The Florida Bar v. Mason, 47525

• Decision Date: 15 January 1976
• Docket Number: No. 47525,47525
• Citation: 334 So.2d 1
• Parties: THE FLORIDA BAR, Complainant, v. Edwin L. MASON, Respondent.
• Court: Florida Supreme Court

Page 1

334 So.2d 1

THE FLORIDA BAR, Complainant, v. Edwin L. MASON, Respondent.

No. 47525.

Supreme Court of Florida.

Jan. 15, 1976.

Order Establishing Effective Date of Suspension June 30, 1976.

Bernard H. Dempsey, Jr., Bar Counsel, Orlando, Richard C. McFarlain, Asst. Director; and Wilson J. Foster, Jr., Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.

Edgar M. Moore, of Smith & Moore, Tallahassee, for respondent.

PER CURIAM.

This disciplinary proceeding is before a special panel of this Court upon complaint of The Florida Bar, report of the Referee, and petition for review filed by the respondent.

Chief Justice Adkins and Justices Roberts, Boyd, England, and Sundberg have been disqualified in this matter for cause. Sitting in their respective positions are five chief judges of the respective circuits selected in order of circuit court judicial seniority excluding only those disqualified or unavailable to participate in this matter.

This cause concerns admitted ex parte communications upon the merits of a pending case with Justices of this Court, and respondent's subsequent intentional concealment of the fact of the communications from opposing counsel.

The Referee found respondent guilty of the principal charges, and recommended a public reprimand and suspension for a period of one year and thereafter until respondent shall have proven his rehabilitation, together with the payment of the costs of these proceedings.

We agree that the actions and conduct of the respondent are clear and serious violations of the Code of Professional Responsibility. This misconduct is magnified because it concerns the highest court of this state and has caused public mistrust of not only this Court but the system as a whole. We find the recommended discipline appropriate.

The charges, findings, and recommended discipline are detailed for the benefit of the public and the Bar.

The Florida Bar filed a four-count complaint, charging respondent with ethical violations arising out of the ex parte communications with Justices of the Supreme Court concerning the case of Gulf Power Company v. Bevis, 289 So.2d 401 (Fla.1974), then pending before the Court. Count one charged that respondent engaged in prohibited communications between July and November, 1973, with Justices of the Supreme Court concerning the merits of the Gulf Power case. Count two charged the respondent with refusal to reveal the mentioned prohibited communications when he was asked about them by an opposing counsel of record prior to the rendition of the decision. Count three charged that respondent had testified falsely relative to rumors or gossip he allegedly heard in June or early July, 1973, to the effect that the Supreme Court had voted to reverse the decision of the Public Service Commission in the Gulf Power case and that Justice Boyd had been assigned to write the majority opinion. Count four charged that respondent testified falsely concerning whether he offered to supply the ex parte memorandum of law or whether Justice Boyd had requested him to prepare the memorandum.

The Referee found the evidence inadequate to support a finding of guilt with reference to count four and dismissed those charges. The following are the Referee's findings of fact relating to counts one, two, and three of the Bar's complaint:

'A. Count I:

'1. Gulf Power Company filed a petition for a writ of certiorari in the Supreme Court of Florida on January 8, 1973 to have reviewed an order of the Florida Public Service Commission in a rate case. Broadly stated, the issue involved the treatment to be accorded the recently enacted State Corporate Income Tax Law in the calculation of test year expenses for rate making purposes.

'2. Edwin L. Mason (hereinafter Mason) then requested the Court to allow him to file briefs as amicus curiae, and be heard on behalf of Gulf Telephone Company and St. Joseph Telephone and Telegraph Co. This request was granted, Mason filed amicus briefs, and participated in oral argument of the cause on June 7, 1973. The panel assigned to the case consisted of then Chief Justice Carlton, and Justices Adkins, McCain, Boyd, and Dekle.

'3. In late June or early July, 1973 Mason discussed Gulf Power Company v. Bevis with Justice Boyd during a golf game. From this discussion Mason concluded that Justice Boyd had been assigned to write the majority opinion in favor of Gulf Power Company, and that the case was a difficult one with which the Justice could use assistance beyond the briefs which had been filed.

'4. Mason solicited Louis Petteway, an experienced public utilities attorney, to assist him in the preparation of a concise memorandum of law concerning the mentioned principal issue in the case. Petteway billed St. Joseph Telephone and Telegraph Co. and Gulf Telephone Co. for his work on the memorandum, but Mason did not render a statement for his services. The completed memorandum was approximately fourteen pages on long legal style paper. Mason showed the memorandum to his law partner for review, after which one copy was given to Petteway, and one copy was delivered to Justice Boyd in July, 1973.

'5. There is conflicting testimony concerning the circumstances which led to the creation and delivery of the memorandum to Justice Boyd. Mason, however, admits to having prepared the memorandum with the intention that it be used by the Court, and to having delivered it without notifying counsel of record that he had done so, and without having served copies of it on such counsel. Other witnesses, including Justices Boyd and Dekle, substantiated the existence of the memorandum, and its use as an aid in the preparation of the majority opinion. It is therefore unnecessary to '6. The memorandum itself is no longer in existence, but there was adequate evidence concerning its preparation, content, and style to establish that it did exist. In addition that it was given to Justices Boyd and Dekle in a form that did not include a case caption, certificate of service, or clerk's file stamp. The Court's Progress Docket does not indicate that the memorandum was docketed.

the ultimate disposition of this cause to resolve the conflicting testimony concerning the genisis (sic) of the memorandum, its delivery, and ultimate use.

'7. Mason also delivered a copy of the memorandum to Justice Dekle in July, 1973 and expressed the hope that it might be helpful in the event the Justice concurred with the majority. Justice Dekle did not invite, nor was he forwarned (sic) of Mason's visit to chambers. There is no direct evidence that they discussed the substance of the case. Justice Dekle, who was not then assigned to write the opinion, put the memorandum aside without immediately reading it.

'Mason made a second visit to Justice Dekle in chambers on or about November 30, 1973 for the purpose (according to Mason) of inquiring concerning the status of the case. To the contrary, however, it appears from an interoffice memorandum between Justices Dekle and McCain dated November 30, 1973 that Mason probably discussed the merits of Gulf Power Company v. Bevis with Justice Dekle that day.

'Justice Dekle testified that as a result of Mason's November 30 visit, he placed the case on an expedited basis for final disposition.

'Although Mason and Justice Dekle denied having discussed the merits of the case on or about November 30, 1973, the wording of the memorandum between the Justices; the status of the opinion then in preparation; the manner in which the ex parte memorandum was used; and Mason's subsequent evasion of a pointed inquiry made by opposing counsel the following month concerning the chambers visit, lead to the finding that the two men discussed the merits of the case.

'8. For the sake of rendering a complete report, mention is made of the fact that Justice Boyd was initially assigned to write the majority opinion in favor of Gulf Power Company. It came to pass that his was the minority view, and Justice Dekle wrote the majority opinion in favor of the utility in which Chief Justice Carlton specially concurred. Both Justice Dekle and his then Research Aide testified that substantial reliance was placed upon the memorandum in the preparation of the majority opinion.

'There is no question but that knowledgeable utilities counsel agree the majority opinion is a correct statement of the law. It is impossible to compare the subject memorandum with the Court's opinion, but the opinion does cite and follow the authorities and argument contained in the petitioner's briefs. Thus, the fabric of substantive Florida jurisprudence was not impaired by the use of the memorandum, although its proffer and use was (sic) unquestionably wrong.

'9. The Supreme Court (decision) in Gulf Power Company v. Bevis was rendered January 30, 1975 (1974) holding generally in favor of the utility that the State Corporate Income Tax was a proper operating expense for rate making purposes. Justice Dekle wrote the opinion in which Justices Adkins and McCain concurred, and Chief Justice Carlton concurred specially. Justice Boyd dissented.

'B. Count II:

'1. Arthur J. England, Jr. appeared in Gulf Power Company v. Bevis as a respondent in his capacity as Consumer Advisor and Special Counsel to the Governor. On December 17, 1973 he wrote to Mason to mention a report published in the St. Petersburg Times two days previously. The newspaper reported that Mason had at '2. On December 28, 1973 England again wrote to Mason, but this was a pointed request, i.e.:

least one private discussion with Justice Dekle concerning the case which the Justice characterized as a routine inquiry. Mention was also made of an interoffice memo between Justices Dekle and McCain concerning the case, and Mason's visit to chambers. The same article reported that England had inquired of the Clerk's office concerning the status of the case. England's letter merely emphasized the nature of his inquiry in the Clerk's...