Inquiry Concerning a Judge

822 P.2d 1333, 1991 Alas. LEXIS 138, 1991 WL 256315
CourtAlaska Supreme Court
DecidedDecember 6, 1991
DocketS-3675
StatusPublished
Cited by8 cases

This text of 822 P.2d 1333 (Inquiry Concerning a Judge) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inquiry Concerning a Judge, 822 P.2d 1333, 1991 Alas. LEXIS 138, 1991 WL 256315 (Ala. 1991).

Opinions

OPINION

CUTLER, Chief Justice, Pro Tern.

This is a petition to reject a determination made by the Judicial Conduct Commission on December 7, 1989. The Commission found that petitioner violated several [1336]*1336judicial canons and recommended that petitioner be publicly admonished. Petitioner challenges the Commission’s determination that there were violations as well as the Commission’s recommendation for a public admonition. The petition is brought pursuant to Appellate Rule 406. We accept the Commission’s recommendations in part and reject them in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was an officer, director and shareholder of City Mortgage Corporation (CMC). Petitioner also is a justice of the Alaska Supreme Court. Petitioner held both of these positions throughout 1987. Preceding and during 1987, CMC managed a portfolio of home and mobile home loans made by a state public finance corporation, the Alaska Housing Finance Corporation (AHFC). In 1987, AHFC sued CMC in state court for money that CMC had withheld from AHFC. The case was assigned to Superior Court Judge Peter Michalski. CMC counterclaimed for breach of contract, claiming the money withheld was for expenses incurred in its management of mobile homes covered by foreclosed AHFC mortgages. CMC sought reimbursement for the management expenses.

AHFC requested that CMC participate in a settlement conference. Petitioner was asked to be one of three members of a settlement panel. The proposed settlement, if one were reached, would be put to the Boards of Directors of AHFC and CMC. Petitioner agreed to be on the settlement panel.

On November 6, 1987, petitioner met with Charles Evans, counsel for AHFC. Petitioner and Evans agreed on the format and procedures for presenting evidence to the settlement panel. They also agreed to file a stipulation with Judge Michalski to delay rulings on certain motions then pending in the case. Later that afternoon, petitioner met Judge Michalski by chance in the courthouse parking lot and verbally related the stipulation to him. Judge Mi-chalski requested that petitioner put their discussion into writing and send it to Evans.

On November 9 and 10, 1987, petitioner sent three letters to Evans. These letters were sent on petitioner’s judicial “chambers” stationery and were typed by his secretary at the supreme court. The first letter, dated November 9, confirmed the agreement between petitioner and Evans regarding the procedures to be followed by the three-member settlement panel for hearing evidence. The second letter, also dated November 9, informed Evans that petitioner had encountered Judge Michalski in the courthouse parking lot. The third letter, dated November 10, confirmed petitioner’s mailing of a settlement package to Evans.

On November 14, 1987, the settlement panel negotiated a settlement. The proposed settlement recommended that AHFC pay CMC $578,000 in exchange for CMC’s release of claims against AHFC. The settlement subsequently was approved by CMC’s Board of Directors. It was disapproved, however, by AHFC’s executive director, Ron Lehr, and its attorney, Evans. Nonetheless, AHFC was required to present the proposed settlement at a public hearing to decide whether to accept the settlement. The hearing was’ scheduled for December 10, 1987.

Petitioner learned prior to the public hearing that Lehr intended to use his influence with the Governor to delay or cancel the public hearing. Petitioner called the Governor’s office on December 7, 1987, to counterbalance Lehr’s anticipated action. Petitioner was a long time acquaintance and friend of the Governor. Petitioner asked the Governor to meet with him on a personal matter.

A meeting was scheduled and took place the following evening at Anchorage International Airport. Petitioner met with Governor Cowper and Charity Kadow, director of the Anchorage Governor’s office. At the meeting, petitioner expressed his view [1337]*1337that the public hearing should go ahead as scheduled. The Governor took no action as a result of the meeting.1

The public hearing was conducted as scheduled on December 10, 1987. AHFC went into executive session in the middle of the public hearing and then postponed the public hearing. The board of AHFC met again on December 21, 1987, at which time the settlement was approved. Reports of petitioner’s involvement in the case subsequently became public.

The Judicial Conduct Commission filed a formal complaint against petitioner, after an initial investigation, pursuant to AS 22.-30.011(a) and Rule 9C(4) of the Commission rules. The Commission found probable cause to believe that petitioner had engaged in misconduct requiring discipline. The complaint alleged that petitioner had violated Canons 1, 2, 3, and 4 of the Code of Judicial Conduct as well as subsections (3)(C), (3)(D), and (3)(E) of AS 22.30.011(a).

Petitioner filed his answer on September 28, 1989, denying the allegations. The Commission appointed William Bankston as special counsel to present the formal charges, pursuant to Commission Rules 2C and 10A.

Bankston made an oral motion to dismiss the charges against petitioner on November 22, 1989, before the Commission Chairman. The Chairman denied the motion without prejudice, asking that it be represented to the full Commission at the formal disciplinary hearing scheduled for November 27, 1989.

Petitioner joined in special counsel’s motion to dismiss before the full Commission. Petitioner and special counsel also stipulated to a set of facts for the Commission to consider on the motion. The Commission heard oral argument on the motion to dismiss and denied it.

Petitioner filed a motion for reconsideration with the Commission. The motion was based on the fact that he and special counsel had stipulated to dismiss the charges. The motion for reconsideration also was denied by the Commission.

The Commission adjudicated the complaint on December 7, 1989, finding that petitioner’s use of court stationery, his manner of arranging a meeting with the Governor, and his actual meeting with the Governor created an appearance of impropriety in violation of Canons 1 and 2 of the Alaska Code of Judicial Conduct and AS 22.30.011(a)(3)(D) and (E). The Commission dismissed several other charges, finding that the other acts alleged did not result in a violation of any of the Judicial Canons or statutes. The Commission recommended to this court discipline in the form of a public admonishment.2

The Commission thereafter filed its determination and record pursuant to Commission Rule 12. On January 7, 1990, petitioner filed his petition to reject the recommendation of the Commission.

[1338]*1338II. PRELIMINARY DISCUSSION

A.THE ALASKA CODE OF JUDICIAL CONDUCT

The applicable judicial canons from the Code of Judicial Conduct are Canons 1, 2, 4 and 5.

Canon 1 states:

A Judge Should Uphold the Integrity and Independence of the Judiciary
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.

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Inquiry Concerning a Judge
822 P.2d 1333 (Alaska Supreme Court, 1991)

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Bluebook (online)
822 P.2d 1333, 1991 Alas. LEXIS 138, 1991 WL 256315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inquiry-concerning-a-judge-alaska-1991.