Friday, February 11, 2011

Resign And Then Run

The Vermont Supreme Court has held that discipline against an assistant judge who had failed to resign from office in order to run for the position of probate judge was appropriate, rejecting the judge-candidate constitutional claims. The court rejected the Judicial Conduct Board's proposed one-month suspension from office:

First, we emphasize our point of agreement with the Board.  Although the Preamble to the Code acknowledges that not “every transgression” must result in disciplinary action, we believe that a public sanction here is appropriate.  Notwithstanding respondent’s claim of ambiguity, we find that the language of Canon 5(A)(3) is clear and straightforward and that respondent’s violation of the Canon was patent and indisputable.  Although respondent claims that he relied on a legal opinion from his attorney to the contrary, as we have pointed out, a violation need not be willful to cause public harm or warrant public censure.  See Kroger, 167 Vt. at 6, 702 A.2d at 67 (where judge’s behavior transgresses high standards of Judicial Code, sanctions may be imposed even where “the judge sincerely believed [the conduct] to be appropriate and correct”). 

At the same time, we do not believe that the more severe sanction recommended by the Board—a thirty-day suspension and compulsory resignation from one of respondent’s two current judicial offices—is necessary or appropriate.  First, respondent’s lengthy record of judicial service is otherwise entirely free of prior conduct violations, and we are not persuaded that a suspension from office is necessary to restore public confidence in either respondent’s integrity or in the judiciary’s integrity as a whole.  See In re Kroger, 167 Vt. at 15, 702 A.2d at 72 (noting general rule that judge’s isolated instance of misconduct must be balanced against prior unblemished record).  Second, we take judicial notice that respondent was not a candidate in the November 2010 general election for reelection to the office of assistant judge, and therefore will—as a matter of course—vacate that office at the end of January of 2011.  See Vt. Const., Ch.II, § 50.  Requiring respondent’s resignation shortly before the natural end of his term would serve little practical or remedial purpose compared to the greater administrative inconvenience caused by the temporary vacancy.  Finally, we note that, however patent respondent’s violation of Canon 5(A)(3), it has resulted in no charge or evidence of any actual conflict of interest or neglect of duty by respondent.  Accordingly, we conclude that a public reprimand is the appropriate sanction for the violation. 

(Mike Frisch)

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