BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA

Transcription

1 BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE, NO , CHERYL ALEMÁN / CASE NO. SC REPLY TO JUDICIAL QUALIFICATIONS COMMISSION'S RESPONSE TO JUDGE ALEMÁN'S MOTION TO DISMISS OR MOTION FOR A MORE DEFINITE STATEMENT AND MEMORANDUM OF LAW The Honorable Cheryl J. Alemán hereby files her Reply to the Judicial Qualifications Commission's Response to Judge Alemán's Motion to Dismiss or Motion for a More Definite Statement and Memorandum of Law (the "Response") and states: Nothing is more fundamental to respect for the judiciary and adherence to the rule of law than faithfulness to its constitutionally established jurisdictional boundaries. So important is this restraint that a party can raise lack of subject matter jurisdiction at any time in a proceeding, even for the first time on appeal. See, e.g., Ruble v. Ruble, 884 So. 2d 150, 152 (Fla. 2d DCA 2004). A party may also ask the adjudicatory body to look outside the four corners of a complaint to determine the truth of any matter upon which jurisdiction allegedly rests. See Response, at 4; Judge Alemán's Memorandum of Law (Memorandum), at 6. Parties are prohibited from stipulating to jurisdiction or waiving its absence, see Ruble, 884 So. 2d at 152; State v. Evans, 225 So. 2d 548, 551 (Fla. 3d DCA 1969), cert. denied, 397 U.S (1970) (cf. Count III); and may file a petition for writ of prohibition in the appellate court, challenging a ruling denying a motion to dismiss for lack of subject matter jurisdiction. See PHILIP PADOVANO, FLORIDA CIVIL PROCEDURE 1.8 at 26 (2006). For these reasons and in light of the fundamental premises of the Code of Judicial Conduct (such as adherence to the rule of law and protecting the independence 1

2 of the judiciary), the jurisdictional issue raised by the Motion to Dismiss must be given careful consideration. The Response suggests a stunning expansion of the Commission's jurisdiction. Specifically, the Commission asserts the right to discipline a judge for ruling in a manner: (1) required by prevailing law, as when Judge Alemán would not take jurisdiction of a request by a convicted felon for medical furlough because procedural law (the expiration of a 60-day period) precluded it (Counts III-IV); (2) consistent with prevailing law, as when Judge Alemán did not recuse herself in light of Oates v. State, 619 So. 2d 23 (Fla. 4th DCA 1993), rev. denied, 629 So. 2d 134 (Fla. 1993) (Count V); and (3) pending before the Fourth District Court of Appeal as in Adam Katz v. State of Florida, Case No. 4D It would be a remarkable conclusion, indeed, if the Commission held that it has jurisdiction under Article V of the Florida Constitution to discipline a judge for following the law or for a ruling pending on the docket of the Fourth District Court of Appeal. Succinctly put, a key issue before this Honorable Commission is whether this body possesses subject matter jurisdiction to review and punish a judge for substantive rulings which are not alleged to have departed substantially from the requirements of the law, unaccompanied by an allegation of the sort of misbehavior or misconduct this Honorable body has historically sanctioned. The Response asserts this jurisdiction, whereas Judge Alemán believes the Florida Constitution plainly reserves to Florida appellate courts the jurisdiction to overrule substantive holdings of the circuit courts. The claim in the Response that a "vast body of cases" supports the view that this Honorable Commission has jurisdiction over the ultimate rulings of Judge Alemán is not supported even by the cases bulleted in the Response. Instead, they turn on that judge's behavior 2

3 or conduct, rather that upon a substantive ruling. This is, of course, the proper subject of a disciplinary proceeding under the Florida Constitution. Most egregiously, Judge McAllister sexually harassed her judicial assistant, see In re McAllister, 646 So. 2d 173, 174 (Fla. 1994); Judge Turner stalked a woman at her home at night, see In re Turner, 421 So. 2d 1077, 1078 (Fla. 1982); Judge McMillan committed elections violations, see In re McMillan, 797 So. 2d 560, 562 (Fla. 2001); Judge Crowell had arrested the driver of a delivery truck blocking access to his parking space and referred to a woman in front of her grandchild as a prostitute, see In re Crowell, 379 So. 2d 1007, 109 (Fla. 1979); and Judge Graham "utilized vulgar and offensive language" in the court room. See In re Graham, 620 So. 2d 1273, 1274 (Fla. 1993), cert. denied, 510 U.S (1994). A full recitation of the judicial behavior and conduct which occasioned the bringing of charges against the judges in these cases is discussed in Appendix A, which is incorporated as if set forth herein. None of the cases the Commission cites in the Response establishes its jurisdiction to punish Judge Alemán for following Florida precedent, for a ruling premised upon a good faith, reasonable interpretation of the law, or for an order pending on appeal before a district court of appeal. The Response cites four cases in support of the claim that this Honorable Commission has jurisdiction over Count II of the Notice of Formal Charges (Notice), see In re Perry, 641 So. 2d 366 (Fla. 1994); In re McAllister, supra; In re Turner, supra; and In re Crowell, supra; and two cases in support of its claim that this body has subject matter jurisdiction over Count V. In re Wood, 720 So. 2d 506 (Fla. 1998); In re McMillan, supra. To the extent that any of the cases cited in the Response even mention the substance of rulings made by a judge, those references were clearly incidental to the main violations, which concerned each judge's behavior or conduct, 3

4 not rulings premised upon a good faith interpretation of the law. Anything more than this was mere dicta in the decisions. With respect to the cases cited in support of the claim that this Honorable Commission has subject matter jurisdiction over Count II and V, concededly, four of them involve contempt rulings, but that is hardly the end of the story. All four cases had, as their primary feature, judicial misbehavior and misconduct, which is not alleged against Judge Alemán. With respect to the first case cited in the Response, In re Perry, Judge Perry berated an army recruiter for appearing in court in his army dress uniform and was charged with nine other counts of misconduct. In re Perry, 641 So. 2d 366, 367 n.1 (Fla. 1994). He lured six defendants charged with traffic offenses into contempt citations by warning them not to drive on suspended licenses, then asked police officers to watch as they left the courthouse and arrest them if they attempted to drive away. Id. at 368. When they did, the officers brought them back to the courthouse and Judge Perry held them in contempt of court. Id. Judge Alemán contrived no such artifice as an excuse to hold a party in contempt and she did not violate any party's due process rights. "In charging each of the defendants with contempt, it is clear from the record that Judge Perry failed to follow the appropriate procedures for indirect criminal contempt, as set forth in Florida Rule of Criminal Procedure " Id. He failed to protect the "offender's due process rights," was sarcastic, upset, angry, and set unreasonably high bonds "designed to punish the defendants rather than to assure their presence for trial." Id. at Nothing approaching this category of conduct for which Judge Perry was disciplined is alleged against Judge Alemán in the Notice. There is no allegation that Mr. Katz was not afforded complete due process rights, no allegation of inappropriate statements by the court, and 4

5 no allegation of failure by the court to set an appropriate bond. Adam Katz, the subject of Count II, was found in contempt, following a formal Rule proceeding and his citation is pending before the district court of appeal. See Memorandum, Ex. 3. In contrast, there is no evidence that the Commission sanctioned Judge Perry while his contempt ruling was on appeal. The second case cited in the Response, In re Graham, is equally inapposite to establishing subject matter jurisdiction in this case. In this case, Judge Graham directed vulgar and offensive language at the mother of a juvenile who questioned the fairness of the sentence that he imposed, adding, "You know what his problem is, his problem is you. It is not me. It is you. I can tell by the way you are defending him." In re Graham, 620 So. 2d at The Notice does not allege that Judge Alemán publicly demeaned any party to the referenced litigation in this manner. On the contrary, the record is clear that she did not. In addition, Judge Graham reacted angrily to questions about the fairness of a driver's license suspension by arbitrarily increasing it nine months and, when the complainant sought further reconsideration, arbitrarily increasing the suspension to one year. Id. He also improperly criticized fellow judges and elected officials. Id. By contrast, the Notice does not allege that Judge Alemán arbitrarily ruled or criticized public officials; it complains about the substance of several rulings. However, in each of these cases, her ruling was a considered, reasoned, and even rigorous interpretation of the law and applicable court rules, not a clear departure from its requirements. The third case cited in the Response is In re McAllister. Judge McAllister sexually harassed her judicial assistant and maintained an abusive and hostile work environment as evidenced by improper comments about her legs and breasts, her figure, and her sex life; and by asking her to lunch ever day and inviting her out for drinks and to attend a judicial conference. 5

6 In re McAllister, 646 So. 2d at 174. Finally, the judicial assistant resigned. Id. Exercising subject matter jurisdiction over Judge McAllister's conduct is yet another example of this Honorable Commission properly penalizing egregious misbehavior and misconduct. However, in the case pending before this body, Judge Alemán is not alleged to have engaged in sexual harassment or any such misbehavior. Judge McAllister was also charged with making derogatory comments toward counsel, and for seeking to hold an attorney in contempt for a cause he knew to be untrue. Specifically, Judge McAllister displayed a lack of judicial impartiality by being abusive towards an attorney in the Public Defender's Office as evidenced by private expressions of personal dislike for the attorney; public pejorative comments about his character, skill, and ability; retaliating against the attorney by willfully postponing dates for hearings; holding ex parte hearings with the State; ordering the state attorneys to investigate him for collusion and misrepresentation; losing all appearances of impartiality at trial and "scream[ing] at public defender Hudzietz, berat[ing] the defendant on the stand and threaten[ing] the defendant with contempt no less than three times," although the attorney did nothing to warrant this treatment; held a contempt hearing without providing the accused attorney advance notice with knowledge that, according to the State, the attorney had committed no wrong; advised a fellow judge during adjournment of the hearing "that she couldn't stand Hudzietz and was 'going to get him'"; and required the attorney to apologize although he had done nothing wrong. Id. at Nothing alleged in the Notice remotely approaches this level of abusive and biased conduct. Ms. Perlman and Mr. Katz's actions (including violations of court orders) led to the contempt citations, not merely some trumped-up charges. Nothing alleged in the Notice pending before this Honorable Commission remotely alleges any such abusive conduct on the part of Judge Alemán. 6

7 The fourth case cited in the Response is In re Turner. Judge Turner, without notice to the parties to a custody dispute, visited the home of the mother, "who is a 23-year old attractive young lady, for the pronounced purpose of determining whether she was entertaining any male visitors and to observe the overall environment of the home." In re Turner, 421 So. 2d at He returned twenty minutes later to inquire whether a male visitor was still present and warned that the male visitor should depart. Id. at "He then wiggled his fingers stating that he (Judge Turner) was like a rattlesnake and that a rattlesnake shakes his rattle just before he strikes." Id. The Judge returned a third time at "approximately 12:30 a.m." and "pounded on the door and repeatedly called out, 'Mrs. Adams, Mrs. Adams (Cindy), are you there?'" Id. He then walked around the trailer, continuing to call her name and at the same time shined his flashlight into several windows, including her bedroom window." Id. The next morning, he demanded that the woman appear at an ex parte hearing, wherein he expressed shock that she would "have a man in her home the very night after her court appearance." Id. Again, this Honorable Commission properly exercised subject matter jurisdiction over this egregious behavior. However, in the present case before this body, there is no allegation that Judge Alemán engaged in questionable acts outside her courtroom, repeatedly visited a litigant in the dead of night, wagged her finger at anyone, peeped through windows, or held an ex parte hearing. The record is also devoid of any evidence of misconduct or misbehavior committed by Judge Alemán outside her courtroom. Judge Turner also held an attorney in contempt of court just prior to Christmas Day for allegedly failing to follow his instructions about the proper method of impeaching a witness when the record revealed otherwise; incarcerated two witnesses after deciding that just one of them was lying; and made unwarranted derogatory comments about the expertise of lawyers 7

8 practicing before her in the presence of their clients and the public. Id. at The Notice does not allege that Judge Alemán was without any legal basis for her contempt citation. It was grounded in settled law that failure of an attorney to appear as ordered and embarking upon a series of repetitive motions and intransigent arguments is punishable, not based on such weak bases as improper impeachment of a witness. See, e.g., Lee v. Bauer, 72 So. 2d 792, 793 (Fla. 1954); Kleinfeld v. State, 270 So.2d 22, 23 (Fla. 3d DCA 1972), cert. denied, 275 So. 2d 251 (Fla. 1973). The fifth case cited in the Response is In re Crowell. Judge Crowell not only arrested a man for blocking access to his driveway and referred to a minor's grandmother as a prostitute in the child's presence, but also retaliated against the Division of Youth Services when it did not take adverse action against a juvenile counselor, In re Crowell, 379 So. 2d at 108, and threatened a Department of Health and Rehabilitative Services supervisor for agreeing to testify against him. Id. at 109. Judge Crowell also had a pattern and practice of holding witnesses and counsel in contempt without good reason and arbitrarily in retaliation for conduct that he merely disliked. Id. at He misused his judicial authority for a petty personal reason and threatened witnesses. The Notice does not make any such behavioral allegations against Judge Alemán. Judge Crowell also retaliated against a juvenile by confining the boy when his attorney refused to stipulate to certain evidence and held his father in contempt when he inquired about the reason. Id. at 108. In other words, he punished the juvenile client for his attorney's misconduct. There is no allegation of retaliation in the Notice against Judge Alemán. Furthermore, "[t]he judgment of contempt was reversed on appeal when Judge Crowell did not respond to the district court of appeal's order for a supplemental record." Id. By contrast, Judge Alemán's single contempt ruling is pending before the district court of appeal with her full 8

9 cooperation. Judge Crowell also held a Youth Services counselor, who placed the child in the custody of her grandparents, in contempt for violating his ambiguous custody order, although the counselor was justified in thinking that custody had been left to his discretion. Id. The Notice does not allege that Judge Alemán has held any witness in contempt nor any person merely out of spite and without good reason. She had a reasonable concern about the 71 jurors kept waiting by Ms. Perlman's repeated motions to recuse, the first of which the district court would not grant on a petition for writ of prohibition. See Braynen v. State, 895 So. 2d 1169 (Fla. 4th DCA 2005), rev. denied, 911 So. 2d 792 (Fla. 2005). Judge Crowell also sentenced the respondent in a custody proceeding to sixty days in jail for being late, when he had been served with the notice to appear "only minutes before the scheduled hearing." In re Crowell, 379 So. 2d at 108. In contrast, Judge Alemán provided clear and sufficient record notice to Sandra Perlman when trial would resume and to Adam Katz when trial would commence, which was ignored by both attorneys. See Memorandum, at Finally, Judge Crowell held a lawyer in contempt for not answering his questions when the transcript showed the attorney tried, In re Crowell, 379 So. 2d at 109, and held another lawyer in contempt merely "for being late to court" on two occasions "without allowing him to explain and declared further penalties upon his attempts to explain." Id. at 108. Jude Alemán did not prevent counsel from explaining themselves. Rather, in the only count in which Judge Alemán held a person in contempt or even required a person to show cause (Count II), Adam Katz was not merely late; after having been previously convicted and sentenced by another judge for nearly identical conduct, he again missed trial twice in a case where his client was subject to substantial prison time and was disrespectful toward the court. See Memorandum, Ex. 3. 9

10 All of the cases cited in the Response share a common theme: they all involve serious judicial misbehavior and misconduct, some of which are accompanied by rulings deemed arbitrary and capricious; i.e., contempt citations lacking any basis in fact or law, unlike the single actual contempt finding which is the subject of the case before this Honorable Commission and which ruling is currently pending on appeal. One case cited in the Response also stands for the proposition that "purposeful disregard for the law" may be a violation of the Code of Judicial Conduct. Garcia v. Manning, 717 So. 2d 59, (Fla. 3d DCA 1998). By "purposeful disregard of the law," the Third District Court of Appeal (not this Honorable Commission) set a high threshold nowhere alleged in the Notice. Purposeful disregard occurs when "the judge was aware of the legal insufficiency of his judgment," yet ordered the action anyway. Id. at 60. Judge Alemán's rulings referenced in the Notice were the antithesis of this. Her alleged "misconduct" had to do with rigorous application of the law and insisting that counsel strictly adhere to it and respect jurors' time. She sought to comply with the law and, for example, not assert jurisdiction when the law precluded it, regardless of how unpopular the result or the acquiescence of the parties. It is precisely in these circumstances and when the protagonists mentioned in the complaint are self-designated political adversaries that the Commission should be most circumspect about exercising jurisdiction to avoid wrong public perceptions about disparate treatment and unnecessarily drawing judges and the entire judicial process into disrepute. Whereas others may disagree with her strict adherence to the law, it is for the Legislature and appellate courts, not this Commission, to establish the procedures and substantive law with which Judge Alemán must comply. Under Article V of the Florida Constitution, no judge should be put to the choice of following either appellate or instead Commission decisions. If precedent indicates a contempt 10

11 citation is warranted or recusal is not appropriate, any judge should be entitled to rule accordingly with decorum. Entirely absent from the Response is any rebuttal of numerous grounds for dismissal raised in the Motion to Dismiss, such as the circuit court's compliance with Rogers v. State, 630 So. 2d 513 (Fla. 1993) (Count I) and Oates v. State, 619 So. 2d 23 (Fla. 4th DCA 1993), rev. denied, 629 So. 2d 134 (Fla. 1993) (Count V); the pending district court of appeal case addressing the contempt citation of Adam Katz (Count II); the Commission's failure to attach a copy of an alleged stipulation with the State as required by Fla. R. Civ. P (a) (Counts III and IV); 1 the circuit court's lack of jurisdiction over the Motion for Furlough (Counts III and 1 The Commission's claim that a stipulation existed and the State made no objection to it as discussed in Count III is not supported by the full transcript of the hearing on July 1, 2003, which is precisely why attaching the agreement as required by Fla. R. Civ. P (a) is essential. This is a factual challenge to the claim. The defense counsel, Mr. Michaelson contradicted the terms of the purported stipulation that Jean Felix was suffering from an incurable fatal disease with a life expectancy of approximately two months. See Memorandum, Ex. 6, at 3-4. The Motion for Furlough represented that Jean Felix was "not expected to live more than a week or two." Memorandum, Ex. 5, 1. Mr. Michaelson later conceded his life expectancy could range from a "couple of days to six months. I don't know. I don't think anybody knows." Memorandum, Ex. 6, at 10. The Motion for Furlough promised medical testimony on the subject, but it was not provided. See Memorandum, Ex. 6, 4. The only relief requested in the Motion for Furlough was release for transport to a Hospice facility. Id. 3, but defense counsel denied at the hearing he was ready for Hospice. See Memorandum, Ex. 6, at 11. Accordingly, the State ultimate said, in effect, that, although it was not opposed in principle to furlough (leaving the circuit court to decide whether it had jurisdiction to grant such a motion), the public defender had not yet articulated the essential terms of the proposed agreement: Mr. Cole (Assistant State Attorney): I have no objection to the furlough. It is just that there are too many variables as far as what his life expectancy. And then, should he be monitored. We originally talked on Friday about having him released to Hospice, but according to Mr. McKay, he would have to be ROR'd from the jail and voluntarily turned into Hospice. Mr. Michaelson: I don't think he is ready for Hospice. Ex. 6 at Even had the circuit court disregarded the law which deprived her of jurisdiction over the motion for furlough, there was no "stipulation," see Memorandum, at 28-30, but, at 11

12 IV); the prohibition against retroactive application of decisional law (Count V); and the violation by the Commission of Florida Judicial Qualifications Commission Rule 23. On the other hand, the Response concedes the Notice is pled erroneously. See Response, at 10 (referring to this as a "scrivener's error"). Judge Alemán did not "misapprehen[d]" the first page of the Notice. She correctly "apprehended" the pleading and responded appropriately. If, as the Response now contends, the Notice contained an error, the proper remedy is dismissal. The Response characterizes each of the counts of the Notice in ways that are, depending on the number, under-inclusive or over-inclusive, and reduces to one sentence six rambling subparts contained in Count I. If the Response, rather than the Notice, is an accurate recitation of the allegations against her, Judge Alemán is entitled to have the Notice pled in this manner, so that she can respond to each specific breach of the Canons of Judicial Conduct that she is alleged to have committed, rather than being forced to guess as to which of the allegations in Count I(a) through (f) give rise to which alleged violations. The rules of procedure dictate that she respond to the allegations contained in the Notice, not the Response. CONCLUSION The subject matter jurisdiction conferred upon the Commission serves an important and essential role in maintaining ethical conduct and behavior by judges, as each purpose is articulated in Article V of the Florida Constitution. However, most respectfully, that jurisdiction does not include punishing a judge for adhering to the law or following then-existing precedent or for making a ruling, not overturned on appeal, but with which some may disagree. The opposite holding will not increase public confidence in the judiciary. It will only fuel skepticism and tender fodder to those who might be persuaded that this process is not tethered to evidence most, an agreement to agree between the parties; hence, all allegations that Judge Alemán failed to give the agreement adequate weight must be dismissed. 12

13 nor neutral principles of law, but primarily to politics or disagreement with a particular judicial ruling or philosophy. The same principles that supported the judicial independence of Judge Greer when his rulings were challenged should apply equally in this case. The public has a right to expect that judges will base their rulings upon the law and the evidence presented to them, rather than upon a consideration of whether their rulings will be popular with certain individuals, groups, and entities and, most respectfully, notwithstanding whether one or more members of the Commission might, in his or her view, reasonably have issued a different ruling in a particular case or on a particular issue. Without such judicial independence, judges become little more than political pawns and judicial rulings become devoid of factual and legal integrity. Little else is likely to erode the confidence of the citizens of this State in the integrity of the judicial system than subjecting an elected judge's substantive rulings based on a good faith interpretation of the law as opposed to his or her misbehavior or misconduct to review by this Honorable Commission. WHEREFORE, Judge Cheryl J. Alemán respectfully requests that the Judicial Qualifications Commission grant her Motion to Dismiss or Motion for a More Definite Statement and such other relief as is requested therein and is just and proper. 13

14 Dated this day of April, Jerome Hoffman (FBN ) Nathan A. Adams, IV (FBN ) HOLLAND & KNIGHT LLP 315 S. Calhoun Street, Suite 600 Post Office Drawer 810 (32302) Tallahassee, Florida Telephone: (850) Fax: (850) J. David Bogenshutz (FBN ) Bogenschutz, Dutko & Kroll, P.A. 600 S. Andrews Ave., Suite 500 Ft. Lauderdale, FL Telephone: (954) Fax: (954) Counsel for Judge Cheryl J. Alemán 14

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was provided by United States mail, this day of, 2007, to the following: Lansing C. Scriven Lansing C. Scriven, P.A. Special Counsel Fla. Judicial Qualifications Commission 442 W. Kennedy Blvd., Suite 280 Tampa, FL Marvin C. Barkin Interim General Counsel Fla. Judicial Qualifications Commission P. O. Box 1102 Tampa, FL The Honorable Thomas B. Freeman Chair, Hearing Panel Criminal Justice Center, th Street North Clearwater, FL John Beranek Counsel Hearing Panel P.O. Box 391 Tallahassee, FL Attorney # _v2 15

16 APPENDIX A: CHARGES LEVELED AGAINST JUDGES Case In re Perry, 641 So. 2d 366 (Fla. 1994) In re Graham, 620 So. 2d 1273 (Fla. 1993) In re McAllister, 646 So. 2d 173 (Fla. 1994) Charges Judge (1) unnecessarily admonished an army recruiter for appearing in court in his army dress uniform and (2) on at least six occasions, conducted himself in a manner that indicated a disregard for the sober and proper exercise of his contempt powers. Judge (1) repeatedly used his position to make allegations of official misconduct and improper criticisms against fellow judges, elected officials and their assistants and others, without reasonable factual basis or due regard for their personal and professional reputations, as when he accused the sheriff's office of political favoritism in releasing an inmate; (2) exceeded and abused the power of his office by imposing improper sentences and improper use of contempt power, as when he arbitrarily increased the driver's license suspension period by, first, 9 months and, then, a total of a year when asked about the fairness of the ruling, and punished an inmate for early release by increasing his sentence to near the maximum; (3) acted in an undignified and discourteous manner toward litigants, attorneys, and others appearing in his court, as when he directed vulgar and offensive language at the mother of a juvenile who questioned the fairness of a sentence and blamed her for the misconduct; (4) acted in a manner which impugned the public perception of the integrity and impartiality of the judiciary; and (5) closed and attempted to close public proceedings. Judge (1) engaged in improper ex parte communications with the State concerning matters before her; (2) displayed a lack of judicial impartiality by being abusive towards an attorney in the Public Defender's Office as evidenced by private expressions of personal dislike for the attorney; public pejorative comments about his character, skill and ability; retaliating against the attorney by willfully postponing dates for hearings; holding ex parte hearings with the State; ordering the state attorneys to investigate her for collusion or misrepresentation; lost all appearances of impartiality at trial and "screamed at public defender Hudzietz, berated the defendant on the stand and threatened the defendant with contempt no less than three times," although the attorney did nothing to warrant this treatment; held a contempt hearing without providing the accused attorney advance notice with knowledge that it lacked a proper basis; advised a fellow judge during adjournment of the hearing "that she couldn't stand Hudzietz and was 'going to get him'"; and required the 1

17 In re Turner, 421 So. 2d 1077 (Fla. 1982) In re Crowell, 379 So. 2d 107 (Fla. 1979) attorney to apologize, although he had done nothing wrong; and (3) sexually harassed her judicial assistant and maintained an abusive and hostile work environment as evidenced by improper comments about her legs and breasts, her figure, and her sex life; and asked her to lunch ever day and invited her out for drinks and to attend a judicial conference. Finally, the judicial assistant resigned. Judge, without notice to the parties to a custody dispute, visited the home of the mother, "who is a 23-year old attractive young lady, for the pronounced purpose of determining whether she was entertaining any male visitors and to observe the overall environment of the home." He returned twenty minutes later to inquire whether a male visitor was still present. He warned that the male visitor should depart. "He then wiggled his fingers stating that he (Judge Turner) was like a rattlesnake and that a rattlesnake shakes his rattle just before he strikes." The Judge returned a third time at "approximately 12:30 a.m." and "pounded on the door and repeatedly called out, "Mrs. Adams, Mrs. Adams (Cindy), are you there?" He then walked around the trailer, continuing to call her name and at the same time shined his flashlight into several windows, including her bedroom window." The next morning, he demanded that the woman appear at an ex parte hearing, wherein he expressed shock that she would "have a man in her home the very night after her court appearance." Judge also held an attorney in contempt of court just prior to Christmas for allegedly failing to follow his instructions about the proper method of impeaching a witness when the record revealed otherwise; incarcerated two witnesses after deciding that just one of them was lying; and made derogatory comments about the expertise of young lawyers participating in a trial and held one in contempt for making objections to the Judge's comments from the bench; admonished lawyers for the way they impeached witnesses which was nevertheless sound, and embarrassed other counsel with "general tirades" and comments like " [a] first-year law student should know better," all in the presence of the client, spectators, and other attorneys. Judge (1) in the presence of a minor girl, made reference to her grandmother having been a prostitute; (2) held a Youth Services counselor, who placed the child in the custody of her grandparents, in contempt for violating his custody order, although she was justified in thinking that custody had been left to his discretion; (3) held an attorney in contempt for being merely late to court without allowing him to explain and declared further penalties upon his attempts to explain; (4) retaliated against the Division of Youth Services when it would not transfer, suspend, or fire a certain juvenile counselor; (5) issued an order 2

18 In re McMillan, 797 So. 2d 569 (Fla. 2001) In re Wood, 720 So. 2d 506 (Fla. 1998) on a custody petition, requiring a change in the custody of certain children without allowing the custodial parent or his attorney to respond or argue the merits of the custody question and sentenced the respondent to jail for being late, when he had been served notice to appear minutes before; (6) retaliated against a juvenile by confining the boy when his attorney refused to stipulate to certain evidence and held his father in contempt when he inquired the reason for detaining his son, then was reversed on appeal when he failed to respond to the district court of appeal's order for a supplemental record; (7) declared an attorney in contempt for refusing to answer his questions when the transcript showed he tried; (8) upbraided an officer of the sheriff's department without allowing him to respond, (9) had arrested the driver of a delivery truck for blocking access to his parking space; and (10) threatened a supervisor at the Department of Health and Rehabilitative Services who planned to testify against him. Judge (1) made explicit campaign promises to favor the State and the police in court proceedings; (2) made explicit promises that he would side against the defense; (3) made unfounded attacks on an incumbent county judge; (4) made unfounded attacks on the local court system and local officials; and (5) improperly presided over a court case in which he had a direct conflict of interest as a witness. Judge, who had been previously admonished by the Commission and warned that future violations would be treated more harshly, (1) made rude and insensitive comments to the parties in an uncontested divorce proceeding which caused them humiliation and embarrassment; (2) made comments to the husband in a dissolution proceeding which he perceived as rude, insensitive and which caused him humiliation and embarrassment; (3) made comments attacking the personal bona fides of counsel for a party in requesting a continuance, then recused himself in an order, which commented on the arrogance of counsel for the movant and characterized motions to disqualify as trial strategy filed when a party fears unfavorable rulings; (4) made comments critical of an insurance company and the insurance industry as a whole and, thereafter, initially denied, then granted a motion for disqualification after a writ of prohibition was filed in and granted by the district court of appeal; (5) made comment that he was "for the little guy, not for the government," and thereafter initially denied, then granted a motion for disqualification after a writ of prohibition was filed in the district court of appeal; (6) made remarks concerning the unreliability and credibility of the lead police officer involved in the challenged arrest and thereafter denied a motion for disqualification, which was reversed. 3