Amended February 26, 2015 in the Matter of Douglas A. Krull, Judicial Magistrate. on Application of the Iowa ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 14–1596
Filed February 20, 2015
Amended February 26, 2015
IN THE MATTER OF
DOUGLAS A. KRULL,
Judicial Magistrate.
On application of the Iowa Commission on Judicial Qualifications.
Commission on judicial qualifications filed an application to
discipline a judicial officer. APPLICATION GRANTED; JUDICIAL
OFFICER REPRIMANDED.
Thomas J. Miller, Attorney General, Kevin Cmelik and Grant K.
Dugdale, Assistant Attorneys General, for complainant.
Mark McCormick of Belin McCormick, P.C., Des Moines, for
respondent.
2
WATERMAN, Justice.
“Déjà vu all over again.” 1 We expect lawyers and judges to learn
from their mistakes. When a judicial officer repeats violations of the
same ethical rules, sanctions can escalate. In this case, the Iowa
Commission on Judicial Qualifications (the Commission) recommends we
publicly reprimand Magistrate Douglas A. Krull for signing a warrant to
search the home of his client. Krull in his private practice represented
the mother in a pending action against her ex-husband to modify the
child-custody provisions of their dissolution decree. A police officer
sought the search warrant in a burglary investigation targeting their son.
Magistrate Krull saw this matter as different from a search warrant he
signed six years earlier that led to the reversal of a criminal conviction
because he contemporaneously represented a client bringing a custody
action against the subject of the search. State v. Fremont, 749 N.W.2d
234, 235, 243–44 (Iowa 2008) (holding Magistrate Krull’s conflict of
interest invalidated warrant). The Commission issued Magistrate Krull a
private admonishment for the Fremont transgression. This time, the
district court judge in the modification action granted the opposing
party’s motion to disqualify Krull, requiring a continuance and new
counsel for Krull’s client.
On our de novo review, we agree with the Commission’s finding
that Magistrate Krull violated three disciplinary rules governing part-time
judicial magistrates by signing the search warrant. Because this is the
second time he has signed a warrant to search the home of a party in a
civil case he was handling in his private practice—conduct for which he
1David J. Dreyer, Déjà Vu All Over Again: Turner v. Rogers and the Civil Right to
Counsel, 61 Drake L. Rev. 639, 640 (2013) (attributing the quote to Yogi Berra and
calling him “famous for his enigmatic and oftentimes humorous remarks”).
3
was previously admonished—we impose the recommended sanction of a
public reprimand.
I. Background Facts and Proceedings.
Magistrate Krull, age fifty-four, is a part-time judicial magistrate in
the Second Judicial District. He has practiced law in Worth County
since 1985. Krull served as Worth County Attorney from 1986 to 1998
before opening his own general private practice in Northwood, Iowa. He
was appointed magistrate in 2005. Krull has maintained his general
private practice in Northwood while serving as magistrate. Worth County
has a population of 7500. According to Magistrate Krull, only three
lawyers regularly practice in Worth County. He is the only resident
judicial officer.
Krull agreed to represent Mindy Miller in his private practice. On
March 21, 2012, Krull filed a petition against her former husband,
Thomas Arndt, to modify their dissolution decree. Under that decree,
Miller and Arndt shared physical care of their children, L.A. and T.A., but
the children actually lived exclusively with Miller. The petition for
modification asked the court to grant Miller exclusive physical care. A
trial-setting conference was held on June 1, during which the court set a
trial date of September 14.
On June 23, a Northwood police officer approached Magistrate
Krull seeking a search warrant to investigate three gas station burglaries.
The warrant identified T.A., age sixteen, as a suspect and authorized the
search of Mindy Miller’s residence for specific stolen goods and items
used in the burglaries. The officer had identified T.A. and another young
man as the burglars from a security camera video and had information
that L.A. sent out a text message offering cigarettes for sale matching the
brands of the stolen cartons of cigarettes. Magistrate Krull immediately
4
recognized the names and knew that the residence to be searched was
Miller’s home. He thought that his client may be upset with him for
signing a warrant to search her house for evidence implicating her son,
and he “recognized [she] might no longer want [him] to represent her.”
Nonetheless, Magistrate Krull signed the search warrant. He later
explained he focused on T.A.’s behavior and did not think about how the
discovery of stolen cigarettes at Miller’s home might affect the
modification proceeding.
At the time he signed the warrant, Magistrate Krull considered
whether this case was similar to Fremont. In Fremont, Magistrate Krull
was asked to sign a warrant to search the residence of Destiny Fremont,
a woman whose name Magistrate Krull recognized from his private
practice. 749 N.W.2d at 235. Krull had filed a custody action on behalf
of his client against Fremont, and that civil matter was pending at the
time the officer presented the warrant for Magistrate Krull’s signature.
Id. He was aware of his client’s pending civil action against Fremont, yet
he signed the warrant anyway, reasoning “that the evidence [supporting
the issuance of the warrant] was overwhelming, physical in nature, and
did not require him to evaluate the credibility of witnesses.” Id. at 235–
36. We held in Fremont that the warrant was constitutionally infirm and
vacated Fremont’s conviction because Magistrate Krull was not acting as
a neutral and detached magistrate. Id. at 243–44. Magistrate Krull
received a private admonition from the Commission for signing the
warrant in Fremont. When history repeated itself six years later,
Magistrate Krull again signed the search warrant presented to him after
concluding Fremont was distinguishable because the warrant this time
authorized the search of the home of his own client rather than the
adverse party.
5
Miller did not ask Krull to withdraw for signing the warrant to
search her residence, and he continued to represent her in the
modification action and prepare for trial. Seven days before the
scheduled trial date, the parties exchanged witness and exhibit lists. On
September 12, two days before trial, Thomas Arndt’s counsel sent Krull
an updated witness list naming Magistrate Krull as a witness relating to
his issuance of the search warrant. Arndt’s counsel filed a motion to
disqualify Krull from representing Miller. The next day the district court
judge conducted a telephonic hearing. The judge granted the motion to
disqualify Krull and continued the trial to allow Miller to retain new
counsel. His order stated:
A common fact issue in both the search warrant proceedings
and this modification action is the behavior and conduct of
[T.A.]. This modification action and the issuance of the
warrant both impact the legal status of [T.A.]. Given the
overlap and interconnection of the search warrant
proceedings and this modification action, it is the opinion of
the Court that the ethical rules . . . require Mr. Krull to
withdraw from further representation of [Miller] in this case.
The order required Krull to file a motion to withdraw on or before
September 21. Krull was upset with the order, believing T.A.’s conduct
to be irrelevant to the modification action. He considered the motion to
disqualify him a ploy by opposing counsel to get a continuance. He
immediately called Miller and explained his disqualification, then
dictated his withdrawal to an assistant and asked her to contact Miller to
sign it. He also contacted another attorney to discuss representing Miller
going forward, personally delivered Miller’s file to her new counsel, and
promptly refunded the balance of Miller’s trust account. However, Krull’s
written withdrawal was mistakenly placed back in Miller’s file and was
neither signed by Miller nor filed with the court. On October 23, the
district court judge phoned Krull to inform him that he would be filing a
6
complaint with the Commission and noted that Krull had not filed his
withdrawal. Krull was surprised to learn that his withdrawal had not
been filed and filed it as soon as Miller signed it on October 31.
Meanwhile, on October 26, the district court judge filed his
complaint against Magistrate Krull with the Commission. The complaint
recounted the foregoing events and noted Magistrate Krull had previously
violated ethical rules by signing the search warrant in Fremont. The
Commission informed Magistrate Krull of the complaint, and he
responded by letter on February 4, 2013. Magistrate Krull admitted the
facts and explained his thinking in both Fremont and his representation
of Miller. He described the circumstances of his oversight that delayed
the filing of his written withdrawal from Miller’s case. He admitted to the
Commission, “I now understand that I should not have issued the search
warrant . . . . [M]y review was too narrow. I was too much focused on
wanting to carry out my official responsibility in the issuance of search
warrants.” Magistrate Krull also pledged that, “For the future, I will not
as a magistrate act in that capacity in any matter which has any
relationship to my representation of a client in my capacity as a lawyer.”
The Commission charged Magistrate Krull with several violations of
the Iowa Code of Judicial Conduct, specifically part III(B) of the
application section, rule 51:1.2, and rule 51:2.11. The Commission
conducted an evidentiary hearing on June 19. Magistrate Krull testified
that he had changed his practices since signing the Arndt warrant and
now considers it his duty to recuse himself, even as to former clients, if it
might give rise to any appearance of impropriety. When questioned
about missing the withdrawal deadline, he explained that when he was
initially disqualified from representing Miller, he felt blindsided and was
“kind of hot yet.” When the Commission asked Magistrate Krull whether
7
T.A.’s criminal behavior was relevant in the modification proceeding,
Magistrate Krull answered, “I understand where the judge is coming
from, and I can accept where the judge is coming from, and I’ve adopted
that into my analysis of matters since.” At the same time, Magistrate
Krull continued to assert that T.A.’s criminal activity was largely his own
responsibility as a sixteen-year-old boy and did not impact the custody
determination. Magistrate Krull asked the Commission to distinguish
Fremont, arguing that the two incidents were so far apart in time and
circumstances that they do not constitute a pattern. Magistrate Krull
called several witnesses, including local attorneys who testified he
conducted himself fairly, knowledgeably, and with integrity and high
moral character on the bench. These witnesses added that Magistrate
Krull was always well prepared and competent and gave examples of
Magistrate Krull recusing himself when necessary.
Magistrate Krull asked the Commission to impose no more than
another private admonition. The Commission instead filed an
application with this court to discipline a judicial officer pursuant to
Iowa Code section 602.2106 (2011). The Commission recommends that
Magistrate Krull receive a public reprimand.
II. Standard of Review.
“The supreme court may retire, discipline, or remove a judicial
officer from office or may discipline or remove an employee of the judicial
branch for cause . . . .” Iowa Code § 602.2101. “Our standard of review
of a recommendation of judicial discipline by the commission on judicial
qualifications is de novo.” In re McCormick, 639 N.W.2d 12, 15 (Iowa
2002). The ethical violation of the judge must be established by a
convincing preponderance of the evidence. Id. We give respectful
consideration to the Commission’s findings and recommended sanctions,
8
but are not bound by them. In re Eads, 362 N.W.2d 541, 550 (Iowa
1985).
III. Violations.
We first determine whether Magistrate Krull’s actions violated the
Iowa Code of Judicial Conduct. Magistrate Krull admitted the facts
charged by the Commission and acknowledged that he was wrong to sign
the warrant. Even so, “it is our duty to review the findings of the
Commission de novo and evaluate the facts to determine if a violation
occurred.” In re Dean, 855 N.W.2d 186, 189 (Iowa 2014). “In order to
sanction a judge, a violation of the rules must be ‘substantial.’ ” Id. at
191 (quoting Iowa Code § 602.2106(3)(b)). In determining whether a
violation occurred and what sanction is appropriate, “we look to both
attorney and judicial disciplinary cases and note that principles in
attorney disciplinary matters are generally applicable to judicial
disciplinary matters.” Id. at 189. But, a judicial officer is “held to a
higher standard of conduct by virtue of his office.” In re Gerard, 631
N.W.2d 271, 277 (Iowa 2001). If we find that the Commission’s
application for discipline should be granted in whole or in part, we are
authorized by statute to render the decree that we deem appropriate.
Iowa Code § 602.2106(4). Based on our de novo review, we agree with
the Commission and conclude that Magistrate Krull violated three
provisions of the Iowa Code of Judicial Conduct.
The application section of the Iowa Code of Judicial Conduct states
in relevant part: “A judge who serves repeatedly on a part-time basis or
under a continuing appointment . . . shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other
proceeding related thereto.” Iowa Code of Judicial Conduct, Application
III(B). A violation of this provision may trigger discipline. The issue is
9
whether the custody modification proceeding is related to the proceeding
to issue the warrant signed by Magistrate Krull. Magistrates generally
are precluded from signing warrants to search the property of a party to
a civil case in which the magistrate is counsel of record. Cf. Fremont,
749 N.W.2d at 243 (holding a magistrate in that circumstance cannot be
neutral). This is true regardless of whether the warrant was otherwise
proper in all respects and inevitably would be signed by another judicial
officer. Cf. id. at 235–36, 243–44 (noting “overwhelming” evidence
supported warrant). Magistrate Krull signed the warrant authorizing the
search of his client’s home to seek evidence against her son, the target of
the criminal investigation, while he simultaneously represented the
mother in the civil proceeding to modify custody over the son. The
findings from the search could have influenced the outcome of the
custody case, as the district court judge noted. We determine the
pending action to modify custody was a proceeding related to the
application for a warrant to search the same parties. With the benefit of
hindsight, Magistrate Krull concedes he should not have signed the
warrant, and he does not challenge the judge’s ruling compelling his
withdrawal from the modification action. Magistrate Krull should have
realized the need to recuse himself at the time based on Fremont. His
contemporaneous recognition that his client might be upset and
terminate his representation was a red flag. We conclude Magistrate
Krull violated part III(B) of the application section by signing the warrant
to search his client’s home.
Iowa Code of Judicial Conduct rule 51:2.11(A) provides, “A judge
shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned . . . .” The terminology
section of the Iowa Code of Judicial Conduct defines “impartiality” as the
10
“absence of bias or prejudice in favor of, or against, particular parties.”
Id., Terminology. The “test is not whether the judge self-questions his
own impartiality, but whether a reasonable person would question it.”
State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994) (addressing nearly
identical language in former version of the rule). Recusal was required
here under that reasonable-person test. Magistrate Krull failed to realize
acting on the search warrant application put him in a lose–lose position.
If he rejected the search warrant, his motive for doing so could be
questioned by Northwood law enforcement. If he granted the search
warrant, T.A. could argue that he was “bending over backward” not to
appear to be favoring his client, T.A.’s mother. Either way, his
independent judgment could be called into question. As it turned out,
his forced withdrawal the day before the trial prejudiced his client by
prolonging the custody litigation due to the continuance required to
enable her to retain new counsel. 2 Magistrate Krull’s dual roles as
private attorney and judicial officer were incompatible, and he could not
address that inherent conflict through the informed consent of his client
or a rule of harmless error. See Fremont, 749 N.W.2d at 243–44. We
2Magistrate Krull argues the opposing party in the custody-modification action
filed the motion to disqualify him for tactical reasons to postpone the trial. We
skeptically view motions to disqualify counsel filed by a litigation adversary. See, e.g.,
Engineered Prods. Co. v. Donaldson Co., 290 F. Supp. 2d 974, 980 (N.D. Iowa 2003)
(“Because of the potential for abuse by opposing counsel, disqualification motions
should be subjected to particularly strict judicial scrutiny.”); Bottoms v. Stapleton, 706
N.W.2d 411, 415 (Iowa 2005) (“The right of a party to choose his or her own attorney is
important, . . . [and] a court must also be vigilant to thwart any misuse of a motion to
disqualify for strategic reasons.”); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Ouderkirk, 845 N.W.2d 31, 40 (Iowa 2014) (“[W]e approach with caution ethics
complaints initiated by a litigation adversary.”). Regardless of the motive of opposing
counsel, Magistrate Krull’s ethical violation provided the grounds for his
disqualification.
11
conclude he violated rule 51:2.11(A) by failing to recuse himself in this
situation in which it would be reasonable to question his impartiality.
Iowa Code of Judicial Conduct rule 51:1.2 provides: “A judge shall
act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.” This rule is found in
canon 1, which “addresses the need for judges to preserve the crown
jewels of the judiciary—independence, integrity, and impartiality—and
directs judges to uphold the fundamental qualities of judging by avoiding
impropriety.” In re Block, 816 N.W.2d 362, 364 (Iowa 2012). We must
decide whether Magistrate Krull created the appearance of impropriety
by signing the search warrant and thereby eroded the public confidence
in the judiciary. See Iowa Code of Judicial Conduct R. 51:1.2 cmt. 1
(“Public confidence in the judiciary is eroded by improper conduct and
conduct that creates the appearance of impropriety. This principle
applies to both the professional and personal conduct of a judge.”).
Judges are held to a higher standard of conduct than attorneys because
of the importance of maintaining an impartial judiciary. See Fremont,
749 N.W.2d at 242 (“The canons of judicial ethics are designed not to
protect individual defendants, but to protect the judiciary from charges
of partiality. The canons of judicial ethics thus often extend further than
what is constitutionally required.” (Citations omitted.)); In re Gerard, 631
N.W.2d at 277 (Canon 1 “imposes a duty upon a judge that rises above
the normal responsibilities that he has as an attorney.”); In re Eads, 362
N.W.2d at 551 (“The canons of conduct recognize that public confidence
in the judiciary is eroded by irresponsible or improper judicial conduct.
In certain areas judges accept restrictions on their conduct that might be
12
viewed as burdensome by the ordinary citizen and should do so freely
and willingly.” (Internal quotation marks omitted.)).
In his letter to the Commission, Magistrate Krull admitted he
should have recused himself in both Fremont and this case, but he
explained, “I was too much focused on wanting to carry out my official
responsibility in the issuance of search warrants.” Regardless of his
subjective intent, his decision to issue the warrant raised reasonable
questions about his impartiality and independence. See In re Worthen,
926 P.2d 853, 871 (Utah 1996) (“ ‘A judge acting in a judicial capacity
may be found to have engaged in prejudicial judicial conduct, although
his conduct was undertaken in subjective good faith . . . .’ ” (quoting In re
Zoarski, 632 A.2d 1114, 1119 (Conn. 1993))). When a judge who is also
a lawyer for a party being searched signs a warrant, there is at least an
appearance of impropriety. Even if Magistrate Krull’s conduct caused no
harm to his client, it was improper because it called into question the
impartiality of the Iowa judiciary. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Howe, 706 N.W.2d 360, 373 (Iowa 2005) (noting that
“some conflict-of-interest rules protect not only the rights of clients, but
also ‘the integrity of the legal system’ ” (quoting 1 Geoffrey C. Hazard Jr.,
et al., The Law of Lawyering § 10.2, at 10-7 (3d ed. 2004 Supp.))).
Magistrate Krull was required to recuse himself from acting on the
search warrant. We conclude that by signing the warrant, he violated
rule 51:1.2.
IV. Sanction.
“The focus of sanctions in judicial disciplinary proceedings is not
to punish the individual judge, but to restore and maintain the dignity,
honor, and impartiality of the judicial office, and to protect the public
. . . .” In re McCormick, 639 N.W.2d at 16. “Discipline is also imposed to
13
. . . deter other judges from engaging in unethical conduct.” In re Block,
816 N.W.2d at 365. The Commission has the authority to recommend
that a judge be disciplined and to recommend a specific sanction. In re
Carstensen, 316 N.W.2d 889, 892 (Iowa 1982). The Commission
recommends that we publically reprimand Magistrate Krull. “We give
respectful consideration to those recommendations, although we are not
bound by them.” In re Eads, 362 N.W.2d at 550. As in attorney
discipline cases, we decide the appropriate sanction on a case-by-case
basis. Cf. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Plumb, 589
N.W.2d 746, 748 (Iowa 1999). We consider all aggravating and
mitigating circumstances to tailor the sanction. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Earley, 774 N.W.2d 301, 308 (Iowa 2009).
In judicial discipline cases, we have identified factors to consider,
including:
1. whether the misconduct is isolated or a pattern of
misconduct;
2. the nature, extent, and frequency of the acts of
misconduct;
3. whether the misconduct occurred in or out of the
courtroom;
4. whether the misconduct occurred in the judge's
official capacity or in his or her private life;
5. whether the judge has acknowledged or recognized
the misconduct;
6. whether the judge has made an effort to change or
modify his or her conduct;
7. the length of service on the bench;
8. whether there have been any prior complaints;
9. the effect of the misconduct upon the integrity of
and respect for the judiciary; and
10. the extent to which the judge exploited the judicial
office to satisfy personal interests.
14
In re Block, 816 N.W.2d at 365–66. Finally, we will consider sanctions
imposed in similar situations. See, e.g., id. at 366 (considering the
sanction given in similar cases both in Iowa and in other jurisdictions).
We agree with the Commission that it is significant Magistrate
Krull previously was admonished for issuing the Fremont search warrant.
Magistrate Krull argues that these two cases are so separated by time
and particular facts that they do not constitute a pattern of misconduct.
We disagree. In both matters, Magistrate Krull signed a warrant to
search the property of a party in pending civil litigation in which he was
counsel of record. Both transgressions carried adverse consequences—in
Fremont, Magistrate Krull’s conflict required us to vacate a conviction,
749 N.W.2d at 244, and here, the parties were subjected to delay and
additional expense resulting from the continuance of the trial and
retention of new counsel. In both cases, Magistrate Krull’s conflict
between his public and private roles led to an appearance of impropriety.
He should have learned from Fremont to recuse himself from any search
warrant application targeting someone who is a party in a case in which
he is counsel of record. His prior admonishment for violating the same
rules is an aggravating factor.
Magistrate Krull cooperated with the Commission and
acknowledged his mistakes and corrective measures taken to avoid
repeating them. His cooperation, contrition, and corrective measures are
mitigating factors. Id. at 365–66; see also In re Dean, 855 N.W.2d at 193.
Although he explained why he did not realize the need to recuse himself
at the time he signed the warrants, we do not consider Magistrate Krull’s
mistaken belief he was acting properly to excuse his misconduct. Cf. In
re Meldrum, 834 N.W.2d 650, 653 (Iowa 2013) (concluding that it was not
an excuse that Meldrum was unaware his conduct violated a judicial
15
canon); Howe, 706 N.W.2d at 378 (explicitly crediting Howe with the
motivation “to resolve city charges in a fashion that was just to the city
as well as to defendants,” but noting his conduct still “crossed the line”).
Importantly, however, Magistrate Krull was motivated not by
personal gain, but by his desire to carry out his judicial duties and serve
the people of Worth County. He realized if he recused himself, the
nearest available judicial officer was at least thirty miles away. There is
no evidence that Magistrate Krull signed the warrant to gain an improper
advantage for his private client. We weigh the appropriate sanction
mindful of the “duty to sit” 3 to fulfill judicial responsibilities. We
consider Magistrate Krull’s motivation to honor that duty as a mitigating
factor.
The duty to sit is set forth in our judicial canons. Rule 51:2.7,
entitled “Responsibility to Decide” states, “A judge shall hear and decide
matters assigned to the judge, except when disqualification is required
by rule 2.11 or other law.” Iowa Code of Judicial Conduct R. 51:2.7.
Rule 51:2.1 states, “The duties of judicial office, as prescribed by law,
shall take precedence over all of a judge’s personal and extrajudicial
activities.” Id. r. 51:2.1.
Although there are times when disqualification is necessary
to protect the rights of litigants and preserve public
confidence in the independence, integrity, and impartiality of
the judiciary, judges must be available to decide matters that
come before the courts. Unwarranted disqualification may
bring public disfavor to the court and to the judge
personally. The dignity of the court, the judge's respect for
fulfillment of judicial duties, and a proper concern for the
3The duty to sit was accepted generally in federal practice until 1974, when
Congress amended 28 U.S.C. § 455, consistent with the then-existing version of the
ABA Model Code. Debra Lyn Bassett & Rex R. Perschbacher, The Elusive Goal of
Impartiality, 97 Iowa L. Rev. 181, 202 (2011). A significant minority of states still
expressly recognize the duty to sit. Id. at 202 n.114.
16
burdens that may be imposed upon the judge's colleagues
require that a judge not use disqualification to avoid cases
that present difficult, controversial, or unpopular issues.
Id. r. 51:2.7 cmt. 1. We have said that “ ‘there is as much obligation for
a judge not to recuse when there is no occasion for him to do so as there
is for him to do so when there is.’ ” State v. Biddle, 652 N.W.2d 191, 198
(Iowa 2002) (quoting Mann, 512 N.W.2d at 532).
As another court observed:
To reiterate, in the absence of a genuine basis for
recusal or disqualification, an inappropriate recusal or
disqualification would “simply be shirking” and
“irresponsible.” Indeed, Delaware’s approach reflects an
obvious tenet: that there is a duty incumbent on judges “not
to unreasonably burden fellow judges by recusing in
response to a weak argument for disqualification.” Upon
proper motion for disqualification, a judge's decision should
. . . not [be] guided or influenced by factors such as
convenience or a desire to remove the allegations of bias
from the case.
Taken together, the foregoing case law and Delaware
Code of Judicial Conduct confirm a judge's important “duty
to sit” unless and until genuinely convinced of the need for
recusal or disqualification.
State v. Desmond, No. 91009844DI, 2011 WL 91984, at *12 (Del. Super.
Ct. Jan. 5, 2011) aff'd, 29 A.3d 245 (Del. 2011) (footnotes omitted). As a
commentator explained:
There are at any juncture only a finite number of available
judges. The recusal of one judge puts greater pressure on
judges that are not disqualified, particularly in smaller
districts with fewer sitting judges. To a degree, the duty to
sit, at least in its benign form, is in large part a duty not to
unreasonably burden fellow judges by recusing in response
to a weak argument for disqualification.
To combat a judge's potential urge to avoid
demanding, time-consuming, or controversial cases, the legal
profession has long taken the view that the nature of a
judgeship implies that the judge has a responsibility to hear
and decide cases, one that should not be shirked for political
or personal reasons. To the extent one views the duty to sit
as a general and rebuttable obligation to preside over a case
unless disqualified, it is unobjectionable.
17
Jeffrey W. Stempel, Chief William's Ghost: The Problematic Persistence of
the Duty to Sit, 57 Buff. L. Rev. 813, 820–21 (2009) (footnotes omitted).
To be clear, a desire to avoid burdening fellow judges does not cure a
conflict of interest, and judges should recuse themselves when necessary
regardless of the resulting inconvenience to those seeking warrants.
However, we may calibrate our judicial discipline by crediting the judge’s
subjective motivation to honor the duty to sit.
Magistrate Krull asks us to impose a public admonition instead of
a public reprimand. “We employ professional admonitions not so much
by way of criticism as to instruct the bar. We view admonitions as
considerably less severe than reprimands, and consider them to be
something less than actual discipline.” 4 Comm. on Prof’l Ethics &
Conduct v. Liles, 430 N.W.2d 111, 113 (Iowa 1988). He argues his
position is similar to that of the part-time assistant county attorney in
Liles who also confronted potential conflicts between his official duties
and his private practice. See id. at 112. We recognized in Liles that part-
time official positions are necessary to serve smaller rural populations,
yet give rise to potential conflicts of interest:
A certain ambiguity is built into Iowa’s system of part-time
county attorneys. The overwhelming majority of the state’s
county attorneys serve part-time and derive their livelihood
4The Commission may issue a “letter of caution and warning” instead of a
sanction if the judicial officer’s “conduct has been questionable but does not amount to
misconduct, or that misconduct of a very minor nature has occurred which does not
warrant formal discipline.” Iowa Ct. R. 52.26. The Commission issues such
admonitions privately. A private reprimand is no longer “an available form of discipline
once we grant an application submitted to us by the Commission.” In re Block, 816
N.W.2d at 366. We have issued public admonitions in several attorney discipline cases.
See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Visser, 629 N.W.2d 376, 383
(Iowa 2001); Comm. on Prof’l Ethics & Conduct v. Zimmerman, 522 N.W.2d 619, 621
(Iowa 1994); In re Frerichs, 238 N.W.2d 764, 770 (Iowa 1976). We have never given a
public admonition in an application for judicial discipline, although that option is
available to us in appropriate circumstances.
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largely from the private practice of law. Whatever the
advantages or disadvantages of the system, it exists
primarily for economic reasons. Many of our counties have
comparatively sparse populations and it is felt they do not
require the services of full-time county attorneys.
The legislature undertook to provide the public with
county attorney services which are necessary and at the
same time spare the taxpayers the greater expense of full-
time county attorneys. Accordingly the statute leaves it up
to the boards of supervisors of each county to determine
whether the office shall be full or part-time. Iowa Code
§ 331.752 (1987).
A result of the plan is that part-time county attorneys,
who are expected to also engage in private law practice, must
walk a fine line to avoid conflicts. The two incidents involved
here are typical of how public legal matters often become
intertwined with private ones. A conflict of interest or the
appearance of one is always a danger.
Id.
Similar observations apply to part-time judicial magistrates, but
Liles is distinguishable on its facts. See id. Unlike Magistrate Krull,
there is no indication Liles had been admonished previously. Liles
shared office space with Peter Hansen, another part-time assistant
county attorney. Id. In two instances, Liles continued to represent
clients in his private practice after Hansen, as a prosecutor, filed
criminal charges against persons adverse to Liles’s clients. Id. Hansen
was terminated from his position as prosecutor and later accused Liles of
misconduct for continuing to represent those clients. Id. We concluded
there was no proof Liles was involved in any actual conflict of interest
because, although he shared office space with Hansen, they were neither
partners nor associates. Id. We nevertheless concluded Liles’s
continued representation was “ill advised” and warranted an admonition
because the nature of his arrangement with Hansen was unclear to the
public, and it could appear Liles’s clients gained an “advantage by reason
of his public office.” Id. at 113. By contrast, Magistrate Krull’s rule
19
violations are clear. Indeed, Magistrate Krull admits that he should have
recused himself from acting on the search warrants on both occasions.
Nevertheless, we are mindful that part-time magistrates who must
avoid conflicts of interest with their private practices also face the
challenges we described in Liles. See id. at 112. Many counties in Iowa
employ part-time judicial magistrates who need to engage in private
practice to earn a living. Id. Sparsely populated areas of the state such
as Worth County have fewer lawyers and judges to provide access to
justice. The nearest available judicial officer may be a long drive away if
the resident magistrate recuses himself. Part-time magistrates must
remain vigilant to avoid conflicts of interest while honoring their duty to
sit. The Iowa Code of Judicial Conduct applies statewide. As the
Washington Supreme Court stated, “Our legal system is based on the
foundation that an independent, unbiased, and competent judiciary will
interpret and apply the laws that govern us. This is paramount to the
American concept of justice and fairness.” In re Disciplinary Proceeding
Against Michels, 75 P.3d 950, 957 (Wash. 2003) (en banc). Maintaining
the requisite independence and neutrality of our judiciary inevitably
requires some measure of personal sacrifice:
The strength of our judicial system is due in large part
to its independence and neutrality. These twin qualities help
remove outside influences from judicial decision-making,
and promote public respect and confidence in our system of
justice. Yet, judicial independence does not come without
some personal sacrifice by judges. Judicial independence
and neutrality require judges to limit or abstain from
involvement in a variety of activities commonly enjoyed by
others . . . .
In re McCormick, 639 N.W.2d at 15 (citation omitted).
The sacrifices may include foregoing representation in a civil case
on a matter previously addressed as a judge. See Iowa R. Prof’l Conduct
20
32:1.12. The consequences can be severe when those wearing multiple
hats cross ethical lines by signing a search warrant instead of recusing
themselves. The search warrant prompting today’s public reprimand
sought evidence of cigarettes purloined by minors. The criminal
convictions vacated in Fremont were for possession of marijuana with
intent to deliver and child endangerment. 749 N.W.2d at 236, 244. But,
Fremont’s holding would also apply to vacate a conviction for first-degree
murder.
Considering all of the aggravating and mitigating factors together,
we conclude that a public reprimand is the appropriate sanction here. A
public reprimand is consistent with judicial discipline cases in our sister
jurisdictions. See Ky. Bar Ass’n v. Fitzgerald, 652 S.W.2d 77, 77 (Ky.
1983) (imposing public reprimand on judge who entered a custody order
transferring children from their mother to their uncle, then represented
the uncle after resigning from his judicial position); Miss. Comm’n on
Judicial Performance v. Bustin, 71 So. 3d 598, 600, 607 (Miss. 2011)
(en banc) (issuing a thirty-day suspension and public reprimand for a
judge who signed an arrest warrant for an opposing party in a child-
custody matter based on an affidavit submitted by his own client); Miss.
Comm’n on Judicial Performance v. Atkinson, 645 So. 2d 1331, 1337
(Miss. 1994) (en banc) (holding a public reprimand appropriate when a
judge set bail for a defendant and then petitioned for a bond reduction as
a private attorney); Ohio State Bar Ass’n v. Vukelic, 811 N.E.2d 1127,
1127–28 (Ohio 2004) (imposing a public reprimand when a magistrate
failed to recuse himself when a client in a domestic relations case
appeared before him on criminal misdemeanor charges); In re
Disciplinary Proceedings Against Ziegler, 750 N.W.2d 710, 713, 736–37
(Wis. 2008) (imposing a public reprimand when a judge failed to recuse
21
herself from cases in which her spouse was a director of a party, even
though the judge gained no personal benefit from the conflict).
Accordingly, we conclude a public admonishment for Magistrate Krull’s
second warrant-related transgression is insufficient and a public
reprimand is required.
V. Conclusion.
For these reasons, we adopt the Commission’s recommendation
and publicly reprimand Magistrate Krull for his conduct.
APPLICATION GRANTED; JUDICIAL OFFICER REPRIMANDED.