Matter of Voorhees

ROBERTSON, Judge,

concurring.

I concur in the principal opinion. Respondent is charged with a violation of the Canons of Judicial Ethics, Rule 2, Canon 3B(1), (2), (3). More specifically, the Commission on Retirement, Removal and Discipline’s Notice charges that respondent “failed to abide by the procedures set out in Guideline Judges’ Handbook which were specifically set out in the Appendix to the Supreme Court’s decision in In Re: Rules of the Circuit Court for the Twenty-First Judicial Circuit, 702 S.W.2d 457, 462 (Mo. banc 1985).” The Commission found that respondent’s order of February 27, 1986, “constituted an act of severe discipline of the four associate circuit judges.”

The principal opinion states “that disciplinary action was not appropriate for the conduct charged in the notice.... [N]o word, phrase or line of the Notice relates to the transactions described in [the Commission’s] conclusions.” (at 186- 187.) The principal opinion’s statement is both accurate and sufficient to support a conclusion that the Commission failed to inform respondent adequately of the charges which he would be called to answer and which the Commission ultimately found against him.

Our constitution guarantees that judges charged with violations of the canons of judicial ethics are entitled to the full complement of due process rights. Mo. Const, art. V, sec. 24. Having failed to advise respondent of the charges he would be *190called to answer, the Commission’s recommendation cannot stand.

The principal opinion correctly concludes that this failure of due process is sufficient to decide the case.

The Commission properly undertook its investigation and hearing in this matter. Respondent’s administrative order, issued in anticipation of the associate circuit judges’ refusal to adhere to the circuit’s new administrative plan, is of questionable legal ancestry. The legal issue — whether respondent has the authority to issue such an order — is not properly before us in this case. Aside from that legal issue, in matters of discipline one cannot naively assume that all administrative orders have a benign purpose; in this case, the administrative order issued by respondent at the direction of a majority of the circuit judges1 has the practical effect of suspending the associates from their public office indefinitely. Suspension is a matter of discipline. Discipline is the responsibility of the Commission on Retirement, Removal and Discipline of Judges. Thus, whether such an order would be an appropriate subject for discipline under proper proceedings before the Commission is a question of respondent’s intent, measured not only by his testimony, but also by the circumstances surrounding respondent’s actions.2

One hopes that the shoddy state of affairs in the Twenty-first circuit grew out of a genuine, properly-motivated concern for the welfare of those who come before the courts there. Early on, the presiding judge (selected when this Court still recognized the associates’ constitutional authority to vote) determined to disregard the administrative rules adopted by the circuit judges under the constitutionally-sanctioned procedures. This contumacious act led to our decision not to “enforce” Mo. Const, art. V, sec. 15.3 — itself an act finding neither support nor justification in the constitution. In re: Rules of the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985). Volatile circumstances arose. Pure motives gave way to strong-armed assertions of authority. Under these circumstances, one can imagine such administrative orders wielded as a sword for purposes other than the administration of justice. Yet given the Commission’s actions, whether in this case the administrative orders had other purposes is not properly before us.

Judge Welliver’s lengthy opinion concurring in result deserves comment. While the members of this Court have become acclimated to the ad hominem nature of our brother’s dissents, those he has shepherded into his sights today are without ability to respond or defend.

Since that fateful day in 1215 in a meadow called Runnymeade, when King John first announced its painful birth, due process has been among our most important entitlements, separating us from those governments which replace a fair hearing with a star chamber. Our courts have cherished it, nurtured it, protected and preserved it. And our constitution has guaranteed it. Just as respondent has found refuge under the shelter of due process in this case, due process is no less the rightful inheritance of associate circuit judges.

Certainly the associate circuit judges must bear their rightful portion of the blame for the problems in St. Louis County. No matter the depth of our disappointment or the righteousness of our indignation, however, the associate circuit judges are entitled to defend their conduct before an impartial tribunal, not be declared guilty in the pages of the Southwestern Reporter in a unrelated case. It appears that Judge Welliver’s opinion charges, prosecutes and pronounces the associates guilty without a *191hearing.3 King John might approve of such proceedings. Those who forced his hand to the Magna Charta would have none of it; neither should we.4

Nor is this a case calling for any discussion of a solution to the problems of the twenty-first judicial circuit. We are limited to the discipline issue. Our obligation and our duty is to decide the case before us and no more.5

Finally, Judge Welliver’s assertion that this Court’s denial of respondent’s application for a writ of prohibition is — as he describes it — an act of unclean hands, is troubling.6 Judicial discipline in Missouri is the province of a Commission on Retirement, Removal and Discipline created by express constitutional provisions. Mo. Const, art V, sec. 24. This Court’s function in individual matters of discipline is limited to concurring with the Commission’s recommendation and imposing appropriate discipline as permitted under the constitution, or in rejecting the Commission’s recommendation and dismissing the charges. Mo. Const, art. V., sec. 24.3.

The jurisdiction of the Commission is established by the constitution; we possess no authority to interfere with the investigatory or hearing processes. Our role is limited by the people to reviewing the Commission’s work once it is completed. We have the final choice to veto its recommendations, but we cannot dispossess the Commission of its constitutional authority to investigate and take to hearing any charge of judicial misconduct laid before it. It is this Court’s duty to prevent ultimate injustice at the hands of the Commission; this case shows that we are willing to fulfill our constitutional duty faithfully.

Were we to permit a majority of the members of this Court to prohibit the Commission from investigating charges of judicial misconduct and from proceeding to a hearing on those charges by the issuance of a writ of prohibition, we would place our system of judicial discipline in jeopardy. Judge Welliver decries the judicial politics he describes as “dangerous and sinister.” What could be more dangerous or more sinister than four judges of this Court seizing the authority to halt matters of judicial discipline properly pending before the Commission? One need not be gifted with too keen an imagination to understand the po*192tential for mischief such a “power” would carry.

APPENDIX A

In re: Administrative Orders of the Presiding Judge of the Twenty-First Judicial Circuit

No. 67950

May 13, 1986

UPON MOTION FOR AN ADMINISTRATIVE ORDER TO QUASH ADMINISTRATIVE ORDERS NO. 9-1986 AND NO. 13-1986 OF THE PRESIDING JUDGE OF THE TWENTY-FIRST JUDICIAL CIRCUIT, AND TO APPOINT A MASTER TO SERVE AS PRESIDING JUDGE OF THE TWENTY-FIRST JUDICIAL CIRCUIT

MEMORANDUM CONCURRING IN PART AND DISSENTING IN PART

Once again this Court is faced with administrative unrest in the Twenty-First Judicial Circuit. Three associate circuit judges now ask us to quash Administrative Order No. 9-1986 which requires that preliminary hearings be held not “less than six (6) days after the date of said prisoner’s preliminary arraignment” and Administrative Order 13-1986 which limits these associate circuit judges from setting more than fifteen preliminary hearings “on any one of the twelve (12) dockets established for preliminary hearings and misdemeanor trials each week.” I believe that these orders are within the general administrative authority of the Presiding Judge. Mo. Const, art. V, § 15.3. I concur in the Court’s order overruling the motion as to these Administrative Rules.

These associate circuit judges also ask that we appoint a special master to act as presiding judge of the Twenty-First Judicial Circuit.

The history of this vexing situation can be traced through Gregory v. Corrigan, 685 S.W.2d 840 (Mo. banc 1985), and Nolan v. Stussie, 695 S.W.2d 869 (Mo. banc 1985), to In re: Rules of the Circuit Court for the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985) (hereafter the October 11 decision).

In the October 11 decision, this Court suspended the operation of that part of Mo. Const, art. V, § 15.3, which “purports to grant to associate circuit judges the right to participate in the election of the presiding judge” in the Twenty-First Judicial Circuit. Id. at 459. The October 11 per cu-riam weighed the right of the people to an orderly administration of justice against the right of the people to speak through the Constitution, and determined that the constitutional provisions could not be enforced.

I joined the October 11 decision because of the seriousness of the threat to the orderly administration of justice within the Circuit, and with the intent that the solution proposed in that opinion was (1) temporary, and (2) limited in application to the Twenty-First Judicial Circuit. My concurrence was also born of the hope that such a strong statement of the Court’s resolve to remedy the inexcusable intramural bickering in that circuit would act as a catalyst in bringing about “an amicable resolution to [the Circuit’s] problems.” Id. at 457. It now appears that this hope was without foundation.

With the benefit of hindsight, I now believe that I was incorrect in joining in the October 11 decision, even to the extent of the limited, temporary nature in which I believe it was cast.

While it is beyond dispute that both factions in the Circuit share fault — and there is plenty of that to go around — the October 11 decision appears to have encouraged those who felt vindicated by it to express their “victory” in radical terms.

On February 27, 1986, the Presiding Judge of the Twenty-First Judicial Circuit issued Administrative Orders to Associate Circuit Judges George R. Gerhard, Joseph A. Goeke, III, Daniel J. O’Toole and Dennis J. Quillin purporting to relieve the named associate circuit judges of their dockets and directing that they relinquish control of their courtrooms and chambers. This Court stayed these Administrative Orders

*193by order on February 28, 1986. This Court’s order directed the named associate circuit judges to “carry out and perform all of the duties and functions of their office until further order of this Court” or until “further order of the circuit judges acting through the Presiding Judge of the Twenty-First Judicial Circuit pursuant to this Court’s Per Curiam in case No. 67397 [the October 11 decision].”

To the extent that this Court’s order of February 28,1986, prevented the Presiding Judge from enforcing his Administrative Orders of February 27,1986,1 concurred in the Court’s order.

The fact remains that there is no constitutional or statutory authority in the Presiding Judge to order the removal of these associate circuit judges from their courtrooms and chambers and to relieve them of the dockets in these circumstances. Each of these movants is holding office according to the mandates of Mo. Const, art. V. The Presiding Judge holds no greater claim to his office than do the movants. A presiding judge is to “have general administrative authority over the court and its divisions.” Mo. Const. art. V, § 15.3. Such power does not, in my view, include the power to suspend another judge from his judicial duties for the reasons expressed by the Presiding Judge. See Graham v. Cannon, 574 P.2d 305 (Okla.1978). In the absence of appropriate action by the circuit judges to quash the February 27, 1986 Administrative Orders of the Presiding Judge, I believe this Court should enter its order quashing those orders, sua sponte.

I further believe that our responsibility to assure the people of the Twenty-First Judicial Circuit of the orderly administration of justice demands that we take an additional step. With regret, I respectfully submit that this Court can no longer avoid direct intervention into the administration of the Twenty-First Judicial Circuit. The animosities which exist between the judges of that circuit have clouded judgment on each side. In the October 11 per curiam, this Court stated:

In the event that there be any further evidence of inability of the Twenty-First Judicial Circuit to operate the circuit so as to assure the orderly administration of justice, this Court is prepared to relieve any then serving presiding judge of his or her duties and to assign a neutral judge to supervise the circuit subject to the approval of this Court until such time as the orderly administration of justice be assured in the Twenty-First circuit. The people of St. Louis County are entitled to nothing less. (Emphasis added).

In re: Rules of the Circuit Court, id. at 460. I am convinced that the time has come for us to intervene.

This has never been a “legal” problem. It has always been a managerial problem. Had we recognized that fundamental fact on October 11, we could have avoided the necessity of this Court determining that “we cannot and will not enforce that part of art. V, § 15.3, which purports to grant to associate circuit judges the right to participate in the election of the presiding judge_” Id. at 459.

Were I empowered to do so, I would exercise our supervisory authority under Mo. Const, art. V, § 4, and appoint a jurist from outside the geographic boundaries of the Eastern District Court of Appeals as presiding judge of the Circuit, to serve with the full authority of this Court, until such time as the orderly administration of justice is restored in the Circuit.

/s/EDWARD D. ROBERTSON, Jr., Judge

DONNELLY and RENDLEN, JJ., concur.

. A particularly troubling aspect of this case is the fact that respondent appears merely to have carried out the command of a majority of the circuit judges in issuing the order. X doubt that I could impose discipline on the presiding judge under these circumstances. It is ironic that of all the actors in this drama, Judge Voorhees is widely regarded as among the most fair-minded and even-tempered of those who serve as judges within the circuit.

. If, for example, an administrative order is issued for the purpose of publicly embarrassing a fellow judge, or for the purpose of imposing discipline, such conduct would be tantamount to oppression in office.

. Rule 12.23 requires that proceedings before the Commission remain confidential prior to the filing of a recommendation with this Court. Whether the associate circuit judges in this case are the focus of an investigation or hearing by the Commission for the acts described by the principal opinion and condemned by Judge Welliver is a matter which we are not privileged to know at this juncture. Three possibilities exist: First, there may be no charges before the Commission. Second, the Commission may have heard the charges and determined that no discipline was warranted. Third, charges may be presently pending before the Commission.

. Lack of due process infects the whole of this episode, which appears to arise from the February 21, 1986 "hearing” and the conduct of the associates preceeding it. That "hearing” apparently provided a sufficient basis in the minds of a majority of the circuit judges to direct respondent to issue his order. The "hearing” was convened by several circuit judges because some of the associates had called and attended a meeting February 20 because they "thought it would be a good idea to get some uniformity and discuss problems, because March 1st [the effective day of the administrative changes] was coming up pretty fast and they [the associates] hadn’t had a meeting with anybody.” Transcript, February 21, 1985, Meeting, 3. The circuit judges conducting the “hearing" wanted some information on the associates’ meeting. The associate circuit judges were not asked to attend. It is at this meeting that the puerile conduct of some of the associates is discussed. In all honesty, we can understand the frustration of the circuit judges. Yet frustration is never a substitute for good judgment; anger is no justification for precipitous action.

. Each of us holds strong feelings about a course of action which will assist in resolving the shameful situation in the twenty-first judicial circuit. The steps we have taken to date have misdirected, however. I have recanted the position I took in In Re the Rules of the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985) and now believe that decision has added to the difficulties in St. Louis County. See In Re Administrative Orders of the Presiding Judge of the Twenty-First Judicial Circuit, No. 67950, unpublished, (Robertson, J. concurring in part and dissenting in part) attached hereto as Appendix A.

. I find nothing in this record to support Judge Welliver's less than delicate questioning of the motives of the Commission, either.