In re Chacon , 138 S.W.3d 86 ( 2004 )

MARTIN RICHTER, Justice,

concurring.

I join the majority opinion of the review tribunal accepting the State Commission on Judicial Conduct’s¹ recommendation to remove Respondent from office and bar her from holding judicial office in the future. I write separately, however, because I believe the majority opinion applies an incorrect standard of review to be utilized by a review tribunal appointed by the Supreme Court of Texas. I have grave concerns about the legal and factual sufficiency standard of review enunciated for the very first time in In re Thoma, 873 S.W.2d 477 (Tex.Rev.Trib.1994). The Thoma tribunal, unsupported by any legal precedent, deviated and changed the standard of review from one of de novo review to one of legal and factual sufficiency, which standard has been followed by every subsequent review tribunal, including the majority in this case. See In re Bartie, No. 90, 138 S.W.3d 81, 2004 WL 835981 (Tex. Rev. Trib. April 16, 2004); In re Canales, 113 S.W.3d 56 (Tex.Rev.Trib.2003, pet.denied); In re Barr, 13 S.W.3d 525, 559-60 (Tex.Rev.Trib.1998); In re Lowery, 999 S.W.2d 639 (Tex.Rev.Trib.1998). Until Thoma, the standard of review was de novo. See In re Brown, 512 S.W.2d 317 (Tex.1974); In re Davila, 631 S.W.2d 723 (Tex.1982). For the reasons that follow, and after reviewing the history of the Commission and formal removal proceedings, I conclude the proper standard of review that should be applied in all review tribunal proceedings, including this case, is de novo.

Following California’s lead, Texas became the second state to create an independent commission to enforce ethical standards for judges. 1995 St. Comm’n Jud. Conduct Ann. Rep. 15. This new commission was created in 1965 by amendment to article five of the Texas Constitution, patterned the California commission’s organization, and was named the Judicial Qualifications Commission.² Id. at 16-17; see also Tex. Const, art. V, § 1 a(2) (amended 1977, 1984). Like its California counterpart,³ section 1-a of article 5 authorized the commission to investigate complaints, hold formal proceedings and have a special master appointed, and recommend the removal or retirement of a judge.⁴ Tex. Const, art. V, § l-a(6), (8) (amended 1977, 1984). At the time, section 1 a provided that the recommendation for removal or retirement of a judge be made to the supreme court.⁵ Id. § l-a(8). Specifically, section 1 a mandated the commission, upon determining to recommend the removal or retirement of a judge, to file promptly its entire record with the supreme court. Id. Section 1-a also provided the following standard of review to be employed by the supreme court:

The Supreme Court shall review the record of the proceedings on the law and facts and in its discretion may, for good cause shown, permit the introduction of additional evidence and shall order public censure, retirement or removal, as it finds just and proper, or wholly reject the recommendation.

Id. § l-a(9)(emphasis added).

The first formal removal proceeding under article 5, section 1-a was In re Brown, 512 S.W.2d 317 (Tex.1974). In Brown, the supreme court set out the procedural aspects of the complaint process. Id. at 318-320. The court noted the commission had the authority to recommend the removal or retirement of a judge and that the proceedings before the commission were not criminal in nature, since the commission’s function was not to punish but to maintain the high quality of the judiciary.⁶ Id. at 319. The court also noted that the burden of proof before the commission was preponderance of the evidence. Id. at 319-20. The court then determined that, although the commission had “fact-finding power,” the language in section 1 a limiting the commission’s authority concerning removal to a recommendation “manifest[ed] an intent to leave the court unfettered in its adjudication” and conferred on the court the authority to make “the ultimate decision.” Id. at 320. Stating that its “constitutional responsibility” for making the ultimate decision would not be “abandoned by the delegation of the fact finding power to an administrative agency or the master,” the court then concluded it “must make its own independent evaluation of the evidence adduced [before the commission].”⁷ Id. (emphasis added). Although there was one concurring opinion and two dissenting opinions in Brown, none of them challenged the majority’s determination of the court’s standard of review. See id. at 325 (Daniel, J., concurring), 325-27 (Reavley, J., dissenting), 327-33 (Johnson, J., dissenting). In fact, all applied a de novo review, agreeing the court was the trier of fact. Id. at 325 (Daniel, J., concurring), 325-27 (Reavley, J., dissenting), 327-33 (Johnson, J., dissenting).

Following Brown, there were three other reported removal proceedings before the supreme court: In re Carrillo, 542 S.W.2d 105 (Tex.1976), In re Bates, 555 S.W.2d 420 (Tex.1977), and In re Davila, 631 S.W.2d 723 (Tex.1982).⁸ None of these cases discussed or altered the standard of review enunciated in Brown. In fact, in Carillo, the court reviewed the commission’s findings and noted several “differences in [the court’s] own findings.” Carrillo, 542 S.W.2d at 109. And, in Davila, the court reiterated that its duty was “to determine whether the evidence taken by the master and by the commission supported] the charges and constituted grounds for removal.” Davila, 631 S.W.2d at 725.

In 1984, the constitution was again amended. It was at this time that the supreme court transferred its authority over removal proceedings to a new reviewing body — the review tribunal. See Tex. Const, art. V, § l-a(8),(9). The amendment provided in relevant part as follows:

The review tribunal shall review the record of the proceedings on the law and facts and in its discretion may, for good cause shown, permit the introduction of additional evidence. Within 90 days after the date on which the record is filed with the review tribunal, it shall order public censure, retirement or removal, as it finds just and proper, or wholly reject the recommendation.

Id. art. V, § l-a(9)(emphasis added).

Although the amendment completely rewrote two subsections of section 1-a, see id. art. V, § l-a(6),(9), the commission’s authority concerning the removal or retirement of a judge remained limited to recommendations. See id. art. V, § 1-a(8)(emphasis added). Additionally, the 1965 standard of review the supreme court was mandated to employ in removal proceedings and which was interpreted as a de novo review in Brown did not change. The amendments changing the reviewing body from the supreme court to the review tribunal did not alter the requirement that the record be reviewed “on the law and facts.” I find nothing in the amendments to section 1 a that should alter that standard of review for the tribunal.

Thoma was the first reported opinion of a review tribunal. That case abruptly departed from the de novo standard of review enunciated in Brown. Thoma, 873 S.W.2d at 485. Although Thoma cited the Brown opinion for other propositions of law, Thoma did not address the standard of review in light of Brown and its progeny. Id. As discussed below, I believe the Thoma court erroneously viewed the review tribunal proceeding as an appellate proceeding. Id. (see discussion heading entitled “Standard of Review on Appeal” in Thoma opinion).

In arriving at a traditional legal and factual sufficiency standard of review as applied in civil cases, the tribunal in Tho-ma noted that the special master and the commission are required to conduct formal removal proceedings as nearly as practicable in accordance with established rules of civil procedure. Id. The tribunal also noted the special master and the commission can receive only “legal evidence” at these proceedings, and that the commission can adopt the master’s findings as its own. Id.

The Thoma tribunal then concluded, without reference to any legal authority, that the master’s findings were “tantamount to findings of fact filed by a trial judge in a trial without a jury” and it would review them under the same standards an appellate court would review a trial judge’s findings of fact in a civil case. Id. This unsupported assertion appears to be the linchpin upon which Thoma concluded that commission findings are reviewed for factual and legal sufficiency. Thereafter, the Thoma tribunal relied exclusively on general civil cases, rather than judicial removal cases, when it held that the legal and factual sufficiency standard of review was applicable. Id.

Furthermore, I note that review of informal proceedings of the commission by the three-judge special court of review is set by statute as de novo. Tex. Gov’t Code Ann. § 33.034(d) (Vernon 2004); see also Tex.R. Rem’l/Ret. Jdg. 9 (West 2004). A special court of review can impose various sanctions short of removal; only the review tribunal can order a judge removed from the bench and bar him or her from ever holding judicial office again. Tex. Const, art. V, § l-a(6)-(ll); Tex.R. Rem’l/ Ret. Jdg. 9-12 (West 2004). It would seem illogical to allow de novo review of charges that cannot result in the removal of a judge, while mandating the stricter review posture of legal and factual sufficiency when a judge’s forced removal from office is at stake.

By equating the commission’s findings to those of a trial judge, the tribunal in Tho-ma improperly elevated the commission to a court of law and lowered the tribunal’s responsibility in reviewing removal proceedings to a balancing act — one where the judge’s favorable conduct is weighed against the specific acts of judicial misconduct. See Brown, 512 S.W.2d at 333 (Johnson, J., dissenting) (“the function of [the supreme court in removal proceedings] is not to make [the removal] determination by weighing in the balance a judge’s favorable and commendable conduct against the specific acts of misconduct with which he is charged; it is not to weigh a judge’s good and bad characteristics ... If the act or acts at issue seriously violate the public interest in an unbiased and dedicated judiciary, then the judge must be removed regardless of the attributes of his other conduct.”).

The commission is not a court of law and, by constitutional mandate, the tribunal is the trier of fact.⁹ The error in Thoma lies in its characterization of the commission’s hearing as a civil trial and the proceedings before the tribunal as an appeal. Were the commission’s removal recommendations self-effectuating, the standard of review enunciated in Thoma might apply.¹⁰ However, they are not. They merely trigger the proceedings before the review tribunal leading to the eventual determination of whether a judge should be retired or removed. The proceeding before the tribunal is a continuation of the removal process begun before the commission and must occur regardless of the parties’ desire, unlike a civil appeal.

Following Thoma, all reported review tribunal decisions adopt without analysis the legal and factual sufficiency standard of review articulated therein. Like a train pulling cars having no independent power of their own, Thoma has taken a spur not found on the constitutional map of this state. For the foregoing reasons, I conclude that the review tribunal cannot and must not make a decision to remove or retire a judge without complying with its constitutionally mandated duty of conducting an independent evaluation of the record.

For these reasons, I would apply a de novo standard of review in removal proceedings.

1 . Hereafter referred to as the “commission.”

2 . For purposes of this opinion, there is no functional difference between the former Judicial Qualifications Commission and the present State Commission on Judicial Conduct. Hence, both will be referred to interchangeably as the "commission.”

3 . See Geiler v. Comm’n on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973) (citing to various constitutional provisions concerning the authority delegated to California’s judicial commission, the burden of proof in proceedings before the judicial commission, and the standard of review in removal proceedings).

4 . Prior to this time, there was no formal complaint system, although the Constitution provided for other methods of removal. See In re Bates, 555 S.W.2d 420 (Tex. 1977); see also Tex. Const, art. XV, §§ (l)-(5) (impeachment), (6) (original action of supreme court after hearing on causes presented by sworn testimony of not less than ten lawyers practicing in accused judge’s court), (8) (by governor, on address of two-thirds of each house of legislature). Far from where the complaint system is today, the amendment to section 1 a of article 5 granted the Commission jurisdiction only over appellate and district judges and limited the "corrective measures” the Commission could take to recommending the removal or retirement of a judge. See 1995 St. Comm'n Jud. Conduct Ann. Rep. 16.

5 . This was consistent with California’s constitutional provision concerning removal proceedings. See Geiler, 110 Cal.Rptr. at 202 n. 1, 203, 515 P.2d 1.

6 . At the time of Brown, the commission's jurisdiction had increased to include county and county court-at-law judges, justices of the peace, and municipal court judges, as well as judges of special courts. 1995 St. Comm'n Jud. Conduct Rep. 17; see also Tex. Const, art. V, § 1 — a(6) (amended 1977, 1984). The sanctions available to the commission had also increased to include a private reprimand or public censure. 1995 St. Comm'n Jud. Conduct Rep. 17; see also Tex. Const, art. V, § l-a(8) (amended 1977, 1984).

7 . In reaching this conclusion, the court cited Geiler, 110 Cal.Rptr. at 201, 515 P.2d 1, which interpreted California’s constitutional provision concerning formal proceedings. As stated in note 3, supra, at the time Geiler was issued, the California Constitution authorized the supreme court to review recommendations that a judge be retired or removed for wilful misconduct in office. Geiler, 110 Cal. Rptr. at 202 n. 1, 515 P.2d 1 (quoting California Constitution article VI, section 18(c) then in effect). Noting its commission was vested with the power to recommend to the court censure, removal or retirement, but that the ultimate dispositive decision was entrusted to the court, the court concluded that “in exercising that authority and in meeting [the court’s] responsibility [the court] must make [its] own, independent evaluation of the record evidence adduced below.” Id. at 204, 515 P.2d 1. In other words, “it is to be the court's findings of fact and conclusions of law, upon which [the court is] to make [its] determination of the ultimate action to be taken.” Id.

8 . During this time, there were also a few constitutional amendments to section 1-a. See 1995 St. Comm'n Jud. Conduct Rep. 17. However, none affected the supreme court's standard of review in removal proceedings. Id. The amendments included changes in the commission’s membership and in the sanctions available to the commission. See Tex. Const, art. V, § l-a(2),(6) (amended 1984).

9 . Further credence for this lies in the tribunal’s authority, in its discretion and for good cause shown, to permit the introduction of additional evidence. See Tex. Const, art. V, § l-a(9). This is not to say, however, that the tribunal will conduct an entirely new proceeding. Good cause must be shown for why this evidence was not presented to the Commission and, even if good cause is shown, the tribunal retains discretion in allowing the evidence. Id.

10 . In Geiler, the California Supreme court suggested that the proper standard of review in such a situation might be substantial evidence. Geiler, 110 Cal.Rptr. at 204, 515 P.2d 1. This is the standard our supreme court employs in reviewing tribunal proceedings. See TexR. Rem’l/Ret. Judg. 13.