Below is a letter given, in January 2009, to Mr. Terry Goddard the State Attorney General asking for criminal prosecution of judge Howard Hinson.
Bear in mind that Mr. Goddard is now running for Governor of Arizona. (More on that as I post the follow on response.)
January 20, 2009
Mr. Terry Goddard; Attorney General
1275 West Washington Street
Phoenix, AZ 85007
RE: Criminal complaint against Superior Court Judge Howard D. Hinson, Jr.
Hello Mr. Goddard:
I'm writing to inform you of criminal conduct by Superior Court Judge Howard D. Hinson, Jr. (serving in Yavapai County). Based on a cross check of public Supreme Court records (attached), Judge Hinson has falsified at least 10 signed affidavits to the Arizona Supreme Court, falsely certifying that, pursuant to A.R.S. §12-128.01, he qualified to receive his pay at the time.
At this point, you might defer, suggesting I file a complaint with the Commission on Judicial Conduct for investigation. I have done that. But, sadly, the Commission only narrowly focuses on judicial conduct. The Commission does not, and will not, forward any information on criminal conduct to any law enforcement agency. Therefore, I write you for indictment / prosecution.
Now, to continue, falsifying an affidavit to receive pay is a prima facie Class 3 misdemeanor, per A.R.S. §12-128.01 (C): "Any person who issues or causes to be issued any check, warrant or payment to a judge or commissioner knowing that, pursuant to this section, such judge or commissioner should not receive his salary is guilty of a class 3 misdemeanor." The "any person" here who caused the State to issue a check to a judge who should not receive his salary is Judge Hinson himself!
I allege he committed felonies as well. Judge Hinson falsified his affidavits to the Court to receive money not yet due him, for work not yet fully rendered. Therefore, he defrauded the State of Arizona by appropriating his monthly pay under false pretenses. It should have been withheld. Considering the sums of money involved (a Superior court judge's monthly salary is about $11,000), this is felony theft per A.R.S. §13-1802.
Also, one of your staffers suggested this may also come under forgery, a class 4 felony.
A.R.S.§13-2002:
A. A person commits forgery if, with intent to defraud, the person:
1. Falsely makes, completes or alters a written instrument;
Background
Article VI, Section 21, of the Arizona Constitution requires Superior court judges to rule on any matter within 60 days. This is our Constitutional Right to a speedy trial. "Every matter submitted to a judge of the superior court for his decision shall be decided within sixty days from the date of submission thereof."
Despite the Constitution's clear requirement, the Arizona State Legislature decided that judges needed "encouragement" to obey the 60-day Rule. Hence, A.R.S 12-128-01, titled, Receipt of salary by judges and commissioners; affidavit; pending and undetermined causes; violation; classification. This law encourages judges to obey the Constitution by withholding their paycheck if a judge takes more than 60 days to rule on any matter.
So, before a judge can receive a paycheck, the Legislature requires each Superior court judge to sign an affidavit once a month, certifying that "no cause has been submitted to me for decision which remains pending and undetermined for sixty days or more since the date of submission for decision." I'll refer to these monthly Judicial Certifications as "Cert's."
Unfortunately, the Legislature relies on self-reporting, asking the judge in question if he was obeying the law that this law was meant to enforce! It presupposes all judges are honorable and don't lie. But won't a dishonorable judge, who has already broken the law, break another one? Especially if telling the truth now would put his paycheck in jeopardy? Asking anyone to self certify is like asking Bernie Madoff if he's ripping you off . . . and believing him!
Fortunately, the Arizona Supreme Court provides oversight the Legislature did not. (Although no one in the Supreme Court acts on that oversight.) Supreme Court Rule 91(e) calls for each Superior court clerk to "report to the Administrative Director of the Courts, in writing, on the last day of March, June, September and December, in each year, all matters in that court submitted for decision sixty days or more prior to the date of such report and remaining undecided on the date of the report. "Pursuant to that Rule, every Quarter each Superior court clerk in every county performs a routine audit of the judges in their bailiwick and reports their findings to the Supreme Court's Finance Office. These are known as "Quarterly's." These records form the basis for this complaint.
Analysis
There's a lot of raw data to digest from the numerous exhibits, but I've made it easy to absorb with Exhibit 1. This chart contains all the data at a glance in one easily understandable picture, where overdue matters are shown in red. (Exhibit 1 can be seen electronically, in color, at http://reportjudgehinson.blogspot.com.) For your purposes, the meat of the Exhibit is the running count of falsified affidavits, the circled numbers on the chart. (In orange highlighter.)
I started by exhaustively examining the Clerk's Quarterly's (for Yavapai County) from the 1st Quarter of 2004 to present. (Exhibits 2-1 through 2-7.) Exhibit 1 charts the data. The time line starts at the 3rd Quarter of 2006, the first "hit" in the Clerk's Quarterly where any judge in Yavapai County violated the 60-day Rule. (It was, and has ONLY ever been, Judge Hinson) The time line continues to November 2008. (I expect more violations when the December Quarterly becomes available.)
Then I charted the start and end date (if the end date was reported) of the delinquent matters the Clerk found. I charted them in the order they appear in the Clerk's Quarterly's. She found 24 delinquent matters.
Each vertical grid line on the time line represents 10 days. So six grids away from the beginning date of any matter is 60 days. Anything longer than that is a violation of the 60-day Rule, shown in red.
Then I took Judge Hinson's monthly Cert's (Exhibit groups 3 through 5), and plotted an "X" each time he falsely certified he had no cases pending beyond sixty days. For the purposes of this criminal complaint, any X in any month constitutes a falsified affidavit! Receipt of salary subsequent constitutes one count of felony theft.
Notice also that Judge Hinson consistently ruled on delinquent matters when, and only when, the Clerk's Quarterly's were being generated. It appears he did this so as to not get caught by the system, to get in "under the wire" to get his paycheck. This demonstrates premeditation, that he knows what the law is. Also, see his mea culpa letter of July 2007 (Exhibit 4-7b), where he admits being delinquent and acknowledges the law.
Request for Prosecution
It should be obvious that people in high authority should be held to a higher level of accountability. Unfortunately, in our country, where we claim "equal justice under the law," those in high authority who commit crimes are often given a pass. (Former New York Governor Eliot Spitzer, for example.) This is not right.
A Superior Court judge is expected to obey the same law he holds us accountable to. Therefore, I am asking you prosecute Judge Hinson in the strongest terms. (FYI, I have never been a litigant in Judge Hinson's court.) You have a prima facie case of ten counts of misdemeanor falsification of his affidavits. That he committed felony theft follows. Even if he resigns, as did Judge McDougall for the same violations in August 2000, justice still demands prosecution. A felony is a felony and a public servant should not be able to escape conviction for fraud by quitting. More so if he receives a pension despite his malfeasance.
Please let me know what you intend to do,
----------------------------------
Appendix A: Anticipating a Defense
Arguing Ignorance
As I perused some successful complaints to the Commission on Judicial Conduct, I was appalled to see judges plead ignorance of the law as a defense. That's never an excuse when they rule from the bench. It isn't an excuse now.
If Judge Hinson tries to argue he didn't know about the 60-day, that he didn't "knowingly" or "willfully" violate it, there is no language in the law that requires premeditation. The language of Article VI, Section 21 of the Arizona Constitution regarding the 60-day requirement is clear. And it's basic contract law that when someone swears an oath, entering an agreement, it's presumed that they have read the document to which they swore to support. A judge must know the law and not violate it. Period.
While A.R.S. §12-128.01(C) has a condition for "knowing," the Certification form itself cites the law! There is no excuse. One cannot sign the Certification form and claim to not know the law.
In fact, Judge Hinson demonstrated in his July 18, 2007 letter to the Supreme Court that he knew the law, had violated the 60-day Rule and would not receive his paycheck as a consequence. (Exhibit 4-7b) He cannot now claim to be ignorant of the 60-day Rule and the A.R.S. §12-128.01 requirement for certification.
No comments:
Post a Comment