In the Matter of Dean – 3/28/2006

March 28, 2006

Arizona Supreme Court Issues a Mea Culpa.

Nancy Dean and Michael C. Nelson began a romantic relationship in 2001 when Ms. Dean served as an Apache County prosecutor and Mr. Nelson served as an Apache County Superior Court judge. During their affair, Ms. Dean appeared in front of then-Judge Nelson 485. Ms. Dean twice denied their relationship when the State Bar inquired. A third inquiry, prompted by Ms. Dean’s former spouse, resulted in the hearing officer recommending a six-month suspension. Both the State Bar and Ms. Dean appealed the recommended sanction. The Disciplinary Commission determined that the appropriate sanction was a one-year retroactive suspension was appropriate. The length of the suspension would require that Ms. Dean apply for reinstatement.

Ms. Dean filed a petition for review, contending first that the Discipline Commission did not give adequate weight to her rehabilitation efforts, and second that neither the hearing officer nor the Discipline Commission gave appropriate weight to the absence of discipline to Nelson. The Supreme Court quickly dismissed Ms. Dean’s first contention, pointing out that the presumptive sanction for misrepresentation, the most serious offense with which Dean was charged, was disbarment. Given the severity of her conduct, the Commission’s recommendation was appropriate.

The Supreme Court was more concerned with Ms. Dean’s second argument. The Court sifted through the proceedings against Mr. Nelson. Charges were first brought against him by the Commission on Judicial Conduct. Nelson resigned before the Supreme Court could consider the Commission’s recommendation that he be removed from office. In light of his resignation, the Court did not consider the suspension but ultimately entered an order charging Nelson with costs. The Supreme Court denied the State Bar’s subsequent request that Mr. Nelson be disciplined under┬áSupreme Court Rule 46(d), and then denied the Bar’s request for clarification. The combination of the Supreme Court’s order charging Mr. Nelson with costs and its denial of discipline under Rule 46(d) effectively foreclosed all formal discipline against Mr. Nelson under Rule 46(c) (State Bar has jurisdiction to seek sanctions against a former judge only if there was no final determination by the Court either dismissing the case or imposing a sanction). This result, the Court admitted, was an error. And, when compared with Ms. Dean’s one-year suspension, made her sanction too severe. Thus, the Court held that “this is the rare case in which reconsideration of an otherwise suitable sanction is appropriate,” and reduced Dean’s suspension to six months.

Justice Hurwitz authored the Court’s unanimous opinion.