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In re Kearns12/20/1999
588 (Quinn, J., dissenting). Justice Quinn reasoned that Fahselt's conduct would ordinarily merit a two to three-year suspension, but found that the mitigating factors made a one-year suspension appropriate. See id. at 589.
In addition to vehicular assault and DUI, Fahselt was convicted of failure to maintain compulsory insurance, see §42-4-1213, 17 C.R.S. (1984), and reckless driving, see §42-4-1203(1), 17 C.R.S. (1984) (now section42-4-1401, 11 C.R.S. (1999)). To be convicted of reckless driving, a person must operate a motor vehicle "in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property." Thus, a conviction for reckless driving requires a culpable mental state. On the other hand, vehicular assault is a strict liability offense, and therefore requires no culpable mental state. See §18-3-205(1)(b)(I).
Driving under the influence is a also a strict liability crime. See People v. Senn, 824 P.2d 822, 824 (Colo. 1992). The respondent in Senn argued that giving him a public censure for committing the crime of prohibited use of a weapon would violate the Equal Protection Clause because the grievance committee had made a practice of treating DUI cases with private discipline. See id. We explained that a lawyer's mental state is an important factor in determining the proper level of discipline. See id.; ABA Standards 3.0(b). To commit the offense of prohibited use of a weapon, a person must act "knowingly" or, at the least, with "criminal negligence." See 824 P.2d at 824. Therefore, " laced in context, the respondent's misconduct is sufficiently aggravated and differentiated from a disciplinary charge of driving under the influence that his equal protection claim is without merit." Id.
Following this line of reasoning, therefore, we conclude that Fahselt's conduct was more serious than Kearns's conduct here. The crimes that Kearns was convicted of are strict liability offenses. In addition, the mitigation in this case is more compelling than that in Fahselt. Therefore, while the range of penalties for the offenses are the same under our Criminal Code, the sentence in the criminal case for Kearns is greater than that imposed on Fahselt. On the one hand, Fahselt was sentenced to probation. To the contrary, Kearns must serve three years in the custody of the DOC, and then a two-year mandatory period of parole. Moreover, section 18-1-105(3), 6 C.R.S. (1999), provides that while Kearns is serving his sentence in the custody of the DOC, he is "disqualified from...practicing as an attorney in any of the courts of this state."
We consider Kearns's prison sentence and his disqualification from practicing law during his incarceration a significant "other penalty or sanction " and therefore a mitigating factor in determining the level of discipline. See ABA Standards 9.32(k). Weighing the factors in mitigation and aggravation, together with the seriousness of the misconduct, we conclude that a public censure is appropriate. At least one member of the court, however, would have imposed a greater sanction.
III.
In consideration of the foregoing, Jerry Thomas Kearns is hereby publicly censured. Kearns is ordered to pay the costs of this proceeding in the amount of $672.41 to the to the Attorney Regulation Committee, 600 Seventeenth Street, Suite 200 South, Denver, Colorado 80202-5432, within thirty days after this opinion is announced.
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