                        SUPREME COURT OF ARIZONA
                               In Division


HON. MICHAEL K. CARROLL           )           Arizona Supreme Court
(Retired),                        )           No. CV-07-0066-SA
                                  )
                      Petitioner, )           Commission on Judicial
                                  )           Conduct
                 v.               )           Nos. 1181310617A
                                  )                1181310617B
COMMISSION ON JUDICIAL CONDUCT,   )
                                  )
                      Respondent. )
                                  )           O P I N I O N
__________________________________)


     Special Action from the Commission on Judicial Conduct

                     ORDER VACATED; REMANDED
________________________________________________________________

TIFFANY & BOSCO, P.A.                                               Phoenix
     By   James E. Padish
Attorneys for Michael K. Carroll

COMMISSION ON JUDICIAL CONDUCT                           Phoenix
     By   Linda Haynes, Disciplinary Counsel
Attorneys for Commission on Judicial Conduct
________________________________________________________________

B A L E S, Justice

¶1          Judges on Arizona state and local courts are subject

to disciplinary proceedings before the Commission on Judicial

Conduct    (“Commission”),     which    may   recommend   that   this   Court

impose    formal   sanctions   for     judicial   misconduct.     See   Ariz.

Const. art. 6.1.      We hold that Commission Rule 23(c) entitles a

judge, upon timely request, to a hearing when the Commission

itself imposes informal sanctions such as a public reprimand.
                          PROCEDURAL BACKGROUND

¶2        In March 2006, a judicial ethics complaint was filed

with the Commission against Judge Michael K. Carroll of the City

of Phoenix Municipal Court.           The complaint alleged that Judge

Carroll had inappropriately objected to the appointment of a new

assistant presiding judge for his court.             Judge Carroll filed a

written response denying any improper conduct and asking the

Commission to dismiss the complaint.

¶3        On     July   11,   2006,    the    Commission    issued    an    order

finding that Judge Carroll had violated the Code of Judicial

Conduct   and      imposing    an     informal    reprimand     pursuant      to

Commission Rule 17(a).        Judge Carroll filed a timely motion for

reconsideration or, in the alternative, for a formal hearing

under Commission Rules 23(b) and (c).             On October 3, 2006, the

Commission issued an amended order but denied Judge Carroll’s

request for a hearing.        Judge Carroll renewed his motion for a

hearing on October 13, 2006, and the Commission denied this

request on November 3, 2006.                Judge Carroll then filed this

special   action     challenging      the    Commission’s    denial    of    his

request for a hearing.

¶4        Our special action review is discretionary.                   Haywood

Sec., Inc. v. Ehrlich, 214 Ariz. 114, 115 ¶ 6, 149 P.3d 738, 739

(2007).     We     exercise   jurisdiction       here   because      this   case

presents a legal issue of statewide importance that is likely to


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recur.       Id.      Moreover, Judge Carroll has no “equally plain,

speedy, and adequate remedy by appeal,” Ariz. R.P. Spec. Act.

1(a), because informal sanctions are not subject to review by

this     Court,    R.      Comm’n       Judicial         Conduct       28(c).           We    have

jurisdiction pursuant to Article 6, Section 5(4), of the Arizona

Constitution and Arizona Rule of Procedure for Special Actions

4(a).

                                         DISCUSSION

¶5            Arizona regulates judicial conduct through a system

involving      both     this      Court     and         the      constitutionally-created

Commission.        See     Ariz.       Const.       art.      6.1;    R.   Comm’n       Judicial

Conduct pmbl.         The Commission performs “a central and essential

role    in    imposing      appropriate          judicial         discipline.”               In    re

Carpenter, 199 Ariz. 246, 248 ¶ 8, 17 P.3d 91, 93 (2001).                                         “On

recommendation        of    the    commission,”            this      Court     “may     censure,

suspend      without     pay      or    remove      a    judge       for   .    .   .    willful

misconduct in office, willful and persistent failure to perform

his duties, habitual intemperance or conduct prejudicial to the

administration of justice.”               Ariz. Const. art. 6.1, § 4(A).                          The

Constitution       does     not        itself       specify       procedural        rules         for

judicial      disciplinary         proceedings,            but    instead      directs        this

Court to make rules implementing the constitutional provisions.

Id. § 5; see also In re Nelson, 207 Ariz. 318, 320 ¶ 4, 86 P.3d

374, 376 (2004).


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¶6           Under the rules adopted by this Court, the Commission

investigates allegations of judicial misconduct upon receipt of

a written complaint or on its own motion.                                  R. Comm’n Judicial

Conduct 20.            Based on the investigation, “the commission may

issue an order dismissing the complaint.”                                Id. 23(a).         If there

is reasonable cause to proceed, the investigation may instead

result in the filing of formal charges.                                  Id. 24(a).         In that

event,    the     judge           who    is     the    subject      of    the     proceedings      is

entitled to discovery, id. 26; to a formal hearing at which the

judge may, among other things, “present evidence and produce and

cross-examine witnesses,” id. 27(f)(6); and to file a petition

requesting this Court to modify or reject any recommendation by

the     Commission           for        the    imposition      of        censure,     suspension,

removal, or retirement from office, id. 29(a), (c).

¶7           As        an        alternative          to   either        the     dismissal    of     a

complaint    or        the       filing       of   formal    charges,           the   Commission’s

rules    contemplate              that        an   investigation          may     result     in    the

imposition        of        an     “informal          sanction.”           Id.     23(a).         Such

sanctions are governed by Commission Rule 17, which provides:

        (a) Reprimand. The commission may reprimand a judge
        without   a  formal hearing  for  conduct  that  is
        unacceptable under one of the grounds for judicial
        discipline but that is not so serious as to warrant
        formal proceedings or further discipline by the
        supreme court.

        (b)   Other informal sanctions.   The commission may
        take any other informal action consistent with these


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        rules, including, but not limited to, the assessment
        of attorney fees and costs.

The Commission rules thus provide that “informal sanctions” may

be imposed based on the Commission’s investigation and without

any formal hearing.

¶8          The    imposition    of   informal      sanctions,       however,       has

significant consequences.         Such sanctions reflect a Commission

finding that the judge has violated the Code of Judicial Conduct

or otherwise committed acts deserving discipline.                        See id. 6,

17(a).     Consequently, a reprimand or other informal sanction may

be an aggravating factor that supports more severe disciplinary

action in future disciplinary proceedings.                   Id. 19(g) (noting

prior disciplinary action as factor for determining discipline);

In re Peck, 177 Ariz. 283, 289, 867 P.2d 853, 859 (1994) (noting

prior     reprimands     and   admonishments        as    aggravating          factor).

Moreover, once the proceedings are concluded, the Commission’s

finding of improper conduct and its resulting informal sanction

are made public.         R. Comm’n Judicial Conduct 9(a).                  Thus, the

imposition of such sanctions may affect the judge’s reputation

among other judges, the legal profession, and the public.

¶9          Within fifteen days after the issuance of an order

imposing    informal     sanctions,   the     affected      judge       “may    file   a

motion    for   reconsideration,      which    may       include    a    request       to

appear    before   the    commission.”        Id.    23(b).         Alternatively,



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within the same fifteen days, the judge may “file a request for

a hearing conducted pursuant to Rule 27.”        Id. 23(c).      Rule 27

is the rule governing formal hearings before the Commission.

¶10          The issue presented here is whether Commission Rule

23(c) entitles a judge, upon timely request, to a hearing in

connection     with    the   Commission’s   imposition   of     informal

sanctions.1    The Commission contends that the Rule merely allows

a judge to “request” a hearing, which it may grant or deny in

its discretion.       Judge Carroll argues that the Rule affords a

judge the right to a hearing, and thus the Commission erred by

denying his request.2

¶11          We conclude that Rule 23(c) affords a judge the right

to a hearing and not merely the right to ask for one to be

granted or denied at the Commission’s discretion.             Rule 23(b)

1
     Rule 23 was amended effective September 18, 2006 -- after
Judge Carroll requested a hearing in connection with the
Commission’s July 11 order but before he renewed his request in
response to the Commission’s October 3 amended order.        The
September 18 amendments clarified that a request for a formal
hearing is an alternative to a motion for reconsideration, while
the prior version of Rule 23 allowed the request to be in
addition to such a motion. Judge Carroll’s initial request was
governed by the January 20, 2006 version of Rule 23.
Nonetheless, because the September 18 amendments do not affect
whether the Judge was entitled to a hearing, we direct our
discussion to the current version of the Rule.
2
       Judge Carroll has not challenged, and we do not address,
the Commission’s general authority to impose informal sanctions,
which are not expressly authorized by Article 6.1 of the Arizona
Constitution.   Cf. In re Nelson, 207 Ariz. at 320-21 ¶ 8, 86
P.3d at 376-77 (recognizing this Court’s implied authority to
assess costs in judicial disciplinary proceedings).

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allows    a    judge        to    file        a       “motion”      for    reconsideration           and

directs the Commission to “promptly notify the judge and the

complainant of its decision.”                              In contrast, Rule 23(c) allows

the judge to request a hearing, and rather than suggesting that

the Commission may issue a “decision” granting or denying such a

request, the Rule states that such a hearing “shall be conducted

before the commission” itself.

¶12            Our conclusion also finds support from the fact that a

judge,    as       Commission          Rule       8    recognizes,         is    entitled       to   due

process       in        connection       with          disciplinary            proceedings.           As

explained          above,        the     imposition            of     an       informal     sanction

represents         a     Commission           finding         that       the    judge     has    acted

improperly; the sanction is made public and may lead to enhanced

sanctions          in     later        disciplinary            proceedings.              Under       the

Commission’s interpretation of Rule 23(c), these consequences

could result without the judge having any opportunity to appear

in    person       before     the       Commission            or    to     directly      present      or

confront evidence on disputed facts.                                This outcome would raise

potential due process issues, which are obviated by interpreting

Rule    23(c)       as     entitling          a       judge   to     a     hearing      upon    timely

request.       Cf. State v. Gomez, 212 Ariz. 55, 60 ¶ 28, 127 P.3d

873, 878 (2006) (declining to construe statute in a manner that

would raise serious constitutional questions).




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                                  CONCLUSION

¶13        Because   we   conclude     that     the   Commission    erred    in

denying Judge Carroll’s timely request for a hearing, we vacate

the   Commission’s   order   of    October     3,   2006,   and   remand   this

matter to the Commission for further proceedings.



                             ___________________________________
                             W. Scott Bales, Justice


CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Andrew D. Hurwitz, Justice




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