In re Inquiry Concerning a Judge No. 15-200 re Contini, SC15–2148.

• Decision Date: 01 December 2016
• Docket Number: No. SC15–2148.,SC15–2148.
• Citation: 205 So.3d 1281
• Parties: Inquiry Concerning a Judge No. 15–200 re John Patrick CONTINI.
• Court: Florida Supreme Court

205 So.3d 1281

Inquiry Concerning a Judge No. 15–200 re John Patrick CONTINI.

No. SC15–2148.

Supreme Court of Florida.

Dec. 1, 2016.

Kerry I. Evander, Chair, Michael Louis Schneider, Executive Director and General Counsel, and Alexander John Williams, Special Counsel and Assistant General Counsel, Tallahassee, FL; Robert James Morris, Jr., Hearing Panel Chair, Lakeland, FL; and Lauri Waldman Ross of Ross & Girten, Miami, FL, for Florida Judicial Qualifications Commission, Petitioner.

David Bill Rothman and Jeanne T. Melendez of Rothman & Associates, P.A., Miami, FL; and Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort

Lauderdale, FL, for Judge John Patrick Contini, Respondent.

REVISED OPINION

PER CURIAM.

In this case, we review the Findings and Recommendations of the Florida Judicial Qualifications Commission (JQC). The JQC recommends that Judge John P. Contini receive the sanction of a public reprimand plus the conditions that he hand deliver a written apology letter, continue active judicial mentoring for three years, set up and complete a stress management program, and be assessed the costs of these proceedings. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the JQC's findings and recommended discipline.

BACKGROUND

Judge Contini of the Seventeenth Judicial Circuit took office in January 2015. On October 9, 2015, the JQC filed a Notice of Formal Charges against Judge Contini for conduct in violation of Canons 1, 2 A, 3 B(4), 3 B(7), 3 B(9), and 3 E(1) of the Code of Judicial Conduct.¹ As detailed below, these violations manifested themselves threefold: (1) sending an ex parte e-mail to the Broward Public Defenders Office; (2) failing to seek a recusal or transfer when an appeal effectively froze his division; and (3) making impertinent and belittling remarks in open court about a pending matter.

During his first day of attendance at Phase I of Florida's Judicial College, in March 2015, Judge Contini sent the Broward Public Defender's Office an ex parte e-mail. That e-mail—which contained suggestions for the use of a proposed order as a general template for downward departure motions—was neither copied nor forwarded to the Broward State Attorney's Office at that time. Instead, Judge Contini waited seven days, until he returned home to the bench after attending the Judicial College, to distribute the order to several state attorneys. On March 26, 2015, after the State Attorney's Office became aware of the ex parte communication, the State filed a motion to disqualify Judge Contini from all open pending criminal cases. Judge Contini denied that motion as legally insufficient.

As a result, on April 9, 2015, the State, through the Attorney General's Office, petitioned the Fourth District Court of Appeal for a writ of prohibition seeking to disqualify Judge Contini from a list of 962 cases. On June 10, 2015, the Fourth District issued an order to show cause concerning the writ, which stayed further proceedings in the cases to which it applied. Although there was no formal stay in effect until the show cause order was issued, all parties acted as though a stay was in effect between March 26 and June 10. Judge Contini's division—the criminal division—was essentially frozen, yet he neither recused himself sua sponte nor sought an administrative transfer. Instead, he remained within the division hoping for personal vindication.

While the writ proceedings were pending, on May 4, 2015, the JQC served Judge Contini with a Notice of Investigation with regard to his ex parte e-mail. In response, Judge Contini acknowledged that the e-mail was a "serious mistake" and explained that he denied the disqualification motion because the ex parte e-mail—while improper—was general in nature and unrelated to any particular case. Still, Judge Contini appeared before the JQC Investigative Panel on June 5, 2015, offered "no excuses," and apologized for his conduct. The JQC took his testimony under advisement, but it did not vote on whether to pursue formal charges.

It appears that Judge Contini became increasingly frustrated until he lost his temper in open court during August 11 and 12, 2015, hearings. In one instance, he said, "And if a prosecutor, someone with the AG's office, wants to put that person's case on their disingenuous list of cases that are pending sentencing, that's a lie from the pit of hell, and that is a fraud on the Fourth [District]." He wished that the Fourth District would "spank the person who put [a case on the] disingenuous list" and "ream out the idiot who put [that case] on the list." The assistant attorney general who signed the initial list was not present. However, Judge Contini chastised her by name for "misleading" and committing "fraud on the Fourth [District]." In another instance, Judge Contini threatened a state attorney with contempt while raising his voice and accusing him of inappropriate behavior. Judge Contini demanded that the state attorney admit to assisting the assistant state attorney who created the initial list and ordered bailiffs to escort the attorney from the courtroom after the exchange.

Almost immediately following the August 11 and 12 exchanges, Judge Contini sought an administrative transfer. Before filing formal charges, the JQC held a second investigative hearing during which Judge Contini explained that he disagreed with the State's list of cases, but he admitted that he "personified incivility" and offered "no excuses." After a Final Hearing, the JQC issued its findings, conclusions, and recommendations, which Judge Contini expressly accepted.

The JQC determined that "Judge Contini was a new judge, who underestimated the process of transitioning from a well-respected, professional lawyer to a judge, and made a series of significant missteps." However, the JQC did not recommend suspension or removal for this misconduct. Due to the nature of Judge Contini's variegated infractions, and the mitigating factors in this case, the JQC reasoned that a public reprimand plus conditions were appropriate.

ANALYSIS

The Florida Constitution provides that, in a case of judicial misconduct, this Court "may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the [JQC]." Art. V, § 12(c)(1), Fla. Const. This Court reviews JQC findings to ensure that there is clear and convincing evidence to support the alleged misconduct. In re Watson, 174 So.3d 364, 368 (Fla.2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 863, 193 L.Ed.2d 766 (2016). When the respondent judge "admits to wrongdoing and the JQC's findings are undisputed, this Court will ordinarily conclude that the JQC's findings are supported by clear and convincing evidence." In re Collins, 195 So.3d 1129, 1132 (Fla.2016) ; In re Diaz, 908 So.2d 334, 337 (Fla.2005).

Judge Contini acknowledged that his conduct constituted the following violations of the Florida Code of Judicial Conduct: (1) sending the ex parte e-mail (Canon 3 B(7)² ); (2) failing to seek a recusal or administrative transfer from his division when the State's appeal effectively froze the criminal division (Canon 3 E(1)³ ); and (3) making impertinent and inappropriate comments during the August 11 and 12 hearings (Canons 1,⁴ 2 A,⁵3 B(4),⁶ and 3 B(9)⁷ ). Thus, based on this Court's precedent and Judge Contini's admissions, we conclude that the JQC findings are supported by clear and convincing evidence.

When JQC findings are supported by clear and convincing evidence, the findings are entitled to "persuasive force and great weight." In re Maloney, 916 So.2d 786, 787–88 (Fla.2005). "However, the ultimate power and responsibility in making a determination rests with this Court," In re Davey, 645 So.2d 398, 404 (Fla.1994) ; therefore, this Court "reviews the recommended discipline to determine whether it should be approved." In re Flood, 150 So.3d 1097, 1098 (Fla.2014).

The people of Florida demand that our judiciary meet a high standard of ethics. See In re Hawkins, 151 So.3d 1200, 1212 (Fla.2014). Altogether, Judge Contini's conduct fell well below that standard. His actions "not only damaged public confidence in him as a judicial officer but struck ‘at the very roots of an effective judiciary....’ " In re Shea, 110 So.3d 414, 418 (Fla.2013). Accordingly, Judge Contini's conduct warrants serious review to determine whether he possesses the present fitness to hold office as required by article V, section 12, of the Florida Constitution.

Although Judge Contini's conduct was as improper as it was rude, this Court's precedent suggests that a...