BEFORE THE INVESTIGATIVE PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA MOTION FOR PARTIAL SUMMARY JUDGMENT

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1 BEFORE THE INVESTIGATIVE PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A SC JUDGE, NO: / MOTION FOR PARTIAL SUMMARY JUDGMENT The Honorable Clifford H. Barnes, by and through his undersigned attorney, and pursuant to Fla.R.Civ.P , as made applicable by Rule 12(a), FJQCR, hereby moves the Chair of the Hearing Panel, pursuant to its authority under Rule 7(b), FJQCR, for an Order granting Partial Summary Judgment in this case as to Counts 3 and 4 of the Amended Notice Of Formal Charges. In support hereof: 1. The Florida Judicial Qualifications Commission originally served formal charges against Judge Barnes on October 26, An Amended Notice Of Formal Charges was served on March 5, A party against whom a claim...is asserted...may move for a summary judgment in that party=s favor as to all or any part thereof at any time with or without supporting affidavits. Rule 1.510, Fla.R.Civ.P.; Rule 12(a), FJQCR. 4. Summary judgment is appropriate where it is shown that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 1.510, Fla. R.Civ.P.; Rule 12(a), FJQCR.

2 5. Summary judgment or partial summary judgment is available in a judicial discip1inary or removal proceeding. Rule 1.510(c), Fla.R.Civ.P.; Rule 7(b) and Rule 12(a), FJQCR; and Cf., The Florida Bar v. Daniel, 626 So.2d 178, 182 (Fla. 1993) (summary judgment is available in attorney disciplinary proceedings) and The Florida Bar v. Miravalle, 761 So.2d 1049, 1051 (Fla. 2000)(referee has the authority in unlicensed practice of law case to enter a summary judgment under the circumstances, when it is shown there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law). 6. In count 3, & 3, of the Amended Notice Of Formal Charges, the JQC alleges: In violation of Canon 5, you filed a Petition for Writ of Mandamus in the Fourth District Court of Appeal advocating a position that benefits third parties and thereby violating that canon=s prohibition against a sitting judge practicing law. 7. In relevant part, the commentary to Canon 5G of the Code of Judicial Conduct states: G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge=s family. 8. In relevant part, the Commentary to Canon 5G, which provides guidance with respect to the purpose and meaning of the Canons and Sections, states: Canon 5G. This prohibition refers to the practice of law in a representative capacity and not in a pro se 2

3 capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. 9. ARepresentative capacity@ is defined as A(t)he position of one standing or acting for another, especially through delegated authority.@ Black=s Law Dictionary, Seventh Edition, APro se@ is defined as A(f)or oneself on one=s own behalf, without a lawyer.@ Id. 10. ABenefit@ is defined as A1. Advantage; privilege; 2. Profit or gain.@ Black=s Law Dictionary, Seventh Edition, The only reported Florida case interpreting Canon 5G is In re: Henson, 913 So.2d 579 (Fla. 2005). In Henson, during the last weeks of December 2000 and prior to the expiration of his term as a county court judge on January 5, 2001, Henson agreed to represent a criminal client, signed a contract for representation with the client and her father, collected a fee from the client, interviewed the client, arranged for substitute counsel to appear on his behalf at the client=s bond hearing, attended the hearing, and obtained papers necessary to secure the bond at the conclusion of the hearing. Henson at Although there is no dispute that Judge Barnes filed a Petition for Writ of Mandamus in the Fourth District Court of Appeal, (Cliff Barnes, St. Lucie County Judge v. Diamond Litty, Public Defender, et al, Case No. 4D ), there is no genuine issue of material fact that he was the sole petitioner and that 3

4 he was acting in a pro se capacity in filing the Petition. He was acting on his own behalf in enforcing existing laws, rules, and appellate rulings in his jurisdiction and not in a representative capacity for any particular person or class of persons, including third parties. Judge Barnes holds no contract, agreement, or other understanding to represent third parties. Neither have third parties delegated authority to Judge Barnes to so act. He has not entered an appearance on behalf of any person or third parties in the matter of the Petition for Writ of Mandamus nor has he rendered any legal advice to any persons in connection with the Petition. He has not accepted a fee nor waived a fee for any persons in connection with the Petition. Judge Barnes, as permitted by Canon 5G and its Commentary, brought his Petition for Writ of Mandamus in a pro se capacity. Please see Exhibit AA@, Affidavit of Clifford H. Barnes. 13. There is no genuine issue of material fact that Judge Barnes has not performed any of the Apractice of law@ acts charged in Henson. 14. There is no genuine issue of material fact that even if Judge Barnes= Petition for Writ of Mandamus is granted by the Fourth District Court of Appeal that any JQC-alleged Athird parties@ will not derive any advantages, profits, or benefits where, at the most, the Court can only order that law enforcement, prosecution, defense, and the judiciary simply 4

5 follow the law as it currently exists. 15. In Count 4, & 4, of the Amended Notice Of Formal Charges, the JQC alleges: You have violated Canons I and 2 by violating Administrative Order issued by William L. Roby, Chief Judge in and for the Nineteenth Judicial Circuit for Saint Lucie County, Florida by ordering that defendants be placed into the Pretrial Global Positioning System (AGPS@) Program without first obtaining the necessary eligibility certification required to participate in this program. 16. Administrative Order 06-01, dated January 18, 2006, is attached to this motion as Exhibit AB@. The requirements of the order setting forth the guidelines for the program specifically apply only to Sentencing Alternatives 1 : A...Sentencing Alternatives, Inc., may place pretrial detainees...with Eligibility for Pretrial Release utilizing the following criteria...@ Page 1, & 2, Administrative Order That paragraph of the order goes on to emphasize A...however, the court shall retain the discretion to release an accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant such a release.@ Id. 17. There is no genuine issue of material fact that Administrative Order fails to specifically or impliedly require judges Ato obtain an eligibility certification@ before 1 On May 22, 2007 the Saint Lucie County Board of County Administrators voted unanimously to terminate the contract with Sentencing Alternatives, Inc. 5

6 placing defendants for pretrial release under the GPS program. Order only requires of judges that A(a)ny judicial decision to grant Pretrial GPS through Sentencing Alternatives, Inc. must be reflected in a written order.@ Page 4, & 4, Administrative Order In all cases where he has released a defendant under GPS supervision, Judge Barnes has complied with the requirement of Administrative Order for a written order. The Amended Notice of Formal Charges does not allege otherwise. 18. Where an administrative order fails to specifically require an action, there cannot be support for a JQC finding of violation. See, In Re Gooding, 905 So.2d 121, 123 (Fla. 2005) [stipulated facts did not support JQC=s finding of violation where section (3), Florida Statutes (2001) did not contain a reporting requirement to file a public report; thus, even where judge stipulated to various violations, he could not be disciplined for not filing a public report where the statute did not require it]. Likewise, where Administrative Order does not require a judge to obtain an Aeligibility certification@, a judge cannot be found in violation for not obtaining one. There is no genuine issue of material fact that Administrative Order fails to directly or impliedly require a judge to obtain an Aeligibility certification@. 19. While program administrators with Sentencing Alternatives do have in-put such that Ainterviewing staff is to 6

7 provide complete, accurate, non-adversarial information to the (Page 1), it is clearly the court=s responsibility to make the decision regarding the release. Rule 3.130(d), Fla.R. Crim.P. (The judicial officer shall proceed to determine conditions of release pursuant to Rule 3.131). 20. If administrative Order purports to transfer the pretrial release eligibility decision from a judge to an employee of the GPS program, that would be an unlawful delegation of constitutional authority. See, Hatcher v. Davis, 798 So.2d 765, 766 (Fla. 2d DCA 2001) (chief judge=s administrative order improperly delegated the court=s authority to schedule child support enforcement hearings to a private law firm which provides enforcement services on behalf of the Florida Department of Revenue). 21. If Administrative Order purports to limit the discretionary power of the judge to determine the terms and conditions of pretrial release in accordance with statutes and rules of court, then such order is illegal. See, State v. Norris, 768 So.2d 1070, 1072 (Fla. 2000)[chief judge=s administrative order improperly limited the first appearance judge=s discretion in applying Rule 3.131(b)(2)]; and Valdez v. Chief Judge of the Eleventh Judicial Circuit of Florida, 640 So. 2d 1164, 1165 (Fla. 3d DCA 1994). 22. In Valdez, the chief judge issued an administrative order that limited the power of the magistrate to release a 7

8 defendant except upon a finding that a number of explicitly delineated criteria were satisfied. Valdez at Additionally, the administrative order enumerated some 19 categories of crimes, some of which were crimes of violence or crimes against the person, in which defendants so classified were automatically excluded from eligibility for release to the non-financial pretrial services program. Id. Despite the legitimate purpose and goal of the chief judge in adopting the administrative order, despite the fact that the order was implemented upon the recommendation of the Pretrial Release Review Committee, and despite that the order explicitly recognized and continued the magistrates= existing prerogative to determine the terms and conditions of pretrial release in accordance with statutory law and court rule, the administrative order was illegal because it limited the trial judge=s discretionary authority by the criteria delineated and the list of offenses for which exclusion from the program was ordered as mandatory. Id. 23. Judge Barnes is in compliance with Administrative Order 06-01=s requirement for a written order for each defendant released to GPS supervision. There is no genuine issue of material fact that no party, including the State Attorney, the Public Defender, or private defense counsel, has ever filed an appeal of an Order by Judge Barnes releasing a defendant on GPS supervision. No appellate court has ever ruled that Judge Barnes 8

9 has committed judicial error in releasing a defendant to the GPS program. 24. There is no genuine issue of material fact concerning these allegations, and judgment as a matter of law is appropriate. 25. Accordingly, partial summary judgment in favor of Judge Barnes should be granted on the allegations contained in Count 3, & 3, and Count 4, & 4, of the Amended Notice of Formal Charges. WHEREFORE, the Honorable Clifford H. Barnes, respectfully requests that the Chair of the Hearing Panel issue an Order granting partial summary judgment in his favor on Counts 3 and 4 of the Amended Notice of Formal Charges. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the MOTION FOR PARTIAL SUMMARY JUDGMENT has been furnished to Michael L. Schneider, Esquire, Associate General Counsel, Judicial Qualifications Commission, 1110 Thomasville Road, Tallahassee, Florida 32303; The Honorable Thomas B. Freeman, Chair, Hearing Panel, Criminal Justice Center, th Street, Clearwater, Florida and to John R. Beranek, Esquire, Counsel, Hearing Panel, Ausley & McMullen, P.O. Box 391, Tallahassee, Florida on this day of September, DONNIE MURRELL, ESQUIRE FLORIDA BAR NO:

10 Attorney for The Honorable Clifford H. Barnes 400 Executive Center Drive Suite 201--Executive Center Plaza West Palm Beach, FL (561)