No. 81-114
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA ex rel.
DANIEL J. SHEA,
Appellant and Relator,
THE JUDICIAL STANDARDS COM-
MISSION, and its Members,
HON. A. B. MARTIN, Chairman;
HON. L. C. GULBRANDSON, CARL M. DAVIS,
GEORGE B. SCHOTTE, and JEAN R. ANDERSON,
Respondents.
Appeal from: District Court of the First Judicial District,
In and for the County of Lewis and Clark
Honorable Gordon Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Robert J. Emmons argued, Great Falls, Montana
For Respondents:
Church, Harris, Johnson and Williams, Great Falls, Montana
Douglas C. Allen, argued, Great Falls, Montana
Submitted: October 23, 1981
Decided: March 18, 1982
Filed: MAR 1 8 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal by the relator, Daniel J. Shea, from
an order of the District Court, First Judicial District,
Lewis and Clark County, denying him a writ of prohibition,
mandamus, review, or other appropriate writ, in relation to
proceedings concerning him now pending before the Judicial
Standards Commission.
Daniel J. Shea is a justice sitting on the Montana
Supreme Court. He was elected to his position on the Court
in the general election of 1976, and after qualifying for
the office as required by law, he assumed the duties and
responsibilities of his office, and continues in that office
to the present time.
On December 28, 1979, the following document was issued
by the Judicial Standards Commission, signed by all its
members, and served upon Daniel J. Shea on December 31,
"BEFORE THE JUDICIAL STANDARDS COMMISSION
OF THE STATE OF MONTANA
INQUIRY CONCERNING JUSTICE ) Notice of Partial
) Dismissal, Complaint and
DANIEL J. SHEA ) Notice of Institution of
) Further Proceedings
.......................................................
"TO: Justice Daniel J. Shea
Associate Justice of the
Supreme Court of Montana
"You Are Hereby Notified that preliminary
investigation has been completed concerning
the charges made against you by the Judicial
Standards Commission by that certain document
entitled 'Notice of Preliminary Investigation',
dated August 24, 1978.
"As a result of that investigation the Com-
mission finds:
"1. The allegation that you willfully and
persistently failed to perform your share of
the work load is not supported by the current
records of the Supreme Court.
"2. That the allegation that you used your
position as a Justice of the Supreme Court to
intimidate some of your creditors is not supported
by any evidence.
"3. That good cause exists to institute further
proceedings to determine if you have acted contrary
to Canons 4 and 19 of the Canons of Judicial
Ethics, resulting in 'conduct prejudicial to the
administration of justice that brings the judicial
office into disrespect.' (Rule 9 of the Rules of
the Judicial Standards Commission.)
"NOW, Therefore, It Is Hereby Ordered that the
allegations referred to in paragraphs numbered (1)
and ( 2 ) , above, be dismissed and that further
proceedings be instituted concerning the remaining
charges contained in the 'Notice of Preliminary
Investigation.'
"The specific grounds for the charges still pending
are as follows:
"Canon 4 provides:
"'Avoidance of Impropriety. A judge's official
conduct should be free from impropriety and the
appearance of impropriety; he should avoid
infractions of law; and his personal behavior, not
only upon the Bench and in the performance of
judicial duties, but also in his everyday life,
should be beyond reproach.'
"Canon 19 provides in part:
"'Judicial Opinions. It is of high importance that
judges constituting a court of last resort should
use effort and self-restraint to promote solidarity
of conclusion and the consequent influence of judicial
decision. A judge should not yield to pride of
opinion or value more highly his individual
reputation than that of the court to which he should
be loyal. Except in case of conscientious difference
of opinion on fundamental principle, dissenting
opinions should be discouraged in courts of last
resort. '
"The circumstances reported to the Commission and which
may constitute a violation of the aforesaid judicial
canons, bringing the judicial office into disrespect,
are as follows:
"1. Parking Ticket Episode.
"Automobiles registered in the name of Doris Shea,
your wife, accumulated 60 parking tickets over a
period of approximately a year and a half from
June of 1976 throughout 1977. These tickets remain
unpaid and Doris Shea was charged in the City
Court of the City of Missoula with the violations.
"Doris Shea has reportedly denied that she committed
the violations. It further appears from the
investigative report that you were seen parking one
of the ticketed vehicles on one or more occasions
but have never accepted responsibility for any of
the violations. While Doris Shea may have con-
stitutional grounds for refusing to pay the parking
tickets, your failure to acknowledge responsibility
for the charges against your wife, and your failure
to observe the parking meter ordinance may con-
stitute a violation of Canon 4 that warrants
disciplinary action.
"2. Intemperate Language.
"In a dissenting opinion written by you in the
case of State vs McKenzie 581 P.2d 1205, 1235,
you employ the following language with reference
to the majority of the court.
"'This court no more granted a fair review to
defendant than the citizens of Pondera County could
have given him a fair trial. The people of Montana
can be well advised there is no law in the State
of Montana.' P. 1236
"'It is intellectual dishonesty for the majority
not to recognize that the combination thereof is
a radical departure from existing interpretations
of constitutional law in this state - - - ' P. 1238
"'And this is not the only manner in which the
opinion is rather slippery with the facts.' P. 1250
"'The dishonesty of the majority opinion is
manifest - - - ' P. 1260
"The foregoing quoted excerpts appear to be in
violation of Canons 4 and 19 of the Canons of
Judicial Ethics and may constitute conduct
prejudicial to the administration of justice that
brings the judicial office into disrespect.
"You are hereby notified that you may have fifteen
days after service of this notice to file a verified
answer with the commission addressed to the Chairman
of the Commission. Following receipt of your answer
the Commission will decide what further action is to
be taken.
"For your information reference is made to Rule 7
of the Rules of the Commission, providing that all
proceedings before the Commission shall be
confidential and only loses their confidential
character when the record is filed with the
Supreme Court.
"Reference is also made to Section 3-1-1109 PICA
which provides that a judicial officer is disqualified
from acting as such without loss of salary while a
'formal proceeding' is pending. By Rule 2(j) of
the Commission's Rules, 'formal proceeding' is
defined as the proceedings that follow the Com-
mission's recommendation to the Supreme Court.
"Dated this 28th day of Dec., 1979."
On February 22, 1980, Daniel J. Shea filed in writing
with the Judicial Standards Commission his motions and brief
asserting the following grounds for dismissal of the proceedings
before the Judicial Standards Commission:
1. The Judicial Standards Commission is without jurisdiction
to investigate the conduct of a judge which results in
"conduct prejudicial to the administration of justice that
brings the judicial office into disrespect."
2. The Commission violates section 3-1-1106, MCA, by
proceeding against him without a verified complaint.
3. The Commission itself has no power to proceed to
investigation without receiving from some party a verified
complaint.
4. Canons 4 and 19 of the Canons of Judicial Ethics
are vague or overbroad when used to support the charges of
the Judicial Standards Commission.
The Judicial Standards Commission denied the motions of
Daniel J. Shea, and set the matter for formal hearing before
the Commission. However, the Commission granted Daniel J.
Shea 30 days from the date of the denial in which to petition
for an original writ of mandate or other appropriate writ.
Daniel J. Shea petitioned the District Court of the
First Judicial District for Lewis and Clark County for
relief. That court granted alternative writs of prohibition
and mandamus and writ of review, and stayed the proceedings
before the Judicial Standards Commission, pending a hearing
which was held on January 20, 1981. The Commission had
filed its response, and moved for the dismissal of the
petition and the quashing of all writs on November 10, 1980.
The matter was finally deemed submitted to the District
Court on February 3, 1981.
On February 23, 1981, the District Court dismissed
Daniel J. Shea's petition for writ of prohibition, mandamus
and certiorari, and quashed the alternative writs. It is
from that order of dismissal by the District Court that
Daniel J. Shea here appeals.
- ISSUES
THE
We find the dispositive issues in this cause to be as
follows :
1. Is the Judicial Standards Commission subject to the
power of the Supreme Court to issue writs of prohibition,
mandamus, certiorari, or alternative writs?
2. Does Rule 9(a) of the Judicial Standards Commission
exceed the constitutional power of the Judicial Standards
Commission?
3. Is a verified complaint a requisite for Judicial
Standards Commission proceedings?
4. Are the charges made by the Judicial Standards
Commission against Daniel J. Shea included in the phrase
"willful misconduct in office?"
THE JUDICIAL STANDARDS COMMISSION
The provision in the 1972 Montana Constitution for a
Judicial Standards Commission arose from a void at that time
in our system as to the removal of corrupt, venal or incompetent
judges. Before 1972, a judge could be removed from office only
by impeachment through the State legislature, unless the
electorate turned him out of office. Impeachment, Art. V, §
17, 1889 Montana Constitution, was limited to "high crimes
and misdemeanors, or malfeasance in office." For those
officers not subject to impeachment, the legislature was
empowered by the 1889 Montana Constitution to provide for
their removal for "misconduct or malfeasance in office."
Art. V, § 18, idem.
The full text of the 1972 constitutional provision then
in effect for the Judicial Standards Commission (Art. VII, §
11) is as follows:
"Section 11. Removal - discipline. (1) The
and
legislature shall create a judicial standards
commission consisting of five persons and provide
for the appointment thereto of two district judges,
one attorney, and two citizens who are neither
judges nor attorneys.
"(2) The commission shall investigate complaints,
make rules implementing this section, and keep
its proceedings confidential. It may subpoena
witnesses and documents.
"(3) Upon recommendation of the commission, the
supreme court may:
"(a) Retire any justice or judge for disability
that seriously interferes with the performance of
his duties and is or may become permanent; or
"(b) Censure, suspend, or remove any justice or
judge for willful misconduct in office, willful
and persistent failure to perform his duties, or
habitual intemperance."
In considering the adoption of that provision, the
constitutional convention spoke little of the provisions
relating to malfeasance or misconduct in office. Tr. 3469
to 3484. The convention seemed concerned especially with
tactfully removing judges from office who may have become
disabled or incompetent by reason of age. In speaking for
the adoption of the amendment, Delegate Aronow stated in
part:
". .
. This is a committee which we created in
the majority part of the committee report, modeled
somewhat after New Mexico. It has been revised;
some things have been taken out of California
. . ." Tr. 3471.
In 1973 the legislature, following the directions of
the constitutional provision, provided for the creation and
composition of the Judicial Standards Commission. With
respect to investigations, and action by the Supreme Court,
the legislature provided, inter alia:
"3-1-1106. Investigation - judicial officers
of
--hearina--recommendations. (1) The commission
-- 2 . .
or any citizen of the state may, upon good cause
shown, initiate an investigation of any judicial
officer in the state by filing a verified written
complaint with the commission.
"(2) The commission, after such investigation as
it considers necessary and upon the finding of good
cause, may:
"(a) order a hearing to be held before it concerning
the censure, suspension, removal, or retirement of
a judicial officer; or
"(b) request the supreme court to appoint one or
more special masters who are judges of courts of
record to hear and take evidence and to report to
the commission.
"(3) If after hearing or after considering the
record and report of the masters the commission
finds the charges true, it shall recommend to the
supreme court the censure, suspension, removal,
or retirement of the judicial officer.
"3-1-1107. Action by supreme court. The supreme
court shall review the record of the proceedings
and shall make such determination as it finds just
and proper and may:
"(1) order censure, suspension, removal, or
retirement of a judicial officer; or
"(2) wholly reject the recommendation."
Following the appointment and organization of the
Commission, it adopted rules, which provide in part as
follows:
"Rule 9 PRELIMINARY INVESTIGATION
"a. Upon receipt of Verified Statement. The
Commission, upon receiving a verified statement,
not obviously unfounded or frivolous, alleging
facts indicating that a judge is guilty of
action occurring during, or not more than six
years prior to the commencement of, his current
term that constitutes willful misconduct in
office, willful and persistent failure to perform
his duties, habitual-intemperance, or conduct
prejudicial - - administration ofjustice
to the
that brings the judicial office i n s disrepute,
--
or that he has a disability that seriously-
interferes with the of his
duties, and is, or is likely to become permanent,
shall make a preliminary investigation to determine
whether further proceedings should be instituted
and a hearing held.
"b. - - Motion. The commission, without
On Own
receiving a verified statement, may make
such a preliminary investigation on its own
motion." (Emphasis added.)
DISCUSSION
1. Is the Judicial Standards Commission subject to
the power of the Supreme Court to issue writs of prohibition,
mandamus, certiorari, or alternative writs?
The first question to be decided by us is whether the
Judicial Standards Commission is so inherently an independent
constitutional body that it is not subject to writs or the
authority of this Court in the course of its proceedings. If
it is not so subject, there is no point in further dis-
cussion in this case because if this Court has no such
power, the matter ends there.
The District Court wrestled with this problem. It
pointed out that while the Commission is making its investiga-
tion, and to the point where it makes recommendations to the
Supreme Court, the Supreme Court has been given no con-
stitutional function whatever. Art. 1 1 § .
11 ( ), (2) After
making its recommendation, the Judicial Standards Commission
has no constitutional function. Art. 1 1 § 1 3 a ) (3b).
On this basis, the District Court concluded that the functions
of the Commission and of the Supreme Court were "clear
cut and discrete."
The District Court further noted that since any
recommendation of the Judicial Standard Commission must
eventually be passed upon by this Court, that in itself is
an adequate remedy, and insulates the proceedings of the
Judicial Standards Commission from any intervening interruption
by either a District Court or the Supreme Court. In An
Anonymous Town Justice v. State Commission (1978), 409
N.Y.S.2d 198, it was found that the proceedings of the New
York Commission were administrative in that it did not make
final decisions, and were therefore beyond trial court
review.
Under Montana statutes the supreme court or a district
court may issue a writ of review, when an ". . . inferior
tribunal . . . exercising judicial functions has exceeded
the jurisdiction of such tribunal . . . and there is no
appeal or, in the judgment of the court, any plain, speedy,
and adequate remedy." Section 27-25-102, MCA. There is no
question that the Judicial Standards Commission is exercising
judicial functions (see our recent opinion in State Bar of
Montana v. Krivec (1981), - Mont . , 632 P.2d 707, 38 St.Rep.
1322, for a discussion of the exercise of judicial functions.)
We have held, however, that a writ of review is generally not
properly granted where the matters over which review is
sought are pending or undetermined. State v. ~istrictCourt
(1933), 93 Mont. 439, 444, 19 P.2d 220, 222.
A writ of mandamus may be issued by the Supreme Court
or District Court to a tribunal to compel the performance of
an act which the law specifically enjoins as a duty resulting
from an office. Section 27-26-192, MCA. The purpose of
Daniel J. Shea in filing his petition with the District
Court was to stop the action of the Judicial Standards
Commission; therefore, mandamus does not apply.
A writ of prohibition may issue from the Supreme Court
or the District Court to any tribunal, whether exercising
judicial or ministerial functions, when the proceedings are
without or in excess of the jurisdiction of the tribunal.
Section 27-27-101, MCA. The writ may issue in all cases
where there is not a plain, speedy and adequate remedy in
the ordinary course of law. Section 27-27-102, idem. However,
if appeal is available, but is neither speedy nor adequate,
a writ of prohibition may issue. State v. District Court of
the Eleventh Judicial Dist. (1957), 131 Mont. 397, 402, 310
P.2d 779, 780, 64 A.L.R.2d 1324, 1327. In the case at bar,
no appeal is granted, except for the review by the Supreme
Court upon the final recommendation of the Judicial Standards
Commission. It appears to us, therefore, Daniel J. Shea's
remedy by appeal is inadequate, he has no other plain,
speedy or adequate remedy, and we have the power to issue a
writ of prohibition to enjoin the Commission if, indeed, it
is acting in excess of its jurisdiction.
2. Does Rule 9 of the Judicial Standards Commission
exceed the constitutional power of that Commission?
We have set forth in full above, Rule 9 (a) and (b) of
the Judicial Standards Commission. As will be noted, it
includes a statement that the Commission will make a preliminary
investigation if it receives a verified statement that a
judge is guilty of "conduct prejudicial to the administration
of justice that brings the judicial office into disrepute."
Daniel J. Shea contends that the Judicial Standards
Commission, in adopting that portion of the Rule, exceeded
its jurisdictional powers under the constitutional provision
establishing the Judicial Standards Commission, and that in
now proceeding against him on that ground, it is acting in
excess of its jurisdiction.
Art. VII, B 11, 1972 Montana Constitution establishing
the Judicial Standards Commission, is not so much a limitation
upon the powers of the Commission as it is a limitation upon
the power of this Court to act in matters of judicial discipline.
The Commission's power to investigate complaints, to make
rules implementing the constitutional section, and its power
to issue subpoenae is not hedged with constitutional limits
of any kind. The safety valve which is placed upon the
wide-angled powers of the Commission is the limitation on
this Court to act on the recommendations of the Commission.
Upon its recommendation, we may retire a disabled justice or
judge; or we may censure, suspend, or remove a judge for (1)
willful misconduct in office, (2) willful or persistent
failure to perform his duties, or (3) habitual intemperance.
The constitl.itiona1 article and statute do not give this
Court the power to censure, suspend, or remove a justice or
a judge for "conduct prejudicial to the administration of
justice that brings the judicial office into disrepute."
Yet that is the conduct charged against Daniel J. Shea in the
complaint. Were the Commission to recommend discipline
against Daniel J. Shea based upon that charge, we would have
no power to act under Art. VII, B 11. A basic rule of
statutory (and constitutional) construction is that the
role of a judge in construing a provision is not to insert
what has been omitted, or to omit what has been inserted.
The standard of conduct charged against Daniel J. Shea
before the Judicial Standards Commission omits any basis
upon which we can act, and inserts a basis not found in Art.
VII, § 11, upon which we may be called to act.
Thus, if a recommendation should come to us from the
Commission, stating that Daniel J. Shea is guilty of "conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute", in that he used intemperate
language in McKenzie, and/or that he failed to acknowledge
personal responsibility for the parking tickets charged
against his wife, we could do nothing. We can only censure,
suspend, or remove judicial officers upon the stated grounds
in Art. VII, S 11 in this case, misconduct - office.
in
We noted above that in the transcript of the 1972
constitutional convention, Delegate Aronow in speaking for
the adoption of what is now Art. VII, 5 11, of that con-
stitution, stated that the proposed article and section had
been modeled after the laws of New Mexico. In examining the
provisions of New Mexico for its Judicial Standards Commission,
we find that it provides for investigation "as to willful
misconduct in office, persistent failure or inability to
perform a judge's duties, or habitual intemperance of any
justice, judge . . . " and for "a disability seriously inter-
fering with the performance of his duties which is, or is
likely to become, of a permanent character;. . ." Section
34-10-2.1, N.M. Statutes (1978). There is no mention in the
New Mexico statutes of "conduct prejudicial to the administration
of justice that brings the judicial office into disrepute."
Delegate Aronow also mentioned that they had looked at
the provisions in California, and that "some things have
been taken out of California." Tr. 3471. Indeed it is
found in Art. VI, 5 18(c), California Constitution, as it stood
in 1972, that:
"On recommendation of the Commission on
Judicial Qualifications the Supreme Court
may (1) retire a judge for disability that
seriously interferes with the performance of
his duties and is likely to become permanent,
and (2) censure or remove a judge for action
occurring not more than 6 years prior to the
commencement of his current term that constitutes
wilful misconduct in office, wilful and
persistent failure to perform his duties,
habitual intemperance, or conduct prejudicial
- - administration of justice that brings
to the
the iudicial office in= disrepute." (Emphasis
It is quite apparent therefore, that California has
adopted a broader provision for judicial discipline than
was adopted by the 1972 Montana Constitution. It further
is apparent that Rule 9(a) of the Montana Judicial Standards
Commission is patterned after the California-type constitutional
provision rather than on the 1972 Montana constitutional
provision.
Rule 9 of the Montana Judicial Standards Commission is
an exact replica of Rule 9 adopted by the Wyoming Commission
on Judicial Supervision. However, Wyoming's 1972 state
constitution, Art. V, § 6(e) (2), provides as follows:
". . . censure or remove a judge for action occurring
during, or not more than 6 years prior to the
commencement of, his current term that constitutes
wilful misconduct in office, wilful and
persistent failure to per form his duties, habitual
intemperance, or conduct prejudicial - - admin-
to the
istration of iusice that brings the judicial
- - -- -
d
office intodisrepute." (Emphasis added.)
The distinction is important. The California Supreme
Court in Geiler v. Commission on Judicial Qualifications
(1973), 110 Cal.Rptr. 201, 209, 515 P.2d 1, 9, stated:
"As indicated above, the commission in the
instant matter concluded that the conduct
proven in the previously discussed specifications
constituted 'willful misconduct in office' and
'conduct prejudicial to the administration of
for
- - --
justice that brings the judicial office into
disrepute.' As we have noted above, - second
the
ground - imposing discipline was added to the
----
Constitution - -
in 1966. We believe this mandates
our construing 'willful misconduct in office' as
connoting something graver than the 'lesser
included offense' of 'conduct prejudicial to the
administration of justice that brings the judicial
office into disrepute.' The more serious charge
should be reserved for unjudicial conduct which
a judge acting - - judicial capacity commits
in his
in bad faith, while the lesser charge should be
applied to conduct which a judge undertakes in
good faith but which nevertheless would appear
to an objective observer to be not only unjudicial
conduct but conduct prejudicial to public esteem
for the judicial office." (Emphasis added.)
In footnote no. 11, 555 P.2d at 9, the California
Z l c;
Supreme Court also noted that "conduct prejudicial to the
administration of justice that brings the judicial office
into disrepute would also apply to wilful misconduct out of
office, i.e. unjudicial conduct committed in bad faith by a
judge not then acting in a judicial capacity."
It appears then that the 1972 Montana Constitutional
Convention, in limiting the provisions for judicial discipline
to the New Mexico model, and foregoing the broader provisions
of the California model, must have intended to limit the
grounds upon which the Judicial Standards Commission might
act, perhaps to preserve to a greater degree the independence
of the judiciary.
In the sense therefore that the Judicial Standards
Commission is conducting adjudicatory proceedings against
Daniel J. Shea upon the charge of "conduct prejudicial to
the administration of justice that brings the judicial
office into disrepute", it is acting in excess of its jurisdiction.
3. Is a verified complaint a requisite for Judicial
Standards Commission proceedings?
The proceedings against Daniel J. Shea before the
Judicial Standards Commission commenced upon the receipt by
the Commission of an unverified letter from a retired district
judge making a complaint about Daniel J. Shea. The chairman
of the commission noted that the complaint of the retired
district judge was "not verified nor specific" as to the
instances of misconduct, but the chairman asked the members
of the Commission if they wished to proceed with a preliminary
investigation to determine if grounds of misconduct mentioned
under Rule 9(a) were supported by the complaining letter.
The minutes of the Commission for November 15, 1979, indicate
that the investigating attorney recommended to the Commission,
and the Commission adopted the position, that the allegations
concerning parking tickets in Missoula and the allegations
that references to other members of the court in dissenting
opinions "constituted conduct prejudicial to the administration
of justice that brings the judicial office into disrepute."
The minutes reflect that the members unanimously agreed that
further proceedings were required and that a hearing should
be held regarding the two allegations of misconduct. It was
agreed that the chairman would prepare a notice to Daniel J.
Shea regarding a further hearing on these allegations. It
was as a result of this meeting that the Notice of Partial
Dismissal, Complaint and Notice of Institution of Further
Proceedings was prepared on December 28, 1979. We have set
out that particular instrument in full previously.
The "complaint" is not verified by the Commission, but
is signed by all of the Commission members. Rule 9(b) of
the Commission provides that the Commission, without receiving
a verified statement, may make a preliminary investigation
on its own motion. The Mc~enziedissent charge, though not
contained in the original letter from the retired district
judge, arose from a suggestion of the chairman of the Commission
that the statements in the McKenzie opinion be considered as
to whether they constituted judicial misconduct.
Under Art. VII, § 11(2), 1972 Mont. Const., the Judicial
Standards Commission is empowered to "investigate complaints,
and make rules implementing this section ... It There is
no mention in the constitutional provision for a verified
complaint.
The legislature, in creating the Commission, provided
in section 3-1-1106, MCA, set forth previously, that the
Commission or any citizen may, upon good cause shown, initiate
an investigation of any judicial officer by filing a "verified
written complaint" with the Commission.
The Commission's position with respect to a verified
complaint is stated in its Order of July 1, 1980, at pp. 6-7:
"It is the Commission's position that MCA
3-1-1106 usurps the constitutionally bestowed
right of the Commission to adopt rules governing
the manner by which the Commission may proceed and
to that extent cannot be constitutionally upheld."
The District Court considered this problem and upheld
the Commission:
"The legislature is assigned the duty of
creating the Commission and providing for
the appointment of its prescribed membership.
In addition it may have certain necessary
implied powers and functions, such as funding
and locating within the state's administrative
functions. But the power to make rules to
implement the section is reserved, with crystal
clarity, to the Commission. These rules must
certainly include procedural rules, and the
manner in which proceedings are initiated are,
with equal certainty, procedural rules. One
of the rules the Commission has adopted under
this authority is Rule 9b which permits it to
undertake a preliminary investigation without
receipt of a verified statement. There is no
question raised here as to the propriety of the
rule's promulgation. If this rule conflicts with
Section 3-1-1106 (1) the section must yield to
the rule, the latter having constitutional
status.
The record shows that the parking ticket charge against
Daniel J. Shea grew out of an unverified letter from a
retired district judge. The charge filed against Daniel J.
Shea concerning the language in the McKenzie dissent came
through the initiative of the Commission itself. The
Commission did not follow its own rule or the statutory
requirement that the letter complaint of the retired district
judge be verified. In its order of July 1, 1980, denying
Daniel J. Shea's motions respecting the lack of verified
complaint, the Commission stated:
". . . Usually, as in Justice Shea's case, the
Commission does not receive a verified complaint.
It is the experience of the Commission that when
it requests a verified complaint, the complainant
forgets it. The problem posed is whether the
Commission can proceed with a preliminary investi-
gation to determine if there is good cause for it
to file a formal complaint. The Commission elected
this procedure in Justice Shea's case, as allowed
by Rule 9(b).
"The decision to file a formal complaint was an
official act of the Commission as shown by minutes
of the meeting had on October 17, 1979, and
by the signature of all members of the Commission
affixed to the complaint. There is - -
no rule
requiring verification. If after investigation
the Commission finds good cause, is it prohibited
from filing a complaint because either the
original complaint was deficient, or the
Commission's complaint was not verified?" Order,
July 1, 1980 at 7. (Emphasis added.)
Apparently then the Commission is assuming unto itself
the right to ignore legislatively enacted provisions governing
its procedure, and even its own rule requiring a verified
complaint, in its perception and under the assumption that
it is now acting and will act for the public good. The
question, however, is not one of motives but of constitutional
authority, for which the best of motives is not a substitute.
Panama Refining Co. v. Ryan (1935), 293 U.S. 388, 420, 79
There is no question that the Commission can make
"legislative" rules under its rulemaking authority, filling
in the gaps and fleshing out the procedures for the enforcement
of judicial discipline. When, however, it adopts "inter-
pretative" regulations, it is faced with quite another
problem, because then, as in this case, the matter becomes
one of determination of constitutional power as between the
legislature on the one hand and the Commission on the other.
The difference is substantial:
"'Legislative' rules or regulations are accorded
by the courts or by express provision of statute
the force and effect of law immediately upon going
into effect. In such instances the administrative
agency is acting in a legislative capacity, sup-
plementing the statute, filling in the details, or
'making the law,' and usually acting pursuant to
a specific delegation of legislative power.
'Interpretative' regulations are those which purport
to do no more than interpret the statute being
administered, to say what it means. They constitute
the administrators' construction of a statute. In
such instances the administrative agency is merely
anticipating what ultimately must be done by the
courts; they are performing a judicial function rather
than a legislative function, and interpretative
regulations (in the absence of ratification by the
legislature) have validity in judicial proceedings
only to the extent that they correctly construe the
statute and then, strictly speaking, it is the statute
and not the regulation to which the individual must
conform." 1 Am.Jur.2d ~dministrativeLaw, § 95, at
893.
The legislature was required by Art. VII, § 11, to
create a Judicial Standards Commission. When it did so, it
placed within the power of the Judicial Standards Commission
not only the constitutional grounds for censure, suspension
or removal but added other stipulations. It provided that a
judicial officer may not participate in any proceeding
involving his own censure, suspension or removal, section 3-
1-1108, I4CA; it provided that a judicial officer is disqualified
from acting, without loss of salary, while there is pending
a charge against him of a felony or a formal proceeding
before the Commission for his removal or retirement, section
3-1-1109, MCA; and it provided for the suspension of a
judicial officer and his eventual removal if it is finally
determined that he is guilty of a felony, section 3-1-1110,
MCA. These additional provisions enacted by the legislature
are founded on its power granted in Art. V, 5 13(1), 1972
Mont. Const., (see infra for full text), which states that
the legislature may enact "[Olther proceedings for removal
from public office for cause. . ." In the final analysis,
there can be no inhibition of the legislative power, irrespective
of the rulemaking authority granted to the Judicial Standards
Commission, to make suitable provisions relating to the
Judicial Standards Commission which do not conflict with the
constitutionally granted powers of the Commission.
The legislature has broad powers relating to removal
of public officers under the 1972 Montana Constitution.
While the Judicial Standards Commission has a defined con-
stitutional sphere in which it can act, the legislature may
move by impeachment or "other proceedings" against public
officers, under Art. V, 5 13. Public officers include
judicial officers. Nothing in the 1972 Constitution prevents
the legislature from providing that the Judicial Standards
Commission shall proceed against judicial officers by verified
complaint. The Commission itself is powerless to set that
provision aside. The legislature has the constitutional power
to broaden the grounds upon which judicial officers may be
removed or disciplined. The Judicial Standards Commission
does not enjoy that power.
4. Are the charges made against Daniel J. Shea included
in the constitutional phrase "willful misconduct in office?"
The District Court, in its opinion, seemed to recognize
that Rule 9(a) of the Judicial Standards Commission was
broader than the constitutional provision empowered.
Nevertheless, because the Judicial Standards Commission
might still find that the conduct charged against Daniel J.
Shea constituted "willful misconduct in office," the District
Court refused to issue a writ of prohibition. We come now
to consider whether either the language used by Daniel J.
Shea in the McKenzie decision, and/or the parking tickets
incident may nevertheless constitute "willful misconduct in
office," and so be subject to discipline through the Judicial
Standards Commission and the Supreme Court.
The words "in office" in the constitutional phrase are
significant. Their use seems to indicate an intent on the
part of the constitutional convention that the misconduct
must be related to the office which the judge occupies. The
cases support this inference.
We have pointed out that in the 1889 Constitution, Art.
V, S 18, provides that officers not liable to impeachment
were subject to removal for "misconduct or malfeasance in
office. "
The term "misconduct in office" used in the 1889 Constitution
had received judicial construction by this Court.
State v. Examining and Trial Board of Police Dept. (1911),
43 Mont. 389, 117 P. 77, involved the action of a board to
remove a Butte police chief for wrongfully collecting mileage
fees. In passing, the court defined misconduct in office as
"Any act involving moral turpitude, or any act which is
if
contrary to justice, honesty, principle, or good morals, -
performed by virtue - office or by authority of office, is
- of -- -
certainly included therein." (Emphasis added) 43 Mont. at
In State v. District Court (1911), 44 Mont. 318, 324,
119 P. 1103, 1106, removal of a police judge was sought.
The charge was that he had collected compensation for which
he was unentitled, even though the compensation had been
received by him under the advice of the attorney general.
There the court decided that a willful or corrupt misconduct
or malfeasance was not necessary.
In State v. Board of Aldermen of Town of Conrad (1912),
45 Mont. 188, 122 P. 569, removal was sought of an alderman,
a lawyer, for accepting fees from a client who had licensing
problems before the Board of Aldermen. There the Court,
in passing, quoted with approval the following passage:
.
". . 'Cause for removal' means some substantial
shortcoming which renders continuance in office
or employment in some way detrimental to the
discipline and efficiency of the service, and
something which the law and a sound public opinion
will recognize as a good cause for his no longer
occupying the place. The misconduct for which
an officer may be removed must, in general, be
found in his acts and conduct in the office from
which his removal is sought. But to treat misconduct
or incompetency in the performance of official
duties as the only ground of removal is to give
too rigid and narrow an application to the
principles governing the subject. A cause for
removal may exist for acts and conduct of a public
officer at a time when he is not acting in the
performance of a public duty, if these acts and
conduct are such as to fairly show that he is unfit
for the place." 45 Mont. at 195, 122 P. at 571.
The Court also found in State v. Board of Aldermen,
supra, that it was not necessary to prove that the actions
undertaken were "willful." 45 Mont. at 196, 122 P. at 572.
The latest case before the adoption of the 1972 con-
stitutional provision was State v. O'Hern (1937), 104 Mont.
126, 65 P.2d 619. In that case, the question involved was
the removal by the governor of members of the State Highway
Commission who had received compensation for duties in
office in excess of what was then provided by law. The
Supreme Court then reaffirmed the definition of "misconduct
in office" as set forth in State v. Examining and Trial Board
of Police Dept., supra, and concluded that the misconduct
need not be "willful" in order to justify the removal of an
officer. However, the decision turned upon the power of the
governor to dismiss highway commissioners and the court did
not rely on the "misconduct" charge in upholding the dismissal
of the members of the highway commission.
This was the state of the judicial construction of
"misconduct in office" at the time of the adoption of the
1972 constitutional provision. It is generally held that
the embodiment in a constitution of provisions found in
previous constitutions, without change of verbiage, precludes
the court from giving their language a meaning different
from that ascribed to the previous constitutional provisions,
unless there is something to indicate an intention of the
framers in the new constitution to alter the accepted con-
struction. 16 Am.Jur.2d Constitutional - at 474-475,
Law, §
120. This Court said in Johnson v. City of Great Falls
(1909), 38 Mont. 369, 372, 373, 99 P. 1059-1060:
". . . At the time our constitution was adopted
the rule was quite uniform, so far as established
by judicial decisions, that in the house originating
a bill the vote on amendments proposed by the
other house need not be by ayes and no-,and the
names of those voting need not be entered on the
journal, and, in the absence of anything indicating
a contrary view, we must assume that the framers
of our Constitution, in adopting section 24 of article
5, did so intending that the rule of interpretation
then in vogue should be applied to it . . ."
Thus, all the cases preceding the 1972 Montana Con-
stitution regarding removal of officers on the grounds of
misconduct, related on the facts to misconduct "in office."
Admittedly there is a quoted passage in one Montana case,
State v. Board of Aldermen of Town of Conrad, supra, relating
to conduct outside of office, but it is entirely obiter
dictum and cannot be said to be included in the law of this
State at the time of the adoption of the 1972 Montana Con-
stitution.
The addition, the Constitutional Convention's use of
the word "willful" in describing the conduct which subjects
a judicial officer to discipline, evinces an intent on the
part of the convention to move away from the judicial con-
structions in the earlier cases that intent was not necessary
to constitute misconduct in office. Thus, the new constitutional
provision would distinguish the holding of this Court in
State v. Board of Aldermen of Town of Conrad, supra.
In the Geiler case, supra, the California court was
careful to emphasize in its footnote that conduct outside
the office would constitute "conduct prejudicial to the
administration of justice that brings the judicial office
into disrepute." The court's footnote said:
"The lesser charge of 'conduct prejudicial to the
administration of justice that brings the judicial
office into disrepute' would also apply to
wilful misconduct out of office, i.e. unjudicial
conduct committed in bad faith by a judge not then
acting in a judicial capacity. It should be
emphasized that our characterization of one ground
for imposing discipline as more or less serious
than the other does not imply that in a given case
we would regard the ultimate sanction of removal
as unjustified solely for 'conduct prejudicial to
the administration of justice which brings the
judicial office into disrepute.'" 515 P.2d at 9,
fn. 11.
In reaching our decision here that misconduct in office,
as required by the 1972 constitution means conduct in or
arising out of the duties or responsibilities of office and
does not apply to alleged misconduct outside of the office,
we determine that the 1972 constitutional convention apparently
intended to omit the "lesser charge" by not adopting the
same. As noted above, the convention reserved to the
legislature, either through impeachment or through further
legislative action, the removal of public officers, including
judicial officers, for misconduct outside office:
"Section 13. Impeachment. (1) The governor,
executive officers, heads of state departments,
judicial officers, and such other officers as
may be provided by law are subject to impeachment,
-
and upon conviction shall be removed from office.
Other proceedings for removal from public office
for cause may be provided by -
---- - law." Art. V, § 13.
(Emphasis added.)
If the words "in office" contained in Art. VII, § 11,
1972 Montana Constitution are to have any significance in
this case, we must conclude that the parking ticket incidents,
whatever the facts may be, are not matters arising from or
growing out of the office of a justice of this Court.
There remains the question whether the language used by
Daniel J. Shea in his dissenting opinion in McKenzie con-
stitutes "willful misconduct in office." We conclude it
does not. It is characterized by the Commission as "intemperate"
but the language quoted is not profane or vulgar. It may
not have been pleasant for the majority in McKenzie to have
been called "intellectually dishonest" or to have been told
that they were "slippery with the facts." Yet it seems
nearly every day newspaper editors say something equally
derogatory about our decisions. As long as a justice, or a
judge, in writing opinions, does not resort to profane,
vulgar or insulting language that offends good morals, it
may hardly be considered "misconduct in office."
More important than to censure, suspend or remove
Daniel J. Shea from office for his "intemperate" language is
to preserve an independent judiciary in this State.
The judicial power of a district judge is sovereign, in the
name of the State, and the judicial power of a justice of
the Supreme Court is likewise sovereign, provided the
decision is in and with the opinion of the majority of the
Court (excluding those few cases where the constitution
allows a single justice to act). The requirement of a
majority for any opinion of the Supreme Court (Art. VII,
§ 3(1), 1972 Montana Constitution) does not mean that one in
the minority is throttled and may not speak his piece. The
right of a minority justice to voice his individual opinion
is equal to that of any in the majority, indeed is vital to
collegiality among the justices, and proper to furnish for
later cases a standard or rule to which the Court may eventually
adhere. There is moreover, in extreme cases, the sovereign
power of this Court to remove or strike scandalous language
which is deemed inappropriate for judicial decisions (Nadeau
v. Texas Co. (1937), 104 Mont. 558, 576-577, 69 P.2d 593,
595-596), which inherent power has not been removed from us
by the establishment of the Judicial Standards Commission.
Disciplinary proceedings should not apply to the
decisional process of a judge. Otherwise judges would he as
concerned with what is proper in the eyes of the Commission
as with what is justice in the cause.
On the ground therefore that the charges against Daniel
J. Shea do not amount to "misconduct in office" under the
constitutional provision, the Judicial Standards Commission
is acting in excess of its jurisdiction in this case, and
a writ of prohibition should issue.
Moreover, in the absence of a verified complaint
against Daniel J. Shea, the proceedings against him must be
barred, since such lack of verified complaint violates a
validly enacted statute and the Commission's own rule. In
such case a writ of prohibition may issue.
~ccordingly,this opinion shall be and constitute a
writ prohibiting the Judicial Standards Commission from
proceeding further in its pending action against Daniel J.
Shea.
Justice
We Concur:
.............................
Justices
Mr. Chief Justice Frank I. Haswell did not participate in
this decision.
Mr. Justice Fred J. Weber specially concurs in the Opinion
of the Court on the following basis:
The Opinion of the Court described the dispositive
issues in this cause to be as follows:
1. Is the Judicial Standards Commission subject to
the power of the Supreme Court to issue writs of prohibition,
mandamus, certiorari, or alternative writs?
2. Does Rule 9(a) of the Judicial Standards Commission
exceed the constitutional power of the Judicial Standards
Commission?
3. Is a verified complaint a requisite for Judicial
Standards Commission proceedings?
4. Are the charges made by the Judicial Standards
Commission against Daniel J. Shea included in the phrase
"willful misconduct in office?"
I agree to and join in the holding of the Court with
regard to issues 1, 2 and 3. Because of our holding on
those three issues, I agree with the conclusion of the Court
that the proceedings against Daniel J. Shea must be barred
since the lack of a verified complaint violates a validly
enacted statute and the Commission's own rule.
Accordingly, I join in the Opinion of the Court which
constitutes a writ prohibiting the Judicial Standards Commission
from proceeding further in its pending action against Daniel
J. Shea.
Because of the Court's holding on the first three
issues, we do have an adequate basis for the issuance of a
writ of prohibition. Having reached that conclusion, I do
not find a necessity or reason for this Court making any
determination on issue 4. Therefore, I do not join in that
portion of the Opinion of the Court pertaining to issue 4.