9/24/99

By HOWARD FISCHER
Capitol Media Services


PHOENIX -- 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 him.

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 commission.

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 previously.

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.