LaMotte, In re, 74--14

• Decision Date: 04 January 1977
• Docket Number: No. 49982,No. 74--14,74--14,49982
• Citation: 341 So.2d 513
• Parties: Inquiry concerning a Judge,In re Stewart F. LaMOTTE, Jr.
• Court: Florida Supreme Court

Page 513

341 So.2d 513

Inquiry concerning a Judge, No. 74--14 In re Stewart F. LaMOTTE, Jr.

No. 49982.

Supreme Court of Florida.

Jan. 4, 1977.

Rehearing Denied Feb. 7, 1977.

John R. Asbell of Asbell, Hains & Doyle, Naples, for Judicial Qualifications Commission, complainant.

J. B. Patterson of Patterson, Maloney & Shankweiler, and Marshall G. Curran, Jr., of Spear, Deuschle & Curran, Fort Lauderdale, for Stewart F. LaMotte, Jr., respondent.

ADKINS, Acting Chief Justice.

We have before us a recommendation of the Judicial Qualifications Commission for removal of Judge Stewart F. LaMotte, Jr., of the Seventeenth Judicial Circuit, for conduct unbecoming a member of the judiciary. This recommendation has been filed pursuant to Article V, Section 12(f), Florida Constitution.

Judge Stewart F. LaMotte, Jr. assumed the bench as Circuit Judge in Broward County, Seventeenth Judicial Circuit, on March 7, 1968. Shortly after assuming the bench, the Judge received an air travel credit card. During the period of time from that date through the date of the notice of formal proceeding, the Judge incurred approximately $2,000 in personal charges for various trips to Asheville, North Carolina, Atlanta, Georgia, and Jacksonville, Florida. These personal charges are the subject of the instant proceeding.

The Judge admits the use of the credit card in the manner described, but says that he thought the charges would be deducted from his salary. Restitution was made. At the hearing, three circuit judges testified that the judge had 'unquestionable integrity, honesty' and that his reputation was 'good.' It was stipulated that four additional circuit judges and the President of the Broward County Bar would all testify that the Judge's reputation for truthfulness and honesty was good.

The report of the Judicial Qualifications Commission contains the following:

'FINDINGS OF FACT

'The Commission, having personally heard the testimony and having had the advantage of observing the demeanor of the Respondent and other witnesses while on the witness stand, their candor or lack of candor while testifying, hereby finds that Respondent, Stewart F. LaMotte, Jr., while a member of the Judiciary occupying the position of Circuit Judge of the Seventeenth Judicial Circuit of Florida, paid for air transportation on trips unconnected with his official duties with air travel credit cards issued by the State of Florida for official use only on the dates and to the destinations alleged in paragraph two of the Notice of Formal Proceedings filed herein contrary to the provision of Sec. 112.061(3)(b) Florida Statutes, which unauthorized charges were in the total amount of one-thousand-eight-hundred-seventy-eight dollars and sixty-two cents ($1,878.62). In charging the costs of said trips to the State of Florida on the official credit card issued to him, Respondent used the credit of the State of Florida for his own personal use contrary to law and knew or is presumed to have known that the cost of such trips would be paid by the State and he had no intention of reimbursing the State for the amount of such costs unless and until the unauthorized character of said charges so made was discovered by the State and demand for reimbursement was made upon him.

'CONCLUSIONS OF LAW

'Judge Stewart F. LaMotte, Jr., in conducting himself in the manner set out in the above Findings of Fact intentionally committed serious and grievous wrongs of a clearly unredeeming nature; has rendered himself an object of disrespect and derision in his role as a judge to the point of ineffectiveness and caused public confidence in the Judiciary to become eroded, that in so doing Respondent is guilty of violating Canons 1 and 2 of the Code of Judicial Conduct as adopted by the Supreme Court of Florida on July 25, 1973, and is guilty of conduct unbecoming a member of the Judiciary.

'RECOMMENDATION OF DISCIPLINE

'It is recommended by the Florida Judicial Qualifications Commission that the Supreme Court of Florida render its Order and Judgment removing Respondent from office for his conduct as hereinabove found to have occurred.'

Canon 1, of the Code of Judicial Conduct, reads as follows:

'An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct 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 2, of the Code of Judicial Conduct, reads as follows:

'A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

'B. A judge should not allow his family, social, or other relationship to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.'

Our authority rests upon the provisions of Article V, Section 12(f) Florida Constitution, which provides as follows:

'Upon recommendation of two-thirds of the members of the judicial qualifications commission, the supreme court may order that the justice or judge be disciplined by appropriate reprimand, or be removed from office with termination of compensation for willful or persistent failure to perform his duties or for other conduct unbecoming a member of the judiciary, or be involuntarily retired for any permanent disability that seriously interferes with the performance of his duties.'

The findings and recommendations of the Judicial Qualifications Commission are of persuasive force and should be given great weight. See In re Kelly, 238 So.2d 565 (Fla.1970). However, the ultimate power and responsibility in making a determination rests with this Court.

The degree of proof required to discipline a judge is analogous to that required in disciplining an attorney. This degree of proof must be 'clear and convincing.' There must be more than a 'preponderance of the evidence,' but the proof need not be 'beyond and to the exclusion of a reasonable doubt.' Zachary v. State, 53 Fla. 94, 43 So. 925 (1907), were this Court reversed a judgement of disbarment entered by a circuit court; State ex rel. Florida Bar v. Bass, 106 So.2d 77 (Fla.1958); Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970).

It is the responsibility of this Court to review the proceedings before the Judicial Qualifications Commission in the light, and under the guidance, of these rules.

The critical question to be determined is whether or not there is clear and convincing proof that the judge 'knew or is presumed to have known' that the charges on his air travel card would not be deducted from his salary.

At the time the judge took office a packet of information was forwarded to him. This packet contained a letter stating that he would be sent a copy of the operating procedures' manual of the Comptroller's office. This manual stated that only official traveling shall be charged to the state.

The judge began making these charges in November 1968, and they were admittedly of a personal nature. State rules and regulations specifically provide for the filing of vouchers in connection with expenses incurred which are related to official business. There was no audit procedure to verify that charges incurred through the use of the air travel card were related to official duties. In other words, the charges on the air travel card were paid by the state, and there was no auditing procedure by which the state checked disbursements for air travel with vouchers required to be submitted in connection with official business.

As an explanation of the reason for the unauthorized charges, Judge LaMotte stated that the credit card was issued in his name and he believed that he was allowed to make whatever charges he desired, both business and personal, and that any charges which were not related to official business would be automatically deducted from his pay.

The improper charges were discovered by a newspaper reporter. When confronted with these allegations the judge contacted the Judicial Administration Commission and was told that he owed the state $412.32 for travel incurred for the summer of 1975. The judge immediately reimbursed the state in this amount, but did not inform the Judicial Administration Commission of the additional charges made since 1968.

When a complete audit was made disclosing the charges for 1968 and other years, the judge immediately made restitution.

The judge had served with distinction as an Industrial Commission Judge, a County Judge in the Probate Division, and a Circuit Judge. He served with distinction in the Marine Corps during World War II. He has enjoyed an excellent reputation for honesty and integrity during his 45 years' residence in Broward County. He had income over and above his income as a circuit judge.

The facts are undisputed. We must now determine whether the facts constitute such clear and convincing proof as to justify an inference that the judge 'knew or is presumed to have known' that the charges on his air travel card would not be deducted from his salary.

The Commission says that the explanation is inconsistent with the following:

(1) All deductions from the judge's pay were listed individually on the face of the monthly pay warrant and included deductions for income tax withholding, social security tax, judicial retirement contributions, and Blue Cross Insurance when appropriate.

(2) The judge, by letter, previously requested that the Blue Cross Insurance he discontinued, stating therein 'this will eliminate the 'miscellaneous deduction' on my pay check.'

(3) When informed as to the amount ...