Complaint Review: Judge Howard D. Hinson Jr. Superior Court Yavapai County

A Complaint of Judicial Misconduct against Superior Court Judge Howard D. Hinson, Jr. (Yavapai County, Arizona).

Inspection of public records shows that Judge Hinson has falsified at least 10 affidavits - Class 3 misdemeanors. Since he defrauded the State of Arizona to get his salary, he may be guilty of 10 counts of felony theft or forgery. He certainly delayed Justice for a lot of people.

A picture worth a thousand words (Exhibit 1) is here:
http://img242.imageshack.us/img242/742/exhibit1so4.jpg

Full details with downloadable Exhibits at www.reportjudgehinson.blogspot.com
Text of the complaint (except for footnotes and Appendices) follow.

If you are a resident of Arizona, please contact Terry Goddard, the State Attorney General (602.542.5025 or 800.352.8431) and ask him to prosecute Judge Hinson. The Commission on Judicial Conduct does not forward information to law enforcement. They could punish a judge for taking a bribe and never report it to law enforcement! As ROR readers know, No one is supposed to be above the law. If you have addition information for amending the complaint, please leave a reply here or at the blog.

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This is a complaint of judicial misconduct against Superior Court Judge Howard D. Hinson, Jr. (serving in Yavapai County). Based on a cross check of 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. (See Analysis.) This perpetrates fraud upon the Supreme Court and is tantamount to committing perjury before the Court.

It's also criminal. Falsifying his 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!

This may also rise to a felony. 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 salary under false pretenses. Considering the sums of money involved, this is felony theft per A.R.S. 13-1802. (A Superior Court judge's monthly salary is about $11,000.) Also, this may be a stretch, but a staffer with the Arizona Attorney General's office suggests this is also 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;

Despite the prima facie evidence, staff informs me the Commission will not report these crimes to law enforcement. I'm told it's incumbent on me to pursue this matter with the proper authorities, which I'm compelled to do.

These crimes all stem from Judge Hinson's frequent, repeated, egregious violations of Article VI, Section 21 of the Arizona Constitution, a.k.a. "The 60-day rule." Not just once, but at least 25 violations in two years! (The red zones in Exhibit 1.) None of these are "trivial," a couple miles over the speed limit. A majority are more than 30 days over the limit and one is almost 100 days over! Indeed, from informal conversations with attorneys in Yavapai County, Judge Hinson has a reputation for often taking 120 days to rule. And indeed, his reputation is warranted. According to the record, Judge Hinson is the ONLY judge in Yavapai county to violate the 60-day Rule in the previous four years.

By repeatedly violating the Arizona Constitution, Judge Hinson has, by extension, violated his oath of office. Both severely affect the Judiciary's role in society. ("If a Judge won't obey the law, why should we?") And then there's the small matter of violating the Constitutional rights of litigants and the irreparable damage that results when Constitutional rights are violated.

It shouldn't be necessary to say it, but, in light of the above, Judge Hinson has committed gross violations of the Code of Judicial Conduct. Any one of these violations erode public confidence in the Judiciary. Taken together they constitute a flood that sweeps away public confidence in the Judiciary. Any criminal charges, guilty verdicts and bad public relations that may accrue from Judge Hinson's defacto criminal conduct can only cause more damage. But since the Commission narrowly focuses on violation of the Code, I state for the record that Judge Hinson has, as a minimum, violated Canons 1, 2A, 3A and 3B(2) of the Code of Judicial Conduct. I will amplify later.

Since the Code of Conduct is codified as Rule 81 in the Arizona Court system, and since this is yet another violation of the Rules, Judge Hinson's overall disregard for the Rules seems contemptuous. As this story and the Commission's response to it becomes searchable by Google on the Internet, any unchecked conduct will completely undermine public confidence in the Judiciary.

For these reasons, I ask the Commission to thoroughly investigate Judge Hinson for these numerous offenses and respond with the appropriate discipline.

Background

***Knowledgeable readers may wish to jump to Analysis. This section is intended for public consumption, for Internet readers unfamiliar with some history and terms. "Cert's" and "Quarterly's" are introduced, the foundations for this complaint.***

Article VI, Section 21, of the Arizona Constitution is clear. The law 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, despite a sworn oath to "support" the Constitution, despite Canons of Ethics calling for judges to "comply with the law," these aren't enough to motivate all judges to grant us speedy trials. 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.

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!

History has shown that a few judges lied. In 1997, Yuma County Judge Bradshaw was suspended 90 days without pay by the Commission on Judicial Conduct for 60-day Rule violations. In 2000, Superior court judge James McDougall resigned over numerous violations and falsifications of the 60-day rule.

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

This section details Judge Hinson's numerous violations. There's a lot of raw data to digest, 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.)

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 the time of this Complaint.

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. There are at least 25 violations by my conservative count. I plotted question marks ("?") where it's not clear whether the matter had ever been resolved (no end date recorded - dashed lines) or where a violation is subject to interpretation. (See the legend of Exhibit 1 for the details on the latter.) For example, the "?" Cert for September, 2007 has no date entered. (He shouldn't have been paid.) Depending on when it was signed, it could add two more violations to the total. These two added to all the matters that "will be" pending when signed bring Judge Hinson's total at least 34 violations!

As these violations became commonplace, the clerks started emailing exchanges and Post-It Note comments to establish required end dates. (Exhibits 2-3 and 2-5b.) There's also a letter from Judge Hinson himself admitting numerous violations and their final end dates. (Exhibit 4-7b) Eventually, the Clerk started automatically reporting the end dates of his Rulings. These have defined ends in Exhibit 1.

The sheer quantity of red highlight and "X's" tell most of the story. Judge Hinson is horribly in the red.

There are also two subtle insights this chart uncovers. To see the first, note when the Clerk's Quarterly reports were generated, as marked on the time line with down arrows. Notice 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.

But he got caught once. Which brings us to the second insight. From Q2 2006 until present, Judge Hinson has consistently violated the 60-day Rule and falsified his Cert's. He's been delinquent numerous times almost every Quarter. But notice the 3rd Quarter of 2007. No violations! This violation-free Quarter is just after his mea culpa letter of July 2007 (Exhibit 4-7b), when he admitted being delinquent and was denied his pay as penalty for his sin.

My guess is that someone (the Presiding Judge?) collared Judge Hinson in July in an attempt at internal discipline. If so, it didn't work. As evident from Exhibit 1, Judge Hinson's repentance was short-lived. He returned to his old ways soon after and continues violating the law, unchecked. If internal discipline was tried and didn't work, the Commission should consider that when it rules on appropriate discipline.

Again, I point out that Judge Hinson is an aberration in Yavapai County. There's a stark contrast in the audits when you examine all the Quarterly's from Yavapai County, starting Q1 2004. They are either Black or White. They are either "N/A" indicting no violations found for that Quarter or, when there are violations, they are ALWAYS and ONLY Judge Hinson. I didn't do an exhaustive search of all the Quarterly's for all the Arizona counties, but my sense from the small sample I saw as I flipped through the reports was similar. There appear to be very few reported violations of the 60-day Rule statewide. Judge Hinson does not match up to his peers.
Code Violations

Judge Hinson has violated numerous Canons of the Code of Judicial Conduct. I trust the Commission can compile a better list than mine. But for the record, Judge Hinson has violated Canon 1 as it pertains to Integrity. This Canon focuses on "honor," defined by "maintaining and (self-?)enforcing high standards of conduct." It talks of "a judiciary of integrity," defined by "soundness of character." Judges "must comply with the law AND the provisions of this code." By falsifying affidavits (in essence perjuring himself before the Court), breaking various laws and the Rules, Judge Hinson has demonstrated he is no longer honorable. He does not comply with the law or this code. His numerous violations "diminishes public confidence in the judiciary and thereby does injury to the system of government under law."

Canon 2A, on Impropriety, requires that "a judge shall respect and comply with the law..." With numerous prima facie violations of criminal law which could lead to felonies, and even more violations of Constitutional law, Judge Hinson demonstrates he does not respect nor comply with the law. Breaking the law does not "promote public confidence in the integrity... of the judiciary." Rather, it demolishes it.

Canon 3A, on Diligence, calls for the judicial duties of a judge to "take Precedence over ALL the judge's other activities." It requires judges to perform their duties diligently. Missing the 60-day deadline 24 times is not "diligent." It's derelict. All the other judges in Yavapai County have demonstrated they can be diligent and have kept this Canon. Canon 3B echoes the previous Canons about being "faithful to the law." The evidence shows Judge Hinson to be unfaithful to his vow.

Remedy

I realize I'm overstepping my bounds, that meting out discipline is the purview of the Commission. But just as victims are allowed to suggest to judges what they think is just punishment for their malefactor, I also should be heard.

The Commission's public website list of complaints is not searchable nor user friendly, making it difficult for citizens to know what punishment has been meted out in the past for similar violations. I found a news report on the Internet that, in 1997, Yuma County Judge Bradshaw was suspended without pay for 90 days for late rulings. May I say this is too lenient in this case? Judge Hinson should be removed from office.

First, ask yourself what would you want if this happened to you? How do you make up for sleepless nights, agonizing over your livelihood, or more important, your children's future, as you wait and wait and wait for a judge make a life altering ruling? Money, time, and lives have been lost, especially in family court.

Second, Judge Hinson is not a County judge, as was Judge Bradshaw. He's a Superior court judge. While all judges are to be held to a higher standard, we expect higher judges to be held even higher.

Third, Judge Hinson has demonstrated a pattern and practice of delinquency. These aren't isolated, "small" infractions (if there is such a thing), but persistent, long term violations. He has a reputation among local attorneys for this. It appears internal discipline has been tried, without success. There is no more remedy. Further reprimands won't work. He simply should not be a judge any longer.

Former President Bill Clinton was disbarred by the Supreme Court for lying under oath. Judge Hinson has repeatedly lied to the Arizona Supreme Court by filing false affidavits with the court. Shouldn't the court be outraged?

If the Commission thinks I'm too harsh suggesting removal (but think how things would look if the authorities prosecute Judge Hinson criminally and the Commission hadn't intervened first), then may I suggest "restitution" of sorts? While no one can pay his litigants back for their suffering while awaiting his late rulings, may I suggest that the Commission suspend Judge Hinson's pay for each instance he violated the 60-day Rule, as if the system had worked at the time? Conservatively counting, that would be 25 months of suspended pay. Counting each violation separately staves off the "in for a penny, in for a pound" mentality, where multiple violations in one Cert period are no worse, penalty-wise from a judge's perspective, than a single violation.

If the Commission is more liberal, then may I suggest it suspend Judge Hinson's salary 10 months? That's one month for each false certification he filed, just as would have happened had the system worked and caught him at the time. That's based on the current known data.

Not "The End"

But there may be more evidence extant. While the Clerk in Yavapai County appears diligent, in that she found 24 violations on Judge Hinson, given Judge Hinson's reputation, there may be more unreported violations of the 60-day Rule. According to my research, Quarterly's are generated by hand as opposed to the preciseness of a computer, where start dates and stop dates would be meticulously, unwaveringly set, counted and reported.

To find any violations that may have been missed, I intend to solicit more information from the public and attorneys on Judge Hinson, via local media and the Internet. The plan is to amend this complaint as new data comes in.

I have no reason to believe Judge Hinson's judicial assistant or any judicial clerks have been covering for the judge, as was the case with Judge James McDougall and his judicial assistant, Kathy Franklin. Nevertheless, since it's happened before, may I suggest the Commission perform a thorough investigation of Judge Hinson records?

Lastly, please see Appendix B where I anticipate two defenses from Judge Hinson and rebut them in advance.

Conclusion

In a case directly on point regarding a judge who had also falsified his monthly affidavits, former Supreme Court Chief Justice James D. Cameron (a Justice at the time) said "The signing of a series of false affidavits by a judge brings the integrity of the entire judicial system into question, and is prejudicial to the administration of justice." Ariz., 1983. In re Weeks 134 Ariz. 521, 658 P.2d 174

What he said then is still true today. I pray the Commission act. And act quickly, publically and decisively.

ConcernedCitizen
Anon, Arizona
U.S.A.