06/24/99 12:00:00 AM

By HOWARD FISCHER
Capitol Media Services


PHOENIX -- Coconino County Superior Court Judge Michael Flournoy is fighting today for his right to remain on the bench.

Flournoy's attorneys are asking the Arizona Supreme Court to delay any suspension of the judge while the justices consider the charges against him.

Gary Stuart, one of his lawyers, said Flournoy is entitled to make his case, charging prosecutorial misconduct and due process violations.

Flournoy's request for a stay also notes that he handles one-fifth of the court cases in the county, and that to suspend him would be a burden on litigants and attorneys, as well as a financial burden on the county. He has submitted a petition with the names of 32 supporters who oppose the interim suspension pending a Supreme Court decision.

But the Commission on Judicial Conduct wants Flournoy suspended immediately, effective today.

The commission voted last month to recommend to the high court that Flournoy be suspended for 18 months for misconduct. That recommendation still needs to be reviewed by the justices.

But Keith Stott, executive director of the commission, said the Arizona Constitution requires a judge to step aside -- albeit with pay -- when that recommendation goes to the Supreme Court. That occurred Wednesday afternoon, though Chief Justice Thomas Zlaket was not available to sign the necessary order of disqualification.

Beyond that, the commission wants Flournoy to begin part of his unpaid suspension immediately.

Tempe Municipal Judge Louraine Arkfeld, who chairs the commission, noted that Flournoy voluntarily agreed not to appeal the group's recommended penalty on two of the five charges he faced. The commission voted for a six-month suspension; Arkfeld said Flournoy's waiver of his appeal rights means there is nothing for the high court to consider -- and no reason for delay.

Stuart countered that Flournoy agreed only not to challenge the punishment. He said the judge never gave up his right to contest the underlying findings on the two charges.

One involves yelling at and threatening attorneys who appeared in his court. The other stems from a shouting match in his chambers with Julie Carlson, clerk of superior court, with Flournoy threatening to have the sheriff throw her in jail.

"What if they have the wrong findings?" Stuart asked. "We have a right to object to these findings."

Not so, according to Arkfeld.

In the commission's report to the Supreme Court, she pointed out that, during the March hearings, it was stated on the record that Flournoy's stipulations on the two charges means they "are considered proven." Arkfeld said that neither of the judge's lawyers objected to that statement.

Two other charges resulted in informal discipline against Flournoy: improper out-of-court conversations with someone involved in a pending case and making improper comments about the physical attributes of female attorneys.

The judge fought the fifth charge of tampering with an official court record. Despite that, the commission said he was guilty and is recommending an additional 12-month suspension, to be served after the end of the six-month penalty.

Stuart acknowledged that the constitution states a judge facing a suspension recommendation by the commission is suspended without pay. He said, though, the Supreme Court has the power to ignore that provision.

He said the justices allowed a Maricopa County Superior Court judge to remain on the bench to complete pending cases while they considered a recommendation to suspend him.

The tampering charge stems from a complaint by Kathryn Anderson, who was his official court reporter from the time he took the bench until 1998.

Anderson testified that Flournoy directed that she not transcribe a part of a transcript of an in-chambers conversation with lawyers where Flournoy made the comments about being afraid of a potential juror. The man 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."