SUPREME COURT OF ARIZONA 

En Banc

In the Matter of ) Arizona Supreme Court 

 ) No. JC-06-0002 

JACQUELINE McVAY, Justice of ) 

the Peace, ) Commission on Judicial 

 ) Conduct 

 Respondent. ) No. 06-181 

 ) 

__________________________________) O P I N I O N 

Review from the Commission on Judicial Conduct 

RECOMMENDATION REJECTED; REMANDED

________________________________________________________________

JONES, SKELTON & HOCHULI, P.L.C. Phoenix

 By A. Melvin McDonald, Jr.

Attorney for Jacqueline McVay

COMMISSION ON JUDICIAL CONDUCT Phoenix

 By Linda Haynes, Disciplinary Counsel

Attorney for Commission on Judicial Conduct

WILENCHIK & BARTNESS, P.C. Phoenix

 By Dennis I. Wilenchik

 William P. French

 Kathleen E. Rapp

Attorneys for Amicus Curiae Maricopa County Justice of the Peace 

Bench

________________________________________________________________

R Y A N, Justice 

¶1 This case requires us to decide whether the Commission 

on Judicial Conduct (Commission) improperly considered the 

effect a suspension would have on a judge’s retirement benefits 

in approving agreed-upon sanctions. We hold that it did. 

I 

¶2 Judge Jacqueline McVay has served as a full-time 

justice of the peace since January 1, 1989. In 1994, Judge 
2

McVay was informally disciplined by the Commission for “being 

late to court on numerous occasions without explaining the 

reasons for her tardiness to counsel, litigants, and witnesses 

who were waiting for trials to begin.” In 2003, after receiving 

other allegations, the Commission reminded Judge McVay to begin 

court proceedings on time. In 2005, Judge McVay was censured 

for being habitually tardy. Judge McVay’s punctuality improved 

for a time after her censure, but she arrived late to court on 

several occasions in 2005 and then began arriving late more 

often in 2006.

¶3 In May 2006, court staff filed complaints regarding 

Judge McVay’s behavior. The complaints alleged that Judge McVay 

often blamed clerks for her tardiness, chastised staff in the 

“public areas,” criticized clerks when files were not in order, 

and improperly interrupted meetings to require administrators, 

rather than available clerks, to look for files. The Commission 

filed formal charges against Judge McVay in October 2006. Count 

I charged Judge McVay with habitual tardiness and Count II 

charged her with improper judicial demeanor related to her 

treatment of staff. 

¶4 Judge McVay and disciplinary counsel subsequently 

submitted an agreement to the Commission’s hearing panel. As 

part of the agreement, Judge McVay conditionally admitted that 

her habitual tardiness violated Code of Judicial Conduct, Ariz. 
3

R. Sup. Ct. 81, Canons 1(A) (“A judge should participate in 

establishing, maintaining and enforcing high standards of 

conduct, and shall personally observe those standards so the 

integrity . . . of the judiciary will be preserved.”), 3(B)(8) 

(“A judge shall dispose of all judicial matters promptly, 

efficiently and fairly.”), and 3(C)(1) (“A judge shall 

diligently discharge the judge’s administrative responsibilities 

. . . and maintain professional competence in judicial 

administration . . . .”). Furthermore, she conditionally 

admitted that her absence from court during court business hours 

violated Canon 3(A) (“The judicial duties of a judge take 

precedence over all the judge’s other activities.”). She also 

conditionally admitted that by not reforming her behavior in 

response to previous discipline and censure she violated Canons 

1 (requiring that “[a] judge shall uphold the integrity . . . of 

the judiciary”), 3 (requiring that “[a] judge shall perform the 

duties of judicial office . . . diligently”), and 3(C)(1). She 

agreed that her habitual tardiness constituted “conduct 

prejudicial to the administration of justice that brings the 

judicial office into disrepute,” under Article 6.1, Section 4, 

of the Arizona Constitution. In addition, she conditionally 

admitted that several staff members requested transfers or left 

their employment in part because of her behavior. Consequently, 

Judge McVay also conditionally admitted that her treatment of 
4

staff violated Canons 1(A) and 3(B)(4) (“A judge shall be 

patient, dignified and courteous to . . . [those] with whom the 

judge deals in an official capacity . . . .”). Under the 

agreement, the Commission would, in part, require Judge McVay to 

pay a fine of $6,300;1

 she also agreed to “a two-month 

reassignment to court duties to be determined by the Maricopa 

County presiding judge” and to attend courses “in time 

management and . . . human resources management.”

¶5 The hearing panel initially “questioned the 

appropriateness of the proposed sanction” in light of Judge 

McVay’s prior disciplinary record and the seriousness of the 

charges. Judge McVay’s counsel “explained that he had 

determined after contacting the Elected Officials Retirement 

Fund that . . . if she were suspended without pay for two 

months, [she] would suffer a continuous financial loss in 

retirement that would greatly exceed the amount of compensation 

that would be lost as a result of suspension.” After further 

 

1

 The Commission believes, incorrectly, that the fine 

represents two months of Judge McVay’s salary; it considered the 

fine an additional formal sanction under Rule of the Commission 

on Judicial Conduct 18(e). Rule 18(e) provides that “[t]he 

commission may recommend the imposition of other formal 

sanctions consistent with these rules, including, but not 

limited to, the assessment of attorney fees and costs.” We do 

not decide in this case, given Judge McVay’s consent to 

imposition of the fine, whether the Commission would have the 

power under Rule 18(e) to impose a fine on a non-consenting 

judge. 
5

deliberations, the panel unanimously agreed to accept an amended 

agreement that incorporated additional provisions, the most 

significant being that Judge McVay would agree to retire at the 

end of her term in December 2008. 

¶6 Shortly thereafter, the parties filed an amended 

agreement containing the additional provisions. The hearing 

panel, through the presiding member, accepted the amended 

agreement and submitted its recommendation to this Court. The 

recommendation stated that “the hearing panel observed that 

[Judge McVay’s] 2004 censure[2] would justify a recommendation 

for a suspension but acknowledged, after discussing the matter 

with both counsel, that such a suspension would 

disproportionately affect [Judge McVay’s] retirement at the 

conclusion of her current term of office.”3

¶7 Both parties waived their right to object to the 

hearing panel’s recommendation and their right to petition this 

Court for modification or rejection of the recommendation. See 

R. Comm’n Judicial Conduct 29(a). We have jurisdiction under 

 

2

 The reference to 2004 is a mistake. Although a complaint 

had been filed in 2004 charging Judge McVay with tardiness, this 

Court censured Judge McVay for those charges in March 2005.

3

 The amended agreement stated that the Commission would have 

recommended a suspension but for her “long and faithful service 

to the judiciary in her 18 years of dedicated and productive 

service.” The Commission’s recommendation, however, made no 

reference to Judge McVay’s service in deciding that censure and 

a fine was an appropriate sanction. 
6

Article 6.1, Sections 4, 5, of the Arizona Constitution and Rule 

29(a) of the Rules of the Commission on Judicial Conduct.4

II 

¶8 Because Judge McVay had been censured in 2005 for 

conduct similar to that charged here, the hearing panel 

initially considered suspending her for two months. The 

Commission’s recommendation and the supplemental briefs of both 

parties acknowledge that the primary reason Judge McVay was not 

suspended was because of the adverse effect on her retirement 

benefits. Absent a suspension, at the end of Judge McVay’s 

current term she will be eligible to receive her full retirement 

benefits for twenty years of judicial service. 

¶9 It was improper for the Commission to consider 

collateral financial consequences in determining an appropriate 

 

4

 This Court may not exercise sua sponte review when the 

Commission on Judicial Conduct recommends censure alone. R. 

Comm’n Judicial Conduct 29(a) (“A recommendation of censure 

shall be final unless the judge or disciplinary counsel files a 

petition to modify or reject the recommendation as provided in 

paragraph (c).”). This Court does have the authority to review 

“[a]ll other recommendations for formal sanctions” on its own 

motion. Id. In addition to censure, the Commission recommended 

that Judge McVay pay a fine, which it viewed as a formal 

sanction under Rule 18(e). We therefore exercise sua sponte 

review of the entire recommendation, as the reviewable sanction 

is inseparable from censure. Cf. In re Bemis, 189 Ariz. 119, 

122, 938 P.2d 1120, 1123 (1997) (holding in an attorney 

discipline case that because a probation order, a normally nonreviewable sanction, was recommended in conjunction with a 

censure, a reviewable sanction, this Court could review both 

sanctions as they were inseparable). 
7

sanction. “[O]ur goal in imposing sanctions is to protect the 

public and foster judicial integrity - not to punish.” In re 

Lorona, 178 Ariz. 562, 567, 875 P.2d 795, 800 (1994) (citing In 

re Haddad, 128 Ariz. 490, 492, 627 P.2d 221, 223 (1981)); see 

also R. Comm’n Judicial Conduct 5.5 Taking into account the 

financial impact that a suspension would have on a judge would 

not “serve the objective of guarding the public’s interest.”6

 

In re Goodfarb, 179 Ariz. 400, 403, 880 P.2d 620, 623 (1994). 

If financial consequences were permitted to be considered in 

determining sanctions for judicial misconduct, many judges could 

avoid appropriate sanctions. The Commission, and this Court, 

must be guided by the goals of protecting the public and 

fostering judicial integrity, and not the collateral 

consequences a sanction may have on a judge. Therefore, in 

 

5

 Rule 5 provides in part the following: 

The purpose of the judicial discipline . . . system is 

to protect the public and to maintain high standards 

for the judiciary and the administration of justice. 

Any disciplinary remedy or sanction imposed shall be 

sufficient to restore and maintain the dignity and 

honor of the position and to protect the public by 

assuring that the judge will refrain from similar acts 

of misconduct in the future. 

6

 In conjunction with lawyer discipline, we have similarly 

held that “[w]e do not consider the nature of the lawyer’s 

practice, the effect on the lawyer’s livelihood, or the level of 

pain inflicted when determining the appropriate sanction.” In 

re Scholl, 200 Ariz. 222, 224, ¶ 10, 25 P.3d 710, 712 (2001) 

(citing In re Shannon, 179 Ariz. 52, 71, 876 P.2d 548, 567 
8

recommending censure and fine, the Commission improperly 

considered the financial consequences a suspension would have on 

Judge McVay’s retirement benefits.

III 

¶10 In the amended agreement, Judge McVay admitted the 

facts on the condition that the identified sanctions would be 

imposed. Because we reject the Commission’s recommendation, the 

agreement’s terms preclude us from using the conditionally 

admitted facts to impose a sanction that we would consider 

appropriate. Accordingly, we remand this matter to the 

Commission for further proceedings. 

 _______________________________________ 

 Michael D. Ryan, Justice 

CONCURRING: 

_______________________________________ 

Ruth V. McGregor, Chief Justice 

_______________________________________ 

Rebecca White Berch, Vice Chief Justice 

_______________________________________ 

Andrew D. Hurwitz, Justice 

_______________________________________ 

W. Scott Bales, Justice 

 

(1994)). We see no reason to treat judicial officers 

differently.