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Inquiry Concerning Judge Day

Supreme Court of Oregon

March 15, 2018

Inquiry Concerning a Judge re: THE HONORABLE VANCE D. DAY, Respondent,

          Argued and submitted June 14, 2017.

         On recommendation from the Commission on Judicial Fitness and Disability CJFD No. 12139, 1486.

          Janet M. Schroer, Hart Wagner LLP, Portland, argued the cause and fled the briefs for the respondent. Also on the briefs were Ruth C. Rocker, Portland, and James Bopp, Jr. and Anita Milanovich, The Bopp Law Firm, Terre Haute, Indiana, and Bozeman, Montana.

          Timothy R. Volpert, Tim Volpert PC, Portland, argued the cause and fled the brief for the Commission on Judicial Fitness and Disability. Also on the brief were Darlene D. Pasieczny and Victoria D. Blachly, Samuels Yoelin Kantor LLP, Portland.

          Herbert G. Grey, Beaverton, fled the brief for amici curiae Christian Legal Society and Professor Mark David Hall. Also on the brief were Robert A. Destro, Washington, D.C., and Kimberlee Wood Colby, Springfeld, Virginia.

          Stefan C. Johnson, Los Angeles, fled the brief for amici curiae Lambda Legal Defense and Education Fund, Inc. Also on the brief were Peter C. Renn, Los Angeles, California, and Eric D. Lesh and Ethan D. Rice, New York, New York.

         [362 Or. 548] Before Balmer, Chief Justice, Kistler, Walters, Nakamoto, and Flynn, Justices, and Landau and Brewer, Senior Justices pro tempore. [*]

          PER CURIAM

         [362 Or. 549] This case is before us on a recommendation from the Commission on Judicial Fitness and Disability. The commission filed a formal complaint alleging 13 misconduct counts against respondent, involving the following judicial conduct rules and constitutional provisions: Oregon Code of Judicial Conduct Rule 2.1 (promoting confidence in the judiciary); Rule 2.2 (prohibiting using judicial position for personal advantage); Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties); Rule 3.7(B) (judge must be patient, dignified, and courteous to litigants); and Article VII (Amended), sections 8(1)(b), (c), and (e), of the Oregon Constitution (prohibiting willful misconduct bearing a demonstrable relationship to the effective performance of judicial duties; willful or persistent failure to perform judicial duties; and willful violation of a judicial conduct rule). After conducting a hearing, the commission filed a recommendation with this court, to the effect that clear and convincing evidence supported a conclusion that respondent had violated multiple rules with respect to eight of the counts, including violations not alleged in the complaint. The commission further recommended that respondent be removed from office. See ORS 1.430(1) (if commission holds hearing, Supreme Court shall review record of proceedings and may discipline judge); Or. Const, Art VII (Amended), § 8(1) (in manner provided by law, Supreme Court may censure, suspend, or remove a judge from judicial office for specified misconduct). Respondent argues that we should dismiss all or several counts for procedural reasons; that the commission did not sufficiently prove the alleged misconduct; and, in any event, that the only appropriate sanction is a censure.

         For the reasons explained below, we dismiss two of the eight counts of complaint that are at issue, and we also do not consider any violation that the commission now recommends that it did not allege in its complaint. We further conclude, however, that the commission proved by clear and convincing evidence that respondent engaged in some of the misconduct alleged in the remaining six counts. We suspend respondent, without pay, for three years.

         [362 Or. 550] I. FRAMEWORK FOR ANALYSIS AND EVALUATION OF RECORD

         We begin by describing the constitutional and statutory framework that defines our task in this case.

         A. Authority to Censure, Suspend, or Remove a Judge

         Under Article VII (Amended), section 8(1), of the Oregon Constitution, this court may censure, suspend, or remove from judicial office a judge who has engaged in certain willful misconduct, as follows:

"(1) In the manner provided by law, *** a judge of any court may be removed or suspended from his [or her] judicial office by the Supreme Court, or censured by the Supreme Court, for:
* * * * *
"(b) Wilful misconduct in a judicial office where such misconduct bears a demonstrable relationship to the effective performance of judicial duties; or
"(c) Wilful or persistent failure to perform judicial duties; or
* * * * *
"(e) Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court[.]"[1]

         That constitutional provision was originally adopted by the people in 1968, following a 1967 legislative referral; it was amended to its current form in 1976. Or. Laws 1967, Senate Joint Resolution 9; Or. Laws 1975, Senate Joint Resolution 48; see also In re Fadeley, 310 Or. 548, 553, 802 P.2d 31 (1990) (describing history). Pursuant to the authorization in Article VII (Amended), section 8(1)(e), this court has established a Code of Judicial Conduct, revised from time to time, that applies in judicial fitness [362 Or. 551] proceedings.[2] In re Schenck, 318 Or. 402, 405, 870 P.2d 185, cert den, 513 U.S. 871 (1994).

         Also in 1967, the legislature passed an accompanying act that created what is now the Commission on Judicial Fitness and Disability, and established the process for judicial fitness and disability proceedings. Or. Laws 1967, ch 294; Fadeley, 310 Or. at 553; see also ORS 1.410-1.480 (current statutes). Under that statutory framework, the commission may hold a hearing following an investigation, ORS 1.420 (1)(a); if the commission finds that the judge's conduct justifies censure, suspension, or removal from office, the commission then "shall recommend to the Supreme Court" one of those three identified sanctions, ORS 1.420(4). Consistent with the constitutional provisions just cited, however, only this court has authority to censure, suspend, or remove a judge from office. See also ORS 1.430(1) (if commission holds hearing, this court shall review the record of proceedings on law and facts, and may impose an identified sanction); In re Jordan, 290 Or. 303, 308, 622 P.2d 297, clarified on petition for reh'g, 290 Or. 669, 624 P.2d 1074 (1981) (Jordan I) (commission's statutory duty is to make recommendation to this court concerning censure, suspension, or removal).[3] And, as alleged in this case and as required by the Oregon Constitution, such a sanction may be imposed only as a result of willful misconduct or willful violation of a judicial conduct rule. In re Gustafson, 305 Or. 655, 657, 756 P.2d 21 (1988).

         B. "Wilful" Misconduct

         This court has explained that, for constitutional purposes, "wilful" misconduct under Article VII (Amended), sections 8(1)(b), (c), and (e), combines elements of "intent" and "knowledge": A judge's conduct is "wilful" "if the judge intends to cause a result or take an action contrary to the applicable rule and if [the judge] is aware of the circumstances that in fact make the rule applicable, whether or not [362 Or. 552] the judge knows that he [or she] violates the rule." Gustafson, 305 Or. at 660 (emphasis added); see also Schenck, 318 Or. at 405 (judge must have "the conscious objective of causing the result or of acting in the manner defined in the rule of conduct" (internal quotation marks omitted)). "It is not enough that a judge was negligent [and] should have known better, " but, conversely, a "benign motive" will not excuse either an intentional or knowing violation "of a nondiscre-tionary norm." Gustafson, 305 Or. at 559-60 (internal quotation marks omitted).

         C. Burden of Proof and Standard of Review

         The commission must establish alleged violations of the Code of Judicial Conduct by clear and convincing evidence. Commission on Judicial Fitness and Disability Rule of Procedure (CJFDRP) l6.a.; Schenck, 318 Or. at 405; see also ORS 1.415(3) (commission shall adopt rules of procedure governing proceedings under ORS 1.420); Jordan 1, 290 Or. at 307 (purpose of judicial fitness proceeding is "proper administration of justice for the public good"; proceedings are not criminal in nature, and burden of proof is clear and convincing evidence, rather than proof beyond reasonable doubt). "Clear and convincing evidence means that the truth of the facts asserted is highly probable." In re Miller, 358 Or. 741, 744, 370 P.3d 1241 (2016). If witness testimony about key facts is in conflict, then the record must establish that it is "highly probable" that the testimony that supports the allegations is true. See In re Knappenberger, 344 Or. 559, 571, 186 P.3d 272 (2008) (lawyer discipline, so demonstrating); In re Bishop, 297 Or. 479, 485, 686 P.2d 350 (1984) (same). Respondent is entitled to a presumption that he did not engage in the alleged misconduct. See In re Jordan, 295 Or. 142, 156, 665 P.2d 341 (1983) (Jordan II) (lawyer discipline; so stating).

         This court's review of the record is de novo. See In re Gallagher, 326 Or. 267, 284, 951 P.2d 705 (1998) (citing ORS 1.430(1) for that proposition). As this court previously has explained, in deciding whether the commission's proof is clear and convincing, we "make our own independent evaluation of the evidence" and then "decide whether the conduct, based on our findings of the facts, constitutes conduct proscribed by [362 Or. 553] the Oregon Constitution." In re Field, 281 Or. 623, 629, 576 P.2d 348, reh'g den, 281 Or. 638, 584 P.2d 1370 (1978).

         II. FACTS

         A. Introduction

         Respondent is a Marion County Circuit Court judge, who was appointed to the bench in fall 2011 and then elected in 2012. The events at issue occurred beginning in fall 2012 and continuing through 2014. The commission initially, and briefly, investigated a particular 2012 incident, as described below, but decided not to file a formal complaint. About 18 months later, it commenced a more expansive investigation about additional allegations, and it revisited the 2012 incident. The commission filed a formal complaint in June 2015 that set out 13 counts, including the 2012 incident as well as other, subsequent alleged misconduct. It conducted an evidentiary hearing several months later. The commission then filed an opinion with this court, which included findings of fact, analysis, and conclusions of law. The opinion determined that, as to eight counts, respondent committed multiple rule and constitutional violations, including several not alleged in the formal complaint. As to five counts, the commission recommended dismissal.

         We provide a general factual summary below pertaining to the eight counts identified in the commission's recommendation. Later in this opinion, we discuss many of the facts-several of which are disputed-in greater detail.[4]

         B. Alleged Misconduct; Complaint Allegations; Hearing; and Commission Recommendations

         1. Interactions at soccer games and response to related commission inquiry (Counts 1 and 2)

         In fall 2012, one of respondent's sons played on a soccer team for Chemeketa Community College. In October, [362 Or. 554] respondent's son was injured during a game that respondent attended, which prompted respondent to think poorly of the ability of a referee, Deuker, to manage player safety. After the game, respondent approached Deuker in the officials' area. His and Deuker's accounts of what happened next varied. In respondent's account, he stated his intent to file an official complaint, asked for Deuker's name, and provided a business card after being asked for his contact information. In Deuker's account, respondent-while complaining about the officiating-"shoved" his business card at Deuker, which identified him as a circuit court judge, prompting Deuker to feel intimidated by him. Deuker sought advice after the game from a longtime referee, Allen, who advised him to report the incident to another official, as well as to the commission, and Deuker did so.

         A few weeks later, Allen attended a Chemeketa playoff game. According to Allen, as he watched the field after the game, he noticed respondent-whom he did not know but assumed to be the judge from before-crossing toward the officials. From several yards away, Allen put his hands up and yelled at respondent to leave and go back to the spectators' area. Respondent replied that he only had wanted to tell the referees that they had done a good job, and then he turned and walked toward the team. A week later, Allen wrote to the commission. In his letter, he referred to Deuker's earlier complaint; summarized what he characterized as a second attempt by respondent to "intrude" on the officials' area; and explained that he had "intercepted" respondent and advised him to leave.

         The commission assigned a single 2012 case number to Deuker's and Allen's reports, and, in early January 2013, it sent an inquiry to respondent. Respondent wrote back later the same month, explaining his interaction with Deuker after the first game and describing a physical altercation with an unidentified man after the second game. As to the first game, respondent stated that he had produced his business card after being asked to provide contact information. As to the second game, respondent stated that, as he started to thank the officials, he had been physically accosted and almost thrown down by a man matching [362 Or. 555] Allen's description, who had yelled that he had no authority to be near the officials.

         The commission assessed those "diametrically opposed" written versions of the events and determined that respondent's version "[rang] more true." In February 2013, the commission sent respondent a letter stating that it had concluded that the "complaint"-that is, Deuker's and Allen's initiating complaints to the commission-"should be dismissed."

         About 18 months later, the commission began investigating other misconduct allegations involving respondent, prompting it to further investigate Deuker's and Allen's reports, including interviews with Deuker, Allen, and others who had attended the soccer games. In its June 2015 formal complaint, the commission included two counts relating to those incidents, notwithstanding its earlier dismissal notification to respondent. Count 1 described respondent's conduct after the first game in approaching the officials' area, complaining about Deuker's officiating, and producing his circuit court business card; and charged him with violating Rule 2.1(A) (preserving integrity of judiciary; promoting public confidence in judiciary); Rule 2.1(C) (prohibiting conduct reflecting adversely on character to serve as judge); Rule 2.2 (prohibiting using judicial position for personal advantage); and Article VII (Amended), sections 8(1)(b) and (e) (willful misconduct bearing demonstrable relationship to effective performance of judicial duties; willful violation of judicial conduct rule). Count 2 described respondent's written statement in his responding letter to the commission about being physically accosted after the second game, alleged that that statement was false, and charged respondent with again violating Rule 2.1(C) and Article VII (Amended), section (8)(1)(e), as well as Rule 2.1(D) (prohibiting conduct involving dishonesty, deceit, or misrepresentation).

         At the hearing, the commission heard testimony from respondent, Deuker, Allen, and others who had been present at the games. As to both Counts 1 and 2, the commission determined that respondent had violated all the rules alleged, as well as Article VII (Amended), section 8(1)(e). [362 Or. 556] It further determined that he had violated another rule in connection with Count 2-Rule 3.12(A) (not being candid with disciplinary authority)-when he reported to the commission that he had been physically accosted after the second game.[5]

         2. Relationship with Veterans Treatment Court participant; participant's handling of firearms; related court inquiry and commission investigation (Counts 3, 4, 5, and 6)

         The next group of allegations arose in connection with respondent's role as judge of the Marion County Veterans Treatment Court (VTC), which originally began as a Veterans Treatment Docket and then transitioned to a funded VTC in October 2013. The VTC operates similarly to a drug court, involving a post-adjudicative, collaborative, and interdisciplinary team model that includes a judge, a deputy district attorney, two defense attorneys, a probation officer, a VTC coordinator, a law enforcement representative, treatment professionals, one or more Veteran's Administration specialists, a veteran mentor coordinator, and an assessor. Participants are probationers who have pled guilty to criminal charges and have been accepted into the VTC to work through a multi-phase, 18- to 24-month program that provides them with support and addresses their unique needs-including medical, psychological, housing, benefits, and vocational training-as well as reintegration into their communities. Most VTC participants had pled guilty to misdemeanor charges, but felony charges were sometimes involved. VTC courtroom proceedings, which all participants were required to attend, were intentionally more relaxed and informal than ordinary court proceedings. One goal of the VTC was to improve participant accountability by increasing their contacts with VTC team members, both in court and, depending on the circumstances, out of court. Because the VTC was new at the time of the events at issue, its practices were evolving.

         [362 Or. 557] The record shows that, in his work with the VTC, respondent genuinely cared about the participants. He put his "heart and soul" into the VTC, motivated by his desire to honor and assist veterans, not to promote his own interests. He had "tremendous respect" for the participants, cared for them, and wanted to help their positive transition back to society. The record also shows that respondent had a deep respect for, a sincere interest in, and a fascination with, military history and the work of the armed forces.

         In June 2013, a veteran to whom we refer as BAS was accepted onto the Veterans Treatment Docket-later transitioning to the VTC-after he pled guilty to felony driving under the influence of intoxicants (DUII).[6] His judgment of conviction, which respondent signed, provided for 24 months' supervised probation, with conditions, and for reduction of his felony conviction to a misdemeanor on successful completion. His plea agreement included a lifetime driver's license revocation, and his probation conditions included compliance with the Veterans Treatment Docket and a statutorily based prohibition on possessing firearms.[7]

         BAS was a decorated former Navy SEAL, who had served at least 12 deployments.[8] He had many significant needs relating to his veteran status-including Post-Traumatic Stress Disorder (PTSD), traumatic brain injury (TBI), substance abuse, and a debilitating knee injury. He lived outside Salem on a rural farm and had no friends or family in the area, nor a driver's license.

         Respondent and the VTC team began working with BAS, whom they had assessed as high-risk. Outside of court, team members drove BAS to appointments and other errands, and they sometimes visited his home with groceries or to visit or check on him. A back-up VTC judge, Judge Ochoa, took BAS to a Portland museum and drove him to appointments; the deputy district attorney took him [362 Or. 558] hiking and bike-riding (with defense counsel's consent); and respondent's son drove him to appointments and became friendly with him.[9] Respondent also encouraged his clerk to socialize with BAS and to serve as a confidant for him. By about the end of 2013, respondent had gone to BAS's home at least twice.

         Due to the unique nature of BAS's military service and his personality, some members of the VTC team, including respondent, developed a special interest him. In September 2013, respondent asked to interview BAS for an article about the VTC that he was writing. BAS did not feel as though he could decline to be interviewed because he worried that declining might harm his case, but he did not convey that to respondent.

         Later that fall, respondent and BAS had joking interactions during open VTC hearings about BAS's firearms prohibition. Those interactions showed a continuing acknowledgement-by both respondent and BAS-of that prohibition.

         As the holiday season approached, the VTC team grew concerned about BAS's well-being-namely, his isolation and the danger of self-harm-and they discussed making a concerted effort to keep him socialized. In mid-November, respondent arranged for BAS to work at the home of his son-in-law, Mansell. Before driving BAS to Mansell's home, respondent took him to a small, brief wedding ceremony that respondent had agreed to officiate. There, respondent introduced BAS as a Navy SEAL and used his call sign, which made BAS feel as if he were "on display."

         Respondent then took BAS to Mansell's home. BAS had been told that other VTC participants would be there, but none were. The work involved preparing cabinetry for a lacquer application. BAS located three hidden drawers in the cabinetry, opened one, and found a gun. The surrounding circumstances are in dispute. According to BAS, respondent had challenged him to find a hidden drawer containing a gun; BAS found it and asked respondent if he could handle [362 Or. 559] it; and respondent said yes. BAS then checked the gun and put it back.[10] According to Mansell and respondent, Mansell had challenged BAS to find the hidden drawers while respondent worked on a carpentry project across the room and was not paying attention; BAS found a drawer containing an unloaded gun but did not handle it; Mansell made a comment about the gun; and respondent vaguely heard the comment but was not aware of the situation.

         Out-of-court interactions between BAS and respondent continued. Respondent invited BAS to Thanksgiving dinner, but BAS declined due to illness. They had other text exchanges in that same timeframe. In early December, respondent attended a VTC conference with a Marion County Circuit Court colleague, Judge Prall, and he and BAS texted during the conference. Also while there, respondent and Judge Prall met a famous Navy SEAL and others who were friends of BAS's, and they learned more about BAS's military service. During that conference, respondent and Judge Prall discussed judicial boundaries with treatment court participants, and Judge Prall told respondent that she did not have out-of-court interactions with participants, aside from incidental greetings. At around the same time, BAS was admitted to a three-week treatment program in Texas for his TBI, and he and respondent texted while he was there. He returned to Oregon shortly before Christmas.

         On Christmas Eve, BAS accepted an invitation to a holiday dinner at the home of Judge Ochoa and his wife; the VTC coordinator, Lambert, and the VTC deputy district attorney also attended. On Christmas evening, respondent invited BAS to a family brunch at his home the next day, to celebrate respondent's birthday.

         BAS attended the brunch. Judge Ochoa and the deputy district attorney also had been invited but were unable to attend; the only other attendants were respondent's family members. Unbeknownst to respondent, BAS was uncomfortable-he felt out of place, and he was not [362 Or. 560] comfortable discussing military, political, and religious issues with respondent and his family. While there, BAS noticed a particular gun case and commented that it held a "good weapon." Within the next few days, respondent and BAS had more text exchanges.

         In early January 2014, BAS's pellet stove-which was his only heat source-stopped working, and the VTC team discussed their concerns about BAS being isolated in the cold weather with no heat. On a Sunday, respondent and his son drove to BAS's home to bring him lunch and check the stove. Unbeknownst to respondent, his son had brought the gun that BAS had noticed at the brunch to show to BAS. Again, the surrounding circumstances are in dispute. According to BAS, while respondent's son was handling the gun with respondent sitting nearby, BAS asked respondent if he could show his son how to handle the gun safely. Respondent answered affirmatively and also said that, because he had signed BAS's probation order, he could make "adjustments." BAS then handled the gun. Again according to BAS, at the end of the visit, BAS told respondent that his son would be returning later that day to target-shoot with BAS using the gun; respondent stated that he had no objection; and, later that day, his son and BAS shot the gun on BAS's property[11] According to respondent, he had been working with the broken stove while his son and BAS were in another part of the room. He heard BAS say something that caught his attention, and he looked and saw BAS holding the gun. Respondent denied having said anything to BAS about the gun, and he testified that he had not thought about BAS's felon status-and accompanying firearms prohibition-at that time. He also testified that he did not learn about the target-shooting until much later, when the commission investigation was underway.

         Respondent and BAS texted again over the following week. In the last exchange, respondent offered to bring BAS a working heat source, but BAS declined. Respondent suggested that BAS was "disengaging, " but BAS stated that [362 Or. 561] he was not. By this time, BAS had confided in respondent's clerk, as well as an assigned taxi driver who took him to appointments, that he felt uneasy and overwhelmed about respondent's out-of-court contacts with him, but he thought that he needed to acquiesce to avoid more severe consequences in his case. Respondent did not know about those conversations.

         About a week after the second gun-handling incident, BAS told respondent's clerk that respondent and his son had brought a gun to his home, and she told Lambert. Lambert spoke to BAS right away; he confirmed that the incident had occurred and also described the earlier incident at Mansell's home. BAS told Lambert that he felt distraught by the constant contact and was concerned that, if he did not do what respondent wanted, his felony conviction might not be reduced to a misdemeanor at the end of his probation. He also expressed concern about going to jail for a firearms violation. Lambert immediately memorialized their conversation afterwards, in notes to herself.

         Lambert then spoke to respondent. She told him about BAS's concern regarding the contacts from him and his family, and respondent agreed that, in light of BAS's discomfort, those contacts should be reduced, and they stopped thereafter. At the commission hearing, respondent testified that it had not occurred to him that, over those few months, he had placed BAS in a difficult position, as a probationer in his court.

         During the same conversation, Lambert also told respondent that she knew about both gun-handling incidents, and she mentioned BAS's felon status. According to respondent, that conversation was the first time that he had thought about BAS's felon status, and he became greatly concerned that negative implications could flow to BAS in light of his firearms prohibition. He then told the VTC deputy district attorney, as well as BAS's lawyer and probation officer, that his son had shown BAS a gun. The deputy district attorney evaluated whether to criminally charge BAS, but decided not to do so.

         In February, BAS went back to Texas for treatment, and, while there, he secured a job that required carrying a [362 Or. 562] firearm. The VTC team decided that it was appropriate to reduce his felony to a misdemeanor. Respondent signed a judgment to that effect, nunc pro tunc, effective June 2013. BAS moved to Texas and participated in several more VTC hearings by telephone. At an April hearing, he mentioned that he was traveling to visit his ill father, and his father died not long after that. At a May hearing, respondent offered his condolences to BAS, who was reserved and found it difficult to talk. After BAS reported that he had been in only sporadic contact with his mentor, respondent ordered additional contact, but BAS thereafter had difficulty connecting with his mentor.

         At a hearing in August, BAS reported that he had stopped trying to contact his mentor, but respondent reiterated his earlier order, and he ordered BAS to write a paper about the importance of mentor contact.[12] BAS became very angry and upset about some of respondent's comments in court, and he called Lambert afterwards, stating that he needed to talk to someone about respondent. Lambert suggested that he speak to Presiding Judge Rhoades, and Lambert reported their conversation to Judge Rhoades, including telling her about the gun-handling incidents and other issues involving BAS and respondent.

         Judge Rhoades then spoke with BAS by telephone, and he told her about the second gun-handling incident and some of his other contacts with respondent. The next day, she reassigned BAS's case to Judge Prall, and she arranged to meet with respondent, with another judge, Judge Penn, in attendance. The purpose of the meeting was to confirm whether any of respondent's conduct relating to BAS should be reported to the commission, but respondent did not know the topic of the meeting in advance.

         At their meeting, Judge Rhoades told respondent that she had received information about his out-of-court contact with BAS and, referring to the second gun-handling incident, that he had been present when BAS had handled a gun. Respondent initially denied remembering that incident. After Judge Rhoades provided additional information, [362 Or. 563] he acknowledged it, but he denied that he had given BAS permission to handle the gun, and he stated that he had not known at that time that BAS was a felon. Judge Rhoades did not think that respondent was forthcoming. Judge Penn similarly did not think that respondent sounded truthful about his lack of awareness concerning BAS's felon status, and he described respondent as clarifying or modifying his answers to various questions throughout the meeting. For his part, respondent characterized the meeting as akin to a "star chamber"; he had been shocked and caught off-guard by the questions and what he thought was an aggressive tone. As the meeting ended, Judge Rhoades and Judge Penn expressed their view that the second gun-handling incident should be reported to the commission, and respondent confirmed that he would self-report.

         Soon thereafter, respondent sent a letter to the commission, stating that he had been recently advised that a VTC participant had contacted his presiding judge "with concerns about an interaction he had with me in January of this year." He provided BAS's name and case number, but no additional detail. Judge Penn had advised respondent to write a letter that was general in nature because its purpose was to provide the commission with sufficient information to begin an investigation. A few weeks later, Judge Penn called the commission to inquire about the status and realized that additional information was needed, so he sent some documentation and provided the names of staff members who might be appropriate to interview. An investigator hired by the commission later interviewed several witnesses, including respondent. During his December 2014 interview, respondent told the investigator that, during the second gun-handling incident, he had been in another part of the room working on the stove; he had simply observed the interaction with the gun between his son and BAS; and there had been no discussion about whether BAS should touch the gun.

         Meanwhile, BAS successfully completed his probation after his case was reassigned to Judge Prall. Several witnesses testified that BAS had demonstrably benefitted from his participation in the VTC-he had become sober, his debilitating knee injury and other health issues had [362 Or. 564] been addressed, he had received treatment for his TBI and PTSD, and he could function in society and was employable. Overall, he was in a healthier emotional and mental state than when he entered the program. BAS also testified that he appreciated respondent's assistance and kind treatment of him, and he previously had acknowledged that respondent and the entire VTC team had wanted what was best for him.

         As to the conduct directly involving BAS, following its investigation, the commission charged respondent with two identical counts for each gun-handling incident (Counts 3 and 4), alleging violations of Rule 2.1(A) (preserving integrity of judiciary; promoting public confidence in judiciary), Rule 2.1(C) (prohibiting conduct reflecting adversely on character to serve as judge), and Article VII (Amended), sections 8(1)(b) and (e) (willful misconduct bearing demonstrable relationship to effective performance of judicial duties; willful violation of judicial conduct rule). It also charged those same rule and constitutional violations, as well as a violation of Rule 3.7(B) (judge must be patient, dignified, and courteous to litigants), as part of alleging an improper relationship between respondent and BAS (Count 6). That count specifically alleged that respondent had "singled BAS out for attention and improperly imposed himself onto BAS, " thereby placing BAS "in the position of being subject to [respondent's] attentions, while being aware of [respondent's] control over his probation status." As to respondent's meeting with Judge Rhoades and Judge Penn, and his interview with the commission's investigator, the commission charged respondent with violating Rule 2.1(D) (prohibiting conduct involving dishonesty, deceit, or misrepresentation), and, again, Article VII (Amended), sections 8(1)(b) and (e) (Count 5). The complaint specifically alleged that respondent untruthfully had told Judge Rhoades and Judge Penn that he "did not know" that BAS had been convicted of a felony, and that he had "denied" to the commission, when asked about the second gun-handling incident, that he had told BAS that he "waived" the firearms prohibition.

         At the hearing, the commission heard testimony from BAS by telephone and heard live testimony from [362 Or. 565] respondent, Judge Rhoades, Judge Prall, Judge Penn, Lambert, other members of the VTC team, and other witnesses. The commission expressly found BAS's testimony to be credible, and it determined that respondent had violated all the rules and constitutional provisions alleged in Counts 3 through 6, except that it made no finding on Article VII (Amended), section 8(1)(b), on Count 5. It further determined that respondent had violated several additional rules: As to both Counts 3 and 4, the commission found violations of Rule 2.1(B) (prohibiting commission of criminal act) and Rule 3.9(A) (prohibiting ex parte communications); and, as to Count 5, the commission found a violation of Rule 2.1(C) (prohibiting conduct reflecting adversely on character to serve as judge) and Rule 3.12(A) (not being candid with disciplinary authority).

         3. Funding for "Heroes and Heritage Hall" (Count 9)

         In connection with his work on the VTC, respondent created a "Heroes and Heritage Hall" in an open, public area on the same floor of the Marion County Courthouse as his courtroom. The Hall was a military artwork and memorabilia gallery that was intended to recognize military service, commemorate local veterans, and bring attention to veteran-related issues. Respondent hung items of his own and items donated by others. To professionally complete and frame some pieces, he used both personal funds and funds from a nonprofit foundation that had partnered with the VTC.

         As the Hall artwork display expanded, local lawyers-some of whom appeared before respondent- inquired about it. Respondent spoke with some of them about sponsoring memorabilia pieces for particular well-known local lawyers and judges who were veterans. Respondent thought that those pieces provided encouragement to the VTC participants because they showed that other veterans had addressed their military-related issues and then gone on to serve their community in distinguished ways. Each lawyer who had agreed to sponsor all or part of a memorabilia piece wrote a check payable to the order of the foundation and then either mailed the check to the foundation or to respondent's chambers, or dropped it off in his chambers.

[362 Or. 566] Information about the Hall came to the commission's attention when it interviewed witnesses in connection with respondent's initial self-report. Following its investigation, the commission alleged in Count 9 of its complaint that, by collecting money from lawyers who appeared before him in court to sponsor veteran-related art, with donation checks delivered to him at the courthouse, respondent violated Rule 2.1(A) (preserving integrity of judiciary; promoting public confidence in judiciary), and Article VII (Amended), sections 8(1)(b) and (e) (willful misconduct bearing demonstrable relationship to effective performance of judicial duties; willful violation of judicial conduct rule). In its opinion, the commission determined that respondent had intentionally "solicit [ed]" donations and thus had violated the rule and constitutional provisions as alleged, as well as Rule 4.5(A) (prohibiting personal solicitation of funds).[13]

         4. Screening process for same-sex marriage requests (Count 12)

         After he became a judge, respondent regularly solemnized marriages for members of the public, pursuant to ORS 106.120.[14] At that time, the Oregon Constitution stated that "only a marriage between one man and one woman shall be valid or legally recognized as a marriage."

         [362 Or. 567] Or. Const, Art XV, § 5a (adopted by initiative petition in 2004). In May 2014, an Oregon federal district court judge ruled that Oregon's constitutional ban on same-sex marriage and related statutory provisions violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Geiger v. Kitzhaber, 994 F.Supp.2d 1128, 1139 (D Or), appeal dismissed, 2014 WL 8628611 (9th Cir 2014), cert den, 135 S.Ct. 1860 (2015). Marion County Circuit Court judges did not receive any specific instruction about solemnizing marriages after that ruling.

         Respondent's clerk and his judicial assistant (JA) knew that respondent thought that marriage should be permitted between only opposite-sex couples, based on his own sincere and firmly held religious beliefs. After the federal court ruling, they asked respondent about any changes to the process in his chambers for solemnizing marriages. He instructed that, when his chambers received any marriage request, the JA or the clerk should obtain the couple's names, addresses, dates of birth, and telephone numbers; and then check the Oregon Judicial Information Network (OJIN) to see if the couple had existing case records and, if so, to confirm their genders.[15] If the JA or clerk determined that the couple was a same-sex couple, then they should call the couple back and say that respondent was not available or they should otherwise provide that information to respondent, so that he could decide how to proceed. If the couple was an opposite-sex couple, however, then the wedding date should be put on respondent's schedule. Respondent's staff was not comfortable with the instruction to check OJIN-which they had not previously done-and to provide incorrect information about respondent's availability.

         On one occasion, respondent's JA checked OJIN and discovered that a requesting couple might be a same-sex couple. Respondent had an actual scheduling conflict on the requested date, however, so she truthfully told the couple [362 Or. 568] that he was not available. Several weeks after that, respondent stopped solemnizing marriages altogether.

         Respondent's JA testified at the hearing that she never had seen respondent act in any way that had discriminated against any lesbian, gay, bisexual, or trans-gender (LGBT) person. Other witnesses-including sitting judges-similarly testified that they never had known respondent to discriminate against anyone and never had heard respondent make any derogatory remark about the LGBT community.

         Respondent's in-chambers process for handling same-sex marriage requests came to the commission's attention when its investigator interviewed respondent's JA and his clerk in connection with respondent's initial self-report. Following its investigation, the commission charged respondent in Count 12 of its complaint with violating Rule 3.3(B) (prohibiting manifestation of bias or prejudice in performance of judicial duties), and Article VII (Amended), sections 8(1)(b), (c), and (e) (willful misconduct bearing demonstrable relationship to effective performance of judicial duties; willful or persistent failure to perform judicial duties; willful violation of judicial conduct rule). The allegation stated that he inappropriately had screened, and ordered his staff to screen, same-sex couples because he refused to marry such couples even though their marriages were lawful. Following the hearing, the commission determined that respondent's screening practice had violated Rule 3.3(B) as alleged, as well as Article VII (Amended), sections 8(1)(b) and (e) (willful misconduct bearing demonstrable relationship to effective performance of judicial duties; willful violation of judicial conduct rule).[16] It further determined that that same practice had violated Rule 2.1(A) (preserving integrity of judiciary; promoting public confidence in judiciary), and his direction to his staff to lie to the public about his availability had violated Rule 2.1(D) (prohibiting conduct involving dishonesty, deceit, or misrepresentation).

         [362 Or. 569] 5. Additional factual and procedural background

         a. Testimony supporting respondent's reputation for honesty

         At the commission hearing, many witnesses- including several sitting judges-testified that respondent had a reputation for truth, honesty, and veracity. After considering all the evidence, however, the commission expressly found respondent's testimony to be disingenuous in several respects.

         b. Commission's additional factual findings

         In its opinion, after making factual findings on each count of complaint, the commission summarized additional factual findings not related to any particular count. It later relied on several of those findings-specifically, those supporting its unfavorable view of respondent's credibility and its determinations that he had engaged in a pattern of self-benefit and had displayed a lack of boundaries-as part of its consideration of the appropriate recommended sanction. After reviewing the record, we conclude that none of those additional final factual findings bear on our evaluation of the complaint allegations or our assessment of an appropriate sanction, and so we do not discuss them.

         c. Commission did not amend its complaint

         At the close of the commission's case, its counsel suggested that the commission had discretion to add counts to the complaint, to conform to the evidence. The chair responded that the commission's rules contemplated a motion, to which counsel responded that she would prepare such a motion at a later time. See CJFDRP 10.b. (commission, at any time prior to determination, may allow or require amendments; complaint may be amended to conform to proof; if amendment made, judge shall be given reasonable time to answer and prepare and present defense). Respondent countered that fundamental due process required that he be apprised of additional charges. The commission's counsel never submitted a written motion to amend or otherwise proposed any amendment. Nonetheless, as described, the commission ultimately determined that respondent committed multiple rule violations not alleged in the complaint.

         [362 Or. 570] 6. Sanction

         In assessing the appropriate recommended sanction, the commission considered several factors that, in its view, revealed patterns of misconduct on respondent's part. First, it determined that respondent's conduct showed that he had little insight concerning the boundaries that a judicial position requires. Second, it observed that respondent had engaged in a pattern of self-benefit, including that he had "exploit[ed] his judicial position to satisfy his personal desires." Third, it determined that respondent had engaged in a pattern of dishonesty. And finally, the commission opined that, even after he became the subject of an investigation in August 2014, respondent had been "unable to understand the magnitude of his actions in relation to the Code of Judicial Conduct." The commission summarized respondent's misconduct as "frequent and extensive, " including actions taken "for personal gain and * * * amounting to criminal behavior, " as well as misconduct that "impugn[ed] his honesty and integrity" and "undermine[d] the public's confidence in the judiciary." The commission unanimously concluded-and recommended to this court-that the appropriate sanction was removal from office.

         III. RESPONDENT'S PRELIMINARY MOTIONS AND PROCEDURAL ARGUMENTS

         Respondent makes several preliminary motions and procedural arguments, which we address below.

         A. Counts 1, 2, 3, 5, 6, 9, and 12-Motion to Dismiss, Lack of Authority

         Respondent first argues that the commission lacked statutory authority to file all counts that were not the result of his self-report to the commission-that is, all counts except Count 4 (which involved BAS and the second gun-handling incident). He contends that the commission's authority to investigate and bring charges is narrowed by ORS 1.420(1), which requires an initial "complaint" by "any person." All counts other than Count 4 derived from the commission and its investigation, or, as to the soccer-related counts (Counts 1 and 2), from an effective "re-fil[ing]" of an old inquiry that was previously dismissed. Accordingly, in respondent's [362 Or. 571] view, none of those counts were statutorily authorized. As explained below, we disagree.

         ORS 1.420(1) provides that, "[u]pon complaint from any person concerning the conduct of a judge or upon request of the Supreme Court, " and following an investigation, the commission may hold a hearing and take other alternative actions. In In re Sawyer, 286 Or. 369, 594 P.2d 805 (1979), this court considered whether ORS 1.420(1) requires the filing with the commission of a formal initiating complaint that must be disclosed to the judge. In that case, no initiating complaint had been filed, and the judge contended that the commission therefore had no jurisdiction to act. Id. at 373. This court first explained that, as with attorney discipline proceedings (and unlike in criminal proceedings), judicial fitness proceedings do not require that the judge be notified of the accuser's identification in advance. Id. at 374. Next, the court explained that the reference in ORS 1.420(1) to a "complaint from any person" did not necessarily impose a jurisdictional requirement of a formal complaint by an identifiable person. Instead, the statute "contemplates that the Commission may undertake the investigation of the conduct of a judge upon the basis of any information coming to it from 'any person, ' including any information coming to it through any of its members or staff." Id. at 375. The court additionally recognized that, in the event of a factual dispute, "an accused judge would be entitled to examine any evidence developed during the course of the investigation that was favorable to the judge." Id. at 374.

         The court's reading of ORS 1.420(1) in Sawyer applies in this case, as well: The fact that the commission received a new initiating report (from respondent) that directly concerned only one count of complaint did not deprive it of authority to charge the remaining counts following its investigation. In light of Sawyer, we deny respondent's motion to dismiss Counts 1, 2, 3, 5, 6, 9, and 12, on jurisdictional grounds.

         B. Counts 2, 3, 4, 5, 9, and 12-Recommended Misconduct Determinations Not Alleged in Commission's Complaint

         On Counts 2, 3, 4, 5, 9, and 12, as described earlier, the commission determined that clear and convincing [362 Or. 572] evidence supported all the rule violations, and almost all the constitutional violations, alleged in the complaint. Also on those counts, the commission determined that respondent had committed 10 rule violations not alleged in the complaint.[17] As part of challenging the sufficiency of the evidence supporting those counts, respondent argues that the commission acted improperly when it made recommendations about unalleged violations. For the reasons explained below, we agree.

         This court has explained that, as a necessary component of due process, a judge against whom a judicial fitness complaint has been filed is entitled to adequate notice, "i.e., information sufficiently specific to permit [the judge] to understand precisely where, when, how and before whom he [or she] is alleged to have committed [certain] acts" that purportedly violated specified ethical rules. State ex rel Currin v. Comm'n on Judicial Fitness, 311 Or. 530, 532-33, 815 P.2d 212 (1991); see also id. at 533 ("[a]dequate notice is a necessary component of due process of law"); CJFDRP 8.c. (complaint against judge must specify "in ordinary and concise language the charges against the judge and the alleged facts upon which such charges are based"). Recently, in In re Ellis / Rosenbaum, 356 Or. 691, 344 P.3d 425 (2015), the court explained that an accused lawyer who [362 Or. 573] is the subject of a disciplinary proceeding must be put on notice "of the conduct constituting the violation, as well as the rule violation at issue, " including a sufficient allegation of facts in connection with a charged allegation. Id. at 738 (internal quotation marks omitted; citing Bar Rule of Procedure (BR) 4.1(c), which requires complaint to set out alleged misconduct and rules violated); see also In re Coe, 302 Or. 553, 556, 731 P.2d 1028 (1987) (lawyer discipline; service of complaint and notice of answer satisfied due process requirements). By way of illustration, in In re Thomas, 294 Or. 505, 525, 659 P.2d 960 (1983), the Oregon State Bar alleged several rule and statutory violations in a particular cause of complaint. The trial board found that the lawyer had not committed the alleged violations, but it did find that he had committed an unalleged statutory violation. The parties did not brief the alleged violations on review, so only the unalleged violation was at issue. Id. at 526. This court dismissed the cause of complaint, explaining that an attorney must be given "reasonable written notice of the charge against him." Id.; see also In re Chambers, 292 Or. 670, 676, 642 P.2d 286 (1982) (rejecting trial board's finding that lawyer engaged in misrepresentation when pleadings contained no allegation putting lawyer on notice of misrepresentation charge; "[t]he proof supports this finding, but the pleadings do not").

         The complaint against respondent did not allege 10 of the rule violations that the commission ultimately found. And, the commission did not, at any point of the proceedings, amend its complaint pursuant to its rules, although that possibility was raised and discussed. We conclude that respondent had insufficient notice as to the 10 unalleged rule violations, and we therefore do not consider them. Cf. In re Skagen, 342 Or. 183, 215, 149 P.3d 1171 (2006) (lawyer discipline; explaining that no due process violation occurred, based on a failure to provide notice of charges, because the Bar had filed an amended complaint incorporating updated allegations); In re J. Kelly Farris, 229 Or. 209, 214-15, 367 P.2d 387 (1961) (lawyer discipline; explaining that a Bar procedural rule, which had provided the lawyer with reasonable time to defend against any amendment to the complaint that the panel permitted, "provide[d] for[362 Or. 574] all the essential ingredients of due process" that were at issue).[18]

         C. Counts 1 and 2-Motion to Dismiss "Revived" Counts Previously "Dismissed"

         Respondent next argues that we should dismiss Counts 1 and 2-the earlier soccer-related allegations- because the commission impermissibly "revived" those counts in its formal complaint. As previously described, in early 2013, after evaluating initiating complaints from Deuker (a soccer referee) and Allen (a longtime soccer official) about respondent's conduct at two soccer games in fall 2012, as well as respondent's January 2013 letter that responded to those complaints, the commission had determined that respondent's version of the events " [rang] more true." It therefore notified respondent in February 2013 that the "complaint"- that is, Deuker's and Allen's initiating complaints-"should be dismissed." About 18 months later, however, the commission began investigating respondent's self-report about BAS, and, in early 2015, it reinvestigated the soccer-related incidents. The commission's investigator interviewed Deuker, Allen, and others, and the commission later notified respondent of its intent to file charges. It then included Counts 1 and 2 in its formal complaint, filed in June 2015. Count 1 alleged that respondent had engaged in misconduct during the first game, by stating his intention to report Deuker while producing a business card that identified him as a circuit court judge. Count 2 alleged that respondent had falsely stated in his January 2013 letter responding to the commission's inquiry that, after the second game, he had been physically accosted by an unknown person, presumably, Allen.

         In challenging Counts 1 and 2 on procedural grounds, respondent emphasizes the wording of the commission's February 2013 initial dispositional letter to him, to the effect that the 2012 "complaint" "should be dismissed." In his view, the commission's rules do not permit "reconsideration" of an earlier dismissal of an initiating complaint; neither do they permit the commission to "reviv[e]" such a [362 Or. 575] complaint. It follows, he argues, that the commission was precluded from charging Counts 1 and 2. The commission disagrees. It asserted below that the earlier dismissal had not been "with prejudice, " and it argues in this court that its rules permitted a reinvestigation of the soccer-related incidents once it later determined, as part of the investigation into other alleged misconduct, that respondent had not been forthcoming about the BAS gun-handling incidents. Stated differently, the commission argues that it received and developed new information-its own assessment that respondent was not always truthful-that warranted a reinvestigation of the soccer-related complaints. As explained below, we conclude that the commission's rules precluded it from charging Count 1, but permitted charging Count 2.[19]

         CJFDRP 7 sets out a comprehensive structure for the commission's investigation and disposition of an initiating complaint about a judge. See also ORS 1.415(3) (commission shall adopt rules of procedure governing judicial fitness proceedings). That rule first provides that, once the commission receives information indicating that a judge may have engaged in misconduct, it must make whatever investigation it deems necessary, "to determine whether formal proceedings should be instituted and a hearing held." CJFDRP 7.a.; see also ORS 1.420(1) (upon complaint about judicial misconduct and after such investigation that commission considers necessary, commission may take series of alternative actions).[20] That is, at the [362 Or. 576] investigation phase, a "formal proceeding[]" has not yet been instituted. See CJFDRP 8 (setting out process for "formal proceedings, " initiated by commission's filing of formal complaint against judge). Also, as explained earlier, the scope of the commission's authority to investigate extends to information about purported judicial misconduct that comes to its attention through its own members or staff. Sawyer, 286 Or. at 375; see also CJFDRP 7.a. (commission may initiate an investigation "on its own motion").

         As part of its investigation, the commission may send an inquiry to the judge requesting information about the allegations. CJFDRP 7.b. The purpose of such an inquiry is for the commission "to develop basic information regarding the [initiating] complaint * * * to assist [it] in evaluating the merits of [that] complaint." Id. The commission also may compel the production of any documents as may be required for its investigation. CJFDRP 7.a.

         CJFDRP 7 then sets out three potential dispositions at the close of the investigation phase. First, the commission may determine that the judge's conduct departed from ethical standards, but was not sufficiently serious to warrant a hearing. In that event, the commission may make the judge aware of the objectionable conduct and then "shall dismiss the complaint." CJFDRP 7.c. Second, the commission may determine that the judge's conduct departed from ethical standards sufficiently to warrant a sanction. In that event, the commission "shall notify the judge of the investigation, the nature of the charges, and the Commission's intent to issue a formal complaint." CJFDRP 7.d. The judge, in turn, "shall be afforded reasonable opportunity to make a statement in writing explaining, refuting or admitting the alleged misconduct." Id. After notifying the judge pursuant to that rule, and after considering the judge's response, the commission then may initiate formal proceedings. CJFDRP 8.a. Third, "[a]t any stage in the proceedings, " if the commission's investigation discloses "that there is not sufficient cause to warrant further proceedings, " then "the case shall be dismissed"; if the judge had been notified of the pendency of the complaint, [362 Or. 577] then the judge "shall be provided notice of the dismissal." CJFDRP I.e.[21]

         In this case, the commission's 2013 activity in response to Deuker's and Allen's initiating complaints about respondent's conduct at the 2012 soccer games followed CJFDRP 7.a., b., and e.-that is, the commission undertook an investigation to determine whether formal proceedings should be held; it requested information from respondent; and then, after considering his response, it determined that there was not "sufficient cause to warrant further proceedings, " CJFDRP 7.e., and it therefore "dismissed" the "case, " id., and provided notice to respondent of that dismissal. [362 Or. 578] However, as part of its later investigation relating to respondent's self-report about BAS, the commission decided to reinvestigate Deuker's and Allen's previously dismissed initiating complaints, because its investigation into the BAS-related incidents prompted it to disbelieve respondent's January 2013 letter responding to those earlier complaints. That is, after already having decided that it must dismiss the soccer-related initiating complaints under CJFDRP 7.e., and after having done so, the commission in effect returned to a "preliminary investigation" phase under CJFDRP 7. a. Respondent contends that the commission's rules did not permit that course of action.

         As a general matter, we agree with respondent's premise that, once the commission investigates information about judicial misconduct and determines that it must follow one of the dispositional pathways set out in CJFDRP 7.c., d., or e., it may not reinvestigate that same information under CJFDRP 7. a. and reach a different dispositional outcome. In reviewing CJFDRP 7 as a whole, we first observe that each dispositional pathway establishes a mandatory course of action for the commission to take at the conclusion of its investigation. See CJFDRP 7.c, d., and e. (each providing that commission "must" or "shall" take designated course of action, if preliminary criteria met). Second, the criteria for each dispositional pathway are mutually exclusive-that is, the commission's evaluation of its investigation can lead to only one of the three alternative outcomes. Compare CJFDRP 7.c. (commission must dismiss if investigation reveals misconduct that departs from Code of Judicial Conduct but is not sufficiently serious to warrant public hearing), with 7.d. (commission must notify judge of intent to file charge and provide judge with opportunity to respond, if investigation reveals misconduct that warrants censure, suspension, or removal), and 7.e. (commission must dismiss if investigation discloses insufficient cause to warrant further proceedings). It follows that, when the commission determines after an investigation that the criteria for one of the dispositional pathways are satisfied, it necessarily also decides by implication that the criteria for the other two pathways are not satisfied. That is, those alternative pathways are not available outcomes following the commission's [362 Or. 579] investigation into particular information about problematic judicial conduct.

         But, this case does not precisely fit the scenario just described. It is true that, in 2013, the commission initially investigated Deuker's and Allen's complaints, sent an inquiry to respondent, and dismissed under CJFDRP 7.a., b., and e. And, it is true that, in 2014, the commission reinvestigated the same information set out in Deuker's and Allen's initiating complaints and then decided to move forward with formal charges under CJFDRP 7.d. The commission reinvestigated the original initiating complaints, however, because it developed what it characterizes as additional, new information to investigate: its own unfavorable assessment of respondent's credibility, which derived from its separate investigation into the BAS gun-handling incidents. The question before us, then, is when-if at all-the commission's rules permit a reinvestigation, and grant authority to file formal charges, based on new information about misconduct that already had been the subject of a previous investigation that the commission had resolved by dismissal under CJFDRP 7.e.

         Nothing in the text of the commission's rules expressly precludes a reinvestigation of that sort. In that regard, we think it important that the key purpose of judicial fitness proceedings-including the commission's preliminary investigation phase-is to preserve public confidence in the integrity, as well as the impartiality, of the judiciary. Schenck, 318 Or. at 438. That purpose would be thwarted if the commission were unable to investigate any new information that related to earlier information that it already had investigated, but had resolved by dismissal because further proceedings had not been warranted based on the initial information alone. For example, the commission might receive initial information about an act of judicial misconduct that carried little credible weight, resulting in dismissal; but, later, the commission might receive credible information from a different source about the same or related misconduct that warrants a reinvestigation.

         At the same time, however, the text of the commission's rules similarly do not expressly permit a reinvestigation, [362 Or. 580] based on new information, of misconduct previously resolved by dismissal under CJFDRP 7.e. And, notably, the established criteria for the three mandatory, mutually exclusive pathways set out in CJFDRP I.e., d., and e., suggest that the commission's authority is not unlimited. That is, the commission does not appear to have unlimited authority to reinvestigate alleged misconduct that it previously resolved by dismissal, based on additional, new information of any kind.

         To ensure that CJFDRP 7 operates as intended, we conclude that the commission's authority to reinvestigate alleged misconduct that it previously disposed of by dismissal under CJFDRP 7.e. depends on consideration of the following factors: (1) the quality and nature of the new information; (2) the nexus between the new information and the original information that the commission previously investigated, which had led to dismissal under CJFDRP 7.e.; (3) the relative seriousness of the alleged misconduct that was the subject of that earlier dismissal; and (4) the amount of time that has passed since that dismissal. A balancing and consideration of those factors ensures that the commission ultimately is guided by the dispositional criteria expressly set out CJFDRP 7.e, d., and e.-that is, whether sufficient cause warrants any further proceeding at all; or whether the apparent misconduct is not sufficiently serious to warrant a hearing; or whether the apparent misconduct was more serious in nature. That approach also is informed by principles of both fairness and finality.

         We now apply that framework to Count 1 of the commission's formal complaint. Count 1 alleged the same facts (and related rule violations) about respondent's conduct at the first 2012 soccer game-producing a business card that identified him as a circuit court judge while complaining about the officiating and stating an intent to file an official complaint-that had derived from Deuker's (and, somewhat, Allen's) initiating complaints. The commission previously had dismissed those complaints in February 2013 under CJFDRP 7.e., because it thought that respondent's conflicting account of his interaction with Deuker after the first game, set out in his January 2013 letter, "[rang] more true." Almost two years later, in the latter part [362 Or. 581] of 2014, the commission came to think that respondent had been untruthful in connection with the BAS gun-handling incidents, which prompted it to question the veracity of his January 2013 letter, as well. It therefore reinvestigated the soccer-related initiating complaints under CJFDRP 7.a. in early 2015, by interviewing Deuker, Allen, and others, and it ultimately notified respondent under CJFDRP 7.d. of its intent to file formal charges.

         After considering the factors outlined above, we conclude that the commission did not have authority under its rules to reinvestigate respondent's conduct at the first soccer game under CJFDRP 7.a. The new information on which the commission relied to reinvestigate the alleged misconduct at issue in Count 1 consisted solely of its own unfavorable assessment of respondent's credibility in connection with the BAS gun-handling incidents. That assessment did not derive from any new information connected to the soccer-related incidents, and it did not derive from any assessment of respondent's credibility in relation to those incidents. Instead, it derived from the commission's investigation into other, unrelated alleged misconduct that occurred more than a year later. And, it was not bolstered by any new facts about what actually had occurred at the soccer games. Stated another way, the commission's "new information"-its general sense that respondent was not truthful-was only marginally and tenuously related to the initiating complaints that had been the subject of the earlier 2013 investigation. Additionally, the conduct at issue- particularly when viewed in light of the other alleged misconduct-was not of a significantly serious nature.[22] And, the commission did not commence its reinvestigation until almost two years after dismissing the original initiating complaints.

         [362 Or. 582] In sum, regarding the misconduct alleged in Count 1, the commission was bound by its earlier disposition of dismissal under CJFDRP 7.e. We therefore dismiss Count 1 of the complaint.[23]

         We turn to Count 2, which we analyze differently Count 2 did not allege any of the same 2012 conduct on respondent's part that Deuker and Allen had identified in their initiating complaints (which the commission in turn had investigated and dismissed in early 2013). Instead, Count 2 alleged that, in his January 2013 letter responding to the commission's inquiry about Deuker's and Allen's initiating complaints, respondent had made a willful false statement about having been accosted after the second soccer game by an unidentified person. Unlike the misconduct alleged in Count 1, the commission neither had previously investigated that misconduct under CJFDRP 7.a., nor had it reached any dispositional determination under CJFDRP 7.a, d., or e. Count 2 thus does not involve any question about whether the commission permissibly relied on new information to reinvestigate an earlier initiating complaint of misconduct that it previously had dismissed.

         It is true that, when it evaluated respondent's letter in early 2013, including his statement about having been accosted, the commission apparently found that letter and statement to be credible. It therefore took no action about respondent's statement at that time-such as commencing an investigation into the veracity of the statement [362 Or. 583] or engaging in further inquiry with respondent, under CJFDRP 7.a. and b. Rather, it commenced its investigation of respondent's statement later, in early 2015, once it developed an unfavorable assessment of respondent's credibility in the course of its more expansive investigation into other purported misconduct. And then, once it investigated the statement under CJFDRP 7.a., it determined that respondent had engaged in misconduct that may warrant a sanction-willfully making a false statement-and so it formally notified him of its intent to file formal charges, CJFDRP 7.d., and it later included Count 2 in its complaint. Nothing in the commission's rules precluded it from proceeding in that way; to the contrary, the steps that the commission took in relation to Count 2 were entirely consistent with its rules.[24]

         In sum, we agree with respondent that the commission's rules did not authorize it to charge Count 1, and we dismiss that count. We disagree as to Count 2, and ...


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