Flouting deterrence

Deterring similar conduct has been cited as one of the purposes of judicial discipline.  See, e.g., In re Peck, 867 P.2d 853 (Arizona 1994); In re Cox, 658 A.2d 1056 (Maine 1995); In re Hathaway, 630 N.W.2d 850 (Michigan 2001); In re Miera, 426 N.W.2d 850 (Minnesota 1988); In re Krepela, 628 N.E.2d 262 (Nebraska 2001); In re O’Dea, 622 A.2d 507 (Vermont 1993); In the Matter of Turco, 970 P.2d 731 (Washington 1999).

Further, the lack of prior judicial precedent indicating particular conduct was unethical has been considered a mitigating factor in judicial discipline proceedings.  See Commission on Judicial Performance v. Dodds, 680 So. 2d 180, 200 (Mississippi 1996).

A recent removal case illustrates the first concept and applies the flip-side of the second.  The Minnesota Supreme Court removed a judge for failing to reside within his judicial district and making a knowingly false statement regarding his residency in his affidavit of candidacy.  Inquiry into the Conduct of Pendleton (October 14, 2015).

The Court noted that, in 2011, it had suspended a judge without pay for 6 months for failing to comply with the constitutional residency requirement and making an affirmative misrepresentation and material omissions to the Board on Judicial Standards.  Inquiry into Karasov, 805 N.W.2d 255 (Minnesota 2011).  The Court concluded that Judge Pendleton’s misconduct was substantially more serious than Judge Karasov’s misconduct.

When we suspended Judge Karasov, we expressed our “lack of tolerance for a judge’s failure to comply with her constitutional obligations” and for a judge’s failure to act honestly and candidly with the Board. . . .  Just 2 years after we gave this clear warning and despite being fully aware of our decision in Karasov, Judge Pendleton deliberately chose to reside outside of his judicial district for even longer than Judge Karasov did. . . .  Judge Pendleton consciously disregarded both his constitutional obligations and our decision in Karasov.

The Court emphasized:

The integrity of the judicial system is seriously undermined when a judge not only violates his or her constitutional obligations [regarding residency] but also flouts a discipline decision of our court. . . . .  The public’s trust and confidence in the Minnesota judiciary will be eroded if the disciplinary system is unable to deter similar acts of serious misconduct by other judges. . . .

The Court also stated that the context in which the judge made the knowingly false statement about his residency was “especially troubling,” concluding “the integrity of the judiciary is severely undermined if a judge deceives voters by falsely representing that he or she satisfies a constitutional requirement to hold office.”

From the totality of the circumstances, the Court held that removal was required.

Judge Pendleton committed two very serious violations.  Each of his violations severely undermines the public’s trust in their judicial system.  When we assess Judge Pendleton’s violations and the cumulative impact his misconduct has on the public’s faith in the integrity of the judicial system, we conclude that the sanction of removal from office is the only sanction adequate to ensure that the people of Minnesota can have continued faith in the integrity of their justice system.

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