No. 81-114 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA ex rel. 

DANIEL J. SHEA, 

Appellant and Relator, 

THE JUDICIAL STANDARDS COMMISSION, and its Members, 

HON. A. B. MARTIN, Chairman; 

HON. L. C. GULBRANDSON, CARL M. DAVIS, 

GEORGE B. SCHOTTE, and JEAN R. ANDERSON, 

Respondents. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert J. Emmons argued, Great Falls, Montana 

For Respondents: 

Church, Harris, Johnson and Williams, Great Falls, Montana 

Douglas C. Allen, argued, Great Falls, Montana 

Submitted: October 23, 1981 

Decided: March 18, 1982 

Filed: MAR 18 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal by the relator, Daniel J. Shea, from 

an order of the District Court, First Judicial District, 

Lewis and Clark County, denying him a writ of prohibition, 

mandamus, review, or other appropriate writ, in relation to 

proceedings concerning him now pending before the Judicial 

Standards Commission. 

Daniel J. Shea is a justice sitting on the Montana 

Supreme Court. He was elected to his position on the Court 

in the general election of 1976, and after qualifying for 

the office as required by law, he assumed the duties and 

responsibilities of his office, and continues in that office 

to the present time. 

On December 28, 1979, the following document was issued 

by the Judicial Standards Commission, signed by all its 

members, and served upon Daniel J. Shea on December 31, 

"BEFORE THE JUDICIAL STANDARDS COMMISSION 

OF THE STATE OF MONTANA 

INQUIRY CONCERNING JUSTICE ) Notice of Partial 

) Dismissal, Complaint and 

DANIEL J. SHEA ) Notice of Institution of 

) Further Proceedings ....................................................... 

"TO: Justice Daniel J. Shea 

Associate Justice of the 

Supreme Court of Montana 

"You Are Hereby Notified that preliminary 

investigation has been completed concerning 

the charges made against you by the Judicial 

Standards Commission by that certain document 

entitled 'Notice of Preliminary Investigation', 

dated August 24, 1978. 

"As a result of that investigation the Commission finds: 

"1. The allegation that you willfully and 

persistently failed to perform your share of 
the work load is not supported by the current 

records of the Supreme Court. 

"2. That the allegation that you used your 

position as a Justice of the Supreme Court to 

intimidate some of your creditors is not supported 

by any evidence. 

"3. That good cause exists to institute further 

proceedings to determine if you have acted contrary 

to Canons 4 and 19 of the Canons of Judicial 

Ethics, resulting in 'conduct prejudicial to the 

administration of justice that brings the judicial 

office into disrespect.' (Rule 9 of the Rules of 

the Judicial Standards Commission.) 

"NOW, Therefore, It Is Hereby Ordered that the 

allegations referred to in paragraphs numbered (1) 

and (2), above, be dismissed and that further 

proceedings be instituted concerning the remaining 

charges contained in the 'Notice of Preliminary 

Investigation.' 

"The specific grounds for the charges still pending 

are as follows: 

"Canon 4 provides: 

"'Avoidance of Impropriety. A judge's official 

conduct should be free from impropriety and the 

appearance of impropriety; he should avoid 

infractions of law; and his personal behavior, not 

only upon the Bench and in the performance of 

judicial duties, but also in his everyday life, 

should be beyond reproach.' 

"Canon 19 provides in part: 

"'Judicial Opinions. It is of high importance that 

judges constituting a court of last resort should 

use effort and self-restraint to promote solidarity 

of conclusion and the consequent influence of judicial 

decision. A judge should not yield to pride of 

opinion or value more highly his individual 

reputation than that of the court to which he should 

be loyal. Except in case of conscientious difference 

of opinion on fundamental principle, dissenting 

opinions should be discouraged in courts of last 

resort. ' 

"The circumstances reported to the Commission and which 

may constitute a violation of the aforesaid judicial 

canons, bringing the judicial office into disrespect, 

are as follows: 

"1. Parking Ticket Episode. 

"Automobiles registered in the name of Doris Shea, 

your wife, accumulated 60 parking tickets over a 
period of approximately a year and a half from 

June of 1976 throughout 1977. These tickets remain 

unpaid and Doris Shea was charged in the City 

Court of the City of Missoula with the violations. 

"Doris Shea has reportedly denied that she committed 

the violations. It further appears from the 

investigative report that you were seen parking one 

of the ticketed vehicles on one or more occasions 

but have never accepted responsibility for any of 

the violations. While Doris Shea may have constitutional grounds for refusing to pay the parking 

tickets, your failure to acknowledge responsibility 

for the charges against your wife, and your failure 

to observe the parking meter ordinance may constitute a violation of Canon 4 that warrants 

disciplinary action. 

"2. Intemperate Language. 

"In a dissenting opinion written by you in the 

case of State vs McKenzie 581 P.2d 1205, 1235, 

you employ the following language with reference 

to the majority of the court. 

"'This court no more granted a fair review to 

defendant than the citizens of Pondera County could 

have given him a fair trial. The people of Montana 

can be well advised there is no law in the State 

of Montana.' P. 1236 

"'It is intellectual dishonesty for the majority 

not to recognize that the combination thereof is 

a radical departure from existing interpretations 

of constitutional law in this state - - -' P. 1238 

"'And this is not the only manner in which the 

opinion is rather slippery with the facts.' P. 1250 

"'The dishonesty of the majority opinion is 

manifest - - -' P. 1260 

"The foregoing quoted excerpts appear to be in 

violation of Canons 4 and 19 of the Canons of 

Judicial Ethics and may constitute conduct 

prejudicial to the administration of justice that 

brings the judicial office into disrespect. 

"You are hereby notified that you may have fifteen 

days after service of this notice to file a verified 

answer with the commission addressed to the Chairman 

of the Commission. Following receipt of your answer 

the Commission will decide what further action is to 

be taken. 

"For your information reference is made to Rule 7 

of the Rules of the Commission, providing that all 

proceedings before the Commission shall be 

confidential and only loses their confidential 

character when the record is filed with the 

Supreme Court. 
"Reference is also made to Section 3-1-1109 PICA 

which provides that a judicial officer is disqualified 

from acting as such without loss of salary while a 

'formal proceeding' is pending. By Rule 2(j) of 

the Commission's Rules, 'formal proceeding' is 

defined as the proceedings that follow the Commission's recommendation to the Supreme Court. 

"Dated this 28th day of Dec., 1979." 

On February 22, 1980, Daniel J. Shea filed in writing 

with the Judicial Standards Commission his motions and brief 

asserting the following grounds for dismissal of the proceedings 

before the Judicial Standards Commission: 

1. The Judicial Standards Commission is without jurisdiction 

to investigate the conduct of a judge which results in 

"conduct prejudicial to the administration of justice that 

brings the judicial office into disrespect." 

2. The Commission violates section 3-1-1106, MCA, by 

proceeding against him without a verified complaint. 

3. The Commission itself has no power to proceed to 

investigation without receiving from some party a verified 

complaint. 

4. Canons 4 and 19 of the Canons of Judicial Ethics 

are vague or overbroad when used to support the charges of 

the Judicial Standards Commission. 

The Judicial Standards Commission denied the motions of 

Daniel J. Shea, and set the matter for formal hearing before 

the Commission. However, the Commission granted Daniel J. 

Shea 30 days from the date of the denial in which to petition 

for an original writ of mandate or other appropriate writ. 

Daniel J. Shea petitioned the District Court of the 

First Judicial District for Lewis and Clark County for 

relief. That court granted alternative writs of prohibition 

and mandamus and writ of review, and stayed the proceedings 

before the Judicial Standards Commission, pending a hearing 
which was held on January 20, 1981. The Commission had 

filed its response, and moved for the dismissal of the 

petition and the quashing of all writs on November 10, 1980. 

The matter was finally deemed submitted to the District 

Court on February 3, 1981. 

On February 23, 1981, the District Court dismissed 

Daniel J. Shea's petition for writ of prohibition, mandamus 

and certiorari, and quashed the alternative writs. It is 

from that order of dismissal by the District Court that 

Daniel J. Shea here appeals. 

- THE ISSUES 

We find the dispositive issues in this cause to be as 

follows : 

1. Is the Judicial Standards Commission subject to the 

power of the Supreme Court to issue writs of prohibition, 

mandamus, certiorari, or alternative writs? 

2. Does Rule 9(a) of the Judicial Standards Commission 

exceed the constitutional power of the Judicial Standards 

Commission? 

3. Is a verified complaint a requisite for Judicial 

Standards Commission proceedings? 

4. Are the charges made by the Judicial Standards 

Commission against Daniel J. Shea included in the phrase 

"willful misconduct in office?" 

THE JUDICIAL STANDARDS COMMISSION 

The provision in the 1972 Montana Constitution for a 

Judicial Standards Commission arose from a void at that time 

in our system as to the removal of corrupt, venal or incompetent 

judges. Before 1972, a judge could be removed from office only 

by impeachment through the State legislature, unless the 

electorate turned him out of office. Impeachment, Art. V, § 
17, 1889 Montana Constitution, was limited to "high crimes 

and misdemeanors, or malfeasance in office." For those 

officers not subject to impeachment, the legislature was 

empowered by the 1889 Montana Constitution to provide for 

their removal for "misconduct or malfeasance in office." 

Art. V, § 18, idem. 

The full text of the 1972 constitutional provision then 

in effect for the Judicial Standards Commission (Art. VII, § 

11) is as follows: 

"Section 11. Removal - and discipline. (1) The 

legislature shall create a judicial standards 

commission consisting of five persons and provide 

for the appointment thereto of two district judges, 

one attorney, and two citizens who are neither 

judges nor attorneys. 

"(2) The commission shall investigate complaints, 

make rules implementing this section, and keep 

its proceedings confidential. It may subpoena 

witnesses and documents. 

"(3) Upon recommendation of the commission, the 

supreme court may: 

"(a) Retire any justice or judge for disability 

that seriously interferes with the performance of 

his duties and is or may become permanent; or 

"(b) Censure, suspend, or remove any justice or 

judge for willful misconduct in office, willful 

and persistent failure to perform his duties, or 

habitual intemperance." 

In considering the adoption of that provision, the 

constitutional convention spoke little of the provisions 

relating to malfeasance or misconduct in office. Tr. 3469 

to 3484. The convention seemed concerned especially with 

tactfully removing judges from office who may have become 

disabled or incompetent by reason of age. In speaking for 

the adoption of the amendment, Delegate Aronow stated in 

part: 

". . . This is a committee which we created in 

the majority part of the committee report, modeled 

somewhat after New Mexico. It has been revised; 
some things have been taken out of California . . ." Tr. 3471. 

In 1973 the legislature, following the directions of 

the constitutional provision, provided for the creation and 

composition of the Judicial Standards Commission. With 

respect to investigations, and action by the Supreme Court, 

the legislature provided, inter alia: 

"3-1-1106. Investigation - of judicial officers 

--hearina--recommendations. - - 2 (1) . . The commission 

or any citizen of the state may, upon good cause 

shown, initiate an investigation of any judicial 

officer in the state by filing a verified written 

complaint with the commission. 

"(2) The commission, after such investigation as 

it considers necessary and upon the finding of good 

cause, may: 

"(a) order a hearing to be held before it concerning 

the censure, suspension, removal, or retirement of 

a judicial officer; or 

"(b) request the supreme court to appoint one or 

more special masters who are judges of courts of 

record to hear and take evidence and to report to 

the commission. 

"(3) If after hearing or after considering the 

record and report of the masters the commission 

finds the charges true, it shall recommend to the 

supreme court the censure, suspension, removal, 

or retirement of the judicial officer. 

"3-1-1107. Action by supreme court. The supreme 

court shall review the record of the proceedings 

and shall make such determination as it finds just 

and proper and may: 

"(1) order censure, suspension, removal, or 

retirement of a judicial officer; or 

"(2) wholly reject the recommendation." 

Following the appointment and organization of the 

Commission, it adopted rules, which provide in part as 

follows: 

"Rule 9 PRELIMINARY INVESTIGATION 

"a. Upon receipt of Verified Statement. The 

Commission, upon receiving a verified statement, 

not obviously unfounded or frivolous, alleging 

facts indicating that a judge is guilty of 

action occurring during, or not more than six 
years prior to the commencement of, his current 

term that constitutes willful misconduct in 

office, willful and persistent failure to perform 

his duties, habitual-intemperance, or conduct 

prejudicial -- to the administration ofjustice 

-- that brings the judicial office ins disrepute, 

or that he has a disability that seriously 

interferes with the of his - 

duties, and is, or is likely to become permanent, 

shall make a preliminary investigation to determine 

whether further proceedings should be instituted 

and a hearing held. 

"b. -- On Own Motion. The commission, without 

receiving a verified statement, may make 

such a preliminary investigation on its own 

motion." (Emphasis added.) 

DISCUSSION 

1. Is the Judicial Standards Commission subject to 

the power of the Supreme Court to issue writs of prohibition, 

mandamus, certiorari, or alternative writs? 

The first question to be decided by us is whether the 

Judicial Standards Commission is so inherently an independent 

constitutional body that it is not subject to writs or the 

authority of this Court in the course of its proceedings. If 

it is not so subject, there is no point in further discussion in this case because if this Court has no such 

power, the matter ends there. 

The District Court wrestled with this problem. It 

pointed out that while the Commission is making its investigation, and to the point where it makes recommendations to the 

Supreme Court, the Supreme Court has been given no constitutional function whatever. Art. 11 § 11 () , (2) . After 

making its recommendation, the Judicial Standards Commission 

has no constitutional function. Art. 11 § 13a) (3b). 

On this basis, the District Court concluded that the functions 

of the Commission and of the Supreme Court were "clear 

cut and discrete." 
The District Court further noted that since any 

recommendation of the Judicial Standard Commission must 

eventually be passed upon by this Court, that in itself is 

an adequate remedy, and insulates the proceedings of the 

Judicial Standards Commission from any intervening interruption 

by either a District Court or the Supreme Court. In An 

Anonymous Town Justice v. State Commission (1978), 409 

N.Y.S.2d 198, it was found that the proceedings of the New 

York Commission were administrative in that it did not make 

final decisions, and were therefore beyond trial court 

review. 

Under Montana statutes the supreme court or a district 

court may issue a writ of review, when an ". . . inferior 

tribunal . . . exercising judicial functions has exceeded 

the jurisdiction of such tribunal . . . and there is no 

appeal or, in the judgment of the court, any plain, speedy, 

and adequate remedy." Section 27-25-102, MCA. There is no 

question that the Judicial Standards Commission is exercising 

judicial functions (see our recent opinion in State Bar of 

Montana v. Krivec (1981), - Mont . , 632 P.2d 707, 38 St.Rep. 

1322, for a discussion of the exercise of judicial functions.) 

We have held, however, that a writ of review is generally not 

properly granted where the matters over which review is 

sought are pending or undetermined. State v. ~istrict Court 

(1933), 93 Mont. 439, 444, 19 P.2d 220, 222. 

A writ of mandamus may be issued by the Supreme Court 

or District Court to a tribunal to compel the performance of 

an act which the law specifically enjoins as a duty resulting 

from an office. Section 27-26-192, MCA. The purpose of 

Daniel J. Shea in filing his petition with the District 

Court was to stop the action of the Judicial Standards 

Commission; therefore, mandamus does not apply. 
A writ of prohibition may issue from the Supreme Court 

or the District Court to any tribunal, whether exercising 

judicial or ministerial functions, when the proceedings are 

without or in excess of the jurisdiction of the tribunal. 

Section 27-27-101, MCA. The writ may issue in all cases 

where there is not a plain, speedy and adequate remedy in 

the ordinary course of law. Section 27-27-102, idem. However, 

if appeal is available, but is neither speedy nor adequate, 

a writ of prohibition may issue. State v. District Court of 

the Eleventh Judicial Dist. (1957), 131 Mont. 397, 402, 310 

P.2d 779, 780, 64 A.L.R.2d 1324, 1327. In the case at bar, 

no appeal is granted, except for the review by the Supreme 

Court upon the final recommendation of the Judicial Standards 

Commission. It appears to us, therefore, Daniel J. Shea's 

remedy by appeal is inadequate, he has no other plain, 

speedy or adequate remedy, and we have the power to issue a 

writ of prohibition to enjoin the Commission if, indeed, it 

is acting in excess of its jurisdiction. 

2. Does Rule 9 of the Judicial Standards Commission 

exceed the constitutional power of that Commission? 

We have set forth in full above, Rule 9 (a) and (b) of 

the Judicial Standards Commission. As will be noted, it 

includes a statement that the Commission will make a preliminary 

investigation if it receives a verified statement that a 

judge is guilty of "conduct prejudicial to the administration 

of justice that brings the judicial office into disrepute." 

Daniel J. Shea contends that the Judicial Standards 

Commission, in adopting that portion of the Rule, exceeded 

its jurisdictional powers under the constitutional provision 

establishing the Judicial Standards Commission, and that in 
now proceeding against him on that ground, it is acting in 

excess of its jurisdiction. 

Art. VII, B 11, 1972 Montana Constitution establishing 

the Judicial Standards Commission, is not so much a limitation 

upon the powers of the Commission as it is a limitation upon 

the power of this Court to act in matters of judicial discipline. 

The Commission's power to investigate complaints, to make 

rules implementing the constitutional section, and its power 

to issue subpoenae is not hedged with constitutional limits 

of any kind. The safety valve which is placed upon the 

wide-angled powers of the Commission is the limitation on 

this Court to act on the recommendations of the Commission. 

Upon its recommendation, we may retire a disabled justice or 

judge; or we may censure, suspend, or remove a judge for (1) 

willful misconduct in office, (2) willful or persistent 

failure to perform his duties, or (3) habitual intemperance. 

The constitl.itiona1 article and statute do not give this 

Court the power to censure, suspend, or remove a justice or 

a judge for "conduct prejudicial to the administration of 

justice that brings the judicial office into disrepute." 

Yet that is the conduct charged against Daniel J. Shea in the 

complaint. Were the Commission to recommend discipline 

against Daniel J. Shea based upon that charge, we would have 

no power to act under Art. VII, B 11. A basic rule of 

statutory (and constitutional) construction is that the 

role of a judge in construing a provision is not to insert 

what has been omitted, or to omit what has been inserted. 

The standard of conduct charged against Daniel J. Shea 

before the Judicial Standards Commission omits any basis 

upon which we can act, and inserts a basis not found in Art. 

VII, § 11, upon which we may be called to act. 
Thus, if a recommendation should come to us from the 

Commission, stating that Daniel J. Shea is guilty of "conduct 

prejudicial to the administration of justice that brings the 

judicial office into disrepute", in that he used intemperate 

language in McKenzie, and/or that he failed to acknowledge 

personal responsibility for the parking tickets charged 

against his wife, we could do nothing. We can only censure, 

suspend, or remove judicial officers upon the stated grounds 

in Art. VII, S 11 in this case, misconduct in - office. 

We noted above that in the transcript of the 1972 

constitutional convention, Delegate Aronow in speaking for 

the adoption of what is now Art. VII, 5 11, of that constitution, stated that the proposed article and section had 

been modeled after the laws of New Mexico. In examining the 

provisions of New Mexico for its Judicial Standards Commission, 

we find that it provides for investigation "as to willful 

misconduct in office, persistent failure or inability to 

perform a judge's duties, or habitual intemperance of any 

justice, judge . . ." and for "a disability seriously interfering with the performance of his duties which is, or is 

likely to become, of a permanent character;. . ." Section 

34-10-2.1, N.M. Statutes (1978). There is no mention in the 

New Mexico statutes of "conduct prejudicial to the administration 

of justice that brings the judicial office into disrepute." 

Delegate Aronow also mentioned that they had looked at 

the provisions in California, and that "some things have 

been taken out of California." Tr. 3471. Indeed it is 

found in Art. VI, 5 18(c), California Constitution, as it stood 

in 1972, that: 
"On recommendation of the Commission on 

Judicial Qualifications the Supreme Court 

may (1) retire a judge for disability that 

seriously interferes with the performance of 

his duties and is likely to become permanent, 

and (2) censure or remove a judge for action 

occurring not more than 6 years prior to the 

commencement of his current term that constitutes 

wilful misconduct in office, wilful and 

persistent failure to perform his duties, 

habitual intemperance, or conduct prejudicial 

-- to the administration of justice that brings 

the iudicial office in= disrepute." (Emphasis 

It is quite apparent therefore, that California has 

adopted a broader provision for judicial discipline than 

was adopted by the 1972 Montana Constitution. It further 

is apparent that Rule 9(a) of the Montana Judicial Standards 

Commission is patterned after the California-type constitutional 

provision rather than on the 1972 Montana constitutional 

provision. 

Rule 9 of the Montana Judicial Standards Commission is 

an exact replica of Rule 9 adopted by the Wyoming Commission 

on Judicial Supervision. However, Wyoming's 1972 state 

constitution, Art. V, § 6(e) (2), provides as follows: 

". . . censure or remove a judge for action occurring 

during, or not more than 6 years prior to the 

commencement of, his current term that constitutes 

wilful misconduct in office, wilful and 

persistent failure to per 

intemperance, or conduct 

istration of --- - - iusice 

d that 

office intodisrepute." 

form his duties, habitual 

prejudicial -- to the adminbrings the judicial 

(Emphasis added.) 

The distinction is important. The California Supreme 

Court in Geiler v. Commission on Judicial Qualifications 

(1973), 110 Cal.Rptr. 201, 209, 515 P.2d 1, 9, stated: 

"As indicated above, the commission in the 

instant matter concluded that the conduct 

proven in the previously discussed specifications 

constituted 'willful misconduct in office' and 

'conduct prejudicial to the administration of 

justice that brings the judicial office into 

disrepute.' As -- we have -- noted above, - the second 

ground - for imposing discipline was ---- added to the 

Constitution in -- 1966. We believe this mandates 
our construing 'willful misconduct in office' as 

connoting something graver than the 'lesser 

included offense' of 'conduct prejudicial to the 

administration of justice that brings the judicial 

office into disrepute.' The more serious charge 

should be reserved for unjudicial conduct which 

a judge acting -- in his judicial capacity commits 

in bad faith, while the lesser charge should be 

applied to conduct which a judge undertakes in 

good faith but which nevertheless would appear 

to an objective observer to be not only unjudicial 

conduct but conduct prejudicial to public esteem 

for the judicial office." (Emphasis added.) 

In footnote no. 11, 555 P.2d at 9, the California 

Z l c; 

Supreme Court also noted that "conduct prejudicial to the 

administration of justice that brings the judicial office 

into disrepute would also apply to wilful misconduct out of 

office, i.e. unjudicial conduct committed in bad faith by a 

judge not then acting in a judicial capacity." 

It appears then that the 1972 Montana Constitutional 

Convention, in limiting the provisions for judicial discipline 

to the New Mexico model, and foregoing the broader provisions 

of the California model, must have intended to limit the 

grounds upon which the Judicial Standards Commission might 

act, perhaps to preserve to a greater degree the independence 

of the judiciary. 

In the sense therefore that the Judicial Standards 

Commission is conducting adjudicatory proceedings against 

Daniel J. Shea upon the charge of "conduct prejudicial to 

the administration of justice that brings the judicial 

office into disrepute", it is acting in excess of its jurisdiction. 

3. Is a verified complaint a requisite for Judicial 

Standards Commission proceedings? 

The proceedings against Daniel J. Shea before the 

Judicial Standards Commission commenced upon the receipt by 

the Commission of an unverified letter from a retired district 

judge making a complaint about Daniel J. Shea. The chairman 
of the commission noted that the complaint of the retired 

district judge was "not verified nor specific" as to the 

instances of misconduct, but the chairman asked the members 

of the Commission if they wished to proceed with a preliminary 

investigation to determine if grounds of misconduct mentioned 

under Rule 9(a) were supported by the complaining letter. 

The minutes of the Commission for November 15, 1979, indicate 

that the investigating attorney recommended to the Commission, 

and the Commission adopted the position, that the allegations 

concerning parking tickets in Missoula and the allegations 

that references to other members of the court in dissenting 

opinions "constituted conduct prejudicial to the administration 

of justice that brings the judicial office into disrepute." 

The minutes reflect that the members unanimously agreed that 

further proceedings were required and that a hearing should 

be held regarding the two allegations of misconduct. It was 

agreed that the chairman would prepare a notice to Daniel J. 

Shea regarding a further hearing on these allegations. It 

was as a result of this meeting that the Notice of Partial 

Dismissal, Complaint and Notice of Institution of Further 

Proceedings was prepared on December 28, 1979. We have set 

out that particular instrument in full previously. 

The "complaint" is not verified by the Commission, but 

is signed by all of the Commission members. Rule 9(b) of 

the Commission provides that the Commission, without receiving 

a verified statement, may make a preliminary investigation 

on its own motion. The Mc~enzie dissent charge, though not 

contained in the original letter from the retired district 

judge, arose from a suggestion of the chairman of the Commission 

that the statements in the McKenzie opinion be considered as 

to whether they constituted judicial misconduct. 
Under Art. VII, § 11(2), 1972 Mont. Const., the Judicial 

Standards Commission is empowered to "investigate complaints, 

and make rules implementing this section . . . It There is 

no mention in the constitutional provision for a verified 

complaint. 

The legislature, in creating the Commission, provided 

in section 3-1-1106, MCA, set forth previously, that the 

Commission or any citizen may, upon good cause shown, initiate 

an investigation of any judicial officer by filing a "verified 

written complaint" with the Commission. 

The Commission's position with respect to a verified 

complaint is stated in its Order of July 1, 1980, at pp. 6-7: 

"It is the Commission's position that MCA 

3-1-1106 usurps the constitutionally bestowed 

right of the Commission to adopt rules governing 

the manner by which the Commission may proceed and 

to that extent cannot be constitutionally upheld." 

The District Court considered this problem and upheld 

the Commission: 

"The legislature is assigned the duty of 

creating the Commission and providing for 

the appointment of its prescribed membership. 

In addition it may have certain necessary 

implied powers and functions, such as funding 

and locating within the state's administrative 

functions. But the power to make rules to 

implement the section is reserved, with crystal 

clarity, to the Commission. These rules must 

certainly include procedural rules, and the 

manner in which proceedings are initiated are, 

with equal certainty, procedural rules. One 

of the rules the Commission has adopted under 

this authority is Rule 9b which permits it to 

undertake a preliminary investigation without 

receipt of a verified statement. There is no 

question raised here as to the propriety of the 

rule's promulgation. If this rule conflicts with 

Section 3-1-1106 (1) the section must yield to 

the rule, the latter having constitutional 

status. 

The record shows that the parking ticket charge against 

Daniel J. Shea grew out of an unverified letter from a 

retired district judge. The charge filed against Daniel J. 
Shea concerning the language in the McKenzie dissent came 

through the initiative of the Commission itself. The 

Commission did not follow its own rule or the statutory 

requirement that the letter complaint of the retired district 

judge be verified. In its order of July 1, 1980, denying 

Daniel J. Shea's motions respecting the lack of verified 

complaint, the Commission stated: 

". . . Usually, as in Justice Shea's case, the 

Commission does not receive a verified complaint. 

It is the experience of the Commission that when 

it requests a verified complaint, the complainant 

forgets it. The problem posed is whether the 

Commission can proceed with a preliminary investigation to determine if there is good cause for it 

to file a formal complaint. The Commission elected 

this procedure in Justice Shea's case, as allowed 

by Rule 9(b). 

"The decision to file a formal complaint was an 

official act of the Commission as shown by minutes 

of the meeting had on October 17, 1979, and 

by the signature of all members of the Commission 

affixed to the complaint. There is -- no rule 

requiring verification. If after investigation 

the Commission finds good cause, is it prohibited 

from filing a complaint because either the 

original complaint was deficient, or the 

Commission's complaint was not verified?" Order, 

July 1, 1980 at 7. (Emphasis added.) 

Apparently then the Commission is assuming unto itself 

the right to ignore legislatively enacted provisions governing 

its procedure, and even its own rule requiring a verified 

complaint, in its perception and under the assumption that 

it is now acting and will act for the public good. The 

question, however, is not one of motives but of constitutional 

authority, for which the best of motives is not a substitute. 

Panama Refining Co. v. Ryan (1935), 293 U.S. 388, 420, 79 

There is no question that the Commission can make 

"legislative" rules under its rulemaking authority, filling 

in the gaps and fleshing out the procedures for the enforcement 
of judicial discipline. When, however, it adopts "interpretative" regulations, it is faced with quite another 

problem, because then, as in this case, the matter becomes 

one of determination of constitutional power as between the 

legislature on the one hand and the Commission on the other. 

The difference is substantial: 

"'Legislative' rules or regulations are accorded 

by the courts or by express provision of statute 

the force and effect of law immediately upon going 

into effect. In such instances the administrative 

agency is acting in a legislative capacity, supplementing the statute, filling in the details, or 

'making the law,' and usually acting pursuant to 

a specific delegation of legislative power. 

'Interpretative' regulations are those which purport 

to do no more than interpret the statute being 

administered, to say what it means. They constitute 

the administrators' construction of a statute. In 

such instances the administrative agency is merely 

anticipating what ultimately must be done by the 

courts; they are performing a judicial function rather 

than a legislative function, and interpretative 

regulations (in the absence of ratification by the 

legislature) have validity in judicial proceedings 

only to the extent that they correctly construe the 

statute and then, strictly speaking, it is the statute 

and not the regulation to which the individual must 

conform." 1 Am.Jur.2d ~dministrative Law, § 95, at 

893. 

The legislature was required by Art. VII, § 11, to 

create a Judicial Standards Commission. When it did so, it 

placed within the power of the Judicial Standards Commission 

not only the constitutional grounds for censure, suspension 

or removal but added other stipulations. It provided that a 

judicial officer may not participate in any proceeding 

involving his own censure, suspension or removal, section 3- 

1-1108, I4CA; it provided that a judicial officer is disqualified 

from acting, without loss of salary, while there is pending 

a charge against him of a felony or a formal proceeding 

before the Commission for his removal or retirement, section 

3-1-1109, MCA; and it provided for the suspension of a 

judicial officer and his eventual removal if it is finally 
determined that he is guilty of a felony, section 3-1-1110, 

MCA. These additional provisions enacted by the legislature 

are founded on its power granted in Art. V, 5 13(1), 1972 

Mont. Const., (see infra for full text), which states that 

the legislature may enact "[Olther proceedings for removal 

from public office for cause. . ." In the final analysis, 

there can be no inhibition of the legislative power, irrespective 

of the rulemaking authority granted to the Judicial Standards 

Commission, to make suitable provisions relating to the 

Judicial Standards Commission which do not conflict with the 

constitutionally granted powers of the Commission. 

The legislature has broad powers relating to removal 

of public officers under the 1972 Montana Constitution. 

While the Judicial Standards Commission has a defined constitutional sphere in which it can act, the legislature may 

move by impeachment or "other proceedings" against public 

officers, under Art. V, 5 13. Public officers include 

judicial officers. Nothing in the 1972 Constitution prevents 

the legislature from providing that the Judicial Standards 

Commission shall proceed against judicial officers by verified 

complaint. The Commission itself is powerless to set that 

provision aside. The legislature has the constitutional power 

to broaden the grounds upon which judicial officers may be 

removed or disciplined. The Judicial Standards Commission 

does not enjoy that power. 

4. Are the charges made against Daniel J. Shea included 

in the constitutional phrase "willful misconduct in office?" 

The District Court, in its opinion, seemed to recognize 

that Rule 9(a) of the Judicial Standards Commission was 

broader than the constitutional provision empowered. 
Nevertheless, because the Judicial Standards Commission 

might still find that the conduct charged against Daniel J. 

Shea constituted "willful misconduct in office," the District 

Court refused to issue a writ of prohibition. We come now 

to consider whether either the language used by Daniel J. 

Shea in the McKenzie decision, and/or the parking tickets 

incident may nevertheless constitute "willful misconduct in 

office," and so be subject to discipline through the Judicial 

Standards Commission and the Supreme Court. 

The words "in office" in the constitutional phrase are 

significant. Their use seems to indicate an intent on the 

part of the constitutional convention that the misconduct 

must be related to the office which the judge occupies. The 

cases support this inference. 

We have pointed out that in the 1889 Constitution, Art. 

V, S 18, provides that officers not liable to impeachment 

were subject to removal for "misconduct or malfeasance in 

office. " 

The term "misconduct in office" used in the 1889 Constitution 

had received judicial construction by this Court. 

State v. Examining and Trial Board of Police Dept. (1911), 

43 Mont. 389, 117 P. 77, involved the action of a board to 

remove a Butte police chief for wrongfully collecting mileage 

fees. In passing, the court defined misconduct in office as 

"Any act involving moral turpitude, or any act which is 

contrary to justice, honesty, principle, or good morals, - if 

performed by - virtue - of office or -- by authority of - office, is 

certainly included therein." (Emphasis added) 43 Mont. at 
In State v. District Court (1911), 44 Mont. 318, 324, 

119 P. 1103, 1106, removal of a police judge was sought. 

The charge was that he had collected compensation for which 

he was unentitled, even though the compensation had been 

received by him under the advice of the attorney general. 

There the court decided that a willful or corrupt misconduct 

or malfeasance was not necessary. 

In State v. Board of Aldermen of Town of Conrad (1912), 

45 Mont. 188, 122 P. 569, removal was sought of an alderman, 

a lawyer, for accepting fees from a client who had licensing 

problems before the Board of Aldermen. There the Court, 

in passing, quoted with approval the following passage: 

". . . 'Cause for removal' means some substantial 

shortcoming which renders continuance in office 

or employment in some way detrimental to the 

discipline and efficiency of the service, and 

something which the law and a sound public opinion 

will recognize as a good cause for his no longer 

occupying the place. The misconduct for which 

an officer may be removed must, in general, be 

found in his acts and conduct in the office from 

which his removal is sought. But to treat misconduct 

or incompetency in the performance of official 

duties as the only ground of removal is to give 

too rigid and narrow an application to the 

principles governing the subject. A cause for 

removal may exist for acts and conduct of a public 

officer at a time when he is not acting in the 

performance of a public duty, if these acts and 

conduct are such as to fairly show that he is unfit 

for the place." 45 Mont. at 195, 122 P. at 571. 

The Court also found in State v. Board of Aldermen, 

supra, that it was not necessary to prove that the actions 

undertaken were "willful." 45 Mont. at 196, 122 P. at 572. 

The latest case before the adoption of the 1972 constitutional provision was State v. O'Hern (1937), 104 Mont. 

126, 65 P.2d 619. In that case, the question involved was 

the removal by the governor of members of the State Highway 

Commission who had received compensation for duties in 

office in excess of what was then provided by law. The 
Supreme Court then reaffirmed the definition of "misconduct 

in office" as set forth in State v. Examining and Trial Board 

of Police Dept., supra, and concluded that the misconduct 

need not be "willful" in order to justify the removal of an 

officer. However, the decision turned upon the power of the 

governor to dismiss highway commissioners and the court did 

not rely on the "misconduct" charge in upholding the dismissal 

of the members of the highway commission. 

This was the state of the judicial construction of 

"misconduct in office" at the time of the adoption of the 

1972 constitutional provision. It is generally held that 

the embodiment in a constitution of provisions found in 

previous constitutions, without change of verbiage, precludes 

the court from giving their language a meaning different 

from that ascribed to the previous constitutional provisions, 

unless there is something to indicate an intention of the 

framers in the new constitution to alter the accepted construction. 16 Am.Jur.2d Constitutional - Law, at 474-475, § 

120. This Court said in Johnson v. City of Great Falls 

(1909), 38 Mont. 369, 372, 373, 99 P. 1059-1060: 

". . . At the time our constitution was adopted 

the rule was quite uniform, so far as established 

by judicial decisions, that in the house originating 

a bill the vote on amendments proposed by the 

other house need not be by ayes and no-,and the 

names of those voting need not be entered on the 

journal, and, in the absence of anything indicating 

a contrary view, we must assume that the framers 

of our Constitution, in adopting section 24 of article 

5, did so intending that the rule of interpretation 

then in vogue should be applied to it . . ." 

Thus, all the cases preceding the 1972 Montana Constitution regarding removal of officers on the grounds of 

misconduct, related on the facts to misconduct "in office." 

Admittedly there is a quoted passage in one Montana case, 
State v. Board of Aldermen of Town of Conrad, supra, relating 

to conduct outside of office, but it is entirely obiter 

dictum and cannot be said to be included in the law of this 

State at the time of the adoption of the 1972 Montana Constitution. 

The addition, the Constitutional Convention's use of 

the word "willful" in describing the conduct which subjects 

a judicial officer to discipline, evinces an intent on the 

part of the convention to move away from the judicial constructions in the earlier cases that intent was not necessary 

to constitute misconduct in office. Thus, the new constitutional 

provision would distinguish the holding of this Court in 

State v. Board of Aldermen of Town of Conrad, supra. 

In the Geiler case, supra, the California court was 

careful to emphasize in its footnote that conduct outside 

the office would constitute "conduct prejudicial to the 

administration of justice that brings the judicial office 

into disrepute." The court's footnote said: 

"The lesser charge of 'conduct prejudicial to the 

administration of justice that brings the judicial 

office into disrepute' would also apply to 

wilful misconduct out of office, i.e. unjudicial 

conduct committed in bad faith by a judge not then 

acting in a judicial capacity. It should be 

emphasized that our characterization of one ground 

for imposing discipline as more or less serious 

than the other does not imply that in a given case 

we would regard the ultimate sanction of removal 

as unjustified solely for 'conduct prejudicial to 

the administration of justice which brings the 

judicial office into disrepute.'" 515 P.2d at 9, 

fn. 11. 

In reaching our decision here that misconduct in office, 

as required by the 1972 constitution means conduct in or 

arising out of the duties or responsibilities of office and 

does not apply to alleged misconduct outside of the office, 

we determine that the 1972 constitutional convention apparently 

intended to omit the "lesser charge" by not adopting the 
same. As noted above, the convention reserved to the 

legislature, either through impeachment or through further 

legislative action, the removal of public officers, including 

judicial officers, for misconduct outside office: 

"Section 13. Impeachment. (1) The governor, 

executive officers, heads of state departments, 

judicial officers, and such other officers as 

may be provided by law are subject to impeachment, 

and upon - conviction shall be removed from office. 

Other proceedings for removal from public office 

---- for cause may be provided by -- law." Art. V, § 13. 

(Emphasis added.) 

If the words "in office" contained in Art. VII, § 11, 

1972 Montana Constitution are to have any significance in 

this case, we must conclude that the parking ticket incidents, 

whatever the facts may be, are not matters arising from or 

growing out of the office of a justice of this Court. 

There remains the question whether the language used by 

Daniel J. Shea in his dissenting opinion in McKenzie constitutes "willful misconduct in office." We conclude it 

does not. It is characterized by the Commission as "intemperate" 

but the language quoted is not profane or vulgar. It may 

not have been pleasant for the majority in McKenzie to have 

been called "intellectually dishonest" or to have been told 

that they were "slippery with the facts." Yet it seems 

nearly every day newspaper editors say something equally 

derogatory about our decisions. As long as a justice, or a 

judge, in writing opinions, does not resort to profane, 

vulgar or insulting language that offends good morals, it 

may hardly be considered "misconduct in office." 

More important than to censure, suspend or remove 

Daniel J. Shea from office for his "intemperate" language is 

to preserve an independent judiciary in this State. 

The judicial power of a district judge is sovereign, in the 

name of the State, and the judicial power of a justice of 
the Supreme Court is likewise sovereign, provided the 

decision is in and with the opinion of the majority of the 

Court (excluding those few cases where the constitution 

allows a single justice to act). The requirement of a 

majority for any opinion of the Supreme Court (Art. VII, 

§ 3(1), 1972 Montana Constitution) does not mean that one in 

the minority is throttled and may not speak his piece. The 

right of a minority justice to voice his individual opinion 

is equal to that of any in the majority, indeed is vital to 

collegiality among the justices, and proper to furnish for 

later cases a standard or rule to which the Court may eventually 

adhere. There is moreover, in extreme cases, the sovereign 

power of this Court to remove or strike scandalous language 

which is deemed inappropriate for judicial decisions (Nadeau 

v. Texas Co. (1937), 104 Mont. 558, 576-577, 69 P.2d 593, 

595-596), which inherent power has not been removed from us 

by the establishment of the Judicial Standards Commission. 

Disciplinary proceedings should not apply to the 

decisional process of a judge. Otherwise judges would he as 

concerned with what is proper in the eyes of the Commission 

as with what is justice in the cause. 

On the ground therefore that the charges against Daniel 

J. Shea do not amount to "misconduct in office" under the 

constitutional provision, the Judicial Standards Commission 

is acting in excess of its jurisdiction in this case, and 

a writ of prohibition should issue. 

Moreover, in the absence of a verified complaint 

against Daniel J. Shea, the proceedings against him must be 

barred, since such lack of verified complaint violates a 

validly enacted statute and the Commission's own rule. In 
such case a writ of prohibition may issue. 

~ccordingly, this opinion shall be and constitute a 

writ prohibiting the Judicial Standards Commission from 

proceeding further in its pending action against Daniel J. 

Shea. 

Justice 

We Concur: 

............................. Justices 

Mr. Chief Justice Frank I. Haswell did not participate in 

this decision. 
Mr. Justice Fred J. Weber specially concurs in the Opinion 

of the Court on the following basis: 

The Opinion of the Court described the dispositive 

issues in this cause to be as follows: 

1. Is the Judicial Standards Commission subject to 

the power of the Supreme Court to issue writs of prohibition, 

mandamus, certiorari, or alternative writs? 

2. Does Rule 9(a) of the Judicial Standards Commission 

exceed the constitutional power of the Judicial Standards 

Commission? 

3. Is a verified complaint a requisite for Judicial 

Standards Commission proceedings? 

4. Are the charges made by the Judicial Standards 

Commission against Daniel J. Shea included in the phrase 

"willful misconduct in office?" 

I agree to and join in the holding of the Court with 

regard to issues 1, 2 and 3. Because of our holding on 

those three issues, I agree with the conclusion of the Court 

that the proceedings against Daniel J. Shea must be barred 

since the lack of a verified complaint violates a validly 

enacted statute and the Commission's own rule. 

Accordingly, I join in the Opinion of the Court which 

constitutes a writ prohibiting the Judicial Standards Commission 

from proceeding further in its pending action against Daniel 

J. Shea. 

Because of the Court's holding on the first three 

issues, we do have an adequate basis for the issuance of a 

writ of prohibition. Having reached that conclusion, I do 

not find a necessity or reason for this Court making any 

determination on issue 4. Therefore, I do not join in that 
portion of the Opinion of the Court pertaining to issue 4.