Capitol Media Services
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
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
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
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
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
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"
"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
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
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
Still, he said the commission is willing to consider
"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."