9/4/99

By HOWARD FISCHER
Capitol Media Services


PHOENIX -- Six lawyers are taking on the way that judges are disciplined in the state.

The six, led by state Rep. John Verkamp, R-Flagstaff, want to revamp the process used by the Commission on Judicial Conduct to determine whether judges are guilty of violating rules of conduct. They want the process changed to provide more rights to judges under investigation.

Their interest at this time isn't by accident: Verkamp said they are angry at the treatment accorded Coconino County Superior Court Judge Michael Flournoy by the commission. Verkamp said the process amounted to a "kangaroo court."

The group wants to revamp the entire process -- including splitting the commission into two parts, one to handle the investigations and the other to review the charges. The current system, Verkamp said, results in the commission being "the police officer, the judge and the jury."

Gerald Strick, the lawyer who chairs the commission, would not comment on the specifics of the Flournoy case, still being reviewed by the Arizona Supreme Court.

Strick said the process may need some "tweaking." He said, though, he sees no benefit from the kind of overhaul being proposed. He pointed out that no other state has adopted such a plan.

Nothing in the proposal -- assuming it is approved by the Supreme Court -- would aid Flournoy. Commission members voted earlier this year to recommend that Flournoy be suspended for 18 months.

The majority of the commission said Flournoy's actions, ranging from outbursts of temper to tampering with an official court record, "demonstrate a pattern of misconduct and a consistent lack of regard for the duties of the high position he holds."

Beyond that, the commission said the judge failed to acknowledge the severity of his misconduct and the detrimental effect of his behavior on the rights of others. They also concluded he has not accepted responsibility for his acts.

The final decision is up to the Arizona Supreme Court, which is reviewing the case.

As harsh as that recommendation is, it pales in comparison with the minority report by four of the 11 commissioners. They want the high court to permanently strip Flournoy of his judgeship.

Verkamp, who sat through much of the commission's hearing, said he came to the conclusion that Flournoy was denied the same rights as someone accused of a crime or a defendant in a civil lawsuit.

For example, he said, the commission staff refused to allow a "discovery" process, where each side discloses to the other all of the evidence possessed. Verkamp, a former county attorney for Coconino County, called that "routine" in all other cases "so you don't have trial by ambush."

He also said the commission was "on a fishing expedition" against Flournoy.

"They were asking people, 'Why does he have Phoenix Suns tickets?' and 'Why does he have a home in Rocky Point?'" Verkamp said, citing issues that may be irrelevant to the complaint against Flournoy.

The 18-month suspension being recommended by the commission actually falls into two areas:

n First is a six-month suspension on two charges of poor judicial temperament. One involves yelling at and threatening lawyers; the other involves a shouting match in his chambers with Julie Carlson, clerk of Superior Court, in which Flournoy threatened to have the sheriff throw her in jail.

Flournoy admitted to those charges with the proviso that the maximum penalty could be only six months.

n The 12-month suspension is recommended for tampering with a court transcript to remove comments he had made in chambers about a potential juror in a case.

In that charge, the sole witness against him was Kathryn Anderson, who was his official court reporter from the time he took the bench until 1998. Anderson testified in March that Flournoy directed that the transcript be halted before he made the comments about being afraid of the juror, who also had been a defendant in a criminal case Flournoy was handling.

Flournoy denied tampering with the transcript but admitted that he told Anderson that, as far as he was concerned, those comments were "off the record and should not be transcribed."

The commission concluded that Anderson "is a credible witness on this issue and (Flournoy) is not."

Verkamp said the larger issue than discovery and investigative practices is the whole question of whether the system is fair.

He pointed out that the American Bar Association, in its model rules, recommends a two-tiered system for handling these cases:

n The first tier consists of a three-member investigatory panel that reviews the recommendations of disciplinary counsel after preliminary investigations. This panel either authorizes a full investigation or dismisses the complaint.

n The second tier actually acts as judges, ruling on pre-hearing motions, conducting the hearing, making findings and recommending discipline. Most importantly, Verkamp said, members of this panel cannot have conversations with either the staff prosecuting the case or the judge, except within the confines of the hearing -- the same rules that apply to judges hearing civil and criminal cases.

Verkamp said this is important, because under the current structure, commissioners are privy to raw information gathered by staff investigators, whether or not it is relevant to the actual case.

Strick brushed aside complaints that civil and criminal defendants have more rights. He said the question of judicial conduct is different. Anyway, he pointed out, the existing rules have been declared constitutional, a point even Verkamp conceded.

Still, he said the commission is willing to consider changes.

"We have been looking at some tweaking," he said, "not because we think what we do is wrong, but because we think maybe we can do it better."