### IN THE SUPREME COURT OF IOWA

No. 14

– 0510
Filed September 12 , 2014

IN THE MATTER OF EMILY SUSAN DEAN, District Associate Court Judge.

On application of the Iowa Commission on Judicial Qualifications.

State commission on judicial q ualifications filed application recommending three

- month suspension of district associate judge.
APPLIC A TION GRANT E D; JUDICIAL OFFICER SUSPENDED.

Thomas J. Miller, Attorney General, and Grant K. Dugdale and
Kevin R. Cmelik, Assistant Attorneys General, for complainant.

Elaine F. Gray of Fehseke & Gray Law Offices, Fort Madison , for respondent.2
APPEL, Justice. In this case, we consider a recom mendation by the Iowa
Commission on Jud icial Qualifications (the Commission ) to suspend a district associate judge for three months as a result of behavior related to alcohol consumption. The gravamen of the original complaint that triggered commencement of the proceeding was a report that the judge arrived at a courthouse in an intoxicated state and could not perform her scheduled judicial duties. For the reasons expressed below, we conclude that a suspension without pay should be imposed, but limit the suspension to thirty days.
I. Factual and Procedural Background.
A. The Precipitating Incident. On May 9, 2012, the C ommission received a complaint from a district court judge regarding District Associate Judge Emily Dean. The precipitating incident that gave rise to the complaint was the arrival of Judge Dean at the Henry County Courthouse that morning where she was said to be physically unable to take the bench. The complaint indicated reports that Judge Dean had been consuming alcohol pri or to her arrival at the courthouse. The complaint also recited a history of Judge Dean ’s absence from work for
health

- related reasons presumed to be alcohol related. On May 10, the Commission entered an order suspending Judge Dean from her judicial
duti es pending investigation and action on the complaint.
B. Attorney General’s Report to the Commission. The attorney general’s o ffice conducted an investigation of the facts alleged in the complaint and issued a report , which was admitted as State’s Exh ibit 1 at the hearing . With respect to the incident on May 9, the attorney
g eneral’s report indicated that Judge Dean had been drinking a colorless liquid and fell asleep in the car while being driven by her court reporter3

from Fort Madison to Mount Pleas ant. Upon arriving at the courthouse, Judge Dean swayed and was unsteady. Her court reporter recognized
that she was not in a condition to take the bench and obtained assistance from an employee in the county attorney’s office to persuade Judge Dean not to take the bench and to leave the courthouse. Her

court reporter drove her back to Fort Madison and contacted a family
member. Later that day, s he was hospitalized for severe alcohol
intoxication . She remained in the hospital for three days . The attor ney
g eneral ’s o ffice inter viewed the witnesses with first hand knowledge of the
incident. There was no suggestion in the report of inappropriate conduct on the part of Judge Dean on May 9 , beyond her arrival at the
courthouse in a state of intoxication.
In a le tter to the attorney general’s o ffice submitted pursuant to the investigation, Judge Dean began by admitting that she is an alcoholic and generally recounted her struggle with the disease, stating she initially addressed the problem locally through weekly substance abuse counseling and additional mental health counseling. She suffered a grand mal seizure in November 2011 as a re sult of alcohol withdrawal
and participated in in patient alcohol treatment at Hazelden in Center City, Minnesota , in Decem ber 2011. She stated that she attended a second in patient treatment program at The Abbey in Bettendorf, Iowa , in April 2012 . Upon further inquiry by the attorney g eneral’s investigator, however, Judge Dean admitted that she left both programs shortly bef ore completion. Judge Dean did not contest the basic facts surrounding the May 9 incident, although she stated she had “very little recollection of that morning.” After leaving the courthouse, Judge Dean stated that her family took her to Great River Medical Center’s eme rgency unit, where4

she was admitted into the intensive care unit. She remained hospitalized for three days. She characterized the May 9 event as “hitting bottom” in her struggle with alcoholism. The report also n oted other incidents of alcohol

- related conduct. An assistant county attorney stated that in February and March of 2012,
there were occasions when Judge Dean appeared “disoriented” and
“disheveled.” Additionally, t he report described an incident in
Fort Madison in which lawyers and litigants were assembled in the courtroom. According to the report, Judge Dean took the bench and
stated , “Why are all of you here?” The report stated Judge Dean’s court reporter called Judge Dean’s father who arrived and escorted her from
the courthouse.
The r eport further described other events. Judge Dean apparently decided to test a “panic button” to see if law enforcement would respond, which they did. Additionally, in May of 2012 a citizen filed a complaint alleging that a female driving Judge Dean’s hus band’s car had urinated in a public street. The citizen followed the car to a destination that fit the description of J udge Dean’s mother’s residence. Judge Dean admitted she knew of the allegation, but could n o t remember what happened and could n o t deny it. No charges were filed. The report also canvassed Judge Dean’s recovery efforts after May 9. According to Hugh Grady of the Iowa Lawyers Assistance Program (ILAP) , Judge Dean had made excellent progress in a twelve

- step
pr ogram. Judge Dean had al so signed a contract to abide by all
conditions imposed by ILAP, including monitoring by Mr. Grady, regular attendance at meetings with a sobriety support group, and preparation of a relapse plan. Mr. Grady and professionals at Great River Addiction5

Servi ces did no t recommend another round of in pat ient treatment for Judge Dean.
C. Charges Brought by the Commission. After the a ttorney
g eneral’s investigation and subsequent report, the Commission filed a notice of charges against Judge Dean and set the matter for hearing. In the notice of charges, the Commission alleged that Judge Dean violated

canon one and canon two of the Iowa Code of Judicial Conduct , including rule 51:1.2 and rule 51:2.5(A )

. See Iowa Code of Judicial
Conduct Canon s 1 , 2; id. r s. 5 1:1.2, 51:2.5(A)

. First, the Commission charged that by appearing at the Henry County C ourthouse while intoxicated, Judge Dean failed to avoid impropriety , raised doubt about her integrity , and eroded confidence in the judiciary. As a result, the
C ommiss ion alleged a violation of r ule 51:1.2, which requires judges to promote confidence in the judiciary. See Iowa Code of Judicial Conduct
R. 51:1.2. Second, the Commission charged that by being intoxicated and unable to handle assigned cases on one or more occasions, Judge Dean failed to demonstrate the competence and diligence required in the performance of judicial duties. As a result, the C ommission alleged a violation of r ule 51:2.5(A), relating to the competence, diligence, and cooperation of a judge. See id

. r. 51:2.5(A). Judge Dean filed an answer admitting the charges. Although Judge Dean admitted to the charges, it is our duty to review the findings
of the Commissi on de novo and evaluate the facts to determine if a
violation occurred. See In re Meldrum , 834 N.W.2d 650, 652 (Iowa 2013); cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gailey , 790 N.W.2d 801, 804 (Iowa 2010) ( “ O ur rules require us to determine whether [the]
conduct violate s our ethical rules.” )

. In doing so, we look to both attorney and judicial disciplinary cases and note that principles in6 attorney disciplinary matters are generally applicable to judicial disciplinary matters. See In re McCormick , 6 39 N.W.2d 12, 18 (Iowa 2002) ( observing sanctions related to attorney misconduct should be comparable in judicial disciplinary proceedings ).
D. Hearing Before the Commission. The Commission held its hearing on October 31, 2012. At the hearing, the State rested on the admissions by Judge Dean that she had violated the rules of j udicial

c onduct. Later in the proceeding, however , in addition to the attorney general’s r eport, the S tate offered into evidence medical records related to Judge Dean’s effor ts to address her alcoholism. Judge Dean put on te stimony from alcohol counselors and her
husband

. James Towlerton, a substance

- abuse counselor at Great River Addiction Services, testified Judge Dean had made excellent progress in dealing wi th her alco holism since the May 9 incident. Mr. Towlerton noted Judge Dean had “totally involved herself” in Alcoholics Anonymous (AA) and attended two meetings a day the majority of time since May 9. Mr. Grady testified that contrary to her efforts prior to May 9, Judge
Dean was now “fully invested in recovery” with “a completely different
commitment” to a recovery program
. Her husband testified about the long and painful family history of frustration and broken promises
related to Judge Dean’s alcoholic behavior, followed by “a complete 180 degree turn” after May 9. Judge Dean also testified. She recounted the course of her
alcoholism and her unsuccessful past efforts to address it. She generally asserted that other than the occasion on May 9, she did not com e to work intoxicated. She admitted that she lost her zest for the job and that she quit doing any more than was necessary, but she asserted she handled her workload in a timely manner. With respect to the citizen7 report that she urinated in public, she had limited memory of the event and could neither affirm nor deny what happened. She denied any improper or alcohol

- affected conduct in connection with testing the panic button, though she admitted law enforcement was not pleased by her experiment. Judge Dean stated she had no recollection of the assistant county attorney’s report of an occasion when she was confused by the presence of lawyers and litigants in the courtroom. Notwithstanding failed past efforts to deal with her alcoholic
b ehaviors, Judge Dean testified that since May 9, AA has become the center of her life. She now recognizes she is an alcoholic and she cannot allow herself to drink. In light of her path to recovery, Judge Dean declared she was desperately ready to go back to work. She recognized her conduct “tarnished the reputation” of the judicial branch, but suggested her experience would give her insig ht into her work as a judge. At the hearing, a monitoring agreement between Judge Dean and
the ILAP was introduced into evidence. Under the terms of the monitoring agreement, Judge Dean, among other things, agreed to remain abstinent from alcohol and mood altering drugs, to attend a minimum of five AA meetings per week, to find and use a sponsor, to

me et with Mr. Grady and Mr. Towlerton on a regular basis, to provide random urine samples upon request, and to provide proof of compliance
to the ILAP on a quarterly basis. The monitoring agreement further provided that any noncompliance would be reported t o the Commission.
Mr. Grady called the monitoring agreement “the key” or, more ominously, “the hammer.” Judge Dean testified she was in full agreement with all of the provisions of the monitoring agreement. She
stated , “I can’t do my job appropriately if I’m actively using alcohol.”8
On the issue of sanction, the S tate indicated that a private admonition would probably do as much as anything for Judge Dean, but the public and the profession needed to know the matter was being taken seriously. Theref ore, the State urged at the very least a public reprimand. The State further recommended the sanction of removal from office or a suspension without pay stayed pending Judge Dean’s continued sobriety and compliance with the monitoring agreement with
the I LAP

. Judge Dean noted she had already been off work seeking
rehabilitation for five months. She was prepared to l ive with any
sanction the C ommission proposed and noted that having the hammer was probably a “good idea.” She primarily wanted to go back to work.
E. Commission Rulings.
1. Reinstatement o rder . On November 2, 2012, the Commission entered an order reinstating Judge Dean to her judicial duties. The reinstatement order, however, incorporated in substance the terms of the monitoring agreement introduced into evidence at the hearing. The reinstatement order provided that Mr. Grady or his designee shall immediately report to the Commission any failure to meet the requirements of the monitoring agreement . Upon such a report, the
Commis sion would determine an appropriate response depending upon the nature of the failure. The monitoring agreement was to remain in effect for two years from the date of the order.
2. Application to d iscipline a judicial o fficer . On March 27, 2014,
the Commission filed an application with this court to discipline a judicial officer pursuant to Iowa Code s ection 602.2106 (201 1 ) . The Commission entered findings of fact, noting among other things that prior to May 9, 2012, Judg e Dean wrestled with alcoholi sm and at times9 appeared in court disoriented and disheveled

. The Commission also found that Judge Dean relieved herself on a public street while under the influence of alcohol. The Commission further found that on May 9, 2012, Judge Dean arrived at the Henry County Courthouse in an intoxicated state and, through the intervention of staff, was persuaded to
leave rather tha n take the bench. The Commission noted Judge Dean acknowledged , and the Commission f ound, that Judge Dean violated
canon one and canon two of the Iowa Code of Judicial Conduct, including rule 51:1.2 and rule 51:2.5(A)

. The Commission noted that while al coholism is an illness, there
remained the issue of an appropriate sanction for Judge Dean’s improper conduct. The Commission recognized the chal lenging nature of the task
when alcoholism causes an otherwise competent and diligent jurist to violate her p r ofessional responsibilities. While the Commission applauded Judge Dean’s so far successful effort to control her alcohol use since May 9, the Commission believed that in determining the appropriate sanction, restoring public confidence in the judicial sys tem and deterring other judges from engaging in similar unethical conduct were the main purposes of judicial discipline. The Commission noted that while a lesser sanction might be appropriate for a single incident of
alcohol

- induced behavior outside the c ourthouse, Judge Dean appeared intoxicated on the bench, in the co urthouse, and in public. The Commission recommended that Judge Dean be suspended for three months without pay. Because of potential disruption to the Eighth
Judicial District that would result from a three

- month suspension, the Commission recommended the suspension be imposed in increments of
no less than one week at a time, as scheduled by the chief j udge of the district. The Commission further emphasized that during the period of10

suspe nsion, Judge Dean should continue to comply with the monitoring agreement described in the Commiss ion’s order for reinstatement.
II. Scope of Review
. “Our standard of review of a recommendation of judicial discipline by the commission o n judicial qual ifications is de novo.” In re
McCormick , 639 N.W.2d at 15. The ethical violation of a judge must be established by a convincing preponderance of the evidence. In re Block , 816 N.W.2d 362, 364 (Iowa 2012).
III. Discussion.
A. Violation s of Judicial Ethics. In this case, the Commission charged , and Judge Dean has admitted , violation of r ules 51:1.2 and 51:2.5(A). Rule 51:1.2 states that “ [a] judge shall act at all times in a manner that promotes public confidence in the independence, in tegrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Iowa Code of Judicial Conduct R. 51:1.2. Rule 51:2.5(A) provides that “ [a] judge shall perform judicial and administrative duties competently and diligently.” Id. r. 51:2.5(A). In order to sanction a judge, a violation of the rules must be “substantial.” Iowa Code § 602.2106(3)( b ). Like the Commission and Judge Dean, we find there is ample evidence to support these charges. There can be littl e dispute that the appearance of a judge in an intoxicated state at the courthouse unable to perform scheduled judicial duties violates both rules. On that day, Judge Dean did not promote public confidence in the independence, integrity, and impartiality of the judiciary and did not perform her duties competently or diligently. In finding the violations, we do not base them upon Judge Dean’s
mere status as an alcoholic , but rather on her conduct

. T he purpose of11 judicial disciplinary proceedings is “to restore public confidence in the judicial system and its judges , ” as well as deter future misconduct , not to punish an individual judge

. In re Meldrum , 834 N.W.2d at 653

– 54; In re
Block , 816 N.W.2d at 365. Thus, any disciplinary sanction we may impose , a s a result of the violation s in this case , arises not a result of Judge Dean’s status as an alcoholic, but rather because of the effect of her conduct on public confidence in the judicial branch and the need to
deter future similar misconduct.
B. Sanctions. Discipline may be imposed for a substantial violation of the canons of judicial ethics. Iowa Code § 602.2106(3)( b ); In
re Block , 816 N.W.2d at 364

– 65. In determining a suitable sanction, we look to the goals of discipline and the entire recor d, considering both mitigating and aggravating factors, including related misconduct stemming from the judge’s alcoholism

. See In re Block , 816 N.W.2d at
365

– 66 ; cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marzen , 779 N.W.2d 757, 765 (Iowa 2010) (notin g even if the evidence failed to establish an alleged charge, that evidence could constitute an aggravating factor to support a more severe sanction). We must be
satisfied that there is a sufficient nexus between the other related
incidents in the record and the larger goals of judicial discipline in imposing a proper sanction. Initially, w e note that in two cases we have imposed public reprimands on judges who committed a first offense of driving a motor
vehicle while intoxicated. In re Block , 816 N.W. 2d at 36 3 ; In re Weaver , 691 N.W.2d 725 , 725 (Iowa 2004). An argument can be made that this
case is similar to the drunk

- driving cases. The drunk

- driving cases, however, did not involve intoxication of a judge when reporting for judicial duties at the co urthouse but instead represented discrete and12 uncharacteristic private events. We think the appearance of a judge in a state of intoxication at the courthouse has an obvious direct linkage to the performance of judicial duties and to public respect for th e integrity of the judicial process. Further, the record in this case shows additional improper conduct related to alcohol consumption. The drunk

- driving cases do not provide us with much guidance here. Other j ur isdictions have dealt with alcohol

- rela ted misconduct by judges. In In re Krake , 942 So. 2d 18 , 20

– 28 (La. 2006), a judge was suspended for six months due to appearing intoxicated at public and bar events, appearing hung over on the bench, and requiring several leaves
of absences from the bench to obtain treatment. The judge was later suspended for the balance of his term as a result of failure to abide with ongoing monitoring requirements. In re Krake , 976 So. 2d 162 , 163

– 64 (La. 2008). Another case involving judicial misconduct arisi ng from alcoholism
is Idaho Judicial Council v. Becker , 834 P.2d 290 (Idaho 1992). In this case, the Idaho Supreme Court found that a judge’s habitual intemperance, abuse of alcohol, and conviction for driving under the influence detracted from public con fidence in the integrity of the judiciary and warranted a three

- month suspension. Id

. at 290. In imposing its sanction, the Idaho court stressed the importance of maintaining the integrity of the judiciary. Id . at 293.
There is some case law from othe r states imposing more lenient
sanctions than Krake and Becker . In In re Kirby , 354 N.W.2d 410 , 421 (Minn. 1984), the Minnesota Supreme Court found that discourteous treatment of female attorneys, public intoxication, conducting judicial
business with alc ohol on his breath, and habitual tardiness warranted a public censure. The Kirby court noted there was only one instance in13

which Judge Kirby was intoxicated while performing judicial duties and there was no showing the use of alcohol had an effect on any of his
decisions. Id. at 417. The Minnesota Court recognized, however, the importance of “the perception of the public upon the administration of justice in general and upon the over 200 other judges in this state in particular.” Id

. On balance, we think the conduct demonstrated by the record in this case requires a suspension. The public cannot accept, the bar cannot condone, and we cannot tolerate judges showing up for work
intoxicated . In addition, Judge Dean’s alcohol consumption cast s a shadow across her discretionary decision

- making, even if she was not specifically intoxicated when in court and even if her discretionary decisions were timely made and not su bject to reversal on appeal. We consider both aggravating and mitigating factors in determining an appropriate sanction. In re Block , 816 N.W.2d at 365

– 66 (listing ten
factors we generally consider in determining an appropriate sanction in each case) ; In re McCormick , 639 N.W.2d at 16 (same)

. In this case, there are aggravating factors. T here are r eports in the a ttorney g eneral’s investigation, which we find credible, that Judge Dean was occasionally
disoriented and disheveled

. While the evidence related to Judge Dean relieving herself in public is an anonymous police report and therefore problematic, we do not find Judge Dean’s asserted lack of memory comforting. Ordinarily, such a remarkable charge would be met with a quick and firm denial. It is apparent that Judge Dean had consumed alcohol in sufficient quantities that she could not sufficiently remember
the nature of her conduct to deny the charge of highly unusual conduct.
See In re Block , 816 N.W.2d at 365 (noting factors include “ whether the14

misconduct is isol ated or a pattern of misconduct” and “the nature, extent, and frequency of the acts of misconduct” ). But there are also important mitigating factors

. T here have been no prior complaints regarding Judge Dean. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bieber , 824 N.W.2d 514, 527 (Iowa 2012) (noting, in attorney disciplinary case, that the “lack of a prior disciplinary record is an important mitigating factor”) . While t he misconduct was severe on May 9 and obviously disrupted the judicial system, Judge Dean did not assume the bench and preside over cases. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel , 809 N.W. 2d 96, 110 (Iowa 2012) (noting lack of harm to third parties is significant mitigating factor in attorney disciplinary case ). The State at the hearing emphasized that Judge Dean had fully cooperated with the Commission in the investigation of this

matter. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Axt , 791 N.W.2d 98, 103 (Iowa 2010) (noting cooperation with attorney discip linary
author ities as mitigating factor). Our cases, however, hold that while alcoholism is no legal justification, excuse, or defense for unethical conduct, the recognition of alcoholism and rehabilitative efforts can be a mitigating factor in discipli nary proceedings. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clarity , 838 N.W.2d 648, 660

– 61 (Iowa 2013) (canvassing attorney disciplinary cases); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Roush , 827
N.W.2d 711 , 719 (Iowa 2013). We recognize that Judge Dean was not working while she sought
rehabilitation between May and November of 2012. This absence is not a substitute for the sanction of suspension in this case. Absence due to
rehabilitation and disciplinary sanctions serve overlapping, but dis tinct,
purposes. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Maxwell , 70515 N.W.2d 477, 480 (Iowa 2005). Absence from duty due to rehabilitation does not “specifically address unethical conduct and the need to deter
future conduct.” Id . Further, a rehabil itative absence for judicial officers occurs with pay rather than without pay. By contrast, lawyers are not permitted to earn fees while under disability suspension. See id. r. 35.17(5) (“No attorney suspended due to disability under this rule may engage in the practice of law in this state until reinstated by order of the supreme court.”). Nonetheless, absence for the purpose of rehabilitation,
like disability suspension s for attorneys, may be considered a mitigating factor in determining the length and adequacy of a disciplinary suspension. Cf. Clarity , 838 N.W.2d at 662

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

– 44 (Iowa 2013).
The record i n this case establishes that after a substantial period of difficult and painful struggle with alcoholism, Judge Dean has confronted her disease and now has demonstrated a deep personal commitment to recovery. She appears to have overcome the denial,

reco vered from the embarrassment, recognized the depth of the problem of alcohol dependence, and most importantly has been able to establish the kind of supportive framework associated with successful recovery over a lifetime. It has not been an easy road for her and will not always be an easy road in the future. But , the fact Judge Dean has chosen to commit herself to a disciplined program of recovery is a significant mitigating factor and offers her the potential of a continued successful judicial career. Indeed, our state is no stranger to recovering alcoholics who have performed outstanding judicial service after successf ully confronting the disease. We note that Judge Dean and the ILAP have agreed to a monitoring agreement that was in substance incorp orated into the Commission’s16

order for reinstatement. The monitoring agreement was to remain in effect for two years from the date of the order, which time period has nearly elapsed. We regard the monitoring agreement as an agreement involving Judge Dean , the ILAP , and the Commission. We do not regard the monitoring agreement as a formal sanction that requires our review on this application. The parties agreed in the event that Judge Dean fails to meet her obligations under the recovery monitoring agree ment, the Commission will be notified and additional sanctions will be considered based upon the facts and circumstances of the violation. We do believe, however, that the presence of this voluntary monitoring agreement , and Judge Dean’s successful compliance with it, provides us with additional confidence that the public will be adequately protected by the sanction we impose here today. Based upon the facts and circumstances of this case, we conclude that in order to protect the integrity of and respect for the judiciary, the application of the Commission should be granted and a thirty

- day suspension without pay should be imposed upon Judge Dean. Judge
Dean is entitled to no compensation during the course of the disciplinary suspension, except fo r fringe benefits . In order to allow for the orderly transition of judicial business, the suspension shall take effect seven days after the entry of this opinion.
IV. Conclusion
. For the above reasons, we grant the application and hold that Judge Dean should be suspended from her judicial position for a period of thirty days without pay , except for fringe benefits

. The suspension
shall commence on September 20 , 2014.
APPLIC A TION GRANTED; JUDICIAL OFFICER SUSPENDED.