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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Cummings (1/18/2013) sp-6743

In Re Cummings (1/18/2013) sp-6743

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In re Dennis Cummings,                             )    Supreme Court No. S-14692 

                                                   )   ACJC File No. 2011-012 

Judge of the District Court,                       ) 

Fourth Judicial District at                        )    O P I N I O N 

Bethel, Alaska.                                    ) 

                                                   )   No. 6743 - January 18, 2013 

                Original     Application     from    the  Alaska    Commission       on 

                Judicial Conduct. 

                Appearances:      Karen Lambert, Jamin Law Office, Kodiak, 

                Special    Counsel    for  the  Alaska    Commission       on  Judicial 

                Conduct.    No appearance by Dennis Cummings, Bethel. 

                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 

                Stowers, Justices. 

                WINFREE, Justice. 


                In   early   April   2012    the   Alaska    Commission       on   Judicial   Conduct 

(Commission) referred to us its unanimous recommendation for removal of Judge Dennis 

Cummings,       a  district   court   judge  in  Bethel.  However       in  December     2011,   Judge 

Cummings had announced his retirement and he retired shortly after we received the 

Commission's recommendation.             Judge Cummings has not participated in this matter 

before   us.    Despite   Judge   Cummings's   retirement,   we   consider   this   matter   a     live 

controversy   -   a   judge's   retirement   does   not   extinguish   the   Commission's   and   this 

court's jurisdiction to complete disciplinary proceedings, and there are important policy 

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reasons   to   do   so. After   independently   reviewing   the   record   and   the   Commission's 

recommendation         to  remove     Judge    Cummings,       we   accept    the   Commission's 

recommendation for removal. 

II.	    COMMISSION            JURISDICTION           AND     WHY      WE    CONSIDER         THIS 


               Article IV, section 10 of Alaska's Constitution creates the Commission.1 

Alaska Statute 22.30.011(a) authorizes the Commission to investigate alleged judicial 

misconduct, including violations of Alaska's Code of Judicial Conduct.2             Upon finding 

probable cause that misconduct occurred, the Commission must hold a formal hearing.3 

After the hearing the Commission must either exonerate the judge or make a disciplinary 

recommendation and refer the matter to the Alaska Supreme Court.4 

               The Commission's jurisdiction extends to a retired judge if the alleged 

misconduct occurred and the investigation began before the judge retired.5               We have 

explained that the plain meaning of AS 22.30.011(a)(3) "authorizes the [C]ommission 

to retain jurisdiction over a retired judge whose alleged misconduct occurs during a 

        1      Article    IV,   section  10   provides:    "The     powers    and   duties   of  the 

[C]ommission and the bases for judicial disqualification shall be established by law." 

        2      The preamble explains that the Code "is intended to establish standards for 

ethical conduct of judges." 

        3      AS 22.30.011(b). 

        4      AS 22.30.011(d). 

        5      In re Johnstone , 2 P.3d 1226, 1231-34 (Alaska 2000) ("Having properly 

acquired    jurisdiction,   the  [C]ommission     did  not  lose  it   merely  because   the  judge 

subsequently opted to retire."). 

                                                -2-	                                          6743

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period     of  active    judicial   service   and    who    remained     an   active   judge    when    the 

[C]ommission began its investigation."6 

                 We also have explained "that a primary purpose of judicial discipline in 

Alaska is to protect the public rather than to punish the judge."7           Judicial discipline keeps 

the public "informed of judicial transgressions and their consequences, so that it knows 

that its government actively investigates allegations of judicial misconduct and takes 

appropriate action when these allegations are proved.               Judicial discipline thus protects 

the   public   by   fostering   public   confidence   in   the   integrity   of   a   self-policing   judicial 

system."8     Additionally   a   judge   who   voluntarily   retires   may   immediately   seek   and 

receive future appointment as a judge or supreme court justice,9  but "[a] judge removed 

by the supreme court is ineligible for judicial office for a period of three years."10                   A 

decision to remove a judge would therefore protect the public by barring reappointment 

to judicial office for at least three years.  Finally, punishing a retired judge's misconduct 

provides guidance for the judiciary as a whole, highlights the importance of judicial 

         6       Id. at 1234. 

         7       Id. at 1233 (citing In re Inquiry Concerning a Judge , 788 P.2d 716, 722 

(Alaska   1990)).      "Discipline"   also   connotes   an   element   of   punishment.         See   THE 


ed. 2011). 

         8       Id. at 1234. 

         9       See, e.g., AS 22.05.070 (establishing mandatory qualifications for supreme 

court justices); AS 22.07.040 (establishing mandatory qualifications for court of appeals 

judges); AS 22.10.090 (establishing mandatory qualifications for superior court judges); 

AS 22.15.160 (establishing mandatory qualifications for district court judges). 

         10      AS 22.30.070(d). 

                                                    -3-                                              6743

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ethics,   and   protects   persons   interested   in   employing   retired   judges   by   ensuring   past 

misconduct is known to the public.11 

                For these reasons we consider the Commission's recommendation in this 



                In June 2011 the Commission received a complaint from Deputy Attorney 

General Richard Svobodny alleging that Judge Cummings had engaged in improper ex 

parte   communications   with   Bethel   Assistant   District   Attorney   Ben   Wohlfeil.         The 

Commission's Executive Director investigated the allegation and conducted a telephonic 

interview with Judge Cummings.            After finding probable cause that Judge Cummings 

had   violated   his   ethical   duty,   the   Commission   entered   formal   charges   and   held   an 

evidentiary hearing in March 2012. 

                Wohlfeil testified that on June 1 and 2, 2011, he was alone in a courtroom 

with Judge Cummings and the in-court clerk.  On both days Judge Cummings told him 

that he should read the court of appeals' memorandum opinions (MO&Js) issued on 

June   1,   2011,   "because   they   involved   matters   [he]   was   currently   litigating." After 

reading the MO&Js, Wohlfeil recognized that two of them supported his position in two 

cases    he  was    actively   litigating  before   Judge    Cummings.       Wohlfeil     notified   his 

supervisor, filed notices of supplemental authority with the court, and notified opposing 

counsel that Judge Cummings engaged in ex parte communication in the two cases. 

                Judge Cummings testified that he had no recollection of a communication 

with Wohlfeil on June 1, 2011, and that he did not read the MO&Js until June 2.  He 

further testified that on June 2 he told multiple lawyers in his courtroom, including 

Wohlfeil, interns from the public defenders office, and a lawyer from the Office of Public 

        11      Johnstone , 2 P.3d at 1233-34. 

                                                  -4-                                              6743 

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Advocacy, that they should read the MO&Js from June 1 because they were interesting. 

He claimed that he had a practice of encouraging attorneys to read MO&Js and that he 

did not know the MO&Js pertained to cases before him. 

                In   the  face   of  this  conflicting   testimony     the  Commission      found    the 

following proved by clear and convincing evidence. On June 1, 2011, Judge Cummings 

initiated an off-the-record communication with Wohlfeil.               Judge Cummings suggested 

that Wohlfeil read the Court of Appeals' June 1 MO&Js because they were relevant to 

issues Wohlfeil had pending before Judge Cummings.                  The next day Judge Cummings 

asked Wohlfeil - again off the record - whether he had read the MO&Js.  The in-court 

clerk was the only other person in the courtroom during these communications. 

                Wohlfeil read the MO&Js and determined that they supported his position 

in two cases he was litigating before Judge Cummings.                The MO&Js discussed issues 

Wohlfeil     had   not   briefed  in  the  two   cases.   Judge    Cummings       committed     judicial 

misconduct   -   his   ex   parte   communication   was   an   intentional   attempt   to   affect   the 

outcome of pending litigation. 

                The American Bar Association's (ABA) Standards for Imposing Lawyer 

Sanctions provide an analogy "insofar as possible when sanctioning judges."12  The ABA 

Standards address four questions to determine misconduct and the appropriate level of 


                The first question is "[w]hat ethical duty did the [judge] violate?"14             The 

Commission determined that Judge Cummings violated his ethical duty "to the legal 

system," finding by clear and convincing evidence that Judge Cummings violated Alaska 

        12      In re Inquiry Concerning A Judge , 788 P.2d 716, 723 (Alaska 1990).

        13      Id. at 724.

        14      Id.

                                                  -5-                                               6743 

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Code of Judicial Conduct, Canons 1, 2A, 3B(5), and 3B(7).  The Commission explained 

that Judge Cummings violated Canon 3B(7)15 by engaging in "ex parte communication 

that   had   the   appearance   of   aiding   the   prosecution"   and   "by   giving   the   prosecution 

relevant case law that may have not been available to the defense."                 The Commission 

also explained that the ex parte communication created the appearance of impropriety 

in violation of Canon 2A,16  and demonstrated bias in violation of Canon 3B(5).17  Finally, 

the   Commission   explained   that   Judge   Cummings   violated   Canon   118           by   failing   to 

"participate in . . . high standards of judicial conduct." 

                The second question is "[w]hat was the [judge's] mental state?"19                   The 

Commission found that Judge Cummings's mental state was intentional. 

                The third question is "[w]hat was the extent of the actual or potential injury 

caused by the [judge's] misconduct?"20          The Commission found that the misconduct had 

potential to injure the defendants in Wohlfeil's cases before Judge Cummings. 

        15      Canon 3B(7) provides in relevant part:  "A judge shall not initiate, permit, 

or consider ex parte communications or other communications made to the judge outside 

the presence of the parties concerning a pending or impending proceeding . . . ." 

        16      Canon 2A provides in relevant part:            "In all activities, a judge shall . . . 

avoid impropriety and the appearance of impropriety, and act in a manner that promotes 

public confidence in the integrity and impartiality of the judiciary." 

        17      Canon 3B(5) provides in relevant part:              "In the performance of judicial 

duties, a judge shall act without bias or prejudice . . . ." 

        18      Canon      1  provides    in  relevant   part:  "An     independent     and   honorable 

judiciary is indispensable to achieving justice in our society.  A judge should participate 

in establishing, maintaining, and enforcing high standards of judicial conduct." 

        19      Inquiry Concerning A Judge , 788 P.2d at 724. 

        20      Id. 

                                                   -6-                                             6743

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                The    fourth   question    is  "[a]re   there   any   aggravating     or  mitigating 

circumstances?"21  The Commission found three aggravating circumstances. First, Judge 

Cummings   had   a   prior   disciplinary   offense   for   a   similar   ex   parte   communication.22 

Second, Judge Cummings was deceptive during the disciplinary process.  Third, Judge 

Cummings had more than five years on the bench, constituting substantial experience. 

The Commission did not find any mitigating factors. 

                The    Commission      determined     that   under  Section   6.31(b)   of   the  ABA 

Standards,     disbarment     is  the  appropriate   sanction   when    a  lawyer   makes    ex  parte 

communications with the intent to affect the proceeding's outcome.                The Commission 

determined removal is an analogous sanction to disbarment and recommended that we 

remove Judge Cummings. 


                "The Alaska Supreme Court has the final authority in proceedings related 

to judicial conduct in Alaska."23      "In judicial disciplinary proceedings, we conduct a de 

novo review of both the alleged judicial misconduct and the recommended sanction.  In 

doing    so  we   recognize   that   judicial   misconduct   must   be   established   by   clear   and 

convincing      evidence."24    Although      we   have   final  authority   over  judicial   conduct 

proceedings      and   review    the   evidence    de  novo,    "we    give  some     weight   to   the 

        21      Id. 

        22      See In re Cummings, 211 P.3d 1136, 1140 (Alaska 2009) (sanctioning 

Judge Cummings for improper ex parte communication). 

        23      In re Johnstone , 2 P.3d 1226, 1234 (Alaska 2000). 

        24      Cummings, 211 P.3d at 1138. 

                                                 -7-                                            6743

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[C]ommission's        factual  determinations     involving     witness   credibility,   since   the 

[C]ommission is able to hear witnesses testify and can evaluate their demeanor."25 


               We have independently reviewed the record.            Taking the Commission's 

credibility   determination   into   account,   we   accept   and   agree   with   the   Commission's 

factual findings by clear and convincing evidence.   We conclude that Judge Cummings 

engaged in improper ex parte communications with Wohlfeil on June 1 and 2, 2011.  The 

ex parte communications were violations of AS 22.30.011(a)(3)(E) and Canons 1, 2A, 

3B(5), and 3B(7) of Alaska's Code of Judicial Conduct. Judge Cummings's mental state 

was   intentional   and   his  behavior   during   the   commission    disciplinary   process   was 

deceptive.  His repeated ex parte communications demonstrate bias for the prosecution; 

we previously sanctioned Judge Cummings for a similar ex parte communication with 

the prosecution.  Judge Cummings harmed the public when violating his ethical duty to 

the legal system and creating the appearance of impropriety. In light of the foregoing, we 

conclude that removal is appropriate. 


               Judge Cummings is REMOVED as a district court judge for the State of 


        25     Johnstone ,   2   P.3d   at   1234-35   (citing  Kennick   v.   Comm'n   on   Judicial 

Performance , 787 P.2d 591, 598 (Cal. 1990)). 

                                                -8-                                            6743 

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