In re Turner, SC09–1182.

• Decision Date: 18 November 2011
• Docket Number: No. SC09–1182.,SC09–1182.
• Citation: 76 So.3d 898
• Parties: Inquiry Concerning a Judge, No. 09–01 re N. James TURNER.
• Court: Florida Supreme Court

76 So.3d 898

Inquiry Concerning a Judge, No. 09–01 re N. James TURNER.

No. SC09–1182.

Supreme Court of Florida.

Nov. 18, 2011.

John P. Cardillo, Chairman, Hearing Panel, Naples, FL, Michael Louis Schneider, General Counsel, Brooke S. Kennerly, Executive Director, Tallahassee, FL, Marvin E. Barkin, Marie Tomassi, and Michael K. Green of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill, and Mullis, P.A., Tampa, FL and Lauri Waldman Ross of Ross and Girten, Miami, FL; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, and Kenneth H.P. Bryk, Bar Counsel, Orlando, FL, for Judicial Qualifications Committee, Petitioner.

Barry Rigby of the Law Office of Barry Rigby, Orlando, FL, and Derek B. Brett of the Brett Law Firm, P.A., Orlando, FL, for Judge Turner, Respondent.

PER CURIAM.

We have for review the recommendation of the Florida Judicial Qualifications Commission (JQC) that N. James Turner, Circuit Judge for Florida's Ninth Judicial Circuit, be removed from office for a series of violations of the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons we explain, we approve the JQC's recommendation of removal.

On July 8, 2009, the Investigative Panel of the JQC filed a notice of formal charges against Judge Turner, pursuant to article V, section 12(b) of the Florida Constitution. After several amendments, the matter proceeded to the JQC Hearing Panel (the Panel) on an amended notice charging thirteen counts of judicial misconduct. Some of these counts stemmed from Judge Turner's actions during his ultimately successful 2008 campaign for circuit judge, and some stemmed from his conduct after he assumed office.

After considering all of the evidence presented and conducting a final hearing, the Panel found Judge Turner guilty of six specific charges as well as a separate charge asserting that certain of the specific charges constituted a pattern of misconduct. Based on Judge Turner's commission of “multiple canon violations,” the Panel recommended his removal from office. As explained in detail below, we accept the Panel's findings of guilt with respect to five of the specific charges, as well as the charge of a pattern of misconduct. We remove Judge Turner from office based on these violations. We need not reach the other specific charge—a charge regarding the solicitation of campaign contributions, which Judge Turner challenges on constitutional grounds.

In judicial disciplinary proceedings, this Court must independently review the JQC's findings to determine whether they are established by clear and convincing evidence. In re Graziano, 696 So.2d 744, 753 (Fla.1997) (noting that the standard for clear and convincing evidence falls between “a preponderance of the evidence” and “beyond ... reasonable doubt”). “If the findings meet this intermediate standard, then they are of persuasive force and are given great weight.” Id. at 753. “This is so because the JQC is in a position to evaluate the testimony and evidence first hand.” Id.

We now examine the specific charges on which the Panel found Judge Turner guilty.

COUNT 5

Count 5 alleges a campaign contribution solicitation in violation of Canon 7C(1), which proscribes the personal solicitation of campaign funds by judicial candidates. Judge Turner challenges the constitutionality of Canon 7C(1), contending that the canon violates the First Amendment of the United States Constitution. In finding Judge Turner guilty on count 5, the Panel discussed Judge Turner's constitutional argument but ultimately declined to make a finding or conclusion regarding the matter, recognizing that any such determination should come from this Court. Because we conclude that Judge Turner's misconduct apart from the charges contained in count 5 requires his removal, we too decline to decide the constitutional issue at this juncture. See, e.g., In re Holder, 945 So.2d 1130, 1133 (Fla.2006) (noting that “we have long subscribed to a principle of judicial restraint by which we avoid considering a constitutional question when the case can be decided on nonconstitutional grounds”).

COUNT 7

The allegations in count 7 focus on Judge Turner's inappropriate campaign finance conduct, which occurred before he took the bench:

7. During the campaign for the office you now hold, you knowingly accepted and received a very substantial campaign contribution made for the purpose of influencing the results of the election, whether characterized as a gift or loan, far in excess of the $500 limit established by Ch. 106, Florida Statutes, from your mother (Mignon Gordon) which you used to pay for your campaign, in violation of Chapter 106, Florida Statutes, and Canons 1, 2A and 7C(1) of the Code of Judicial Conduct.

The Panel determined that Judge Turner was guilty of violating chapter 106 and Canon 7C(1), but determined that Canons 1 and 2A were not applicable to Judge Turner's misconduct.

The gravity of the misconduct charged in count 7 lies in Judge Turner's violation of Florida's campaign finance laws, set forth in chapter 106, Florida Statutes. In light of our decision not to address the constitutionality of Canon 7C(1)—explained above—we do not address the Panel's finding that Judge Turner's conduct described in count 7 violates that canon. Contrary to the Panel's determination that Canons 1 and 2A were not applicable, we conclude that Judge Turner's violations of chapter 106 also constituted violations of the requirement of Canon 1 that judges maintain “high standards of conduct” and the requirement of Canon 2A that judges “respect and comply with the law and ... act at all times in a manner that promotes public confidence in the integrity ... of the judiciary.”

Florida law provides that

[e]xcept for political parties, no person, political committee, or committee of continuous existence may, in any election, make contributions in excess of $500 to any candidate for election to or retention in office or to any political committee supporting or opposing one or more candidates.

§ 106.08(1)(a), Fla. Stat. (2008). A “loan” is included in the definition of “contribution.” § 106.011(3)(a), Fla. Stat. (2008). Moreover, any contribution received by the candidate for election “on the day of that election or less than 5 days prior to the day of that election must be returned by him or her to the person or committee contributing it and may not be used or expended by or on behalf of the candidate.” § 106.08(3)(a), Fla. Stat. (2008).

The Panel found that near the end of his 2008 campaign, Judge Turner solicited funds from his mother, Mignon Gordon, to help pay off outstanding campaign debt. At Judge Turner's request, Ms. Gordon refinanced her condominium and on November 5, 2008—one day after Judge Turner was elected to office—wired $42,288.75 into Judge Turner's personal account. On that same day, Judge Turner transferred $15,000 from his personal account to his campaign account and two days later transferred another $15,000. During the JQC investigation, Judge Turner admitted that the money he loaned to his campaign came from the funds that his mother loaned him.

The Panel concluded that the $30,000 that Judge Turner's campaign received from his mother was in excess of the $500 limit on individual campaign contributions established in section 106.08(1)(a), Florida Statutes, and that the loan was received after the cut-off date established in section 106.08(3)(a), Florida Statutes. Judge Turner does not dispute the fact that he received a loan from his mother in violation of the contribution limitations established by Florida law. We accept these findings and the Panel's determination of guilt.

COUNTS 8 AND 9

The charges contained in counts 8 and 9 stem from actions taken by Judge Turner—after he became a sitting judge—regarding a foreclosure action against his mother. The counts allege:

8. As a sitting circuit court judge, on or about November 20, 2009, you knowingly filed a notice of appearance in pending litigation in Dade County, Florida ( CitiMortgage, Inc. v. Gordon, Case No. 2009–74992–CA–01) where you purported to appear to represent your mother in foreclosure proceedings brought against her therein, in violation of Canons 1, 2A and 5G of the Code of Judicial Conduct.

9. As a sitting circuit court judge, you knowingly represented and acted as litigation counsel for your mother in the foreclosure proceeding in Dade County, Florida, described above by, inter alia, communicating with counsel for the mortgagee on her behalf, in Osceola County, Florida, in violation of Canons 1, 2A and 5G of the Code of Judicial Conduct.

Regarding both counts, the Panel determined that Judge Turner was guilty of violating Canons 1, 2A, and 5G.

Canon 1 of Florida's Code of Judicial Conduct states:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2A provides that

[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

In furtherance of maintaining the integrity, independence, and impartiality of Florida's judiciary, Canon 5G prohibits judges from practicing law except in certain narrow circumstances:

Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.

The commentary to Canon 5G states that

[t]he Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no...