dissenting:
I respectfully dissent. We are called upon to discipline a judge of the superior court who stands convicted of the crime of intentionally or knowingly possessing marijuana. Respondent’s explanation of the circumstances of the possession is, to put it mildly, disingenuous. The trial court convicted respondent in the summer of 1988, and he appealed from the conviction while publicly proclaiming his innocence. That was the posture of his case at the time of the November retention election in which he was retained. It was not until February 23, 1989—over 3 months after the election—that respondent changed his posture, withdrew his appeal, and let the conviction become final.
I agree with the majority that the crime of possession of marijuana, A.R.S. § 13-3405(B)(1), is one “punishable as a felony under Arizona ... law.” Ariz. Const, art. 6.1, § 2. I only can conclude that the intent and purpose of §§ 2 and 3 require that we deal with respondent’s conviction as a felony.
Relationship Between § b and §§ 2 and 3
I do not believe that § 4 has any application to this case. Section 4 does not deal with a judge convicted of a felony, but rather with judicial disability, willful misconduct in office, willful and persistent failure to perform duties, habitual intemperance, and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Although § 4 arguably could be used to discipline a judge for conduct amounting to a felony, §§ 2 and 3 were designed to deal precisely with a final felony conviction. Section 4 deals with conduct less serious than the conviction of a felony, or at least to situations where no felony conviction has become final.
Because respondent’s conviction is final, § 4 has no application to this case.
Relationship Between § 2 and § 3
Patently, upon the filing of the charge, respondent was “disqualified” with pay under § 2. Upon conviction, this court could have determined either to (1) continue the disqualification with pay under § 2, or (2) “suspend” respondent without pay under § 3. However, before this court made any determination as to continued disqualification or suspension, respondent’s conviction became final.
The majority is correct that if respondent had been suspended without pay pursuant to § 3, upon finality of the conviction, he must be removed from office. I disagree with the conclusion of the majority that if this court determined not to suspend respondent under § 3, but rather to continue his disqualification under § 2, this case somehow “falls” down to § 4, allowing this court in its discretion to censure, suspend without pay, or remove respondent. Section 4 deals with situations where no felony conviction has become final. Section 3 *224mandates the removal of a judge whose felony conviction becomes final, whether he is disqualified or suspended. Respondent should be removed.
Exercise of Discretion Under § fy
Assuming (as the majority concludes) that this court has discretion under § 4 to censure, suspend without pay, or remove respondent, I believe respondent should be removed.
The majority states that “[t]he very fact that the legislature classified this crime [possession of marijuana] in a manner permitting prosecution as either a felony or a misdemeanor indicates the crime is not of the highest order.” That generalization may be true when applied to misdemeanors only. However, §§ 2 and 3 require this court to treat the offense “as a felony ”—a crime that is “of the highest order.”
The majority opinion and special concurrence mischaracterize my dissent in State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989), which asserts that the penalties faced by a person convicted of misdemeanor possession of marijuana are not so serious as to mandate a jury trial. That dissent has little relevance here because §§ 2 and 3 require us to consider respondent’s conviction “as a felony.”
I agree with Justice Feldman’s dissent in In re Ackel, 155 Ariz. 34, 43, 745 P.2d 92, 101 (1987), which concluded that Justice of the Peace Ackel should have been removed from office. The Ackel majority indicated that lower standards are applied to an elected limited jurisdiction lay judge than should be applied to a general jurisdiction judge. Unfortunately, the low standard approved by the majority in Ackel is being applied to respondent—despite the majority’s belief that respondent is being held to a higher standard than that imposed' in Ackel.
The principle that should be applied to deter other judges from similar conduct is: A sitting judge who possesses illegal drugs should not be a judge. We should overrule Ackel and adopt “the highest standards of conduct”—not a low standard—for all judges. In re Haddad, 128 Ariz. 490, 501, 627 P.2d 221, 232 (1981).