FILED:  October 13, 2005
IN THE SUPREME COURT OF THE STATE OF OREGON
Inquiry Concerning a Judge re:
THE HONORABLE NEAL C. LEMERY,
Accused.
(CJFD 04-132; SC S52763)
On review of the Commission on Judicial Fitness and
Disability Stipulation of Facts and Consent to Censure.
Submitted on the record August 31, 2005.
Susan D. Isaacs, Portland, Executive Director, Commission on
Judicial Fitness and Disability, submitted the stipulation.
No appearance contra.
Before Gillette, Presiding Justice, and Durham, Riggs, De Muniz, Balmer, and Kistler, JJ.
PER CURIAM
The accused is censured.
Carson, C.J., did not participate in the consideration or
decision of this case.
PER CURIAM
This is a proceeding under ORS 1.420, ORS 1.430, and
Article VII (Amended), section 8, of the Oregon Constitution to
inquire into the conduct of a justice of the peace and circuit
court judge pro tem. (1)  The Oregon Commission on Judicial
Fitness and Disability (commission) and the accused, Honorable
Neal C. Lemery, a justice of the peace and a judge pro tem of the
Circuit Court of the State of Oregon for Tillamook County, agreed
to a Stipulation of Facts and Consent to Censure (stipulation for
censure) in which the accused stipulated that he engaged in
conduct that violated the Oregon Code of Judicial Conduct
Judicial Rule (JR) JR 1-101(A) (requiring judge to observe high
standards of conduct); JR 1-101(C) (prohibiting conduct
reflecting adversely on judge's character, competence,
temperament, or fitness to serve as judge); JR 1-101(D)
(requiring judge to refrain from conduct involving dishonesty,
fraud, deceit, or misrepresentation); JR 2-102(B) (prohibiting ex
parte contact except with consent of the parties or as authorized
by law); JR 2-107 (requiring judge to be faithful to law and
decide matters on basis of facts and applicable law); and JR 2-110(B) (requiring judge to refrain from conduct that would be
perceived as biased or prejudiced toward litigants, jurors,
witnesses, lawyers, or members of public).
We set out the stipulation for censure, in part:

"STIPULATED FACTS
"If a contested hearing were held in this matter,
clear, cogent and convincing evidence would be
presented sufficient to establish the following facts:
"1.  At all material times herein Judge Neal C.
Lemery ("Judge Lemery" or "Respondent") served as a
Justice of the Peace and Circuit Judge Pro Tem for the
State of Oregon, Twenty-Seventh Judicial District,
Tillamook County.
"2.  In November 2004[,] Judge Lemery served as
Circuit Judge Pro Tem and sole trier of the facts in
the trial of an action brought by the State of Oregon
Department Of Human Services ("DHS") to terminate the
parental rights of Lewis Fockler, Tillamook County
Circuit Court Case No. 3015 J.
"3.  On or about November 17, 2004, near the end
of a morning recess taken during the prosecution's
presentation of its evidence in chief, Judge Lemery
returned to the courtroom from his chambers to resume
the second day of trial.  Before re-taking the bench,
and before the defendant and his counsel had returned
to the courtroom, Judge Lemery made comments about the
case to the DHS caseworker, who was a party and witness
in the case, and to nearby prosecution witnesses, but
outside the presence of the defendant and his counsel. 
The Judge said that what he really liked about the case
was that the father's new girlfriend was sitting in the
back of the courtroom with the new baby, and that the
baby should be next for termination.
"4.  The court clerk reported the Judge's conduct
to the Trial Court Administrator who instructed her to
report it to the Presiding Circuit Judge, which she
did.  The Presiding Circuit Judge instructed her to
make a record of what she had observed and heard in a
memorandum, which she did.  She delivered the
memorandum to the Trial Court Administrator.  A true
copy of her memorandum is attached as Exhibit 1.
"5.  At the noon recess on November 18, 2004, the
Trial Court Administrator summoned Judge Lemery and the
attorneys for the parties to a meeting in a jury room
and distributed the clerk's memorandum to all for
comment.  After reading the memorandum, the defendant's
counsel stated his intention to move for a mistrial and
to move that Judge Lemery recuse himself from further
involvement in the case.  Judge Lemery, without
admitting or denying the truth of the facts stated in
the clerk's memorandum, announced that he would declare
a mistrial and recuse himself from further involvement. 
When they returned to the courtroom and resumed the
hearing on the official record, Judge Lemery declared a
mistrial and recused himself from further involvement
in the case.  Later, the case was reset for a new
trial, and it was tried in February 2005 before a
different judge.
"6.  On December 29, 2004[,] the Commission's
Executive Director wrote an investigative letter to
Judge Lemery.  She asked him to explain the nature of
his contact with one of the parties, the DHS/Child
Welfare caseworker, and the content of his
communication with her.
"7.  On or about January 21, 2005, in his letter
responding to the Executive Director's inquiry, Judge
Lemery denied any recollection of having said anything
in his conversation with the DHS representative
regarding the case that was before him for decision.
"8.  On or about June 1, 2005, in a letter to the
Oregon Secretary of State, Judge Lemery resigned as
Circuit Judge Pro Tem for the Twenty-Seventh Judicial
District (Tillamook County).
"VIOLATIONS 
"9.  The Respondent admits that, by engaging in
conduct described above, he violated the following
Rules of the Oregon Code of Judicial Conduct adopted by
the Oregon Supreme Court:
"• JR 1-101(A) which requires that a judge shall
observe high standards of conduct so that the
integrity, impartiality and independence of
the judiciary are preserved and shall act at
all times in a manner that promotes public
confidence in the judiciary and the judicial
system;
"• JR 1-101(C) which requires that a judge shall
not engage in conduct that reflects adversely
on the judge's character, competence,
temperament or fitness to serve as a judge;
"• JR 2-102(B) which requires that a judge shall
not communicate or permit or cause another to
communicate with a lawyer or party about any
matter in an adversary proceeding outside the
course of the proceeding, except with the
consent of the parties or as expressly
authorized by law or permitted by this rule;
"• JR 2-107 which requires that a judge shall be
faithful to the law and shall decide matters
on the basis of the facts and applicable law;
"• JR 2-110(B) which requires that a judge shall
not act in a way that the judge knows, or
reasonably should know, would be perceived by
a reasonable person as biased or prejudiced
toward any of the litigants, jurors,
witnesses, lawyers or members of the public;
and
"• JR 1-101(D) which requires that a judge shall
not engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
"SANCTION/CONSENT TO CENSURE
"10.  Respondent agrees and stipulates that based
on such facts, the Commission could find that
Respondent's conduct justifies censure and recommend
the censure to the Oregon Supreme Court."

Pursuant to ORS 1.430(2), the court has reviewed the
stipulation of facts and the disciplinary action to which the
accused has consented.  The court approves the consent to
censure.
The accused is censured.


1. ORS 1.420(1) provides, in part:

"Upon complaint from any person concerning the
conduct of a judge or upon request of the Supreme
Court, and after such investigation as the Commission
on Judicial Fitness and Disability considers necessary,
the commission may do any of the following:
"* * * * *
"(c) The commission may allow the judge to execute
a consent to censure, suspension or removal.  If a
consent is entered into under this paragraph, the judge
and the commission must enter into a written
stipulation of facts.  The consent and stipulation of
facts shall be submitted by the commission to the
Supreme Court."

ORS 1.430(2) provides, in part:

"If the commission has agreed to allow the judge
to submit a consent to censure, suspension or removal,
the Supreme Court shall review the stipulation of facts
and the disciplinary action to which the judge has
consented.  If the Supreme Court approves the consent,
the court shall censure the judge or order the judge
suspended or removed from office pursuant to the terms
of the consent."

Article VII (Amended), section 8, of the Oregon Constitution
provides, in part:

"[A] judge of any court may be * * * censured by the
Supreme Court."

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