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Critiques of the Judiciary
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CANON 2: A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
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Critiques of the Judiciary
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Judge Michael E. Allen knew that a colleague on the Florida Appellate Court had a conflict of interest and should have disqualified himself from a case in which they and other judges were involved. Judge Allen's concern, based on newspaper reports as well as personal knowledge, was expressed in a written opinion of the court that was subsequently published. Outraged that a judge would criticize a colleague in a public forum, other judges and lawyers led a vendetta against Allen that was orchestrated by Florida's Judicial Qualifications Commission and designed to humiliate, defame, and punish him for violating the code of secrecy that protects errant fellow judges from public exposure. The charges against Judge Allen (see PDF) include a psychological evaluation of his motives for blowing the whistle on a fellow judge. The case is a vivid lesson for would-be whistleblowers.
Earlier this month, the Investigative Panel of the Florida Judicial Qualifications Commission issued formal disciplinary charges against an appellate judge serving on Florida's 1st District Court of Appeal based on statements contained in a concurring opinion the judge had issued in the course of deciding a case on appeal. This would be quite remarkable if that opinion were in fact deserving of censure, but what makes this event all the more outrageous is that it is difficult to conceive from reviewing the case that the concurring opinion provides any cause for disciplining its author.
The underlying case began as an appeal from a criminal conviction. The appeal was originally argued before a panel that ultimately decided by a vote of 2-1 to overturn the conviction. Before that ruling was issued to the parties and docketed as the appellate court's judgment, the decision was circulated within the appellate court to all active judges. At that point, a majority of the non-recused active judges voted in favor of rehearing en banc. As a result, the three-judge panel's decision never issued.
Judge Michael E. Allen(Fla. 1st Dist. Court of Appeal)Following rehearing en banc, the full appellate court voted 10-4 in favor of affirming the convictions. Thereafter, the criminal defendant asked the appellate court to certify for review by the Supreme Court of Florida the question whether specific guideposts should exist for determining whether and how a case should qualify for en banc review at the behest of an intermediate appellate court's judges. In June 2006, the appellate court denied the criminal defendant's request to certify issues for review by Florida's highest court.
When denying the defendant's request for certification, Florida's 1st District Court of Appeal issued a per curiam opinion providing reasons for the denial. In addition, Judge Michael E. Allen issued a concurring opinion in which he explained why he voted for rehearing en banc. Allen wrote that he concluded that one of the judges in the majority on the original panel had made a mistake in failing to recuse because published press reports and that judge's own background gave rise to an appearance of partiality. In his concurring opinion, Allen quoted in full three separate news reports to support the assertion that an appearance of partiality existed.
Now, it certainly is rare to see one appellate judge publicly call into question a colleague's refusal to recuse from deciding a case. But a central question before the court when Allen wrote his concurring opinion was whether the case presented a good vehicle for the Supreme Court of Florida to announce the procedure and grounds for court-initiated rehearings en banc. It was directly relevant to that question for Allen to explain why he had voted in favor of rehearing en banc.
The basis for the disciplinary charges against Allen strike me as especially weak. The charges suggest that no judge other than the one whose impartiality is being questioned has the ability to comment on that subject. The charges also accuse Allen of acting improperly in relying on newspaper articles, which were outside of the record on appeal and constituted hearsay evidence in any event. The charges further accuse Allen himself of undermining public confidence in the judiciary.
Examining these accusations in turn, it is certainly true, at least in the first instance, that the question whether a given judge should recuse is vested in that judge's own discretion. But even if a judge's colleagues cannot override the judge's decision not to recuse, I see nothing wrong with an appellate judge discussing the grounds for his belief that a colleague should have recused in a case in which that colleague was poised to cast the dispositive vote to overturn a criminal conviction that the en banc court later decisively affirmed.
Also, Allen's explanation for why he voted to rehear the case en banc was, as I have noted above, relevant to whether the case provided a good vehicle for review by the Supreme Court of Florida on the question of whether and how court-initiated rehearings en banc should occur. Thus, even if Allen's concurring opinion was intended merely as a malicious attack on his judicial colleague — and there is certainly no evidence of this from its text — the concurring opinion should not subject its author to discipline because, on its face, the opinion was not improper.
The charge that Allen violated his judicial duty by quoting from and relying on newspaper articles is laughable. The relevant inquiry is whether a reasonable person with knowledge of the relevant facts would conclude that the other judge's impartiality might reasonably be questioned. This standard is necessarily based on information that would be available to such a reasonable person rather than based only on evidence admissible in a court of law. The disciplinary charges' suggestion that only admissible evidence can give rise to an actionable appearance of partiality would set the recusal bar far too high.
Finally, the charges' claim that Allen, in issuing a concurring opinion asserting that his colleague acted improperly in failing to recuse, himself acted improperly by undermining public confidence in the judiciary is likewise absurd. An appellate judiciary whose members were prohibited from publicly questioning their own colleagues' failure to initiate necessary recusals would seem to me to pose a far greater threat to the judiciary's integrity and impartiality than the events in this particular case.
Because Allen had a reasonable basis for explaining why he voted in favor of rehearing en banc in this case; because it was reasonable for him to rely on newspaper articles to furnish the basis for his conclusion that a colleague should have recused from deciding the case due to an appearance of partiality; and because Allen's assertion of wrongdoing was not unreasonable based on the information on which he relied, the judicial misconduct charges against Allen appear entirely meritless. I never expected to see an appellate judge face disciplinary charges based on the content of a judicial opinion, and thus it is especially unfortunate that the first instance of this happening arises in such an egregiously weak case.
Copyright 2007, ALM Properties, Inc.
From: Law.com, May 14, 2007, http://www.law.com/jsp/article.jsp?id=1178874302204, accessed 04/12/08. Howard J. Bashman is an attorney who can be reached via e-mail at hjb@hjbashman.com. He has an appellate Web log at http://howappealing.law.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
CHARGES AGAINST JUDGE ALLEN (PDF) JUDGE MATTHEW E. McMILLAN
Judge asks state's high court to block case against him LUCY MORGANApril 1, 2008TALLAHASSEE — Attorneys for 1st District Court of Appeal Judge Michael E. Allen on Tuesday asked the Florida Supreme Court to block the Judicial Qualifications Commission from proceeding against him.
It marks the first time a judge has asked the high court to step in and stop the JQC.
Allen's attorney, Bruce Rogow, said the unprecedented step is called for because what the JQC is doing to Allen itself is unprecedented.
"There is no precedent in Florida or elsewhere in the United States for seeking sanctions against an appellate judge based on his or her reasons for writing a published opinion in a case before his or her court," Rogow said in the motion filed Tuesday.
Last year the JQC accused Allen of conduct unbecoming a judge because he criticized fellow judge Charles J. Kahn Jr. in an opinion upholding the bribery conviction of former Senate President W.D. Childers.
Allen questioned Kahn's failure to disqualify himself from the Childers case, noting Kahn's former partnership with Pensacola lawyer Fred Levin, a Childers friend and sometime attorney.
Just weeks before Allen was to face a JQC trial last month, the commission added more charges, accusing Allen of lying to the JQC about his motive for writing the opinion when he denied that he harbored extreme animosity toward Kahn. His new trial is scheduled for June 9.
The JQC's charges against Allen mark the first time a Florida judge has been prosecuted for something he wrote in a published opinion. The new perjury charge marks the first time the thought process underlying a judicial opinion has come under attack in a JQC proceeding.
The only reported effort to sanction a judge for a written opinion occurred in Montana in the 1980s, with charges of misconduct against Judge Daniel J. Shea. The Montana Supreme Court rejected the charges, with words of concern for judicial independence.
"It may not have been pleasant for the majority & to have been called 'intellectually dishonest' or to have been told that they were 'slippery with the facts.' Yet it seems nearly every day newspaper editors say something equally derogatory about our decisions," the Montana court noted. "As long as a justice, or a judge, in writing opinions, does not resort to profane, vulgar or insulting language that offends good morals, it may hardly be considered 'misconduct in office.'
"More important than to censure, suspend or remove Daniel J. Shea from office for his 'intemperate' language is to preserve an independent judiciary in this state."
Rogow contends that nothing short of the independence of Florida's judiciary is at stake in the charges against Allen.
A commission that delves into the decision-making process of a judge would endanger the entire system, Rogow argued, because judges would have to be as concerned not only with justice but with what the JQC deems proper.
"It is hard to imagine a proceeding with more potential for damaging the public perception of the judiciary, or one more disruptive, inappropriate and destructive of judicial independence than the journey into judicial minds proposed by the JQC effort to divine the reason for Judge Allen's concurring opinion in the Childers case," Rogow said.
The JQC has frequently mentioned the case it brought against former Pasco-Pinellas Circuit Judge Richard Kelly to justify the charges against Allen, noting Kelly's frequent attacks on other judges and lawyers. But Rogow notes that Kelly's case did not involve a published appellate opinion, but statements and press releases designed to bolster his personal image. Allen has made no public statement and should not be compared with the Kelly case, he said.
At the same time the JQC filed charges against Allen, it rejected complaints accusing Judge Kahn of sexually harassing women who worked for the state court system. One of the complaints was filed by 13 of the 15 judges at the 1st District. Another was filed by officials in the state court administrator's office.
The turmoil generated by the complaints against Allen and the failure of the JQC to file a complaint against Kahn has put the court in an uproar that has lasted more than two years.
Copyright 2008, St. Petersburg Times
From St. Petersburg Times, April 1, 2008, http://www.tampabay.com/news/courts/article439134.ece. accessed 04/12/08. Lucy Morgan is a senior correspondent for the Times and can be reached at lmorgan@sptimes.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Judge asks state justices to throw out disciplinary proceeding PAUL FLEMMINGApril 1, 2008TALLAHASSEE — Judge Michael Allen, facing trial by the Judicial Qualifications Commission for a scathing opinion he wrote questioning a fellow judge on the First District Court of Appeal, has asked the Florida Supreme Court to throw out the disciplinary proceeding.
Allen's lawyers Tuesday filed a petition with the state's highest court to halt the JQC investigation and scheduled June trial.
The inquiry, and a new charge added against Allen last month, threaten the foundations of judicial independence, his lawyers say. If the charges against Allen are found to have merit by the JQC hearing panel, he faces discipline from the Supreme Court, up to removal from the bench.
Bruce Rogow, Allen's Fort Lauderdale attorney, said the petition to stop the Judicial Qualifications Commission inquiry is unprecedented, but then so are the charges Allen faces.
Last month, the JQC added a charge against Allen beyond those that said his written opinion violated judicial ethics. The new charge alleges Allen "knowingly and willingly made false statements" in sworn testimony.
"When they filed the new charges ... that kind of put it over the top for me," Rogow said.
In the petition before the Supreme Court, Allen's attorneys argue that the inquiry is not valid and should be stopped.
"The newly set June 9, 2008, proceeding will be an inquiry into the reason and motive for the opinion — and issue we submit is completely beyond the scope of the JQC's powers and authority," the petition states. "While the JQC may inquire into whether external forces — bribery or ex-parte contact — prompted an opinion, it cannot inquire into a judge's thought process underlying the opinion itself."
In 2006, Allen wrote a concurring opinion in a case before the First [District Court of Appeals] in which he questioned fellow Judge Charles Kahn's failure to recuse himself from the appeal of W.D. Childers, a legendary Florida political figure convicted of bribery as an Escambia County commissioner.
Allen's opinion said said Kahn's participation in the Childers appeal had the appearance of impropriety.
The complaint against Allen was lodged by Martin Levin, son of famed Pensacola attorney Fred Levin, a part of Kahn's circle of influence that Allen cited in his written opinion.
Childers' bribery conviction was upheld, but only by the full court and after a three-judge panel that included Kahn was on the verge of overturning the lower court's conviction.
"More suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers, thus allowing them, once again, to 'snooker the bastards,' " Allen wrote.
Kahn is a former law partner of Levin, a political and personal ally of Childers' with whom he cooked up a secret plan for the state to sue tobacco companies. Childers, with the help and approval of former Gov. Lawton Chiles, surreptitiously passed a law to make it easier to sue under Levin's plan. Levin led the legal team that won a
$13 billion tobacco settlement and earned$250 million in fees associated with the case for his firm.Fred Levin has fully refuted any connection between Kahn and his dealings with Childers and Chiles.
Copyright 2008, News-Press.Com
From: news-press.com, Tallahassee bureau, April 1, 2008, http://www.news-press.com/apps/pbcs.dll/article?AID=/20080401/NEWS01/80401068/1075, accessed 04/12/08. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Censure Judge Berrigan?
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