Kelly, In re

• Decision Date: 17 June 1970
• Docket Number: R,No. 38595,No. 1,1,38595
• Citation: 238 So.2d 565
• Parties: In re Inquiry Concerning a Judgeichard A. KELLY, Circuit Judge.
• Court: Florida Supreme Court

Page 565

238 So.2d 565

In re Inquiry Concerning a Judge No. 1, Richard A. KELLY, Circuit Judge.

No. 38595.

Supreme Court of Florida.

June 17, 1970.

Rehearing Denied Sept. 14, 1970.

Masterson, Lloyd, Sundberg & Rogers, St. Petersburg, and Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for petitioner.

William D. Hopkins and F. E. Steinmeyer, III, Tallahassee, for respondent.

Joseph F. McDermott, St. Petersburg, as amicus curiae committee for Judge Kelly.

ADKINS, Justice.

We have for consideration a petition to reject the recommendations, findings and conclusions of the Florida Judicial Qualifications Commission in its first proceeding. Rule 24(a), Florida Judicial Qualifications Commission Rules (F.J.Q.C.R.), 32 F.S.A. The Commission found petitioner Judge Richard A. Kelly of Dade City, Florida, guilty of certain conduct unbecoming a member of the judiciary.

Conduct unbecoming a member of the judiciary may be proved by evidence of specific major incidents which indicate such conduct, or it may also be proved by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary. The record in this case clearly reflects a pattern of petitioner's hostility toward many attorneys, court officials, and fellow judges, as well as a concerted effort to pamper the public and news media by press releases designed to bolster his personal image at the expense of the judiciary. This is conduct unbecoming a member of the judiciary.

Petitioner is a judge of the Sixth Judicial Circuit of the State of Florida and a resident of Pasco County. He was first elected a circuit judge in November 1960, and was reelected to that office in the general election of November 1966.

Petitioner was the subject of impeachment proceedings before the Florida Legislature in 1963, and was acquitted.

On February 13, 1968, petitioner was elected Presiding Judge of the Sixth Judicial Circuit. He immediately demanded that various changes in the method by which criminal prosecutions were handled in the circuit, ordered one of the newly-appointed judges to duty in Pasco County for ninety days even though this judge resided in St. Petersburg, Pinellas County (this order was rescinded), indicated that he was going to transfer all domestic relations cases to one particular judge of the circuit, proposed the elimination of special masters in uncontested divorce cases, ordered the official court reporter to report all Justice of the Peace hearings upon call of the Public Defender of Pinellas County. Although some of petitioner's proposals may have been appropriate, the Commission found that they were presented in such a manner as to create turmoil, confusion and chaos within the circuit. As a result, a majority of the other judges of the circuit determined to remove or recall him as presiding judge in March of 1968. He was notified of the determination of the majority on March 19, 1968.

Judge Kelly first requested the judges to refrain from removing him or recalling him, assuring them he would return to Pasco County and not interfere with the administration of the court in Pinellas County if they would let him remain as presiding judge. When this offer was not accepted by the other judges, he requested and was granted a week's reprieve in order that he might tender his resignation as presiding judge.

After this delay, a majority of the circuit judges again met with Judge Kelly to consider his recall as presiding judge. At this meeting Judge Kelly polled all of the judges and determined that they still intended to remove him as presiding judge. He then announced his resignation; but threatened those in attendance that they would regret their actions and that he would cause them embarrassment.

Several days later he arranged an appointment with the editor and several reporters of a local newspaper in St. Petersburg to enlighten them about a petition he intended to file proposing certain alleged judicial reforms. Subsequently, on April 5, 1968, he filed with the Clerk of the Circuit Court what was styled 'Petition to the Judges of the Sixth Judicial Circuit in the Circuit Court of Pinellas County.' His fellow judges were not given an opportunity to see or examine the contents of the petition although it contained suggested court reforms and criticism of court administration. As an example of petitioner's public criticism of his fellow judges, the petition stated:

'The tremendous reduction in the number of prisoners between September, 1965, and September, 1966, is an excellent case in point for the purpose of showing the gross lack of administration of the Circuit Court in Pinellas County and the serious consequences of a poorly administered Court. The change was accomplished with the simple expediency of appointing the Public Defender at an early date, and yet to bring this simple administrative change into effect resulted unreasonably in crisis, controversy and ill-will among the judges which varied only in degree from the same response that has met every other suggestion to improve administration.

'Soon after the undersigned took office in 1961, he started urging that the procedure for expediting criminal cases, especially cases in which the defendant was being held in jail, be reviewed. Years went by and nothing was done in Pinellas County; then in 1965, your Petitioner went to the then Criminal Administrator for Pinellas County and requested the reform and argued its urgency. The rejection was unqualified. During the same time a grand jury was convened in Clearwater, empaneled by the Criminal Administrator and although it is the duty of a judge presiding over a grand jury to instruct the grand jurors of their duties, no instruction was given regarding Section 905.16 of the Florida Statutes.'

'* * *

'Virtually every phase of the criminal administration at the present time is burdened with inefficiency.'

'* * *

'Vast and important and much needed judicial reforms await only the interest and action by the judges of this circuit.'

'* * *

'The individual judges should impose additionally upon their secretaries in handling the administration and disposition of criminal cases and thus avoid the luxury of a secretary of the Criminal Administrator or Presiding Judge.'

Apparently, for the purpose of seeking favorable publicity for himself, petitioner misrepresented the facts in this petition regarding his removal as presiding judge when he said:

'This Petitioner has resigned a position he coveted to remove any possibility of personality and vanity as a consideration in the discharging of this obligation.'

The office of the Clerk of the Circuit Court is not a receptacle for the ex parte grievance petition of a politician, particularly when the object is to seek revenge by embarrassing public officials. Since we have a government of law and not of men, no member of the judiciary should act officially as a 'judge' save only as it is found in and defined by the law. Petitioner knew judicial reform could be attained in a variety of ways 'under the law,' but vengeance could best be served through publicizing his grievance. This was accomplished when petitioner, in his official capacity as a judge, filed his ex parte petition with the clerk so that it would be a public record.

The evidence is replete with instances in which the judicial temperament of petitioner was lacking. Nineteen of the approximately twenty-one lawyers of Pasco County were willing to, and did, sign a petition for the impeachment of Judge Kelly; seven lawyers left Dade City in Pasco County because of Judge Kelly; many cases ordinarily filed in Pasco County were filed out of the county because of Judge Kelly; attorneys and court personnel were fearful of Judge Kelly; he was rude and inconsiderate of attorneys and court personnel. His erratic behavior culminated in the filing of the petition.

The filing of the petition by Judge Kelly came to the attention of the Florida Judicial Qualifications Commission and precipitated a preliminary investigation. This Commission was created under the provisions of art. V, Sec. 17A(2), Fla.Const., Subsection (3) of which contains the following provisions:

'Any justice or judge to whom this section applies may be disciplined by private reprimand or removed from office for willful or persistent failure to perform his duties or habitual intemperance or conduct unbecoming a member of the judiciary or he may be involuntarily retired for disability seriously interfering with the performance of his duties, which is, or is likely to become, permanent in nature. After such investigation as it deems necessary, the judicial qualifications commission may conduct a hearing concerning the removal, discipline or retirement of a justice or judge or request the supreme court to appoint three (3) special referees, who shall be active or retired justices or judges of courts of record, to hear and take evidence in any such matter, and to report thereon to the commission. * * * If after hearing, or after considering the record and report of the referees, the commission finds good cause therefor, it shall recommend to the supreme court the removal, discipline or retirement of the justice or judge. The supreme court shall review the record of the proceedings on the law and facts and shall order removal, discipline or retirement, as it finds just and proper, or wholly reject the commissioner's recommendation.'

These constitutional provisions vest jurisdiction over the discipline of circuit judges in this Court and authorize it to exercise such jurisdiction through the Judicial Qualifications Commission. By the express provision of art. V, Section 17A(1), all justices or judges included within the constitutional provision are still liable to impeachment for any misdemeanor in office.

Petitioner complains that the proceedings before the Commission and...