(dissenting).
Clear and convincing proof will be shown where the truth of the facts asserted is “highly probable.”
In re Miera, 426 N.W.2d 850, 853 (Minn.1988) (quoting Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.1978)).
I respectfully dissent. The court publicly reprimands Judge Stacey because it concludes that he either knew or should have known that by asking him to resolve her husband’s traffic ticket, the clerk was violating county policy. I conclude that the evidence is clear and convincing that Judge Stacey should have known that the clerk’s request violated county policy. But I conclude the board failed to prove, by clear and convincing evidence, that Judge Stacey actually knew the clerk’s request violated that policy. There is a significant distinction between actual knowledge and constructive knowledge in this context. Further, I am concerned that when the court publicly reprimands Judge Stacey for what he should have known about this traffic ticket, the court may, at least in part, be heightening the discipline imposed as a consequence of Judge Stacey having candidly and honestly testified about his lack of recollection of the specific facts of this case.
At the outset, we are confronted by a conundrum in the Rules of the Board on Judicial Standards. The panel that heard testimony in this matter found “[i]t is unclear whether [the clerk] referred to [the ticketed driver] as her husband.” But the Board on Judicial Standards makes no such finding. Rule 13(f), Rules of Board on Judicial Standards, provides that we are to “review the record of the proceedings on the law and the facts and * * * file a written opinion and judgment directing such disciplinary action as [we] find[ ] just and proper, accepting, rejecting or modifying in whole or in part the recommendation of the board.” But the rules do not specify how our review is to proceed.
In lawyer discipline proceedings, we uphold a referee’s factual findings and conclusions of law if they have evidentiary support in the record and are not clearly erroneous. In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). Deference to a referee in lawyer discipline proceedings is particularly appropriate when the findings are based on a witness’s demeanor, credibility, or sincerity. Id. Accordingly, we reverse findings of fact in lawyer discipline matters only if, “upon review of the entire evidence, [we are] left with the definite *353and firm conviction that a mistake has been made.” Id. (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)).
In this case, unlike lawyer discipline cases, we received two sets of findings of fact and conclusions of law: those of the three-member fact-finding panel that we appointed, and those of the board. The board’s findings differ from those of the panel on a key aspect of the case that should prove crucial to our ultimate determination of whether Judge Stacey knew or should have known the request violated county policy: whether the clerk explicitly referred to the ticketed driver as her husband.
The last time we faced a difference between the board’s findings of fact and those of a fact-finding panel, judicial discipline proceedings were governed by a different set of rules. When we decided In re McDonough, 296 N.W.2d 648 (Minn.1979), the Rules of the Board on Judicial Standards specifically allowed for fact finding by either the Commission on Judicial Standards — as it was then called — or an appointed referee. Prior to 1978, the rules were called “Rules of the Commission on Judicial Standards.” Rule G.l, Rules of Board of Judicial Standards (1978). Moreover, when fact finding was conducted by a referee, the affirmative vote of at least five commission members “who have considered the report of the referee and objections thereto, or who were present at any oral hearing before a referee” was required for a recommendation of discipline. Rule R.l (1978). Finally, the rules then provided that:
The commission shall make written findings of fact and conclusions of law along with its recommendations for action thereon with respect to the issues of fact and law in the proceedings, or may adopt the findings of the referee, in whole or in part, by reference thereto.
Rule R.2 (1978). That is, the rules explicitly allowed the commission to make factual findings different from those of the appointed referee.
In contrast, current board rules do not allow the board to conduct its own fact finding. And, current Rule 11(c) provides: “The findings and recommendations and the hearing record shall be promptly reviewed by the board. The board may substitute its judgment for that of the factfinder.” I construe the current rule to allow the board to “substitute its judgment” as to conclusions of law and recommendations for discipline, but not to make findings of fact that differ from those of the fact finding panel, particularly when those findings rely on the credibility of a witness who has testified before the panel but not the board.
We have observed that “[t]he clear and convincing standard arises from an appreciation of the gravity of a disciplinary proceeding and the magnitude of the loss to which a disciplined judge is subjected.” In re McDonough, 296 N.W.2d at 692. For the foregoing reasons, I conclude that our court must adopt the panel’s finding that it is “unclear” whether the clerk explicitly referred to the ticketed driver as her husband. Given this uncertainty, I conclude the board has not proven by the requisite clear and convincing evidence that Judge Stacey knew the clerk’s request violated county policy. That is, I cannot say that on this record, it is “highly probable” that Judge Stacey dismissed the ticket knowing it had been issued to the husband of a county employee.
I do, however, believe that the board proved by clear and convincing evidence that Judge Stacey should have known that the ticket belonged to the clerk’s husband and, therefore, should have known that the clerk’s request violated county policy. Even if the clerk did not explicitly refer to *354the ticketed driver as her husband, the driver’s name appeared on the ticket and on the driving record the clerk printed, and the driver’s last name was the same as the clerk’s. In addition, the clerk testified that she showed Judge Stacey an insurance card to prove that the driver carried insurance. The card itself is not in the record, but the clerk testified that “[w]e’ve always had insurance on our cars.” From that statement, I surmise that the insurance card bore the names of the clerk and her husband, as it typically would when a married couple is insured. Finally, it is significant that the panel found that the clerk told Judge Stacey that the required child support had been paid, but apparently offered no documentation of that fact. If Judge Stacey had not realized from this exchange with the clerk up to this point that the clerk and the driver were related, the clerk’s undocumented representation as to payment of the child support should have aroused enough suspicion for the judge to inquire further how the clerk knew the child support had been paid, and that inquiry should have disclosed the relationship.
Having concluded that the board proved only that Judge Stacey should have known that the driver and the clerk were related and the request therefore violated county policy, the question becomes— what is the appropriate discipline to impose? I believe that under these circumstances imposition of a public reprimand is not warranted; rather, the board should have privately warned Judge Stacey and (1) cautioned him to be more careful in the future in handling this type of case; and (2) reviewed with him what procedures he should follow when handling similar matters.
In reaching this conclusion, I note particularly that Judge Stacey testified he has no independent recollection of his conversation with the clerk, of the ticket, or of his resolution of the ticket. I find the judge’s testimony believable given the number of traffic tickets judges process on a regular basis, but this honest recounting has put Judge Stacey at a distinct disadvantage because he was unable to contradict anything to which the clerk testified. I also note that, as the court concludes, there is no evidence that Judge Stacey’s resolution of the ticket was inconsistent with the way in which minor traffic offenses are handled by the judges in Dakota County. Given these facts and circumstances, we should not impose public discipline on Judge Stacey.
But to recommend against public discipline for Judge Stacey for following court procedures is not to condone these procedures. To the contrary, the court’s procedures for resolving payables offenses are flawed in many respects. Minnesota Statutes § 631.21 (2006) allows for dismissal of a criminal action, and prescribes the following procedures to be taken:
The court may order a criminal action, whether prosecuted upon indictment or complaint, to be dismissed. The court may order dismissal of an action either on its own motion or upon motion of the prosecuting attorney and in furtherance of justice. If the court dismisses an action, the reasons for the dismissal must be set forth in the order and entered upon the minutes. The recommendations of the prosecuting officer in reference to dismissal, with reasons for dismissal, must be stated in writing and filed as a public record with the official files of the case.
I believe that it is reasonable to adapt this procedure to the resolution of payables offenses.
First, the Dakota County judges who testified in this matter all stated that prosecutors never objected to their resolution *355of matters without prosecutorial input. It may well be the case that prosecutors in the county do not object to judges resolving cases without prosecutorial input. But the basis for the court’s procedures should be an explicit agreement with prosecutors, not the absence of an objection from them. Second, by resolving charges in reliance even in part on a clerk’s representations, the court’s procedures leave no paper trail by which the factual basis for the judge’s disposition can be traced. No charge should be dismissed or continued without documentation. In this case, that required documentation should have included: proof of insurance, proof of an otherwise clean driving record, and proof that child support had been paid. Further, to create a paper trail, such matters should always be resolved on the record, reciting the documentation provided to justify the resolution of the charge. By resolving matters in chambers, the court creates the very problem discussed by Judge Stacey in his testimony: the appearance of impropriety because not everyone ticketed in the county knows that his or her ticket can be resolved without pleading guilty or going to trial. To avoid this problem, matters should be resolved in open court whenever possible.
Finally, while I agree that, under certain circumstances such as those in this case, it is appropriate to discipline a judge who should have known that his or her conduct violated the Canons, I believe that we must be very careful in applying this nebulous standard. Unlike the standard that requires actual knowledge, the should-have-known standard is more subjective and may be difficult for us to apply. Hence, this standard has the potential to sweep too broadly. Further, I see as the real problem in this case the Dakota County court’s standard procedures for disposition of minor traffic tickets. These procedures allowed, and may even have facilitated, Judge Stacey’s case to unfold as it has. I believe it would be most appropriate here for us to vigorously condemn the court procedures but show more understanding for the judge who, by following those procedures, committed an act that violated the Canons.
I respectfully dissent.