In re Bailey, SC18-2060
Decision Date | 11 April 2019 |
Docket Number | No. SC18-2060,SC18-2060 |
Citation | 267 So.3d 992 |
Parties | Inquiry Concerning a Judge No. 18-352 RE: Dennis Daniel BAILEY. |
Court | Florida Supreme Court |
Honorable Krista Marx, Chair, Michael Louis Schneider, Executive Director, Alexander John Williams, General Counsel, Judicial Qualifications Commission, Tallahassee, Florida, for Florida Judicial Qualifications Commission, Petitioner
Michael E. Dutko of Dutko & Kroll, PA, Fort Lauderdale, Florida, for Judge Dennis Daniel Bailey, Respondent
During a felony criminal trial, Judge Dennis Daniel Bailey ordered his courtroom deputy, loudly and in front of the jury, to remove one of the defendant's attorneys from a sidebar conference. He then improperly denied the defendant's disqualification motion. Judge Bailey and the Judicial Qualifications Commission have stipulated that he violated the Code of Judicial Conduct and should be publicly reprimanded.1 We approve the stipulation.
There was no standing order that only one attorney per side was allowed to argue a point, and this was the first time Judge Bailey communicated such an order to counsel.
As the attorney who was trying to help his colleague started to say, "Judge I mean no disrespect," Judge Bailey raised his voice over the "white noise" that he turned on during the sidebar conversation and ordered his courtroom deputy to approach the bench and "return this attorney to his table." "The attorney immediately retreated away from the sidebar and back to counsel table as soon as he saw the deputy approaching." Had the attorney not retreated to counsel table, Judge Bailey "would have allowed the deputy to use physical force, ‘if necessary.’ " All of this was "in full view and hearing of the jury."
Ms. Espejo's non-removed attorney then moved for time to file a disqualification motion. Judge Bailey allowed a forty-five-minute break to draft and file the motion to disqualify, and then denied it as legally insufficient. Judge Bailey improperly denied the motion because he believed it was a "trial tactic" and he could be fair to the parties. He "did not consider the motion from the defendant's perspective when considering whether or not to grant it."
Based on the sidebar conversation and disqualification motion in the Espejo trial, the commission charged Judge Bailey with violating canons 1, 2A, 3B(1), 3B(4), and 3B(7) of the Florida Code of Judicial Conduct.2 The commission held a hearing on the charges (at which Judge Bailey testified), found probable cause for the violations, and recommended that Judge Bailey be publicly reprimanded. Following the hearing, Judge Bailey stipulated that he did not contest the commission's findings and accepted the recommended discipline.
Still, despite the stipulation, it is up to us to "accept, reject, or modify in whole or in part" the commission's findings and conclusions. Art. V, § 12(c)(1), Fla. Const. We review the commission's findings "to determine whether the alleged violations are supported by clear and convincing evidence." Inre White-Labora , 257 So.3d 367, 369 (Fla. 2018) (quoting In re Holder , 195 So.3d 1133, 1137 (Fla. 2016) ). Normally, where the commission's findings are undisputed and the "judge admits to wrongdoing," we conclude that the commission's findings are supported by clear and convincing evidence. Id. (quoting Holder , 195 So.3d at 1137 ). That is what we will do here.
Judge Bailey admitted that "his conduct was inappropriate [and] intemperate and violated the Canons."
[He] admitted and acknowledged that his conduct was not patient, dignified, and courteous as required by Canon 3B(4); that he did not act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A); and that he did not personally observe the high standards of conduct required to preserve the integrity and independence of the judiciary ( Canon 1 ).
And Judge Bailey acknowledged "that he did not properly consider the motion to disqualify from the defendant's perspective" and "did not consider the prejudice his actions may have had on the final verdict."
Based on the commission's uncontested findings, and Judge Bailey's admissions, we agree that Judge Bailey did not establish, maintain, and enforce the highest standard of conduct ( Canon 1 ); did not promote public confidence in the integrity and impartiality of the judiciary (Canon 2); heard a matter in which disqualification was required (Canon 3B(1) ); was not patient, dignified, and courteous to lawyers (Canon 3B(4) ); and did not accord the lawyers a right to be heard according to law (Canon 3B(7) ). In particular, we agree with the commission's findings as follows:
For his violations of the code, the commission recommended that Judge Bailey be publicly reprimanded. Where the commission's findings are supported by clear and convincing evidence, as they are here, we give them "persuasive force and great weight" in our consideration of the recommended discipline, In re Recksiedler , 161 So.3d 398, 401 (Fla. 2015) (quoting In re Flood , 150 So.3d 1097, 1099 (Fla. 2014) ), although "the ultimate power and responsibility in making a determination rests with this Court." In re Contini , 205 So.3d 1281, 1284 (Fla. 2016) (quoting In re Davey , 645 So.2d 398, 404 (Fla. 1994) ).
Four factors support the commission's recommendation of a public reprimand rather than a more severe sanction for Judge Bailey's conduct. First, Judge Bailey admitted what he did, acknowledged that it should never have occurred, and accepted full responsibility for his actions. Judge Bailey fully cooperated with the commission throughout its investigation. See White-Labora , 257 So.3d at 369 (); Contini , 205 So.3d at 1284 (); In re Holder , 195 So.3d 1133, 1137-38 (Fla. 2016) (); Recksiedler , 161 So.3d at 401 ( ...
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