Thursday, October 8, 2015

The Judge, a Bookstore, and State Employment

The constitutional judges in Florida are governed by the Code of Judicial Conduct. The legislature put the same constraints on the Judges of Compensation Claims (JCCs) through Chapter 440. Because the constraints are similar, it is helpful to know what the Code provides, and the interpretations the Court is applying. An interesting case was decided last year regarding Leon County Judge Judith Hawkins.

Complaints against constitutional judges are considered by the Judicial Qualifications Commission (JQC). That body investigates and makes recommendations, but ultimately it is the Florida Supreme Court that determines discipline for constitutional judges. The JQC does not investigate JCCs, that is a job for the Division of Administrative Hearings (DOAH). The process is similar however, with the JCCs, any discipline recommendation is made to the Governor instead.

In case SC12-2495, the Court reviewed a recommendation from the JQC. The Court noted that it "gives the findings and recommendations of the JQC great weight," but rejected the recommendation in this case. The JQC "found that Judge Hawkins has a generally exemplary record," found "mitigating factors," and recommended "serious sanctions short of removal." The Court disagreed and removed the judge from the bench in October 2014.

The case has many points worth noting.

The Judge was accused of using "judicial office to promote a private business," "failure to respect and comply with the law," "failure to act in a manner promoting public confidence in the judiciary," "failure to devote full attention to her judicial office," and "lack of candor with the Judicial Qualifications Commission."

Essentially the judge in this case was accused of using state resources to "operate a private business" from "her judicial chambers, utilizing official time, office space, utilities, equipment and the services of her judicial assistant." She allegedly sold products (a book she wrote) in her courtroom and sold it to "persons over whom she had disparate influence and authority," including "attorneys appearing before her in chambers."

The complaint also alleged that the Judge "would go off the record to avoid having coercive discussions recorded" and to "avoid the recording of inappropriate comments or the sound of magazine pages turning trial." It alleges that the Judge instructed a criminal "defendant to contact one of three lawyers and tell them" the Judge had sent the defendant to them. And it alleges the judge "was often absent, resulting in disruption to those who appeared before her." 

Finally, the complaint alleges that "on the morning of her scheduled deposition," regarding her book-selling business, the Judge "deleted financial information from her private business computer, which records had been subpoenaed for production at the deposition." 

The opinion is a worthwhile read. The responses to the allegations include many instances in which the Judge simply denied the charges raised. So there were factual disputes. 

The hearing panel concluded that the judge was guilty of promoting book sales using photographs of her in her judicial robes, and of "knowingly using her judicial assistant to promote and produce" for that business during state work hours. She was also found guilty of of being inattentive and of failing to devote full time and attention to her judicial office. 

The hearing panel found the judge "guilty of exhibiting a lack of candor before the Qualifications Commission, ignoring the requirements of the law, and evading lawful orders . . . by deleting subpoenaed financial records," and more, including "obstructive behavior, untruthful answers, and attempts to repeatedly frustrate and obfuscate discovery."

The hearing panel concluded that the appropriate sanction would be "a reprimand, three-month suspension without pay, and a $17,000 fine." The Court said the "object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge's fitness to serve as an impartial judicial officer." 

On the entire record, the Court concluded the Judge's "prior record of service and good intentions cannot overcome the grievous nature of the violations in this case." The Court said the Judge's actions and participation in the investigation "did not show acceptance of responsibility for her actions, or acknowledge their impropriety . . .." The Court concluded this person was not fit to serve as a judicial officer and removed the Judge from office. 

It is a troubling case to read. There are multiple points that are worthy of consideration and discussion. Marketing and selling in a state office? Tasking state staff with functions that are personal in nature? We have seen this in the OJCC. I am not aware of judges selling or marketing, but we have seen state staff asked to perform personal errands. It is not appropriate. 

We periodically hear of some proceeding held "off-the-record." I am a proponent of all judicial conversations being on-the-record. This is for the preservation of the proceedings and protects everyone involved from misunderstanding. The complaint in this case alleged that the Judge "would go off-the-record to avoid having coercive discussions recorded." This raises the question, why would a judge go "off-the-record?" Is there a good reason? There is no reason for a judge to have coercive discussions. Coercion is not a judicial function. 

If a later dispute arises as to why a hearing was not recorded there will obviously be no recording to refer to, and there may be a "he said, she said" disagreement about what was said and why the record was adjourned. Then, without a recording to which one might refer, it could become a difficult task to determine whose version of what occurred is accurate. I recommend all proceedings be on-the-record. Any appropriate statements can be made on-the-record and anything that cannot be on-the-record can likely just go without saying.  

I have seen JCCs make attorney recommendations. The complaint in this case alleges that the Judge instructed a criminal "defendant to contact one of three lawyers and tell them" the Judge had sent the defendant to them. As a young WC practitioner, I often saw similar referrals. There were Deputy Commissioners and then JCCs who did not like cases involving pro-se claimant's (for whatever reason). I recall many settlement hearings in which a JCC made a referral similar to the one in this case. 

What relationship does such a referral suggest? If a JCC recommends that someone hire any attorney, that is a commentary about the litigation process in general. When a JCC recommends a particular attorney, or even a particular group from which to chose, that nay suggest a relationship between the judge and counsel or perhaps an endorsement of the(se) attorneys? That suggestion or appearance of an endorsement is not appropriate. It does not promote faith and trust in the adjudicatory process. 

An interesting read. Some good guidance for adjudicators. 

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