BY THE COURT.
In 1972 the people of this state adopted Article V of the South Dakota Constitution, the Judicial Article. Section 9 of that Article provides that the legislature should create a judicial qualifications commission. The section states:
“On recommendation of the judicial qualifications commission the Supreme Court, after hearing, may censure, remove or retire a justice or judge for action which constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, disability that seriously interferes with the performance of the duties or conduct prejudicial to the administration of justice which brings a judicial office into disrepute.”
The legislature in 1973 adopted SDCL 16-1A-1 through 16-1A-13, the Judicial Qualifications Act (Act) which vitalized the amendment. This court thereafter promulgated rules of procedure. See SDCL 16-1A Appendix.
After a hearing on a complaint against the petitioner, the Judicial Qualifications Commission (Commission) recommended that this court impose censure upon the petitioner “because his conduct was prejudicial to the administration of justice which brought his judicial office into disrepute.”
The issues which we must resolve in determining whether to impose a penalty reflect the fact that this is the first case to arise under the Act. The parties have not, unfortunately, briefed all of these issues, but their resolution is a prerequisite to action by this court. The issues to be resolved are (1) the proper standard of
proof, (2) the proper scope of review of the Commission’s findings of fact and recommendation, (3) whether the imposition of a penalty is justified by the facts of this case, and (4) finally, whether the Commission and this court lack the authority to consider actions which occurred before the effective date of the Act.
Standard of Proof.
The first issue we consider is appropriate standard of
proof in proceedings under the Act. We note that it would be in-apposite to require proof “beyond a reasonable doubt” as this is not a criminal prosecution. Proof by a mere preponderance of the evidence is also inapposite because of the severity of the sanction which can be imposed. We conclude that the proper standard of proof is by “clear and convincing evidence.” Such a standard provides adequate protection for the party subject to charges, but at the same time does not demand so much evidence that the ability of the Commission and this court to effectively oversee the judiciary is impaired. We note that this standard has been adopted in Alaska and California, upon whose statutes our own is based.
See In Re Hanson, 1975, Alaska, 532 P.2d 303; Geiler v. Commission on Judicial Qualifications, 1973, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1. See also, In Re Haggerty, 1970, 257 La. 1, 241 So.2d 469, 479; In Re Diener, 1973, 268 Md. 659, 304 A.2d 587; In Re Rome, 1975, 218 Kan. 198, 542 P.2d 676.
Scope of Review.
We next consider the proper scope of review of the Commission’s findings and recommendation. A single state, Alaska, briefly adopted the “substantial evidence” rule. In Re Robson, 1972, Alaska, 500 P.2d 657, 659. However, Alaska retreated from that stand in 1975 to recognize that the Supreme Court had an obligation to undertake “an independent evaluation of the evidence and the recommendation of the Commission.” In Re Hanson, 532 P.2d at 308. In so doing, Alaska fell in line with virtually every other state which had considered the question, including California, Geiler v. Commission on Judicial Qualifications, supra, and Maryland, In Re Diener, supra.
The rationale for requiring an independent evaluation of the evidence and recommendation is that the Act puts the burden of imposing the sanction squarely on the Supreme Court; the Commission has power only to recommend. With the power to impose
a punishment comes the concomitant obligation to conduct an independent inquiry into the evidence to determine whether that evidence merits imposition of the sanction recommended.
Thus, in every case brought to this court on a recommendation from the Commission, we must determine whether the evidence clearly and convincingly proves that the petitioner engaged in conduct which, upon our independent inquiry, merits the imposition of the sanction recommended.
Evidence.
With this standard in mind, we will briefly summarize the results of our inquiry. It is undisputed that petitioner’s wife, a practicing attorney, frequently appeared before the petitioner in probate and guardianship matters. This conduct extends back in time for at least a decade and continued even after the complaint had been filed against the petitioner.
Furthermore, the petitioner by his own admission persistently violated SDCL 16-18-3 in that his wife deposited the proceeds of fees realized from practicing in petitioner’s court in a joint checking account, and otherwise used the funds to pay obligations such as the education of their children, which fees resulted in a direct financial benefit to the petitioner (see petitioner’s testimony set forth in footnote 1).
In each of the cases referred to, the petitioner approved the fee to be paid to his wife. In at least one case, the petitioner’s wife submitted a brief to the petitioner on whether a will should be admitted to probate, a matter which was indisputably contested. She also participated in the questioning of witnesses before him in that case.
It is also clear that the petitioner once wrote a letter strongly criticizing a Sioux Falls attorney and sent a copy of the letter to the attorney’s client. The original of the letter was sent to
parties who were considering suits against the particular client, and the letter strongly urged that the suit under consideration be commenced.
Furthermore, it appears that the petitioner, without a hearing and without attention to the rudiments of fairness, once revoked a suspension of a one-year sentence imposed upon a juvenile.
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BY THE COURT.
In 1972 the people of this state adopted Article V of the South Dakota Constitution, the Judicial Article. Section 9 of that Article provides that the legislature should create a judicial qualifications commission. The section states:
“On recommendation of the judicial qualifications commission the Supreme Court, after hearing, may censure, remove or retire a justice or judge for action which constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, disability that seriously interferes with the performance of the duties or conduct prejudicial to the administration of justice which brings a judicial office into disrepute.”
The legislature in 1973 adopted SDCL 16-1A-1 through 16-1A-13, the Judicial Qualifications Act (Act) which vitalized the amendment. This court thereafter promulgated rules of procedure. See SDCL 16-1A Appendix.
After a hearing on a complaint against the petitioner, the Judicial Qualifications Commission (Commission) recommended that this court impose censure upon the petitioner “because his conduct was prejudicial to the administration of justice which brought his judicial office into disrepute.”
The issues which we must resolve in determining whether to impose a penalty reflect the fact that this is the first case to arise under the Act. The parties have not, unfortunately, briefed all of these issues, but their resolution is a prerequisite to action by this court. The issues to be resolved are (1) the proper standard of
proof, (2) the proper scope of review of the Commission’s findings of fact and recommendation, (3) whether the imposition of a penalty is justified by the facts of this case, and (4) finally, whether the Commission and this court lack the authority to consider actions which occurred before the effective date of the Act.
Standard of Proof.
The first issue we consider is appropriate standard of
proof in proceedings under the Act. We note that it would be in-apposite to require proof “beyond a reasonable doubt” as this is not a criminal prosecution. Proof by a mere preponderance of the evidence is also inapposite because of the severity of the sanction which can be imposed. We conclude that the proper standard of proof is by “clear and convincing evidence.” Such a standard provides adequate protection for the party subject to charges, but at the same time does not demand so much evidence that the ability of the Commission and this court to effectively oversee the judiciary is impaired. We note that this standard has been adopted in Alaska and California, upon whose statutes our own is based.
See In Re Hanson, 1975, Alaska, 532 P.2d 303; Geiler v. Commission on Judicial Qualifications, 1973, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1. See also, In Re Haggerty, 1970, 257 La. 1, 241 So.2d 469, 479; In Re Diener, 1973, 268 Md. 659, 304 A.2d 587; In Re Rome, 1975, 218 Kan. 198, 542 P.2d 676.
Scope of Review.
We next consider the proper scope of review of the Commission’s findings and recommendation. A single state, Alaska, briefly adopted the “substantial evidence” rule. In Re Robson, 1972, Alaska, 500 P.2d 657, 659. However, Alaska retreated from that stand in 1975 to recognize that the Supreme Court had an obligation to undertake “an independent evaluation of the evidence and the recommendation of the Commission.” In Re Hanson, 532 P.2d at 308. In so doing, Alaska fell in line with virtually every other state which had considered the question, including California, Geiler v. Commission on Judicial Qualifications, supra, and Maryland, In Re Diener, supra.
The rationale for requiring an independent evaluation of the evidence and recommendation is that the Act puts the burden of imposing the sanction squarely on the Supreme Court; the Commission has power only to recommend. With the power to impose
a punishment comes the concomitant obligation to conduct an independent inquiry into the evidence to determine whether that evidence merits imposition of the sanction recommended.
Thus, in every case brought to this court on a recommendation from the Commission, we must determine whether the evidence clearly and convincingly proves that the petitioner engaged in conduct which, upon our independent inquiry, merits the imposition of the sanction recommended.
Evidence.
With this standard in mind, we will briefly summarize the results of our inquiry. It is undisputed that petitioner’s wife, a practicing attorney, frequently appeared before the petitioner in probate and guardianship matters. This conduct extends back in time for at least a decade and continued even after the complaint had been filed against the petitioner.
Furthermore, the petitioner by his own admission persistently violated SDCL 16-18-3 in that his wife deposited the proceeds of fees realized from practicing in petitioner’s court in a joint checking account, and otherwise used the funds to pay obligations such as the education of their children, which fees resulted in a direct financial benefit to the petitioner (see petitioner’s testimony set forth in footnote 1).
In each of the cases referred to, the petitioner approved the fee to be paid to his wife. In at least one case, the petitioner’s wife submitted a brief to the petitioner on whether a will should be admitted to probate, a matter which was indisputably contested. She also participated in the questioning of witnesses before him in that case.
It is also clear that the petitioner once wrote a letter strongly criticizing a Sioux Falls attorney and sent a copy of the letter to the attorney’s client. The original of the letter was sent to
parties who were considering suits against the particular client, and the letter strongly urged that the suit under consideration be commenced.
Furthermore, it appears that the petitioner, without a hearing and without attention to the rudiments of fairness, once revoked a suspension of a one-year sentence imposed upon a juvenile. In so doing the petitioner refused even to speak to the young man (who was home on leave from the army) or to his mother although the mother waited long hours outside of the petitioner’s door after her son was incarcerated. We cannot condone the rude and indifferent manner in which judicial action was so summarily taken. See In Re Rome, 542 P.2d at 685. See also the discussion at footnote 1, Finding IV.
Finally, the petitioner traveled to Miami, Florida, in December of 1973, ostensibly to pick up four runaway boys. During that trip he attended a home game of the Miami Dolphins (at his own expense). The trip was otherwise paid for in part by the county and in part by certain of the parents of the boys. The petitioner attempted to justify the trip by reasoning that the boys had the benefit of his company on the return trip and that he gained some understanding of them through it. While this explanation has surface appeal, we reject it because of the unique timing and destination of the travel. Furthermore, this was the first trip of its sort made by the petitioner in over thirteen years on the bench. It is clear that the trip was, in fact, a junket subsidized by the taxpayers and the parents of the juvenile boys.
Each incident or series of incidents reviewed above speaks for itself; each is of the quality which seriously undermines the judicial office.
We therefore conclude that the foregoing actions constitute conduct prejudicial to the administration of justice which brings a judicial office into disrepute. South Dakota Constitution, Art. V, § 9. Furthermore, we conclude, as did the Commission, that censure is the appropriate sanction for this conduct.
Actions Before Effective Date of the Act.
The final issue before us is whether the Commission and this court can properly consider incidents which occurred before the effective date of the Act.
We note as a preliminary matter that not all of the conduct complained of occurred before the effective date of the Act, July 1,1973. Indeed, the petitioner’s wife continued to practice before him even after the complaint against the petitioner was filed on March 22,1974.
Other conduct, however, did take place before the July 1, 1973 date. The petitioner does not argue that the legislature did not have the power to allow the Commission and this court to consider pre-enactment behavior. He argues only that the legislature did not clearly evidence an intent that such behavior be considered and that without such evidence this statute may not be so applied.
Our examination of the Act, however, reveals in its various provisions a clearly expressed intent that it is to apply to offenses predating its existence.
SDCL 16-1A-10 provides that a judge is disqualified from acting as a judge while there is a felony charge pending against him. SDCL 16-1A-12 provides for suspension and removal of a judge on conviction of a felony. It cannot reasonably be said that the legislature intended that the court would be without power to remove felons from judgeships, under these portions of the Act, if the felony occurred before the effective date of the law. Such an interpretation would make a mockery of the Act, and we decline to accept it.
Furthermore, it is a basic principle of statutory construction that an enactment of the legislature is to be considered as a whole. See Western Surety Co. v. Mydland, 1970, 85 S.D. 172, 179 N.W.2d 3. Thus, if retroactive impact is clearly intended for some of the provisions of an act, it seems logical to assume that the legislature intended retroactive impact for them all. “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent.” Sutherland on Statutory Construction, Vol. 2A, § 46.05.
The construction of the statute as retroactive is greatly bolstered by an appreciation that the legislature was attempting to induce reform into the judicial system through passage of the Judicial Qualifications Act. Can it reasonably be believed that the Commission created by it was to stand idle when there was work to be done? We think not.
Therefore, given the clear intent that a significant portion of the Act is to be applied retroactively and the presumption that the legislature did not create an organ of reform only so it would remain idle for a period of years we conclude that the Commission properly considered the conduct of Judge Heuermann which occurred before the effective date of the Act.
Our duty, imposed by the state legislature and by the state
constitution, is to maintain a judiciary which is both respected and trusted. We must be vigorous in uncovering the actions of an errant judge, but we must at the same time be careful not to find error or impose punishment merely to appease a public and a bar which are now demanding more of their judiciary than ever before. We share this duty with the Commission, whose proceedings reveal to us a high degree of competence and dedication to duty. The Commission’s findings and its recommendation are approved.
Judge William H. Heuermann is hereby censured for conduct prejudicial to the administration of justice which has brought his judicial office into disrepute.
It is further ordered that costs be and are hereby assessed against petitioner.
WINANS, WOLLMAN and COLER, JJ., and HANSON, Retired Justice, concur.
HANSON, Retired Supreme Court Justice, sitting for DUNN, Chief Justice, disqualified.