Capitol Media Services
Coconino Superior Court Judge Michael Flournoy made his plea
to the state's high court to avoid continued suspension
Thursday by lashing out at the process used to investigate
Attorney Tom Slutes told the Arizona Supreme Court that the
procedures followed by the Commission on Judicial Conduct
prejudiced the judge's case. He said the commission staff
purposely sought out people who had nothing good to say about
Flournoy and turned off their tape recorders when witnesses
said nice things about the judge.
Slutes also said the underlying procedure is flawed, with
the commission and its staff effectively acting as the police,
the prosecutor and the judge.
Justice Frederick Martone conceded Slutes may have a point
on that last issue. He said it is possible there should be a
two-tiered process, with one group handling the investigation
and a separate group acting as a court.
In fact, the justices may take up the question of revamping
the procedure separately from Flournoy's case.
"But what I was never able to discern in your brief is
prejudice (to Flournoy) that might flow from this," Martone
told Slutes of his complaints. Slutes responded that he
couldn't say, as the commission has refused to give him other
information it might have.
Martone appeared unconvinced. He called it a "where's the
beef situation," suggesting that unless Flournoy can show his
defense was prejudiced, it amounts to "no harm, no foul."
The commission is recommending Flournoy be suspended for 18
months. That includes six months for intemperate conduct based
on incidents of yelling at and threatening attorneys and
getting into a shouting match in his chambers with Julie
Carlson, the clerk of superior court.
Commission members also want the high court to impose
another 12-month suspension to punish Flournoy for ordering
his court reporter not to transcribe part of a discussion he
had with some attorneys in chambers. Commissioners said that
part of the record was material to another case and said it
amounted to tampering with an official transcript.
Slutes said Flournoy did not get justice before the
For example, he pointed out there were witnesses --
including a retired appellate court judge -- willing to
testify that Flournoy was within his rights in declaring that
the part of the conversation he ordered his court reporter not
to type up was not, in fact, part of any official record. The
commission, however, refused to allow that testimony,
something Slutes said denied the judge his due-process rights.
He also said that character witnesses should have been
allowed to testify to the judge's veracity before the
commission decided that the court reporter was more credible
than the judge on exactly what happened.
Martone noted none of this would have become an issue --
and Flournoy never would have come under commission scrutiny
-- had the judge simply declared the conversation "off the
record" before he made some comments about being afraid of a
potential juror over whose criminal case he had presided
He said it would appear the judge had a right to do that as
the comments he made to the lawyers had nothing to do with the
case they were discussing. That would have meant no transcript
over which to fight.
Attorney Michael Sillyman, representing the commission,
said that question is academic: The comments were recorded and
Flournoy ordered that they not be transcribed. He said that
deprived an attorney for the juror of the opportunity to
challenge the judge's impartiality at a hearing.
Martone said if Flournoy's demeanor is as bad as the
commission suggests there would have been a host of complaints
from lawyers. Instead, it was only the complaint from the
court reporter that led to the commission's investigation
which unearthed the other incidents.
Sillyman said there were no complaints about the judge for
the same reason that many -- if not most -- of the attorneys
who practice in Flagstaff signed letters and petitions in
support of the judge.
"Flagstaff is a small community," he said. Sillyman said
there is "tremendous pressure" on lawyers who practice there
to back Flournoy as they know they could easily appear before
him in the future.
"That is the kind of pressure that should not be placed on
practicing lawyers," he said.
Separately, Slutes asked the court to lift Flournoy's
interim paid suspension imposed in June, when the commission
made its recommendation.
Justice Stanley Feldman pointed out that the constitution
states a judge is disqualified "while there is pending ... a
recommendation to the Supreme Court by the Commission on
Judicial Conduct for his suspension, removal or retirement."
He questioned how the high court can ignore that.
Slutes sidestepped the question. Instead, he responded that
the real issue before the court is whether Flournoy is guilty
of anything and, if so, what should be the penalty.