For the first time in its 121-year history, the South Dakota Supreme Court will decide if a sitting judge should be removed from the bench.
The Judicial Qualifications Commission made the recommendation this week that 7th Circuit Judge A.P. "Pete" Fuller should either be removed from the bench or be forced to retire. The 7th Circuit encompasses Custer, Fall River, Pennington and Shannon counties.
The commission's unprecedented step comes after a six-month investigation into the judge's conduct that concluded Fuller "engaged in a pattern of misconduct showing an utter lack of courtesy and total disrespect to court personnel over a period of years."
The complaint that launched the investigation was made in May by Pennington County State's Attorney Glenn Brenner, Rapid City Police Chief Steve Allender and then Pennington County Sheriff Don Holloway after the judge reportedly referred to police officers as a "bunch of racists" in a juvenile court hearing in April about a traffic stop involving Native Americans.
"I did what I had to do in filing this complaint, but that's where my involvement ended," Brenner said Friday. "I like this judge personally. I think most people would say that they like him on a personal level. He's a nice guy."
Fuller's attorney, Thomas Nicholson of Sioux Falls, said the judge is relieved the accusations made against him are being made public.
"We're glad that it's all public, because the public can see that there's no criminal activity here. It all relates to bench conduct, and we do not believe his conduct rises to the level of removal," Nicholson said.
Fuller, who did not deny the initial allegation in a written response to investigators, declined to comment for this story, referring questions to his attorney.
The Judicial Qualifications Commission has been investigating complaints made against judges since 1889. From 2001 to 2006, it reviewed a total of 68 complaints but no recommendations for removal or suspension were made.
J. Crisman Palmer, a Rapid City attorney who is the commission chairman, said the commission's recommendation is a first.
"For the first time in the history of the South Dakota Judiciary, the Supreme Court has been asked to consider the removal of any judge from office," he said.
The seven-member commission, which includes presiding 7th Circuit Judge Jeff Davis of Rapid City, unanimously agreed that the judge's behavior violated several Canons of the South Dakota Code of Judicial Code, according to documents filed Jan. 31 with the Supreme Court.
"This recommendation is not taken lightly and is based upon the seriousness of the transgressions, which this commission has found by clear and convincing evidence to have occurred," the commission wrote in its report to the Supreme Court.
Fuller was suspended with pay in early October, following a Sept. 30 hearing held by the commission in Rapid City
Several subpoenaed witnesses testified at the hearing. Fuller was present and heard the testimonies of a Rapid City police officer, a Pennington County deputy state's attorney, a deputy attorney general and attorneys who have appeared before Fuller.
Rapid City attorney Bart Banks was interviewed at the hearing about a case he tried in front of Fuller. During the trial, Fuller responded to one of Banks' comments by "flipping the bird," according to the commission's report.
"It didn't concern me, but it certainly concerned my client, which I had to address with him," Banks testified. "I told him it was just a jest, don't worry about it. And I thought the banter was dropped."
The commission returned Dec. 13 to Rapid City for a second hearing where 17 witnesses and Fuller testified. Fuller was accompanied at the hearing by Nicholson and Aberdeen attorney Jack Hieb.
Among the witnesses at the December hearing were clerks of court from Fall River and Custer counties. They testified that Fuller's use of profanity and angry outbursts while presiding there early in his career as a judge made it difficult to work for him.
The clerks' complaints resulted in Fuller being taken off the rotation as a visiting judge in 2005.
Fuller has consistently denied using profanity.
Brenner testified that his deputies "routinely complained about ... how they were treated in Judge Fuller's courtroom." As 2010 progressed, Brenner's staff increasingly asked Fuller to take himself off their cases.
Fuller was assigned juvenile cases in January. After Brenner's complaint was filed, his lead deputy for juvenile cases found it impossible to be in his courtroom, the state's attorney said.
At the December hearing, Fuller revealed that he had enrolled in anger-management classes. He told the commission that through the classes he now understood that others perceived his irritation and annoyance with situations as "anger and rudeness and abrasiveness, and I believe somebody even said bullying."
Fuller went on to say that he believed he could return to the bench and be an impartial and effective judge.
Fuller, who turns 68 on Feb.17, suggested that the commission could return him to the bench with a reprimand and monitor his conduct until he reaches the mandatory retirement age of 70 in 2013.
Fuller, who served a four-year term on the Judicial Qualifications commission from 1990 to 1994, was appointed to the judgeship in 2003 by Gov. Bill Janklow. Previously, he was the senior partner for more than 30 years in the Lead and Spearfish law firm of Tellinghuisen, Gordon & Percy, which was the general counsel for Homestake Mining Co.
Fuller, who lives in Lead, intends to petition the Supreme Court to oppose the commission's recommendation, Nicholson said.
"We intend to strongly contest their findings and recommendations when we get our opportunity in front of the Supreme Court," Nicholson said.
Fuller has 30 days to file his petition, Palmer said.
Once the judge's petition is filed, the commission has 20 days to respond.
Fuller has 15 days to craft a reply to the commission, Palmer said.
If Fuller does not petition the Supreme Court, "then it's up to the court to make a decision," Palmer said.
Contact Andrea Cook at 394-8423 or firstname.lastname@example.org.