              IN THE SUPREME COURT OF IOWA
                              No. 14–0510

                      Filed September 12, 2014
                     Amended December 11, 2014


IN THE MATTER OF EMILY SUSAN DEAN,

      District Associate Court Judge.


      On application of the Iowa Commission on Judicial Qualifications.



      State commission on judicial qualifications filed application

recommending three-month suspension of district associate judge.

APPLICATION GRANTED; JUDICIAL OFFICER SUSPENDED.



      Thomas J. Miller, Attorney General, and Grant K. Dugdale and

Kevin R. Cmelik, Assistant Attorneys General, for complainant.



      Elaine F. Gray of Fehseke & Gray Law Offices, Fort Madison, for

respondent.
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APPEL, Justice.

      In this case, we consider a recommendation by the Iowa

Commission on Judicial Qualifications (the Commission) to suspend a

district associate judge for three months as a result of behavior related to

alcohol consumption.     The gravamen of the original complaint that

triggered commencement of the proceeding was a report that the judge

arrived at a courthouse in an intoxicated state and could not perform her

scheduled judicial duties. For the reasons expressed below, we conclude

that a suspension without pay should be imposed, but limit the

suspension to thirty days.

      I. Factual and Procedural Background.

      A. The Precipitating Incident. On May 9, 2012, the Commission

received a complaint from a district court judge regarding District

Associate Judge Emily Dean. The precipitating incident that gave rise to

the complaint was the arrival of Judge Dean at the Henry County

Courthouse that morning where she was said to be physically unable to

take the bench. The complaint indicated reports that Judge Dean had

been consuming alcohol prior to her arrival at the courthouse.          The

complaint also recited a history of Judge Dean’s absence from work for

health-related reasons presumed to be alcohol related. On May 10, the

Commission entered an order suspending Judge Dean from her judicial

duties pending investigation and action on the complaint.

      B. Attorney General’s Report to the Commission. The attorney

general’s office conducted an investigation of the facts alleged in the

complaint and issued a report, which was admitted as State’s Exhibit 1

at the hearing.   With respect to the incident on May 9, the attorney

general’s report indicated that Judge Dean had been drinking a colorless

liquid and fell asleep in the car while being driven by her court reporter
                                     3

from Fort Madison to Mount Pleasant. Upon arriving at the courthouse,

Judge Dean swayed and was unsteady. Her court reporter recognized

that she was not in a condition to take the bench and obtained

assistance from an employee in the county attorney’s office to persuade

Judge Dean not to take the bench and to leave the courthouse.         Her

court reporter drove her back to Fort Madison and contacted a family

member.       Later that day, she was hospitalized for severe alcohol

intoxication. She remained in the hospital for three days. The attorney

general’s office interviewed the witnesses with firsthand knowledge of the

incident. There was no suggestion in the report of inappropriate conduct

on the part of Judge Dean on May 9, beyond her arrival at the

courthouse in a state of intoxication.

      In a letter to the attorney general’s office submitted pursuant to

the investigation, Judge Dean began by admitting that she is an alcoholic

and generally recounted her struggle with the disease, stating she

initially addressed the problem locally through weekly substance abuse

counseling and additional mental health counseling.       She suffered a

grand mal seizure in November 2011 as a result of alcohol withdrawal

and participated in inpatient alcohol treatment at Hazelden in Center

City, Minnesota, in December 2011.       She stated that she attended a

second inpatient treatment program at The Abbey in Bettendorf, Iowa, in

April 2012. Upon further inquiry by the attorney general’s investigator,

however, Judge Dean admitted that she left both programs shortly before

completion.

      Judge Dean did not contest the basic facts surrounding the May 9

incident, although she stated she had “very little recollection of that

morning.”     After leaving the courthouse, Judge Dean stated that her

family took her to Great River Medical Center’s emergency unit, where
                                         4

she was admitted into the intensive care unit. She remained hospitalized

for three days. She characterized the May 9 event as “hitting bottom” in

her struggle with alcoholism.

      The report also noted other incidents of alcohol-related conduct.

An assistant county attorney stated that in February and March of 2012,

there were occasions when Judge Dean appeared “disoriented” and

“disheveled.”      Additionally,   the   report   described   an   incident   in

Fort Madison in which lawyers and litigants were assembled in the

courtroom.      According to the report, Judge Dean took the bench and

stated, “Why are all of you here?” The report stated Judge Dean’s court

reporter called Judge Dean’s father who arrived and escorted her from

the courthouse.

      The report further described other events. Judge Dean apparently

decided to test a “panic button” to see if law enforcement would respond,

which they did. Additionally, in May of 2012 a citizen filed a complaint

alleging that a female driving Judge Dean’s husband’s car had urinated

in a public street. The citizen followed the car to a destination that fit

the description of Judge Dean’s mother’s residence.                Judge Dean

admitted she knew of the allegation, but could not remember what

happened and could not deny it. No charges were filed.

      The report also canvassed Judge Dean’s recovery efforts after

May 9.     According to Hugh Grady of the Iowa Lawyers Assistance

Program (ILAP), Judge Dean had made excellent progress in a twelve-step

program.     Judge Dean had also signed a contract to abide by all

conditions imposed by ILAP, including monitoring by Mr. Grady, regular

attendance at meetings with a sobriety support group, and preparation of

a relapse plan.     Mr. Grady and professionals at Great River Addiction
                                     5

Services did not recommend another round of inpatient treatment for

Judge Dean.

      C. Charges Brought by the Commission.             After the attorney

general’s investigation and subsequent report, the Commission filed a

notice of charges against Judge Dean and set the matter for hearing. In

the notice of charges, the Commission alleged that Judge Dean violated

canon one and canon two of the Iowa Code of Judicial Conduct,

including rule 51:1.2 and rule 51:2.5(A).       See Iowa Code of Judicial

Conduct Canons 1, 2; id. rs. 51:1.2, 51:2.5(A). First, the Commission

charged that by appearing at the Henry County Courthouse while

intoxicated, Judge Dean failed to avoid impropriety, raised doubt about

her integrity, and eroded confidence in the judiciary.    As a result, the

Commission alleged a violation of rule 51:1.2, which requires judges to

promote confidence in the judiciary. See Iowa Code of Judicial Conduct

R. 51:1.2.   Second, the Commission charged that by being intoxicated

and unable to handle assigned cases on one or more occasions, Judge

Dean failed to demonstrate the competence and diligence required in the

performance of judicial duties.    As a result, the Commission alleged a

violation of rule 51:2.5(A), relating to the competence, diligence, and

cooperation of a judge. See id. r. 51:2.5(A).

      Judge Dean filed an answer admitting the charges.          Although

Judge Dean admitted to the charges, it is our duty to review the findings

of the Commission de novo and evaluate the facts to determine if a

violation occurred. See In re Meldrum, 834 N.W.2d 650, 652 (Iowa 2013);

cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey, 790 N.W.2d 801,

804 (Iowa 2010) (“Our rules require us to determine whether [the]

conduct violates our ethical rules.”).     In doing so, we look to both

attorney and judicial disciplinary cases and note that principles in
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attorney   disciplinary   matters   are    generally   applicable   to   judicial

disciplinary matters.     See In re McCormick, 639 N.W.2d 12, 18 (Iowa

2002) (observing sanctions related to attorney misconduct should be

comparable in judicial disciplinary proceedings).

      D. Hearing Before the Commission.            The Commission held its

hearing on October 31, 2012. At the hearing, the State rested on the

admissions by Judge Dean that she had violated the rules of judicial

conduct. Later in the proceeding, however, in addition to the attorney

general’s report, the State offered into evidence medical records related to

Judge Dean’s efforts to address her alcoholism.

      Judge Dean put on testimony from alcohol counselors and her

husband. James Towlerton, a substance-abuse counselor at Great River

Addiction Services, testified Judge Dean had made excellent progress in

dealing with her alcoholism since the May 9 incident.          Mr. Towlerton

noted Judge Dean had “totally involved herself” in Alcoholics Anonymous

(AA) and attended two meetings a day the majority of time since May 9.

Mr. Grady testified that contrary to her efforts prior to May 9, Judge

Dean was now “fully invested in recovery” with “a completely different

commitment” to a recovery program.          Her husband testified about the

long and painful family history of frustration and broken promises

related to Judge Dean’s alcoholic behavior, followed by “a complete 180

degree turn” after May 9.

      Judge Dean also testified.          She recounted the course of her

alcoholism and her unsuccessful past efforts to address it. She generally

asserted that other than the occasion on May 9, she did not come to

work intoxicated. She admitted that she lost her zest for the job and that

she quit doing any more than was necessary, but she asserted she

handled her workload in a timely manner. With respect to the citizen
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report that she urinated in public, she had limited memory of the event

and could neither affirm nor deny what happened.            She denied any

improper or alcohol-affected conduct in connection with testing the panic

button, though she admitted law enforcement was not pleased by her

experiment. Judge Dean stated she had no recollection of the assistant

county attorney’s report of an occasion when she was confused by the

presence of lawyers and litigants in the courtroom.

      Notwithstanding failed past efforts to deal with her alcoholic

behaviors, Judge Dean testified that since May 9, AA has become the

center of her life. She now recognizes she is an alcoholic and she cannot

allow herself to drink.    In light of her path to recovery, Judge Dean

declared she was desperately ready to go back to work. She recognized

her conduct “tarnished the reputation” of the judicial branch, but

suggested her experience would give her insight into her work as a judge.

      At the hearing, a monitoring agreement between Judge Dean and

the ILAP was introduced into evidence.            Under the terms of the

monitoring agreement, Judge Dean, among other things, agreed to

remain abstinent from alcohol and mood altering drugs, to attend a

minimum of five AA meetings per week, to find and use a sponsor, to

meet with Mr. Grady and Mr. Towlerton on a regular basis, to provide

random urine samples upon request, and to provide proof of compliance

to the ILAP on a quarterly basis.         The monitoring agreement further

provided that any noncompliance would be reported to the Commission.

      Mr. Grady called the monitoring agreement “the key” or, more

ominously, “the hammer.”         Judge Dean testified she was in full

agreement with all of the provisions of the monitoring agreement. She

stated, “I can’t do my job appropriately if I’m actively using alcohol.”
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      On the issue of sanction, the State indicated that a private

admonition would probably do as much as anything for Judge Dean, but

the public and the profession needed to know the matter was being taken

seriously.   Therefore, the State urged at the very least a public

reprimand. The State further recommended the sanction of removal from

office or a suspension without pay stayed pending Judge Dean’s

continued sobriety and compliance with the monitoring agreement with

the ILAP.

      Judge Dean noted she had already been off work seeking

rehabilitation for five months.     She was prepared to live with any

sanction the Commission proposed and noted that having the hammer

was probably a “good idea.” She primarily wanted to go back to work.

      E. Commission Rulings.

      1. Reinstatement order.     On November 2, 2012, the Commission

entered an order reinstating Judge Dean to her judicial duties.        The

reinstatement order, however, incorporated in substance the terms of the

monitoring agreement introduced into evidence at the hearing.          The

reinstatement order provided that Mr. Grady or his designee shall

immediately report to the Commission any failure to meet the

requirements of the monitoring agreement.          Upon such a report, the

Commission would determine an appropriate response depending upon

the nature of the failure. The monitoring agreement was to remain in

effect for two years from the date of the order.

      2. Application to discipline a judicial officer. On March 27, 2014,

the Commission filed an application with this court to discipline a

judicial officer pursuant to Iowa Code section 602.2106 (2011).        The

Commission entered findings of fact, noting among other things that

prior to May 9, 2012, Judge Dean wrestled with alcoholism and at times
                                       9

appeared in court disoriented and disheveled.        The Commission also

found that Judge Dean relieved herself on a public street while under the

influence of alcohol.    The Commission further found that on May 9,

2012, Judge Dean arrived at the Henry County Courthouse in an

intoxicated state and, through the intervention of staff, was persuaded to

leave rather than take the bench. The Commission noted Judge Dean

acknowledged, and the Commission found, that Judge Dean violated

canon one and canon two of the Iowa Code of Judicial Conduct,

including rule 51:1.2 and rule 51:2.5(A).

      The Commission noted that while alcoholism is an illness, there

remained the issue of an appropriate sanction for Judge Dean’s improper

conduct. The Commission recognized the challenging nature of the task

when alcoholism causes an otherwise competent and diligent jurist to

violate   her   professional   responsibilities.   While   the   Commission

applauded Judge Dean’s so far successful effort to control her alcohol

use since May 9, the Commission believed that in determining the

appropriate sanction, restoring public confidence in the judicial system

and deterring other judges from engaging in similar unethical conduct

were the main purposes of judicial discipline.      The Commission noted

that while a lesser sanction might be appropriate for a single incident of

alcohol-induced behavior outside the courthouse, Judge Dean appeared

intoxicated on the bench, in the courthouse, and in public.

      The Commission recommended that Judge Dean be suspended for

three months without pay. Because of potential disruption to the Eighth

Judicial District that would result from a three-month suspension, the

Commission recommended the suspension be imposed in increments of

no less than one week at a time, as scheduled by the chief judge of the

district. The Commission further emphasized that during the period of
                                    10

suspension, Judge Dean should continue to comply with the monitoring

agreement described in the Commission’s order for reinstatement.

      II. Scope of Review.

      “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 at 15. The ethical violation of a judge must be

established by a convincing preponderance of the evidence. In re Block,

816 N.W.2d 362, 364 (Iowa 2012).

      III. Discussion.

      A. Violations of Judicial Ethics. In this case, the Commission

charged, and Judge Dean has admitted, violation of rules 51:1.2 and

51:2.5(A). Rule 51:1.2 states that “[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.”    Iowa Code of Judicial Conduct R. 51:1.2.

Rule 51:2.5(A) provides that “[a] judge shall perform judicial and

administrative duties competently and diligently.”    Id. r. 51:2.5(A).   In

order to sanction a judge, a violation of the rules must be “substantial.”

Iowa Code § 602.2106(3)(b).

      Like the Commission and Judge Dean, we find there is ample

evidence to support these charges. There can be little dispute that the

appearance of a judge in an intoxicated state at the courthouse unable to

perform scheduled judicial duties violates both rules.      On that day,

Judge Dean did not promote public confidence in the independence,

integrity, and impartiality of the judiciary and did not perform her duties

competently or diligently.

      In finding the violations, we do not base them upon Judge Dean’s

mere status as an alcoholic, but rather on her conduct. The purpose of
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judicial disciplinary proceedings is “to restore public confidence in the

judicial system and its judges,” as well as deter future misconduct, not to

punish an individual judge. In re Meldrum, 834 N.W.2d at 653–54; In re

Block, 816 N.W.2d at 365.         Thus, any disciplinary sanction we may

impose, as a result of the violations in this case, arises not as a result of

Judge Dean’s status as an alcoholic, but rather because of the effect of

her conduct on public confidence in the judicial branch and the need to

deter future similar misconduct.

      B. Sanctions.         Discipline may be imposed for a substantial

violation of the canons of judicial ethics. Iowa Code § 602.2106(3)(b); In

re Block, 816 N.W.2d at 364–65. In determining a suitable sanction, we

look to the goals of discipline and the entire record, considering both

mitigating   and    aggravating   factors,   including    related    misconduct

stemming from the judge’s alcoholism. See In re Block, 816 N.W.2d at

365–66; cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen, 779

N.W.2d 757, 765 (Iowa 2010) (noting even if the evidence failed to

establish    an   alleged   charge,   that   evidence    could   constitute   an

aggravating factor to support a more severe sanction).              We must be

satisfied that there is a sufficient nexus between the other related

incidents in the record and the larger goals of judicial discipline in

imposing a proper sanction.

      Initially, we note that in two cases we have imposed public

reprimands on judges who committed a first offense of driving a motor

vehicle while intoxicated. In re Block, 816 N.W.2d at 363; In re Weaver,

691 N.W.2d 725, 725 (Iowa 2004). An argument can be made that this

case is similar to the drunk-driving cases.        The drunk-driving cases,

however, did not involve intoxication of a judge when reporting for

judicial duties at the courthouse but instead represented discrete and
                                    12

uncharacteristic private events. We think the appearance of a judge in a

state of intoxication at the courthouse has an obvious direct linkage to

the performance of judicial duties and to public respect for the integrity

of the judicial process. Further, the record in this case shows additional

improper conduct related to alcohol consumption.              The drunk-driving

cases do not provide us with much guidance here.

        Other jurisdictions have dealt with alcohol-related misconduct by

judges. In In re Krake, 942 So. 2d 18, 20–28 (La. 2006), a judge was

suspended for six months due to appearing intoxicated at public and bar

events, appearing hung over on the bench, and requiring several leaves

of absences from the bench to obtain treatment.           The judge was later

suspended for the balance of his term as a result of failure to abide with

ongoing monitoring requirements. In re Krake, 976 So. 2d 162, 163–64

(La. 2008).

        Another case involving judicial misconduct arising from alcoholism

is Idaho Judicial Council v. Becker, 834 P.2d 290 (Idaho 1992). In this

case,   the   Idaho   Supreme   Court    found   that     a    judge’s   habitual

intemperance, abuse of alcohol, and conviction for driving under the

influence detracted from public confidence in the integrity of the

judiciary and warranted a three-month suspension.               Id. at 290.    In

imposing its sanction, the Idaho court stressed the importance of

maintaining the integrity of the judiciary. Id. at 293.

        There is some caselaw from other states imposing more lenient

sanctions than Krake and Becker. In In re Kirby, 354 N.W.2d 410, 421

(Minn. 1984), the Minnesota Supreme Court found that discourteous

treatment of female attorneys, public intoxication, conducting judicial

business with alcohol on his breath, and habitual tardiness warranted a

public censure. The Kirby court noted there was only one instance in
                                      13

which Judge Kirby was intoxicated while performing judicial duties and

there was no showing the use of alcohol had an effect on any of his

decisions.     Id. at 417.   The Minnesota Court recognized, however, the

importance of “the perception of the public upon the administration of

justice in general and upon the over 200 other judges in this state in

particular.” Id.

      On balance, we think the conduct demonstrated by the record in

this case requires a suspension.       The public cannot accept, the bar

cannot condone, and we cannot tolerate judges showing up for work

intoxicated.     In addition, Judge Dean’s alcohol consumption casts a

shadow across her discretionary decision-making, even if she was not

specifically intoxicated when in court and even if her discretionary

decisions were timely made and not subject to reversal on appeal.

      We consider both aggravating and mitigating factors in determining

an appropriate sanction. In re Block, 816 N.W.2d at 365–66 (listing ten

factors we generally consider in determining an appropriate sanction in

each case); In re McCormick, 639 N.W.2d at 16 (same). In this case, there

are aggravating factors.       There are reports in the attorney general’s

investigation, which we find credible, that Judge Dean was occasionally

disoriented and disheveled.      While the evidence related to Judge Dean

relieving herself in public is an anonymous police report and therefore

problematic, we do not find Judge Dean’s asserted lack of memory

comforting. Ordinarily, such a remarkable charge would be met with a

quick and firm denial. It is apparent that Judge Dean had consumed

alcohol in sufficient quantities that she could not sufficiently remember

the nature of her conduct to deny the charge of highly unusual conduct.

See In re Block, 816 N.W.2d at 365 (noting factors include “whether the
                                     14

misconduct is isolated or a pattern of misconduct” and “the nature,

extent, and frequency of the acts of misconduct”).

      But there are also important mitigating factors. There have been

no prior complaints regarding Judge Dean. Cf. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Bieber, 824 N.W.2d 514, 527 (Iowa 2012) (noting, in

attorney disciplinary case, that the “lack of a prior disciplinary record is

an important mitigating factor”).    While the misconduct was severe on

May 9 and obviously disrupted the judicial system, Judge Dean did not

assume the bench and preside over cases. Cf. Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96, 110 (Iowa 2012) (noting

lack of harm to third parties is significant mitigating factor in attorney

disciplinary case). The State at the hearing emphasized that Judge Dean

had fully cooperated with the Commission in the investigation of this

matter. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt, 791 N.W.2d

98, 103 (Iowa 2010) (noting cooperation with attorney disciplinary

authorities as mitigating factor).

      Our cases, however, hold that while alcoholism is no legal

justification, excuse, or defense for unethical conduct, the recognition of

alcoholism and rehabilitative efforts can be a mitigating factor in

disciplinary proceedings. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.

Clarity, 838 N.W.2d 648, 660–61 (Iowa 2013) (canvassing attorney

disciplinary cases); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Roush, 827

N.W.2d 711, 719 (Iowa 2013).

      We recognize that Judge Dean was not working while she sought

rehabilitation between May and November of 2012. This absence is not a

substitute for the sanction of suspension in this case. Absence due to

rehabilitation and disciplinary sanctions serve overlapping, but distinct,

purposes.    Iowa Supreme Ct. Att’y Disciplinary Bd. v. Maxwell, 705
                                    15

N.W.2d 477, 480 (Iowa 2005). Absence from duty due to rehabilitation

does not “specifically address unethical conduct and the need to deter

future conduct.” Id. Further, a rehabilitative absence for judicial officers

occurs with pay rather than without pay. By contrast, lawyers are not

permitted to earn fees while under disability suspension. See Iowa R.

Prof’l Conduct 35.17(5) (“No attorney suspended due to disability under

this rule may engage in the practice of law in this state until reinstated

by order of the supreme court.”). Nonetheless, absence for the purpose

of rehabilitation, like disability suspensions for attorneys, may be

considered a mitigating factor in determining the length and adequacy of

a disciplinary suspension.    Cf. Clarity, 838 N.W.2d at 662–63; Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 543–44

(Iowa 2013).

      The record in this case establishes that after a substantial period

of difficult and painful struggle with alcoholism, Judge Dean has

confronted her disease and now has demonstrated a deep personal

commitment to recovery.      She appears to have overcome the denial,

recovered from the embarrassment, recognized the depth of the problem

of alcohol dependence, and most importantly has been able to establish

the kind of supportive framework associated with successful recovery

over a lifetime. It has not been an easy road for her and will not always

be an easy road in the future. But, the fact Judge Dean has chosen to

commit herself to a disciplined program of recovery is a significant

mitigating factor and offers her the potential of a continued successful

judicial career. Indeed, our state is no stranger to recovering alcoholics

who have performed outstanding judicial service after successfully

confronting the disease.
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      We note that Judge Dean and the ILAP have agreed to a monitoring
agreement that was in substance incorporated into the Commission’s
order for reinstatement.    The monitoring agreement was to remain in
effect for two years from the date of the order, which time period has
nearly elapsed. We regard the monitoring agreement as an agreement
involving Judge Dean, the ILAP, and the Commission. We do not regard
the monitoring agreement as a formal sanction that requires our review
on this application.   The parties agreed in the event that Judge Dean
fails to meet her obligations under the recovery monitoring agreement,
the Commission will be notified and additional sanctions will be
considered based upon the facts and circumstances of the violation. We
do believe, however, that the presence of this voluntary monitoring
agreement, and Judge Dean’s successful compliance with it, provides us
with additional confidence that the public will be adequately protected by
the sanction we impose here today.
      Based upon the facts and circumstances of this case, we conclude
that in order to protect the integrity of and respect for the judiciary, the
application of the Commission should be granted and a thirty-day
suspension without pay should be imposed upon Judge Dean.            Judge
Dean is entitled to no compensation during the course of the disciplinary
suspension, except for fringe benefits. In order to allow for the orderly
transition of judicial business, the suspension shall take effect seven
days after the entry of this opinion.
      IV. Conclusion.
      For the above reasons, we grant the application and hold that
Judge Dean should be suspended from her judicial position for a period
of thirty days without pay, except for fringe benefits.    The suspension
shall commence on September 20, 2014.
      APPLICATION GRANTED; JUDICIAL OFFICER SUSPENDED.
