IN THE SUPREME COURT OF FLORIDA CASE NO. 07-774 INQUIRY CONCERNING A JUDGE NO. 06-249 RE: JUDGE MICHAEL E. ALLEN On Review of the Recommendations of the Hearing Panel, Judicial Qualifications Commission JUDGE MICHAEL ALLEN’S BRIEF IN OPPOSITION TO THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE HEARING PANEL, JUDICIAL QUALIFICATIONS COMMISSION RICHARD MCFARLAIN 2014 Golf Terrace Drive Tallahassee, FL 32301 (850) 878-3343 GUY BURNETTE, JR. 3020 N. Shannon Lakes Drive Tallahassee, FL 32309 (850) 668-7900 Counsel for Judge Michael Allen BRUCE S. ROGOW CYNTHIA E. GUNTHER BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite 1930 500 East Broward Blvd. Fort Lauderdale, FL 33394 (954) 767-8909 SYLVIA WALBOLT CARLTON FIELDS, PA P.O. Box 3239 Tampa, FL 33601 (813) 223-7000
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IN THE SUPREME COURT OF FLORIDA
CASE NO. 07-774
INQUIRY CONCERNING A JUDGE NO. 06-249 RE: JUDGE
MICHAEL E. ALLEN
On Review of the Recommendations of the
Hearing Panel, Judicial Qualifications Commission
JUDGE MICHAEL ALLEN’S BRIEF IN OPPOSITION
TO THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE HEARING PANEL,
JUDICIAL QUALIFICATIONS COMMISSION
RICHARD MCFARLAIN 2014 Golf Terrace Drive Tallahassee, FL 32301 (850) 878-3343 GUY BURNETTE, JR. 3020 N. Shannon Lakes Drive Tallahassee, FL 32309 (850) 668-7900 Counsel for Judge Michael Allen
BRUCE S. ROGOW CYNTHIA E. GUNTHER BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite 1930 500 East Broward Blvd. Fort Lauderdale, FL 33394 (954) 767-8909 SYLVIA WALBOLT CARLTON FIELDS, PA P.O. Box 3239 Tampa, FL 33601 (813) 223-7000
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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION...................................................................................................... 1 STATEMENT OF THE CASE AND FACTS ........................................................... 2 SUMMARY OF THE ARGUMENT ........................................................................ 4 STANDARD OF REVIEW ....................................................................................... 7 ARGUMENT ............................................................................................................. 7 I. THE FACTUAL FINDINGS ARE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE .................................. 7 A. The Documentary Evidence .............................8 B. The Testimony ........................................... 14 C. “Strong, Intense Dislike of Judge Kahn”
(App. B, p. 4) 20
II. THE CONCLUSIONS OF LAW ARE UNFOUNDED AS A MATTER OF FACT AND LAW ......................................................29
III. THE DOCTRINE OF JUDICIAL INDEPENDENCE PRECLUDED THE JUDICIAL QUALIFICATIONS COMMISSION FROM FILING CHARGES AGAINST JUDGE ALLEN BASED UPON THE PUBLISHED OPINION THAT WAS WITHIN HIS OFFICIAL DUTY ....................34 CONCLUSION ........................................................................................................ 39 CERTIFICATE OF SERVICE ................................................................................ 41 CERTIFICATE OF COMPLIANCE ..................................................................... 42
The portions of the relevant “Findings of Fact” that are not disputed are
straight forward and set forth in Appendix B, pp. 5, to the first two paragraphs of
3
page 10.
• Judge Allen was appointed to the First District Court of Appeal in 1990.
• W.D. Childers was convicted of bribery, and
unlawful compensation as an Escambia County Commissioner, based upon the testimony of another Commissioner, Willie Junior.
• Childers appealed to the First DCA. • Judge Charles Kahn was the primary judge
on the panel hearing the appeal. • The panel circulated in pre-release a
unanimous opinion reversing Childers’ conviction.
• Judge Bradford Thomas thought the
proposed opinion was erroneously decided on the merits.
• Judge Thomas went to Judge Kahn’s office
to tell him that he wanted the entire court to hear the case.
• Judge Kahn told Judge Thomas to “get the
fuck out of my office.” • Judge Van Nortwick, a member of the
Childers panel, decided to dissent from the original proposed decision.
• A majority of the judges of the First DCA
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decided to consider the Childers case en banc and the en banc decision affirmed the conviction of W.D. Childers, 10-4.
• The en banc decision on the merits consisted
of nine opinions, prompted partially by the dispute over the court’s jurisdiction to proceed en banc.
• Following release of the en banc decision,
Childers’ lawyer moved for certification to the Florida Supreme Court. The same ten judges who voted to affirm the Childers’ conviction voted to deny certification, and another dissent from Judge Kahn addressed the court’s authority to have reheard the case en banc.
• Judge Allen concurred in the decision to go
en banc, and that decision prompted the charges in this case.
Against that undisputed factual background, we turn to the reasons for
rejecting the Hearing Panel’s findings, conclusions and recommendations.
SUMMARY OF THE ARGUMENT
I. Not a scintilla of documentary or testimonial evidence supports
the finding of fact that Judge Allen’s concurrence was motivated by malice, ill will
or animus against Judge Kahn. Indeed, Judge Allen offered to withdraw his
opinion before publication. Exhibit 7. Nowhere in the several weeks of e-mail
exchanges leading up to the June 28, 2006 release of all the opinions in the
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Childers case is there any mention of, or hint of, personal animus as the motivation
for the concurring opinion. Every e-mail exchange, and every bit of testimony,
established that Judge Allen’s reason for writing was to explain his reason for
voting to hear the case en banc, explaining that he thought the public perception of
Judge Kahn being the decisive vote to reverse the conviction and, as a practical
matter (since Willie Junior had died) free Childers, could cast a pall upon the
public perception of the court.
The testimony of the twelve judges who testified – Judges Allen,
Wolf and Van Nortwick – did not support a finding that Judge Allen’s opinion was
motivated by ill will. There was testimony that Judge Allen disliked or
disrespected Judge Kahn. The testimony was clear and convincing in one respect
– that Judge Kahn’s conduct was very troubling (indeed the Hearing Panel invited
JQC Investigative Panel action against Judge Kahn) – but there was no clear and
convincing evidence that Judge Allen’s opinion was driven by his distaste for
Judge Kahn’s conduct.
The concurring opinion did not suggest “that Judge Kahn paid back
his indebtedness to [Fred] Levin through his vote in Childers.” Appendix B, p.
10. The opinion recounted information that members of the public might have
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thought relevant to such an inference. The Hearing Panel viewed the opinion
through the lens of its perception and what it (and some of the witnesses)
speculated others might perceive, but the plain language of the opinion did not say
that Judge Kahn “sold his vote as ‘payback”’ (Appendix B, p. 11) and the
testimony reflected differing perceptions by the judges who had seen the
concurring opinion during pre-release as to how they or others might perceive the
opinion. Most tellingly, not a single one of those judges told Judge Allen that the
opinion might, would, or could constitute a violation of the Code of Judicial
Conduct.
II. Aside from the lack of clear and convincing evidence to support
any violation of any rule of judicial conduct, the findings, conclusions and
recommendations should be rejected because the concepts of judicial independence
and judicial immunity preclude any inquiry into the personal motivation for a
published appellate decision or an inquiry into how the plain words of a published
opinion may be perceived by others, and a concomitant finding that the words may
be subject to an interpretation that the plain words belie.
No decision of this Court or any other court supports a JQC inquiry
into the content of, motive for, or an interpretation of, a published appellate
opinion. In fact, the courts that have addressed attempts to seek sanctions against
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an appellate judge for the substance of what he or she had written have rejected
those efforts. The Hearing Panel did not, and could not, point to any other cases
on point. The cases cited by the Hearing Panel for its conclusions of law are
inapposite and unresponsive to the commitment to judicial independence that
precludes a sanctioning body’s inquiry into the content of, motivation for, or the
meaning to be given to, an appellate judge’s published opinion.
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STANDARD OF REVIEW
The standard of review of the Findings of Fact is clear and convincing
evidence. “[C]lear and convincing evidence . . . must be of such weight that it
produces in the mind of the trier of fact a firm belief or conviction, without
hesitancy, as to the truth of the allegations sought to be established.” Inquiry
Concerning a Judge Davey, 645 So. 2d 398, 404 (Fla. 1994). The standard of
review for the purely legal issues posed in Points II and III – the Conclusions of
Law and the JQC’s lack of authority to inquire into judicial reasons for an opinion,
its content and the meaning to be given to an appellate opinion, is de novo.
ARGUMENT
I.
THE FACTUAL FINDINGS ARE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE
The Hearing Panel’s “dual motive” finding “((1) a perceived threat to
the integrity of the court; and (2) an extraordinary level of antipathy to Judge
Kahn” (Appendix B, p. 19) reflects a retreat from the charges against Judge Allen
which were premised only upon allegations of “ill will” and “animus.” See
Amended Notice of Formal Charges, ¶ 14: “Your concurring opinion was
unnecessary, unjustified and motivated by ill will.” That paragraph of charges
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included a colloquy between Judge Allen and Investigative Panel members in
which Judge Allen denied that he was motivated by “animus” in writing the
opinion. Based upon that denial, the Investigative Panel charged him with making
“false statements” (id.) but the Hearing Panel found Judge Allen “not guilty” of
making that false statement (Appendix B, p. 20). Thus we have this anomaly:
Judge Allen did not lie when he said that animus did not motivate his opinion,
juxtaposed with a finding that he was motivated by “extraordinary antipathy to
Judge Kahn.” Id. at 19.
The “Findings of Fact,” and even the “Conclusions of Law” which
import conclusions about Judge Allen’s psyche (“He succumbed to his dislike of
Judge Kahn, which clouded his perspective and his judgment” (Appendix B, p.
18)), are not supported by the testimonial or documentary evidence. The only
clear and convincing evidence is that Judge Allen’s concurring opinion was in
response to a perceived threat to the integrity of the court.
A. The Documentary Evidence
No witness, and no document, reflects antipathy toward Judge Kahn
as a reason for the concurring opinion. The e-mails between members of the
Court leave no doubt that the raison d’etre for Judge Allen’s opinion was his belief
that Judge Kahn and Judge Wolf had attacked the integrity of the Court. Judge
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Kahn’s dissent in the original en banc opinion said:
A majority of this fifteen-judge court has decided, for a variety of reasons, that appellant’s convictions should be affirmed. In doing so they have regretfully in my view paid little heed to the applicable constitutional and statutory provisions. They have also not honored the rule of appellate procedure establishing the very limited exception to the requirement of a three judge panel . . . .
State v. Childers, 936 So. 2d 585, 609. Judge Wolf, who concurred in the
affirmance but dissented from the en banc treatment, wrote: “I challenge the
implication that the restitution issue had anything to do with the vote of the court to
go en banc. I suggest rather that it is an attempted after-the-fact justification for a
decision which otherwise cannot be justified.” Id. at 614.
The en banc issue was the basis for Childers’ motion for certification
to the Florida Supreme Court and in denying it, per curiam, the District Court of
Appeal noted that “a dissenting judge seems to have suggested that this course of
proceedings is somehow irregular.” Id. at 620. Judge Kahn’s dissent from the
denial of certification was caustic:
With all due respect, the various opinions in this case supporting en banc consideration establish that this court’s exercise of its en banc jurisdiction relies solely upon the ability of the moving judge to obtain votes
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from a majority of judges.
Id. at 633.
Judge Allen’s concurring opinion as to the denial of certification
stated his concerns with the comments of Judges Kahn and Wolf.
In light of statements contained in some of the opinions, readers might have suspected that something improper was involved in this court’s decision to consider this case en banc. Implying that this court knowingly acted outside the requirements of law in voting for en banc consideration of this case, Judge Kahn wrote, “Perhaps to its credit, the majority has not even attempted to set out an adequate jurisdictional statement to support en banc consideration.” And Judge Wolf, joined by Judge Kahn, asserted even more pointedly that the votes in favor of en banc consideration “cannot be justified.” The only substantive response to these accusations was the brief and non-specific concurring opinion that I authored. A precise explanation of my reason for voting in favor of en banc consideration of this case now appears necessary because Judge Kahn has seen fit, through his most recent dissenting opinion, to offer further entreaties to the supreme court for review of this court’s decision to consider this case on an en banc basis, and because Judges Kahn and Wolf have refused to revise their opinions to delete their accusations that this court has knowingly acted in a manner contrary to the requirements of law.
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* * * I express my reason for voting in favor of en banc consideration in this case . . . most importantly, because these accusations have the potential of raising a question in the minds of members of the public as to this court’s commitment to the rule of law.
* * *
My vote in favor of en banc consideration was based upon my concern that participation by a particular judge of this court in the panel decision would have led to public perceptions of partiality by this court.
Id. at 622-23.
Every intra-court e-mail leading up to the Childers en banc decision
confirms that Judge Allen’s motivation was his belief that Judge Kahn and Wolf
had maligned the court, and that explaining his reason for voting in favor of en
banc was a response to the charges of court lawlessness in going en banc in
Childers. Exhibit 7, Judge Allen’s June 22, 2006 e-mail response to Judge Ervin
(who suggested withdrawal of all the opinions) and copied to all the members of
the court, says it all:
I have made it as clear as it can possibly be made both in my opinion and in numerous emails to the court that the sole reason for my opinion was to provide a well-overdue response to the unfair and harmful
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accusations contained in the opinions of Judges Kahn and Wolf, opinions in which Judge Ervin concurred and to which Judge Webster gave tacit approval by going out of his way to write, “I concur with those of my colleagues who argue that this case does not present a question of ‘great public importance’ so as to justify en banc consideration and, therefore, dissent from the majority opinion to that extent.” It is encouraging that Judge Ervin and Judge Webster are now interested in “a return to civility and good manners.” If all of the prior mess about this court’s vote to consider this case en banc is withdrawn, I will obviously withdraw what I have written. I cannot imagine how that could have been any more apparent from the beginning. Notwithstanding my willingness to do this, I must make it very clear that my opinion is not a blackmail note. It is exactly what it purports to be, a heartfelt, sincere, and necessary explanation that this court and honorable members of this court have been unjustly maligned. Nevertheless, if all en banc discussions are withdrawn by others, there is not a sufficient justification for publication of my opinion. (emphasis in bold supplied).
Judge Padovano was the “mediator judge” (Appendix B, p. 11) who
wrote the e-mail (Exhibit 9) which the Hearing Panel quoted and bolded in an
effort to portray Judge Allen as intransigent (“I think that [Mike] would really
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like for his opinion to go out”). Id. But Judge Padovano’s explanation of that
sentence demonstrates the utter lack of merit for the Hearing Panel’s inference that
Judge Allen was committed to publication. Judge Padovano was “trying to act in
the role of a mediator” (T-490) and was pushing both Judges Allen and Kahn, but
Judge Kahn was unwilling to end the matter:
Q. The next sentence, “I think that he,” relating to Judge Allen “would really like for his opinion to go out,” was that some type of threat that Judge Allen wanted it to go out no matter what?
A. If you read this e-mail in the context of the
five or six e-mails that precede it, it meant he would like this to go out, if you insist on continuing with your plan to publish these opinions, take the court to task for going en banc.
Q. And the converse meaning that if he – A. He publicly said that in e-mails. He said
that to me. He said that I presume to Judge Kahn.
Q. You are saying that Judge Allen said the
converse? A. That he would withdraw. There was one
e-mail from me earlier where I am pretty have pretty much gone down the list. I actually said something to the effect to Judge Kahn. It was directed to Judge Kahn.
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Well, you know, Judge Allen has agreed to withdraw his opinion, Judge Ervin has agreed to withdraw his. I certainly will withdraw mine. All the others agreed to withdraw their opinions. I haven’t talked to Judge Wolf. He says he was merely trying to protect you. If he withdraws his opinion, that leaves you. It’s more or less to say, it’s your move, what are you going to do. He [Judge Kahn] just refused to do it.
T-486-87 (emphasis supplied). Because Judge Kahn refused, Judge Allen’s
opinion went out. Asked who was “[t]he last man standing in the way of
everything being withdrawn,” Judge Padovano answered: “Judge Kahn.” T-489.
Since the documentary evidence is uncontradicted that Judge Allen
would have withdrawn his opinion if the criticisms of the court had been
withdrawn, there is no principled way to conclude that clear and convincing
evidence supports the notion that “ill-will” or “animus” motivated the opinion.
Judge Allen’s willingness to not publish belies the finding that he published it out
of malice, and confirms, as all the e-mail exhibits and the opinion itself show, that
he wrote to explain his reason for voting for en banc.
B. The Testimony
One would think that if an opinion about to be published was violative
in any way of the Code of Judicial Conduct, that the judges of the court would
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have recognized that and brought it to the writing judge’s attention. The fact that
not one pre-release reader, all of whom had a Canon 3D(1) duty to “take
appropriate action” were silent is important.1
It is uncontroverted that each of the judges of the First District Court
of Appeal read Judge Allen’s opinion and that none of them viewed the opinion as
violative of any Judicial Canon. Judge Robert Benton, who had been elected
Chairperson of the Judicial Ethics Advisory Committee before the June 28, 2006
publication of the opinion (T-381), asked if he had told Judge Allen that publishing
the opinion would violate judicial ethics or judicial professionalism, responded “I
never told him at that time. That is correct.” T-385, 377. The only advice Judge
Benton gave to Judge Allen was that the opinion “could come back and bite him on
the ass.” T-376, 386.
Judge Benton conceded that Judge Kahn had engaged in “conduct
before June 28, 2006 that reflects adversely upon his character and his integrity
and his honesty” (referring to “the conduct of the affair”) (T-380), and Judge
Benton understood Judge Allen’s concerns about Judge Kahn sitting on the
Childers case:
1 Canon 3D(1) of the Code of Judicial Conduct states: “A judge who receives information that another judge has committed a violation of this Code shall take appropriate action.”
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Q. Why did you understand his concern?
* * * A. I agreed it was an unfortunate appearance.
* * * A. Right. Well his concern is the fact that
Judge Kahn voted the way he did looks like – doesn’t look good. So his concern is the way the panel was going to go.
* * *
A. I understood his concern. Q. Did you think it was crazy? A. I did not. Q. Did you think it was completely off the
reservation? A. No.
T-387, 390. Judge Benton thought the original panel result was completely off the
mark: “There is not a case in the history of English jurisprudence or
Anglo-American [law] in the world where that has been allowed.” T-410, 417.
Judge Benton confirmed what the documentary evidence showed: that
Judge Kahn did not agree to withdraw the original opinions that accused the Court
of the after the fact justifications for going en banc (T-397) and, asked if he found
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the en banc charges made by Judge Kahn and Wolf “a bit offensive,” Judge Benton
responded “I do.” T-400.
Judge Paul Hawkes, the incoming Chief Judge of the First District
Court of Appeal, e-mailed Judge Allen on June 21, 2006, a week before the
opinion was published, commending him:
I think your opinion is very moving. I would be devastated to be on the other side of it. I also think it is very important. I know it took courage. Acts of courage, in my view are rewarded. Perhaps not in the short term but in the long run. I bet that this stand by you will be one of the memories you take from your service on this court; one of the best memories. Great battles in defense of principles are the very best aspect of public service. I also don’t believe that great battles diminish or harm an institution. Let the battle be joined. Paul.
T-338; Exhibit 18. Judge Hawkes recognized the fact that the panel exoneration
of Childers had special consequences:
A. I think that when someone has a certain notoriety and wealth, I think that the press follows the case a lot more closely than they do if its just the average individual when they file an appeal to our court. And I think that our court has to be very careful before we reverse a conviction where the press is going to write W.D. Childers gets out of prison.
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So I thought this case more important, which is what I understood Judge Allen to be saying in his – one of his previous opinions, which I concurred with.
T-349. He continued:
A. You know, I mean the suggestion that I – as I took it was that he was saying someone in the public could believe that because Judge Kahn had a relationship with Fred Levin and Fred Levin had done things to help Judge Kahn, that Judge Kahn’s vote was to help him.
I did not think that Judge Kahn’s vote did that, but I read Judge Allen’s opinion to say that a member of the public could think that, and a two-to-one opinion makes it look like this high profile guy, gets off and he has this relationship. And I took Judge Allen’s opinion to be saying that whatever the court does, it should do it in a way that removed the possibility someone could benefit.
T-365.
Judge Padovano also read the opinion as explaining “why Judge Kahn
should not have remained on the case,” and asked if Judge Allen was making it
look like “Judge Kahn is corrupt,” responded: “I don’t think he is doing that at all,
no.” T-496-97. He continued: “I don’t think this is Judge Allen accusing Judge
Kahn of anything except poor judgment in sitting on a case that he probably should
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have recused himself from.” T-497. Judge Padovano saw the opinion as “a fair
and even-handed explanation of very reasonable views” and “not ethically
improper.” T-499. Although Judge Padovano thought it “not a wise thing to do,”
he thought it “within his authority.” Id. And had he thought the opinion violative
of the Canons; he would have acted: “I can tell you right now, if I believed that [it
was ethically improper] and he did not listen to me with that advice, I would have
turned him in to the JQC myself. He knows that.” T-475.
Judge Davis confirmed that she too would have told Judge Allen if
she had seen the opinion as an ethical violation and that her opinion was that the
concurrence did not violate judicial ethics, did not violate judicial professionalism,
and “was a fair and even-handed explanation of very reasonable views.” T-547.
Asked “Do you agree that a reasonable person reading that sentence [quoting from
a newspaper article] could have concluded that Judge Kahn cast a corrupted vote in
the Childers case?”, Judge Davis responded “No.” T-549. Judge Davis testified
that she “would have signed this opinion,” but Judge Allen said no, sensitive to the
recent death of her daughter. T-557-58.
Judge Van Nortwick saw nothing in the opinion that was unethical,
unprofessional or violative of the Code of Judicial Conduct and would have said
something if he had seen the opinion as violative of any precept of professionalism.
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T-573-74. He described Judge Allen’s demeanor in talking about the case and his
rationale for writing it:
A. He was calm. He was upset by the dissenting opinions – the dissenting opinion of Judge Kahn and the dissenting opinions of Judge Kahn and Wolf from the first set of opinions. He felt like he was writing an explanation as to why he voted. It was a principle reason as to why he voted to take the case en banc.
He felt like he had been accused of acting in an unprincipled or unconstitutional way.
Q. When you say “he” – A. Judge Allen. Judge Allen said he was
writing because he felt like he had been accused of acting in an unprincipled or unconstitutional way.
Q. That he had been accused personally or – A. As a member of the court. Q. And, therefore, the whole court had been
accused? A. Correct. Q. Was that his state of mind, that he thought
the whole court had been accused by Judges Kahn and Wolf of acting in violation of the constitution, in violation of the statutes, in violation of the rules of appellate procedure in going en banc in this case?
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A. Yes.
T-574-75.
Indeed, the record is replete with testimony from the judges of the
court that in talking (or e-mailing) about his concurrence, Judge Allen did not
evince personal rancor in relation to Judge Kahn. See T-264-266 (Judge Thomas);
574 (Judge Van Nortwick). Judge Barfield, a court colleague for eighteen years,
testified: “Mike has never acted [with rancor or anger or profanity or hostility]
around me with respect to members of the court.” T-428.
Against that background we turn to the flawed foundation for the
Hearing Panel’s findings, conclusions and recommendations – distortion and
misuse of the testimony relating to Judge Allen’s feelings about Judge Kahn.
C. “Strong, Intense Dislike of Judge Kahn” (App. B, p. 4)
The Hearing Panel found that Judge Allen did not like Judge Kahn,
noting that “Judge Allen disavowed such dislike, describing it more as a lack of
respect.” Recommendations, p. 4.2 Judge Allen described a series of events that
2 The Recommendations transcript references for Judge Allen’s “disavowal” are incorrect. The references to “214-216; 220" are to Judge Webster’s direct testimony and have no relation to the Allen description of his feelings about Judge Kahn.
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formed the foundation for his negative feelings about Judge Kahn – events that
were uncontradicted, undisputed, and later revealed to be prescient. Among them
were Judge Kahn telling Judge Thomas to “get the fuck out of my office” when
Judge Thomas questioned the Childers opinion written by Judge Kahn (T-131);3
“ugly language” used by Judge Kahn “with some of the ladies in our Marshal’s
office because he was unhappy about not getting a certain parking space” (T-135);
“ugly language” used to Judge Van Nortwick at a meeting (T-136); a meeting
sought by Justice Anstead when Judge Allen was Chief Judge because Judge Kahn
had ‘threatened to file a lawsuit . . . a public records lawsuit to get the travel
records of these OSCA employees” when he (Judge Kahn) was denied travel
reimbursement. T-139.
Judge Wolf, Judge Kahn’s “very good friend” (T-307), relating
recollections of Judge Allen’s voiced concerns about Judge Kahn being chief
judge, asked whether Judge Allen “was right on every one of them,” answered:
“I’d have to say yes.” T-312. And Judge Barfield, who had also supported Judge
Kahn’s candidacy for Chief Judge, called Judge Allen’s previously expressed
concerns regarding Judge Kahn “prophetic.” T-428.
3 The Recommendations modulated the event: “using profanity, Judge Kahn ordered Judge Thomas out of his office.” T-255; 439-40.” Recommendations, p. 7.
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The hearing revealed such serious concerns about Judge Kahn that the
Hearing Panel invited the Investigative Panel of the JQC to act:
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The Hearing Panel does not condone or offer judgment on Judge Kahn’s behavior, as it is
not the subject of these formal charges. However these proceedings are a matter of public record, and the transcript of the final hearing is available to the Investigative Panel of the Judicial Qualifications Commission for such action as it deems appropriate.
Recommendations, p. 20. Thus, Judge Allen’s dislike or disrespect for Judge
Kahn was not irrational, and the contrary inference left by the findings is both
misleading and completely unsupported by the testimony. And most importantly,
no evidence linked Judge Allen’s concerns about Judge Kahn to the raison
d’etre for the opinion. Similarly, the findings that Judge Allen “actively
solicited other judges to contest Judge Kahn’s election, voicing objections to his
fitness” (Recommendations, p. 4), while literally true, begs the question of
motivation for the opinion. It is an attempt to bolster “dislike,” but is similarly
misleading and flawed because it omits the reasons for Judge Allen’s efforts.
Judge Edwin Browning, one of those solicited, provides the context and proves
that the effort was not a malignant act, but was intended to protect the court.
Judge Edwin Browning related Judge Allen’s effort to have him
(Judge Browning) run against Judge Kahn in the spring 2006 election for Chief
Judge of the Court:
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Q. And what reasons did he advance for wanting you to run against Judge Kahn?
A. He said that he [Judge Allen] did not think
that Judge Kahn was fit to hold the job and he was duplicitous and just didn’t have the people skills or the character traits that we ideally want as a Chief Judge and he would like for me to run against him and hopefully defeat him.
Q. And did you share those beliefs that Judge
Allen espoused about Judge Kahn? A. Not at that time.
T-38. Judge Browning later said that “Judge Allen had a very, very strong view
that Judge Kahn was not what a judge should be, was corrupt in the way he did
things, dishonest, and just a character of very low quality.” T-42. Judge
Browning ultimately learned certain things about Judge Kahn: “I think he was less
fit when I discovered some things later about Judge Kahn” (T-46), and he related
“something that happened that the court (‘The whole court’) took action against
Judge Kahn.” T-48.
A. Well there was a movement on to impeach Judge Kahn [as Chief Judge] and when it came down for the showdown vote, he resigned.
T-49. Judge Browning related salary actions of Judge Kahn that “mislead” the
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court and that Judge Kahn had lied to Judge Wolf and to him about “having an
affair with a lady in the clerk’s office” (T-51-52), and that in talking to Judge Kahn
about that “I took a witness [Judge Wolf], his best friend on the court” because “I
knew he had a temper and I did not want to go down there by myself. . . .” T-52.
Judge Browning read Judge Allen’s concurring opinion and
recognized his duty under the Judicial Canons.
A. I do. It is our duty to, if we think we reasonably detect a violation, then it should be reported.
Q. And you were aware of that duty and
obligation when you read Judge Allen’s concurring opinion, were you not?
A. I was.
T-55. Judge Browning, who was aware of Judge Allen’s feelings about Judge
Kahn’s character (T-42) was asked:
Q. Did you ever go to Judge Allen, either in person or in writing or by e-mail, and say Judge Allen, I think this opinion is a violation of the Code of Judicial Conduct?
A. I did not personally do that.
T-54.4
Judge Browning acknowledged that Judge Allen would not have
4 No one did that.
28
published his opinion if Judges Kahn and Wolf would withdraw their original
criticisms of the Court’s decision to go en banc and their dissents from the denial
of certification. Presented with Exhibit 7, the June 22, 2006 e-mail in which
Judge Allen wrote “If all the prior mess about this Court’s vote to consider this
case en banc is withdrawn, I will obviously withdraw what I have written” and “if
all en banc discussions are withdrawn by others, there is not sufficient justification
for publication of my opinion,” Judge Browning was asked:
So does that reflect to you that on June 22 that Judge Allen was willing to withdraw his opinion and none of this would even have been published if that occurred; is that what that reflects to you?
A. I would think so.
T-63. In another example of ignoring the import of the testimony, and to
bolster its malignant assessment of motivation, the Hearing Panel sought to make
Judge Allen the force behind Judge Van Nortwick’s dissent from the original Kahn
panel decision. While Judge Allen did accompany Judge Thomas (who was the
moving force for rehearing en banc – preparing a lengthy memorandum in support
thereof – Exhibit 22), the testimony reflected an independent decision by Judge
Van Nortwick who realized that reversal was improper, a decision buttressed by
29
Judge Benton’s belief that the original panel opinion was discordant with
“Anglo-American” law. T-410,417.
Judges Thomas and Van Nortwick explained the process leading to
Judge Van Nortwick’s dissent. Judge Thomas read the panel opinion authored by
Judge Kahn and “concluded it was wrong as a matter of law for a couple [of]
reasons.” T-254. He discussed his views with “Judge Benton, Judge Hawkes,
probably Judge Allen.” Id. He spoke “to Judge Polston about the protocol,”
went to see Judge Kahn, and was told by Judge Kahn to “get the fuck out of my
office.” T-255.5
Judge Thomas immediately went to see Judge Allen, who made no
adverse comments about Judge Kahn (T-266), and later both went to see Judge
Van Nortwick, with Judge Allen speaking to him about viewing the Childers case
“from a slightly different perspective, a 90.403 analysis,” saying Judge Allen
“persuaded” Judge Van Nortwick and Judge Van Nortwick indicated “that he was
at least willing to change his mind.” T-256. There was nothing personal or
improper in that discussion. Judge Van Nortwick explained the process that led to
his dissent:
5 Judge Thomas said that Judge Kahn apologized to him “a year and a half later. . . .” T-256-278. Judge Kahn, unaware of Judge Thomas’ testimony, said “I would like to think I did it as soon as I kind of gathered myself and realized what a mistake I had made.” T-440-41.
30
Primarily Judge Thomas was the one who came forward first.
* * *
He wrote a long memorandum that he submitted to the three judges. At the same time other judges were asking questions and contacting me. Judge Allen being one of
31
those about the merits of the three judges, the panel opinion.
But the long and the short of it, I guess, is that after talking to any number of judges I came to the conclusion that at least on one of the matters that we were revers[ing] on, we had been in error.
T-561.
Thus, the negative implication about “Judge Allen being
instrumental” in bringing about a “two to one” decision is belied by the testimony
of “the one” – Judge Van Nortwick. And as to en banc, Judge Van Nortwick said
that Judge Allen only talked about that “[i]n passing,” and he found nothing
inappropriate about Judge Allen being “concerned there was an appearance of
impropriety in Judge Kahn’s sitting on the case. . .,” saying “No, not at all. It was
something I had not thought about. I guess I should have recalled those
connections, but I hadn’t thought about it.” T-565.
Throughout the findings are further examples of the Hearing Panel’s
efforts to paint a pre-determined picture. Writing “Judge Allen took umbrage at
separate opinions authored by Judges Kahn and Wolf on the issue of an en banc
jurisdiction” (Appendix B, p. 9), the Panel does not acknowledge that other judges
were also offended. See T-268-69 (Judge Thomas); T-391-92 (Judge Benton);
The fact that “none of Judge Allen’s colleagues joined this
concurrence” (Appendix B, p. 11) proves nothing because Judge Allen “made it
clear from the beginning I wanted no one to join me” (Exhibit 14, Investigative
Hearing, pp. 59-60) and his opinion was an explanation of only his reason for
voting for en banc consideration. Nor is the fact that other judges “were seriously
concerned” about the opinion (Appendix B, p. 11) prove any violations, and by
adding “the impression of corruption” to the “seriously concerned” sentence, the
Panel seriously distorts the record because the transcript references do not support
the “corruption” reference.
Finally, the reference to Judge Allen saying “Its time for them to get
theirs” (Appendix B, p. 12), related to the refusal of Judges Kahn and Wolf to
withdraw their charges against the court for taking the case en banc: “And I believe
what I told [Judge Thomas] was that, as he and I had discussed, I felt that it was
necessary for there to be a response to these accusations . . . . T-112.
* * *
There is clear and convincing evidence that Judge Allen believed
Judge Kahn was not fit to be Chief Judge of the First District Court of Appeal.
33
There is clear and convincing evidence that Judge Allen (and all the other Judges
on the First District Court of Appeal) were concerned about Judge Kahn’s conduct.
There was clear and convincing evidence that Judge Allen wrote his concurring
opinion to explain his reason for voting for en banc consideration. There was
clear and convincing evidence that no judge on the First District Court of Appeal
viewed Judge Allen’s opinion as violative of the Code of Judicial Conduct.
There was no clear and convincing evidence of anything that
supported the “Findings of Fact” presented by the Hearing Panel or any conclusion
that there was any violation of the Code of Judicial Conduct. Nor do the
“Conclusions of Law” support any violation of the Code of Judicial Conduct.
II.
THE CONCLUSIONS OF LAW ARE UNFOUNDED AS A MATTER OF
FACT AND LAW
The Hearing Panel writes that the concurring opinion “raised the
specter that Judge Allen was abusing his opinion writing power to settle a personal
score.” Appendix B, p. 12. We have demonstrated that no evidence supports the
“personal score” scenario. In addition, the “personal attack” (id.) proposition fails
for the same reason. The use of Milkovich v. Lorain Journal Co., 497 U.S. 1,
18-19, 110 S.Ct. 2695, 111 L.Ed 2d 1 (1990) to turn the concurring opinion into
34
the Dreyfus Affair (“J’accuse” was Emile Zola’s 1898 open letter in L’Aurore to
the French President accusing the French government of anti-Semitism and the
unlawful jailing of Alfred Dreyfus) fails because Judge Allen voiced no opinion of
corruption.
In a profession where words count, the Hearing Panel has failed to
heed the words that count. The concurring opinion related what had been publicly
written about the Childers/Levin connection in the enactment of a law that made it
possible for Mr. Levin to obtain a substantial sum of money. The opinion
recounted events, relationships (Judge Kahn had been Levin’s partner before his
appointment) and coincidences that no one disputes, including the disappearance of
Willie Junior on the day of the Childers oral argument, and his being found “in the
crawl space beneath a house in Pensacola a month later, dead from an ingestion of
a lethal quantity of antifreeze.” 936 So. 2d at 628.6 Nothing in the concurrence
6 Judge Davis’ description of the chronology of Childers included that death and other events as part of her assessment of the concern for Judge Kahn’s participation. At the conference regarding en banc, he was “[v]enomous,” “so mad.” T531-32. When she saw the dissent, “my reaction was he doth protest too much. I was thinking after Junior died that very day of the argument. . . . That really made me wonder . . . about maybe whether Judge Kahn should have recused himself from the case.” T-534. Judge Barfield, early on had gone “over to Judge Kahn’s office and told him that I had some concerns about his sitting on the case because of the impression it would create and the impression that it had with other members of the court, some other members.” T-423. Judge Barfield “had that same concern, the same reason I recused myself.” T-424.
35
can properly be read as stating, or even inferring that Judge Allen was stating, as
opinion or fact, that he was accusing Judge Kahn of “corruption.” And the
Panel’s statement that the concurrence “suggested . . . that Judge Kahn procured
his appointment as a result of tobacco legislation benefitting Levin” (Appendix B,
p. 10) evidences the highly distorted reading that suffuses the Recommendation.
Milkovich denies First Amendment protection to false statements or
false implications of fact which a speaker tries to clothe merely as an opinion, not
as a fact. Judge Allen’s opinion did not, a la Milkovich, state or imply that he
thought Judge Kahn had acted corruptly. He did think Judge Kahn should not
have sat on the Childers case, and he did write that “a member of the public
familiar with the reported relationships between these persons, and also familiar
with the political process” could be suspicious and “cause the public to question
the impartiality of our decisions.” 936 So. 2d at 627, 628. But that was his
opinion about how the public might see the matter, and it was presented to explain
his vote, not to express or imply the truth of the facts that could cause doubts about
impartiality:
I cast my vote for consideration of this case by the full court not to affect the outcome of the ultimate decision but to see that the ultimate decision of this court is made by judges unblemished by public suspicion. The threat this case presented to the
36
reputation of this court, in my judgment made it a case of exceptional importance.
Id. At 629.
The Hearing Panel’s other offered cases fare no better. State ex rel
Florida Bar v. Calhoun, 102 So. 2d 604, 608 (Fla. 1958) is cited for the
proposition that a lawyer’s false and scandalous allegation can impair the
administration of justice. Appendix B, p. 13. Calhoun’s calumny was to falsely
and directly accuse a circuit judge of accepting a bribe. Other cases cited for the
concept that “[u]nfounded accusations of corruption have long been treated
seriously” (Appendix B, p. 16) suffer the same flaw as does the Panel’s Milkovich
analogy: Judge Allen did not accuse Judge Kahn of acting corruptly. That some
uncareful reader might read the opinion that way does not suffice. In the proffered
cases, the lawyers’ statements directly and falsely alleged judicial misdeeds. Cerf
v. State, 458 So. 2d 1071, 1072 (Fla. 1984) (decision made to “give one of his
cronies a political appointment, and for no other reason”); State ex rel Kirk v.
Maxwell, 19 Fla. 31 (1882) (“Judge did in a spirit of prejudice and antagonism to
petitioner prosecute and conduct said suit . . . in neglect of and in violation of his
duty”).
The Hearing Panel attempts to counter the undisputed documents and
37
testimony that Judge Allen was motivated by concern for the reputation of the
court, by citing cases from Indiana, Ohio, Massachusetts, Minnesota and Texas
that condemn lawyers’ false statements against judges. Appendix B, p.17. That
effort fails for the reason advanced repeatedly above – Judge Allen’s opinion did
not accuse Judge Kahn of corruption. Readers may take what they wish from a
printed page, but there is no principled way to equate Judge Allen’s printed words
with the statements that prompted the lawyer discipline cases to which the Hearing
Panel resorted. The Panel cites those cases because, in its words, it found “no
controlling case . . . .” (Appendix B, p. 15), but the cases it cites are no precedent
for this case and do not support its conclusions of law in this case.
That the Panel misconceived the concurring opinion’s plain language,
misapplied the law to the documentary and testimonial evidence and erred in its
“Conclusions of Law” is established by its misstatement of Judge Allen’s judicial
independence defense. The Hearing Panel wrote: “Judge Allen also contends
that his opinion is protected by the First Amendment, and may not form the basis
of disciplinary proceedings.” Appendix B, p. 14. Judge Allen has not raised a
First Amendment defense because the First Amendment does not broadly apply to
protect from sanctions official speech by a government officer. See Waters v.
Churchill, 511 U.S. 661, 672-73, 114 S.Ct. 1878, 128 L.Ed 2d 686 (1994). The
38
Panel’s analogies to defamation cases and litigation privileges (Appendix B, pp.
17-18) are also irrelevant as a matter of law (and as a matter of fact because the
opinion made no false statement of fact). Thus the offering of Florida Bar v. Ray,
797 So. 2d 556 (Fla. 2001) in which lawyer Ray made “utterly false” accusations
against a judge (id. at 557) is wholly inapposite, as is the litigation privilege
doctrine embodied in Levin, Middlebrooks, Mabie, Thomas, Mayes, Mitchell, P.A.
v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). In sum, the Panel’s legal
analysis is flawed from start to finish. We do not dispute that a false
accusation of judicial corruption harms public confidence in the integrity and
impartiality of the judiciary. But Judge Allen’s concurring opinion did not make
such a charge. Therefore there was no violation of any Code of Judicial Conduct
Canon and no case cited by the Panel supports its contrary conclusions of law.
39
III.
THE DOCTRINE OF JUDICIAL INDEPENDENCE PRECLUDED THE JUDICIAL QUALIFICATIONS
COMMISSION FROM FILING CHARGES AGAINST JUDGE ALLEN BASED UPON THE PUBLISHED
OPINION THAT WAS WITHIN HIS OFFICIAL DUTY
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, or based upon the content of
the opinion. No JQC proceeding has ever been initiated against an appellate judge
in Florida based on the content of what was written in a published opinion, or
asking why the opinion was written. The Montana Supreme Court rejected the
only reported effort to sanction an appellate judge for his opinion with this caution
and concern for judicial independence:
It [the opinion] is characterized by the Commission as “intemperate” but the language quoted is not profane or vulgar. It may not have been pleasant for the majority in McKenzie 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. 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.
40
State ex rel Shea v. Judicial Standards Commission, 643 P.2d 210, 223 (Mont.
1982). The court held that “[d]isciplinary proceedings should not apply to the
decisional process of a judge. Otherwise judges would be as concerned with what
is proper in the eyes of the Commission as with what is justice in the cause.” Id.
at 223.7
7Judge Shea’s dissent in the McKenzie case stated:
“‘This court no more granted a fair review to defendant than the citizens of Pondera County could have given him a fair trial. The people of Montana can be well advised there is no law in the State of Montana.’ P.1236 ‘It is intellectual dishonesty for the majority not to recognize that the combination thereof is a radical departure from existing interpretations of constitutional law in this state * * * *’ P.1238 ‘And this is not the only manner in which the opinion is rather slippery with the facts.’ P.1250 ‘The dishonesty of the majority opinion is manifest* * * *’ P.1260"
Shea, 643 P. 2d at 213. The Hearing Panel sought to footnote away State ex rel. Shea by saying that Judge Shea’s criticism was “of the majority decision, not a personal attack on a particular judge.” Appendix B, p. 13, n.7 (emphasis in original). It is almost amusing that a Panel so concerned about how the public might read (misread) an opinion mentioning a single judge’s participation in a
41
Decisional independence is central to judicial independence. Former
Tennessee Supreme Court Justice Adolpho A. Birch, Jr. described it this way:
“Judicial independence is the judge’s right to do the right thing or, believing it to
be the right thing, to do the wrong thing.” See American Bar Association, ABA
Standing Committee on Judicial Independence.8 Judicial independence is not a
platitude; it is a promise that judicial decisions will not subject judges to sanctions
because there are those who disagree with the decision. To question by threat of
sanction the reason for, the wisdom of, or the “motive” for a decision, is a gross
intrusion into judicial independence.
An analogy to judicial immunity is apt. The Supreme Court of
Pennsylvania in In the Matter of XYP, 523 Pa. 411, 567 A.2d 1036 (Pa. 1989),
explained the reasons for insulating a judge from an inquiry into an opinion in
which the judge made highly disparaging remarks about some lawyers:
case, would believe that directly accusing a majority of a Supreme Court of a dishonest opinion, and telling the people of the state that “there is no law in the State,” would not wreak havoc with public confidence in the judiciary. The Hearing Panel’s footnote demonstrates the weakness of its denial of Judge Allen’s motion to dismiss on judicial independence grounds. 8 See, http://www.abanet.org/judind/aboutus/home.html
We believe, however, that it is necessary to limit the investigatory power of the [Judicial Inquiry and Review Board] JIRB in cases such as this where the sole focus of inquiry
42
is a judicial opinion. Otherwise, fear of investigation by the JIRB might unduly inhibit and chill judges in the performance of their duties.
* * *
Judicial immunity rests upon a recognition of the necessity of preserving an independent judiciary, and reflects a belief that judges should not be hampered by fear of vexatious
43
suits and personal liability. It also reflects a view that it would be unfair to expose judges to the dilemma of being required to render judgments while at the same time holding them accountable to the judgment of others. As stated in Stump v. Sparkman, 435 U.S. 349, 363, 98 S.Ct. 1099, 1108, 55 L.Ed. 2d 331, 343 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1872)), “the doctrine of judicial immunity is thought to be in the best interests of ‘the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself.’” See also Binder v. Triangle Publications, Inc., 442 Pa. 319, 323-24, 275 A.2d 53, 56 (1971) (“The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. [”]). Thus, the JIRB is hereby directed to refrain from initiating such investigations.
Id. at 1039 (emphasis in original). A published appellate opinion speaks for itself. To permit the
Judicial Qualifications Commission to delve into a judge’s reason for his or her
opinion or the meaning and interpretation to be given to the opinion, is to open the
door to a grave threat to both judicial independence and public respect for the
judicial process. Twelve of the fifteen judges of the First District Court of
44
Appeal were witnesses in a public trial that delved into the decision-making
processes of the various judges and their opinions of the reasons and motivations
of their brothers and sister on the bench. The proceeding was unprecedented and
it is hard to minimize the dangerous precedent such a proceeding into judicial
minds portends for the future. The JQC’s attempts to justify its inquiry has no
support in Florida or American law.
Throughout these proceedings the JQC offered In re Richard A. Kelly
Circuit Judge, 238 So. 2d 565 (Fla. 1970) as its main rationale for seeking
sanctions against Judge Allen (“Special Counsel relies heavily on In re Kelly”
(Appendix B, p.14)). Even the Hearing Panel rejected Kelly as inapt: “Kelly is not
on all fours because the content of Judge Allen’s opinion is squarely at issue here. .
. .” Appendix B, p. 15 (emphasis supplied).
But no decision of this Court (or any other court) supports a JQC
sanctioning inquiry into the content, reasons, or motive of, or for, an appellate
decision. Judge Allen sought to prohibit that inquiry before the hearing. This
Court denied extraordinary writ relief “without prejudice.” Order of May 20,
2008. Now the Court should grant relief and reject the Findings of Fact,
Conclusions of Law and Recommendation because the Investigative Panel should
not have proceeded against Judge Allen based on the content of, and motive for,
45
his concurring opinion.
46
CONCLUSION
We respectfully request that the Court reject the Hearing Panel’s
Findings, Conclusions and Recommendation because no JQC charges should have
been brought based upon the content of, or motive or reason for a published
appellate decision. In the alternative, the Panel’s Findings, Conclusions and
Recommendations should be rejected because there is no clear and convincing
evidence that Judge Allen was motivated by ill will and/or that what he wrote
brought the court, the judiciary, or the impartiality of the judicial system into
disrepute. Indeed, as Willie Meggs, the longtime State Attorney, and one of Judge
Allen’s character witnesses, testified:
When I read that opinion, my first reaction to that was to call Mike Allen and I told him that I had never been as proud of anybody in my life as I was of him for that opinion he wrote.
T-609.
Some may be proud and some may disagree, but Judge Allen should
not have been subjected to a JQC proceeding for writing his reason for voting to go
en banc in Childers v. State.
47
Respectfully submitted, BRUCE S. ROGOW Florida Bar No. 067999 CYNTHIA E. GUNTHER Florida Bar No. 0554812 BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite 1930 500 East Broward Blvd. Fort Lauderdale, FL 33394 Ph: (954) 767-8909 Fax: (954) 764-1530 and SYLVIA WALBOLT Florida Bar No. 33604 CARLTON FIELDS, PA P.O. Box 3239 Tampa, FL 33601 Ph: (813) 223-7000 Fax: (813) 229-4133 and RICHARD MCFARLAIN Florida Bar No. 52803 2014 Golf Terrace Drive Tallahassee, FL 32301 Ph: (850) 878-3343 and GUY BURNETTE, JR. Florida Bar No. 236578 3020 N. Shannon Lakes Drive Tallahassee, FL 32309 Ph: (850) 668-7900 Fax: (850) 668-7972 By: BRUCE S. ROGOW Counsel for Judge Michael Allen
48
49
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished to counsel listed below, by U.S. Mail this 12th day of
August , 2008:
F. WALLACE POPE, JR. JENNIFER A. REH JOHNSON, POPE, BOKOR, et al. P.O. Box 1368 Clearwater, FL 33757 MARVIN BARKIN Interim General Counsel 2700 Bank of America Plaza 101 E. Kennedy Blvd. Tampa, FL 33601-1102 HONORABLE PAUL BACKMAN CHAIRMAN, HEARING PANEL BROWARD COUNTY COURTHOUSE 201 S.E. 6th Street, Suite 5790 Fort Lauderdale, FL 33301
BROOKE S. KENNERLY EXECUTIVE DIRECTOR JUDICIAL QUALIFICATIONS COMMISSION 1110 Thomasville Road Tallahassee, FL 32303 LAURI WALDMAN ROSS, LAURI WALDMAN ROSS, P.A. Two Datran Center, Suite 1612 9130 South Dadeland Blvd. Miami, FL 33156-7818 Counsel to the Hearing Panel _____________________________ BRUCE S. ROGOW
50
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing is in compliance with Rule
9.210, Fla.R.App.P., and is prepared in Times New Roman 14 point font.