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
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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
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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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