Commission recommends Judge Fuller retire or be removed

2011-02-05T06:00:00Z 2011-06-20T11:46:09Z Commission recommends Judge Fuller retire or be removedAndrea J. Cook Journal staff Rapid City Journal
February 05, 2011 6:00 am  • 

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 andrea.cook@rapidcityjournal.com.

 

Copyright 2015 Rapid City Journal. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(27) Comments

  1. rocowoman
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    rocowoman - February 08, 2011 11:56 pm
    Judge Fuller is great at what he does. I have sat in his courtroom before and I am amazed how he treats most individuals fairly. Just because someone is in a courtroom does not mean they should be treated as less than equal. Remember we are all innocent until proven guilty! Judge Fuller gets that, I have seen him get angered but it is on a more personal level which is rare. Instead of sitting there with his nose in the air he truly speaks to people and tries to give them the best non legal advice he can such as righting their wrongs. Sometimes this compassion can change a person forever.
    I do believe that people in our community are racist! I am white yet just 2 days ago I traveled to Rapid City and at a gas station was an intoxicated Native American male. The cashiers were quick to say "oh he must be on his way from the "rez" they are all a bunch of drunks!" I have to admit it is this kind of bias we need to abolish! It is ridiculous to assume that a few people with issues should be held to represent their entire race.
    Judge Fuller has a soul, and for that he should have to give up the one passion he has? I hope the supreme court sees through this hog wash and gives this man a chance to right whatever wrong they feel he committed and let the 7th circut have him back!
  2. MLG
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    MLG - February 07, 2011 9:23 pm
    Judge Davis is the only thing keeping this Circuit together.

    SouthDakotan446 said: "Judge Jeff Davis of the Seventh Judicial Court should be the one losing his job. The evidence clearly shows that Judge Fuller has engaged in this pattern of conduct for years. Judge Davis has tolerated this unprofessional conduct over a time when he should have taken firm action. There is no doubt that many South Dakotans have been deprived a fair trial because of Fuller’s bias. Judge Davis’s management of the Seventh Circuit is akin to the Bishop’s management of the pedophile clergy. I have little faith in the judiciary in South Dakota. This case illustrates the “cover the brothers” culture."

  3. Roland
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    Roland - February 07, 2011 11:24 am
    Magaska said: "A President of "United Urban Warrior Society" Black Hills Chapter....I would like to see the Native Comunity stand in unity behind this Judge...We all know he was speaking the truth...We must support him."

    Speaking the truth about what?

  4. SouthDakotan446
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    SouthDakotan446 - February 06, 2011 3:44 pm
    Fullers conduct is unacceptable and he is not worthy of sitting on the bench. His observations of violations of civil liberties are properly addressed by procedure other than defamatory editorials from the bench. The issues of Fullers conduct have been known for years. Judge Davis had an undeligatable responsibility to address them as they became known. Davis failed miserably in doing so. Only when Fullers pattern of conduct became so egregious did the committee have to take action. Davis should be ashamed of his administrative failure. Fuller should not return to the bench If he has opinions about citizen"s civil liberties then he should return to defense work.
  5. West River
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    West River - February 06, 2011 1:15 pm
    He just has been watching too much "Judge Judy" on TV and thought it was his key to success.

  6. SouthDakotan446
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    SouthDakotan446 - February 06, 2011 11:03 am
    Judge Jeff Davis of the Seventh Judicial Court should be the one losing his job. The evidence clearly shows that Judge Fuller has engaged in this pattern of conduct for years. Judge Davis has tolerated this unprofessional conduct over a time when he should have taken firm action. There is no doubt that many South Dakotans have been deprived a fair trial because of Fuller’s bias. Judge Davis’s management of the Seventh Circuit is akin to the Bishop’s management of the pedophile clergy.
    I have little faith in the judiciary in South Dakota. This case illustrates the “cover the brothers” culture.
  7. Palin Rocks
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    Palin Rocks - February 06, 2011 9:59 am
    Pea: not that I agree with it, but fuller is old enough to retire, they can't take away his retirement and so there isn't much they can do. he has earned it, if that is what you would like to call it.
  8. savethechildren
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    savethechildren - February 06, 2011 9:47 am
    I have never been harrassed by the RCPD. But I am not a person to associate with questionable persons and sport questionable behavior. no matter your race you will be watched if your behavior or friends warrant it.Abide b ythe laws and you won't be arrested. Do you notice the persons NOT screaming racist are't always white? If you hate someone because of their color then You think everyone else does too. Not the truth.i love people I don't even know and could care less about their color. i notice their actions and their friends actions first.
  9. Pea
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    Pea - February 05, 2011 10:47 pm
    Removed from the bench or retire? Another fine example in SD of how white collar misconduct is addressed!
  10. kaly
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    kaly - February 05, 2011 6:58 pm
    Real story is why it took 121 years and three powerful men in powerful positions to stand against judical abuses in the 7th Circuit. Standing alone they would have been harrassed, villified, slandered, unseated, or disbarred ...kudos to Brenner et.al. for taking up this mantle. This is not an anomaly...abusive behavior that is institutionally accepted starts from the top down.
  11. Palin Rocks
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    Palin Rocks - February 05, 2011 5:54 pm
    magaska: stand in unison. he'll still be gone.
  12. Magaska
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    Magaska - February 05, 2011 5:29 pm
    A President of "United Urban Warrior Society" Black Hills Chapter....I would like to see the Native Comunity stand in unity behind this Judge...We all know he was speaking the truth...We must support him.
  13. webcast
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    webcast - February 05, 2011 4:14 pm
    "anger and rudeness and abrasiveness, and I believe somebody even said bullying."

    Maybe it is time for some of this. People today are to fast to say that your statements or actions are not correct in todays world. What ever happened to telling it like it is?
    I would say that the states attorney, past sheriff and past police chief should think about the actions taken by their department and themselves over the past number of years.
  14. AGH
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    AGH - February 05, 2011 3:28 pm
    This judge is giving the finger in a court room, and making allegations toward police officers, and people are defending him? Judge Fuller's behavior is unprofessional, and this sort of behavior has no place in a court room. What would any of you think if a teacher were to flip off another teacher during a school meeting? Whatever his beliefs are regarding the rapid city police department, a "professional" adult man does not "give the bird" in court.
  15. tardman
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    tardman - February 05, 2011 2:31 pm
    Judges have carte blanche in their courtrooms, as long as they are empowered by the people to rule. I bet that if there were a judge out there that was biased against criminals to the extreme, the tax payers wouldn't be paying for the inquisition like we are now since Brenner wouldn't do a thing about it... This is about election numbers, not crime or sentences.
  16. Independent
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    Independent - February 05, 2011 1:01 pm
    So far everyone who has commented here is merely showing their anti-police sentiment. That's clearly obvious. Rapid City Police are an accredited police agency, one of only a handful in the nation. They are one of the finest departments around. Glen Brenner is a fine State's Attorney, one of the best if not the best in the state. Judge Fuller's reported conduct comprises only the tip of the iceberg. Didn't anyone catch the article in the paper, where his residence was listed as Deadwood? You had to live in Pennington County during the election Fuller narrowly won a couple of years ago. He publicly misrepresented his place of residence as Rapid City then. Fuller is not qualified to fairly, professionally and ethically serve the people of S.D. He is the epitiome of an unprofessional Judge, with a "God complex," who repeatedly allows his personal feelings to interfere with his work, and he legislates from the bench virtually everytime he dons his robe. I am confident our Supreme Court will expel him.
  17. jacie
    Report Abuse
    jacie - February 05, 2011 1:00 pm

    "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."

    miawmd "We need a separate commission to look into racism of the entire judicial system of Western South Dakota. That commission should come from Washington."

    Judge Fuller speaks the truth and they want to get rid of him? Anyone who has been stopped for 'DWR' can tell you that racism exists against Natives. Judge Fuller should be commended for speaking up and perhaps the 'injured parties' who started this witch hunt/investigation should take some self esteem classes. Didn't their mommas ever tell them, 'sticks and stones....'?

    As for contacting Washington; U.S. Senator Daniel Kahikina Akaka, who is America’s first Senator of Native Hawaiian ancestry, is chair of the United States Senate Indian Affairs Committee and a good place to start.
  18. FullBloodedLakota
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    FullBloodedLakota - February 05, 2011 12:55 pm
    What now-patently obvious material representations can be taken this seriously-these same igmulas would not vice versa it if he attributed racism to tribal members...
  19. soberlunatic
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    soberlunatic - February 05, 2011 12:33 pm
    Hooray for the finger of law to go against itself,this honorable person is waking up to the truth,and hopefully get the whole judicial system in western so.dak. up to what is really happening there.sometimes I think its unlawful for native kids to congregate even for the good or fun, racism in law enforcement is very apparent
  20. Pavlov
    Report Abuse
    Pavlov - February 05, 2011 10:47 am
    He went to anger management. That's what judges order people to do, so if it's good enough as a step toward a solution for the general population it should be good for a judge too. And he did it on his own initiative. I also agree with previous comments that the real question is are these cops racist? Because it is very rare for the law to go against itself, normally these guys are pretty united. I do believe racism is an issue in this state.
  21. RV Resident
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    RV Resident - February 05, 2011 10:32 am
    Maybe this explains why 'Judge Pete' seems to give lighter sentences to criminals from the res than he does for others. Trying to impose your own version of 'social justice' judge?
  22. Hometown
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    Hometown - February 05, 2011 10:01 am
    Brenner is one to talk with the lawsuit against him for his conduct.
  23. Observer57555
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    Observer57555 - February 05, 2011 9:35 am
    I've been in court hearings many times where Judge Fuller presided. If I personally had to be in court...hands down I would rather have him on the bench than any other judge in our District! Remove him from the bench for calling things by their real name? Hummmm?! No surprise there! If we keep the closet door closed we won't see the ghosts that are in there.

  24. BH_dreamer
    Report Abuse
    BH_dreamer - February 05, 2011 9:05 am
    The judge spoke the truth, he probably got tired of seeing a group of people being harrassed by the RCPD. And trust me, it is true, I get treated the same way. The actions taken against the judge for speaking up shows you how people really are in Rapid City.
  25. Question
    Report Abuse
    Question - February 05, 2011 9:00 am
    one must wonder if these complainers are really legit it looks like the same Fall River ones who threatened to quite if they didn't get there way with Shannon County Commissioners something don't add up here
  26. miawmd
    Report Abuse
    miawmd - February 05, 2011 8:58 am
    This commission, the states attorney and police would not have even looked at this judge if he had been denying individual rights to accused who came in front of him. If he called these cops racist the real question is are they, and what should be done about it. We need a separate commission to look into racism of the entire judicial system of Western South Dakota. That commission should come from Washington.
  27. Newsreader
    Report Abuse
    Newsreader - February 05, 2011 8:37 am
    This "bird" situation would almost be humorous except can you imagine what Fuller's reaction would have been if someone in his courtroom would have given him the bird? Bet it didn't work both ways!
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