Matter of Marquardt

CLABORNE, Judge,

specially concurring:

I write not because the majority’s construction of our constitution is wrong, for it is not. Nor do I write because I feel that the result in this case is not correct, for it is. I write because the dissent in this case portrays our result as somehow lowering the standard by which judges must live.

The dissent somehow concludes that Judge Marquardt was convicted of a felony. In fact, he was convicted of an offense which is a simple misdemeanor in Texas, and which may be designated a felony in Arizona. The dissent also attributes some sinister motive to the manner in which the judge decided not to appeal this misdemeanor conviction. Speculation is not a judge’s occupation. If the dissent were restricted only to constitutional construction, I would refrain from this special concurrence. The dissent, however, goes further.

With the exception of the State of Arizona, no state in the United States has considered first offense possession of a small amount of marijuana to be an offense which deserves punishment greater than a misdemeanor. It seems only reasonable that in deciding the fate of a judge who has for the first time possessed a small amount of marijuana in another state, we should review all of the circumstances concerning his fate in no less an atmosphere than a superior court who decides the same fate of any citizen prosecuted under this statute.

The purpose of the sanction of removal from office of a sitting judge is practically universal in America. We said in In re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981):

The purpose of judicial discipline is not to punish the individual judge, but to maintain the high standards of the judiciary and the proper administration of justice. Judicial discipline protects the public and the integrity of the judicial process and is a balancing of the need for an independent judiciary with the necessity for removal of those who do not measure up to the high standards required of a person holding judicial office, (citations omitted.) (emphasis added.)

See also Matter of Benoit, 487 A.2d 1158, 1173-74 (Me.1985); American Judicature Society, Judicial Discipline and Disability Digest, 1981-85 Supplement, Part 2, § IIB3 (1984).

How does the judiciary retain the confidence of the public? I am sure neither the court, the commission, nor the lawyers who participated in this proceeding relished their roles or the circumstances of this case. I must rein my temper and quell my indignation when viewing the acts of this judge. I agree with the Michigan court when, in considering an “off the bench” transgression, it said:

[Tjhat a judge, whether on or off the bench, is bound to strive toward creating and preserving the image of the justice system as an independent, impartial source of reasoned actions and decisions. Achievement of this goal demands that a judge, in a sense, behave as though he is always on the bench.

In the Matter of Bennett, 403 Mich. 178, 186, 267 N.W.2d 914, 922 (1978).

Our judicial system requires us to weigh and balance the rights of society and of the *222individual. We place on our scales society’s needs and protection and balance those by reviewing the aggravating and mitigating circumstances surrounding the transgression. We then, and only then, decide.

In the search for essential justice, it is instructive to consider how other jurisdictions have dealt with erring judges. In California, a superior court judge to “friends,” court personnel, court clerks, and in “private” continually referred to black litigants as “coons,” “jigs,” “niggers,” and to Hispanics as “Mexican jumping beans” and “spies.” His discipline was public censure. See In re Stevens, 31 Cal.3d 403, 403-404, 183 Cal.Rptr. 48, 48-49, 645 P.2d 99, 99-100 (1982). In Louisiana, a general jurisdiction judge, over a period of time, smoked marijuana and consorted with prostitutes. He was suspended for one year. In re Whitaker, 463 So.2d 1291 (La.1985). In Oregon, a superior court judge, when seeing his estranged wife out with another man, rammed the man’s car with his own, beat his wife and was charged with reckless endangerment. He was censured. In re Conduct of Roth, 293 Or. 179, 645 P.2d 1064 (1982). In my judgment, these incidents are far graver than the matter at hand. Should we not weigh this judge’s illegal conduct against eighteen years of service as a judge? Should we not consider the character testimony in his behalf by the attorney general of this state as well as the county attorney of the most populous county in the state? Should we refuse to consider his retention in office by the voters of this state? Should we not weigh this one mistake against the other works of this man? During his years on the bench Judge Marquardt’s decisions have resulted in 135 appellate opinions. Approximately one-half of these were criminal appeals. The court of appeals and supreme court affirmed him over 90% of the time. A review of the written criminal appeals reflects sentences that were firm, and which clearly protected society and the victim. They were also just. His civil appeals reflected knowledge of the law and reasoned deliberation and fairness. Other courts have weighed the circumstances surrounding a transgression by a judge. In re Whitaker, 463 So.2d 1291, 1303 (La.1985) (the court weighed the probability of reoccurrence and the credibility of the judge); See In re Turner, 421 So.2d 1077, 1081 (Fla.1982) (the court weighed letters of confidence, a sincere acknowledgment of the error, and an effort to change); In re Conduct of Roth, 293 Or. 179, 182, 645 P.2d 1064, 1067 (1982) (the court weighed official excellence, prosecutor’s confidence and respect for the judge, and found the incident an isolated one); In re Donohue, 390 Mass. 514, 518, 458 N.E.2d 323, 327 (1983) (the court weighed devoted service to court and community). This weighing occurs whether it is suspension or removal. See also American Judicature Society, Judicial Discipline and Disability Digest, supra, at Part 5, § IVA.

This judge has received a substantial suspension with a loss of $80,000.00 in salary and the - public censure attendant to this decision. Is this sanction not severe enough to maintain public confidence? In a recent Arizona case, the issue was whether possession of marijuana qualified as a crime serious enough to justify a'jury trial. Yet, the dissenter here said it was not such a crime:

I would hold that the moral quality of a possession of marijuana charge is no worse than that of other offenses Arizona courts have held to be insufficient to satisfy Rothweiler’s [v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966)] second factor. See Spitz v. Municipal Court, 127 Ariz. 405, 621 P.2d 911 (1980) (sale of alcoholic beverages to minors); State ex rel. Baumert v. Superior Court [127 Ariz. 152, 618 P.2d 1078 (1980)] (disorderly conduct); Bruce v. State, 126 Ariz. 271, 614 P.2d 813 (1980) (simple assault); Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138 (1975) (simple assault and battery); O’Neill v. Mangum [103 Ariz. 484, 445 P.2d 843 (1968)] (drunk and disorderly conduct); State ex rel. Dean v. City Court [141 Ariz. 361, 687 P.2d 369 (App. 1984)] (reckless driving); City of Phoenix v. Jones, 25 Ariz.App. 265, 542 P.2d *2231145 (1975) (carrying a concealed weapon).

State ex rel. Dean v. Dolny, 161 Ariz. 297, 303, 778 P.2d 1193, 1199 (1989) (Corcoran, J., dissenting).

In re Ackel, 155 Ariz. 34, 745 P.2d 92 (1987) may have been wrongly decided. I am not obliged nor empowered to re-decide what was essentially a case of judicial corruption, i.e., trading power for sexual favors. I am to help decide only this case. I certainly agree that the exercise of power makes judges different. Here Judge Marquardt and the Texas misdemeanor have been dealt with in a reasoned way. Humane judgment provides us with the capacity to feel and, therefore, to hopefully understand, to know and deal with human frailty, including our own. I feel this court has kept its faith with actual justice and has dealt with judicial discipline in a reasoned, honorable and humane way.

CAMERON, J., did not participate in this decision; pursuant to Ariz. Const, art. 6, § 3, CLABORNE, J., of the Court of Appeals, Division One, was designated to sit in his stead.