Commission deal prevents his removal from bench.

By Howard Fischer

Capitol Media Services

PHOENIX--- A last minute maneuver may help a Coconino County Superior Court judge retain his seat on the bench.

A deal expected to be signed Monday would have J. Michael Flournoy admit to allegations that he yelled at attorneys in his courtroom and even t6hreatened to throw one in jail. The accord between the judge and the attorneys handling his case before the Commission on Judicial Conduct also will have Flournoy concede that these facts, if proven at a hearing, would "establish a prima facie case of violations of the Canon s of Judicial Conduct."

Under the arrangement, though, Flournoy still will be allowed to deny that he actually did anything wrong. More importantly, the pact specifies that the maximum penalty that can be imposed by the commission is a six-month suspension.

A separate deal already approved by the commission specifies that two other charges will be handled informally by the commission.

One of those involves making "inappropriate" comments about the physical attributes of female attorneys and court staffers. The other is that he engaged in out-of-court discussions with attorneys about pending cases.

Under that deal, the maximum penalty the commission could impose for those violations is a reprimand.

That still leaves one charge to be heard by the commission when it begins tow days of hearing this Thursday: that Flournoy tampered with an official transcript to edit out comments he made about a juror. The judge said the record shows the incident never happened.

It is unlikely, though that the commission would impose the maximum penalty-- permanent removal from the bench for that offense if it find him guilty.

The complaint against Flournoy was filed in September. According to the charges, Flournoy would "yell at attorneys, litigants or others in the courtroom, become red in his face, shake his finger at the "offending party, and belittle attorneys in front of their clients."

In a 34-page response, the judge acknowledged he sometimes raises his voice "when attempting to make a point" and said it "could be seen as intimidating to either the attorneys of their clients."

He also said he was justified in yelling at Julie Carlson, the clerk of superior court. Carlson said she felt "physically threatened."

As to the comments about female staffers-- including allegedly swatting a woman attorney on the buttocks with a file and calling her "the best looking prosecutor"-- Flournoy said he didn't recall the incidents but said his actions were not intended to offend. Fluorine said he would stop sharing any observations about women with his staff "now that I am aware they are offended by this."

Even though Flournoy had admitted the elements of the two counts of un-judicial temperament, that doesn't mean the commission won't get to hear some of the specifics. The deal allows the commissioners to consider the incidents in deciding what punishment to impose.

One of the items they may get to review is something that was not known when the commission filed its charges last year.

According to case records, attorneys for the commission discovered that a former court reporter for Flournoy "had compiled a journal of diary of notes concerning the judge's conduct." The lawyers said if they cannot get the information voluntarily the will subpoena the records.