S.D. SupCo tells judge who called police 'racists' to retire

Jessica M. Karmasek Jun. 3, 2011, 1:10pm


PIERRE, S.D. (Legal Newsline) -- The South Dakota Supreme Court has ordered a circuit court judge to retire after he admittedly referred to city police officers as a "bunch of racists" during a proceeding last year.

The state Judicial Qualifications Commission had unanimously recommended to the Court that Judge A. P. "Pete" Fuller, who was appointed to the Seventh Circuit bench in 2003 and later reelected, be removed or retired. It is the first time in the state's history that the commission recommended removing a sitting judge.

Fuller had petitioned for modification or rejection of the commission's recommendation. At oral argument, his counsel recommended public censure and reinstatement with conditions attached.

However, after the Court's own independent inquiry, it determined that the evidence "clearly and convincingly" showed Fuller engaged in conduct that merited ordering his retirement.

In May 2010, Glen Brenner, the Pennington County state's attorney; Steve Allender, the Rapid City chief of police; and Don Holloway, the Pennington County sheriff, filed a complaint with the commission alleging that Fuller referred to Rapid City police officers as a "bunch of racists" during a police officer's testimony at an April 28, 2010 juvenile proceeding. The complaint alleged that Fuller's comment was inappropriate and violated the South Dakota Code of Judicial Conduct.

At that time, the commission forwarded the complaint to Fuller and requested a detailed response. In a letter dated June 28, 2010, Fuller simply responded, "(t)he allegation is correct."

The commission then elected to investigate the complaint filed against Fuller and issues "concerning his demeanor."

Following an investigation and report by attorney Dave Nelson, then-counsel for the commission, it voted to institute formal proceedings to "inquire into the charges against the judge." Fuller was served with a formal complaint on Sept. 9, 2010.

On Sept. 30, 2010, the commission held a hearing on its order to show cause why the judge should not be suspended with compensation during the pendency of the proceedings, as mandated by its rules. After the hearing, the commission voted to recommend to the state's high court that Fuller be suspended with compensation. Ultimately, the Court entered an order stating so.

On Dec. 13, 2010, a formal hearing was held. After, the commission recommended to the Court that Fuller be removed or retired as a circuit judge based on his "pattern of improper activity and the effect that that improper activity has had on others, including court personnel, attorneys, litigants, and on the judicial system itself."

The Court, in its May 18 opinion, said the evidence in the case "reveals a pattern of misconduct that began when Judge Fuller assumed the bench and continued throughout his entire tenure on the bench." Chief Justice David E. Gilbertson authored the Court's 25-page opinion.

"All judges are human and are capable of making a misstatement or mistake especially in the heat of a court proceeding. Such is not the case here," the Court wrote.

The justices said they have no reason to believe that the judge is sincere in his apology for his past misconduct and his intention to try to rectify the situation.

"Judge Fuller has maligned the reputation of South Dakota's judiciary, has insulted individual lawyers, has uttered insensitive racial and sexist jokes, has conducted himself on the bench with unconscionable arrogance, has used abusive language, has rudely mistreated employees of the (Unified Judicial System), and has flippantly from the bench referred to law enforcement as a 'bunch of racists' with no evidentiary basis to do so," they wrote.

The Court said Fuller has not only damaged his judicial office but those of every judge in the state.

"Each judge's decisions, judgments, and decrees are not enforced by armies or by force. They are chiefly enforced by the voluntary compliance of our citizens through their respect for the rule of law," it wrote. "Judge Fuller's misconduct makes it more difficult for every judge in this state to maintain that respect for our courts and thus our ability to effectively resolve society's legal disputes."

The Court said if the judge consents in writing to a list of conditions, within 30 days the order requiring involuntary retirement will be stayed.

"This is the first time in its 121-year history that this Court has been called upon to render judicial discipline of this severity upon one of the judges of this State. We hope this Court's words do not go unheeded and will result in a judicial future free of this type of misconduct," it concluded.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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