In re Cohen
| Decision Date | 30 August 2012 |
| Docket Number | No. SC10–348.,SC10–348. |
| Citation | 99 So.3d 926 |
| Parties | Inquiry Concerning a Judge, No. 09–524 Re: Dale C. COHEN. |
| Court | Florida Supreme Court |
OPINION TEXT STARTS HERE
Henry Matson Coxe, III, Chairman, Hearing Panel, Jacksonville, FL, Michael Louis Schneider, General Counsel, Brooke S. Kennerly, Executive Director, Tallahassee, FL, Fred Wallace Pope, Jr. of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, FL, and Lauri Waldman Ross of Ross and Girten, Miami, FL, for Judicial Qualifications Commission, Petitioner.
Michael A. Catalano, Miami, FL, for Judge Cohen, Respondent.
This matter is before the Court for action on the recommendation of the Florida Judicial Qualifications Commission (JQC) that Broward County Judge Dale C. Cohen be publicly reprimanded and charged the costs of proceedings based upon findings that he violated the Code of Judicial Conduct. We have jurisdiction. Seeart. V, § 12, Fla. Const. For the reasons discussed in this opinion, we approve the JQC's recommendation.
On February 25, 2010, the Investigative Panel of the JQC filed a Notice of Formal Charges against Judge Cohen. The charges arose out of a hearing on a motion for disqualification that was filed on August 6, 2009, by an attorney appearing before Judge Cohen. The motion alleged the existence of a conflict between the attorney and Judge Cohen's wife. At a hearing on the motion, Judge Cohen called his wife as a witness to refute the allegations in the motion. Judge Cohen later held additional hearings in which he questioned the attorney's clients and threatened to file a complaint against the attorney with The Florida Bar. The JQC filed its Findings, Conclusions and Recommendations with this Court on March 28, 2011, in which it found Judge Cohen guilty of violating Canons 1,1 2A,2 2B,3 3B(1), 3B(2), 3B(7),4 and 3E(1)(d) 5 of the Code of Judicial Conduct.
The parties have stipulated to numerous facts surrounding the case as well as to the authenticity of relevant records and documents, including transcripts of the evidentiary hearings which resulted in the investigation of Judge Cohen by the JQC. Accordingly, the pertinent facts on which the instant charges and findings are based are largely undisputed. In 2006, Mardi Levey Cohen, the wife of Judge Dale C. Cohen, ran unsuccessfully for judicial office in Broward County. Attorney Stephen Melnick was a supporter of Levey Cohen during that campaign. In 2008, Levey Cohen ran for a circuit court seat held by then-Judge Pedro Dijols. Melnick supported Judge Dijols in that election. Following the primary election, Judge Dijols filed a lawsuit against Levey Cohen, arguing that she had improperly campaigned under her maiden name. Although the trial court found in Judge Dijols' favor, that decision was reversed by the Fourth District Court of Appeal.6 Levey Cohen was later defeated in the general election. In January 2009, Levey Cohen filed financial paperwork with the Broward County Supervisor of Elections, allowing her to run again in the 2010 elections.7
Following Levey Cohen's unsuccessful 2008 campaign for judicial office, attorney Melnick was slated to appear before Judge Cohen as counsel in the case of State v. Rigby, Case No. 08–16006–CF–10A (Fla. 17th Jud. Cir.). On November 18, 2008, Melnick filed a motion requesting that Judge Cohen recuse himself from the case. The motion first alleged that Melnick had been retained by the defendant, Kevin Rigby. The motion then stated:
4. While the above case was pending the undersigned Counsel began to work as an active fund raiser, and speaker on behalf of the Honorable Judge Pedro Dijols retention campaign.
5. In fact prior to the fund raiser for Judge Dijols at the law office of the undersigned Counsel, the undersigned received a telephone call from Mardi Cohen who was running under the name Mardi Levey.
6. During this telephone conversation Ms. Cohen threatened that the fund raiser information posted by the undersigned was in violation of election rules and that the undersigned was making a big mistake.
The motion further alleged that in the course of the election, Melnick participated in a lawsuit against Levey Cohen on behalf of Judge Dijols. The motion stated that the defendant had been advised of the facts surrounding the election and that, based on those facts, he did not believe he would receive a fair or impartial trial before Judge Cohen. Judge Cohen granted the motion to recuse. In the following months, Melnick filed approximately sixteen additional recusal motions in cases before Judge Cohen, all of which were granted. In each case, Melnick alleged the same grounds for disqualification as in the Rigby motion.
On the morning of August 6, 2009, Melnick filed a motion seeking Judge Cohen's recusal in the case of State v. Gibbs, Case No. 08–22681–10A (Fla. 17th Jud. Cir.). The motion was in substance identical to the recusal motions Judge Cohen had previously granted. Rather than grant the motion, however, Judge Cohen asked Melnick to return to the courtroom after lunch, and informed Melnick that the motion would be addressed at that time.
That afternoon, Judge Cohen held an evidentiary hearing on the motion to recuse. At the beginning of the hearing, Judge Cohen announced his intention to call his wife, Levey Cohen, as a witness. Melnick objected, arguing that the hearing would require the court to weigh his credibility against Levey Cohen's credibility. Judge Cohen overruled the objection, stating, “We'll approach that bridge when we get to it.” Judge Cohen then questioned Levey Cohen about the facts alleged in the recusal motion. Levey Cohen testified that in 2008, when she was running in an election against Judge Dijols, she saw an advertisement for Judge Dijols' retention on a blog that was missing a disclaimer. She was aware that Melnick was working on behalf of Judge Dijols' campaign, so she called to inform him about the missing disclaimer. Cohen said that she had been friends with Melnick for many years and described the conversation as friendly. She denied making any threats. She also said that she was not aware of Melnick's involvement in any litigation on behalf of Judge Dijols.
Melnick conducted a cross-examination and disputed Levey Cohen's account of the phone conversation. He asked whether the conversation involved a missing disclaimer, or whether it concerned the use of the term “re-elect” versus the term “retain” on the advertisement. Levey Cohen agreed that may have been the subject of the conversation. Melnick also informed the court that the conversation was not friendly, that Levey Cohen told him he was making a “big mistake” and that he would “be sorry if it's not changed,” and that Levey Cohen hung up on him. Melnick said he felt that Levey Cohen's tone implied a personal threat against him. He asserted that he was “directly and heavily involved in Pedro Dijols' unsuccessful retention campaign and was directly involved in all the research involved with that litigation.” Melnick explained that he discloses his involvement in the Dijols campaign to each of his clients whenever he is slated to appear before Judge Cohen, and he then lets the clients decide whether they want to request a different judge. At the end of the hearing, Judge Cohen granted the motion to recuse.
Later that month, the Gibbs case was transferred back to Judge Cohen. At an initial hearing on August 22, 2009, the defendant, Stephen Gibbs, informed the Court that he was no longer being represented by Stephen Melnick. Judge Cohen asked Gibbs if Melnick had ever explained to him the basis of the conflict that resulted in the recusal. Gibbs responded that he understood the conflict involved “[s]omething about a campaign,” and expressed frustration that Melnick had not informed him of the conflict until after he was retained. Judge Cohen responded, “I just want to make sure that you, when you sit here with me as a judge, you have no question with me as your judge or that I have anything against you whatsoever.” Gibbs replied, “No, not at all.” At the request of Gibbs' new attorney, the court scheduled a hearing in the case for the following week.
On August 28, 2009, Melnick was slated to appear before Judge Cohen in the case of State v. Butler, Case No. 08–22581–CF–10A (Fla. 17th Jud. Cir.). Melnick again filed a motion to recuse Judge Cohen. The facts set forth in the Butler motion were identical to those in the recusal motions Melnick had previously filed, but included three additional paragraphs which stated:
16. The undersigned was also on August 6, 2009, called before the Honorable Dale Cohen who questioned the truthfulness and veracity of earlier recusal motions.
17. Judge Cohen conducted a hearing in which he called his Wife as a witness to challenge the credibility of the undersigned counsel.
18. This hearing was conducted in an effort to embarrass or intimidate the undersigned attorney who Judge Dale Cohen's wife is aware is working for the election of a candidate being challenged by her.
Judge Cohen held an evidentiary hearing on the recusal motion and questioned defendant Butler, overruling the defense's objections. In the course of the hearing, Judge Cohen advised Melnick that his actions could be perceived as forum shopping, which may subject him to disciplinary action by The Florida Bar. At the end of the hearing, Judge Cohen granted the recusal motion. 8
On September 29, 2009, the JQC issued a Notice of Investigation to Judge Cohen based on allegations that he had violated several canons of the Code of Judicial Conduct. The notice cited the August 6 Gibbs hearing as the basis for the allegations. Specifically, the notice alleged that Judge Cohen held an evidentiary hearing in violation of rule 2.330(f), Florida Rules of Judicial Administration, which provides: “The judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency...
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