For seven years, 7th Circuit Judge A. P. “Pete” Fuller rarely hesitated to say what was on his mind and in a manner that shocked many in his western South Dakota courtrooms.
Courtroom personnel in Fall River, Shannon and Custer counties complained as far as back as 2004 about his abusive manner. The complaints were heard, and Fuller no longer works as a visiting judge in those counties.
Prosecutors in the Pennington County State’s Attorney Office complained about how they were treated by the judge and frequently asked that he be removed from their cases.
As recently as last year, the 67-year-old judge used obscene references to describe the juveniles who appeared in his courtroom.
Fuller acknowledges “flipping the bird” at an attorney who was representing a client in his courtroom; he said he got caught up in what he thought was playful banter.
He once wore a powdered wig on Halloween in juvenile court.
These allegations and others are included in a report filed by Dave Nelson, the attorney for the Judicial Qualifications Commission.
Now, the sometimes prickly style and off-color humor of the judge, who was appointed to the court in 2003, may cost him his job. After a six-month investigation, the commission voted unanimously last week to recommend that Fuller be removed from the bench or be forced to retire.
The judge’s professional fate is now in the hands of the South Dakota Supreme Court. It is the first time in the state’s history that the commission has asked the high court to remove a judge, according to its chairman.
“There have been some complaints filed against judges in a formal sense, but usually there’s been a resignation or some resolution,” said J. Crisman Palmer, a Rapid City attorney. “Nothing has gone to a formal proceeding that ended up before the Supreme Court.”
According to documents obtained by the Rapid City Journal, Fuller has a long history of informal complaints against him. He is described as abusive to courtroom personnel, law enforcement and attorneys.
Pennington County State’s Attorney Glenn Brenner, Rapid City Police Chief Steve Allender and then Pennington County Sheriff Don Holloway made the formal complaint in May that led to Fuller’s suspension and subsequent investigation by the Judicial Qualifications Commission, a seven-member body that includes 7th Circuit Court Judge Jeff Davis of Rapid City.
The frustration in the State’s Attorney’s Office reached the boiling point when Judge Fuller called Rapid City police officers a “bunch of racists” while listening to an officer explain in a juvenile court hearing why he stopped a car driven by a Native American who was on probation.
“I thought that the conduct of this judge was sufficient enough to file a complaint, and I went through the proper course to do so,” Brenner said Friday. The state’s attorney also said his staff had been finding it increasingly difficult to appear in Fuller’s courtroom.
“The reason we had issues wasn’t because he was too lenient, it was more of making some of the staff more uncomfortable and that became an administrative issue for me,” Brenner said. “I don’t think he had a great deal of respect for the system in which he worked.”
Fuller has not denied making the “racist” comment during the hearing.
According to the Judicial Qualifications Commission report, Fuller’s conduct in that hearing violated the Code of Judicial Conduct, which defines standards for ethical conduct.
The code’s five Canons outline a judge’s obligation to uphold the integrity and independence of the judiciary, avoid impropriety and the appearance of impropriety, perform judicial duties impartially and diligently, conduct extra-judicial activities in a manner to avoid conflict with judicial obligations and refrain from inappropriate political activity.
Brenner’s complaint accuses Fuller of violating Canons 1, 2 and 3 when he said “racists” in his courtroom.
Rapid City police officer Joshua Twedt and Pennington County Deputy State’s Attorney Roxanne Erickson were both in the courtroom that day and would later testify before the commission.
Erickson would tell the commission that Judge Fuller showed them little respect in the courtroom and interrupted Twedt while he was testifying about the probable cause he used to stop the vehicle.
“At that point, Judge Fuller interrupted the testimony, turned to the officer and he ... he looked back at me, and I believe he also looked at the defense counsel, and indicated something to the effect, ‘That’s it? That’s all you’ve got? You better have something more than that, than kids acting suspicious,” Erickson told the commission.
Erickson said Fuller’s “racists” statement was
apparently directed at the youth’s defense attorney.
Fuller appeared “somewhat kind of disgusted with the officer’s stop” and said after the hearing that the Rapid City Police Department practiced racial profiling and that it should be addressed, she said.
Twedt later told his superiors that he felt belittled, labeled and confused by Fuller’s comment.
Erickson eventually joined a long list of Brenner’s deputies exercising their right to remove Fuller from their cases.
Brenner testified that many of his deputies routinely complained about how they were treated in Fuller’s courtroom or commented on something that happened in his court.
Fuller’s verbal chastisement of a court services officer during one juvenile hearing prompted the juvenile and a parent to write letters of apology to the officer.
Fuller’s abrasive style resulted in his removal from the rotation of circuit judge assignments in Fall River, Shannon and Custer counties.
Although Fuller staunchly denies using profanity, clerks of court for Fall River and Custer counties testified that the judge frequently swore when he was upset.
Custer County clerk of courts Deb Salzsieder told Nelson during his investigation that she experienced “snide and belittling comments from Judge Fuller.”
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Seventh Circuit Court administrator Jeff Krattenmaker told the commission he did not assign Fuller to their counties after 2004 because of the problems he had with the staff.
According to the report, Fuller’s courtroom also is decorated with several pieces of artwork and photos. One painting of Native Americans riding through a forest covers an audio visual monitor.
Fuller was known to say ‘That’s where I hang my Indians,’ according to Krattenmaker’s testimony.
The commission’s investigation revealed numerous instances where the judge called attorneys to discuss their cases he was handling, a practice that violates the Code of Conduct.
He is also accused of making at least one sexist comment. Fuller, who has a daughter who practices law, once said to a third-year law student that “the legal profession was better off before women” and that he wished things could go back to the way they were in the early 20th century.
“I think he was just joking around, but it was still offensive,” the student said later.
Attorneys reported instances where Fuller treated attorneys “impatiently, aggressively, and in a rude and condescending manner,” according to the commission.
A judge’s demeanor in the courtroom is important, according to Cynthia Gray, director of the American Judicature Society’s Center for Judicial Ethics in Des Moines, Iowa.
“It sets the tone for what happens in the courtroom,” she said. “It sets an example for the other people in the courtroom of how the judge wants them to act.”
It’s also a judge’s responsibility to ensure that people are treated respectfully and courteously throughout court proceedings, Gray said.
“So, it’s important for the judge to show that losing control of your anger is not appropriate for the courtroom setting,” she said.
Fuller believes he has changed since his suspension last year and that he deserves another chance to resume his duties as a judge, according to his testimony at a Judicial Qualifications Commission hearing in December.
Fuller told the commission that he has voluntarily participated in family counseling and taken anger-management classes.
He acknowledged that it was improper to call local police “a bunch of racists” in the courtroom.
Fuller said he now realizes his informal and flippant manner that culminated in him giving an attorney “the bird” in the courtroom was out of line.
“I erroneously got caught up in the banter and forgot I was a judge,” Fuller told the commission.
The judge said the anger-management classes helped him recognize that his irritation and annoyance could evolve into “what was perceived as anger and rudeness and abrasiveness” and bullying.
When clerks of court in other counties complained to the presiding judge or court administrator about his behavior, no one brought it to his attention, Fuller said.
He asked the commission to consider making a recommendation that would allow him to return to the bench until his scheduled retirement at the end of 2013. The judge said he has the ability to change.
“Really, what I’m asking for is an opportunity,” he said
In making their recommendation to the Supreme Court, the commissioners found that Fuller’s misconduct “represents a number of serious transgressions that adversely affect the public’s perception of the system.”
Fuller has “failed to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” the commission said in its report to the Supreme Court.
Fuller’s comments regarding women in the law, Native Americans and references to law enforcement “have no place in the judicial system and cast doubt on Judge Fuller’s fitness to serve as a judge,” the commission concluded.
Fuller intends to challenge the commission’s findings and recommendations by petitioning the Supreme Court, according to his attorney, Thomas Nicholson of Sioux Falls.
“A lot of the rumors that happen in situations like this are not true,” Nicholson said. “The allegations are simply about his conduct, some which he admitted to and some which he didn’t.”
Fuller, who has referred all questions about the investigation to Nicholson, has 30 days from Jan. 31 to file his petition.
Once the petition is filed, the commission has 20 days to craft a response.
Fuller must then reply to the commission’s arguments within 15 days.
Palmer said the Supreme Court will schedule a hearing for a case that is entering unchartered territory.
“I don’t know procedurally how it’s going to be done,” Palmer said. “Nobody’s ever done it.”
Contact Andrea Cook at 394-8423 or