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                    SUPREME COURT OF ARIZONA
                               En Banc


                                   
In the Matter of                   )    Arizona Supreme Court
                                   )    No. JC-99-0002
J. MICHAEL FLOURNOY                ) 
Judge of the Superior Court,       )    Commission on Judicial
Coconino County, State of Arizona  )    Conduct
                                   )    No. 98-008
                                   )
                                   )    
                                   )    O P I N I O N
                                   )



           ORIGINAL PROCEEDING FOR DISCIPLINARY ACTION 

                         RESPONDENT SUSPENDED


                                                               
 


Slutes, Sakrison, Grant, Hill and Rubin                   
Tucson
  By Tom Slutes
Gary Stuart                                              
Phoenix
  and
Edith Croxen                                              
Tucson
Attorneys for J. Michael Flournoy


Kutak Rock                                               
Phoenix
  By Michael Sillyman

_

Attorney for Commission on Judicial Conduct


                                                               
 



M A R T O N E, Justice.

1       This is a judicial disciplinary proceeding in which J.

Michael Flournoy, Judge of the Superior Court of Arizona in

Coconino County, asks us to reject the sanction recommended by

the Commission on Judicial Conduct under Rule 11, Rules of

Procedure for the Commission on Judicial Conduct.

                           I.  BACKGROUND

2       The Commission charged Judge Flournoy with five counts

of judicial misconduct.  Count I alleged that Judge Flournoy

engaged in significant and frequent outbursts of temper in the

courtroom.  Count II alleged that Judge Flournoy reacted

violently when the clerk of the superior court approached him

about a problem with the numbering system for grand jury

returns.  Count III alleged that Judge Flournoy frequently

engaged in ex parte contacts with lawyers about the merits of

individual cases.  Count IV alleged that Judge Flournoy made

inappropriate comments about the physical attributes of female

lawyers and court staff.  Count V alleged that Judge Flournoy



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tampered with the official transcript in the case of Reinen v.

Northern Arizona Orthopedics, CV 95-0280.

3         The Commission and Judge Flournoy stipulated to return

Counts III and IV to the Commission for informal discipline.

The Commission accepted the stipulation and reprimanded Judge

Flournoy on each count.  The stipulation provided that the

Commission could consider Counts III and IV in aggravation when

determining the appropriate sanction, if any, following the

formal hearing on the remaining charges.

4         The Commission and Judge Flournoy also entered into a

stipulation with respect to Counts I and II.  It provided that

Judge Flournoy would not dispute the existence of a prima facie

case on Counts I and II on condition that the sanction

recommended on those counts range from no discipline to a six-

month suspension.  The stipulation also provided that Judge

Flournoy waived the right to appeal the Commission's findings

and recommended discipline for Counts I and II.1



      1 Judge Flournoy argues that he did not admit any wrongdoing
in the stipulation on Counts I and II.  He further argues that
the agreement is ambiguous.  We do not find any ambiguity.  But
even if there were, Judge Flournoy did not object during the
disciplinary hearing when the presiding officer stated that "the
stipulation means that Counts 1 and 2 of the Amended Statement
of Charges are considered proven" and the hearing would "proceed
as to Count 5 only."  Tr. Mar. 25, 1999 at 7-8.  Judge Flournoy
thus waived any issue about the meaning of the stipulation. 


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5       After an evidentiary hearing on Count V, the only

remaining charge, the Commission filed its Amended Findings of

Fact, Conclusions of Law, and Recommendations.  We independently

review the Commission's findings because we are the ultimate

trier of fact and law. In re Lockwood, 167 Ariz. 9, 11, 804 P.2d

738, 740 (1990).  We do, however, give serious consideration to

the Commission's findings, In re Haddad, 128 Ariz. 490, 491, 627

P.2d 221, 222 (1981), particularly when questions of credibility

are involved. In re Lorona, 178 Ariz. 562, 565, 875 P.2d 795,

798 (1994).  In this light, the relevant facts follow.

6       Judge Flournoy was the trial judge in State v. Dowtin,

CR 96-0093, and placed Dowtin on probation.  Later, Dowtin was

called as a potential juror in  Reinen v. Northern Arizona

Orthopedics, CV 95-0280, a civil proceeding before Judge

Flournoy.  At voir dire, Dowtin asked to be excused because of

his involvement in pending litigation.  Judge Flournoy adjourned

to chambers with Dowtin, the lawyers, the clerk, and the court

reporter, Kathryn Anderson. 

7       While in chambers, Judge Flournoy explained that Dowtin

was involved in some litigation before him.  Judge Flournoy then

allowed the lawyers to question Dowtin.   After their

examination, Judge Flournoy, without objection, excused Dowtin

from further service as a juror.  


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8       Once Dowtin left chambers, one of the lawyers asked

Judge Flournoy to clarify Dowtin's concerns about sitting as a

juror.  Judge Flournoy explained that Dowtin was on probation

for two misdemeanors.   Judge Flournoy stated, "He's

different....I was so scared of [Dowtin] I would move to the

courtroom at night because he's a gunman, I didn't want to get

plucked out of the chair....And I came down real hard on him and

put him on probation with these conditions."  Petitioner's Ex.

10 at 6.  Anderson continued to record the proceedings until one

of the lawyers asked whether they were  "still on the record."

Id. at 7.  Judge Flournoy stated that they were not and Anderson

stopped recording.

9       The preceding facts are undisputed.  At this point,

however, the testimony differed.  Anderson testified that Judge

Flournoy approached her after Dowtin's voir dire and stated, "If

anyone orders that transcript of Dowtin being in chambers, I

want to know about it."  Tr. Mar. 25, 1999 at 29.  A short time

later, Mr. Gustafson, Dowtin's criminal lawyer, ordered a copy

of the transcript.  Anderson informed Judge Flournoy of

Gustafson's request and testified that Judge Flournoy told her,

"Okay.  What I want you to do is, when [Dowtin] leaves the room,

that's the end of the transcript."  Id. at 30.  When Anderson




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replied, "I don't feel comfortable with that," Judge Flournoy

responded, "Just do it."  Id.

10        Anderson claimed that she was very upset after this

conversation but followed Judge Flournoy's instruction.  She

sent  Gustafson only that portion of the transcript up to the

point where Dowtin left Judge Flournoy's chambers.  She

discussed her discomfort with her fellow staff members and told

them that she "was  very  upset  about  it  because [she] felt

like  it  was  an ethical problem for [her] as a court

reporter."  Id. at 32.2  Anderson also prepared herself a note

memorializing Judge Flournoy's instructions.  The note read,

"Dowtin-ordered me to stop transcript @ Dowtin's leaving

chambers when he'd made remarks to attys how weird he was.

Dowtin situation misdemeanor? `Just do it.'"  Petitioner's Ex.

25.

11        Judge Flournoy testified that Anderson's recitation of

the facts was incorrect.  He denied instructing Anderson to omit

any portion of the record.  He testified that while they were

returning to the courtroom from chambers she asked if they had

been on the record after Dowtin had left chambers, to which


       2 Linda Star, Judge Flournoy's court clerk, testified that
Anderson told her Judge Flournoy instructed Anderson "[i]f this
is ever transcribed, don't include comments that I made about
Mr. Dowtin."  Id. at 143. 


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Judge Flournoy answered, "No."  Tr. Mar. 25, 1999 at 110.  He

claims that Anderson never communicated any ethical concern to

him.  "[S]he at no time ever asked me anything about what I

wanted or not wanted in any transcript....She did her own thing.

I never was involved in what was in or not in any transcript."

Id. at 111-12.  Judge Flournoy testified that he asked Anderson

about the alleged omission and asserted that Anderson admitted

that he "never asked her to delete any portion of the Reinen

transcript.  And if [he] had asked her to make such a

deletion,...that she would not have done so under any

circumstances."  Id. at 138. 

12      Gustafson had moved to disqualify Judge Flournoy for

cause in Dowtin's criminal case and was seeking evidence of

Judge Flournoy's bias against Dowtin. Gustafson testified that

he never received the portion of the transcript that began after

Dowtin left Judge Flournoy's chambers.  After learning of the

omitted portion of the transcript, Gustafson felt that Judge

Flournoy's true feelings regarding Dowtin "had been suppressed

and hidden."  Id. at 59.  At the disqualification hearing,

Gustafson asked Judge Flournoy if he "had paranoid feelings

about Mr. Dowtin" to which Judge Flournoy responded, "I don't

think of him any different [sic] than any other defendant."

Petitioner's Ex. 11 at 28. Gustafson believed that the omitted


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portion of the transcript could have been useful in impeaching

Judge Flournoy at the disqualification hearing.  Gustafson

stated, "It would have been in bold, upper case print.  I would

have used it."  Tr. Mar. 25, 1999 at 61. 

                 II. The Commission's Decision

13      The Commission had informally disciplined Judge

Flournoy six times before this case.  Judge Flournoy became a

judge in 1992.  In 1993, in Case 93-181, the Commission

admonished Judge Flournoy for failing to recuse himself.  In

Case 94-143, the Commission reprimanded Judge Flournoy for

making gratuitous and unnecessary comments to the parents of a

victim.  Later that same year, in Case 94-210, the Commission

reprimanded Judge Flournoy for losing his temper with a lawyer.

In Case 95-059, the Commission admonished Judge Flournoy for

making insensitive remarks to a criminal defendant.  The

Commission reprimanded Judge Flournoy for making inappropriate

comments to a litigant in Case 98-266.  Finally, in Case 98-270,

the Commission reprimanded Judge Flournoy for inappropriately

asking a defense lawyer if his client was guilty and for making

inappropriate comments to the defendant.  

14      In recommending a sanction, the Commission considered

both aggravating and mitigating circumstances.  In aggravation,

the Commission found that Judge Flournoy's "regular and well-


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known outbursts of temper, his frequent abuse of attorneys, his

improper treatment of witnesses and staff, his  ex  parte

communications in violation of the Code of Judicial Conduct, and

his tampering with an official court record, all taken together,

demonstrate a pattern of misconduct and a consistent lack of

regard for the high position he holds."  Amended Findings at 13.

In mitigation, the Commission considered Judge Flournoy's

"reputation as an efficient, hardworking trial judge who is

current in his caseload."  Id.   The Commission also found Judge

Flournoy's "reputation in much of the legal community is that he

is a truthful person."  Id. 

15      On Count I, the Commission found that Judge Flournoy's

"repeated outbursts of temper, in which he shouted at attorneys

and litigants, belittled attorneys in the presence of their

clients, and gestured in a threatening manner exceeds [sic]

behavior that might normally be tolerated or expected of a judge

who regularly handles difficult cases."  Id. at 14.  The

Commission concluded that this conduct violated Canons 1A, 2A,

3B(3), and 3B(4) of the Code of Judicial Conduct, Rule 81, Ariz.

R. Sup. Ct., and constituted conduct prejudicial to the

administration of justice  within the meaning of article 6.1,

section 4 of the Arizona Constitution.  




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16      On Count II, the Commission found that Judge Flournoy's

"conduct in shouting and pointing his finger at the elected

clerk of the superior court, while standing over her and making

derogatory and cruel comments, claiming that she did not know

what she was doing and threatening to throw her in jail,"

violated Canons 1A, 2A, and 3B(4) of the Code.  Id.  The

Commission concluded that this conduct was prejudicial to the

administration of justice in violation of article 6.1, section

4 of the Arizona Constitution. 

17      On Count V, the Commission found that "Anderson is a

credible witness on this issue and [Judge Flournoy] is not."

Id. at 8.  Consequently, it found Judge Flournoy's "instruction

to his court reporter to not transcribe a portion of the jury

selection proceedings in chambers constituted tampering with

official court proceedings" in violation of Canons 1A and 2A of

the Code.   Id. at 15.  The Commission concluded that this

conduct constituted willful misconduct in office in violation of

article 6.1, section 4 of the Arizona Constitution.  

18      Finally, the Commission found that Judge Flournoy's

repeated failure to respond to informal discipline was

irresponsible and improper in violation of Canon 2A of the Code,

and prejudicial to the administration of justice in violation of

article 6.1, section 4 of the Arizona Constitution.


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19         The Commission recommended that we suspend Judge

Flournoy for his conduct on Counts I and II for a period of at

least six months.  With respect to his conduct on Count V, the

Commission recommended that we suspend Judge Flournoy for an

additional period of at least twelve months, consecutive to his

suspension for Counts I and II.  The Commission also recommended

that reinstatement be conditioned on his successful completion

of counseling and education, and upon demonstration to the

Commission, after an evidentiary hearing, that he would comply

with the Code of Judicial Conduct.    Four members of the

Commission dissented.  They recommended removal.  They also

doubted whether our rules allow reinstatement to be conditioned

on an evidentiary showing to the Commission.     

20         The Commission filed its Amended Findings on June 23,

1999.  Article 6.1, section 2 of the Arizona Constitution

provides that a judge is disqualified from acting as a judge,

without loss of salary, while a recommendation of suspension is

pending before this court.  We therefore suspended Judge

Flournoy on June 24, 1999, pending our final decision. See Rule

11(d), Rules of Procedure for the Commission on Judicial Conduct

("interim suspension required by article 6.1, section 2").

        



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                         III.  RESOLUTION

21          Judge Flournoy first argues that the Commission's

limited discovery procedures violated his due process rights.

But the Commission's discovery procedures complied with the

Rules of Procedure for the Commission on Judicial Conduct.  More

importantly, Judge Flournoy fails to demonstrate how the

Commission's discovery procedures prejudiced him in any way.  We

thus find that the Commission's discovery procedures did not

deny Judge Flournoy due process.

22          Judge Flournoy next argues that the Commission's

combined investigatory and adjudicatory functions denied him due

process under the circumstances of this case.   In  Matter of

Ackel, we concluded that "a combination of investigative and

judicial functions within an agency does not violate due

process."  155 Ariz. 34, 38, 745 P.2d 92, 96 (1987), overruled

on other grounds by In re Jett, 180 Ariz. 103, 882 P.2d 414

(1994).  We said that, "[a]n agency which has only the power to

recommend penalties is not required to establish an independent

investigatory and adjudicatory staff."  Id. at 38-39, 745 P.2d

at 96-97.

23          Judge Flournoy distinguishes  Matter of Ackel by

focusing on the manner in which the Commission conducted its

investigation in this case.  He argues that the Commission


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invaded his privacy by conducting an unnecessarily broad

investigation.  Although Judge Flournoy alleges damage to his

credibility and general reputation, he fails to show how the

invasion to his privacy affected this case or prejudiced the

proceedings on the specific charges against him. 

24      Judge Flournoy further argues that Matter of Ackel does

not apply here because the Commission flagrantly disregarded its

obligation to separate its investigatory function from its

adjudicatory function.  Yet he fails to show the relevance of

this to his case.  Again, he shows no prejudice.

25      Judge Flournoy next argues that the Commission failed

to prove Count V by clear and convincing evidence.  At the

hearing, the Commission called five witnesses, including Judge

Flournoy and Anderson.  The Commission found that Anderson was

a credible witness and Judge Flournoy was not.  We give

deference to this finding because the Commission heard and saw

the witnesses and we did not.  Anderson's note corroborated her

testimony.  Linda Star  confirmed Anderson's testimony.

Finally, the undisputed facts support her testimony.  The

portion of the hearing not transcribed for Gustafson was

inconsistent with Judge Flournoy's testimony at the

disqualification hearing.  At the disqualification hearing,

Judge Flournoy understated his feelings and said that he did not


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have any unusual fear of Dowtin.  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.  Even if that

part of the voir dire was supposed to have been off the record,

it was recorded.  Once recorded, and relevant to another legal

proceeding, there was no justification for withholding it.   We

agree with the Commission that Count V was proven by clear and

convincing evidence.

26         Finally, Judge Flournoy argues that the Commission's

recommended sanction is excessive and violates the doctrine of

proportionality.  But Judge Flournoy had a total of six prior

disciplinary cases on his record which began a mere year after

he joined the bench.  He was given several opportunities to

change his behavior but did not do so.  In addition, Counts I,

II, III, and IV were aggravating factors.  The Commission's

recommended term of suspension is within the range of reason.

We thus adopt  it.   We do not, however, adopt the Commission's

recommendation with respect to conditional reinstatement.  We

agree with the dissenting commission members that our rules do

not empower the Commission to hear a request for reinstatement.

Upon the expiration of the term of suspension, a suspended judge

resumes the duties of the office without further order of this

court.  


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                          IV.  Conclusion

27        Under the authority of article 6.1, section 4 of the

Arizona Constitution, Judge Flournoy is suspended without pay to

and including December 24, 2000, effective upon the filing of

this opinion.3  Judge Flournoy is also assessed costs and

reasonable fees actually incurred as may be taxed and allowed.


                                                              
                                 Frederick J. Martone, Justice
CONCURRING:


                             
Stanley G. Feldman, Justice


                             
Ruth V. McGregor, Justice


                             
Rudolph J. Gerber, Judge


                             
Michael D. Ryan, Judge





       3 Making the suspension without pay effective on the filing
of this opinion, rather than retroactively, is consistent with
In re Goodfarb, 179 Ariz. 400, 403, 880 P.2d 620, 623 (1994).
Retroactive suspensions are more appropriate in cases involving
illegal conduct.  See  Matter of Marquardt, 161 Ariz. 206, 216-
17, 778 P.2d 241, 251-52 (1989).


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Chief Justice Thomas A. Zlaket and Vice Chief Justice Charles E.
Jones recused themselves and did not participate in the
determination of this matter.  Pursuant to article 6, section 3
of the Arizona Constitution, Judge Rudolph J. Gerber and Judge
Michael D. Ryan of the Court of Appeals, Division One, were
designated to sit in their stead. 




































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