                                                                2018 WI 68

                  SUPREME COURT               OF    WISCONSIN
CASE NO.:                2017AP1735-J
COMPLETE TITLE:          In the Matter of Judicial Disciplinary
                         Proceedings Against the Honorable Frank M.
                         Calvert.

                         Wisconsin Judicial Commission,
                                   Complainant,
                              v.
                         The Honorable Frank M. Calvert,
                                   Respondent.

                            JUDICIAL DISCIPLINARY PROCEEDINGS AGAINST
                                             CALVERT

OPINION FILED:           June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the complainant, there was a brief filed by Jeremiah
Claude-Benedict Van Hecke and the Wisconsin Judicial Commission,
Madison.
       For    the       respondent,   there   was   a   brief   filed   by   The
Honorable Frank M. Calvert.
                                                                       2018 WI 68
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2017AP1735-J


STATE OF WISCONSIN                           :            IN SUPREME COURT

In the Matter of Judicial Disciplinary
Proceedings Against the Honorable
Frank M. Calvert:

Wisconsin Judicial Commission,                                      FILED
              Complainant,                                     JUN 15, 2018
      v.                                                          Sheila T. Reiff
                                                               Clerk of Supreme Court
The Honorable Frank M. Calvert,

              Respondent.




      JUDICIAL disciplinary proceeding.             Commissioner suspended

from office.


      ¶1      PER   CURIAM.   We   review,   pursuant         to     Wis.     Stat.

§ 757.91 (2015-16),1 a Judicial Conduct Panel's findings of fact,


      1
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated. Wisconsin Stat.
§ 757.91 provides:

           The supreme court shall review the findings of
      fact, conclusions of law and recommendations under s.
      757.89 and determine appropriate discipline in cases
      of misconduct and appropriate action in cases of
                                                     (continued)
                                                                No.     2017AP1735-J



conclusions of law, and recommendation for discipline for the

Honorable Frank M. Calvert, a court commissioner for the Oconto

County Circuit Court.     We conclude that a 15-day suspension is

the appropriate discipline for Commissioner Calvert's judicial

misconduct.

    ¶2   Commissioner     Calvert       has   been     a        circuit      court

commissioner for Oconto County for 19 years.                He has not been

the subject of any prior disciplinary action by the Wisconsin

Judicial Commission.

    ¶3   The   Judicial    Commission     filed    a   complaint           against

Commissioner Calvert on September 8, 2017, alleging that he had

engaged in judicial misconduct by his actions, described below,

in presiding over an action seeking a harassment injunction.

    ¶4   Commissioner Calvert did not file an answer to the

complaint, which led the Judicial Commission to file a motion

for default judgment.     On January 2, 2018, Commissioner Calvert

filed a letter with this court stating that he did not contest

the facts alleged in the complaint.
    ¶5   Consistent     with   an   order     issued       by     the     Judicial

Conduct Panel, the parties filed briefs on the issue of the

appropriate discipline to be imposed.             After receiving these

briefs, the Judicial Conduct Panel made findings of fact based

on the uncontested allegations of the complaint.                  On the basis


    permanent disability.   The rules of the supreme court
    applicable to civil cases in the supreme court govern
    the review proceedings under this section.


                                    2
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of those facts, the Judicial Conduct Panel made conclusions of

law and recommended that this court suspend Commissioner Calvert

for   no       fewer    than       five    and     no     more        than        15    days.         This

recommendation              exceeded        the         disciplinary                sanction          that

Commissioner Calvert suggested in his brief to the panel and in

his January 2, 2018 letter to the court:                                     a reprimand.              The

panel's         recommendation            more     closely            followed         the      sanction

proposed by the Judicial Commission, which suggested discipline

ranging from a reprimand to a short suspension.

      ¶6         The facts giving rise to the complaint are as follows.

In September 2015, Commissioner Calvert received and reviewed a

petition        for     a   harassment           injunction           and     a     request        for    a

temporary        restraining         order        filed      by       the     attorney          for      the

petitioners against the respondents, who were the petitioners'

next-door neighbors.                This legal action was part of an ongoing

dispute         between      the     petitioners             and       the        respondents.         The

petitioners alleged that the respondents had engaged in repeated

harassment of the petitioners, including pointing surveillance
cameras at the petitioners' house to record the petitioners'

conduct.

      ¶7         Before     holding        any    hearing          or    deciding            whether     to

grant      the    petitioners'            request       for       a     temporary            restraining

order, Commissioner Calvert, on his own initiative, went to the

City of Oconto Police Station and spoke with the City of Oconto

Police         Chief    concerning          the        allegations           in        the     petition.

Commissioner           Calvert     asked     for       and    obtained            from       the   police
chief      a     summary       regarding          the     history            of     complaints           and
                                                   3
                                                                             No.     2017AP1735-J



conflicts between these neighbors and their contacts with the

Oconto Police Department over the years.                          The police chief told

Commissioner       Calvert     that       he       had    visited       the        respondents'

residence    and       that   there       were       no    cameras       pointed        at     the

petitioners' property.

    ¶8      Commissioner           Calvert         also    reviewed          the     neighbors'

"contact    file"      kept    by    the     Oconto        Police      Department,           which

included    statements        of    police      relating         to    the    conflict,        and

asked the police chief if there was any basis for a citation to

be issued.       None of the parties to the case or the petitioners'

attorney    was    present     for     Commissioner              Calvert's         conversation

with the police chief or given advance notice of it.

    ¶9      Commissioner Calvert denied the petitioners' request

for a temporary restraining order.                        In doing so, he considered

the information provided by the police chief and contained in

the police "contact file" regarding the neighbors.

    ¶10     At    an    injunction        hearing         held    on   October        1,     2015,

Commissioner Calvert heard the testimony of several witnesses
and arguments from both sides.                     Commissioner Calvert denied the

injunction request.           Before announcing his ruling, Commissioner

Calvert did not disclose to the parties or the petitioners'

attorney    his    contact     with       the      police    chief       or    that     he     had

reviewed the police "contact file."

    ¶11     After      denying      the    injunction            request,          Commissioner

Calvert made the following statements:

         What is going to happen, though, is that anything
    between these two neighbors is going to stop as of

                                               4
                                                No.   2017AP1735-J


    today. Period. End of story. And how it's going to
    stop is this:    I've already talked to [the police]
    chief [ . . . ] as of yesterday.      What's going to
    happen is, if you call the Oconto Police Department,
    or the Sheriffs Department, or, you call them, they
    are going to come out, they are not going to have to
    listen as to what took place because if they get
    called out to either of your places, complaining about
    each other, what's going to happen—they're going to
    issue mutual disorderly conduct tickets. So, I don't
    care who calls. You call, either of you call, they are
    going to come out, they are going to issue a
    disorderly conduct to you and they are going to issue
    a disorderly conduct to you. Alright?

         Now, if you wish to take that ticket into
    municipal court, and argue about whether you were
    disorderly or not, go ahead because I've already
    talked to [the municipal judge] in Oconto [ . . . ]
    and I've told him the problem with this situation,
    enough   is    enough,  it's   been   going   on   for
    twelve/thirteen years, I'm putting an end to it, and I
    told him, "I don't care what either one of you say."
    He's going to find you guilty and issue you a fine.
    He knows that, he's with it, he's tired of it, the
    Police Department's tired of it, alright? If you want
    to de novo his decision, which you have a right to
    do[,] under the statute[,] upon finding you guilty,
    that's fine because it'll get de novo'd and it'll get
    de novo'd up here to me and guess what's going to
    happen? I'm going to uphold it and you're both going
    to pay a fine.

         Now, with regard to a court commissioner, you
    have a right to de novo that, too.   Go ahead because
    I'm gonna tell either one of these circuit court
    judges, "Enough is enough. This is how we're going to
    handle it." I want nothing further going on.
    ¶12   In fact, Commissioner Calvert had not, as he told the

parties, directed the police chief to issue mutual disorderly

conduct citations to the neighbors regardless of fault, and he

had not, as he told the parties, directed the local municipal




                               5
                                                                          No.     2017AP1735-J



judge (who would handle any citations) to find the neighbors

guilty regardless of fault.

      ¶13    After pronouncing his ruling, but before the hearing

concluded, Commissioner Calvert admitted to the parties that the

police chief had previously told Commissioner Calvert that he

had visited the respondents' residence and looked for cameras,

and   believed    that       there    had     been      no     cameras    pointed      at    the

petitioners' property.

      ¶14    No   party        sought       de       novo     review     of     Commissioner

Calvert's decision denying the injunction.

      ¶15    Subsequent         to      the           October     1,      2015      hearing,

Commissioner      Calvert       advised       the       person    he     regarded      as    his

senior circuit court judge of his post-ruling comments to the

parties, acknowledged to this judge that his comments had gone

"beyond the normal course of action," and indicated that he

intended all of his conduct in the case only to end a long

standing neighbor conflict.

      ¶16    After his handling of the injunction case in October
2015,    Commissioner         Calvert       has       three     times    (annually)         been

reappointed as a court commissioner.

      ¶17    The complaint alleged, and the Judicial Conduct Panel

concluded,      that    by     initiating            contact    and     then    speaking     in

detail   with     the   City     of     Oconto         Police    Chief,       obtaining     the

police chief's summary of the complaints and conflicts between

the   parties     to    the    injunction            action,     reviewing       the   police

"contact file," and being informed by the chief that no cameras
had   been   pointed      at    the     petitioners'            property,       Commissioner
                                                 6
                                                                       No.       2017AP1735-J



Calvert     violated      SCR 60.04(1)(g),2           which      prohibits         judicial

officials      from      initiating,         permitting,         engaging          in,    or

considering ex parte communications concerning pending actions

or proceedings.

    ¶18     The       complaint       alleged    further,        and       the     Judicial

Conduct Panel concluded, that by initiating contact and then

speaking    in       detail    with    the   City     of    Oconto      Police       Chief,

obtaining      the    police     chief's     summary       of   the    complaints        and

conflicts      between        the     parties    to    the       injunction         action,

reviewing the police "contact file," and being informed by the

chief   that     no    cameras      had   been   pointed        at   the     petitioners'

property, Commissioner Calvert violated SCR 60.04(1)(g), which




    2
        SCR 60.04(1)(g) provides:

         A judge may not initiate, permit, engage in or
    consider ex parte communications concerning a pending
    or impending action or proceeding except that:

         1. A judge may initiate, permit, engage in or
    consider ex parte communications for scheduling,
    administrative purposes or emergencies that do not
    deal with substantive matters or issues on the merits
    if all of the following conditions are met:

         a. The judge reasonably believes that no party
    will gain a procedural or tactical advantage as a
    result of the ex parte communication.

         b. When the ex parte communication may affect the
    substance of the action or proceeding, the judge
    promptly notifies all of the other parties of the
    substance of the ex parte communication and allows
    each party an opportunity to respond.


                                             7
                                                                       No.     2017AP1735-J



prohibits      judicial       officials        from    independently     investigating

facts in a case.

       ¶19     The    complaint        alleged        further,   and     the     Judicial

Conduct Panel concluded, that by telling the parties, falsely,

that he had convinced local law enforcement and the municipal

court      judge     to    agree    that   any     further   police     calls     to   the

neighbors      would       result    in    disorderly     conduct      tickets    to   all

involved,       which       would   be     sustained     throughout      the     judicial

system regardless of the circumstances; telling the parties that

he himself in his official capacity would sustain such tickets,

regardless of the circumstances; and telling the parties that he

planned to convince the county circuit court judges to sustain

such       tickets,       regardless      of   the     circumstances,        Commissioner

Calvert violated his obligation, pursuant to SCR 60.03(1),3 to

act at all times in a manner that promotes public confidence in

the integrity and impartiality of the judiciary, and further

violated his obligation, pursuant to SCR 60.02,4 to participate

       3
       SCR 60.03(1) provides: "A judge shall respect and comply
with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary."
       4
           SCR 60.02 provides:

            An   independent   and  honorable   judiciary   is
       indispensable to justice in our society. A judge
       should participate in establishing, maintaining and
       enforcing   high   standards  of  conduct   and   shall
       personally observe those standards so that the
       integrity and independence of the judiciary will be
       preserved. This chapter applies to every aspect of
       judicial behavior except purely legal decisions. Legal
                                                        (continued)
                                               8
                                                                            No.        2017AP1735-J



in establishing, maintaining, and enforcing high standards of

conduct and to personally observe those standards.

          ¶20    The    Judicial     Conduct         Panel    concluded         that     each   of

these         violations    was     willful      and     thus    constituted             judicial

misconduct under Wis. Stat. § 757.81(4)(a).5

          ¶21    We     adopt      the     panel's       undisputed             findings        and

conclusions of law.               We therefore turn to the question of the

appropriate discipline for the misconduct.

          ¶22    In     imposing        discipline——which            may    be     reprimand,

censure, suspension, or removal——we must bear in mind that the

goal of judicial discipline is not to punish the erring judge,

but to protect the public from unacceptable judicial behavior,

considering both the seriousness of the judge's misconduct and

the       likelihood      that     it    would       recur.      See       In     re     Judicial

Disciplinary Proceedings Against Crawford, 2001 WI 96, ¶38, 245

Wis. 2d 373, 629 N.W.2d 1.                   The sanction that we impose must

also "convey to the public the gravity with which this court

views judicial misconduct."                 Id. at ¶39.           We impose discipline
on    a       de novo   basis,     benefitting         from    but    not       bound     by    the

panel's recommendation.                 See id. at ¶38.

          ¶23    In recommending a suspension between five and 15 days,

the Judicial Conduct Panel found both mitigating and aggravating

          decisions made in the course of judicial duty on the
          record are subject solely to judicial review.
          5
       Wisconsin Stat. § 757.81(4)(a) states that misconduct
includes "[w]illful violation of a rule of the code of judicial
ethics."


                                                 9
                                                                         No.     2017AP1735-J



factors.     On the mitigating side, these were isolated instances

of misconduct.       Commissioner Calvert has not been the subject of

any     prior     disciplinary     action        by        the   Wisconsin         Judicial

Commission over his 19-year career as a court commissioner.                                He

has been reappointed as a court commissioner three times since

the misconduct.        He recognized his comments at the hearing were

unusual and acknowledged as much by reporting the matter to a

circuit court judge.          The end goal of his misconduct was not to

satisfy personal desires or receive any personal benefit.

      ¶24    On the aggravating side, the Judicial Conduct Panel

noted    that     Commissioner    Calvert's        misconduct         occurred      in    his

capacity as a representative of the judicial system, both inside

and outside of the courtroom.                 The panel further noted that, in

Commissioner Calvert's brief on sanctions filed with the panel,

he repeatedly asserted that the goal of his conduct was to end a

long-standing dispute between neighbors, which suggests that he

lacks    insight     regarding     the     need       to    change       or    modify     his

conduct.     His misconduct also has a substantial negative impact
on    the   integrity    of      and    the     public's         perceptions        of    the

independence of the judiciary.

      ¶25    The    Judicial     Conduct       Panel       cited     a    case     that    it

thought     was    particularly        analogous      to     this     matter:        In    re

Judicial        Disciplinary       Proceedings              Against       Carver,         192

Wis. 2d 136, 531 N.W.2d 62 (1995).                 In Carver, we imposed a 15-

day suspension as a result of on-the-record comments that a

judge made in the course of disqualifying himself at the initial
appearance of a defendant——a friend of the judge——who had been
                                          10
                                                                            No.     2017AP1735-J



charged with illegal sports gambling.                          In those comments, the

judge   minimized        the      seriousness          of      the     offense        charged;

questioned the legitimacy of the investigation and prosecution

in the case before him and in other cases of sports gambling

pending in other circuit court branches; and suggested to the

public and to his fellow judges that minimum sentences should be

imposed for such crimes.            The judge also lied when he stated on

the record that he had not been contacted by the defendant; the

judge   in   fact     had    received         two    letters         from    the     defendant

pertaining    to     the    pending       case.           We    wrote       that     "[i]t    is

essential to the proper functioning of our judicial system that

its participants and the public be assured of the objectivity

and impartiality of its judges."                    Id. at 138.        We concluded that

Judge        Carver's            "aggravated              failure            to        conduct

himself . . . impartially,                objectively[,]               and         truthfully"

warranted a 15-day suspension from judicial office.                                Id. at 155.

Analogizing Carver to the facts of the instant case, the panel

reasoned that like Judge Carver, Commissioner Calvert made on-
the-record        statements      that        were    false      and        that     exhibited

partiality.        The panel recommended that a suspension similar to

that imposed in Carver should be imposed here, with the length

ranging from five to 15 days.

      ¶26    We    agree    with    the        Judicial        Conduct       Panel     that    a

suspension is in order, and we conclude that a length of 15 days

is   appropriate.          The    misconduct         in   this       case    is     undeniably

serious.      As we stated in Carver, a judge's objectivity and
impartiality       are   critical        to    the    proper         functioning       of    the
                                              11
                                                                      No.   2017AP1735-J



judicial system.            Commissioner Calvert's behavior was far from

objective      and    impartial.        He     independently         investigated     the

facts of a case pending before him——an effort that included

engaging in an ex parte communication with the police chief.                          He

then lied to the parties in a particularly manipulative manner,

falsely claiming that he had communicated with individuals in

the judicial and law enforcement systems in such a way that the

parties were doomed to failure and future legal troubles should

they    ever     seek      additional   recourse.             We   cannot   abide   such

assurances by a judge to rig the judicial and criminal justice

systems against its participants.

       ¶27     We   are    also    troubled,      as    was    the   Judicial     Conduct

Panel, by Commissioner Calvert's argument to the panel that "it

is difficult to understand how either party to this matter may

have questioned fair treatment in this case when a rehearing of

the     matter       was    an    available       alternative        and    was     never

requested."          This argument strongly suggests that Commissioner

Calvert lacks insight into his own misconduct; it is no surprise
the parties did not seek a de novo hearing of his decision given

his assurance that he would see to it that any such effort would

fail.     In other words, Commissioner Calvert's argument seeks a

reward for his asserted willingness to tilt the playing field

against the parties.             No reward will be forthcoming here.

       ¶28     Ultimately, we conclude that the appropriate sanction

is a suspension from judicial office for a period of 15 days.

This period is an adequate reflection of the seriousness of
Commissioner        Calvert's      actions,       and   is    necessary     to    promote
                                             12
                                                      No.    2017AP1735-J



public confidence in the soundness of the judicial system.            It

is also consistent with our past precedent.         We are confident

that a 15-day suspension will impress upon Commissioner Calvert

the   fundamental   requirements    of   judicial   office   and    will

demonstrate to the public our dedication to preserving judicial

integrity.

      ¶29   IT IS ORDERED that the Honorable Frank M. Calvert is

suspended from the office of circuit court commissioner without

compensation and prohibited from exercising any of the powers or

duties of a circuit court commissioner in Wisconsin for a period

of 15 days, commencing July 16, 2018.




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    No.   2017AP1735-J




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