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SUPREME COURT OF LOUISIANA
NO. 97-O-1143 IN RE: JUDGE THOMAS P. QUIRK ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA

KIMBALL, Justice.* ISSUE This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that Respondent, Judge Thomas P. Quirk, of the Lake Charles City Court, State of Louisiana, be, inter alia, suspended without pay for a period of one year and ordered to reimburse to the Judiciary Commission the costs incurred in the investigation and prosecution of this case. The Judiciary Commission conducted an investigatory hearing, made findings of fact and law, and determined that Respondent violated Canons 2A, 2B, 3A(1) and 3A(4) of the Code of Judicial Conduct and engaged in willful misconduct relating to his official duty and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. La. Const. Art. V., 25(C). After reviewing the record before us, however, we conclude the Commission's recommendation of discipline should be rejected.

PROCEDURAL HISTORY On December 12, 1995, the Judiciary Commission filed Formal Charges consisting of four separate charges against Judge Thomas P. Quirk. Charge I alleged that Judge Quirk had sentenced and ordered in excess of 1,200 defendants to attend church once a week for one year. Charge II alleged Judge Quirk had ordered family members of defendants appearing before him to attend church. The conduct underlying these charges was alleged to be in violation of the Establishment Clause of the First Amendment to the

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Traylor, J., not on panel. See Rule IV, Part 2, Section 3. 1

4 United States Constitution1 and Canons 2A2, 3A(1)3 and 3A(4) of the Code of Judicial Conduct. Charge

III generally alleged, inter alia, that Judge Quirk directed his personal attorney, who was representing him before the Judiciary Commission and in federal district court on matters pertaining to the church sentencing, to file responsive pleadings on behalf of the City of Lake Charles in the matter City of Lake Charles v. Thompson, No. 94-1451, in which the defendant was challenging the constitutionality of Judge Quirk's sentence of church attendance, without disclosing the simultaneous representation to the court of appeal or to Thompson's attorney, in violation of Canons 15, 2A, 3A(1) and 3A(4) of the Code of Judicial Conduct. Charge IV alleged Judge Quirk on August 29, 1994 and again on September 21, 1994 had written letters in his official capacity on his official court stationery to a judge in Tennessee seeking mercy on behalf of his brother-in-law.6
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The First Amendment to the United States Constitution provides, in pertinent part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... Canon 2A, effective January 1, 1976, and prior to its amendment on July 8, 1996, provided: "A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The amendment to this Canon in 1996 provided that the word "should" was changed in each instance that it occurred to "shall." Canon 3A(1), effective January 1, 1976 and prior to its amendment on July 8, 1996, provided: "A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism." The amendment to this Canon in 1996 provided that the word "should" was changed in each instance that it occurred to "shall." Canon 3A(4), effective January 1, 1976 and prior to its amendment on July 8, 1996, provided: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials or others subject to the judge's direction and control to do so." The amendment on July 8, 1996 provided that the word "shall" should be substituted for "should" in each instance that it occurred and deleted the illustrative phrase "including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status." Canon 1 provided, prior to its amendment on July 8, 1996: "An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of judicial independence." The amendment on July 8, 1996 provided that the words "should be" before "construed and applied" were changed to "are to be." The substance of this charge was previously included in a charge against Judge Quirk filed on December 19, 1994. At a hearing on March 10, 1995 regarding that charge, Judge Quirk and the Commission agreed to participate in a deferred discipline agreement, the conditions of which were: (1) 2
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A hearing was held on September 27 and 28, 1996, and on April 30, 1997, the Commission issued its "Findings of Fact and Conclusions of Law" indicating its belief that Charges I, III and IV had been proven by clear and convincing evidence and constituted a violation of Canons 2A, 2B, 3A(1) and 3A(4) of the Code of Judicial Conduct.7 The Commission recommended a suspension without salary for six months for Charge I and a suspension without salary for six months for Charge III.8 The Commission additionally recommended that the suspensions run consecutively, that Judge Quirk be ordered to pay the costs of the investigation and prosecution of the case in the amount of $6,835.70, that he be ordered by this court to refrain from sentencing any defendant who comes before his court to attend church or to attend any program that includes religious precepts, and that he be ordered to tape record all his court proceedings and retain them for inspection by this court and the Commission.

DISCUSSION A. JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF This court has original jurisdiction in judicial disciplinary proceedings. La. Const. Art. Sec. 25(C). Therefore, this court has the power to make original determinations of fact based upon the evidence in the record and is not bound by, nor required to give any weight to, the findings and recommendations of the Judiciary Commission. The grounds for disciplinary action against a judge are set forth in La. Const. Art. V, Sec. 25(C) which provides: On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful

that Judge Quirk consent to a private reprimand by the Commission; (2) that Judge Quirk would take an additional 6 hours of ethics taught as continuing legal education in the next two years; (3) that Judge Quirk would write a letter of apology to the Tennessee judge apologizing for the previous communications; and (4) that Judge Quirk pay the costs associated with the investigation and hearing. There is no indication by the Commission in the instant action that Judge Quirk failed to comply with the terms of the deferred discipline agreement. The Commission concluded that Charge II was not proven by clear and convincing evidence. This court's disciplinary power can only be invoked upon the judiciary commission's recommendation of discipline with respect to a charge. See In re Huckaby, 95-O-0041 p. 4 (La. 5/22/95), 656 So.2d 292, 295 and La. Const. Art. V, Sec. 25(C)("On recommendation of the judiciary commission, the supreme court may" discipline a judge.), and the discussion, infra. Accordingly, we will not address this Charge. The Commission did not submit a separate recommendation for discipline with respect to the misconduct as alleged and found to be proven by clear and convincing evidence in Charge IV. 3
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misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss or salary, during the pendency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings. Under its supervisory authority over all lower courts, this court adopted the Code of Judicial Conduct, effective January 1, 1976. This Code of Judicial Conduct is binding on all judges, and violations of the Canons contained therein may serve as the basis for the disciplinary action provided for by La. Const. Art. V, Sec. 25(C). In re Marullo, 96-2222 p. 3 (La. 4/8/97), 692 So.2d 1019, 1021; In re Decuir, 95-0056 p. 7 (La. 5/22/95), 654 So.2d 687, 692. On the other hand, however, it is not necessary that there be a violation of a Canon of the Code of Judicial Conduct for there to be constitutional misconduct under Article V, Section 25(C). "If there is misconduct as defined in the Constitution, it is irrelevant that no ... ethical canon has specifically been violated." In re Lemoine, 96-2116 p. 2 (La. 4/4/97)(on rehearing), 692 So.2d 358, 359. The standard of proof in judicial discipline cases is the clear and convincing standard. In re Johnson, 96-1866 p. 7 (La.11/25/96), 683 So.2d 1196, 1199; In re Huckaby, 95-0041 p. 6 (La. 5/22/95), 656 So.2d 292, 296. This standard requires that the level of proof supporting the Commissions' factual findings must be more than a mere preponderance of the evidence but less than beyond a reasonable doubt. Id. For purposes of clarity, we will discuss the charges individually. B. CHARGE I: From some time in 1993 until November of 1994, Judge Quirk sentenced 540 defendants, who appeared in his court for various traffic offenses and misdemeanors, to attend a church of their choosing once a week as a condition of probation. Not one of these defendants objected at the time of sentencing.9 After a complaint challenging this practice was filed against Judge Quirk with the Judiciary Commission in

Judge Quirk testified in the formal hearing that in all of these cases, he would ask the defendants if they went to church, and, after they indicated in the affirmative, only then order church as an attendance of probation. 4

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November of 1994, Judge Quirk began offering church attendance, as a condition of probation, only to those who specifically requested it. Approximately 969 defendants were sentenced in this fashion. After the complaint was filed in November of 1994, Judge Quirk sent a letter dated December 5, 1994 to the 540 defendants previously sentenced to attend church advising them that if they objected to the sentence of church attendance, he would provide to them the opportunity to be re-sentenced. Ten defendants elected to be resentenced. Judge Quirk testified he employed church attendance as a condition of probation only in cases where he perceived the defendants to be unable to afford a fine or court costs, and, the church sentence was given in lieu of jail time, a fine, court costs or some other typical condition of probation. Judge Quirk also testified the total number of people given church attendance as a condition of probation constituted about 3% of his docket. The defendants sentenced to attend church were required to pay a $25.00 administrative fee to the Safety Council of Southwest Louisiana which monitors attendance on behalf of the court of defendants at various programs which are made conditions of probation such as defensive driving classes, alcoholics studies classes, and the community service program. With respect to the church attendance monitoring program, the defendant is given a card to be returned to the Safety Council which must be signed by a "church official" verifying the defendant has attended church for that week. There is no evidence to dispute Judge Quirk's testimony that the defendants could attend a church or religious institution of their choosing, they could attend any church function, such as a "men's meeting," and not just religious services, and they were not required to profess any belief in any religion. During the hearing before the Judiciary Commission, Judge Quirk explained he adopted this sentencing practice because the normal sentence for certain offenders of jail and/or payment of fines and court costs was not an option because he had been informed there was no room in the jail for these types of offenders and because some offenders could not afford the fines or court costs. He preferred attendance at church as a condition of probation because it was a free service, it was usually "open" and "readily available," even during travel out of town, and because the Safety Council monitoring fee was only $25.00 as compared to the $75.00 fee required for participation in the Community Service program. The Judiciary Commission, after a hearing, issued Findings of Fact and Conclusions of Law in which it found that Judge Quirk's "church sentences" are "clearly" unconstitutional under the First 5

Amendment of the United States Constitution10 and Article I, Sec. 8 of the Louisiana Constitution of 197411, and that Judge Quirk's imposition of these illegal sentences violates Canons 2A, 3A(1) and 3A(4) of the Code of Judicial Conduct because it constituted a pattern of committing egregious legal error in violation of defendants' constitutional rights made in bad faith in order to further a bias toward religion. This case squarely presents an issue of first impression in Louisiana, and that is under what circumstances may legal error by a judge constitute grounds for a finding of judicial misconduct. It is with great care that we address this issue, for subjecting a judge to discipline because of an erroneous legal ruling has the potential to trammel the exercise of judicial discretion and stifle the independence of the judiciary. Judicial independence is a cornerstone of our legal system as is recognized in Canon 1 of the Code of Judicial Conduct, which states that "[a]n independent and honorable judiciary is indispensable to justice in our society."12 Furthermore, the provisions of the Code are to be construed and applied to further the objective of "independence of the judiciary", and, as "a necessary corollary, the judge must be protected in the exercise of judicial independence." Code of Judicial Conduct, Canon 1 (1996). See also Ben F. Overton, Grounds for Judicial Discipline in the Context of Judicial Disciplinary Commissions, 54 Chi. Kent L. Rev. 59, 66 (1977)("To allow disciplinary proceedings to evaluate judicial decisions could force judges to walk an ill-defined and standardless line between propriety and impropriety. Clearly, such a sword over a judge's head would have a tendency to chill his independence."); Shaman, J. Judicial Conduct and Ethics,

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