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In the Matter of the

May 18, 2011

IN THE MATTER OF THE FORMAL INQUIRY CONCERNING JUDGE A. P. FULLER


The opinion of the court was delivered by: Gilbertson, Chief Justice

ORIGINAL PROCEEDING

ARGUED APRIL 28, 2011

[¶1.] The Judicial Qualifications Commission (Commission) has unanimously recommended to this Court that Judge A. P. "Pete" Fuller be removed or retired as a circuit court judge. Judge Fuller has petitioned for modification or rejection of this recommendation. At oral argument, Judge Fuller's counsel recommended a public censure and reinstatement with conditions attached to it.

[¶2.] Upon our independent inquiry, this Court has determined that the evidence clearly and convincingly proves that Judge Fuller engaged in conduct that merits this Court ordering his retirement. We stay this retirement if Judge Fuller consents to numerous conditions including his suspension without pay for six months.

HISTORICAL BACKGROUND

[¶3.] In 1972, South Dakota electors approved the amendment of Article V of the South Dakota Constitution, Judicial Department. The amendment reorganized the article, established a unified judicial system, and made many changes including "the establishment of a judicial qualifications commission." S.D. Const. art. V, Historical Note; S.D. Const. art. V, § 9.

[¶4.] The South Dakota Constitution Article V, § 9 provides:

The Legislature shall provide by law for the establishment of a judicial qualifications commission which have such powers as the Legislature may provide, including the power to investigate complaints against any justice or judge and to conduct confidential hearings concerning the removal or involuntary retirement of a justice or judge. The Supreme Court shall prescribe by rule the means to implement and enforce the powers of the commission. On recommendation of the judicial qualifications commission the Supreme Court, after hearing, may censure, remove or retire a justice or judge for action which constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, disability that seriously interferes with the performance of the duties or conduct prejudicial to the administration of justice which brings a judicial office into disrepute. No justice or judge shall sit in judgment in any hearing involving his own removal or retirement.

Pursuant to this provision, the Legislature in 1973 enacted H.B. 627, "An Act creating a commission on judicial qualifications, prescribing its powers and duties, providing means of implementing its recommendations." 1973 S.D. Sess. Laws 136. These provisions are codified in SDCL ch. 16-1A.*fn1 This Court prescribed rules to implement and enforce the powers of the Commission which are found in the appendix to SDCL ch. 16-1A.

[¶5.] Prior to this case, only one case has been reviewed by this Court under South Dakota Constitution Article V, § 9 and SDCL ch. 16-1A. Matter of Heuermann, 90 S.D. 312, 240 N.W.2d 603 (1976). Two of the issues resolved in Heuermann were the proper standard of proof in proceedings pursuant to SDCL ch. 16-1A and the proper standard of review of the Commission's findings of fact and recommendation. Id. at 315, 240 N.W.2d at 605.

[¶6.] As to the appropriate standard of proof in proceedings under SDCL ch. 16-1A this Court held:

We note that it would be inapposite to require proof "beyond a reasonable doubt" as this is not a criminal prosecution. Proof by a mere preponderance of the evidence is also inapposite because of the severity of the sanction which can be imposed. We conclude that the proper standard of proof is by "clear and convincing evidence." Such a standard provides adequate protection for the party subject to charges, but at the same time does not demand so much evidence that the ability of the Commission and this court to effectively oversee the judiciary is impaired.

Id.

at 317, 240 N.W.2d at 605.

[¶7.] In considering the proper standard of review of the Commission's findings and recommendation, this Court recognized that it "had an obligation to undertake 'an independent evaluation of the evidence and the recommendation of the Commission.'" Id. at 317, 240 N.W.2d at 606 (quoting In re Hanson, 532 P.2d 303, 308 (Alaska 1975)).

The rationale for requiring an independent evaluation of the evidence and recommendation is that the Act puts the burden of imposing the sanction squarely on the Supreme Court; the Commission has power only to recommend. With the power to impose a punishment comes the concomitant obligation to conduct an independent inquiry into the evidence to determine whether that evidence merits imposition of the sanction recommended.

Thus, in every case brought to this court on a recommendation from the Commission, we must determine whether the evidence clearly and convincingly proves that the petitioner engaged in conduct which, upon our independent inquiry, merits the imposition of the sanction recommended.

Id.

(footnote omitted).

[¶8.] This Court's decision in Heuermann did not address the weight or deference given to Commission credibility determinations. We agree with the Supreme Court of Washington that when conducting our independent inquiry to determine whether the evidence clearly and convincingly merits the imposition of the recommended sanction, "[a]lthough we give considerable weight to the credibility determinations of the Commission and serious consideration to the Commission's recommended sanctions, the ultimate decisions of whether and how to discipline an errant judge falls to the Supreme Court." In re Disciplinary Proceeding Against Eiler, 236 P.3d 873, 876 (Wash. 2010).

[¶9.] With these principles in mind we turn to the case before us.

FACTS

I.

[¶10.] In May 2010, Glen Brenner, the Pennington County State's Attorney, Steve Allender, the Rapid City Chief of Police, and Don Holloway, the Pennington County Sheriff, filed a complaint with the Commission alleging that Judge Fuller referred to Rapid City police officers as a "bunch of racists" during a police officer's testimony at an April 28, 2010, juvenile proceeding. The complaint alleged*fn2 that Judge Fuller's comment was inappropriate and violated Canons 1, 2, and 3 of the South Dakota Code of Judicial Conduct. SDCL app. 16-2.

[¶11.] The Commission forwarded the complaint to Judge Fuller and requested a detailed response. By letter dated June 28, 2010, Judge Fuller simply responded, "[t]he allegation is correct."

[¶12.] The Commission elected to investigate the complaint filed against Judge Fuller and issues concerning Judge Fuller's demeanor. Attorney Dave Nelson, then counsel for the Commission, was directed to conduct the investigation. Nelson interviewed a number of individuals including lawyers and court personnel. After Nelson submitted his investigatory report, the Commission voted to institute formal proceedings to "inquire into the charges against the judge." Rule III(6), Rules of Procedure of the Judicial Qualifications Commission, SDCL app. 16-1A. A formal complaint, incorporating by reference Nelson's report, was served upon Judge Fuller on September 9, 2010.

[¶13.] On September 30, 2010, the Commission held a hearing on its order to show cause why Judge Fuller should not be suspended with compensation, as mandated by the rules of the Judicial Qualifications Commission, during the pendency of these proceedings. Rule III(11), Rules of Procedure of the Judicial Qualifications Commission, SDCL app. 16-1A. Judge Fuller was present and proceeded without counsel although he understood that he had a right to have counsel present. Following the show-cause hearing the Commission voted unanimously to recommend to this Court that Judge Fuller be suspended with compensation. Ultimately this Court entered an order suspending Judge Fuller with compensation during the pendency of these proceedings.

[¶14.] The formal hearing was held December 13, 2010. Prior to the hearing, Commission counsel and Judge Fuller's counsel stipulated that the testimony and exhibits received at the show-cause hearing would be received into evidence at the formal hearing and it would not be necessary to recall those witnesses.

[¶15.] Following the hearing, the Commission entered 90 detailed findings of fact and ten conclusions. It unanimously recommended to this Court that "Judge Fuller be removed or retired as a circuit judge" based upon Judge Fuller's "pattern of improper activity and the effect that that improper activity has had on others, including court personnel, attorneys, litigants, and on the judicial system itself."

II.

[¶16.] Judge Fuller was born on February 17, 1943. He received a J.D. from the University of South Dakota School of Law in 1968. Judge Fuller practiced law in Chamberlain, South Dakota for three years. He moved to Lead, South Dakota in 1971 where he practiced law for 32 years. As a lawyer he served on the Commission and was its Chair. He was appointed to the Seventh Circuit bench in March 2003. Judge Fuller was elected to an eight-year term following a contested election in 2006. Until this proceeding Judge Fuller has never been the subject of formal judicial discipline.

[¶17.] The evidence in this case reveals a pattern of misconduct that began when Judge Fuller assumed the bench and continued throughout his entire tenure on the bench. While Judge Fuller disputes some of the allegations that led to this proceeding, our focus is on the numerous allegations that he admitted occurred. They are also the most serious.

A.

[¶18.] In 2004, Judge Fuller was assigned to the Fall River County judicial rotation. Two female deputy clerk of courts, one of whom had over 40 years of experience as a clerk, refused to go into Judge Fuller's courtroom because of his degrading comments, swearing, anger, and disrespect. Clerk of Courts Carol Foster assumed courtroom duties. Virtually every time she was in open court, Judge Fuller, from the bench and with the public present, would swear using terms such as "the goddamn clerk," "the goddamn schedule," and "the goddamn calendar." While Judge Fuller would laugh and joke about the comments, Foster found them belittling, not humorous. Foster also observed Judge Fuller swear at an attorney and tell another female attorney during the course of a public hearing "to shut the damn statutes, he had already made his decision and he didn't need to be told what the law was." Foster also heard Judge Fuller, who was in his chambers, screaming and using the "F" word. While Judge Fuller denied using profanity, he admitted that he treated Foster and her staff rudely and disrespectfully.

B.

[¶19.] In May 2007, Judge Fuller was conducting a jury trial in Custer County. Judge Fuller told the clerk of courts that he did not need her services in the courtroom. When she told Judge Fuller it was necessary for "appeal purposes, exhibit marking, for his benefit," "that set him off." Later, when the clerk was explaining the practical logistics of feeding the jury in Custer before the beginning of tourist season, Judge Fuller turned around, pointed his finger at her, became red faced, raised his voice, and told her "you will do as you are told." The clerk had "never felt as belittled as I did [that] day." The clerk told the court administrator and presiding judge that she preferred not to work with Judge Fuller, but would do so due to the rotation and her job requirements. Judge Fuller, however, was never put back into the regular rotation for either Custer or Fall River counties.

C.

[¶20.] Attorney Barton Banks practiced in Rapid City for 19 years and had a cordial relationship with Judge Fuller when Judge Fuller was an attorney. In Banks' first case in front of Judge Fuller in October 2007, Judge Fuller, in chambers, commented that Banks was "an asshole." Banks assumed the comment was in jest. Later, in response to a comment Banks made in the courtroom, Judge Fuller during the course of a court proceeding and from the bench "gave [Banks] the bird."*fn3 Banks' client seated next to Banks at counsel table saw the gesture and was greatly concerned.

[¶21.] Banks lost the case and appealed to the Supreme Court where he received a favorable ruling. On remand, Judge Fuller believed the Supreme Court was wrong and did not follow this Court's directive. Banks "found myself in a very awkward position with my client who I just convinced to try this case to the court." Banks appealed, "on my own dime," and the case was settled before briefing. Banks no longer practices before Judge Fuller; he submits affidavits to recuse Judge Fuller because of the lack of predictability in Judge Fuller's court.

[ΒΆ22.] Other attorneys in civil cases expressed concern over Judge Fuller's lack of courtesy and respect. One described how Judge Fuller became so irritated with opposing counsel in March 2008, that, "in front of the jury," he expressed his displeasure. When the jury was not present, Judge Fuller told opposing counsel "a number of times that when he [Judge ...


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