12/17/99

By HOWARD FISCHER
Capitol Media Services


PHOENIX -- The Arizona Supreme Court has suspended Coconino County Superior Court Judge Michael J. Flournoy for 18 months.

In a unanimous ruling Thursday the high court rejected various claims by Flournoy that there was not enough evidence to prove he was guilty of misconduct. The justices also said the penalty fits the offenses, particularly as there are six prior instances of discipline on his record.

But the court did give him a break in two respects.

First, the justices agreed to let him keep the salary he collected during the last six months while he was suspended pending their ruling. He will not be paid, however, from today through Dec. 24, 2000.

Second, they ruled that he can resume his duties automatically when his suspension ends. The Commission on Judicial Conduct, which had recommended the suspension, said Flournoy should not be allowed back on the bench until he completes counseling and education and shows he would comply with the Code of Judicial Conduct.

In approving the 18-month suspension, the high court rejected a minority report which concluded he should be stripped of his robes.

"I have not read opinion as yet. It is discouraging to hear the Supreme Court decision," Flournoy said. "I am deeply appreciative of all the attorneys who have always complimented me on my work as superior court judge and I certainly have greatly appreciated their strong support throughout this. I would like to thank them very much."

Flournoy, in seeking to escape or reduce his punishment, based much of his case on his contention that there was not "clear and convincing evidence" he tampered with a transcript, the most serious charge against him.

Kathryn Anderson, who was his official court reporter from the time he took the bench until 1998, testified before the commission that the judge told her not to transcribe the full text of some comments he made while a prospective juror was being questioned by attorneys in the judge's chambers.

The issue arose because that would-be juror also was a defendant in a criminal case the judge had handled. His attorney was trying to have the case removed from Flournoy's court, alleging bias by the judge.

Flournoy admitted telling Anderson not to transcribe his comments where he said he was in fear of the person. He insisted, though, the comments were made after the questioning had stopped and were "off the record" and not germane.

Justice Frederick Martone, writing for the unanimous court, said the record does not support that.

He pointed out that Flournoy, in defending himself at the commission hearing, said he did not have any unusual fear of that person.

"Yet, he had admitted earlier that he moved into a windowless courtroom at night to avoid the threat of being shot through his office window," Martone noted.

As to the conversation being off the record, Martone said the fact remains that the conversation was, in fact, recorded. "Once recorded, and relevant to another legal proceeding, there was no justification for withholding it," the judge wrote.

The justices also turned aside several technical challenges to the way the commission conducted its investigation.

The court also upheld two other charges against Flournoy. One said he had "repeated outbursts of temper," shouting at attorneys and litigants and belittling attorneys in the presence of their clients. Another stems from a shouting match with Julie Carlson, clerk of superior court, where Flournoy threatened to have the sheriff throw her in jail.

Thursday's ruling should not affect Flournoy's effort to seek early retirement -- assuming he completes his application.

The judge filed a request for disability retirement on May 20, two days after the Commission on Judicial Conduct first recommended the 18-month suspension.

A copy of the request, obtained by Capitol Media Services under the state's Public Records Law, redacted Flournoy's reason for seeking disability. But a political ally of the judge, who asked not to be identified, said Flournoy is losing his vision.

A disability retirement would allow Flournoy to retire now with a pension of more than $45,000 a year. Leaving the bench now, without a finding of disability, would cut that figure by more than a third.

Mike Ong, deputy administrator of the Elected Officials Retirement Plan, said Thursday his agency has not processed Flournoy's request because the judge has yet to undergo the necessary medical evaluation.