HARRIS v SMARTT
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IXQUIRY COKCERNiNii COi.fPi.,tiNTS OF: SAMUEL. L. HARRIS and l K O Y NELSOX DYE, ViICHAEL S SMARTT, Justtce of the Peace, Respondent ORIGINAI PROCEEDING COUNSEL. OF RECORD. For Complalilants: Gregory G Gould, Spccidl C o ~ ~ t ~ s ethe Judrclal Slandards Comm~ss~on, for l Luxan and Murfitt, PLLP, I-leleiia, Montana For Respondent: Chann~tig I-fartellus, Hartel~iis, J Fcrguson, Baker and Kalda. Great Fttlls, Montana Mlcliacl S Smarlt, Great Falls, hlontdna Sub~iilttcd.March 6, 2002 Dccidcd. Octobcr 15,2002 justice W . William Leaphart delivered the Opinion ofthc Court. Iii The Judicial Standards Commission (ihc Cornmission) has filed a forniai Opinion arid Kccummendation in this Court following a hearing on allegations made against Chscade County Justice of the Peace Michael S. Smartt by Cascade County Justice of the Peace Sam Harris and Troy Nelson Dye. The Commission has recommended that Smartt be removcd from office. Smartt has filed exceptions to the proceedings before the Commission in which he raises 39objections. U'e substantially agree with the findings of the Commission and suspend Smartt without pay through the end of his tetln, December 3 1, 2002. 72 1 LVc consolidate Smartt's objections as follows: 73 1. Did the Commission commit any prejudicial error which requires revcrsal or dismissal of the proceedings or the complaints? 14 2. Were the Commissionprocccdings conductedinviolation of the confidential~ty provisions of Montana law? 115 3. Did the Commission e n in denying Smartt's motion to disqualify Chairman Warner'? Sh 3. Did the Commission err in denying Smartt's motions for continuance? 1 '7 5. Did the Cotnmission err in denying Smartt's motion to suppress evidence? 78 6. Did Smartt's conduct violate the Canons of Judicial Ethics? 79 1 7. What appropriate sanction should this Court impose'? qil0 8. Should Srnartt be assessed and ordered to pay thc costs of this proeecding'! Facrs and i+ocedurai Br~r/cg~*or*nd 71 I The Cascade County Justice Gaud bas tw-o Justices, denominated as Deparln~entsI and 2. Michael Smartt was sworn in as Justice of the Peace (JPj for DepaiTmcni 1 in January 9 9 9 Sanluel B. Harris took office as Justice of the Peace for Department 2 in June 1999. separated into two departments, operates on a single budget and a single The court, altl~ough filing system. Office staff work for both departments and are not separately assigned. The two JPs share supervisory responsibilities over the Justice Court office staff. 72 Tlte Justice Court office includes a general office area where the office clerks and manager generally work. The two JPs each have separate enclosed chambers within the general office area. Tl-te entire Justice Court office area has an outer door that is locked to restrict access to the general public. All office staff, the two JPs and tllc custodial staff have keys to the main Justice Court offices. Justice Court office staff routinely and frequently go trials, in and out of both JPs' chambers daily to locate files, put files in slots for upeo~ning update calendars and ask questions. 713 For purposes of performing judicial duties, each JP was provided with a desktop computer used in chambers and a laptop computer. These were paid for by Cascade County and the State of Montana at public expense. The JPs were provided internet access on their computers, also at county expense. 114 The desktop computers used by the JPs and office clerks for word processing and calendaring \yere joined together on a network. The passwords on the JPs' computers were "Judge I" and "Judge 2" respectively, and the passwords for each were known to the other JP and to some of the office staff. 715 Susan Stevenson has been employed bq-ths Cascade County Justice Court for 22 ycars and has been the office manager for at least ten years. Her duties include shutting down the office at the end of each working day, including checking that computer monitors are shut off daily and shutting down the entire system at the end of the day on Fridays. 716 Staff were not required to obtain permission to enter the JPs' chambers, unless there was someone in chambers with the judge. Stevenson testified that she occasionally entered Sn~artt's office and opened his desk drawer to put in money from weddings, whether or not Smartt was present. Additionally, she would occasionally answer the phone when she was in Smartt's chambers and access the calendar on Smartt's computer to provide information to the caller. At times Smartt would call Stevenson and ask her to look for something on his desk. County computer support staff also entered the Jps' chambers to perform computer support. 1 7 On Friday, October 13, 2000, Stevenson mentioned to Harris that she was having difficulty with the automated backup system on the network. She indicated that staff members often leave programs open on their computers, which cause the backup program ro fail. She also told Harris that a staff person in the computer support departinent had told her that Judge Smal-tr's computer must have been in one of the programs on a previous occasion when the backup program failed. She requested Harris's help in shutting down Srnartt's computer so she would not delete any open documents. Srnartt had left earlier in the afternoort. 71 8 Stevenson and Harris entered Smartt's chambers and went around h i s desk to check his computer tcminal. The terminal screen was darkened in the "energy save" mode. Stevenson touched the mouse to reactivate the screen and clicked on the toolbar. At that point, three pornographic pictures came up on the screen. Two of the pictures showed individual men masturbating and the third picture showed turo men engaged in oral sex. Stevenson said, "Oh my God," and ran from the office. Harris testified that it was clear from the box surrounding the pictures that they came from an internet website. Harris printed the screen to record what he and Stevenson had seen, and then hc hit the power button on the computer and shut it off. 1 9 Harris returned to Smartt's chambers on the follouring Sunday and accessed the short term history file in the Internet Explorer program on Smartt's computer. He found and recorded twenty days of website activity, includingapproximately 105 websites that appeared to be "quite obviously pornographic." 720 Throughout the next few days, Harris retuined to Smartt's chambers and monitored any new internet activity. At some point during this time, Hanis took digital photographs of the temporary internet files on Smartt's computer which recorded website access beginning in August 2000. 72i Subsequently, Harris filed a sexual harassment complaint against Sniarrr with Cascade County and a complaint~iih Judicial Srdndards Commission. Additionally, Harris made r'ne a report to the FBI because the names of some of the websites accessed on Smartt's computer indicated that they were meant to portray child pornography. The FBI obtained a scarch warrant and seized Smartt's desktop computer and his laptop computer. The FBI found that the two computers contained in excess of 18,000 pornographic images or files. The images found did not contain child pornography, although an FBI agent stated that they "pushed the limit." y22 Smartt admits using the county internet service and his county computer to access sexually explicit material on the internet. He testified that his access of this material was birthday. He related to a joke birthday card he was planning for his wife's upcoming 50Lh told the 12BI investigator that he had about thirty to forty pornographic picture files on his desktop computer. 123 Upon receiving Hanis's complaint, the Judicial Standards Commission sent a copy of the complaint to Smartt. The Commission received Smartt's response inNovember 2000 and directed the Honorable John Warner, chairman of the Commission, to pursue an infom~al resolution of the complaint. Sometime in late November, Warner became aware of a Montana Department ofjustice Criminal Investigation Bureau (CXB) investigation of Sm~rtt. He thought the investigation may be related to the Harris complaint and applied to the First dudiciai Districr Court for release of the CiB file. 'The court ordered release of thc file and rhc Commission received the file on December 4,2000. *24 Upon review of the file. Warner discovered that the investigation did not concern the Harris complaint, but rather concerned a factual allegation of criminal conduct made by Troy Dye against Smartt. Dye testified that he met Smartt on the street in Sydney, ?~lontana, sometime in early May 2000. Smartt introduced himself to Dye and said he was a Cascade County JP or judge and that he was in town for a conference. Dye responded that "maybe I shouldn't be talking to [you] because 1 had sonle trouble with the law." Smartt then invited Dye to come back to his motel room and have a drink and discuss Dye's legal problems. Srnartt told Dye that he "wasn't a cop, he couldn't arrest me." 1/25 Smartt and Dye went to Smartt's room and had two or three drinks each. They disc~tssed general things and also talked about outstanding warrants on Dye. Smartt testified that he told Dye, "You know you're going to be arrested if you attract attention so why don't he you just keep your nose clean and behave." Sntartt also testified that Dye told h ~ m was fixing up a house in Sydney. Because Smartt is also interested in building, lte and Dye walked from the motel to Dye's house. Dye testified at the hearing that he and Smartt smoked marijuana while at Dye's house, but Smartt testified that they only went there to see the house and did not stay long. He emphatically denied smoking marijuana with Dye. 726 \tihen they left Dye's house, they walked to the Ranger Bar to have dinner. Dye "like to go to his room and take a testified that while eating, Smartt asked him if he ~vould shower with him." The statement shocked Dye and he got up and left. Srnartt testified fhat he never asked Dye to take a shower with him, but instead, Dye told him at rhc bar that he had no running water in his house and he really needed a shower. Smaltt replied that Dye could have taken a shower earlier when they were at Smartt's motel room. Smartt testified that Dye was "getting toasted," and he inexplicably got up and left. !j27 According to Smartt's version of events, after Dye disappeared, Smartt went and checked the bathroom to see if Dye was alright. He could not find Dye anywhere in the bar, so he paid the bill. Dye had left $5 and a pair of gloves sitting next to his plate. Because he was worried that something had happened to Dye because he was so drunk, and also to return Dye's gloves, Smartt walked back to Dye's house. The door was not locked, so he opened it and saw that Dye had fallen off the couch in a very awkward position. When Srnartt walked into the room to put the gloves on the couch, Dye woke up and staggered backwards. At that point, Dye said something to Smartt about taking a shower in his motel room and they left together. About halfway back to the motel, Dye just walked across the street and started talking to a man. Smartt testified that he was glad Dye left because he really needed to go to bed. 128 Dye? on the other hand, testified that he left the bar after Smartt's strange comment and went home and \\en$ to sleep on the couch. Some time later, he woke up when "somebody had grabbed me . . . by the balls and picked me up by my crotch . . . ." Once awake, he recognized Smant. Smartt grabbed Dye by the arm and said, "Let's go io here," leading Dye to the bedmom. Dye responded, ''Nqo," and \vent our the front door. Dye testified that he did not know what to do. He ihorrght about hitting Smarrt, but he did not think anyone would believe his version of the story over a judge's version. They started walking down the block, and Dye saw a young man. Dye asked him if he could walk with him and turned away from Smartt and walked back to his house. 729 Dye did not report this incident for several months. He had warrants outstanding and did not want to call attention to himself. When he was picked up for the warrants: he reported the incident to the judge and asked the judge how he could file a complaint against Smartt. $30 Commission Chairman Warner advised Smartt of the Dye allegations in a letter dated December 27, 2000. On December 30, 2000, Warner met informally with Smartt and his of attorneys. A court reporter was present, and a tra~iseript the meeting was prepared and filed in the Commission office. Smartt requested, and received, a copy of the transcript. 7/31 After the meeting, Warner fonvarded a copy of the entire CIB file to Smartt and Smartt responded to Dye's allegations on January 28,2001. The Comnlission then retained Gregory Gould as prosecuting attorney and directed him to file a formal complaint. Gould informed Smartt that if he resigned his position, a formal complaint would not be filed. Smartt notified Gould and the Cascade County Commissioners that he intended to resign from his position as Justice of the Peace effective July 1, 2001. On July 2, 2001, Smartt withdrew his resignation. Gnuid then filed the Commission's formal complaint with the Cierk ufrhe Supreme Ccun. 732 Smartt petitioned the First Judicial District Court for a writ ofprohibition, ~vhicli was issued on July 20.2001. The ~vrit barred the Co~nmission from further proceedings against Smartt based on an unverified complaint until further order from the court. 7/33 The Commission moved to vacate the writ. Following oral argument, the court entered an order modifying the mrit. The order allowed the Commission to proceed on the basis of verified complaints alleging matters within the jurisdiction of the Comnlission. Smartt appealed the Distr~ct Court's modtfication and we affirmed. Stcltc ex rel Snzclrtt v Jirdicial Standards Coinmissioiz, 2002 ,MT 148, 310 Mont. 295, 50 P.3d 150 (Sincrrtl I). 7'34 A hearing was held before the Judicial Standards Co~nrnissionon the foniial complaint and the Comn~ission subsequently filed its Opinion and Recommendations with this Court. Smartt filed a brief, raising 39 objections to the Commission's proceedings. Gould, as the prosecuting attorney, filed a response. Stc~i~dar-d Review of 1!35 Seet~on 3-1-1 107, MCA, states: Action by supreme court. (1) The supreme court shall review the record of the [Commission] proceedings and shall make such determination as it finds just and proper and may: (aj order censure, suspension, removal, or retirement of a judicial officcr; or (b) ~vholly reject the recommendation. 7136 Accordingly, v-e review the Commission's proceedings de rrovo. The Comtnissiorr ~s recommendations are not binding on illis Coun. We consider the evidence and then exercise independent judgment 737 Did the Commission commit any prejudicial error which requires reversal or dismissal of the proceedings or the complaints? 138 Smartt raises several objections to the procedure followed by the Commission in this case and argues that, in the aggregate, these errors are s o egregious that the proceedings against him should be dismissed. A majority of these objections were raised in Smal-tt's carlier appeal concemiilg the dismissal of the writ of prohibition and have been disposed of I. in this Court's opinion In that case. S'~~zurtt After consideration, we conclude that the remaining procedural objections are meritless and we decline to address them.' Issue Two 7/39 Were the Commission proceedings conducted in >lolation of the confidentiality provisions of Montana law? 'These included objections that the commission members wore judicial robes at the hearing; that statements in Warner's letter were "inappropriate and beneath the ethical standards that we should expect of the Cornn~ission;"that the use of Supreme Court facilities for the Conlmission proceedings raised the possibility of the Supreme Court indirectly influencing the proceedings; that the Commission's appointment of Warner to handle procedural matters cited a non-existent rule number; that Dye's colnplaint was not on the correct form and did specify the which Canons Smartt allegedly violated; t h a ~ Notice of the Formal Complaint was signed by Warner and not by "the Commission;" that the denial of the opportunity to give closing arguments at the formal hearing equated to a denial of effective assistance of counsel; and that certain statements by Warner at the hearing were "grossly irregular' and "highly prejudicial." ?j40 .Article VII, Section 1? ofthe Montana Clonstitr~tion states that rhe pl-oceedii~gs ofthe Commission are confideiitiai ""except as provided by statute." Section 3- 1 - i 105, MCA, states that "Except as provided in 3-1-1 107 and 3-1-1 121 through 3-1-1 126, all papers filed with and proceedings before the commission or masters are confidential and the filing of papers with and the testimony given before the commission or rnastcrs is privileged communication." 741 However, if the Commission finds good cause to order a hearing in a matter, the Commission must allow public access to all the papers relating to each finding of good cause and to the proceeding and the records of the proceedings. Section 3- 1-1 121, MCA. Any hearing conducted before the Supreme Court relative to a recommendation by the Commission, together with all papers pertaining to such recommendation, shall be accessible to the public. Section 3-1-1 107(2), MCA. A judge may waive confidentiality and request in writing that proceedings be accessible to the public. Section 3-1-1 122, MCA. 7/32 Smartt argues that there is "inherent confusion if not direct conflict in the foregoing provisions regarding confidentiality." We disagree. The statutory provisions maintain confidentiality of Goinmission records until the filing of a formal complaint. After a formal complaint has been filed, certain papers, proceedings and records of proceedings become accessible to the public. 7.13 Confidentiality provisions are enacted to protect the reputation of innocent judges wrongfully accused of misconduct; maintain confidence in the judiciary by avoiding premature d~sclosure alleged rntsconduct: encourage retirement as an alternat1.ce to costij of Ici~gthy formal hearings and protect commission members from outside pressures, JEFFREY M. S H A ~ I A N JIIDICIAL E AL.., 7 COXDUCTAND ETHICS $ 13.15 (3rd ed. 2000). Montana's statutory kamework balalices these goals against the public's right to knon, as guaranteed 1 in Article 1 , Section 9 of the Montana Constitution. A complaint against a judicial officer is confidential until the Commission finds good cause to order a hearing. Once good cause is found and a formal complaint is filed, thc legislature has determined that the public's right to know outweighs the individual judge's right to privacy. 4 Smartt also argues that the Commission unlawfully provided copies of the C1R investigation file to the Cominission members and its prosccutot, "who in tun1 filed it as Exhibits [sic] within the formal hearing in this matter, which, as a result, makes the matter a public record." "145 Section 44-5-303, MC4, provides, in pertinent part: ( I ) Except as provided in subsections (2) through (4). dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure. (3) Unless othenvise ordered by a court, a person or criminal justice agency that accepts confidential criminal justice information assumes equal responsibility for the security of the information with the originating agency. Whenever confidential criminal justice information is disseminated, it must be designated as confidential. 746 Srnartt does not argue here that the Commission was not authorized to receive thc files? only that it uniawfullji made the files prabiic by including rhem as an exhibit at the foformal hearing. A review of the tratlseript reveals that the CIB file was not admitted into cvidcncc during the hearing. At the beginning of the hearing. Gould stated that, "the ago. prosecution had provided to the Respondent copies of premarked exhibits several 1%-ecks There were quite a few exhibits. We won't be using all of those today. . ." Despite the fact that the CIB file was not admitted at the hearing, it is included in the bound volume of prosecution exhibits. Smartt did not object at the hearing to its inclusion with the admitted exhibits, therefore any argument he may have concerning breach of his privacy has been waived. Issue 3 747 Did the Commission err in denying Smartt's motion to disqualify Chairman Warner'? 4148 Smartt fiiedamotion to disqualify Warner, alleging that Warner "overstepped the role of investigator in this Cause." In support of this allegation, Smartt relies on many of the procedural errors he has raised elsewhere, oil Warner's request for the CIB file, on the fact that Warner instigated ameeting "under the guise of Commission Rule lO(g)," but ultimately for the purpose of gathering infoilnation against Smartt: and also on an allegation that Warner and Smartt engaged in a "heated debate" at a meeting of the judiciary in Polson, Montana. ~ 4 U o u r n t e r n b e rof the Commission considered the motion to disqualify and found that s Warner did not attend a judicial conference in Polson. The Commission members also reviewed the written records and transcripts of M'arner's contact with Smait and concluded that Warner showed no bias or prejudice in his dealings with Smartt. 7/50 In sSr~zartt we disposed of Smartt's procedural arguments and concluded that the [. Commission and by extension, Warner, did not exceed its jurisdiction in obtaining a copy of the CIB file. Sn?ilrttI, 7 30. A transcript of the meeting between Warner and Smartt, which Slnartt alleges was a "fishing expedition," reveals that Warner informed Smartt that the basis of the meeting mas to gile the judge a chance to avoid publ~city At the nteetmg, Warner infoformed Smam that the Comn~issionwas taking the two complaints seriously and that complaint becomes public. As noted Smartt might want to consider the fact that a forn~al earlier, one of the underlying purposes of the confidentiality provisions IS to encourage formal hearings. Warner tn no way retirement as an alternattve to costly, lengthy, and publ~c ~mphed he \+as biased or prejudiced against Smartt by Imparting this information.' that $5 1 Sn~artt does not raise any argument against the Comn~ission'sfinding that Warner did not attend the meeting in Polson where Smartt alleges his "heated debate" with Warner took place. Thus, this basis for disqualifying Warner has been waived. W e note that the transcript of the meeting was not offered into evidence by either pariy at ihe hearing and, as such, remains part of the confidential Commission file. However, Judge Smartt has apparently waived his confidentiality with respect to this transcript by including a copy of it in the Appendix filed with his exceptions to the Commission proceedings. qi52 After reviewing the coinplete record, we agree that Warner shon-cd no "oias or pre.judice in his dealings with Srnarrt. We eonciudi: that the Commission did not err in denying Smartt's motion to disqualify Warner. Issue 4 753 Did the Cocnmission err in denying Smartt's motions for continuance? 754 Smartt argues that the Commission should have granted a continuance of the Fomlal Hearing and that the failure to do so deprived him of a fair opportunity to defend the charges against him. He argues that there were dispositive motions pending in the District Court and that the prosecution's witness list, provided two weeks before trial, included 15 previously undisclosed witnesses. 755 Smai-tt was given written notice of the Harris complaint in October 2000. Fie received the complete CIB file on the Dye complaint in early January 2001. He received a draft of the formal complaint in May 2001. The scheduling conference was held oil July 11,2001. The writ of prohibition was lifted on August 15,2001. q56 The prosecution gave its witness list to Smartt within the time limit set at the scheduling conference. Although Smartt argues that 15 \vitnesses listed were previously were and the prosccution claims unknown to him, he does not specify who those wit~lesses disclosed was their colnputcr expert. that the on1y witness who may not have been previo~isly The dispositive motion that was pending in District Court \vas, in fact, a motion for reconsideration of the court's iZugust 25,2001 order lifting the writ of prohibition. There is nothing unusual about preparing for a hearing while aispositive motions are pertding. If Srrrartt failed to do so, he cannot fault the Commission. q157 We conclude that the Gonlmission did not err in denying Smartt's motlons for contlnuaizce Isslle 5 1158 Did the Commission err in denying Smartt's motion to suppress evidence'? ',59 At the outset, Lve restate the cvtdence that was obtained from each entry into Smartt's chambers. The first entry, nhen Hams and Stevenson cntcred Smartt's chambers to shut down his computer, yielded the pornographtc Images on the computer screen \chrch Harr~s prnited. Thc second entry yielded lists of websites Harris hand copied from the history file on Smartt's internet software. Further entries yielded digital photographs of the long term h~story internet activity on Smartt's computer. Subsequently, the FBI confiscated and of searched Smartt's computer. That search resulted in testimony concerning the number of images found on the hard drtve of Smartt's desktop and laptop coirtputers, as uell as a characteri~ationof those images. Because the FBI justified its search by information gathered from Harris's second and s~ibsequententries ~ n t o Smartt's chambers, we wlll analyze the search issue at two levels. 'j60 The Commission dctermincd that the evidence seizcd by Harris on his second and subsequent entries into Sniartt's chambers was wrongfully obtained in violation of Smartt's federal and state constitutional rights. However, the Cornn~issionconcluded that the exclusionar)~ drd not appiy to its procecdxngs because the pioceedtngs are drscrplinary rule in naturei not criminal. Therefore, the Commission considered all the evidence, 761 Srnar?t argues that all the evidence seized from the first and subsequent entries into his chambers kiolated his constitutional rights and should bc suppressed. For support. he relies on this Court's opinion in Gryczan v. State (1997), 283 Mont. 433, 942 P.2d 112, concerning the elevated right of privacy under Montana's Constitution. 1/02 Gould argues that the Commission incorrectly ruled that an unlawful search occurred. He argues that (I) Smartt had 110 legitimate expectation of privacy as to matters recei~ed through the internet on his county-owned computer in his county-owned office; (2) that Hams had a duty as a supcnisor of court elnployecs to protect them from sexually explicrt material; and (3) the doctrine of "~nevitablediscovery" legitim~zcs search. the 763 When analyzing search and seizure questions that specially implicate the right of pri+acy under Montana's Constitution, we consider Scctions 10 and I1 of Article 11 of the Montana Constitution. State 1'. Boyer, 2002 MT 33,1/19,308 Mont. 276,q 19,42 P.3d 771, 7 19. These sections provide: Section 10. Right of privacy. The right of indrvidual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. Section 11. Searches and seizures. The people shall he secure in their persons, papers, homes and efkcts from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing. 76.1 To dcterminc the threshold question of whether there has been an unlawful rrovcn~mentintrusion into one's privacy. this Court looks to the folio~vingfactors: ( I j whether the person has an actual expectation of privacy; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the state's 1 intrusion. Boyev, 1 20. Where no reasonable expectation of privacy exists, there is neither a "search" nor a "seizure" within the contemplation of Article 11, Sections 10 and 1 1 of the Montana Constitution. Boyer, 120. 1165 We have recognized that Montana's unique constitutional language affords citizens a greater right to privacy and therefore, broader protection than the Fourth Amendment in cases involving searches of, or seizures from, private property. See Giycznn, 283 Mont. at 448,942 P.2d at 121; State v. Hullock(1995), 272 Mont. 361,384,901 P.2d 61,?5; Stute v. Siegnl(199?), 251 Mont. 250,263,934 P.2d 176, 183 (overruled in part on other grounds); Stute v. Sclzeetz (l99?)? 286 Mont. 41,35,950 P.2d 722,724. Howevcr, "even in Montana, when a person leaves the privacy of his home and exposes himself and his effects to the public and its independent powers of perception, it is clear that he cannot expect to preserve the same degree of privacy for himself or his affairs as he could expect at home." Scheetz, 286 Mont. at 49, 950 P.2d at 726. 766 in his brief, Smartt quotes several paragraphs from Giyczart, apparently arguing that because the irnagc revealed on his computer implieares his "decision as to sexual matters:" it qualifies for a lzeighterred privacy protection. He states that he "'bas suffered the ]nost degrading and humiliating intrusion into a matter invoiving his private and intimate relationship with his wife." In his irrgurnenr, Smartt likens ponlography to homosexuality, in that both are practices not approved of by society in general, He argues that he has been persecuted as a result of society's sense of "super morality:" and he likens the Gonimission proceedings to the Salem Witch Hunt. Smartt's argument is patently absurd, 7/67 In G q w a n , we stated that "consenting adults expect that neither the state nor their neighbors will be co-habitants of their bedrooms." 283 Mont. at 450, 942 P.2d at 122. In that case, plaintiffs were subjected to possible criminal penalties for personal choices that they exercised in the privacy of their homes, Had Smartt restricted his viewing of pornographic images to his bedroom, we would undoubtedly not be here today. However, to compare Smartt's choice of accessing sexually explicit material at work on his countyowned computer to the situation of the plaintiffs in Gryczmi is to push legal analysis beyond credibility. The fact that the image revealed on Smartt's computer had sexual content does not influence the privacy analysis. in other words, just because something has sexual content does not mean it is private under the C;ryczan decision or the Montana Constitution. 1/58 Harris and Stevenson first entered Smartt's chambers because of prohlesns encountered with the network backup software. Stevenson requested Harris's assistance in shutting down Smartt's computer because she w-as not familiar with the programs the JPs operated and was afraid she would lose new data ifshe closed ihc programs incorrectly. This entry into Smam's chambers was for a legitimate, work-related purpose. At that time, they were not looking for evidence of misconduct, but were simply performing a standard office procedure: shutting down all the computers so the network could perfbrm a back-up. 9 Irrespective of \vhethcr Srnartt had any expectation of privacy vvith rcgard to i-hc images on the conlprrtcr screen, the nature of the intrusion did not rise to the !eve1 o f a searcii. /30yi.r., 1 20. Wc conclude tl.rat f-tai-ris and Stevenson's noninvestigatory, m-ork-rclatcdentry 1 into Smartt's chambers did not constitute a searcll rrndcr the Fourth Amendtnen? or Article 11; Section 11 of the Montana Constitution. Consequently, we will consider the evidence deri~ed from that entry. 770 Because, as discussed below. we conelride that this evidence alone supports tlie Commission's finding that Smartt violated the Canons of Judicial Ethics, we need not reach the question addressed by the dissent. that is whether Harris's subsequent entries into Smarlr's chambers violated his constitutional rights to privacy and to be free from unreasonable searches and seizures. 771 Did Smartt's co~id~ict violate the Canons of Judicial Ethics? T72 'r11e Co~limission concluded that S~nartt lolated Canons 1 , 4 and 34 of the Canons of Judic~aI Ethics. 1 hose provisions state: Canon 1 : Relations of the Judiciary: The assuniption of the offjee of judge casts upon the i~icumbentduties in respect to his personal conduct which concern his relation to tile statc and its inhabitants, the litigants before him, the principles of law, tllc practitioners of. law in his court, and the witnesses, jurors and attendants lvho aid him in the administration of its functions. Canon 4: Avordance of impropncty A judge's ot-ficial conduct should be free fro611 impropriety and the appearance of impropriety; he should avoid infractions of law; and his persona! behavior, not only upon the Bench and in the performance ofjudicial duties, but also in his everyday life, should be beyond repruaclt, Canon 34: A Summary of Judicial Obligation: In every particular his conduct should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless ofpublic clamor, regardless ofpublic praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointments as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity. 773 The Commission coilcluded that Sn~artt "knowingly accessed sexually explicit linages on a Cascade County computer and monitor. In this day of electronic communications, the Commission can find no distinction between this type of conduct and leaving a magaLlne with the same photo on the cover exposed to the office staff. . . . Stevenson, who was attempting to perform one of her managerial functions in turning off the computer on a Friday afternoon was exposed to the sexually explicit material without her consent." 774 To determine if Smartt's conduct violated these Canons, we rely on the following: Stevenson's testimony concerning the images that she saw; Harris's testimony concerning these same images; Dye's testimony; Judge Smat-tt's testimony concerning his access to pot-nographic websitcs, and his tcstimorly concerning the Dye incident. 775 The charge that Smartt riccessed sexually explicit images on h i s county-owned computer, and exposed Hanis and Stevenson to these irnagcs, was proven by cicar and convincing evidence. Smartt admitted in his testimony kind in his press release that he had accessed such sites at work on his county-owned computer and admitted that his co-workers were exposed to pornographic images. 776 We agree with the Comnlission's conclusion that this conduct violated the Canons of Judicial Ethics. f 77 Although the Commission found that there was no clear and convincing evidence that Smartt committed either a burglary or sexual assault against Dye, it concluded that "there is no question that Smartt was in the Dye residence uninvited." Smartt admitted that he invited Dye back to his motel room for a drink after Dye mentioned he had some legal problems. Smartt testified that his advice to Dye was "you know you're going to be arrested if you attract attention so why don't you just keep your nose clean and behave." It is clear to this Court that Smartt's admitted conduct with Dye was inappropriate and, at the very least, created an appearance of impropriety. '178 We conclude that Smartt's behavior in both incidents violated Canons 1 , 4 and 34. Issue 7 779 What is the appropriate sanction to be imposed by this Court? 4iXO Section 3-14 107, MCA, states that this Caul? shaii review the record o f the make such detem~iniition it finds just anii proper and as Commission proceedings and ""s~ali may. . . order censure, suspension, removal or retirement of a judicial officer," 781 'The focus of sanctrons in jtrdiciai disciplinary proceedings i s not to pun~shthe indiiiduai judge. hut to restore and maintain the dignity, honor, and ~mpartialityof thc judicial office, and to protect the public from further excesses. See Irz I-elLlcCor11nck (Iowa 2002), 639 K.W.2d 12, 16; I 1 re Stepherzsolz ( N . C. 2001), 552 S.E.2d 137, 139. Courts 111 1 other states have outlined numerous criteria to apply in deterniining the appropriate sanction. See In I-e Pudel (Mich. 2002). 638 K.W.2d 405,408; 111 re linml~ler.nlnst~r (Wash. 1999), 985 P.2d 924. 941-42, IIZ re Joilnstorze (Alaska 2000), 2 P.3d 1226, 1237; Ofjice oj Dlscipliltnly Counsel v. Medley (Ohio 2001), 756 N.E.2d 104, 107. These can bc summed up as: a consideration of the duty violated, the respondent's mental state, the Injury caused, and existence of mitigating or aggravating circumstances. $82 In this case, Smartt violated his duty to his co-workers and the duty to be free from impropriety and the appearance of impropriety. Although Smartt admits that he accessed sexually explicit websites at \\ark on his county-owned computer and exposed his couorkers to pornographic images, he never acknowledges the impropriety of such conduct or the effect it has on the integrity and respect for the judiciary. Throughout his bnef, Smartt auacks ever?,conceivable aspect of the Commission proceedings in an effort to convlnce this Court that the Commission was on a witch hunt and has caused his family and him immeasurable harm without good cause. .We conclude that is si~npiy the case; and not Srnana's failure to accept responsibility i'or his actions is almost as troubling as lsis initial misconduct. $83 Srnartt's conduct has had a negative effect on the pubiic's perception of the judiciary. tlis conduct has been the subject of considerable publicity and news coverage, including some initiated by Smartt himself. Rather than admit to any wrongdoing himself, Smartt has publicly criticized Harris's actions in this matter. Additionally, other than his claim that he was composing a joke birthday card for his wife, Smartt offers no evidence of mitigating factors. Even if true, that is no excuse for using public time and facilities to view pornography and to expose co-workers to such offensive pictures. 7'84 Applying the abo\e cr~teriato this case, we determine that suspension is the appropriate sanction. Accordingly, Judge Smartt is hereby suspended from the performance of his judicial duties, ntthout pay, from the date of this opinion through December 3 1,2002. Issue 8 1,85 Should Smartt bc assessed and ordered to pay the costs of this proceeding? 1186 The Commission unanimously requested that this Court order that Smartt be assessed and pay the costs of this proceeding. Rule 13(h) of the Rules of the Judicial Standards Cul~lrnission states, in pertinent part, that: Should the commissioll find charges in a formal complaint to be true, and a recommendation for discipline as pro\-ided in Rule 9(c) be accepted and imposed by the supreme court, the responding judge may be assessed and required to pay all costs of the proceedings betitre the commission, including reasonable attorneys k e s of the prosecuting attorney. 187 it is therefore ordered that Srnartt shall pay all the costs of the proceedings involving these matters The Cornm~ssion shall subm~t statement to the Clerk of the Supreme Court a of the tom1 costs within 10 days from the date of this order. Smartt shall have 10 days from the date the statement is submitted in which to file any objections to the costs assessed Court will then enter a final order regarding the costs assessed against against him. T h ~ s Smartt Justice We Concur: Chief Justice Honorable John W. Larson, District Judge, sitting in place of Justice Patricia Cotter 9 Justice Janlcs C. Nelson specially concurs $88 1 concur in our Opinion as to lssues 1 , 2, 3, 3, 5,and k. As to issties b kind 71 1 specially concur, I begin by addressing issue 6. ti89 llihilc Smart1 did not make this argument, I nonetheless have sonic conceni ahout whether the present Montana Canons of Judicial Ethics (Canons) can serve as the basis for actual disciplinary action against any member of Montana's judiciary. Like Montana's thr~ner system for disciplining lawyers (See C;oldststt.iit v. ('onrnlissioil on Pi.rictii.c. 2000 %IT 8 , 7 61, 297 h4ont. 493, j. 61, 995 P.2d 9 2 3 , l 61 (Nelson, J., dissenting)). Montana is the only state in the Union that st~bscrihes the antiquated Canons. There is rr strong argurneni to that these Canons are aspirational only: that they are neither prohibitory nor directive. And, for that reason, it is questionable whether the violation of one or inore of these Canons can serve as the basis for actually disciplining a judge. $90 Basically, the problem is this: saying that a person "should" or "should not'' do something arguably leaves the decision to engage in or to not engage in thc referenced conduct up to the person. That is wholly different than actually requiring the person to act or to refrain from acting in a certain manner by use of terms such as "shalll" "must," "shall not," or "must iiot." But. first sonie history. 9 Currently. Montana subscribes to the Canons as its "proper guide anti reminder b r judges." %IoN.I-ANR CAKOYS JuI)IcI,\~,ETIIICS.Preface. Altho~tglithese Canons were Ot: adopt" in Montana on May 1, 1963, the Canons thcrnselves were originally written in 1008 27 and later aciopted 17y the American Bar Association (ABAj iri 1924. LVaitcr P. Annsuong, Jr., TIw (i 972) i i i c j c of' Jl/dii,kz/ tFoiii~z,i;il 26 Siti. L.J. 70SI 708 j 1 972) (heirina fier - :%rmstronir) (discussing history of the blodel Code of Judicial Conduct). Other than the addition of Canon 35 in 1980 regarding improper publicizing of court proceedings, the Molltana Canons themselves remain for the most part unchanged from their original version written alniost a century ago. See Annstrong, at 708-10 (discussing amendnients to the Canons made in the 1930's and 1950's). Ti92 By contrast, in the late 1960's there was a national movement to revise the 1924 Canons because those Canons failed to address a tiurnber of modern issues that frequently Faced judges. For exan~ple,the Special Committee on Standards of Judicial Conduct appointed by the ABA in 1969 found that the Canons "dealt with inadequately or not at all . . . conflict of interest, financial reporting and public disclosure, and non-adjudicatory activities of judges such as law teaching and serving as officers or directors of business corporations." Armstrong. at 712-1 1 (quoting 95 A.B.A. REP. 1048 (1970)). After extensive adopted the Model Code of Judicial Conduct discussion and input, the ABA unani~nously (Code) in 1972. Armstrong, at 715, 723. '793 The 1972 Code was amin revised in 1990 with the addition of a ['reamble. gender , neutral language, and other changes intended to make the Code clcarer. L.ISA 1.. "vliiaoitr), 7'111: D E V E I O P Z ~01:K T ABA JUIIICI,\I. I ~ ?.lit; C01)fi 7-8 (19921. Changes regarding judicial campaign corrduct were made in 1997 and 1999. ABA MOI)IEIConii oi-J~:~)~c.i~\r. Covr)r!cr. XI 25 (200f.j) (hercinafter ABA Movr:r. C'ODE). Currently, 49 slates have adopied either the 1972 Code or one of the versions of the 1950 Code. (:O?!DI;CT ANI> ETIIIC'S: i( Ji:lzi;iti:y M.SJ.!,%.M,%X!;,,I- 2\1,.> Jtjf)iC[!\t. 1.02 at 3-5 (3d ed. 2000) (hereinaHer S i l h \ i l ~ ? ! j . Consecji~ently. blontana is the ortly state that has failed to consider whether the 1924 Canons adequately pro\:ide both guidance to judges and notice to the public about what they can expect from judges. 794 As already noted, Snlartt did not raise on appeal the issue of this Court's ability to enforce the Canons. That omission aside, I believe there are good reasons why this Court sS~ould consider adopting the modern Code. ";:5 First, there is tlle jurisdictional question mentioned above--i.e. under the present required to nor prohibited frorn engaging Canons, Montana judges are neither ~~nanihiguously in any referenced conduct. The wording of the 1924 Canons is entirely aspirational. Ko coilduct is actually proscribed or required, and, therefore, no conduct or omission is punishable. As already mentioned, the prehce to Montana's Canons states that they are simply a "proper gzride and rcnzinu'er for judges." (En~pliasis added). The Canons at issue here--Nos. 1 , 4 and 34, set out in full at 3 72. of our Opinion--follow the theme of "guiding" and "reminding" the judge. ?I96 For example, Canon 1 states that when a person becorlies 21 judge lie assumes \:arious unspecified "duties" in respect to his personal coriduct which concern his relatioits with various categories of persons. The Canon fails to state what "duties" the judge assurnes and neither requires 1101-prohibits any actual conduct in the performance oi'those dt~ties. 797 Carior~s and 34 speak i ~ tern1,s of condrtet a jndge "si~ould" or 3void. i:4gairl. bj4 r do way ofexanrple. these Canons require that the judge's '"eve~yday life" and "'eiery particular [of] his conduct" . . . "should be" . . . "above [or] beyond reproacll." This language begs the question: what is supposed to happen if the judge's "everyday life" is not "beyond reproach'?" What if, for instance, the judge does a good job on the bench. but drinks too much, gambles, doesn't maintain his yard, openly swears at his neighbor's yapping dog, and humiliates his wife in public'? Is his everyday life "beyond reproach?" Canon 34 specifies that the judge "sliould be" . . . "courteous, patient. [and] punctual." What ifthe j ~ ~ d g e Do the Canons isn't? reyuire this sort of conduct to be purtished for failure to con~piy? 198 in a more serious vein, what if the judge uses his office time and government-funded computer to view pornography? What i f the judge is convicted of DUI? What if the judge habitually shoots from the hip, rules from the gut and ignores the law? What if the judge sits on the board of directors of a corporation that is "cooking its books'!" Arguably these involve conduct that Canons 4 and 34 say the judge "should be free from" or "should avoid." But what if the judge does not'? Where do the Canons actually prollihir this sort of conduct'? tJlainlyl they do not. 799 A leading treatise 011judicial ethics notes that some con~me~ttators believe the Canons to were i~ttellded be an ideal guide to behavior rather than an enforceable set of rules, while the Code is designed to be a mandatory and enforceable set of rules. SI~ZZ.IAN. at 3. 5 1.02 7100 For example. the 1924 Canons use the M-ord .'shouid," while the modern Code distinguishes conduct into three categories using '"shali," 'khcould and ""may." Tile Preair-ible ro the C:ijde specilic:illy states illat use ofthc v:ord "shall" indicates n~andatory condrrct the violation of which subjects a judge to possible discipline; "should" is hortatory and is used for suggested conduct not subject to discipline; and "may" is used for discretionary conduct. COIIE, The Code also notes that judicial disciplinary procedures Preamble, ABA MODEL should comport with the requirenlents of due process. Preamble, ABA MOIX;I~. CoDk, 11. I . 1'1 0 1 Our own jurisprudence bears out this distinction between mandatory ternis and those that are merely discretionary. "Must" and "shall" are mandatory rather than permissive. hfontw V. Si?no~zi(.// (i997), 285 Mon1. 280. 287, 037 P.2d i 047, 105 1 (citation omitted). "The word 'may' is commonly understood to be permissive or discretionary. . . . In contrast. (1994). 'shall' is understood to be eonipelling or mandatory." Gazcstad v. Cip o/'C'cilun~hus 265 Mont. 379, 381 -82, 877 P.2d 470,47 1 (internal citatioiis omitted). Scc czlso MONTI\N,\ LIC;ISI.AT'IVE: SIIRVIC'~:~ DIVISION BILLDRAI:I-IN(;MANLIAI.. (2002) ("Avoid using will, 2-5 st~ould, ought. . . . Use 'shall' when imposing a duty on a person.") and ?;I02 This issue--whether the Canons are merely suggested guidelines rather than enforceable rules--was raiqed in a number of states before the modem Code was written. For C'otiz~~zittcc J~ldicic~l e ~ f i n ~ z i ~ ~ z c ~ 1966), 122 P.2d 203, oil P (Okla. ' example, in ,:ii.~v. Stciizdi~ig 207, the coun stated, "[tlhis Court adopted the Canons in the spirit in which they were suggested, that is, to serve as models of emulation, not as purported rules, laws or judicial fiat," See :~l,rc? re liuggc~rty It7 (La. 1970): 241 So.Zd 369, 475 ('-'-Pfe C'arrons oi'Jitdiciai Ethics do not, of ihemse!\~es,have the hrce and effect of law.''). "j03 In contrast. howe\er; other states have held that tire Canons ::re enforceable. just as the Rrrles of Prokssional Conduct arc enforceable for lawyers. ./ciikiws c Orego17Storti Bar (Or. 1965), 405 P.2d 525, 527 (rules of professional conduct, including judicial conduct, are binding upon jtldges; there ~vould no purpose in adopting "merely hortatory" Canons); be rClciho~zirzg Chzlrlty Bar ;l.ss'~i 11. Frank0 (Ohio 19581, 15 1 N.E.2d 17. 23 (,Supreme Court has jurisdictio~~ the discipline ofjudge for acts committed in judicial capacity which are in over violation of the Canons of Judicial Ethics). See ulso In r.6, Sh~ffield (Ala. 1%4), 465 So.2d 350, 355 (discussing the 1972 version of ihe Code that used the word "shoufd" itrstcad of' ''sl~all~" holding that the .'Canons are not merely guidelines for proper judicial conduct [but] . . . have the force and effect of law."). rilO4 In contravention to this latter line of authority, however, the Montana Rules of Professional Conduct (which govern the professional conduct of attorneys) arc2 written in mandatory terms--a lawyer "shall" or "shall not" engage in cer-tain specilicd conduct. There are exceptions; and those prove the general rule. For example, Rule 6.1, regardingpro hot70 prth1ic.o service. i s aspirational. This rule states that a lawyer "should" render a cerlain r~ui~rber hours of legal services each year without expectation of a fee. Similarly, other of Rules allow, but do not mandate conduct--a lawyer "may" do certain things. See Rules 6.3. 6.4, 7.2, and 7.4. vi5 By adopting the nrodern Code, 3:Ionrana wouid precrrlpt any question oTwheiircr :hi: Chnons provide this Court with jur-isdiction to discipline judges and uhetllcr the Canons are merely aspirational or are mandator::. ?lo6 Second, the Canons arc entirely coniposcd in the masculine gender using "he.." "his" or "himl" while the current Code uses gender-neutral language. C~onsequently, Canons the are in conflict with this Court's policy against gender discrimination and with the Montana Legislative Council policy to use gender-neutral language in bills. MONTIN.~ JIJL)ICI:\L. R ~ < A V P~L.I(.IES PROCilI>liKES,Nolidiscriilri~rationPolicy 200 (2002); in re State Bar CII AND of Montana's Gender Fairness Steering Committee, Oct. 21, 1999 (adopting Gender Fairness SiJii\~iCilsDlLiSiON BIILL. DRAI-TING Task Force Final Report); Mo%'rr\xi\ L~c;isL.~vrrvr; MANUAL I 1 (2002). 2'!I07 Third, the modern Code is structured in a clear and understandable manner, while the 1924 Canons contain antbiguous and overly general provisions--the language of Canons I , 3 and 34 cited in our Opinion being prime examples. See also Kolirrd lirhle Discussio~rs on the Proposed Cock qf;/zrdiciulCoiluZlcr, 9 SAND1fc;o L. REV. 785 (1972). 'j108 Fourth. the Code contains specific provisions for part-time judges which the Canons do not. This is especially irtrportant in a state like Montana, \n;hich has numerous part-time judges serving in our courts of limited jurisdiction. 71 09 Fifth, the Code addresses irlodern issues that are not addressed in the Canons. These iss~ies include sittiations that are likely to face Montana's judiciary such as conflicts of inierest, financial reporting and public disclosure. :md the non-adjudicatory business actil-ities of judges, T i 110 Finally. by adoptin the rnoder?~ Code, both judges and the public will have the added guidarice of the commentary that is included as part of the Code and the benefit of the interpretive case law from the 49 states that have adopted the Code. 1 1 1I it is worth noting that eacls time the subject ofjudicial conduct has been addressed on a national level. there was an instance of conduct that caused widespread concern among the p ~ ~ b l i cIn the early 1920's, federal Judge Kenesaw Mountain Landis engaged in pri\;ate , emplo>~ment while receiving a government salary. Soon after his censure, the AB,4 adopted the Cartons of Judicial Ethics. Arr~istrong,at '709. In the late 1960's, an unilarned fedcral judge: who later resigned, accepted a $20,000 payment from the family foundation of a financier who was a personal friend while that financier was under investigation for violation of federal securities laws. Subsequently, the ABil appointed the Special Committee on Standards of Judicial (:onduct and later adopted the Model Code of Judicial Conduct. Arinstrong, at 712. I 12 Similarly, I suggest that Smartt's case has focttsed substantial public and profcssiortal scrutiny on the incident ofjudicial misconduct at issue here. Because of the matters discussed above and, of necessity, our application ofthe Canons to Sniartt's actions; 1 believe that it is now ii~rie question whether Montana's Canons of Judicial Ethics adequately provide the to with Judicial Slariclards Commission and this C o ~ ~ r t an irrefutable source ofjurisdiction for discip!ining judges; adequately provide ciear and understarrdabie rtiies of profcssionai corlduct iitr members of tlre judiciary; take into account rnodern issues thai kequcnt!> ficc judges; and serve to trraitrtairi itnd enhance the public's confidence in an ir~deper-iderrr, fair? and competent judiciary. I suggest that, at best. the Canons provide weak. equivocal and antiquated answers to these questions. Therefore. I submit that the Court colisider adopting the Code and that in doing so, we join all of our sister states in a comtnon code of ethics for members ofthe judiciary. 71 13 Turning next to Issue 7: I agree that the sanction which we have imposed is appropriate. I do not agree with all that is stated in (i 81. Certainly one fitnetion ofjudicial disciplinary proceedings is "to restore and maintain the ciignity, honor., and impartiality of the ludicial office, anci to protect the public fro111 further excesses." Contrary to our Opinion, however, I believe that an important b e u s of judicial disciplinary proceedings s also to . i punish the individual judge. I I In the context of our Canons being aspirational rather than prohibitory and directive, not focusing on punishment is, understandably, the best we can do with the rules we have. Adoption of the Code would solve this problern. That said, when a member of the judiciarq. engages in clear vinlations of the rnles that govern his or her professional conduct and responsibility, he or she slzortld be punished. We punish lawyers by censure. admonition, slisperlsion or ciisbarnrent if they violate the Rules of Professional Conduct. Indeed, the Rules for La~vyerDisciplinary Enforcement (both the 2002 and prc-2002 versions) are designcd for that purpose--to investigate, prosecute and purtjsh ia\vycrs who violate the Rules of l'rofcssiona! Conduct. Why is it illat judges should bc treated differently? !in my viewl the) should noi be. f!l!S bloreover~in all of this M7ehave seemingly missed the point that taxpayers do not furrrish judges (or other public officials and employees, for that matter) with offices and equiprrlerlt to Facilitate their viewing of pornography. Furthemlore; judges are not supposed to be advising known fugitives from justice to lay low and avoid attractiilg attention. a h c t Smartt does riot dispute. If anything, Smartt should have turned Dye into the authorities. Aside from being incredibly stupid, this sort of corlduct is lvrong by anyone's standards. A judge shouLd he punished litr behavirlg in this fashion. In fact, punisllirrg i l ~ c judge is probably the best way of restoring and maintailling the dignity, honor, and impartiality of the judicial office, and protecting the public froin further excesses. At least the taxpayer will see that this sort of behavior will not be tolerated and members of the judiciary will see that individual judges who violate their rules of professional responsibility and corlduct will bear an appropriate sanction for their misdeeds. Chief Justice Karla ti.Gray, concurring in part and dissenting in pa& 91 17 i agree entirely with the Court's analysis of the legal issucs before us and with its conclusion that Smartt ~tolated Canons 1, 4. and 34 of the Canons of Judiclal Fthlcs. I disagree \vith its determinatton that the appropriate sanct~onis suspension uithout pay through December 3 1,2002, the end of his current term of office as a Cascade County Justice ofthc Peace. 1 would remove Smartt from office, effect~ve immediately. 1 I recognize that, as a practical matter, there may be no real difference between 1 suspension without pay through the end of Smartt's term and his removal from office. 1 1my view, however, the Canons he violated go to the very heart of senice as a member of the judiciary. As the Court observes: Smartt's conduct has had a negative effect on the public's perception of the judiciary. His conduct has been the subject of considerable publicity and news coverage, including some initiated by Smar-tt himself. Rather than admit to any wrongdoing himself, Smartt has publicly criticized Harris's actions in this matter. Additionally, other than his claim that he \?;as composing a joke birthday card for his wife, Smai-tt offers no evidence of mitigating factors. I 19 I would remove Smartt from office, as recommended by a majority of the members of the Judicial Standards Con~mission--indeed, all the nonjudicial members of that suspension without pay is not enough to restore the Commission. I share their view tl~at public's faith and trust in the judiciary. As the majority recommetlding rcnloval put it, Smartt "is not fit to sit on the bench or wear the honored robes of a judge." I agree, and 1 believe there is a quaittatuve difference between suspension without pay and removal from office under tho facts and circun~stances t h i s casc. This difference is unlikely to go unnot~ccd of by the people of MonVana, I3istrict Judge John W. Larson, sitting for Justice Patricia 0. Cotter, joins in the foregoing concurring in part and dissenting opinion of Chief Justice Gray. , i / ~ o h n W. i i I arson, District Judge Llistrict J~idge John W. i'arson, silting for Justice Patricia 0.Cotterl specially concurring and dissenting. I i: join in the Chief justice's concurring opinion concerning violations of Judicial Canons 1 4 and 34 and evidence obtained from Justice Smartt's Chambers, as well as in the Chief Justice's dissent on the sanction imposed by the majority. A court's credibility is linked with its accountability. We should send a strong message not only to judges but to all citizens that ethical behavior is a requiremetlt of office. I also join in Justice Nelson's call t~ t for a new Code of Judicial Ethics, but for diff-- e nreasons. TI21 %lantana's Constitution, Article VII, Section 11, grants the Judicial Standards Con~mission the exclusive pow-er to screen, investigate and malce findings and reco~nmendations concerning ethical complaints against judges to the Supreme Court. This has constitutional role and duty should not be overlooked. 'The Con~mission also adopted rules concerning jurisdiction and grounds for discipline, e.g., Rule 9. Even if the style and drafting of the present Canons had been properly raised in this case, Commission Rule 9(3), \villf~~I misconduct in office, also would have supported the Commission's findings and recommendations. 7122 The concct and careful application of the Canofts and rules by the Commission has been something the people of this state have been able to rely on for almost 30 years. We all can feel confident that Llontma's judicial branch is held to high ethical standards because of this independent Commission. Our citizens also have to be told the Commission operates with a small stafi? tt\l.o. and volunteer members. The attorney for the Commission in this inaaer has bcen paid. but ! suspect he could hikc made nlore fiorn his daq job 4 123 4s to the neakness ofrhe Canon's mandates or ilte need to update them, the t n ~ t c d States Supreme Court has recently required an entirely new vision of judicial rights and v. obligations under Kepuhliciirr Pnuhof~bfiilincsotiz White(2002), _- U.S.>~-.- 122 S.Ct. 1,124 While it only makes sense to collaborate in the deb elopment of a nem code of judicial ethics with the American Bar Association and American Judicature Socicty, 1 also urge the Court and drafters to recognve other issues. including the lack of clarit) and need to recognize a more flexible role forjudges in their community activities as noted by this recent Resolution passed on July 17, 2002, by the mcmbcrship of the oldest and largest judicial membership organization -- the Uational Council of Juvenile and Family Court Judges -- at its 65Ih Annual Conference in Boston, Massachusetts: Resolution In Support of the Modification of Canons of Judicial Ethics Whereas, the National Council of Juvenile and Family Court Judges has a long established policy of encouraging the judiciary to engage in community outreach to foster the effective administration ofjustice; and Whereas, the annual Conference of Chief Justices, at their Annual Meeting in August 2000, passed a resolution recognizing and encouraging judges to become involved in their conilnunitics to improvc the quality ofjustice; and Whereas, the role ofjuve~lile family court judges involves ii~uch and more than fact-finding and adjudication; and LVhcreas. judges arc increasingly expected to take on the role of case management, 05 erseeing the successful impierncntat~onof cctmprehcnsi\ e court-ordcrcd scrvlce plans; and Whereas, to serve the public effectively, judges must be aware of services in the community and must educate the public about issues coming before the courts to encourage community support of the .rrjork of juveni!e and family court judges; and Whereas, judges taking on such roles still experience conflicting response and confusion as to the propriety of their activities; and Whereas, the Canons of Judicial Ethics vary from state to state and may not reflect the realities of being an effective juvenile and family court judge; and Whereas, judges would benefit from a comprehenstvc set of appropriate guidelines and model rules, in efforts to bring about change and clarity regarding t h e ~ roles as juvenile and family court judges both on and off the r bench; and Whereas, the National Council of Juvenile and Family Court Judges should take a leadership role in modifying canons of judicial ethics to assure that juvenile and family court judges can actively work toward the improvement of outcomes for children, individuals, and families who appear in our courts, without unreasonable fear of censure: and No- Therefore, be it resolved that the Board of Trustees directs thc development, in collaboration with other interested organl~ations,of a committee to draft specific canons for the affirmative ethical implen~entation of the aforementioned resolution; Furthermore, that the proposed canons be presented to the National Council of Juvenile and Family Court Judges and Conference of Chtef Justices for review and approval at thelr 2003 annual conferences, and other appropriate bodies as may be helpful in tmplcment~ng these new canons. Justice Terry N.f'rieweiler dissenting. !!I25 1 dissent fi-om ihc majority's findings and conchsions that Juslicc of the ikaacc ~vlichaelS. Sinartt violated C:anons of Judicial Ethics and from the majority's decision to discipline Smartt by suspending him from his position without pay during the remainder of his ternt in office, 1 126 After all the pious outrage shown by everyone involved in this case, including Justice of the Peace Samuel I-larris, the Judicial Standards Commission and the majority of this Court, the facts are that Michael S. Smartt is being removed front the position to which he was elected for conduct committed in private which had absolutely no effect on his job or anyone else. After all evidelice which was illegally gathered is excluded, the incredible testimony of Iroy Dye disregarded, and the Clourt's consideration limited to those allegations which bvere actually charged in the complaint filed against Smartt, Smartt has been remolred front 111spositlon without pay because t n o co-uorkcrs discovered that he had viewed three sexually explicit photos on a county-owlled computer, i n the privacy of his officc. 'The majority and concurring opinions demonstrate far greater concern for the majority's sense of good taste than for the constitutional right of privacy. The result in this case reflects more poorly on Smartt's accusers than on Smar-tt. CONDUCT OF SAMCEL HARRIS T1127 With all the cotnplait~ing has gonc on in recent years about judicial case loads, that 1 assumed that members of the judiciary had better things to do than repeatedly and illegally sneak rnto another judge's office, pry into thc hard drike of his computer, and ahen 42 so~nething offensive to others is discovered, spend the resources we have spent invesrigaling him, trying him, publicly humiliating him and his family and taking away the sonrcc of his livelihood. It uorlld be different if Srnartt was tlie onc \%-I10 violated another co-worker's had constitt~tionalrights by invading his privacy, as Fiarris did, but Smartt 1) violated 110 laws; 2) violated no county policies; 3) did not intentionally impose his bad taste on anyone else; 4) \\as not found to hale neglected his duties; and 5) mas not shoun to ha\c cost his employer one extra cent because of his personal and private viewing habits. TI28 Yeverthcless, S~nartt been reported by Harris to the FBI, investigated by the has I)epat-trnent of Justlce, sexual harassment charges h a ~ been filed against him, he has had to e defertd h~msclf before the J u d ~ c ~Standa~ds dl Commiss~oii, he has now been suspended and from 111s employment u~thout pay. The resources that h a ~ e been wasted follo\~lng the inadvertent discovery of one sexually explicit computer screen is more befitting the Salem witch hunts than a busy judiciary with any sense ofprioritics. (The majority's protestations to the contrary notwithstanding.) 1 2 Cascade County Con~missioner, Tom Stelling, testified that there had been a history of poor relations bettvccn Harris and Sntartt prior to the events which have icd to Smartt's discipline. impression from a review of the entire record is that because of that poor rclarionship, Harris embarked on a personal crusade to destroy Smartt after viewing the sexually explicit photos which were so upsetting to him that he printed them, took them home with him, and then snuck back into Smartt's office repeatedly with a digital carnera to see ~g what else he could find. Am I mlsslng sonicthtng or has the u r o ~ justice of the peace been 43 sanctioned? On a scale of disgusting and deplorable conduct, 1 \vouid have to ranktihe gross and repeated invsision of Srnartt's privacy by his co-worker Far worse and, if unpunished, of greater consequence to society and the judiciary than anything that Smartt was actually found to !lave done. '!I30 If the public confidence in the judiciary is the Court's concern, it \+-illbe interesting to see what discipline is imposed on Harris who is actually responsible for the negative public perception the Court is so concerned about by invading Smartt's right to privacy in violation of the law and then using the fruits of his illegal search to advise the public that a fellow justice spent his private time in amanncr that Harris knew would be ofinsive to large numbers of people. COKSTITUTIONAL ISSUES 1 131 One of the worst Failures of the majority Opinion is its avoidar~ceof the serious constitutional issues on appeal regarding a judge's, or any other public official's, right to privacy in his office and the content of his or her private communications or observations. I conclude that pursuant to Article 11, Sections 10 and 1 1 ofthe Montana Constitution, Smartt did have a reasonable expectation ofprivacy in his office and in the contents of his computer; that Harris, as a public official, violated that right to privacy when he repeatedly and suneptitiouslj- eiltercd Smat-tt's cliambers without a search warrant and without Smartt's permission; and, that all fruits of Harris's scare11 should have been suppressed by the Jucticial Standards Commission and disregarded by this Court. 32 The majority has conectly noted in 763 and ti 64 of its Opinion that whciner therc is an unlawful government intrusion into one's privacy depcnds on 1) whether the person has an actual cspcctation of privacy: 2) whether society is willing to rccognirc that expectation as objectively reasonable; and 3) the nature of the State's intrusion. Hcrc, Smartt testified tllat lie had a personal expectation of privacy in not only his office but in the contents of the hard drive ofhis con~puter. Although the computer system in his office w-asnetworkcd, other cniployecs at the County did not have access to the information contained on his hard drive without entering his office, turning on his computer, entering his password, and perfonning the functions necessary to access that information. Tom Stelling, the only county commissioner who testified, stated that he believed justice of the peace chambers Viere private and that the only appropriate way for a person other than the user of a computer to access znformatzon on the conlputer is to bring a problem to the attention of the county commissioners and then notify the user about the need to gatn access. There 1s no real dispute that the first element necessary for finding a right to pri~acy exists in this case. 1133 1 believe that society recognizes as reasonable the expectation of judges or other public officials to privacy in the contents oftheir office, including infbrmation stored on their computers. The information found on the hard drive of Smartt's computer is no different than the coritcnts of his desk drawers, ltis brief case, or sealed envelopes sitting on top of his desk. FIis computer includes I-ough drafts of orders and sensitive search warrant information-thc disclosurc of which could cause harm to others. No reasonable person would expect that a fcllou emploqcc could walk Inlo Smartt's office, rifle through his desk drauers, open his 45 mail, or search his brief case, Why wouid they feel any differently about iniimnation stored on his computer hal-d drive? Not only would society be ~viiiingto recognize Srnarit's expectation of privacy as reasonable; most members of the public would be shockcd that Harris so cavalierly disregarded Smartr's expectation of privacy. It is ironic that while this Court discusses and votes on public issues privately and goes to great lengths to shred and conceal copies of proposed documents, it is not willing to extend the same degree ofprivacy to a justice of the peace. If this Court is as concerned as it indicates about erosion of public coiifidence in the judiciary, it docs not have to look further than this apparent double standard for cause. 7i34 Finally, it is necessary to consider the nature of (Ire State's intrusion. I agree that the initial efforts to shut down Smartt's computer which led to the inadvertent display of a screen depicting sexually explicit photographs was not a search and, therefore, not an intrusion whicli violated Sniartt's right to privacy. However, Harris's conduct was something else. Altliough 1 e feigned offense at the images that appeared unexpectedly, he took the time to 1 print the images and take them home with him. He rcturned to the office the following day (a Sunday) anci accessed the short tern1 history file on Smartt's Internet Explorer and hand reco~dcd the n e b sites that had been vis~ted all wlthin the previous twenty days. Ele rcturned to Smartt's office three to four times on the following Monday and three to four times on the iitllowing l'ucsday. During tlrosc visits, hc took digital pliotos of thc web sites that had been visited by Srnartt until he ran out of digital capacity. He did not h a w permissioli to enter S~nartt's chambers. He did not ask for permission from the county commissioners. He did 46 not ask for thc assisranee o f law enbrcement ofi3cials. And, he was not protecting other crnployecs bccuusc othcr than Stevenson's inadvertent discover;:, no other employees had been affected by f martt's use of his computer. f;ollowing these exhaustive efforts to discover what was on Srnadt's computer, Harris filed a complaint alleging that Sniartt sexually harassed him for having the material that Ftarris observed on his computer. Go figure. 1j135 Even Steve~ison would not have been affected by Smartt's use ofhis computer had she not first activated the screen, made the necessary adjustment to exit Word Perfect, and then clicked on an icon on the tool bar which opened the program which displayed the sexually explicit photos. Contrary to the findings of the commission, her discovery was much different than had Sniant left an open magazine on his desk displaying sexually explicit material. 11136 It doesn't matter that Sniartt's computer was in a public office. The U.S. Supreme Court has held that workers may have a legitimate expectation of privacy in their offices or in parts of their offices srtch as their desks or file cabinets. See O'Conner v. Ortcgo (1987), 480 U.S. 709, 716-18, 107 S.Ct. 1492, 1497-98, 94 L.Ed.2d 714, 722-23. The Supreme Court did say in O'Chrzncr that public employers have some latitude to enter the offices of eniployees for work-related, non-investigatory reasons, t-lowever, Hanis was not Smartt's employer. Thcrcfore, evcn if this Court was to consider the esceptioli in Harris, when intcrprcting the greater protections provided for in Article 11, Sections 10 and 11 of the Montana Constitution, the exception would be inapplicable. Furthennore, it is irrelevant that tiarris was a justice of the peace rather than a police officer. The U.S. Supreme Court has 47 nevcr 11n1:tcd tile 1-wrth ;~rncnd~~lenx's plotcctlon to scarchcs and seilurcs conducted bq ihe police and izeithcr sho~.iidwc when interpreting our own coassisution. in rl.i.i.v .iei-se~ V. i'L 0 (1985). 3(?9i . S . 325, 336, 105 S.Ct. 733. 739, 83 L.Ed 23 720, 730-3:. the C'eurt stated: It may ivell bc truc that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of wing general warrants or "writs of assistance" to authorize searches for contraband by officers of the Crown. See UzitedStutes v. Chud~.vick, U.S. 433 l,7-8 (1947); R0j.d v. L'fzited States, 1 16 U.S. 6 16,624-629 (1 886). But this Court has never limited the Amendment's prohi bition on unreasonable scarchcs and sei~ures operations conducted by the police. Rather, the Court has long to spoken of the Fourth Amendment's strictures as restraints imposed upon "governn~cntal action" -- that is, "upon the activities of sovereign authority." Burdeclu v. 12.1cl~oi.vell, U.S. 465,475 (1921). Accordingly, we have held 256 the Fourth Amendment applicable to ille activities of civil as well as crin-iinal atithorities: building inspectors, see Camnru v. hcluuicipal Court, 387 U.S. 523, 528 (1 967), Occupational Safety and Health Act inspectors, see ~ ~ l u ~ ~ h a l l v. Barlow's, Itlc., 436 U.S. 307, 312-313 (1978), and even firemen entering privately owned premises to battle a fire, see Miclzigarz v. Tyler, 436 U.S. 499, 500 (1078), are all subject to the restraints imposed by the Fourth Amendment. As we observed in Cnrnuru v. .hii~4rzicipc~l Court, szipru, "[the] basic purpose of this Amcndrncnl, as rccognizcd in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by goven~mcrrtal officials." 387 US., ut 528. Because the individual's interest in privacy and personal security "suffers whether the government's motivation is to investigate violatiotls of criminal laws or breaches of other statutory or regulatory standards," ,bfclrsl~nll Burlow's. Inc., szipt-u cct 312-313, it would v. be "anomalous to say that the individual and his privatc property are fully protcctcd by the Fourth Amendment only mltcn the induidual is suspcctcd of crimlnal behavior." Crrrnnrrc v. 12funicipulCourt, slrprcl (it 530. 11137 Finally, 1 would hold that evidence seized in violation of the Constitution cannot be used at disctplinarq proceedings before the Judicial Standards Commission, the Supreme Court, the Commission on Practice or any other disciplinary agency which has the authority lo deny an individual his iiccnse to practice his profession or otherwise prohibit him 01. her rrom engaging in that professioil. When confronted with thc same issue, in i n i-c Lnil;.rie,v (Or. 1902), 370 P.2d 225. 230. the Oregon Supreme Court held that: [LVle hold that it would not be desirable for the Bar to employ in its disciplinary operations illegal taperecordings, evidence secured unlawfully by wire-tapping, or other fruits of criminal eavesdropping. We recognize that thc rules of evidence in disciplinary cases are more flexible than they are in criminal prosecutions. However, to permit the Bar to use illegal tape recordings \vould be incons~stentwith the publlc pollcy expressed by ClKS 165.540. '1 138 At least one C'alifom~adcc~s~o~l the exclusionaryrule to forfeiture proceedings applies ~vhich civil in nature. In Elder v. Bocrrd ofhferlicill Exatr~iners the State of Cfl'illifornia are of (Ct.App., 1st App.Dist., 1066), 241 Cal.itpp.2d 246,260, 50 Cal.Rptr. 304. 315, the Court of Appeals held that: Whatever the label which may be attached to the proceeding, it is apparent that the purposc of the forfeiture is deterrent in nature and that there is a close identity to the aims and objectives of criminal law enforcement. On policy the same exclusionary rules should apply to improper state coilduet whether the proceeding contemplates the deprivation of one's liberty or property. [Citations omitted.] 
