Matter of Voorhees

739 S.W.2d 178

• Court: Supreme Court of Missouri
• Decided: October 19, 1987
• Docket: 69338
• Status: Published

Opinions

BLACKMAR, Judge.

Respondent, The Honorable Alphonso H. Yoorhees, is a Circuit Judge of the Twenty-First Judicial Circuit, and was the presiding judge during late 1985 and all of 1986. The Commission on Retirement, Removal and Discipline established by Art. V, Sec. 24, of the Missouri Constitution served a notice on him charging violation of this Court’s Rule 2, Canon 3B(1), (2), (3). After hearing, the Commission¹ filed Findings of Fact, Conclusions of Law and Recommendations. The Commission found violation only of Canon 3B(3), reading as follows:

A judge should report what he believes clearly to be professional misconduct of a judge or lawyer to the appropriate disciplinary agency.

It recommended that Respondent be reprimanded for this perceived violation.

The matter is now before us on the respondent’s exceptions to the Findings, Conclusions and Recommendations of the Commission. We conclude that the record does not support the recommendation for discipline, and direct that the respondent stand fully discharged.

It is important at the outset to consider the governing law. The grounds for discipline are set forth in Art. V, Sec. 24(3) of the Missouri Constitution. The only grounds which could conceivably be applied in this case are “misconduct,” “oppression in office,” and “willful neglect of duty.” We will use the term “misconduct” as a convenient collective term for all three of these constitutional standards.

Our Rule 2 adopts the Canons of Judicial Ethics of the American Bar Association. Violation of these canons may be considered as probative of misconduct, In re Kohn, 568 S.W.2d 255 (Mo. banc 1978), but the ultimate finding must be of violation of the constitutional standard.² No discipline may be imposed unless it meets that standard. The canons are not statutory, and a charge of violation of the letter of the canons must be squared with the constitutional provisions.

Any discipline of a judge, even a reprimand, is a serious matter, and should be imposed only for substantial reasons and with all due process rights preserved. A reprimand is a public denunciation which permanently scars the judge’s record. Cf. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 636-37, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652 (1985). It is not a minor matter and should not be lightly imposed. While complaints of violation of the constitutional standards should be thoroughly investigated when complaint is made, zealously prosecuted when possible cause is shown, and punished by appropriate sanctions when proved, judges should not be held up to public censure on account of good faith exercise of judgment. Our system provides other means of correction for erroneous decisions.

Of the contested cases construing Art. V, See. 24 which have reached this Court, most are of very little pertinence. In re Kohn, 568 S.W.2d 255 (Mo. banc 1978) makes it clear that matters of court administration are not subject to circumspection through the disciplinary machinery. The other cases involved patent misconduct³ or neglect of duty.⁴

The ultimate decision on discipline, furthermore, is for this Court and not for the Commission. In re Duncan, 541 S.W. 2d 564 (Mo. banc 1976). The Commission hears the witnesses and we do not, and so deference to its credibility calls is appropriate. In re Buford, 577 S.W.2d 809 (Mo. banc 1979). This case involves very little by way of factual dispute, and none of the Commission’s findings appears to turn on matters of credibility. We believe, specifically, that the respondent is a credible witness, and the Commission does not seem to disagree.⁵ Our basic task, then, is to examine the record with reference to appropriate legal standards.

THE FACTS

The amendments to Art. V of the Constitution, adopted by the voters on August 3, 1976 and effective January 2, 1979, sought to establish a unified court system for the state and for each of the 44 judicial circuits. An important part of the new program was the upgrading of magistrates to associate circuit judges, and the authorization for associates to sit on circuit court cases when authorized by the circuit judge or judges.

Attempts at unification of the Twenty-First Judicial Circuit, serving St. Louis County, did not come easily. Although this proceeding is not an appropriate vehicle for the review of all the problems of that Circuit, because the only issues before us are those relating to the recommended discipline of the respondent,⁶ some background is necessary. In Gregory v. Corrigan, 685 S.W.2d 840 (Mo. banc 1985), we made it clear that under Art. V, Sec. 15.1 the circuit judges of each circuit, without the participation of associate circuit judges, had the authority to prescribe rules for the conduct of judicial business in the circuit. By In re: Rules of the Circuit Court for the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985), we authorized the circuit judges of the Twenty-First Judicial Circuit to elect the presiding judge. The rationale is stated in that opinion.

Following the decision in that case the circuit judges of the Twenty-First Judicial Circuit elected the respondent presiding judge on November 15, 1985. He immediately appointed a reorganization committee composed of five circuit judges and one associate circuit judge. The committee proposed a reorganization plan which was approved by vote of the circuit judges on December 19, 1985. The general purpose of the plan was to establish central control over the docketing and assignment of all cases in the circuit and associate divisions and to transfer all clerical employees of the associate divisions, with the exception of one clerk for each judge, to the central clerk’s office. The plan was strongly opposed by some of the associates, apparently because they wanted to maintain their own dockets, clerical staffs, and bank accounts, and were dissatisfied with some of the clerical promotions. The conduct of some of the associates is described by the Commission in its Findings of Fact as follows:

9. Tension continued to mount between the associate circuit judges and Judge Voorhees over the impending reorganization plan. On or about January 17, 1986, Judge Goeke prepared approximately 40 pill bottles (exhibit B) with the inscription “No. 31-43. Date 1/17/86 T DON’T GIVE A SHIT PILLS’ Take one pill whenever the urge to worry about reorganization and docket mismanagement occurs.” These bottles were distributed by Goeke to judges, clerks, and other persons. On or about January 22, Judge O’Toole removed a sign bearing his name from his courtroom door. The next day, Judge Gerhard removed his name plate and, in early February, Judge Quillin removed his. The judges’ stated purpose in removing their name plates was that, since they were facing a retention election, they felt that their names being associated with the confusion resulting from implementation of court reorganization would hurt their chances of being retained. The removal of the name plates caused more confusion as the general public did not know where the courtrooms of the three judges in question were.

10. Sometime during the week following January 23, Judge Gerhard placed a hand-lettered sign (exhibit G) on his courtroom door which read, “The judge of this court is not responsible for this disruption. See: Judge A. Voorhees, Div 13, 3rd Floor, Judge B. Corrigan, Div 7, 3rd Floor, Judge M. Nolan, Div 1, 4th Floor, Judge M. Saitz, Div 17, 4th Floor, Judge R. Saitz, Div 6, 3rd Floor, Judge T. Eberwein, Div 35, 2nd Floor.” The named judges were the members of the reorganization committee. The placing of the sign caused a number of lawyers and litigants to approach Judge Voorhees with complaints, which caused a disruption of his work hedule.

As the March 3rd date for putting the reorganization into effect approached there was reason to fear that the four associates named above might not cooperate in the reorganization. At a meeting of associates with unit managers on February 20, 1986, two of the four said that they would accept only 150 cases on a docket, two said that they did not want certain types of adult abuse cases, and one said that he did not want afternoon assignments. One demanded additional clerical personnel he had not used before, one said that he would not sign warrants out of hours, and one refused to make entries on the docket sheets as he was hearing cases, thereby requiring additional clerical labors.

On February 21,1986, the unit managers met with the reorganization committee to report on their problems. The respondent was present for parts of this meeting. A transcript was made, of which copies were later furnished to all judges of this Court and to the Commission on Retirement, Removal and Discipline. A copy was offered in evidence at the hearing, to show the information which the respondent had before him when he issued the orders of February 27, 1986, and is now before us for consideration.⁷ The transcript detailed the incidents set out in Findings 9 and 10, as well as other problems with the four associates.

On February 25, 1986, the respondent, together with Judge William M. Corrigan, a former presiding judge, and Judge Robert W. Saitz, chairman of the reorganization committee, met with then Chief Justice Andrew Jackson Higgins in Jefferson City. The meeting consumed approximately two hours. The Chief Justice, acting within his administrative responsibility under Art. V, Sec. 8, assured the three that the Supreme Court would back the circuit judges up in their enforcement of the rules made by their authority pursuant to Art. V, Sec. 15.1. Two of the judges testified that the possibility of relieving an uncooperative judge might have been discussed, but it is clear that the Chief Justice was not asked to, and did not, authorize the relief order of February 27, 1986.⁸

On Wednesday, February 26, 1986, Judge Goeke addressed a provocative letter to respondent, with copies to all judges of the circuit, in which he asserted that the reorganization plan would not work unless the associates collectively were allowed to develop a plan for their divisions “without interference”, and suggested that the Reorganization Committee should “release control over the associate divisions.” A majority of the circuit judges met at noon and designated Judge Robert Saitz to draft an order authorizing the suspension of assignments to the four recalcitrant associates. Thirteen of the other nineteen circuit judges, not counting respondent, signed the authorization. The remaining six were not present at the meeting and were not asked to sign the authorization because they were not sympathetic to the reorganization and had regularly voted with the associates on administrative matters.

The respondent testified that he considered the authorization to be a directive to him, and other circuit judges testified to the same effect, but he did not immediately issue a conforming order. He considered the possibility of monitoring the assignments on March 3 to see whether there was any discernible failure of cooperation, but the assistant court administrator then suggested that attempts at subversion could not be detected for several weeks and that by that time the reorganization plan would be irreparably damaged. It appears that many members of the public had been summoned to appear Monday morning, March 3, in the divisions presided over by the four dissenting associates, and so it was important to minimize confusion on that day.

At about 11:30 a.m. on February 27, the respondent caused identical letters to be delivered to the four associates reading as follows:

WHEREAS by act and deed you have demonstrated your unwillingness or inability to participate within the framework of the judicial system of this Circuit;

NOW THEREFORE it is ORDERED that commencing March 3, 1986, at 8:00 a.m., you are relieved of all docket, caseload and trial responsibility in this Circuit and you are to relinquish control of your facilities including your courtroom and chambers until further order of the Presiding Judge.

The respondent testified that he had hoped to arrange a meeting with the associates and to inform them that the relief orders would be withdrawn as to any associate who expressed his willingness to accept and dispose of assigned cases in accordance with the reorganization plan, and sought to notify them that he wanted to meet. One of the four was agreeable to meeting with the respondent in the presence of a state senator, but the respondent considered, properly we think, that such a meeting would be inappropriate in the administration of the judiciary. Respondent spoke with one of the four who said that he was too upset to confer. A third received notice of the requested meeting but did not respond. The fourth said that he did not receive any notice of the request.

The associates, instead of meeting, chose to file on Friday, February 28, 1986, a pro se application in this Court seeking to set aside the relief orders. On that same day, we entered a stay order which included a firm directive to the associates to comply with the directions of the presiding judge. Copies of the Canons of Judicial Ethics, Rule 2, Canon 3, and of the guidelines from the Presiding Judges’ Handbook were appended to an order. Rule 2, Canon 3(A)(5)⁹ and paragraph 6 of Guideline No. 13 (quoted below) were underscored.

The respondent testified that he had no purpose of disciplining the four associates, but was simply concerned with the administration of the court and the implementation of the reorganization plan. He arranged for three circuit judges and one associate from the circuit to sit in the divisions presided over by the relieved judges, and contemplated requesting this Court to assign judges from outside the circuit to assist if necessary. He tried to call Chief Justice Higgins before he delivered the relief orders, but was unable to reach him until Friday, February 28. By. that time the associates’ application was already on file and was being considered by this Court.

THE CHARGES

The formal charges are set out in a Notice, issued pursuant to Rule 5.13(c) on December 5, 1986 and reading as follows:

The Commission on Retirement, Removal and Discipline, appointed to the provisions of Article V, Section 24 of the Constitution of Missouri, hereby notifies you to be and appear before it on the 28th day of January, 1987, at the offices of the Missouri Court of Appeals, 111 No. Seventh Street, St. Louis, Missouri, at 9:00 a.m., then and there to answer the following:

That while holding the office of Circuit Judge of St. Louis County, Missouri, you engaged in the following conduct which is in violation of Article V, Section 24 of the Constitution of the State of Missouri.

1.That on February 27, 1986, you issued an administrative order as Presiding Judge of the 21st Judicial Circuit to Associate Circuit Judges George R. Ger-hard, Josephe A. Goeke, III, Daniel J. O’Toole and Dennis J. Quillin purporting to relieve the named Associate Judges of their dockets and directing that they relinquish control of their courtrooms and chambers. Further, that this order failed to abide by the procedure set out in Guideline No. 13 of the Guidelines from the Presiding Judges’ Handbook which were specifically set out in the Appendix to the Supreme Court’s decision In Re: Rules of the Circuit Court for the 21st Judicial Circuit, 702, S.W. 2d 457, 462 (Mo. banc, 1985). Those guidelines are as follows:

“In the event that another judge of the circuit court refuses a reasonable directive of the presiding judge, interferes with the effective operation of the court, abuses his judicial position, or violates the Judicial Canons of Ethics, the presiding judge should consider one or more of the following options:

1. Explain to the resisting judge the reasons for the directive or position taken and listen to the response. Reevaluate your position.

2. If the problem persists, determine the available alternatives. Discuss and evaluate the alternatives. Discuss and evaluate the alternatives with the resisting judge.

3. Discuss the position of both parties with the other judges and reevaluate your position.

4. Present the problem to the court en banc or a committee of judges for a recommendation, or establish a procedure within the circuit for resolving disputes between judges and the presiding judge, such as requiring the resisting judge and the presiding judge to state in writing, within a reasonable time, his or her reasons for a position. Forward all to a higher authority such as a court committee, the court en banc, or the chief justice of the Supreme Court for final determination.

5. Report the resisting judge to the chief justice of the Supreme Court for appropriate action.

6. Where the refusal is willful and continual, report the resisting judge to the Commission on Retirement, Removal and Discipline.”

The above-mentioned conduct is in violation of Supreme Court Rule 2, Canon 3B(1)(2)(3).

You are further notified that the proceedings will be held at said time and place to fully investigate the aforementioned allegations in accordance with the Rules of the Supreme Court of Missouri.

If you desire to file a response it should be filed with the Secretary of this Commission by the 5th day of December, 1986. The Secretary’s name and address are listed thereon.

The Commission’s findings and conclusions, surprisingly, do not relate explicitly to any factual matter alleged in the Notice.¹⁰ The only finding of violations has to do with the incidents described in the Commission’s findings 9 and 10, quoted above, and the respondent’s failure to report these incidents to the Commission.

We can order judicial discipline only in accordance with the findings of the Commission. If findings are inadequate we might simply pretermit consideration of the charges in the Notice, or, conceivably, might remand the case to the Commission for further report. We believe, however, that, by lenient construction, the Commission’s findings and conclusions are arguably responsive, and that the interests of the bench, the bar, and the public will be served by a full exposition. The parties have briefed the issues as though the Commission had found that the matters set forth in the Notice were proved, and a remand is unnecessary. We conclude that the record fails to demonstrate misconduct in the respects alleged in the Notice.

The problem with basing judicial discipline on the “guidelines” is that they speak in language which is precatory rather than mandatory. The trial judge is told to “consider one or more of the following options”. The record discloses numerous meetings and discussions over many weeks, including a consultation with the Chief Justice, which is one of the suggested options. We sense from the record that the respondent showed great patience in the face of trying circumstances, often demonstrating civility in response to contentious discourtesy. He could well have concluded that further im-portunities would have been unavailing. He can hardly be found guilty of misconduct for failing to exhaust all of the alternatives, when all he is directed to do is to consider “one or more”.

The guidelines, furthermore, call for a report to the Commission only for refusal which is “willful and continual”. The respondent testified to his concern, on Thursday, February 27, lest the recalcitrant associates sabotage the reorganization plan which was designed to take effect on the following Monday, March 3. Up to this time there had been grumbling, quibbling and foot dragging, but no express refusal. The respondent might well have concluded that the time for resort to the Commission, under the guidelines, had not yet arrived. Our order of February 28, 1986, indeed, contained a strong directive to the associates, and emphasized that a report to the Commission would be appropriate if there were willful and continued refusal.

Had the respondent reported to the Commission before issuing the orders on Thursday, February 27, furthermore, there is absolutely nothing it could have done to ensure that the divisions would proceed as directed on the following Monday. It has the power only to receive charges, to investigate, to conduct hearings, and to recommend disciplinary actions. Its processes are inherently deliberate. It has no authority to superintend the operation of the courts, to mediate ongoing disputes, or to deliver an administrative “chewing.” Its counsel frankly admitted this during oral argument.

We conclude that the Commission has failed to establish “misconduct,” “willful neglect of duty,” or “oppression in office,” simply because the respondent did not report to the Commission before issuing the relief order.

The Notice, by an exceedingly broad construction, might be read as charging that the very issuance of the relief order constituted an act of judicial misconduct. The Commission’s Conclusion 3 reads as follows:

3. There is no specific constitutional or statutory authority for a presiding judge to order the removal of associate circuit judges from their courtrooms and chambers and relieve them from their judicial responsibilities, under circumstances such as were present in this case. Such action by Judge Voorhees constituted an act of severe discipline of the four associate circuit judges. The sole authority for discipline of judges rests with this commission and the Supreme Court. Article V, Section 24, Constitution of Missouri.

The courts of review, including this Court, are open for the consideration of legal error. Present day courts have myriad administrative responsibilities, and discipline is no more appropriate for an administrative error than for a legal error. The basic legality of the order, then, is not a proper matter for the Commission’s consideration. It would at the very least have to find that the challenged order was so far out of line as to constitute “misconduct,” or, perhaps, “oppression in office.” Cf In re Storie, 574 S.W.2d 369 (Mo. banc 1978), involving an unauthorized monetary assessment against persons pleading guilty and the maintenance of an off-budget fund fed by these assessments. The Commission neither proffered nor found any such charge. Whether the attempted relief was an administrative act or an act of discipline depends on a determination of the respondent’s purpose and intent, on which issues the Commission did not make a finding. Nor should we.

The respondent testified that he had no purpose of inflicting discipline, or of interfering with the associates’ status or tenure as judges, but was simply trying to get all divisions of his court to operate in accordance with the reorganization plan. It is easy to conceive of situations in which a presiding judge may appropriately direct another judge to turn over his courtroom and chambers, against the displaced judge’s will, in order to facilitate the total effort of the court. The respondent testified that he would withdraw the relief order as to any judge who expressed his willingness to cooperate; none apparently was willing to meet with him. He advised the two judges he was able to reach on the telephone as to the conditions for removing the order would be lifted. The relief order and these contemporaneous discussions must be considered together. The order did not strip the associates of their offices. It simply relieved them of their assignments until they gave assurance that they would perform their assigned duties. The respondent had no obligation to clear his contemplated order with the Commission, and it had no authority to approve or disapprove. The attempted relief was an administrative act, and not an act of discipline.

A majority of the circuit judges, acting within their authority, made a judgment call which the respondent put into effect. He did not publicize the relief order; it reached the press by other means. The associates asked this Court for relief, which was promptly forthcoming. Our order included a stern injunction to the associates to comply with the orders of the presiding judge. Perhaps this gave them second thoughts about perverse behavior. The challenged orders never took effect. We are not here concerned with the wisdom of the respondent’s administrative decision. There may be a reluctance to take firm action if the spectre of disciplinary proceedings looms over administrative decisions. Even a successful defense does not completely erase the effect"'of widely published charges.

We conclude from the whole record that disciplinary action was not appropriate for the conduct charged in the notice. This conclusion makes a ruling on the respondent’s motion to dismiss unnecessary.

THE COMMISSION’S

RECOMMENDED DISCIPLINE

The Commission’s Conclusions of Law 1 and 2 read as follows:

1. Judge Voorhees clearly believed that the acts of Judges Gerhard, O’Toole, and Quillin in removing their name plates from their courtroom doors, the act of Judge Gerhard in posting a sign referring persons reading the sign to the judges of the reorganization committee, and Judge Goeke’s distribution of the “pills” were acts of judicial misconduct.

2. Having such a belief, Judge Voo-rhees had a duty, by reason of Rule 2, Canon 3B(3) to report such conduct to

the Commission of Retirement, Removal and Discipline. Judge Voorhees breached such duty by not reporting such conduct and, by not so doing, violated Rule 2, Canon 3B(3). Judge Voorhees’ explanation that he did not report such conduct because he believed it would cause further problems is not an acceptable excuse.

On the basis of these conclusions it issued the following recommendation:

The commission recommends that Judge Voorhees be reprimanded for failure to report to the commission what he clearly believed to be judicial misconduct on the part of Judges Gerhard, Goeke, O’Toole and Quillin.

One problem is that no word, phrase or line of the Notice relates to the transactions described in these conclusions. The Notice spoke only of the relief order and the guidelines. We would be justified in pretermitting consideration of Conclusions 1 and 2 because they are outside the charge. They do not show “willful and continual” refusal, so as to bring Guideline 6 into consideration. The doctrine of amendment to conform to the proof should be applied to disciplinary proceedings with great caution. Any amendment must be disclosed to the respondent before submission to the Committee. See In re Briggs, 595 S.W.2d 270 (Mo. banc 1980).

In this instance also, however, we elect to rule the matter on its merits, because we conclude that the record does not support a finding of misconduct on the part of the respondent in failing to report the incidents relating to the removal of signs, the posted notice, or the “pills.”

Canon 3(B)(3) serves the salutary purpose of inhibiting “coverups.” It imposes on judges the duty of reporting to the Commission about matters which come to their attention and about which the Commission is previously uninformed. Without this canon, a judge might be tempted to avoid “rocking the boat,” even though he or she has particularized knowledge of wrongdoing by a colleague or by a lawyer. The canon clearly informs as to where duty lies. We are unable to say, however, that every failure to inform about well-publicized misbehavior of a fellow judge may properly be branded “misconduct.” The canons must be given a reasonable construction.

The Commission concludes that the respondent “clearly believed” that the described actions of the associates were acts of judicial misconduct. This conclusion flies in the face of the respondent’s testimony, as follows:

Q. Did you report any of these judges at the time to the Commission on Retirement, Removal and Discipline?

A. No, sir.

Q. Why not?

A. These problems or at least the handling of them at that time were not disciplinary. They were not for punishment, they were to upgrade our courts. They were actions that we felt were necessary so that our courts could function so that our dockets could function. I wasn’t even convinced in my mind then or at any other time and I’m—as to whether these actions were violations of the canons on their part....

Tr. Vol. Ill, Part II at 232.

Nothing in the record shows that the respondent “clearly believed” that the associate judges’ actions constituted misconduct such as to subject them to discipline. The Commission cannot convert something he said into something he simply did not say, under the guise of assessing credibility-

Most of the incidents were matters of public knowledge, beginning with an article in the St. Louis Globe-Democrat dated February 4, 1986, which reported about the sign incidents. There was extensive newspaper coverage after February 27. There is a question whether a judge may be criticized for not making a report when full information is readily available.

The “pills” incident was not contemporaneously reported in the newspapers, insofar as the record shows, but there is no evidence that it interfered with the administration of the court or caused problems for the presiding judge. Not every

incident of puerile or boorish behavior is a ground for judicial discipline. The preparation and distribution of the pills, coarse as it was, arguably represents the exercise of a First Amendment right.¹¹ The respondent cannot be faulted for not reporting this incident.

The record shows, furthermore, that two circuit judges filed separate complaints with the Commission on March 19, 1986, to which were appended copies of the transcript of the meeting of February 21, 1986 between the reorganization committee and the unit managers. (See Footnote 7). No delict on the part of the respondent impeded or delayed the Commission in any respect. He could have added little to the transcript, in which the matters the Commission referred to in the charges were fully documented. The Commission was seasonably and fully informed.

The only basis for discipline asserted by the Commission is not supported by the record.

THE COMMISSION’S ADVISORY FINDINGS

The Commission’s Conclusion of Law No. 4 reads as follows:

The action of Judge Voorhees in issuing the orders in question, and the inevitable publicity that followed, add another sorry chapter to the history of internal bickering which has marred the image of the Circuit Court of the Twenty-first Judicial Circuit in recent years. See Gregory v. Corrigan, 685 S.W.2d 840 (Mo. banc 1985); Nolan v. Stussie, 695 S.W.2d 869 (Mo. banc 1985); and, Rules of the Circuit Court for the Twenty-first Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985); and Administrative Orders of the Presiding Judge of the Twenty-first Judicial Circuit, No. 67950 (Mo. banc 1986), for examples of controversy between the judges of the circuit that have received widespread publicity.

Recommendation No. 2 reads as follows:

The commission further recommends that if the judges of the Twenty-first Judicial Circuit are unwilling or unable to assure the people of their area the orderly administration of justice, that the Supreme Court, as suggested in In Re: Rules of the Circuit Court, Id. at 460, relieve any then serving presiding judge of his or her duties and assign a neutral judge to supervise the circuit, subject to the approval of the Supreme Court, until such time as the orderly administration of justice in the circuit can be assured.

The Conclusion and the Recommendation are inappropriately included in the Commission’s report. The Commission’s sole authority in discipline cases is set out in Art. V, Sec. 24(3), reading as follows:

Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, discipline or reprimand any judge of any court or any member of any judicial commission or of this commission, for the commission of a crime, or for misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency or any offense involving moral turpitude, or oppression in office. No action taken under this section shall be a bar to or prevent any other action authorized by law.

Art. V, Sec. 24(8) states very clearly that the Commission is not to undertake additional duties, in the following language:

Additional duties shall not be imposed by law or supreme court rule upon the commission on retirement, removal and discipline.

We well know the agonizing problems of the Twenty-First Judicial Circuit. We have tried to find solutions, in the exercise of the supervisory control conferred upon us by Art. V, Sec. 4.¹² The judges of this Court have not always agreed. We should be willing to receive and to consider suggestions. But suggestions by the Commission on Retirement, Removal and Discipline, in the course of an official transmission, are not in order, because they exceed the Commission’s limited function.

The cases holding that a grand jury has no authority to issue a report, apart from such indictments as it sees fit to return, are in point. See In re Interim Report of Grand Jury, 558 S.W.2d 479 (Mo. banc 1977); In re Report of Grand Jury Impaneled on June 22,1979 in Shelby County, 612 S.W.2d 864 (Mo.App.1981); In re Regular Report of Grand Jury, 585 S.W.2d 76 (Mo.App.1979). Similar considerations apply to the Commission.

We believe that it is important to comment as we have for the future guidance of the Commission. If the Commission acts outside of its limited function its members may form predilections and tentative conclusions which tend to impede their ability to deal with ensuing disciplinary matters with total detachment.

The appropriate correction is to strike the Commission’s Conclusion of Law No. 4 and Recommendation No. 2.

CONCLUSION

The record shows no basis for disciplinary action against respondent. The respondent was dealing with a very difficult situation. He exercised his judgment. There are those who, with hindsight, might question some of his decisions, but there is absolutely no indication of misconduct, oppression in office, neglect of duty, or any other constitutional ground for discipline.

The Commission’s recommendation for discipline is rejected, for the reason that the record does not demonstrate any violation of Article V, Sec. 24(3). The respondent is fully discharged. The Commission’s Conclusion of Law No. 4 and Recommendation No. 2 are stricken.

BILLINGS, C.J., and FLANIGAN, Special Judge, concur. ROBERTSON, J., concurs in separate opinion filed. WELLIVER, J., concurs in result in separate opinion filed. DONNELLY, J., concurs in result in separate opinion filed and concurs in separate concurring in result opinion of WELLIVER, J. RENDLEN, J., concurs in result in separate opinion filed. HIGGINS, J., not sitting.

1 .The Commission's findings inappropriately reported that a cease and desist order had been issued in accordance with Rule 12.08(b)(2). A cease and desist order under that section is an offer in compromise which the respondent is under no compulsion to accept. It is not appropriate to criticize the respondent for not accepting the order, nor to criticize the Commission for issuing the order, or for not accepting the respondent’s proposed revisions. The Commission should not have mentioned the order in its published findings, and the opinions concurring in result should not have commented on it.

2 . We read In re Buford, 577 S.W.2d 809, 813 (Mo. banc 1979), as endorsing and applying the Kohn standard.

3 . In re Briggs, 595 S.W.2d 270 (Mo. banc 1980); In re Buford, 577 S.W.2d 809 (Mo. banc 1979); In re Storie, 574 S.W.2d 369 (Mo. banc 1978); In re Duncan, 541 S.W.2d 564 (Mo. banc 1976); In re Fullwood, 518 S.W.2d 22 (Mo. banc 1975).

4 . In re Steinle, 653 S.W.2d 201 (Mo. banc 1983); In re Kohn, 568 S.W.2d 255 (Mo. banc 1978); In re Coming, 538 S.W.2d 46 (Mo. banc 1976).

5 . The Commission’s Recommendation No. 3 reads as follows:

In considering whether the recommended discipline of Judge Voorhees is sufficient under the circumstances, we request that the Supreme Court consider the fact that the prompt stay orders of the Supreme Court prevented Judge Voorhees' orders from becoming effective and that Judge Voorhees has enjoyed, throughout his legal and judicial career an excellent reputation for integrity, in-

dustry and temperament. The four associate circuit judges affected by Judge Voorhees’ orders of February 27 1986, so testified.

6 . Inasmuch as a Special Judge who has no responsibility for supervisory control over the Twenty-First Judicial Circuit is a member of the court which is hearing this case, discussion about current administrative problems of the Twenty-First Judicial Circuit is inappropriate.

7 . This transcript was offered in evidence by respondent for the purpose of showing information which had been reported to him and on which he relied in taking action. A hearsay objection was improperly sustained, because the transcript was not offered to establish the truth of the statements there contained. See State ex rel 807, Inc. v. Saitz, 425 S.W.2d 96 (Mo.1968). Testimony at the hearing, furthermore, is not an adequate substitute for the contemporaneous reports made to the respondent. The transcript, by reason of the respondent’s offer of proof, is fully available for our consideration.

8 . The Chief Justice was not called as a witness.

9 . “A judge should dispose promptly of the business of the Court."

10 . Judge Rendlen’s assertion that we could find violation of Canon 3(B)(1) when the Commission did not is at odds with the constitutional provision, Art. V, Sec. 24.3, which authorizes discipline following recommendation by the Commission, ‘‘the supreme court en banc ... concurring with such recommendations ...” Our authority under Rule 12.08(c) to "make such order as to respondent as it deems just” may not be read to enlarge on our constitutional authority. The expression of a personal opinion as to a canon which the Commission did not find to have been violated, then, is quite out of line.

11 . Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); State v. Swoboda, 658 S.W.2d 24 (Mo. banc 1983).

12 . In re: Rules of the Circuit Court for the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985); Nolan v. Stussie, 695 S.W.2d 869 (Mo. banc 1985); Gregory v. Corrigan, 685 S.W. (Mo. banc 1985); In re Administrative Orders, No. 67950, not reported.