CASE NO INQUIRY CONCERNING A JUDGE NO RE: JUDGE MICHAEL E. ALLEN

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO INQUIRY CONCERNING A JUDGE NO 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 (850) GUY BURNETTE, JR N. Shannon Lakes Drive Tallahassee, FL (850) Counsel for Judge Michael Allen BRUCE S. ROGOW CYNTHIA E. GUNTHER BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite East Broward Blvd. Fort Lauderdale, FL (954) SYLVIA WALBOLT CARLTON FIELDS, PA P.O. Box 3239 Tampa, FL (813)

2 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 C. Strong, Intense Dislike of Judge Kahn (App. B, p. 4) 20 II. III. THE CONCLUSIONS OF LAW ARE UNFOUNDED AS A MATTER OF FACT AND LAW...29 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 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

3 APPENDIX... TAB iii

4 TABLE OF AUTHORITIES CASES Page Cerf v. State, 458 So. 2d 1071(Fla. 1984) Childers v. State, 936 So. 2d 585 (Fla. 1 st DCA 2006)... passim Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001) In the Matter of XYP, 523 Pa. 411, 567 A.2d 1036 (Pa. 1989)... 36, 37 In re Richard A. Kelly Circuit Judge, 238 So. 2d 565 (Fla. 1970) Inquiry Concerning a Judge Davey, 645 So. 2d 398 (Fla. 1994)... 7 Levin, Middlebrooks, Mabie, Thomas, Mayes, Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed 2d 1 (1990) State ex rel Florida Bar v. Calhoun, 102 So. 2d 604 (Fla. 1958) State ex rel Kirk v. Maxwell, 19 Fla. 31 (1882) State ex rel Shea v. Judicial Standards Commission, 643 P.2d 210 (Mont. 1982)... 34, 35 Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed 2d 686 (1994) RULES Canon 3D(1) of the Code of Judicial Conduct OTHER American Bar Association, ABA Standing Committee iv

5 on Judicial Independence v

6 INTRODUCTION A Judicial Qualifications Commission Hearing Panel has recommended that Judge Michael Allen be publicly reprimanded for his concurring opinion in Childers v. State, 936 So. 2d 585, 619 (Fla. 1 st DCA 2006 (en banc)). A copy of the opinion is attached as Appendix A. A copy of the Findings, Conclusions and Recommendations of the Hearing Panel, Judicial Qualifications Commission is at Appendix B. The Hearing Panel found that Judge Allen is an excellent, hard working judge, with an otherwise unblemished reputation, who has rendered extraordinary service to the State of Florida. Appendix B, p. 22. Nevertheless, it found that Judge Allen s concurring opinion explaining his reason for voting for en banc review of the Childers case did not promote public confidence in the integrity and impartiality of the judiciary (id. at 20) and was prompted by dual motives: (1) a perceived threat to the integrity of the court by criticism; and (2) an extraordinary level of antipathy to Judge Kahn. Id., p. 19. Judge Allen contests the Hearing Panel s findings of fact, conclusions of law and recommendation because the findings (and conclusions) are not supported by clear and convincing evidence and because, as a matter of law, an appellate judge cannot be sanctioned based upon his or her reason for writing a published opinion in a case before his or her court, or for the content of that decision. 1

7 STATEMENT OF THE CASE AND FACTS The essential facts the chronology of the appeal in the Childers case and the Investigative Panel s charges based on Judge Allen s concurring opinion explaining his reason for voting to hear the case en banc are undisputed. The portion of the Findings, Conclusions and Recommendations of the Hearing Panel, Judicial Qualifications Commission entitled The Course of Proceedings accurately sets forth that chronology on the case. The facts are a different matter. There is no dispute about the fact of Judge Allen s concurring opinion. There can be no dispute about what was written in that opinion the printed words speak for themselves. What is in dispute is the construction placed upon those words by the Hearing Panel in its Findings of Fact as to why they were written and what they suggested. Appendix B, p. 10. Because that dispute is the crux of this case, and the Hearing Panel s Findings of Fact are replete with conclusions based upon distortions and omissions we address the facts in the argument portion of this Brief in Opposition to the Findings, Conclusions and Recommendations of the Hearing Panel, Judicial Qualifications Commission. 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 2

8 page 10. Judge Allen was appointed to the First District Court of Appeal in 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 3

9 decided to consider the Childers case en banc and the en banc decision affirmed the conviction of W.D. Childers, 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 exchanges leading up to the June 28, 2006 release of all the opinions in the 4

10 Childers case is there any mention of, or hint of, personal animus as the motivation for the concurring opinion. Every 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, Barfield, Benton, Browning, Davis, Hawkes, Kahn, Padovano, Thomas, Webster, 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 5

11 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 6

12 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. 7

13 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 8

14 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 s 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 9

15 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 10

16 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. 11

17 * * * 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 Every intra-court 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, 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 s to the court that the sole reason for my opinion was to provide a well-overdue response to the unfair and harmful 12

18 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 (Exhibit 9) which the Hearing Panel quoted and bolded in an effort to portray Judge Allen as intransigent ( I think that [Mike] would really 13

19 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 in the context of the five or six s 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 s. 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 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. 14

20 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 (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 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 15

21 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. 16

22 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 17

23 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, ed 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. 18

24 T-349. He continued: T-365. 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. 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. 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 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 19

25 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 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. 20

26 T 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? 21

27 A. Yes. T Indeed, the record is replete with testimony from the judges of the court that in talking (or ing) about his concurrence, Judge Allen did not evince personal rancor in relation to Judge Kahn. See T (Judge Thomas); 391 (Judge Benton); , 477, 483, (Judge Padovano); 539, 542, 544, 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 Judge Allen described a series of events that 2 The Recommendations transcript references for Judge Allen s disavowal are incorrect. The references to ; 220" are to Judge Webster s direct testimony and have no relation to the Allen description of his feelings about Judge Kahn. 22

28 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 The Recommendations modulated the event: using profanity, Judge Kahn ordered Judge Thomas out of his office. T-255; Recommendations, p

29 The hearing revealed such serious concerns about Judge Kahn that the Hearing Panel invited the Investigative Panel of the JQC to act: 24

30 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: 25

31 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 26

32 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: T Q. Did you ever go to Judge Allen, either in person or in writing or by , and say Judge Allen, I think this opinion is a violation of the Code of Judicial Conduct? A. I did not personally do that. Judge Browning acknowledged that Judge Allen would not have 4 No one did that. 27

33 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, 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: T-63. 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. 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 28

34 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 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 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 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

35 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 30

36 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 (Judge Thomas); T (Judge Benton); 31

37 T (Judge Padovano); T (Judge Davis); , (Judge Van Nortwick). 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 ) 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. 32

38 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 33

39 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 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. T 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

40 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 35

41 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 36

42 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, , 114 S.Ct. 1878, 128 L.Ed 2d 686 (1994). The 37

43 Panel s analogies to defamation cases and litigation privileges (Appendix B, pp ) 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. 38

44 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. 39

45 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 Judge 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 40