# Matter of Sawyer

> Oregon Supreme Court · May 8, 1979 · 286 Or. 369

URL: https://www.frixlaw.com/law-library/cases/9629480

## Case

- **Full name:** In the Matter Of: The Honorable LOREN L. SAWYER, Judge
- **Court:** Oregon Supreme Court
- **Decided:** May 8, 1979
- **Citations:** 286 Or. 369; 594 P.2d 805; 1979 Ore. LEXIS 747
- **Precedential status:** Published
- **Opinion:** Dissent by Linde
- **Judges:** Linde
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629480

## Opinion text

LINDE, J.,
dissenting.
I regret to say that I cannot agree to the Court’s decision in this case. The opinion undertakes to give the Commission on Judicial Fitness and Judge Sawyer *385 an answer to the question whether the Oregon constitution precludes a judge’s part-time teaching at a state college. In order to provide that answer, the opinion does violence to the provisions of law governing the commission and this court in judicial disciplinary proceedings. It gives wrong answers to some very important questions for the sake of reaching a relatively trivial one that could well await another day and a more appropriate procedure. Accordingly, I dissent.
The constitutional authority for the present proceedings in this court is stated in article VII (amended), section 8 as follows:
(1) In the manner provided by law, and notwithstanding section 1 of this Article, a judge of any court may be removed or suspended from his judicial office by the Supreme Court, or censured by the Supreme Court, for:
(a) Conviction in a court of this or any other state, or of the United States, of a crime punishable as a felony or a crime involving moral turpitude; or
(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
(d) Generally incompetent performance of judicial duties; or
(e) Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court; or
(f) Habitual drunkenness or illegal use of narcotic or dangerous drugs.
(2) Notwithstanding section 6 of this Article, the methods provided in this section, section la of this Article and in section 18, Article II of this Constitution, are the exclusive methods of the removal, suspension, or censure of a judge.
As this text makes obvious, the constitution was amended to give this court the exceptional authority to remove a judge from office, or to impose other discipline, for grave derelictions. Nothing in section 8 *386 suggests that it provides a proceeding in this court for exercising general supervisory or advisory powers over other courts.
Almost all of the several grounds for removal, suspension, or censure listed in (a) - (f), above, relate to a judge’s wilful or incompetent conduct in relation to his judicial duties. The exceptions are conviction of a felony or a crime involving moral turpitude and abuse of intoxicants or drugs. Before a judge’s conduct can be the subject of adverse action by this court under article VII (amended), section 8, the charge must fall under one of the listed grounds. The law that establishes the Commission on Judicial Fitness and the procedures for carrying out this constitutional mandate, ORS 1.410-1.480, is similarly circumscribed. The kind of judicial conduct into which the commission is directed to inquire is conduct of a kind that "justifies censure, suspension or removal from office” and that may lead it to recommend such action to this court. ORS 1.420(4). The entire procedure before the commission and the court is designed with a view to dealing with serious charges of misconduct that may actually lead to the exercise of this grave and exceptional authority. It is consistent with this assignment that the commission may act only "[u]pon complaint from any person concerning the conduct of a judge or upon request of the Supreme Court,” ORS 1.420(1).
The provision relied on in this case is section 8(l)(e): "Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court.” This, in turn, leads the court to invoke Canon 2A of the Code of Judicial Conduct:
A judge should avoid impropriety and the appearance of impropriety in all of his activities.
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
*387 In short, because Judge Sawyer teaches one part-time class about law at Southern Oregon College, he is charged and faced with possible suspension or worse on the constitutional ground of "[wjilful violation of any rule of judicial conduct . . . established by the Supreme Court” because this court has adopted a canon that instructs judges in general terms to "respect and comply with the law,” and because a judge teaching in a state college arguably mixes the functions of two separate branches of government.
This chain of premises discloses a serious problem. The Court recognizes that Canon 2 is very broadly stated and primarily hortatory. That may be suitable for a code of conduct designed for hortatory effect only. But Article VTI (amended), section 8(l)(e), supra, in effect has given this court farreaching power to legislate for other judges in the form of rules of judicial conduct, enforceable by potential removal from office by the judgment of the same body that made the rule. 1 That is a power to be used only with scrupulous care in stating the rules and attention to their literal implications.
Certainly an exhortation to "avoid impropriety and the appearance of impropriety” falls short as a standard for subjecting other judges to removal by this court. An exhortation to a judge to "respect and comply with the law” has more meaning, but not much more. As a statement of a judge’s professional duty it is a truism. As a ground for removing a judge from office, and extended beyond his professional duties, the truism becomes problematic. It is no answer that the rule is not to be taken literally, or to say, as the Court does, that violations of law such as traffic infractions may not come within the intended meaning of Canon 2A. The per curiam opinion offers no criterion to decide for what departures from law this court will or will not find removal, suspension or censure "appropriate,” supra, p. 831. I cannot believe that either the *388 provision of section 8(l)(e) providing penalties for the "wilful violation of any rule of judicial conduct” nor the rules adopted by this court to cany out that mandate contemplate such penalties for the kind of issue presented in this case.
The vagueness of Canon 2 as a standard for discipline in turn highlights the question how procedures before the commission are initiated, specifically the role of the "complaint from any person” or "request of the Supreme Court” required by ORS 1.420. I agree that the complaint may come from a member of the comisssion or its staff. I do not agree that it can be dispensed with entirely in the manner that the Court seems willing to overlook in order to reach the result in this case. 2 If the commission may legally initiate an inquiry and eventual disciplinary proceeding under a standard like Canon 2, without any complaint or request from this court as required by ORS 1.420, it in effect has a roving commission to check generally into the conduct of all judges. That may or may not be a good idea, but it is not what ORS 1.420 enacted. The presence of a complaint at least represents some safeguard that someone will take responsibility for putting on record both the exact factual allegations concerning the judge’s conduct and the reasons why, if true, they rise to the level of calling for disciplinary action under the applicable law. If that had not been intended, the words "Upon [t]he complaint from any person ... or upon request of the Supreme Court” could easily have been omitted from the statute. But the per curiam opinion would reduce this safeguard from the "complaint” required by ORS 1.420 to "information coming from any [unidentified] person.”
Nor is it necessarily true that careful adherence to the substance and procedure governing our disciplinary powers would make it impossible ever to decide a *389 question such as that which the Court strains to reach in this case. I need not pursue here hypothetical ways in which the issue could be raised, if the objective of those who raise it, or of Judge Sayer, is clarification rather than Judge Sawyer’s "removal, suspension or censure.” But on its face, article VII (amended), section 8 was not designed as a means of issuing declaratory directives for judicial conduct that does not merit such discipline.
In stun, whatever may be the merits of the dispute over Judge Sawyer’s teaching at Southern Oregon College, I think his doing so is not the kind of judicial misconduct that properly comes within our disciplinary rules. Nor has the commission brought it before us by proper procedures. The proper administration of those rules and procedures are a far weightier matter than the particular issue of Judge Sawyer’s teaching. Accordingly, I would dismiss this disciplinary proceeding.
It is, perhaps, not without irony that the present charge against Judge Sawyer concerns the separation of powers.
The issue tends only to be obscured by discussion in terms of "jurisdiction” and "due process,” as used in respondent’s brief and in the opinion; it is simply a question of compliance with ORS 1.420. Cf. Anaconda Co. v. Dept. of Rev., 278 Or 723 , 565 P2d 1084 (1977).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629480. Public record. Not legal advice.