IN THE SUPREME COURT OF FLORIDA JUDGE TURNER S RESPONSE TO JQC S REPLY TO JUDGE TURNER S RESPONSE TO RULE TO SHOW CAUSE

Transcription

1 IN THE SUPREME COURT OF FLORIDA INQUIRY CONCERNING A JUDGE, NO / CASE NO. SCO RE: N. JAMES TURNER JUDGE TURNER S RESPONSE TO JQC S REPLY TO JUDGE TURNER S RESPONSE TO RULE TO SHOW CAUSE DEREK B. BRETT Florida Bar No.: The Brett Law Firm, P.A. 231 East Colonial Drive Orlando, Florida (407) (Telephone) (407) (Facsimile) Attorneys for Respondent

2 Title Table of Contents Page No. Table of Citations iii-v Preliminary Statement...1 I. Responses to the JQC Reply Brief A. Response to Charge No The JQC failed to consider Judge Turner s efforts to comply with the Canon on solicitation as a mitigating factor Canon 7(C)(1) is unconstitutional 4-8 B. Response to Charge No Analogous Cases Involving Campaign Finance Issues a) In re Colodny...11 b) In re Rodriguez c) In re Pando C. Response to Charges No. 8 and D. Response to Charge No I. Judge Turner s Discipline Should Be Consistent With Other, Similar Cases A. Analogous Cases Demonstrate that Discipline in the Case-at-Bar Should Not Result in Removal a) In re Albritton b) In re Eriksson

3 c) In re Holloway...24 d) In re Kinsey e) In re Downey Standards for Removal of a Judge II. Conclusion Certificate of Service Certificate of Type Size and Style...33

4 Federal Cases: Bauer v. Shepard, 620 F.3d 704, 710 (7 th Cir. 2010) Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct (2009). 5, 6 Carey v. Wolnitzek, 614 F.3d 189, 198 (6th Cir. 2010) , 8 CitiMortgage, Inc. v. Gordon, Case No CA Citizens United v. Federal Election Comm n, 558 U.S.,130 S.Ct. 876 (2010)..5 McComish v. Bennett, S.Ct., 2011 WL (U.S.), 79 USLW Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir. 1977).4, 5 Republican Party v. White, 536 U.S. 765, ,122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).7, 8 Republican Party v. White, 416 F.3d 738, (8 th Cir. 2005)....8 Siefert v. Alexander, 619 F.3d 776 (7 th Cir. 2010)....7 Weaver v. Bonner, 309 F.3d (11 th Cir. 2002)...8 Wersal v. Sexton, 613 F.3d 821, (8th Cir. 2010) State Cases: In re Alley, 699 So.2d 1369 (Fla. 1997)..12 In re Albritton, 935 So.2d 1 (Fla. 2006).22 In re Colodny, 51 So.3d 430 (Fla. 2010) In re Downey, 937 So.2d 643 (Fla. 2006) The Eighth Circuit granted the State s petition for en banc rehearing and the original opinion was vacated. No citation is available.

5 In re Eriksson, 36 So.3d 580 (Fla. 2010) 23 In re Ford-Kaus, 730 So. 2d 269 (Fla. 1999).28 In re Garrett, 613 So. 2d 463 (Fla. 1993)...28 In re Graziano, 696 So.2d 744, 753 (Fla.1997).28 In re Henson, 913 So.2d 579 (Fla. 2005)...15 In re Holloway, 832 So.2d 716 (Fla. 2002) 24 In re Johnson, 692 So. 2d 168 (Fla. 1997).28 In re Kinsey, 842 So.2d 77 (Fla. 2003)...24 In re LaMotte, 341 So.2d 513, 517 (Fla. 1977).. 27 In re McMillan, 797 So.2d. 560 (Fla. 2001) 12, 27 In re Pando, 903 So.2d 902 (Fla. 2005) 13, 14 In re Renke, 933 So.2d 482 (Fla. 2006)..27 In re Rodriguez, 829 So.2d 857 (Fla. 2002).12 In re Shea, 759 So. 2d 631 (Fla. 2000). 27, 28 In Re Sloop, 946 So.2d 1046 (Fla. 2007) 28 Inquiry Concerning Davey, 645 So.2d 398 (Fla. 1994)..18 Constitution: Article V, 12(c)(1) of the Florida Constitution..21, 29 Canons of Judicial Ethics: Canon

6 Canon Canon 7C(1)..4, 8

7 IN THE SUPREME COURT OF FLORIDA INQUIRY CONCERNING A JUDGE, NO / CASE NO. SCO RE: N. JAMES TURNER JUDGE TURNER S RESPONSE TO JQC S REPLY TO JUDGE TURNER S RESPONSE TO RULE TO SHOW CAUSE Judge N. JAMES TURNER, by and through his undersigned counsel, files this Response to the Reply Brief of the JQC filed on March 28, PRELIMINARY STATEMENT As stated in Judge Turner s Response to Order to Show Cause, the findings of the Hearing Panel of the Judicial Qualifications Commission (hereinafter referred to as JQC ) do not warrant the removal of Ninth Circuit Judge N. James Turner (hereinafter referred to as Judge Turner ). This conclusion is supported by (1) a review of case facts contained, herein, and (2) cases involving comparable or more serious conduct wherein the respondent judge was subject to sanctions short of removal. 2 Removal sanctions are inappropriate. There since there is no evidence that the misconduct was repeated, intentional, deceitful, or constituted direct action with a designed purpose which cast aspersions and doubt onto the heart of the 2 In their Reply Brief, Special Counsel for the JQC failed to rebut the cases cited by Respondent regarding disparate discipline and the need for mitigation.

8 judicial system. Rather, there is ample proof that the conduct here was the result of mistakes and/or errors in judgment that do not implicate the decision-making ability of Judge Turner to continue his service to the citizens of the Ninth Judicial Circuit. I. RESPONSES TO THE JQC REPLY BRIEF Judge Turner hereby presents the following responses to the JQC s Reply to Judge Turner s Response to Rule to Show Cause. A. Response to Charge No The JQC failed to consider Judge Turner s efforts to comply with the Canon on solicitation as a mitigating factor. In its Reply Brief, the JQC belittles Judge Turner s explanation for how the final that is the subject of this charge was ultimately drafted. Again, Judge Turner admits that he was aware of the rule prohibiting personal solicitation and made a good faith effort to comply with the rule by modifying the Stockton Reeves letter and referring the recipients to his Campaign Finance Committee. Furthermore, at no time in these proceeding has Judge Turner attempted to deflect blame for this violation. See JQC Reply Brief at page 7. Judge Turner accepted responsibility for these actions. However, at the time the was sent, Judge Turner believed that he had sufficiently modified Reeves s to be in compliance with the rule regarding direct solicitations.

9 The point to be made is that the in question was not a deliberate attempt to circumvent the Canons of Ethics. Judge Turner knew the rule and made a goodfaith attempt to comply. The JQC, in its Reply Brief at page 7, states Nevertheless, Judge (then candidate) Turner sent a letter by to all members of the Florida Bar in Orange and Osceola counties on August 27, 2008, asking recipients to consider making a contribution to my campaign and inviting them to call him and speak to him 3 personally regarding the campaign. (Emphasis added). The JQC makes the following statement in its Reply Brief at page 8: Regardless of any professed intention, it is undisputed that in the letter, Judge Turner personally sought campaign funds and invited the potential donors to contact him directly. These statements, above, constitute mischaracterizations of the language, intent and purpose of the . Further, the JQC s characterization of these two separate clauses, i.e., campaign contributions and speak to me directly improperly suggest, that they are a part of the same sentence. In actuality, the pertinent language of the states If you would consider making a contribution to my campaign to help me communicate our message to the voters of this judicial circuit, please let me know and I will have someone from my 3 The bold, italicized language in nowhere in the final .

10 Campaign Finance Committee 4 contact you. And, please do not forget to vote in the upcoming November 4th General Election. For more information or to speak-to me personally, please call me at (407) (Emphasis Added). Judge Turner submits that the position of the sentence at the end of the asking voters to contact him directly for more information, does not necessarily pertain to solicitation of campaign funds. 2. Canon 7(C)(1) is unconstitutional. Notwithstanding the foregoing, the Canon on direct solicitation has been deemed unconstitutional by several courts pursuant to the First Amendment of the United States Constitution. Special Counsel for the JQC argues that the standard to be used in this caseat-bar regarding Respondent s First Amendment defenses should be examined under a lesser standard than strict scrutiny. In reliance on this argument, Special Counsel cites to Morial v. Judiciary Commission, 565 F.2d 295 (5th Cir. 1977), decided over thirty-three (33) years ago. 4 Canon 7 (C) (1) state that [a] candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. [Emphasis added.]

11 Reliance upon Morial, supra, is misplaced, especially in light of recent case precedent emerging from the Supreme Court. The application of the strict scrutiny standard to political speech was recently reaffirmed by the Supreme Court in Citizens United v. Federal Election Comm n, 558 U.S.,130 S.Ct. 876 (2010). Special Counsel also erroneously relies on the United States Supreme Court s decision in Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, (2009) arguing that the Supreme Court gave proper weight to the state s compelling interest in providing its citizens with a fair and impartial judiciary and maintaining public confidence therein. However, the JQC s arguments constitute a misapplication and improper extension of Caperton when applied against that facts of the case-at-bar. The essential facts in Caperton are that a West Virginia jury found a coal company, A.T. Massey, liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded the plaintiff, Caperton, $50 million in damages. Shortly after the return of the verdict, judicial elections were held in West Virginia. Anticipating that the West Virginia State Supreme Court of Appeals would consider the appeal from the verdict in favor of Caperton, A.T. Massey s chairman and principal officer, supported a challenger for State Supreme Court Justice, rather than the incumbent justice seeking reelection. Moreover, the Massey CEO s

12 $3 million in contributions exceeded the total amount spent by all other supporters of that candidate, as well as the candidate s own committee. The Masseysupported challenger won the election. Before Massey filed its appeal, Caperton moved to disqualify the Masseysponsored Justice under the Due Process Clause and the State s Code of Judicial Conduct, based upon the conflict caused by Massey s serious campaign involvement. The Massey-sponsored Justice denied the motion, indicating that he found nothing showing bias for or against any litigant. However, with this key, swing vote, the West Virginia Supreme Court reversed the $50 million verdict. The Supreme Court granted certiorari. The facts in the Caperton decision involve an extreme and blatant case of judicial corruption. This position is supported by the Caperton opinion, written by Justice Kennedy: Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here-ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case. (Emphasis Added). Consequently, the Caperton decision provides little precedential guidance

13 for this Court regarding the issues involving the First Amendment. The effort by the JQC to tie the current case with that of Caperton is not only inadequate but falls into the disingenuous. Special Counsel relies on two recent decisions from the Seventh Circuit Court of Appeals, Siefert v. Alexander, 619 F.3d 776 (7 th Cir. 2010), and Bauer v. Shepard, 620 F.3d 704 (7 th Cir. 2010) as authority for upholding the constitutionality of the proscription on personal solicitation by judicial candidates. However, these cases are in the minority of all of the other Circuit Courts of Appeal and the United States Supreme Court. Moreover, Bauer v. Shepard, 620 F.3d at 710, makes the following comment on the distinction between in-person solicitations and mass mailings as was made in Carey v. Wolnitzek, 614 F.3d 189, 198 (6th Cir. 2010): The panel in Carey did not question the propriety of limits on inperson solicitation, where the possibility of reward or retaliation is greatest, but concluded that Kentucky s rule is substantially overbroad because it covers solicitation by mass mailing. A machine-generated letter with the judge s machine-generated signature is not materially different from a machine-generated letter with a campaign committee s imprimatur, the court concluded. It is a mass mailing solicitation that is before this Court, not an in-person solicitation. When the Supreme Court evaluated the First Amendment rights of judges and judicial candidates in the seminal case of Republican Party v. White, 536 U.S.

14 765, , 122 S.Ct (2002), it did so through the lens of strict scrutiny (as did even those justices writing in dissent). Every circuit court to follow has done the same. See, e.g., Weaver v. Bonner, 309 F.3d 1312, 1319 (11th Cir. 2002);. Wersal v. Sexton, 613 F.3d 821, (8th Cir. 2010) 5 ; Carey v. Wolnitzek, 614 F.3d at 198 (6th Cir. 2010); Republican Party v. White, 416 F.3d 738, (8th Cir. 2005). The Georgia Supreme Court, in response to the decision in Weaver v. Bonner, changed the language of its previous version of Canon 7. What follows is the commentary to that revised Canon: Commentary: Although judges and judicial candidates are free to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F 3d 1312 (11th Cir. 2002), they are encouraged to establish campaign committees of responsible persons to secure and manage the expenditure of funds for their campaigns and to obtain public statements of support of their candidacies. Weaver, supra, is the controlling law in the Eleventh Circuit as to the application of Canon 7C(1). Judge Turner respectfully urges this Court to follow the majority of the Circuit Courts of Appeals and the United States Supreme Court and rule that Canon 7(C)(1), both facially and as applied, is unconstitutional under the First Amendment to the United States Constitution. 5 The Eighth Circuit granted the State s petition for en banc rehearing and the original opinion was vacated.

15 B. Response to Charge No. 7 The JQC found Judge Turner guilty of Paragraph 7 of the Third Amended Formal Charges alleging a violation of the $ limitation on campaign contributions based on a loan from his mother. It is undisputed that Judge Turner took a loan from his mother in the amount of $44, (T ) The loan was disclosed in reports filed with the Division of Elections. (T. 613, 655) (JQC Panel Exhibit 3 at page 4). In turn, Judge Turner loaned his campaign a total of $30, Special Counsel points out that Judge Turner did not report this loan on Form 6 for 2009 or Special Counsel also points out that the Hearing Panel found, Judge Turner was completely in charge of his campaign finances, held a B.S. in accounting and an LL.M. in taxation, and even briefly practiced as a tax lawyer. (Findings and Conclusions, p. 35). The implication is that Judge Turner intentionally attempted to cover-up the loan/gift. As explained in the original response, the $44, that Judge Turner received from his mother was intended to be a loan and was originally reported as such. Unfortunately, following the election and the recalculation of all debts, it 6 6 The constitutionality of such limits is once again, subject to argument before the U.S Supreme Court. Already, in Citizens Untied, supra, the Court struck down federal campaign finance limitations. Recently, the Court heard arguments in McComish v. Bennett, --- S.Ct. ----, 2011 WL (U.S.), 79 USLW 3536, involving a similar challenge to state campaign finance restrictions.

16 became apparent that Judge Turner would be unable to repay the loan over the long term. (T. 1206) In July 2009, following the Madoff debacle, Turner s mother s life savings were completely wiped out. Judge Turner and his mother pondered how to treat the loan since Judge Turner s monthly expenses made it impossible for him to repay the amount. Consequently, Judge Turner and his mother agreed that she would relocate from Miami-Dade County and live with him in his Orlando-area home. (T. 615) Again, Judge Turner concedes that he inadvertently failed to report the $44, loan on his Form 6 for either 2009 or However, nothing at all would be served by intentionally covering up this transaction. Judge Turner submits that whether or not the money received from his mother should have been reported on Form 6, there was nothing to be gained by intentionally concealing the transaction. The loan of $44, had already been disclosed immediately after the election. Again, there is no evidence to suggest that the failure to report the gift/loan on Form 6 for 2009 was willful. 7 Indeed, there would be no motivation to conceal such a gift of a subsequent Form 6 from a family member as the purpose of the 7 In its Reply Brief, Special Counsel for the JQC totally overlooks and disregards Judge Turner s argument he had nothing to gain by not reporting the loan/gift on subsequent Form 6 filings after the election.

17 disclosure requirement is to ensure that a public official is not being influenced by persons who appear before him through loans or gifts. All evidence establishes that the failure to report the gift was an innocent oversight that resulted in neither harm to any party, nor to the public. Further, this oversight cannot be imparted as impacting the ability of Judge Turner to serve within his judicial capacity. Special Counsel disregards the analogous cases cited in Judge Turner s Response to the Order to Show Cause by stating that the violations in the case-atbar are more numerous that in the cases cited. Analogous Cases Involving Campaign Finance Issues It is critical to review the cases previously cited in Respondent s Reply to Order to Show Cause. The JQC ignored these cases that involve egregious campaign finance violations and involve lesser punishments recommended by the JQC and adopted by this Court. a) In re Colodny While Judge Colodny has fewer violations than Judge Turner, she failed to disclose the loan from her parents on Form 6. Judge Turner disclosed his loan immediately after the campaign ended. Judge Colodny was penalized for her campaign violations. This penalty stands in sharp contrast to that recommended for Judge Turner Colodny received a $5, fine and a public reprimand.

18 b) In re Rodriguez In re Rodriguez, 829 So.2d 857 (Fla. 2002) presented a situation of gross violations of the campaign finance laws. Judge Rodriguez engaged in repeated misrepresentations; efforts designed to conceal these violations including filing false statements, and a more significant amount of money with a clear nexus of such funds being designed to influence the judicial process. See Judge Turner s Response to Order to Show Cause at page 19. The facts of Rodriguez reflect severe, repeated, and purposefully deceitful misconduct. That case reflects circumstances significantly more aggravated than the violation by Judge Turner. In contrast to the actions of Judge Rodriguez, after his election, Judge Turner promptly informed the Division of Elections of the loan from his mother. Judge Turner submits that Judge Rodriguez s offenses were more numerous and more serious than his. In explaining its rationale for limiting the discipline imposed on Judge Rodriguez, the Investigative Panel stated: 8. Although there is no evidence suggesting that these actions by Judge Rodriguez directly affected the choice of individual voters (See In re Alley, 699 So. 2d 1369 (Fla. 1997) and In re McMillan, 797 So. 2d 560 (Fla. 2001), these actions have had the effect of adversely affecting and impairing the public perception of the judiciary. (Emphasis Added).

19 (Emphasis Added). 9. However, the Investigative Panel believes it essential to take note and comment on certain circumstances in this case. The Respondent has had an exemplary record personally, professionally and on the bench. She has acknowledged the impropriety of her conduct. The Investigative Panel believes her to be sincere in the apologies which she has and continues to express for that conduct. The criminal charges against her were dismissed. Moreover, she has submitted evidence suggesting that her actions were committed negligently rather than as part of a pervasive scheme to evade the election laws. Although, the Investigative Panel believes its findings are clearly supported by convincing evidence, it does not believe that the evidence supports a recommendation of discipline beyond that set forth herein. The record in this case shows that Judge Turner also has an exemplary record personally, professionally and on the bench. 8 He served his country, served the community and served the Florida Bar. Accordingly, Judge Turner submits that his discipline in extreme as compared to the discipline received by Judge Rodriguez. c) In re Pando 8 In the 2009 CFACDL Judicial Poll, Judge Turner received a 3.77 overall rating based on a 5 point scale. His rating was the second highest in Osceola County based on the ratings of four judges. See Respondent s Exhibit No. 2 at page 17. Moreover, the testimony from ten (10) attorneys regularly practicing before him indicated that Judge Turner was an above average Circuit Judge.

20 In In re Pando, 903 So.2d 902 (Fla. 2005), the JQC and the respondent judge stipulated that during the course of her 1998 and 2000 election campaigns, Judge Pando: 1. knowingly or recklessly accepted a loan from her mother in excess of the $ statutory limit that was made for the purpose of influencing the results of an election; 3. accepted numerous loans from her mother and her stepfather that were in excess of the $500 statutory limit; 4. knowingly or recklessly violated statutory reporting provisions by misrepresenting the source of these loans in her campaign finance reports; and 5. made misleading statements in her deposition by special counsel for the JQC regarding the source of a purported $25, loan. Judge Pando had purposely concealed the source of campaign funds, and then made misleading statements when questioned by the JQC about her loan. In contrast, Judge Turner reported and disclosed the sources of the loan. Judge Pando s offenses were more numerous and more serious than anything attributed to Judge Turner. C. Response to Charges No. 8 and 9 The JQC found Judge Turner guilty of filing a Notice of Appearance on behalf of his mother in mortgage foreclosure proceedings pending litigation in

21 Miami-Dade County, Florida (CitiMortgage, Inc. v. Gordon, Case No CA01). In his Answer, Judge Turner admitted the allegations set forth in paragraphs 8 and 9 of the Notice of Third Amended Formal Charges and accepted full responsibility for his actions. Contrary to what is stated by Special Counsel in its Reply Brief at page 21, Judge Turner does not seek to be excused for his actions because he is an only child helping his destitute mother and that he misinterpreted Canon 5. Special Counsel is correct in stating that ignorance of the law is no defense. Judge Turner posits these facts only as mitigating factors. Further, Judge Turner s conduct should be and cannot be compared to that of the respondent judge in In re Henson, 913 So.2d 579 (Fla. 2005). Rather, all evidence reflects that Judge Turner honestly, albeit mistakenly, believed that his conduct was permitted in that he was representing a family member, his mother, in a mortgage foreclosure action. This was not an instance of poor judgment, or a purposeful or intentional disregard for the canons, but rather a mistake on the part of a new judge. D. Response to Charge No. 10 Special Counsel s Reply Brief at page 23, n. 6, states that [t]he record of the final hearing is replete with testimony regarding Judge Turner s bizarre and inappropriate behavior at the courthouse, including his improper treatment of a number of subordinate female employees, not just Heather Shelby.

22 This statement is misleading and highly prejudicial. First, none of these charges were sustained by the Hearing Panel. Second, the record is also replete with testimony that directly controverts these allegations, to wit: from Judge Turner s current Judicial Assistant; 9 two (2) courtroom clerks who served with Judge Turner on a daily basis; 10 two of his courtroom deputies; 11 and ten (10) attorneys that practice in front of Judge Turner on a daily basis. 12 Special Counsel s Reply Brief contains additional misrepresentation regarding the actual hearing testimony. For example, Special Counsel s Reply Brief at page 25 states that Judge Turner told Ms. Shelby that he had a great feelings about her... The actual quote from the transcript is He had a great feeling around you? (T 213). (Emphasis Added). Further, Special Counsel misstates the record wherein in its Reply Brief at page 24, n.7, it states Even in his Brief Judge Turner admits to hugging Ms. Shelby on several occasions and regularly going to her work area to inquire into her personal life. (Brief, p. 8). (Emphasis Added) Ida Arredondo (T ) Jamie Hunt (T ) and Samantha Lemmons (T ). Deputy Daniel Rivera (T ) and Laurence Wilson (T ). 12 Eve D Lugo (T ); Julie Weinberger (T ); Alecia Reading ( ); Dugald McMillan (T ); John Gillespie (T. 925); Allison Lopes (T ); Robert Holborn (T ); Jenny Almanzar-Vargas (T ); Gail Silva (T ); and Steve Tinsley (T ).

23 The actual quote from Respondent s Brief at Page 8 thereof is: Judge Turner acknowledges that he went to the second floor of the Courthouse on a regular basis to obtain petitions for domestic violence injunctions for review and inquire as to the welfare of Shelby and her son. (T. 608, 683, 1154) (Emphasis Added). Special Counsel s Reply Brief at page 25 fallaciously argues that Judge Turner had an unhealthy and unsettling interest in Ms. Shelby s 12-year old son. This is a blatant misrepresentation and is not only inappropriate, suggesting a stated personal conclusion, but is contradicted by the facts in the record. Special Counsel s Reply Brief at page 31 states that Judge Turner presents a sanitized version of the Phantom of the Opera incident. Contrary to this assertion, Judge Turner s version is supported by the record. (T ). Moreover, this testimony is supported by physical evidence of Turner s cell phone records. 13 Moreover, Special Counsel s argument that Ms. Shelby did not invite Judge Turner to the Bob Carr Theatre to take photographs lacks any credibility. Shelby testified that Judge Turner told her that intermission was at 8:30 p.m. (T. 238) 13 See Entries No. 71 on page 2 of Respondent s Exhibit 27 from (321) and No. 72 on page 2 of Respondent s Exhibit 27 from (407)

24 However, Shelby called Judge Turner at 9:23pm, and left a message to advise that it was intermission, and requested travel to the theatre and take the promised photographs. (T. 1134) Judge Turner called her back at 9:29pm on January 30, 2010 and said: I ll be right there. (T. 1134) He then drove to the theatre, met with Heather Shelby and her son, and took the photographs. (T. 1135) Shelby and Judge Turner necessarily discussed where they would meet to take the photographs. Otherwise, how would they find each other at the intermission of a blockbuster play at a congested and large theatre? Based on these conflicts and inconsistencies, it can hardly be said that here is clear and convincing evidence of guilt as to this Charge. 14 The history of the relationship is one of Judge Turner attempting to assist a court employee by demonstrations of compassion and concern. For example, in partial recap: 1. Judge Turner gave Heather Shelby the book When Bad Things Happened to Good People. (T. 256) 2. Judge Turner regularly asked about Shelby s welfare and the welfare of her son. 14 [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The 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 Davey, 645 So.2d 398 (Fla. 1994).

25 3. Judge Turner visited Heather Shelby at her work station of the Second Floor of the Courthouse. 4. Judge Turner took photographs of Shelby and her son at Bob Carr Theatre on January 30, 2010, after she called him from the theater to tell him that it was intermission and that he could drive over and take photos. (T ) 5. Judge Turner offered to look into obtaining financial assistance for Ms. Shelby to help cover medical expenses. (T. 222) 6. Heather Shelby testified that she did not believe that Judge Turner s intentions were romantic or sexual. (T. 252) 7. Heather Shelby testified that she did not she did not believe that Judge Turner was intentionally trying to make her feel uncomfortable. (T. 252) On December 4, 2009, Chief Judge Belvin Perry advised Judge Turner that a sexual harassment complaint had been filed against him. However, Judge Perry refrained from informing Judge Turner of the name of the complainant. (T. 1184) Heather Shelby testified that she complained about Judge Turner as early as August (T. 251) However, no one ever informed Judge Turner that he was making Ms. Shelby uncomfortable. Judge Turner submits that such a meeting informing him of the problem would have solved the problem; and, there is no evidence to suggest otherwise. Instead, Judge Turner was kept in the dark about these concerns until March The undisputed evidence in this case is:

26 1. Judge Turner never made any romantic or sexual advances toward Heather Shelby. (T. 252, 254) 2. Judge Turner never made any inappropriate comments to her. 3. Judge Turner never made any demeaning or degrading remarks to her. 4. Judge Turner never received any indication that he was making Ms. Shelby feel uncomfortable. (T. 683, 685, 701, 1130, ) 5. To the contrary, the record clearly reflected that Heather Shelby called Judge Turner from the theatre at intermission for him to drive over and meet her and her son at Bob Carr Theatre for purposes of taking pictures. Respondent respectfully submits that this shows a receptive attitude on the part of Shelby regarding Judge Turner s showing of basic human kindness toward her and her son. (T. 268) 6. At all times, Judge Turner exhibited a humanitarian attitude toward Ms. Shelby. 7. While Ms. Shelby testified that she had her work telephone number changed two (2) times, there is no evidence that he called her on her cell phone after January 30, 2010, even though her had her personal cell phone number. (T. 257, 267) Notwithstanding, the JQC s finding of a violation does not present a situation legitimizing the removal of Judge Turner. Furthermore, as previously presented, Judge Turner has learned to maintain greater detachment from court personnel and continues to receive counseling to assist him with this process. Special Counsel states in its Reply Brief at page 27 that [a]fter this episode, [The Phantom of the Opera incident] court administration changed Ms. Shelby s phone number again to avoid Judge Turner. (T. 267). While Judge Turner has no

27 knowledge that this change of phone numbers took place, there was no testimony that Judge Turner was calling Ms. Shelby. Moreover, as stated above, Judge Turner had Ms. Shelby s cell phone number on January 30, 2010, when she called him from the Bob Carr Theatre. However, there was no evidence that Judge Turner called her on her cell phone after January 30, II. Judge Turner s Discipline Should Be Consistent With Other, Similar Cases. The JQC found Judge Turner guilty of paragraph 13 of the Third Amended Formal Charges and recommended his removal from the bench. With respect to recommendations by the JQC regarding discipline of a judge, Art. V, 12(c)(1) of the Florida Constitution provides that [t]he supreme court may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission. Therefore, this Court has the authority to reject or modify the recommendation of removal to a more appropriate remedy, i.e., a public reprimand. A. Analogous Cases Demonstrate that Discipline in the Case-at-Bar Should Not Result in Removal. The conduct for cases of judicial discipline serve as a basis for future discipline. Although precise comparisons are difficult to make as the conduct is different in each case, there is a reasonable continuum of discipline.

28 Accordingly, the Respondent respectfully submits that judicial disciplinary cases can be broken down into the following several categories: (1) Dishonesty and deceit; (2) abuse of power; (3) intemperate behavior; (4) sexual advances; (5) engaging in political activity; and (6) campaign finance misconduct. Respondent concedes that the list is non-exhaustive, yet covers an array of cases that have come before this Court. Judge Turner submits that a contrast between the facts of his case and other cases where removal was not ordered is necessary in order to understand his position. There, a review of the facts of some of those cases (atop those cited in I(B) at 11-14) is in order. a) In re Albritton In its Reply Brief, Special Counsel for the JQC fails to substantively respond to Judge Turner s arguments of comparable cases. For example, in In re Albritton, 935 So.2d 1 (Fla. 2006), Judge Albritton stipulated to the conduct in 14 of 36 charges filed against him of which the JQC ultimately found him guilty. Judge Albritton s conduct covered a broad range of improper acts which (1) called into question his impartiality, (2) evinced improper courtroom decorum, including intemperate behavior towards litigants, (3) involved his use of judicial office for personal gain, including several instances in which Judge Albritton used his position to pressure attorneys in the community and who practiced before him

29 to expend personal monies for his entertainment, and (4) on one occasion, evinced an intentional and conscious abrogation of the constitutional principles he had sworn to uphold. Judge Albritton was guilty of (fourteen) 14 charges where Judge Turner was found guilty of four (4). Yet, Judge Albritton s misconduct was more extensive and more serious than that of Judge Turner. Further, Judge Albritton was not removed but accepted the recommended, exceedingly less aggravated disciplinary recommendation of the JQC a recommendation which was later adopted by this Court: (1) public reprimand; (2) $5, fine; and (3) a thirty-day unpaid suspension. b) In re Eriksson In its Reply Brief, Special Counsel failed to respond to Judge Turner s arguments regarding the discipline applied in In re Eriksson, 36 So.3d 580 (Fla. 2010), where this Court accepted the recommendation of a public reprimand where judge violated Code of Judicial Conduct by punishing of a criminal defendant by increasing his bond and effectively placing him in jail solely because he indicated his desire for judge s recusal. In addition, the Hearing Panel found that Judge Eriksson and employed an unduly rigid process in dealing with pro se petitioners for domestic violence injunctions.

30 In contrast to the instant case, Judge Eriksson was guilty of an abuse of power and a failure to discharge his judicial duties. Eriksson s transgressions were far more serious that the charges for which Judge Turner was deemed guilty. In similarity to the instant case, Judge Turner has accepted full responsibility for his action and has entered into extensive counseling in response to the charges filed against him. Yet, Judge Eriksson received only a public reprimand. c) In re Holloway In its Reply Brief, Special Counsel failed to respond to Judge Turner s arguments regarding the discipline applied in In In re Holloway, 832 So.2d 716 (Fla. 2002) where this Court accepted the recommendation of a thirty-day (30) suspension where Judge Holloway was found guilty of making materially incomplete and misleading statements in answering deposition questions and executing subsequent errata sheet; requesting a scheduling favor for a family member from a fellow judge; and angrily engaging in an ex parte discussion with another judge in that judge s hearing room. d) In re Kinsey In its Reply Brief, Special Counsel failed to respond to Judge Turner s arguments regarding the discipline applied in In re Kinsey, 842 So.2d 77 (Fla. 2003), where Judge Kinsey was charged with twelve (12) separate counts, with the Panel finding her guilty of nine (9) of those counts. Kinsey received a fine and

31 reprimand for her misconduct misconduct that arguably rose to the level of committing to preordained determination on matters involving law enforcement. e) In re Downey In its Reply Brief, Special Counsel failed to respond to Judge Turner s arguments regarding the discipline applied in In re Downey, 937 So.2d 643 (Fla. 2006), wherein Judge Downey admitted to habitually viewing pornography in his Chambers from 2002 through He further admitted that on at least two (2) occasions, courthouse personnel were unwittingly exposed to pornographic images in his chambers and that he repeatedly ignored s concerning his viewing of pornographic websites and it potential risk to the entire computer network. Additionally, Judge Downey was charged with improper contact with female attorneys. Count III of the Formal Charges specifically alleged that Judge Downey engaged in improper contact and communication with female attorneys; specifically, during 2003 through 2004, he displayed an inordinate interest in a first-year, female assistant state attorney. Thus, in stark contrast to the case-at-bar, Judge Downey received a public reprimand and signed a letter of resignation (at the completion of his current term of office) to take effect upon the finding of probable cause by the Florida Judicial Qualifications Commission of (1) any violation of the Code of Judicial Conduct

32 other than the conduct set forth in the notice of formal charges; or (2) Judge Downey's failure to abide by the terms of this stipulation. In explaining its reasoning in accepting the stipulation, this Court considered that Judge Downey s misconduct occurred at the end of an otherwise long and unblemished record of judicial service and that he admitted to and accepted responsibility for habitually viewing pornography from his computer and in engaging in inappropriate conduct towards two female attorneys. Moreover, Downey had voluntarily sought psychological counseling and shown sincere remorse. Finally, the JQC found no evidence that Judge Downey s misconduct affected his judicial office. In similarity to the case-at-bar, Judge Turner has a long, distinguished and unblemished legal career spanning over thirty-five (35) years. He has contributed to the education of Florida lawyers by publishing four (4) articles in The Florida Bar Journal. 15 In addition, as a Circuit Judge, he presented a seminar for the Osceola County Bar Association on the subject of impeaching witnesses which was well received. Moreover, he has a record of significant community service, especially with Veterans groups. Judge Turner voluntarily sought psychological counseling, has shown sincere remorse for his conduct and has accepted responsibilities for his 15 See Footnote 2, supra. See Response to Rule to Show Cause, at 5 7.

33 actions. Last, there is no evidence that any of Judge Turner s misconduct affected his functions as a judge. 16 To the contrary, the testimony from ten (10) attorneys regularly practicing before him indicated that Judge Turner was an above average Circuit Judge Standards for Removal of a Judge Judges should not be subjected to the extreme discipline of removal except in instances where it is free from doubt that they intentionally committed serious and grievous wrongs of a clearly unredeeming nature. In re LaMotte, 341 So.2d 513, 517 (Fla. 1977); see In re Renke, 933 So.2d 482 (Fla. 2006) (removal based on a series of blatant, knowing misrepresentations found in campaign literature and statements, and the receipt of campaign contributions disguised as compensation that were clearly illegal donations to a judicial campaign in obvious violation of our state campaign finance laws); In re McMillan, 797 So.2d. 560 (Fla. 2001) (removal ordered based on multiple incidents of false and misleading statements during campaign for judicial office, coupled with presiding over case in which judge was complaining witness and lying to commission); In re Shea, 759 So. 2d 16 In the 2009 CFACDL Judicial Poll, Judge Turner received a 3.77 overall rating based on a 5 point scale. His rating was the second highest in Osceola County based on the ratings of four judges. 17 Eve D Lugo (T ); Julie Weinberger (T ); Alecia Reading ( ); Dugald McMillan (T ); John Gillespie (T. 925); Allison Lopes (T ); Robert Holborn (T ); Jenny Almanzar-Vargas (T ); Gail Silva (T ); Steve Tinsley (T ).

34 631 (Fla. 2000) (removal based on multiple incidents of misconduct, including extorting lawyers for personal pecuniary benefit); In re Ford-Kaus, 730 So. 2d 269 (Fla. 1999) (removal based on a pattern of deception incompatible with public office); In re Johnson, 692 So. 2d 168 (Fla. 1997) (removal for falsification of court records); In re Garrett, 613 So. 2d 463 (Fla. 1993) (removal for knowing act of theft). This Court has recognized that the discipline of removal should not be imposed upon a judge unless the Court concludes that the judge s conduct is fundamentally inconsistent with the responsibilities of judicial office. In re Graziano, 696 So.2d 744, 753 (Fla.1997). Again, Judge Turner submits that his conduct in the case at bar is not fundamentally inconsistent with his responsibilities as a judge. Judge Turner submits that a case that should be compared to the conduct at bar and used for guidance in not choosing removal, herein, is In re Sloop, 946 So.2d 1046 (Fla. 2007), in which the JQC Hearing Panel made findings of misconduct and recommended sanctions, including public reprimand, 90-day suspension, and retirement at the end of his current term. This Court rejected the recommendation of the JQC Hearing Panel and concluded from the evidence presented at the final hearing indicated that Judge Sloop had, (on this repeated violation (having come before the Court on a previous

35 occasion for discipline) irreparably damaged public confidence in his judicial authority, and that he lacked the proper judicial temperament and judgment necessary to continue to serve as a judicial officer. Thereafter, this Court concluded that Judge Sloop had engaged in conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, requiring his removal under Art. V, 12 of the Florida Constitution. The conduct in the case-at-bar, while serious, does not compare to the repeated, intentional, direct action the seriously affected the liberty rights of citizens of the State of Florida, thereby casting aspersions and doubt onto the heart of the judicial system. Considering all factors existing in the Sloop matter, when contrasted with Judge Turner s circumstances, the punishment applied to the latter should not culminate in removal. Judge Turner s conduct was not deceitful or fraudulent, nor, did he abuse his power as a judge, as was the conduct other judges who were not removed from office. III. CONCLUSION Judge Turner again respectfully submits that the recommendations of the JQC, herein, are extreme; are inconsistent with those of penalties previously recommended against other judges charged with either similar or more egregious offenses; fails to consider the mitigating circumstances that were brought forth during the course of the Panel hearing; and improperly attempts to amplify, and

36 even miscast, the conduct herein as constituting an inability to continue to serve in a judicial capacity. Indeed, there are ample, alternative options for discipline other than the extreme penalty of removal. These alternative penalties ranging from public reprimand, to a fine, to probation, to a letter of apology would certainly be deemed more consistent with this Court s previous decisions, more consistent with the evidence elicited, and would certainly be deemed more appropriate considering Judge Turner s distinguished legal career and record. WHEREFORE, Judge N. JAMES TURNER, requests this Court reject the recommendations for removal and remand this case to the JQC Hearing Panel for the purpose of imposing appropriate sanctions other than removal. Dated this 7 th day of April Respectfully submitted, DEREK B. BRETT, ESQ. Florida Bar No The Brett Law Firm, P.A. 231 East Colonial Drive Orlando, Florida (407) (office) (407) (fax) derek@thebrettlawfirm.com

37 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this 7th day of April 2011 to the persons listed on the attached Service List. CERTIFICATE OF SERVICE DEREK B. BRETT, ESQ. Florida Bar No Derek B. Brett, Esq. Florida Bar No The Brett Law Firm, P.A. 231 East Colonial Drive Orlando, Florida (407) (office) (407) (fax) derek@thebrettlawfirm.com SERVICE LIST Hon. Belvin Perry, Jr., Chief Judge 425 N. Orange Ave Ste 2010 Orlando, FL (407) John P. Cardillo, Esq East Tamiami Trail Naples, Florida (239) FAX: (239) Michael Louis Schneider, Esq. Judicial Qualifications Commission 1110 Thomasville Road Tallahassee, FL (850) Marvin E. Barkin, Esq. Brooke S. Kennerly, Executive Director Judicial Qualifications Commission 1110 Thomasville Road Tallahassee, FL (850) FAX: (850) Lauri Waldman Ross, Esq S. Dadeland Blvd. Suite 1612 Miami, FL Michael K. Green, Esq. Trenam Kemker, P.A. 101 E. Kennedy Blvd, Ste 2700 Tampa, FL (813) Hon. N. James Turner, Judge

38 Trenam Kemker, P.A. 101 E. Kennedy Blvd, Ste 2700 Tampa, FL (813) Barry W. Rigby, Esq. Law Offices of Barry Rigby, P.A. 47 E. Robinson St., Ste 204 Orlando, FL (407) c/o The Brett Law Firm, P.A. 231 East Colonial Drive Orlando, FL (407)

39 CERTIFICATE OF COMPLIANCE Respondent, JUDGE N. JAMES TURNER, pursuant to Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure, hereby certifies that the size and type style used in this Brief is 14-point Times New Roman. DEREK B. BRETT, ESQ.