to appear which was either already filed and assigned to the Respondent, or assigned to Respondent prior to institution of the new procedure with new matters to be hear, such as a post divorce matter.
"2. Respondent did not disqualify himself in those cases in which a Hoover law firm attorney appeared which had been assigned to Respondent prior to the adoption of the policy preventing assignment to him of new Hoover law firm cases.
"3. The Respondent perceived an appearance of impropriety in his hearing cases in which a member of the Hoover law firm appeared, and that his impartiality might reasonably be questioned.
"4. The 'informed consent' consisted of the following:
'COMES NOW Richard A. Pinaire, of the law firm of Hoover, Schermerhorn, Edwards, Pinaire, & Rombold, and hereby gives notice to the Court that [client] has been informed that the Honorable David Platt is not assigned cases in which the law firm of Hoover, Schermerhorn, Edwards, Pinaire & Rombold is participating when said firm files cases in the District Court of Geary County, Kansas and that said Honorable Judge does not automatically recuse himself from cases that are assigned to him which are filed by other parties originally, in which said law firm enters its appearance.'
'Furthermore, the Court is advised that [client] has no objection to have this Court approving the proposed Journal Entry which has been submitted for approval based upon the understanding that this matter is being resolved on an uncontested basis.'
"5. On or about May 24, 1999, a member of the Hoover law firm filed a Motion for Recusal in Geary County District Court case 97D912, Hay vs. Hay, which was assigned to the Respondent. The Respondent denied the motion and did not disqualify in that matter.
"COUNT I
CONCLUSIONS OF LAW
[The Commission set out the Canons charged in the Notice of Formal Proceedings. All were found to have been violated.]
"4. The Respondent's informed consent policy and failure to disqualify himself with regard to cases involving the Hoover, Schermerhorn, Edwards, Pinaire & Rombold law firm while his impartiality might reasonably be questioned violates the Canons heretofore cited. If, in any proceeding in which a member of the Hoover law firm appears, the Respondent's impartiality might reasonably be questioned, or there exists an appearance of impropriety, then the Respondent shall disqualify himself each and every time one of the firm attorneys appears in a case assigned to him.
"COUNT II
FINDINGS OF FACT
"1. On July 24, 1997, Respondent wrote a letter to Walter P. Robertson, a Junction City attorney, reflecting bias and prejudice against Mr. Robertson informing him 'I don't believe it would be appropriate for me to hear any of your cases.' The letter set out the procedure to be followed by which any new case filed by Mr. Robertson which would be assigned to the Respondent by the standing procedure of rotating assignment would be automatically reassigned to another judge. The Respondent informed Mr. Robertson that cases currently pending would be reassigned and
'Any cases that are assigned to me that you wish to enter an appearance on is entirely up to you, but I would need written informed consent from your client that they have no problem with you appearing in front of me.'
"2. For any case already filed in Respondent's division the attorney was to obtain an 'informed consent' to appear in the case. Such might occur when a new case was filed and Mr. Robertson would represent a defendant after the case had been assigned by a clerk to Respondent, or when old cases assigned to Respondent prior to the adoption of the policy preventing assignment to him in new Robertson cases had new matters to be heard, such as a post divorce matter, and Mr. Robertson desired to appear on a the new matter.
"3. Respondent did not disqualify himself in the latter groups of cases when Mr. Robertson appeared in a case previously assigned to Respondent.
"4. The 'informed consent' consisted of the following:
"I, [client] hereby acknowledge that I have been informed by my attorney, that I must give a written consent in order that the Honorable David R. Platt, hear the Order for Annulment in this matter. I am informed that Judge Platt has a bias against my attorney, but I believe that since there is no property, no debts, no children, nor maintenance involved in this matter, and this case is uncontested, I feel he should be able to grant a decree in this matter without any bias to me. I am therefore consenting to such hearing by Judge Platt.
"5. That on August 3, 1998, Mr. Robertson filed a Motion for Change of Judge in the case of Jenkins v. Jenkins, Case No. 98 D 00352, when a pre-existing client of Mr. Robertson wished her lawyer, Mr. Robertson, to represent her as respondent in a newly filed divorce action and did not wish to sign an 'informed consent.' On August 10, 1998, Judge Platt, at a pre-trial hearing denied the motion.
"COUNT II