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Can panel rebuke judge for '94 call?

Attorneys for 3rd District Judge David S. Young are challenging the authority of the Judicial Conduct Commission in its efforts to reprimand the judge for a phone call he made to an attorney in 1994.

The issue was argued Wednesday before the Utah Supreme Court, which has the final say in all public disciplinary matters involving the state's judiciary.The Judicial Conduct Commission recommended in January that the Supreme Court publicly reprimand Young for violating at least three judicial canons during a phone conversation with an assistant attorney general.

Attorney Dan Berman told the justices that the Judicial Conduct Commission violates the separation of powers provision of the state constitution because four of its 10 members are legislators.

"The basic business of the Judicial Conduct Commission is to discipline judges, which impacts the independence of the judiciary," Berman argued.

Not only do legislators serve on the commission, they appoint its members, and Berman contends that's a function of the executive branch of government.

He also challenged the commission's recommendation regarding Young specifically, saying that Young was no longer even involved in the matter under discussion with the assistant attorney general.

According to the commission, the judge initiated the conversation only "to satisfy his personal passions of annoyance and dismay" over a newspaper article involving one of his cases.

In the same conversation, he also led attorney Raymond Hintze to believe that he was trying to extort an agreement in a high-profile case before him.

The case involved Park City School District's decision to suspend an eighth-grader who was accused of bringing a gun into Treasure Mountain Middle School.

Though the student claimed the gun had no trigger and was inoperable, the district suspended him anyway under its new "zero tolerance" policy. His parents objected and took the matter before Young, who shocked the district with an order to reinstate the student.

According to the Judicial Conduct Commission, Young told Hintze in chambers that he was considering awarding the parents' attorneys $6,000 in fees and perhaps as much as $18,000 if the district persisted in attempting to suspend the boy.

"In short, Judge Young extorted an agreement from the Park City School District to refrain from suspending a student or to face an additional $12,000 of attorney's fees," wrote Superintendent Donald J. Fielder in his complaint to the commission. "This act is nothing short of extortion."

The commission said that while Young had not, in fact, attempted to extort an agreement, he had given that perception to school officials.

"(District officials) were placed in the awkward position by the judge of settling a dispute without wanting the plaintiff to be aware of the judge's perceived proclivity to sanction the school district," the commission said in a memorandum decision issued in November 1996.

Therefore, Young's conduct brought the judicial office into disrepute, it said. Also, the commission said Young should have disqualified himself from the case.

"Although (the commission) does not find that Judge Young directly influenced the settlement between the parties, his conduct did foster a disrespect for the judicial office by many of those who were involved in the controversy," the memo said.

According to Berman, Young was no longer serving as the judge in Summit County when the conversation occurred. Third District judges rotate service in that county, and in this case, Judge Glenn Iwasaki had taken over.

"There's no reason to believe that he (Young) could in any way impact the future course of this case," Berman said.

Based on that, there was no charge that Young acted in bad faith and no finding by the commission that he had acted in bad faith, Berman said.

The commission's recommendation for a public reprimand was defended by attorney Steve Stewart. The Supreme Court took the issue under advisement and will rule later.

Young is no stranger to controversy. During the 1996 general election, he was targeted for removal by groups and individuals who found fault with his rulings in a number of cases over the years. Mostly, they claimed he had held a religious and gender bias.

Their concerns first became headlines in 1994 when he ruled that a Park City woman could not take her children to Oregon because he questioned the religious environment they would be in.

Following one of the most vocal, anti-judicial campaigns in Utah history, Young managed to retain his seat on the bench by a slim, 1,800-vote margin.