dissenting.
I dissent from the finding that Judge Thomas misrepresented his relationship with Ms. Hatfield. Initially, Judge Thomas answered questions concerning a “close personal relationship.” Thereafter, the Commission charged him with omitting information about a “personal relationship.” I believe it to be fundamentally unfair and a violation of due process for the Commission not only to investigate, to prosecute, and to adjudicate, but also to legislate by defining the elements of an offense. The unfairness is compounded by changing an element of the offense from “close personal relationship” to “personal relationship.”
The Judicial Conduct Commission was created by the judicial article and in many ways, it functions as a specialized court. Consequently, I believe that members of the Commission should abide by Canon (3)(E)(1) of the Code of Judicial Conduct which requires disqualification in a proceeding where there is personal knowledge of disputed evidentiary facts. In finding Judge Thomas guilty by omitting facts it expected to hear, the Commission created the facts which it has adjudicated to be the basis of the offense it legislated.
A review of the procedural events and Judge Thomas’ communications with the Commission establish that Judge Thomas provided accurate information. Moreover, Judge Thomas responded to the questions which were put to him although, as time progressed, the Commission re-phrased the “relationship” question which the Commission initially asked Judge Thomas, from “close personal relationship” to “personal relationship” in the later charge. Judge Thomas interpreted “close personal relationship” to be romantic or boyfriend/girlfriend.
On April 7, 2001, Judge Thomas received a letter from the Commission invit-*587mg him to appear at an informal conference before the Commission scheduled for April 26, 2001, to discuss whether he had a “close personal relationship” with Ms. Hatfield during most of his term as District Judge. The April 26, 2001, informal conference is when the Commission alleges that Judge Thomas made misrepresentations about the nature and extent of his relationship with Ms. Hatfield. Judge Thomas testified at the informal appearance before the Commission that he did not believe that he had a “close personal relationship” with Ms. Hatfield during most of his term as, a District Judge. Even though it is a subjective call by each individual, the phrases “close personal relationship” and “personal relationship” are different terms of endearment.
Notwithstanding the Commission’s own use of the phrase “close personal relationship” at the time of the informal conference, when the Commission later returned a charge against Judge Thomas, the phrase became “personal relationship.” It is elementary that there is a difference between a “personal relationship” and a “close personal relationship.”
The Commission’s use of different phrases at different critical times for the alleged relationship reflects the fundamentally ambiguous nature of the question asked of Judge Thomas. Under a long line of case law, the answer to a question or line of questioning which is considered fundamentally ambiguous is insufficient as a matter of law to support a contention that the person answering the question has made a materially false statement of facts, such as would support a perjury claim. United States v. Lighte, 782 F.2d 367, 375 (2nd Cir.1986); United States v. Finucan, 708 F.2d 838, 848 (1st Cir.1983); United States v. Bell, 623 F.2d 1132, 1137 (5th Cir.1980); United States v. Tonelli, 577 F.2d 194, 199 (3d Cir.1978); United States v. Wall, 371 F.2d 398, 400 (6th Cir.1967). Stated another way, when there is more than one way of interpreting or understanding a question, and the witness has answered truthfully as to his understanding of the question then, there is, as a matter of law, no materially false statement of fact. Further, the general rule is that an alleged materially false statement must be a statement of fact, not a mere statement of opinion or belief. 60A Am. Jur.2d Perjury, § 22, 1080 (1988). According to St. Augustine, lying is “having one thing in one’s heart and uttering another with the intention to deceive.” Sissela Bok, Lying: Moral Choice in Public and Private Life 33 (Vintage Books 1989).
Changing the “close personal relationship” allegation into the “personal relationship” charge did not provide either “fair warning” or “explicit standards” to Judge Thomas concerning the area of inquiry.
I would dismiss Count VI and remand to the Commission to review the period of suspension.