In re Allen

• Decision Date: 18 December 2008
• Docket Number: No. SC07-774.,SC07-774.
• Parties: Inquiry Concerning a Judge, No. 06-249 re Michael E. ALLEN.
• Court: Florida Supreme Court

998 So.2d 557

Inquiry Concerning a Judge, No. 06-249 re Michael E. ALLEN.

No. SC07-774.

Supreme Court of Florida.

December 18, 2008.

Judge Morris Silberman, Chair, Judicial Qualifications Commission, Tampa, FL Michael L. Schneider, General Counsel, Judicial Qualifications Commission, Tallahassee, FL; Marvin E. Barkin, Interim General Counsel, Judicial Qualifications Commission, Tampa, FL; Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission, Tallahassee, FL; Lauri Waldman Ross of Ross and Girten, Miami, FL, Counsel to Judicial Qualifications Commission Hearing Panel; and F. Wallace Pope, Jr., and Jennifer A. Reh of Johnson, Pope, Bokor, Ruppel and Burns, LLP, Clearwater, FL, Special Counsel to Judicial Qualifications Commission, for the Florida Judicial Qualifications Commission.

Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, FL, Sylvia Walbolt of Carlton Fields, P.A., Tampa, FL, Richard C. McFarlain, Tallahassee, FL; and Guy E. Burnette, Jr., Tallahassee, FL, for Judge Michael E. Allen.

PER CURIAM.

We have for review the finding of the Judicial Qualifications Commission (JQC) that First District Court of Appeal Judge Michael Allen violated the Code of Judicial Conduct and its recommendation that Judge Allen be publicly reprimanded. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons discussed below, we approve the JQC's findings, conclusions, and recommendation.

FACTS AND PROCEDURAL HISTORY

This case arises from formal charges brought by the JQC against Judge Michael Allen. These charges involve Judge Allen's concurring opinion in Childers v. State, 936 So.2d 619 (Fla. 1st DCA 2006). In the Notice of Formal Charges, the JQC accused Judge Allen of being motivated by ill will in writing his concurring opinion and personally attacking First District Court of Appeal Judge Charles Kahn in that opinion. As a result, Judge Allen was charged with violating the preamble and Canons 1, 2 A, 3 B(2), 3 B(4), 3 B(5), and 3 D(1) of the Code of Judicial Conduct, and violating Rule 4-8.2(a) of the Rules of Professional Conduct of The Florida Bar and the Oath of Admission of The Florida Bar.¹ After hearing the testimony of several First District judges and attorneys who knew Judge Allen and reviewing other evidence, the Hearing Panel of the JQC concluded that Judge Allen violated Canons 1, 2 A, and 3 B(5) of the Code of Judicial Conduct and recommended that Judge Allen be publicly reprimanded.

The following facts were determined by the JQC to be established by the evidence. Judge Allen was appointed to the First District in January 1990. Judge Kahn was appointed to the First District in 1991.² Judge Allen expressed a strong dislike for Judge Kahn that predated the Childers case. Judge Allen generally never had anything nice to say about Judge Kahn. In fact, when Judge Allen spoke about Judge Kahn with other judges, it was usually in a derogatory manner. Judge Allen also did not respect Judge Kahn and believed that Judge Kahn was not what a judge should be, was corrupt, and did not have the character traits to be chief judge. When it was Judge Kahn's turn to be chief judge in 2004, Judge Allen solicited several judges to run against Judge Kahn for the chief judge position.

W.D. Childers, a former state legislator, was convicted of bribery and unlawful compensation or reward for official behavior, and appealed his conviction to the First District. This case was blindly assigned to a three-judge panel, consisting of Chief Judge Kahn, Judge Ervin, and Judge Van Nortwick. After hearing oral arguments, the three-judge panel voted unanimously to reverse Childers' conviction, and Judge Kahn, as the primary judge on the case, was assigned the responsibility of authoring the opinion. After the proposed unanimous opinion was circulated to all the judges, Judge Allen sought out another judge to talk to Judge Kahn about recusing himself from the case. Judge Kahn told that judge that he saw no reason to recuse himself. However, after further discussion within the Court, a revised two-to-one Childers opinion was circulated to all the judges.

Before the new two-to-one opinion was released, one of the judges prepared an extensive memorandum, urging en banc review, which was circulated to all judges. Subsequently, on February 2, 2006, the First District issued an en banc decision, affirming Childers' conviction by a ten-to-four vote. See Childers v. State, 936 So.2d 585 (Fla. 1st DCA 2006). This decision consisted of nine different opinions, which was the result of a legal dispute among the judges over the district court's decision to proceed en banc. One of the dissenting opinions was authored by Judge Kahn, an opinion in which he expressed his view that the court should not have granted en banc review.³

Following the release of the en banc decision, Childers' attorney moved to certify certain questions to this Court. It was in the decision denying Childers' motion for certification that Judge Allen filed his concurring opinion that is at issue in the instant proceeding. See Childers v. State, 936 So.2d 619, 622-29 (Fla. 1st DCA 2006). After Judge Allen circulated this proposed concurrence to the other judges, some of the judges warned Judge Allen not to release the opinion because it was unwise and it would be problematic for him.

At the evidentiary hearing, several judges from the First District testified. One judge said he specifically told Judge Allen that releasing the opinion would affect him more than it would Judge Kahn. Although two judges believed that the opinion was a reasonable explanation of why Judge Allen voted for an en banc consideration and was not a personal attack on Judge Kahn, a majority of the judges believed that the opinion was inappropriate and that it suggested that Judge Kahn was corrupt. Two judges testified that they believed the opinion was also unnecessary because the case was, for all intents and purposes, over by the time Judge Allen wrote his concurring opinion. Another judge testified that he showed Judge Allen a proposed order that was a one sentence per curiam denial of Childers' motion for certification. However, Judge Allen refused to sign the proposed order and said, "It's time for them to get theirs." The judge understood "them" to mean Judge Kahn and Judge Wolf. Another judge believed that the opinion was an abuse of power and that Judge Allen wrote the opinion to "settle a score."

Judge Allen also testified at the final hearing. He testified that if Judge Kahn had recused himself and had not written his dissent on the en banc issue (and if Judge Wolf had not written his dissent) accusing the majority of the court of ignoring the requirements of the law, he would not have published his opinion. He also said he did not believe he attacked Judge Kahn's integrity. With regards to the content of his concurring opinion, he admitted that although he quoted extensively from three newspaper articles, he had no personal knowledge of the facts contained in the articles and that Judge Kahn's name did not appear in any of the articles. He also conceded that he was not familiar with the relationship between Judge Kahn and Childers.

Based on these factual findings, the Hearing Panel of the JQC made numerous conclusions including the following: Judge Allen's concurring opinion clearly implied that Judge Kahn cast a corrupt vote as a payback to friends; the opinion was counter-productive and unnecessary; the opinion was a personal attack on Judge Kahn even though Judge Allen phrased the opinion in the third person; Judge Allen did not pursue proper methods of bringing claims of impropriety to the appropriate authority such as the JQC or law enforcement; Judge Allen acted from a dual motive: (1) a perceived threat to the integrity of the court by criticism, and (2) an extraordinary level of antipathy to Judge Kahn; Judge Allen knew that his opinion would harm Judge Kahn and would impede future endeavors by Judge Kahn, including other judicial opportunities; Judge Allen's opinion brought the court and the judiciary into disrepute; and the opinion did not promote public confidence in the integrity and impartiality of the judiciary. As a result, the JQC Hearing Panel found that Judge Allen was guilty of misconduct and recommended that Judge Allen be publicly reprimanded.

ANALYSIS

Judge Allen now asserts that: (1) the JQC's findings of fact are not supported by clear and convincing evidence; (2) the conclusions of law are unfounded as a matter of fact and law; and (3) a JQC proceeding based on a judge's written opinion violates the principles of judicial independence.

Clear and Convincing Factual Findings

Judge Allen first argues that there is no clear and convincing evidence to support the JQC's findings that his concurring opinion was motivated by his dislike of Judge Kahn, that the opinion was a personal attack on Judge Kahn, and that the opinion suggested that Judge Kahn was corrupt. Upon review of the record, however, we find that sufficient evidence supports the JQC's findings.

The Florida Constitution vests this Court with the ultimate decision in determining what constitutes misconduct and how to punish it. Article V, section 12(c)(1) provides, in pertinent part, that "[t]he supreme court may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission and it may order that the justice or judge be subjected to appropriate discipline." In In re Graziano, 696 So.2d 744, 753 (Fla.1997), we described how we review the JQC's findings of fact:

Before reporting findings of fact to this Court, the JQC must conclude that they are established by clear and convincing evidence. In re McAllister, 646 So.2d 173, 177 (Fla.1994). This Court must then review the findings and determine whether they meet this quantum of proof, a standard which requires more proof than a "preponderance of...