              IN THE SUPREME COURT OF IOWA
                             No. 15–2008

                          Filed April 8, 2016

                       Amended June 21, 2016


IN THE MATTER OF THE INQUIRY CONCERNING JOSEPH SEVCIK,
Judicial Magistrate, First Judicial District.



     On application of the Iowa Commission on Judicial Qualifications.



     Commission on judicial qualifications filed application to discipline

part-time judicial magistrate for misuse of expunged court files.

APPLICATION GRANTED; JUDICIAL OFFICER REPRIMANDED.



     Thomas J. Miller, Attorney General, and Kevin Cmelik and Grant

Dugdale, Assistant Attorneys General, for complainant.



     Joseph R. Sevcik, Cedar Falls, pro se.
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CADY, Chief Justice.

      The    Iowa   Commission     on       Judicial   Qualifications   filed   an

application for imposition of discipline against a part-time judicial

magistrate for misuse of expunged files.          The Commission found the

magistrate violated the Iowa Code of Judicial Conduct and recommended

he be publicly reprimanded. We grant the application and agree on our

review that the appropriate sanction for the magistrate’s conduct is a

public reprimand.

      I. Factual and Procedural Background.

      Joseph Sevcik has served as a part-time magistrate in Black Hawk

County for nearly ten years. He has also practiced law in Iowa for more

than twenty-five years and maintains a law office in Cedar Falls.               We

have never disciplined Magistrate Sevcik as a judicial officer or as an

attorney.

      On November 5, 2013, Magistrate Sevcik, acting in his capacity as

a private attorney, represented a client in district court for a hearing on a

motion for temporary placement of a child.             Prior to the hearing, he

retrieved four criminal and six domestic abuse court files from the office

of the clerk of court. He had notified the clerk of court in advance that

he wanted the files and intended to ask the judge to take judicial notice

of the contents of the files during the course of the hearing. Magistrate

Sevcik was uncertain whether he was on duty as a magistrate when he

requested the files, but was not on duty when he retrieved them from the

clerk’s office.   He knew two of the criminal files included deferred

judgments and had been expunged.                These files were marked as

expunged.     He understood the expunged files contained confidential

documents and were only available to specific persons and agencies,

including magistrates. Iowa Code §§ 907.4(2), .9(4)(b) (2013). Magistrate
                                      3

Sevcik believed the district judge presiding over the hearing could take

judicial notice of all the files, and he requested such judicial notice

during the hearing, placing them on the courtroom bench. In addition,

Magistrate Sevcik used a document from one of the expunged files to

impeach a witness during the hearing.

      The Commission found Magistrate Sevcik violated two of the

canons of judicial conduct with his actions. Specifically, the Commission

pinpointed rules 51:1.1, compliance with the law; 51:1.2, promote

independence, integrity, and impartiality of the judiciary while avoiding

impropriety; 51:1.3, abuse of judicial office to advance personal or

economic interests of the judge or others; and 51:3.5, intentional use of

nonpublic information for a purpose unrelated to judicial duties.

      The Commission recommended Magistrate Sevcik be publicly

reprimanded. It relied on his candidness, his admission he should not

have requested or used the files, and his lack of prior discipline to

mitigate   his   conduct.     Magistrate    Sevcik   requested    a   private

admonishment rather than a public reprimand.

      II. Scope of Review.

      It is our duty to discipline judicial officers for conduct violating the

canons of judicial ethics.    Iowa Code § 602.2106(3)(b); see also Iowa

Const. art. V, § 19. We review recommendations for judicial discipline

de novo.   In re Block, 816 N.W.2d 362, 364 (Iowa 2012).         “The ethical

violation of a judge must be established by a convincing preponderance

of the evidence.” In re Dean, 855 N.W.2d 186, 191 (Iowa 2014).

      III. Violations.

      The Iowa Code of Judicial Conduct applies to both judges and

part-time magistrates, with some exceptions. See Iowa Code of Judicial

Conduct ch. 51, Application I, III. The exceptions recognize the leeway
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needed for magistrates to balance their duties and responsibilities in the

practice of law with the essential attributes of judicial service.       The

exceptions carve out conduct relating to the judicial restrictions

governing the practice of law, select extrajudicial activities, and public

statements concerning pending and impending cases when not serving

as a judge. Id. Application III. Otherwise, the same canons of conduct

applicable to Iowa judges apply to magistrates.             Additionally, the

applicable canons and rules apply to magistrates even when they are

wearing the hat of an attorney. In that respect, attorney-magistrates in

Iowa can be required to navigate through a host of challenges presented

by these dual ethical obligations. They must be vigilant of both sets of

rules and be cognizant of the critical importance of upholding both sets

of standards.

      The conduct of Magistrate Sevcik at issue in this case boils down

to his actions in requesting and receiving two confidential court files from

a clerk of court, followed by his subsequent use of one of the files during

his cross-examination of a witness in a hearing before the district court

in which he represented a party in the case. The question is whether his

conduct violated rules 51:1.1, 51:1.2, 51:1.3, or 51:3.5.

      A. Rule 51:1.1. Rule 51:1.1 provides that “[a] judge shall comply

with the law, including the Iowa Code of Judicial Conduct.” Id. r. 51:1.1.

Read in the context of the broader canon sought to be upheld and

promoted by rule 51:1.1, the rule addresses noncompliance with laws

that would undermine the independence, integrity, and impartiality of

the judiciary or project impropriety.      See id. Canon 1.         The rule

specifically identifies the code of judicial conduct as a part of the laws

covered by the rule, but not to make a violation of another judicial

conduct rule a separate violation of its provisions. Cf. Iowa Supreme Ct.
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Att’y Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 769 (Iowa 2010)

(“The purpose, however, of including [a rule requiring compliance with]

the Iowa Rules of Professional Conduct is to give notice to attorneys that

they are subject to discipline for violating the rules. The purpose of [the

rule] was not to create a separate violation.” (Citation omitted.)). Instead,

this portion of the rule clarifies that all judges must comply with the

rules of judicial conduct. See Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 889–90, 129 S. Ct. 2252, 2266–67, 173 L. Ed. 2d 1208, 1225–26

(2009) (indicating the integrity of the judiciary and the rule of law must

be upheld by all judicial officers). Thus, we must consider if the conduct

of Magistrate Sevcik constituted noncompliance with the law.           If his

conduct violated the law, we must further consider if the violation

undermined the fundamental attributes of the judiciary sought to be

protected by Canon 1.

      Under the law, a criminal record of a deferred judgment is

expunged following discharge from probation and payment of all financial

obligations. Iowa Code § 907.9(4)(b). The record is then segregated by

the clerk of court in a secure area or database exempt from public

access.   Id. § 907.1(3).   The file becomes a confidential record exempt

from public access under the open records law, but is available upon

request to those agencies or persons granted access to the deferred

judgment docket under section 907.4.         Id. § 907.9(4)(b).   A judicial

magistrate is a person given access to the deferred judgment docket. Id.

§ 907.4(2).   The statute does not impose a further requirement that

access be limited to purposes related to judicial duties.           Thus, a

magistrate in Iowa may request and is entitled to access expunged files

containing a deferred judgment.
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      As a result, Magistrate Sevcik did not violate the law by requesting

and gaining access to the two expunged criminal files. Furthermore, the

Commission did not identify any law he violated by using one of the

expunged files other than rule 51:3.5, involving the disclosure or use of

nonpublic information for purposes unrelated to judicial duties.         See

Iowa Code of Judicial Conduct r. 51:3.5. We conclude Magistrate Sevcik

did not violate rule 51:1.1 and separately consider whether he violated

rule 51:3.5.

      B. Rule 51:3.5.     Rule 51:3.5 provides that “[a] judge shall not

intentionally disclose or use nonpublic information acquired in a judicial

capacity for any purpose unrelated to the judge’s judicial duties.”       Id.

Two records obtained by Magistrate Sevcik had been expunged.            They

contained nonpublic information only available to Magistrate Sevcik

because of his status as a magistrate.           See Iowa Code §§ 907.4(2),

.9(4)(b). As such, the files constituted nonpublic information acquired in

his judicial capacity.   The remaining question is whether there was

evidence of intentional disclosure or use of the information for a purpose

unrelated to the judicial duties of the judge.

      Magistrate Sevcik violated rule 51:3.5.        The record supports a

finding that he intentionally disclosed and used information in the

expunged files for purposes totally unrelated to his duties as a

magistrate. This intentional conduct was most evidenced in his use of

one of the files to cross-examine a witness. Additionally, he acquired the

files from the clerk of court for purposes unrelated to his judicial duties.

      C. Rule 51:1.2. Rule 51:1.2 requires judges to act “in a manner

that promotes public confidence in the independence, integrity, and

impartiality of the judiciary, and . . . avoid impropriety and the

appearance of impropriety.”     Iowa Code of Judicial Conduct r. 51:1.2.
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“ ‘Integrity’     means       probity,       fairness,    honesty,   uprightness,        and

soundness of character.”             Id. Terminology.           “Impropriety” includes

“conduct        that    undermines       a     judge’s    independence,     integrity,    or

impartiality.”         Id.   The rule focuses on conduct of a judge, not the

subjective intent of the judge.               In re Krull, 860 N.W.2d 38, 45 (Iowa

2015).

       A judge who acquires nonpublic information in a judicial capacity

and uses the information for purposes unrelated to the judge’s judicial

duties    can      undermine       the       judge’s     independence,    integrity,     and

impartiality. Here, the conduct by Magistrate Sevcik was in the nature of

abuse of power and projected a willingness to misuse judicial authority

to benefit his private practice of law. In this case, the violation of rule

51:3.5 also constituted a violation of rule 51:1.2.

       D. Rule 51:1.3. Rule 51:1.3 provides, “A judge shall not abuse

the prestige of judicial office to advance the personal or economic

interests of the judge or others, or allow others to do so.” Iowa Code of

Judicial Conduct r. 51:1.3. A violation of the rule first requires conduct

that abuses “the prestige of judicial office.” Id. A judgeship is commonly

viewed with prestige in society, and a judge must avoid purposely using

that prestige to gain special treatment or favoritism. As with the misuse

of judicial authority, misuse of the prestige of judicial office can

undermine the essential and fundamental qualities of a judge.                          In re

Meldrum, 834 N.W.2d 650, 653 (Iowa 2013) (noting previously found

abuses of prestige included selling private merchandise in chambers and

identifying self as a judge in advertisement for private attorney services);

In re Harned, 357 N.W.2d 300, 302 (Iowa 1984) (using judicial letterhead

for a letter to other magistrate judges about daughter’s traffic ticket);

Charles Gardner Geyh, et al., Judicial Conduct and Ethics § 2.13, at 2-54
                                        8

to -64 (5th ed. 2013) (listing many possible abuses, including influencing

judicial   proceedings    for   self   or   others,   evading   traffic   tickets,

recommendation abuses, and testifying before a jury).            As one judge

described it, this rule covers any “judge who in any manner gratuitously

interjects his or her judicial status in nonofficial dealings with law

enforcement officials, school officials, insurance agents, neighbors,

judges, or anyone else,” either through a specific request for favorable

treatment or when exploitation of the office can be inferred from the

circumstances.     Raymond J. McKoski, Judicial Discipline and the

Appearance of Impropriety: What the Public Sees Is What the Judge Gets,

94 Minn. L. Rev. 1914, 1970–71 (2010).

      Yet, the rule recognizes that a violation requires the judge to

engage in conduct that shows the judge is using or attempting to use the

prestige of office. The lynchpin of the rule is judicial complicity.

      In this case, there was insufficient evidence presented that

Magistrate Sevcik projected the prestige of his office to gain access to the

expunged records or sought to use the prestige of his office.             To the

contrary, the clerk of court viewed the request by Magistrate Sevcik as

any other request by a judge. Magistrate Sevcik did not display or use

his prestige of his judicial position to gain access, and the clerk

considered Magistrate Sevcik to be exercising his legal authority to

obtain the records.      Thus, his conduct did not constitute an abuse of

prestige, but an abuse of authority previously addressed by rule 51:3.5.

      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

from further excesses.” In re McCormick, 639 N.W.2d 12, 16 (Iowa 2002).
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“The public must be protected, others must be deterred from similar

misconduct, and confidence in the judiciary must be vindicated.” In re

Eads, 362 N.W.2d 541, 551 (Iowa 1985).         As with attorney discipline

cases, we do not have a standard sanction, but instead look to several

factors to impose the appropriate sanction for each individual case. In re

Meldrum, 834 N.W.2d at 654. These factors include,

      (a) whether the misconduct is an isolated instance or
      evidenced a pattern of [mis]conduct; (b) the nature, extent
      and frequency of occurrence of the acts of misconduct;
      (c) whether the misconduct occurred in or out of the
      courtroom; (d) whether the misconduct occurred in the
      judge’s official capacity or in his [or her] private life;
      (e) whether the judge has acknowledged or recognized that
      the acts occurred; (f) whether the judge has evidenced an
      effort to change or modify his [or her] conduct; (g) the length
      of service on the bench; (h) whether there have been prior
      complaints about this judge; (i) the effect the misconduct has
      upon the integrity of and respect for the judiciary; and (j) the
      extent to which the judge exploited his [or her] position to
      satisfy [any] personal desires.

In re McCormick, 639 N.W.2d at 16 (alteration in original) (quoting In re

Deming, 736 P.2d 639, 659 (Wash. 1987) (en banc)). We also consider

the sanctions imposed in similar cases. In re Krull, 860 N.W.2d at 46.

      We have not been presented with a judicial discipline case similar

to the facts of this case. In a recent judicial discipline case involving a

part-time magistrate who failed to recuse himself from signing warrants

due to a conflict of interest, however, we imposed a public reprimand. Id.

at 49–50. In a case in which a magistrate advertised his services as an

attorney while noting he served as a magistrate, we again imposed a

public reprimand.    In re Meldrum, 834 N.W.2d at 654.       We have also

imposed a public reprimand on a judge convicted of operation of a

vehicle while intoxicated.   In re Block, 816 N.W.2d at 366.       We also

publicly reprimanded a judge who participated in political activities and
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subsequently made a false statement to the Commission regarding those

activities. In re McCormick, 639 N.W.2d at 17–18.

       On the other hand, violations that harm public confidence in a

more severe way, such as intoxication while in the courtroom and

carrying on a campaign against a local attorney, have merited

suspensions. In re Dean, 855 N.W.2d at 188, 194 (imposing a thirty-day

suspension for holding court while intoxicated); In re Eads, 362 N.W.2d

at 551 (imposing a sixty-day suspension for “institut[ing] and then

carr[ying] on an inexcusable campaign against a lawyer”). We have also

suspended a judge for using her office to request leniency for her

daughter’s speeding ticket.        In re Harned, 357 N.W.2d at 301–03

(imposing a four-day suspension for using official stationery to write a

letter and calling other magistrates to discuss her daughter’s speeding

ticket).

       The Commission recommended a public reprimand.           Magistrate

Sevcik has requested a private admonishment.          “Where a violation

involves conduct that is negligent in nature, with little known injury, an

admonition or a private reprimand is normally appropriate.           In re

McCormick, 639 N.W.2d at 17. But as we have noted before, “[o]nce we

grant an application in whole or in part, we are required to issue a

decree.    This decree is made public.”   In re Block, 816 N.W.2d at 366

(footnote omitted). Last year in In re Krull, we considered the possibility

of a public admonition as an intermediate sanction between a private

admonition and a public reprimand, noting the option was available if

appropriate although we had never issued a public admonition in a

judicial discipline application.   860 N.W.2d at 48 & n.4.    “We employ

professional admonitions not so much by way of criticism as to

instruct . . . .”   Comm. on Prof’l Ethics & Conduct v. Liles, 430 N.W.2d
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111, 113 (Iowa 1988); see also In re Krull, 860 N.W.2d at 48.

Admonitions do not amount to discipline, but signal we do not condone

the conduct giving rise to the complaint. See 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. Zimmermann, 522 N.W.2d 619, 621

(Iowa 1994).

      It is unnecessary for us to decide if we should adopt a public

admonition as a form of judicial discipline. Considering the nature of the

conduct, this case does not present a need for us to provide instruction

to magistrates on how to use their authority to access expunged records.

The misuse of authority in this case was not the result of a

misunderstanding, but a clear violation of the rule against using judicial

authority for purposes unrelated to the work of a magistrate.

      We agree with the Commission that a public reprimand is the

appropriate sanction.   It meets the goals of imposing sanctions and is

supported by the relevant circumstances in the case.

      V. Conclusion.

      We find Magistrate Joseph Sevcik violated Canons 1 and 3 of the

Iowa Code of Judicial Conduct as well as rules 51:1.2 and 51:3.5. We

reprimand Magistrate Sevcik for his conduct.

      APPLICATION GRANTED; JUDICIAL OFFICER REPRIMANDED.
