Judge Hinson's Response

Judge Hinson, through his attorneys, filed a response to the Commission's Statement of Charges on April 15. (Coincidentally, the same day of my post "Can you say 'Structured?'" where I prove Judge Hinson willfully falsified his affidavits.)

Here's the original PDF document.

The full text is below, for the record, since the original PDF doesn't contain embedded text. (The following has been converted by optical character recognition software in case you find typos.)

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Mark I. Harrison, 001226
Kathleen O Meara, 026331
OSBORN MALEDON, P.A.
2929 N. Central Avenue, Suite 2100
Phoenix, Arizona 850 12-2793
(602) 640-9000

Attorneys for Respondent

STATE OF ARIZONA

COMMISSION ON JUDICIAL CONDUCT

Inquiry concerning Judge Case No, 08-308

HOWARD D. HINSON, JR
Superior Court RESPONDENT S RESPONSE TO
Yavapai County CHARGES
State of Arizona

Respondent.

Pursuant to Rule 25(a) of the Rules of the Commission on Judicial Conduct, Respondent Judge Howard D. Hinson, Jr., through undersigned counsel, hereby responds to the Statement of Charges filed on March 10, 2009 (the "Charges"). Respondent is an honest, hard-working judge, who is active and well-respected in the Yavapai County community. He has always strived to discharge his judicial duties with the utmost attention, fairness, and integrity. Respondent acknowledges, however, that he has not always resolved the matters he has taken under advisement within the sixty days prescribed by Article 6, section 21 of the Arizona Constitution. He takes responsibility for and sincerely regrets any negligence in failing to administer the matters brought before him within the prescribed time period. In addition, Respondent acknowledges and regrets his negligence in submitting inaccurate salary certifications. He has, since the time the underlying complaint in this case was submitted to the Commission on Judicial Conduct ("Commission"), instituted and diligently followed administrative procedures that ensure prompt rulings in all matters and submission of accurate salary certifications.

1. Answering paragraph 1 of the Charges, Respondent admits that the Commission has jurisdiction to pursue disciplinary proceedings against judges.

2. Answering paragraph 2 of the Charges, Respondent admits that the Charges were filed.

3. Answering paragraph 3 of the Charges, Respondent admits that he served as a full-time pro tempore superior court judge from 1996 until 2004. In February 2004, Respondent was appointed by Governor Napolitano to serve as a full time superior court judge in Yavapai County. In November 2004, he was elected, and in November 2008 reelected, to the same post. Respondent admits that he was serving as a judge at all times relevant to the allegations in the Charges.

4. Answering paragraph 4 of the Charges, Respondent admits that he is subject to the Code of Judicial Conduct.

COUNT I

5. Answering paragraph 5 of the Charges, Respondent admits that in Case 01-203 the Commission informally reprimanded him for a nine-month delay in ruling on a petition for post-conviction relief. Respondent also admits that the Commission "urge[d] [him] to rule on motions at [his] very earliest opportunity so as to avoid the possibility of delays." Respondent regrets the delay in issuing this ruling, and, in a letter to the Commission dated December 10, 2001, Respondent accepted responsibility and apologized to the petitioner for the delay.

6. Answering paragraph 6 of the Charges, Respondent admits that in Case 02-018 the Commission informally reprimanded him for an eighteen-month delay in ruling on another petition for post-conviction relief. Respondent also admits that the Commission s reprimand letter stated that his "dilatory handling of this matter [was] unjustitiable." Kespondent regrets tile delay in issuing this ruling and in a letter to the Commission dated February 28, 2002, Respondent accepted responsibility and apologized to the petitioner for the delay. Respondent asserts now, as he did then, that the delay in issuing the ruling was due primarily to Respondent s effort to give the important and complex issues raised in the petition the full and considered attention they deserved.

7. Answering paragraph 7 of the Charges, Respondent admits that in Case 04-059 the Commission informally reprimanded him. Respondent states that the Commission s reprimand letter speaks for itself. Respondent asserts, however, as he did in his letter to the Commission dated March 31, 2004, that he engaged in no misconduct in the underlying case involved in Case 04-059. Respondent s conduct can be characterized, at worst, as inadvertent oversights in making clear records of his rulings on a few of the numerous motions and petitions filed in this lengthy, contentious, and emotionally-charged case. Nevertheless, Respondent regrets that any oversights may have caused confusion for the parties in this case.

8. Answering paragraph 8 of the Charges, Respondent states that the Commission s reprimand letters speak for themselves. Respondent admits that, subsequent to receiving the Commission s reprimand letters, he sometimes neglected to issue rulings within the sixty days required by Arizona Constitution Article 6, section 21. Respondent never intentionally or knowingly extended the time for rulings on matters submitted to him, however, and was committed at all times to give each matter before him the careful and reasoned consideration it deserved. Any late rulings were the product of Respondent s being overwhelmed with the volume of filings in cases on the court s civil calendar, which he began handling in 2006, and his neglecting to develop appropriate office procedures to ensure prioritization of matters according to the dates he took them "under advisement." Since the underlying complaint in this case was filed with tHe Commission Respondent nas maae improvements in the administration of his chambers, with particular attention to ensuring that matters are resolved within the required sixty days. Now, "Under Advisement Reports" are generated by Respondent s judicial assistant to reflect the day each matter was taken under advisement and the day the sixty-day period will expire. Respondent s chambers also reviews each week s rulings on a weekly basis to be sure the Under Advisement Report accurately represents the matters Respondent took under advisement. In addition, Respondent s judicial assistant has been instructed to schedule time on Respondent s calendar for consideration and resolution of a matter when the sixty-day deadline is approaching. As an additional check, Respondent s electronic calendar program is set to remind him at thirty and forty-five days after a matter has been taken under advisement.

9. Answering paragraph 9 of the Charges, Respondent states that Article 6, section 21 of the Arizona Constitution, Arizona Revised Statutes ("A.R.S.") section 11-424.02(A), and Rule 91(e) of the Rules of the Supreme Court of Arizona speak for themselves. Respondent asserts, however, that A.R.S. section 11-424.02(A) applies only to justices of the peace and therefore does not apply to this case. Respondent states that A.R.S. section 12-128.01(A) is the analogous provision that applies to superior court judges. Respondent admits that, in 2006, he issued eight rulings more than sixty days after he took the respective matters under advisement. Specifically, in the cases indicated below, Respondent issued rulings more than sixty days after taking the matters under advisement; the time period for issuing each ruling exceeded sixty days by the number of days indicated:

CV-20060 197: 28 days

DO-20040255: 25 days

CV-20040252: 51 days

CV-20040889: 66 days

CV-20050515: 8 days

DO-20060448: 14 days

DO-9970454: 36 days

In case number CV-20050532, Respondent took a matter under advisement on August 3, 2006, and issued his ruling on January 16, 2007, exceeding sixty days by 106 days. The delay in issuing these rulings was due in part to the personal and professional challenges faced by Respondent commencing sometime during the spring of 2006. Among these challenges, which are described further below, was Respondent s father s advancing Alzheimer s disease and subsequent death, as well as the significant responsibility Respondent had for administering his father s estate. In addition, also in the spring of 2006, Respondent was reassigned from a criminal calendar to a civil calendar. As both a practicing attorney and a judge, Respondent had much less experience with civil commercial litigation and was literally overwhelmed with the dramatic increase in the volume of filings and complexity of cases on his new calendar. With no appropriate case management system in place, this workload quickly caught up with Respondent, and he proceeded diligently and in good faith and issued rulings without reference to when each matter had been taken under advisement.

10. Answering paragraph 10 of the Charges, Respondent admits that, in 2007, he issued nine rulings more than sixty days after he took the respective matters under advisement. Specifically, in the cases indicated below, Respondent issued rulings more than sixty days after taking the matters under advisement; the time period for issuing each ruling exceeded sixty days by the number of days indicated:

CV-20051175: 23 days

CV-20050267: 29 days

CV-20041053: 101 days

CV-20050837: 92 days

CV-20051019: 23 days

CV-20060209: 66 days

CV-20060641: 66 days

In case number PB-20060071, Respondent took a matter under advisement on February 12, 2007, additional materials were submitted to him on February 23, 2007, and he issued a ruling on July 16, 2007, exceeding sixty days after the later submission by 83 days. In case number CV-2006 1277, Respondent took a matter under advisement on April 10, 2007, and issued his ruling on July 16, 2007, exceeding sixty days by 37 days.

11. Answering paragraph 11 of the Charges, Respondent admits that, in2008, he issued eight rulings more than sixty days after he took the respective matters under advisement. Specifically, in the cases indicated below, Respondent issued rulings more than sixty days after taking the matters under advisement; the time period for issuing each ruling exceeded sixty days by the number of days indicated:

CV-20070916: 23 days

CV-20060617: 17 days

CV-20060837: 27 days

CV-20070489: 27 days

DO-20060917: 61 days

DO-20080107: 16 days

In case number CV-20050640, Respondent took a matter under advisement on November 15, 2007, and issued his ruling on April 15, 2008, exceeding sixty days by 92 days. In case number CV-20060566, Respondent took a matter under advisement on January 15, 2008, and issued his ruling on April 11, 2008, exceeding sixty days by 30 days.

12. Answering paragraph 12 of the Charges, Respondent states that the Canons of Judicial Conduct and In re Braun, 180 Ariz. 240, 241, 883 P.2d 996, 997 (1994), speak for themselves. Respondent recognizes that it is not within his authority, but within the authority of the Commission s hearing panel or hearing officer, to determine whether Respondent s conduct, as described above, constitutes violations of the Canons of Judicial Conduct specified in paragraph 12 of the Charges The Code of Judicial Conduct also assigns to the hearing panel or hearing officer the power to make specific recommendations regarding sanctions, if appropriate, in light of mitigating facts, which are discussed elsewhere in this Response.

COUNT II

13. Answering paragraph 13 of the Charges, Respondent states that A.R.S. section 12-128.01(A) speaks for itself.

14. Answering paragraph 14 of the Charges, Respondent admits that, between September and December 2006, he submitted three inaccurate monthly salary certifications, on October 29, November 8, and December 12. Respondent further admits that he collected his salary for each of those three months. Respondent denies the remaining allegations in paragraph 14. In addition, Respondent states that the judicial monthly salary certifications signed by him are neither "affidavits," nor sworn statements, nor statements made under penalty of perjury. Respondent further states that he never intentionally or knowingly submitted inaccurate salary certifications. Rather, as described more fully below, his submission of inaccurate certifications was, at most, negligent. See In re Creede, 729 P.2d 79, 79, 42 Cal.3d 1098, 1099 (1986) (concluding that the court s order itself was the appropriate sanction when a "diligent, hardworking and highly respected judge" filed inaccurate salary certifications because the judge did not knowingly falsify the certifications and "did not intentionally or maliciously disregard his adjudicative responsibilities"); cf In re White-Steiner, 219 Ariz. 323, --- ¶ 15, 198 P.3d 1195, 1198 (2009) (defining and distinguishing negligent and knowing misconduct in the context of lawyer discipline).

15. Answering paragraph 15 of the Charges, Respondent admits that, in 2007, he submitted three inaccurate monthly salary certifications, on April 2, May 8, and June 7. Respondent states that he collected his salary for each of those three months. Respondent regrets his negligence in submitting these inaccurate certifications. Yet, Respondent s review of his pending matters under advisement rarely coincided with submission of his monthly salary certifications. Instead, Respondent was prompted to review his matters under advisement only when the clerk of the court issued court-wide quarterly reports of submitted matters. The one time Respondent was consciously aware that he could not truthfully make the required certification, he delayed signing it until he resolved those cases that had been under advisement for more than sixty days. This occurred in July 2Q07, when the clerk s quarterly report for the second quarter of 2007 showed that Respondent had seven overdue rulings. Respondent delayed his certification for July 2007 until after he resolved the pending matters.

16. Answering paragraph 16 of the Charges, Respondent states that, in 2008, he submitted five inaccurate monthly salary certifications, on January 25, March 10, March 27, August 11, and September 9. Again, Respondent regrets his negligence in submitting these inaccurate certifications. He has now put in place procedures to prevent future inaccurate certifications. Specifically, before Respondent signs a salary certification, he reviews his current Under Advisement Report maintained by him and his judicial assistant to determine whether any matters remain pending past the sixty-day mark. Attached as Exhibit A are Respondent salary certifications for February, March, and April 2009, along with the corresponding Under Advisement Report for each certification.

17. Answering paragraph 17 of the Charges, Respondent states that the Canons of Judicial Conduct, In re Weeks, 134 Ariz. 521, 525, 658 P.2d 174, 178 (1983), Judicial Ethics Advisory Opinion 92-10 (1992), and In re Jensen, 24 Cal. 3d 72, 593 P.2d 200 (1978), speak for themselves. Respondent recognizes that it is not within his authority, but within the authority of the Commission s hearing panel or hearing officer, to determine whether Respondent s conduct, as described above, constitutes violations of the Canons of Judicial Conduct specified in paragraph 17 of the Charges. The Code of Judicial Conduct also assigns to the hearing panel or hearing officer the power to make specific recommendations regarding sanctions, if appropriate, in light of mitigating facts, which are discussed elsewhere in this Response.

COUNT III

18. Answering paragraph 18 of the Charges, Respondent admits that until December 2008 he neglected to institute a comprehensive administrative case tracking system to ensure that he ruled on matters within the time period prescribed by Arizona Constitution Article 6, section 21 and to ensure that he reviewed outstanding matters under advisement before submitting his monthly salary certifications. Respondent regrets his failure to institute a comprehensive administrative case tracking system when he assumed his position as a trial court judge, but asserts that his failure to do so was due to negligence and was not intentional or knowing misconduct. After the complaint in this case was submitted to the Commission, Respondent instituted a comprehensive administrative case tracking system and has diligently followed such procedures. Respondent is now current on all matters before him. Attached as Exhibit B are the court clerk s quarterly reports for the last quarter of 2008 and the first quarter of 2009, showing no matters pending past sixty days.

19. Answering paragraph 19 of the Charges, Respondent states that the Code of Judicial Conduct and In re Braun, 180 Ariz. 240, 241, 883 P.2d 996, 997 (1994), speak for themselves. Respondent recognizes that it is not within his authority, but within the authority of the Commission s hearing panel or hearing officer, to determine whether Respondent s conduct, as described above, amounts to violations of the Canons of Judicial Conduct specified in paragraph 19 of the Charges. The Code of Judicial Conduct also assigns to the hearing panel or hearing officer the power to make specific recommendations regarding sanctions, if appropriate, in light of mitigating facts, which are discussed elsewhere in this Response.

20. Answering paragraph 20 of the Charges, Respondent states that Arizona Constitution Article 6.1, section 4 speaks for itself.

21. Answering paragraph 21 of the Charges, Respondent admits that previous reprimands by the Commission, discussed in paragraphs 5 through 8 above, may be considered by the hearing panel or hearing officer in making recommendations on discipline.

22. Respondent denies any allegation in the Charges that Respondent has not expressly admitted in this Response.

MITIGATING FACTS

23. At all times relevant to the Charges, Respondent has taken his oath of office and responsibility as a jurist seriously and has acted in the utmost good faith. He was and is committed to discharging his judicial duties with integrity and fairness.

24. Respondent acknowledges and takes full responsibility for his negligence in failing earlier to develop appropriate office procedures to ensure that matters were resolved within sixty days and to ensure that his monthly salary certifications were accurate.

25. Respondent has taken corrective action. He is now current on all matters pending before him and has instituted several layers of administrative checks to prevent untimely rulings and inaccurate certifications.

26. Respondent s untimely rulings and inaccurate salary certifications reflect, at most, negligent conduct. Though not excusable, Respondent s improper conduct was never intentional or knowing. Cf In re White-Steiner, 219 Ariz. 323, ¶ 15, 198 P.3d 1195, 1198 (2009) (stating in lawyer discipline case that misconduct is negligent when a lawyer "fails to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation" and that knowing misconduct "requires the conscious awareness. . . that [the lawyer s] conduct does not conform to the requirements" of the rules allegedly violated) (emphasis added) (citations and internal quotation marks omitted).

27. Beginning around spring of 2006, personal and professional challenges arose that contributed to Respondent s failing to rule on matters within the required sixty days. By that time, the health of Respondent s father had been deteriorating for some time due to Alzheimer s disease. Respondent s stepmother, elderly herself, suffered a fall during the 2005 holidays and could no longer provide her husband with the care he required. By the spring of 2006, the progression of his father s disease and the state of his stepmother s health left Respondent and his siblings no choice but to place his father in an assisted living facility. The difficulty of this decision for Respondent was heightened because his father had been a successful businessman and his deteriorated condition marked a substantial and disheartening decline from his earlier abilities and activities. Unfortunately, although the disease caused his father to be disoriented and forgetful much of the time, he was sufficiently aware of his new situation to be displeased and depressed. Respondent s father died just a few months later in July 2006, and Respondent was then required to assume and discharge significant responsibility for his administering his father s complicated estate. Adding to the family s emotional and logistical burdens, at the end of 2005, the father of Respondent s wife also fell ill from pulmonary disease and after some time in the hospital was discharged to hospice care. He was expected to survive only a short time, but lived in hospice for over a year. In retrospect, Respondent recognizes that the combined effect of these personal problems undoubtedly adversely affected his mental state and his lack of efficiency in dealing with his workload, which increased in volume and complexity around the same time.

28. The spring of 2006 also brought a major change in Respondent s judicial service, when his assignment changed from a criminal to a civil calendar. Until that time, as both a practicing lawyer and a judge, Respondent had little experience with civil commercial litigation. He had begun his legal career in 1976 with the Yavapai County Attorney s Office. After about two years, he went into private practice as a sole practitioner and handled primarily criminal defense, domestic relations, and family law cases. Eventually, his practice became more focused in the areas of juvenile dependency, child custody, and adoption matters until he took the bench in 1996. At the present time, Respondent handles fifty percent of the civil, domestic relations, and probate matters in the Prescott District of Yavapai County, and he presides over drug court every other Tuesday. As a result of the change in the nature of his caseload, Respondent was overwhelmed with the dramatic increase in the volume of filings and complexity of cases on his new calendar. Because of his inexperience with civil commercial matters, Respondent was ill equipped to accurately estimate the time burdens implicated by cases on his new calendar or to put in place administrative procedures to ensure that matters were prioritized and consistently handled in a timely manner, Like Respondent, his judicial assistant had little experience with civil litigation, and neither had any specific training or orientation pertinent to the administrative aspects of the case-calendar system. Thus, they together tried to navigate the difficulties of a civil calendar as neophytes, placing great dependence on the guidance of Judge Mackey and his judicial assistant, who handle the other half of the civil calendar in the Prescott District of Yavapai County and who were as helpful as possible.

29. With no reliable system in place to manage it, the heavy workload quickly caught up with Respondent. Files that required his consideration for one reason or another began piling up on every surface in his office, with no rhyme or reason as to when or if they had been taken "under advisement" for purposes of the sixty-day rule. Respondent now recognizes that while he was properly focused on giving each case the careful and reasoned consideration it deserved, he did not concurrently ensure that his decisions complied with the sixty-day rule. He was prompted to take the rule into account only when he received the court clerk s quarterly reports.

30. Respondent s signing of his salary certifications rarely coincided with his consideration of the clerk s quarterly reports. Typically, Respondent s chambers would receive a monthly phone call from the state payroll administrator asking him to sign and fax the certification as soon as possible. Otherwise, Respondent s judicial assistant would usually include a certification within a folder of administrative paperwork that required signatures from Respondent. On those occasions when Respondent signed an inaccurate certification, he had no conscious awareness of his error because he did not then review each pending case to determine whether it had been "under advisement" for more than sixty days. Rather, his failure to institute appropriate office procedures caused his tardiness in resolving cases and related negligence in signing the inaccurate certifications.

31. The one time Respondent was consciously aware that he could not truthfully make the required certification, he delayed signing it until he resolved those cases that had been under advisement for more than sixty days. The clerk s quarterly report for the second quarter of 2007 showed that Respondent had seven overdue rulings. After receiving the report in late June 2007, Respondent set himself to the task of their timely resolution. Around July 16, fearing he could not meet this goal within a reasonable time, Respondent went so far as to draft a letter to Chief Justice McGregor asking her to grant him an extension. Instead of completing delivery of the letter to the Chief Justice, Respondent further delayed his certification for several more days until after he resolved the pending matters.

32. Respondent s good character is reflected in his service to the community. He is an Air Force veteran, has served as a judge for over a decade, and has contributed to his community in numerous other ways. Respondent s professional contributions include service as a member of a State Bar Discipline Committee, officer of the Yavapai County Bar Association, and member of the State Foster Care Review Board. He was a charter member of the Arizona Attorneys for Criminal Justice, a member of the National Association of Counsel for Children, and a resource member of the Arizona Supreme Court Commission on Juvenile Justice. He is presently a member of the National and Arizona Associations of Drug Court Professionals.

33. Respondent has also been active in his community in non-legal settings. He served for many years on the Board of Directors of the Yavapai Rehabilitation Center (now known as Yavapai Exceptional Industries), an organization that provides meaningful employment opportunities for disabled adults. He was on the Board of Directors for Little League of Prescott for several years and also officiated at high school baseball and basketball games under the auspices of the Arizona Interscholastic Association. In fact, the Yavapai County Bar Association honored Respondent in 2005 with the Honorable Jack L. Ogg Award, given in appreciation of Respondent s "promoting a positive image of lawyers to the general public through his exemplary community service in activities outside of the legal profession."

34. In addition, Respondent has an excellent reputation in the Yavapai County community and is held in high regard by prominent members of the Yavapai County bench and bar.

35. As noted above, Respondent has taken corrective action to remedy his previous inefficiencies. He remains committed to discharging his duties as carefully and efficiently as possible for the remainder of his term.

RESPECTFULLY SUBMITTED this 15th of April, 2009.

OSBORN MALEDON, P.A.

By

Mark I. Harrison
Kathleen O Meara
2929 N. Central Ave., Suite 2100
Phoenix, Arizona 850 12-2793
Attorneys for Respondent

ORIGINAL of the foregoing filed
this 15th day of April, 2009, with:
Commission on Judicial Conduct
1501 W. Washington, Suite 229
Phoenix, AZ 85007-3329

COPY of the foregoing mailed this day of April, 2009, to:
Linda Haynes
Disciplinary Counsel
Commission on Judicial Conduct
1501 W. Washington St., Suite 229
Phoenix, AZ 85007