In Re Brown

512 S.W.2d 317

• Court: Texas Supreme Court
• Decided: June 27, 1974
• Docket: B-4229
• Status: Published

Opinions

PER CURIAM.

Section 1-a of Article V of the Texas Constitution provides for the removal or censure of any judge for "willful or persistent conduct, which is clearly inconsistent with the proper performance of his said duties or casts public discredit upon the judiciary or administration of justice ; . . . ”¹ Pursuant to this constitutional directive, the State Judicial Qualifications Commission has recommended to this court the removal from office of David H. Brown, Judge of the 29th Judicial District. Although we have concluded after a full examination of the record that there is evidence of censurable judicial misconduct on the part of Judge Brown, we do not consider this behavior to be so improper as to warrant the removal of Judge Brown from office as recommended by the Commission.

On May 6, 1971, the State Judicial Qualifications Commission instituted a formal investigation of Judge Brown’s conduct in office. Pursuant to Rule 4 of the Rules for Removal or Retirement of the Judges,² the Commission issued a formal notice of proceedings to Judge Brown and requested this court to appoint a master to take evidence on the charges, as provided by Section l-a(8) of the Texas Constitution. We appointed a retired district judge.

A hearing was held before the master and his findings of fact were presented to the Commission. By a preponderance of the evidence, the master found that Judge Brown had engaged in no conduct clearly inconsistent with the proper performance of his judicial duties or casting discredit on the state judiciary.

Dissatisifed with these findings, the Commission ordered the “examiner”³ to file objections to the master’s report as required by Rule 13. The Commission heard oral argument and, following consideration of the record and the report of the master, entered unanimous findings of fact and conclusions of law, finding Judge Brown guilty of misconduct on eight of the ten charges brought for the Commission’s consideration by the examiner. The Commission also added a ninth charge in its findings. By the unanimous vote of its sitting members,⁴ the Commission recommended to this court that Judge Brown be removed from his office as district judge.

I.

As this is the first removal proceeding instituted under Section 1-a of Article V of the Texas Constitution, the procedural aspects of the process should be clarified.

ALTERNATIVES OF THE JUDICIAL QUALIFICATIONS COMMISSION

After making an investigation of charges brought against a judge, the Commission has four alternatives.⁵ First, the Commission may reject the accusations made against the judge. Second, the Commission may issue a private reprimand. The third alternative open to the Commission is public censure. In this instance, the Commission removes the veil of privacy from the incidents under investigation and publicly announces its disapproval of the judge’s misconduct by an order of public censure. Finally, upon the vote of at least five members, the Commission may recommend removal or retirement⁶ by filing such recommendation in this court.⁷ Such action does not of itself remove or retire the judge, but it is the necessary charge or accusation by which this court acquires jurisdiction of this final phase of the matter.

ALTERNATIVES OF THE SUPREME COURT

Once the Supreme Court obtains jurisdiction over the proceedings by virtue of the Commission’s recommendation, it also has four alternatives.⁸ The first alternative is the total rejection of the Commission’s recommendation. Second, the Supreme Court may order the judge’s retirement, in some instances. The third alternative is an order of public censure. The fourth is an order- removing the judge from office.

EVALUATION OF THE EVIDENCE

This is not a criminal proceeding, since the function of the Judicial Qualifications Commission is not to punish but to maintain the high quality of the judiciary. In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954); McDaniel v. State, 9 S.W.2d 478 (Tex.Civ.App.1928, writ ref’d). Consequently, the charges against Judge Brown need not be established by proof beyond a reasonable doubt. Moreover, the decision is not one which is grounded upon substantial evidence which ' supports the Commission’s recommendation. The burden to establish the charges against Judge Brown was upon the examiner, and those charges had to be established by a preponderance of the evidence. See Geiler v. Commission on Judicial Qualification, 10 Cal.3d 270, 515 P.2d 1, 110 Cal.Rptr. 201 (1973); Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141 (1941); Cahill v. Mockett, 143 Neb. 730, 10 N.W.2d 679 (1943); Rea v. Rea, 195 Or. 252, 245 P.2d 884 (1952).

We also need to determine the force and effect of the findings made by the master as well as the findings made by the Judicial Qualifications Commission. Section l-a(8), Article V, Texas Constitution, settles this problem. It empowers the Commission to “recommend to the Supreme Court the removal, or retirement, as the case may be, of the person in question .” It is the Supreme Court which makes the ultimate decision. The master can hear, take evidence and make a report to the Commission. The findings of the master as well as those of the Commission lead to a recommendation by the Commission, but the term “recommend” manifests an intent to leave the court unfettered in its adjudication. This court’s constitutional responsibility cannot be abandoned by the delegation of the fact finding power to an administrative agency or the master. This court must make its own independent evaluation of the evidence adduced below. Geiler v. Commission on Judicial Qualification, supra.

Rule 21(d) authorizes this court, for good cause shown, to permit the introduction of additional evidence.⁹ That rule does not mean, however, that matters may be informally added to the record by letters and memoranda addressed to the clerk or the court. In this proceeding there has been no motion that additional evidence should be adduced and there has been no showing of good cause. Some unsolicited items have been submitted for inclusion within the record, but our deliberations have been based solely on the record developed before and submitted by the master and the Commission, the briefs and oral arguments.

MATTERS IN ABATEMENT

Judge Brown raises several objections to the proceedings as a whole which require discussion. First, petitioner says that his re-election to his office after the commission of the things for which he was charged operates as a complete defense to any disciplinary action. He relies upon Article 5986, Vernon’s Ann.T.C.S., which says:

No officer in this State shall be removed from office for any act he may have committed prior to his election to office.

Article XV, Section 7, of the Texas Constitution authorizes the Legislature to provide for the removal of officers for whom the modes of removal are not provided in the Constitution. This proceeding is authorized by the Constitution, and for that reason Article 5986 is not applicable. However, the spirit of that statute was applied to a proceeding to remove a judge pursuant to Article XV, Section 6, of the Texas Constitution in the case of In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, 808 (1954). The rule was there stated:

“Neither may removal [of judges] be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C.S.”

The rationale for the doctrine is the sound reason that the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official. Reeves v. State, 114 Tex. 296, 267 S.W. 666 (1924). The underlying basis for the principle is that the public can knowingly return one to office in spite of charges of misconduct. Public access to full information was the basis for this court’s approval of the rule in Laugh-lin, supra, as appears from the portion quoted above. Matters of public record or matters which are otherwise known to the electors may be forgiven, says the opinion.

The measure of open disclosure to the public which is contemplated by Laughlin, supra, may be severely limited in the case of investigations of judicial misconduct, prior to the time the Judicial Qualifications Commission files a proceeding in the Supreme Court.¹⁰ Up to that time, unless the acts complained of have otherwise become a matter of public record or known to the public, the Constitution preserves the confidentiality of the information. It was during this stage of the investigation that Judge Brown’s re-election occurred. The master who was conducting hearings in this matter in 1972, admonished Judge Brown’s opponent to respect the confidentiality of the charges against Judge Brown or risk a contempt citation. Hence, a question arises as to whether the voters were sufficiently aware of Judge Brown’s misdeeds for the Laughlin rule to be invoked. However, in view of our decision not to remove Judge Brown, it is unnecessary for us to decide whether or not the acts complained of were so well known to the public, prior to institution of this proceeding, that the prior-term doctrine does or does not apply in this instance. It is enough for us in this case to hold that the doctrine does not apply with reference to a censure of a judge for an act committed during a prior term, whether or not his misconduct was a matter of public record or otherwise known to the public before his re-election.

Judge Brown also complains that the several roles of the Commission — that of investigator, prosecutor and judge — in the removal proceedings defeat the impartial due process hearing to which he is entitled. This same complaint has been considered and rejected in the context of federal administrative agencies and their investigatory-adjudicative roles. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1947); Pang-burn v. C. A. B., 311 F.2d 349 (1st Cir. 1962). Texas has made the same decision. Firemen’s and Policemen’s Civil Service Comm’n v. Hamman, 404 S.W.2d 308 (Tex.1966). Other states with similar removal proceedings have also rejected this due process complaint. In re Kelly, 238 So.2d 565 (Fla. 1970), cert, denied 401 U.S.' 962, 91 S.Ct. 970, 28 L.Ed.2d 246 (1971), rehearing denied 403 U.S. 940, 91 S.Ct. 2245, 29 L.Ed.2d 720 (1971);. In re Judge Edward A. Haggerty, 257 La. 1, 241 So.2d 469 (1970). It should be emphasized that the Commission is not authorized to remove a judge. The Commission can only recommend removal to the Supreme Court, which will consider the arguments and evidence of both sides without attaching any presumption to the findings of the Commission. Any alleged partiality of the Commission is cured by the final scrutiny of this adjudicative body.

II.

ON THE MERITS

The Commission found that Judge Brown was excessively absent from his court during a ten-month period between February 1 and November 30, 1969; that he too readily found persons in contempt of court and injected himself into the affairs of the county attorney and district attorney; that on one occasion during August, 1970, he conducted a brief hearing concerning an accused felon without notification to the accused’s attorney; that during December, 1970, he conducted a second hearing with the same accused felon and tried to persuade him to plead guilty, which hearing was also held without notice to the attorney; that during June, 1970, he authorized the electronic interception of conversations between an accused felon and his attorney; and that while acting as Independent Executor of the Kern Estate, he failed to include in the inventory of the estate his own personal promissory note which he owed the estate.

The Master received testimony for approximately two weeks. He heard a very large number of witnesses including some seventy-three lawyers who practiced before Judge Brown in Collin and Grayson Counties ; i. e., in Sherman and McKinney, Texas. Some ten attorneys gave testimony adverse to Judge Brown. The testimony of three or four was bitter; some of their testimony was addressed to Judge Brown’s absence from the county during his arbitration activities, but most of these witnesses had other problems with Judge Brown.

On the other hand, some fifty-eight attorneys testified favorably of Judge Brown. These included the President of the local bar association, the President of the Dallas Criminal Bar and the Chairman of the State Bar’s Section on Criminal Law. Several testified that Judge Brown was always available; that they never had any trouble getting in touch with him ; that they had no trouble getting settings of their cases; that Judge Brown not only kept up with his docket but moved it ahead; that he did not unduly push lawyers practicing before him; that he was industrious, studious, impartial, diligent, courteous, dignified, punctual, and efficient. Others added that he was “coldly efficient” but fair; that he ran a “good tight court;” that he started his court at 8 a. m., worked hard, and made the lawyers “hustle;” that he expected the lawyers and others to be present on time and prepared; and that the court room decorum was excellent.

Removal from office is not the price exacted for every judicial mistake and misdeed. Appellate courts through their review of proceedings afford correctives in most departures from judicial standards. It is the willful or persistent misconduct with which we are here concerned. Judge Brown’s use of his contempt powers, his lectures to the county attorney and district attorney concerning the conduct of their offices, and his conducting two hearings in the absence of the accused person’s counsel were improper, but are not acts which justify disciplinary action. We refuse to discipline Judge Brown with respect to the Kern note, since the misconduct charged as to the note was not proved by a preponderance of the evidence.

As the matter reaches us, there are two main areas of concern as to Judge Brown’s conduct — his serving as an arbitrator or mediator for extended periods of time and his authorization of electronic surveillance [bugging] of a conference room for the purpose of recording conversations between a person accused of a crime and his attorney.

ARBITRATION ACTIVITIES

At the time Judge Brown acted as a mediator or arbitrator, his conduct was not an improper act in itself. If he had acted as a mediator only once, or only in isolated instances, probably no complaint would have been filed against him, because acting as mediator or arbitrator was not then a violation of any canon of ethics. Since that time, the Code of Judicial Conduct of the American Bar Association has been amended to provide that “A judge should not act as an arbitrator or mediator.”¹¹ This court now has before it the question of whether Texas should adopt a similar canon.¹²

The commentary under the American Bar canon recognizes that valuable services have been rendered in the past by judges appointed to undertake extra-judicial assignments. It states that, “The appropriateness of these assignments of judges must be reassessed, however, in the light of the demands on judicial manpower created by today’s crowded dockets ”¹³

Before the effective date of the revision of the American Bar Association’s canons, Judge Brown had voluntarily ceased to act as an arbitrator. He has not done so since 1970, so the real question is whether Judge Brown, in acting as an arbitrator or mediator, so neglected the work of his court, or was absent from it for so great a time, as to be guilty of willful or persistent conduct which was clearly inconsistent with the performance of his duties or which casi discredit upon the judiciary.

The fact that Judge Brown was paid for his work as a mediator is relevant but not controlling. The problem of flagrant and extended neglect of judicial duties would be the same if the judge absented himself, or did not properly attend to his duties, for any number of reasons, or for no reason at all. The evidence, therefore, which is set out below is relevant as to whether the judge properly attended to his duties or so absented himself as to warrant removal or censure.

Judge Brown testified, without dispute, that the major portion of the arbitration work consisted of the reading of briefs and written records. He testified that he did a good deal of this at home after hours, at night, and on weekends, and that many of the “full days” for which he received pay as an arbiter were spent in such work.

Judge Brown also was out of his district and out of the State for a number of days. A dispute apparently exists as to how many. The Master found that Judge Brown was absent from his court for a total of forty-seven days during 1969 and 1970. This is a substantial amount of time, and the Judicial Qualifications Commission was understandably and commendably concerned. The problem, however, is whether Judge Brown absented himself, or neglected his court and his judicial duties to the extent that his conduct amounts to “willful or persistent conduct which is clearly inconsistent with the performance of his said duties . . ..”

It is a good rule that a judge should give his full working time to his court and to such other judicial duties of the State of Texas to which he is assigned and which he accepts. From a preponderance of the evidence and under all the circumstances in this record, however, the conduct of Judge Brown in acting as an arbiter or mediator was not such as to merit his removal or public censure; and he did not neglect the work of his court, in acting as arbiter, to such a degree as to require disciplinary action.

ELECTRONIC SURVEILLANCE

The incident about which there was the most controversy in the hearing before the Master was the electronic surveillance of a criminal defendant and his lawyer. A defendant was accused of murder and was in the local county jail. Two explanations of what occurred were given, one by the sheriff and one by Judge Brown. They do not agree in important particulars. According to the sheriff, the accused had told him that he wanted to tell the sheriff about the murder, whereupon the sheriff instructed the prisoner to cease talking to him when his attorney was not present. The sheriff said he was disturbed about the jail security and the possibility of attempted suicide by the prisoner. The sheriff asked Judge Brown’s permission to record a conversation between the prisoner and his parents to see if the prisoner planned suicide, but the sheriff said he did not intend to intercept any conversation between the accused and his attorney.

Judge Brown testified differently. He said that he had information that the prisoner wanted to plead guilty, but that his court-appointed attorney would not permit such a plea. Judge Brown’s testimony was that he wanted to ascertain “whether the boy was being properly represented, whether he was telling the truth to the officers.” Judge Brown said that he so told the sheriff, but the sheriff did not recall the conversation. The accused prisoner testified in this hearing, that outside the presence of the accused’s attorney, Judge Brown had tried to persuade him to plead guilty; that "he did not want to plead guilty, and that the sheriff also tried to get him to plead guilty.

Judge Brown authorized the sheriff to use a tape recorder to monitor the prisoner’s statements. The recorder was set up for use on a Saturday when the family of the accused would be expected to visit the accused. The family came and so did the accused’s attorney. All were taken to the room where the equipment was in place and was already running so that it could not be turned off. The sheriff testified that he had not expected the attorney to come with the family. The tape recorder did not operate properly and nothing audible was recorded. The next Saturday the same persons came to see the accused and again the equipment was in place and again nothing audible was recorded.

There was no suggestion that the attorney was about to commit any criminal offense for, or with, the accused. No matter of jail security was involved under Judge Brown’s testimony.

There were a number of accusations by attorneys antagonistic to Judge Brown that he was, in effect, trying to take over “law and order” in his district; that he had sair¹ that he was the “chief law enforcement officer” in the county, and that he was going to reduce the crime rate. This was strongly denied, and there was substantial testimony to support the negative of the assertions. There was also testimony that Judge Brown was trying to protect the prisoner from a more severe penalty by being sure that if the prisoner wanted to plead guilty, his lawyer should not keep him from doing so. Judge Brown testified that this was his motivation.¹⁴

Though a preponderance of the evidence establishes Judge Brown’s improper authorization of electronic eavesdropping, we conclude upon review of the record that this misconduct does not warrant our ordering his removal from office. We recognize, however, that Judge Brown in ordering the surveillance willfully committed misconduct by intruding his judicial role into the confidential relations of an accused and his attorney. This conduct was also overt evidence that Judge Brown improperly confused his judicial functions with those of the law enforcement agencies.

Judge Brown should be reprimanded, or to use the constitutional term, he should be and is censured.

Concurring opinion by DANIEL, J. Dissenting opinion by REAVLEY, J., in which WALKER, J., joins. Dissenting opinion by SAM D. JOHNSON, J.

1 . Tex.Const., Art. Y, Sec. 1-a (6), par. A, Vernon’s Ann.St.:

“(6) A. Any Justice or Judge may, subject to the other provisions hereof, be removed from office for willful or persistent conduct, which is clearly inconsistent with the proper performance of his said duties or casts public discredit upon the judiciary or administration of justice; or any person holding such office may be censured, in lieu of removal from office, under procedures provided for by the Legislature.”

2 . All references to Rules unless otherwise specified are to the Rules for Removal and Retirement of Judges, Adopted and Promulgated by the Supreme Court of Texas (1966).

3 . The Commission designated an assistant attorney general as examiner to investigate the charges and to present evidence before the master. Rules for Removal and Retirement of Judges, 1(e). The same assistant attorney general argued the cause for the Commission before this Court.

4 . Judge R. C. Vaughn recused himself from all proceedings before the Commission involving Judge Brown.

5 . Tex.Const., Art. V, Sec. 1-a (8) :

“(8) After such investigation as it deems necessary, the Commission may in its discretion issue a private reprimand, or if the Commission determines that the situation merits such action, it may order a hearing to be held before it concerning the removal, or retirement of a person holding an office named in Paragraph A of Subsection (6) of this Section, or it may in its discretion request the Supreme Court to appoint an active or retired District Judge or Justice of a Court of Civil Appeals as a Master to hear and take evidence in any such matter, and to report thereon to the Commission. If, after hearing, or after considering the record and report of a Master, the Commission finds good cause therefor, it shall issue an order of public censure or it shall recommend to the Supreme Court the removal, or retirement, as the case may be, of the person in question holding an office named in Paragraph A of Subsection (6) of this Section and shall thereupon file with the Clerk of the Supreme Court the entire record before the Commission.”

6 .Rule 17(b) :

“(b) The affirmative vote of five members of the Commission who have considered the record and report of the master and who were present at any oral hearing as provided in Rule 14, or when the hearing was before the Commission without a master, of five members of the Commission who were present when the evidence was produced, is required for a recommendation of removal or retirement of a judge. If five votes, as described, are not cast for a recommendation of removal or retirement, an order of dismissal shall be entered.”

7 . “Rule 20. Certification of Commission Recommendation to Supreme Court. Upon making a determination recommending the removal or retirement of a judge, the Commission shall promptly file a copy of the recommendation certified by the chairman or secretary of the Commission, together with the trancript and the findings and conclusions, with the clerk of the Supreme Court, and shall immediately send the judge notice of such filing, together with a copy of such recommendation, findings and conclusions.”

8 . Tex.Const., Art. V, Sec. I-a(9) :

“(9) The Supreme Court shall review the record of the proceedings on the law and facts and in its discretion may, for good cause shown, permit the introduction of additional evidence and shall order public censure, retirement or removal, as it finds just and proper, or wholly reject the recommendation. Upon an order for involuntary retirement for disability or an order for removal, the office in question shall become vacant. The rights of an incumbent so retired to retirement benefits shall be the same as if his retirement had been voluntary.”

9 . Rule 21(d) :

“(d) The Supreme Court may, in its discretion and for good cause shown, permit the introduction of additional evidence, and may direct that the same be introduced before the master or the Commission and be filed as a part of the record in the Court.”

10 . Tex.Const., Art. V, See. l-a(10) :

“(10) All papers filed with and proceedings before the Commission or a Master shall be confidential, and the filing of papers with, and the giving of testimony before, the Commission, Master or the Supreme Court shall be privileged; provided that upon being filed in the Supreme Court the record loses its confidential character.”

11 . Canon 5E, Code of Judicial Conduct, American Bar Association, 1972.

12 . The Judicial Section of the State Bar of Texas has recommended that this court promulgate an amended Code of Ethics for the Texas judiciary. Partly because of the pend-ency of Judge Brown’s case, the court has not yet acted on this recommendation.

13 .Commentary under Sections E, E and G of Canon 5, swpra, note 11.

14 . The prisoner received a death penalty. That conviction was reversed. Easley v. State, 493 S.W.2d 199 (Tex.Or.App.1973). On the second trial, Easley received a sentence of 300 years.

1 . Tex.Const.. Art. V, See. l-a(2).