v. Case No.: SC TFB No.: ,791(12C) REPORT OF THE REFEREE

Transcription

1 IN THE SUPREME COURT OF FLORIDA 780 (Before a Referee) 0 THE FLORIDA BAR, Complainant, v. Case No.: SC TFB No.: ,791(12C) RICHARD LEE BUCKLE REPORT OF THE REFEREE L SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as a referee to conduct disciplinary proceedings herein according to Rule 3-7.6, Rules of Discipline, the following proceedings occurred: On February 27, 2013 the Florida Bar filed with the Supreme Court of Florida a complaint in the above styled cause of action. This complaint alleged four separate violations: 1. Violation of Rule by filing a Motion for Appointment of New Judge that had no non-frivolous basis in law or fact. 2. Violation of Rule 4-8.2(a) by filing a Motion for Appointment of New Judge impugning the qualifications and integrity ofthe referee. 3. Violation of Rule 4-8.4(d) by filing a Motion for Appointment of New Judge that was prejudicial to the administration ofjustice in that respondent knowingly, or through callous indifference, 1

2 disparaged, humiliated, or discriminated against the referee on the basis of ethnicity, gender, religion, marital status, and perceived sexual orientation. 4. Violation of Rule 4-8.4(d) by filing a frivolous Motion for Appointment of New Judge on the eve of trial. The respondent, Robert Lee Buckle, filed his Answer to the Complaint with the Supreme Court of Florida on April 4, In his answer the respondent also included a counter claim. This counter claim stated: "Counter Claimant Richard Lee Buckle...hereby files this, his Counter Claim, against the Florida Bar (TFB) and various members thereof for maliciously persecuting and prosecuting him without merit. He also requests a full exoneration for past transgressions enumerated in his disciplinary record with TFB and as grounds therefore he revisits his past disciplinary history and alleges that all charges be dismissed and that TFB pay Respondent's attorney's fees together with actual and punitive damages." (pp Respondents Answer) On April 10, 2013 Chief Judge of the 20th Judicial Circuit, The Honorable Jay B. Rossman, appointed this Court as the Referee in the above styled cause of action. Subsequently on April 18, 2013 the referee filed the Certificate by Referee. The Florida Bar filed a Motion to Dismiss Respondent's Counterclaim on April 17, A case management conference was conducted before the referee on June 3, Both parties appeared in person before the referee at the case management conference. 2

3 As a result ofthe case management conference of June 3, 2013 an "Order on Case Management Conference" was issued in which the referee set out the various time line requirements regarding the above styled cause of action. This order was issued on June 11, This Case Management Order set out various time cut offs in the case. Specifically the order required the following: 4. The parties shall file with the Referee and exchange preliminary witness list no later than July 3, The parties shall file with the Referee and exchange a preliminary exhibit list no later than July 3, The parties shall file with the Referee and exchange a final exhibit list and final witness list, no later than 10 days prior to trial. 9. Discovery shall be completed no later than July 16, 2013, by 5:00 p.m., All pretrial motions shall be filed and set to be heard no later than August 6, The Bar's Motion to Dismiss Respondent's Counterclaim is reserved to be heard on immediately before beginning the trial. 14. The parties will be bound in all particulars by this Order. A "Supplemental Case Management Conference Order Setting Trial Date" was issued on June 13, This order set a two day trial, inclusive ofguilt and 3

4 sanction phase, beginning on August 27, 2013 at 9:00 am at the Manatee County Courthouse. On June 28, 2013 the Florida Bar filed with the Referee its Preliminary witness list and preliminary exhibit list. The Bar's preliminary witness list listed only the Respondent and "any witnesses called by the Respondent." The Respondent, Richard Lee Buckle, did not file a preliminary witness list or preliminary exhibit list. The Respondent subsequently filed a pleading entitled: "Respondent's Motion to Dismiss TFB Complaint And Motion to Unseal Public Records in the Wolfe Case." The certificate of service executed by the Respondent indicates a date of August 12, The Referee received this pleading on August 15, In this 16-page Motion to Dismiss, the Respondent also asserted a counter claim. This counter claim was asserted on pages of the motion and is identical to the counter claim asserted in his answer. On August 15, 2013 The Florida Bar filed with the Referee its final witness list and exhibit list. Both the final witness list and final exhibit list were identical to the preliminary witness list and exhibit list filed on June 8, The Respondent did not file a final witness list or final exhibit list. 4

5 Additionally, on August 15, 2013 the Florida Bar filed a "Motion to Dismiss Respondent's Counter Claim set forth in Respondent's Motion to Dismiss TFB Complaint and Motion to Unseal Public Records in the Wolfs Case." Subsequently, the Respondent filed a pleading entitled: "Respondent's Amendment to his Motion to Dismiss TFB Complaint." The certificate of service of this pleading was dated August 19, 2013 and was received by the Referee on August 26, The evidentiary/guilt phase of the proceedings began on August 27, 2013 at 9:00 a.m. at the Manatee County Courthouse. On the morning of trial, August 27, 2013, the Respondent filed a pleading entitled "Respondent's Motion in Limnie [Limine]." In this motion the Respondent sought to preclude the introduction of the Florida Bar's exhibit D, as listed on the Bar's final exhibit list. Exhibit D as listed on the Florida Bar's final exhibit list, was: "Order of Recusal signed 01/13/2011, by Honorable Marie E. Gonzalez." Prior to beginning the evidentiary/guilt phase of the above styled cause of action, a hearing upon the Bar's Motion to Dismiss the Respondent's Counter Claim was conducted. The Bar's Motion to Dismiss the Respondent's Counter Claim was granted. 5

6 Next the various pre-trial motions filed by the Respondent were addressed. All of the Respondent's pre-trial motions were denied based upon procedural grounds and substantive grounds. After addressing the various pre-trial motions, the evidentiary/guilt phase of the proceeding was conducted. At the evidentiary/guilt phase, the sole witness called was the Respondent, Richard Lee Buckle. All of the aforementioned pleadings, responses thereto, orders of the referee, exhibits received in evidence, the transcript of the proceedings, and this Report constitute the record in this case and shall be, and are forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT A. Jurisdictional Statement: The Respondent is, and at all times mentioned during this investigation was, a member of the Florida Bar; subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida. B. Venue: The alleged Rules violations contained in the Florida Bar's complaint are alleged to have occurred in Manatee County Florida; additionally, The Florida Bar asserts that the Respondent's law office is also located in Manatee County. 6

7 Subsequently, at the Case Management Conference held on June 3, 2013 the parties agreed to venue in Manatee County Florida. C. Summary of Case: The facts upon which this case are based are largely undisputed by the parties. The foundation upon which the Florida Bar's complaint lies arises out of a previous disciplinary proceeding involving the Respondent, SC ; Tlie Florida Bar v. Richard Lee Buckle. In August of 2010 the Chief Judge ofthe 20* Judicial Circuit appointed Judge Gonzalez as a referee in the case of The Florida Bar v. Richard Lee Buckle, SC The evidentiary/guilt phase of case SC was set for February 7, 2011 through February 11, Pursuant to the case management order in case SC , January 19, 2011 was reserved for the hearing of all pre-trial motions. (Florida Bar exhibit B) On January 7, 2011 the Respondent, Richard Lee Buckle, filed a pleading entitled "Motion for Appointment of New Judge" (Florida Bar Exhibit C). In that motion the Respondent sought to "...Appoint a new judge in place of County Judge Maria E. Gonzalez. As grounds therefore, the undersigned represents the following: 1. The undersigned attorney has learned the following about Judge Gonzalez's history: she is a Cuban-American female, who was an 7

8 Assistant State Attorney for approximately 15 years before becoming a county judge, and, that she is unmarried, unengaged, without a boy friend, or, children. Furthermore, that she has never been engaged in the civil practice of law. "(Florida Bar Exhibit C) The Respondent then went on to describe his personal background and specific "relgio-spritual beliefs." Specifically in paragraph 3 of the Respondent's "Motion for Appointment of New Judge" he states, in part: 3. The undersigned attorney's religo-spiritual beliefs include, but not by way of limitation, based upon his understanding of an evangelical hermeneutical interpretation of the Old and New Testaments of the Bible, that abortion kills babies, that homosexuality is contrary to historical Biblical truths held precious and sacrosanct for centuries both in the United States and virtually all of Europe. (Florida Bar Exhibit C, paragraph 3) Of particular importance to the above styled cause of action is the language contained in paragraph 4 of the Respondent's "Motion for Appointment of New Judge," in which he specifically states: 4. The undersigned attorney has concerns regarding possible bias on the part of County Judge Maria E. Gonzalez, the referee assigned this case because of his politico-religio-spiritual beliefs, convictions, and foundations. He does not have sufficient, direct evidence at this time to file an affidavit to recuse Judge Gonzalez. (Florida Bar Exhibit C, paragraph 4) Subsequently, on January 13, 2011 the referee in case SC , County Judge Maria Gonzalez, issued an Order of Recusal (Florida Bar Exhibit D). In Judge Gonzalez's Order of Recusal she states: "Comes Now the Court and having 8

9 reviewed the Respondent Richard Lee Buckle's "Motion for Appointment of New Judge," and finding it to be highly inappropriate, offensive, and inclusive of false insinuations directed against the undersigned, the undersigned hereby recuses herself from the case and returns the case to the Chief Judge for the appointment of a new referee." (Florida Bar Exhibit D) The filing ofthis motion and the subsequent recusal ofthe appointed referee resulted in the cancellation of the previously scheduled final hearing in case SC and required the appointment of a new referee, and the subsequent rescheduling of the final hearing. The parties do not dispute the above procedural history in case SC , nor in reality can they in good faith. It is the Respondent's "Motion for Appointment of New Judge" and the grounds or allegations contained in that motion that serve as the basis for the complaint in the above styled cause of action. It is the Bar's position that this Motion and its contents serve to violate Disciplinary Rules 4-3.1, 4-8.2(a), and 4-8.4(d). In contrast, it is the Respondent's position that the Motion for Appointment of New Judge was a valid device needed to ensure that he was not discriminated against based upon his religious beliefs. There can be little doubt regarding the Respondent's specific beliefs as he has afforded himself of every opportunity to express those beliefs in this case. In 9

10 every pleading he has filed in this case the Respondent has spent the majority of his time and effort expressing his particular beliefs. The Respondent has, on numerous occasions, specifically articulated his beliefs regarding homosexuals and homosexuality in general. Though the number and depth of the Respondent's assertions regarding his beliefs are too numerous to quote individually, the record is replete with examples of the articulation of the Respondent's specific world views. (See generally: Respondent's Answer to TFB Complaint pp. 3-10; Respondent's Motion to Dismiss TFB Complaint and Motion to Unseal Public Records in the Wolfe Case (Respondent Exhibit 2)) The Respondent additionally sees conspiracies at every turn; conspiracies borne of the Gay Lesbian Bi-Sexual Transgender (GLBT) community aimed at society as a whole and, perhaps more telling, at the respondent personally. The Respondent, through his pleadings filed in this case, and his testimony at the final hearing, has articulated his belief that the GLBT agenda has infiltrated the Florida Bar; and the present proceedings, as well as past disciplinary proceedings are an attempt to silence or punish him based upon his religious beliefs. Again, the number and amount of conspiratorial assertions are too numerous to quote individually, however here are but a few of those assertions: "Ethnocentric liberals insist that Christian values, beliefs, and world views should be evaluated and judged according to their secular standards. Thus the polarization between the Respondent's religious 10

11 beliefs and the secular beliefs of the radical liberals in TFB are explained. TFB has been trying to discredit and silence the Respondent for well over twenty years." (Respondent Exhibit 2, p.4, para. 8) "It is clear from the pleadings and the response of the Complainant (TFB) in this cause that Judge Gonzalez and TFB are intolerant of the Respondents religious beliefs and world view." (Respondent Exhibit 2, p.5, para. 11) "The Respondent has made his religious beliefs and world views regarding same sex marriage and abortion well known publicly. The same has offended many liberal members of TFB who have resorted to reprehensible actions to defame the Respondent and have him disbarred." (Respondent Exhibit 2, p.13 para.35) There is no credible evidence, nor evidence of any kind for that matter, that The Florida Bar has engaged in any type of conspiratorial plot to disbar or discredit the Respondent due to his religious, political, moral, or spiritual beliefs. This ideation of being persecuted is perhaps more at the heart of this case than anything else. Indeed, there seems to be a long standing history that this Respondent believes that any disciplinary actions taken against him are a result of religious persecution rather than any improper action on his part. In The Florida Bar v. Buckle, 771 So.2d 1131, , (Fla. 2000) the Court noted: "Additionally, the referee commented that throughout the proceedings Buckle attempted to portray the complaint against him as one of religious persecution and failed to see how his actions affected Gibas and the administration ofjustice." Similarly, the referee's 11

12 report in Case SC notes, "From the beginning of his opening statement to the end of his testimony, he expressed his personal opinions that the entire action was the result of a client seeking to dodge his bill and of a conspiracy by various special interest groups (he mentioned Jews and homosexuals at final hearing) to destroy him for his well-known religious and moral views." (Florida Bar Exhibit G, p. 13). In the present case, both through his pleadings and through his testimony at the f'mal hearing, the Respondent, as in previous disciplinary proceedings, asserted that this case was brought as part of a conspiracy against him for his religious and moral beliefs, specifically his opposition to homosexuality and gay marriage. I am of the opinion, based upon the pleadings filed in this case, the testimony and the evidence at the final hearing that the Respondent's paranoid fear of a homosexual conspiracy perpetrated by the Florida Bar is what ultimately led to the Respondent's filing of the "Motion for Appointment of New Judge." The Respondent sees members of this conspiracy in every shadow in every hall of every courthouse in the nation. As with many that believe in conspiracies, there are only two groups of people; those that see the conspiracy and fight it, and those that are part of the conspiracy. Thus, any person that does not mirror the Respondent's beliefs is part of the conspiracy. (Respondents Exhibit 2, p.3) 12

13 Additionally, the Respondent sees himself as an outspoken martyr upholding a just cause; a modern day Martin Luther embattled against the tide of secularism and post-modern humanism. Given the Respondent's view of the righteousness of his cause it becomes only natural that this belief leads him to the inescapable, and entirely irrational, belief that he personally is a target of this vast conspiracy. (Trans. p ; Respondent Exhibit 1 p. 1 para. 2, p. 5 para. 17; Respondent Exhibit 2 p.1 para. 2, pp 6-7,) It is against these conspiratorial and paranoid ideations that the Respondent filed the "Motion for Appointment of New Judge" that is at issue here. Based upon the Respondent's filing of the "Motion for Appointment of New Judge" in case SC , the Florida Bar filed a complaint alleging four Rules violations. These alleged violations are: 1. Violation of Rule by filing a Motion for Appointment of New Judge that had no non-frivolous basis in law or fact. 2. Violation of Rule 4-8.2(a) by filing a Motion for Appointment of New Judge impugning the qualifications and integrity of the referee. 3. Violation of Rule 4-8.4(d) by filing a Motion for Appointment of New Judge that was prejudicial to the administration ofjustice in that respondent knowingly, or through callous indifference, disparaged, humiliated, or discriminated against the referee on the basis of ethnicity, gender, religion, marital status, and perceived sexual orientation. 13

14 4. Violation of Rule 4-8.4(d) by filing a frivolous Motion for Appointment of New Judge on the eve of trial. On August 27, 2013 the final hearing was conducted at the Manatee County Courthouse. The sole witness that testified was the Respondent, Richard Lee Buckle. Mr. Buckle's testimony, both in the Florida Bar's case in chief and on his own behalf, was interesting to say the least. Mr. Buckle, as with his various pleadings, used his testimony to explain his particular religious, moral, ethical, and spiritual beliefs. Additionally, he also again expressed his belief that the sole reason for the Florida Bar's filing of this particular complaint was retribution for his outspoken political/religious/spiritual beliefs. During the final hearing Mr. Buckle's answers to questions posed to him were equally interesting. I cannot say that his answers were evasive, but he certainly used the opportunity to express his beliefs about religion, social issues, and his view of homosexuality and how he viewed the homosexual agenda. When questioned about prior disciplinary proceedings Mr. Buckle would concede no wrong doing in any of his prior disciplinary hearings. He was clear and adamant that each of his prior disciplinary proceedings were a result of unscrupulous clients and a system that was out to destroy him because of his religious beliefs. In every instance Mr. Buckle would describe himself as righteous and the victim. 14

15 Mr. Buckle also repeatedly and consistently testified that he could tell whether someone was a homosexual by the way they looked or acted, and he was equally consistent in testifying that all homosexuals held a world view that was contrary to his, and thus by virtue of being a homosexual a judge could not sit fairly on a case in which the Respondent was a litigant. There can be little doubt about what Mr. Buckle believes. At every opportunity during the final hearing he fervently expressed those beliefs, zealously attempting to persuade or explain that he was the victim and his actions were the actions of a righteous man fighting a vast insidious machine conspiring against him and other righteous individuals. At times during his testimony Mr. Buckle seemed very tired, worn out; the impression he gave was a man who was spread too thin and tired from engaging in a battle ofhis own creation. Often times during his testimony I was reminded of Don Quixote tilting at windmills. I feel it important to articulate that at all times during the proceedings Mr. Buckle conducted himself in a professional manner before the referee. He was polite, respectful, and professional. He treated this Court with the respect and dignity that is expected of all attorneys. That being said, it was obvious from the testimony of Mr. Buckle that he was aware of the requirements of Rule of Judicial Administration and what he had to demonstrate in order to seek disqualification of a judge. It is equally 15

16 clear from the pleadings and his testimony that he was well aware that he did not possess the requisite specific knowledge of any prejudices or biases held by Judge Gonzalez that would warrant disqualification under Rule (Trans. pp , 75, 76, 81) Lacking this specific knowledge of prejudice or bias, the Respondent sought to circumvent the requirements of Rule by filing a motion that wasn't quite a Motion to Disqualify but sought the same remedy. Thus, he filed his Motion for Appointment of New Judge, a motion that during direct examination he admitted there was no legal basis for this type of motion. (Trans. pp ; ; , 76, 81) On numerous occasions the Respondent testified that his sole purpose in filing the Motion for Appointment of New Judge was to get Judge Gonzalez to "come out of the woodwork." (Trans. pp 59, 62, 65) At the final hearing Mr. Buckle sought to explain his actions as an attempt to simply ensure that he received a fair hearing on his disciplinary matter. Several times he analogized the filing of his motion to conducting voir dire in a criminal jury trial. Arguing that he was simply trying to elicit potential biases from the appointed referee. This testimony may be partially credible, however, the full testimony of Mr. Buckle when taken in light of all of the other pleadings in this matter call into serious question whether that was the primary purpose of Mr. Buckle. Indeed, when all of the evidence is considered in its totality, it is obvious 16

17 that Mr. Buckle is strongly anti-gay and his objection, at its very core, was having a person he felt was gay sitting in judgment of him. Both sides introduced various pieces of evidence, which are included as part of the record in this case. The Florida Bar introduced exhibits A,B,C,D,E,F,G,H,I,J,K,L,M,N,0,P,Q, and R. The Respondent introduced exhibits 1, 2, and 3. Additionally, a transcript of the final hearing has been produced and is attached as part of the record, and specifically incorporated herein. At the conclusion of the evidentiary/guilt portion of the final hearing, the Court announced a preliminary finding that the Respondent was guilty of violating the rules as alleged in the complaint. Immediately following, the parties presented evidence regarding sanctions, aggravating factors and mitigating factors. Additionally, at the close of the sanctioning phase the Florida Bar presented their Motion to Asses Costs to the Court and a copy to the Respondent. IIL RECOMMENDATIONS AS TO GUILT Based upon the testimony presented at the final hearing, and based upon the exhibits introduced into evidence, it is the opinion of the referee that there is clear and convincing evidence that the Respondent, Richard Lee Buckle, has violated the Rules Regulating the Florida Bar. As such, it my recommendation that the Respondent, Richard Lee Buckle, be found guilty of violating Rule 4-17

18 3.1(Meritorious Claims and Contentions); Rule 4-8.2(a) (Impugning the Qualifications and Integrity of Judges or Other Judicial Officers); and two violations of Rule 4-8.4(d) (Conduct Prejudicial to the Administration of Justice) A. Rule Meritorious Claims and Contentions. Rule Meritorious Claims and Contentions reads: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for a defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. In the present case the Respondent filed his "Motion for Appointment of New Judge." It is important to note that the Respondent did not file this motion as a motion to disqualify under Rule of Judicial Administration To the contrary, the Respondent has acknowledged in the body of the Motion for Appointment of New Judge that "He does not have sufficient, direct evidence at this time to file an affidavit to recuse Judge Gonzalez." (Florida Bar Exhibit C) The Respondent admits that he was in fact the person who filed the Motion for Appointment of New Judge. (Florida Bar Exhibit K, and Trans. p ) Additionally, the Respondent admitted that he did knowingly make the statement 18

19 that he did not have sufficient, direct evidence to seek to disqualify Judge Gonzalez. (Florida Bar Exhibit K, and Trans. p ) The Respondent admitted that in his one prior interaction with Judge Gonzalez at the case management conference in case SC nothing occurred to cause him any concerns regarding Judge Gonzalez's ability to be fair and impartial. (tran. p ; p ) It is clear from the pleadings and from the Respondent's testimony that he is familiar with the requirements to seek disqualification of a judge pursuant to Rule of Judicial Administration (Florida Bar Exhibit K; Trans. pp 61) It is equally clear from both the Motion for Appointment of New Judge (Florida Bar Exhibit C), the Respondent's Answer (Florida Bar Exhibit K) and the Respondent's testimony at the final hearing that he knew that he did not have sufficient facts to seek disqualification of Judge Gonzalez. (Trans. pp , 75, 76, 81) Rule 2.330(d) requires a party moving for disqualification to demonstrate that he "fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." Fla. R. Jud. Admin (d) Thus, specifically described prejudices or biases must be articulated in a motion to disqualify. 19

20 By his own admission, the Respondent lacked knowledge of Judge Gonzalez's specifically described prejudices or biases. The evidence demonstrates that knowing that he could not fulfill the legal requirements to file a motion to disqualify under Rule 2.330, the Respondent instead filed the Motion for Appointment of New Judge, a motion that the Respondent knew did not exist as a matter of law. During his testimony at the final hearing, the Respondent explained how he obtained the personal information about Judge Gonzalez that he asserted in paragraph 1 of the Motion for Appointment of New Judge. (Florida Bar Exhibit C) Mr. Buckle acknowledged that the basis for this assertion was a conversation he had with a bailiff prior to court and that he confirmed this information with "some folks, colleagues, down in that area..." (Trans. pp 53-54) It is clear from the testimony that the inferences and innuendos about Judge Gonzalez that the Respondent included in paragraph 1 of his Motion for Appointment of New Judge were critical in his mind. In his mind, these facts lead to one and only one conclusion, and that conclusion was that Judge Gonzalez was a lesbian. Indeed the Respondent acknowledges that his purpose for setting out these "facts" was to allow him to "draw inferences and conclusions." (Trans. p ) 20

21 Through these inferences the Respondent concluded that Judge Gonzalez was a member of a particular group. Having made such a conclusion the Respondent then went even further, and used that inclusion in a specific group to conclude that as a member of that group she must think a certain way. Id. For in the Respondent's world, any member of this particular group must think the same, hold the same prejudices, have the same views on religion, hold the same views on abortion, act the same and be the same. In short, his classification and overgeneralization of the group becomes the individual. Thus, it is not the specific beliefs of Judge Gonzalez that are at issue for the Respondent; they cannot be because the Respondent freely admits that he does not know the specific beliefs of Judge Gonzalez. Rather, what is at issue is his belief, without foundation, that Judge Gonzalez was a member of a particular group, and being a member of that group she must think and believe a certain way. Indeed, the Respondent specifically states that if a person was a member of this particular group that simple fact, in-and-of- itself, would be determinative of how that person thinks and feels on specific issues. And thus, membership in that particular group, because of this alleged shared group thought, would cause any member of that group not to be fair to the respondent. (Trans. p , 93) The Respondent clearly and unequivocally states this in Respondent's Exhibit 2 at page 13 paragraph 38 in which the Respondent asserts that "Noted Christian 21

22 pastors agree that if one's opinion on these two issues [same sex marriage and abortion] is wrong their opinion on almost all other issues will also be wrong." (Respondent's Exhibit 2) It is equally clear from the Respondent's testimony that he knew that these rumors, innuendos, and inferences about Judge Gonzalez were an insufficient basis in law to file a motion seeking disqualification of Judge Gonzalez and appointment of a new judge under Rule (Trans. pp 61-63, 75, 76) The purpose of the Respondent's filing of his Motion for Appointment of New Judge can be boiled down to one succinct statement made during direct examination at the final hearing, in which the Respondent said: "I just wanted to do something to cause her to come out of the woodwork and say, okay, appoint a new judge." (Trans. p ) Having asserted that his purpose in filing the Motion for Appointment of New Judge was "...trying to find out, Judge Gonzalez, look, come out of the woodwork." (Trans. pp 64-65) He also concedes that there is no mechanism within the law to allow him to question a judge about their beliefs and qualifications. (Trans. pp ; ; ) But even this is disingenuous. Perhaps the most telling indication of why the Respondent filed the Motion for Appointment of New Judge can be gleaned from his direct testimony in which he stated: "And I don't have a problem with you or anybody else that believes that. You have a right to believe it. I have a right to 22

23 believe what I believe. I just wanted to let the record reflect that I don't want to be tried by somebody like that..." (Trans. p ) Taken as a whole, there is clear and convincing evidence that the Respondent filed his "Motion for Appointment of New Judge" knowing that said motion did not meet the legal standards required under Rule to disqualify a Judge. Additionally, there is clear and convincing evidence that the Respondent knew that there was no supportable or arguable legal mechanism outside of Rule for seeking disqualification of a Judge. With such knowledge the filing of said motion is by definition frivolous. The asserted basis upon which the Respondent sought disqualification amounted to nothing more than bigotry and prejudice against a definable group. By his own admission the Respondent could point to no inappropriate or questionable behavior that could reasonably lead him to conclude that Judge Gonzalez would not be fair and impartial. Again, by his own admission the sole basis for seeking disqualification of Judge Gonzalez was based upon rumor and innuendo that led the Respondent to believe that the Judge was a member of a specific group. The Respondent then went further and prescribed a thought and belief system to Judge Gonzalez based upon the Respondent's belief as to how every single member of that particular group thought. 23

24 In his Motion for Appointment of New Judge (Florida Bar Exhibit C) the Respondent insinuates that Judge Gonzalez may be gay. He purposefully fails to assert any specific prejudice of Judge Gonzalez known to the Respondent, other than a general assertion that gay people are by their very nature biased against born-again or evangelical Christians. This is akin to asserting that no Caucasian judge can be fair in the treatment of a Black Panther litigant, or that no African American Judge can be fair in the treatment of a neo-nazi litigant, or that no Jewish judge can be fair in the treatment of a Muslim litigant. It is the inclusion of the Judge in a defmable class of individuals that the Respondent focuses on and not the specific beliefs, prejudices or biases of the specific judge. The assertion made in the Respondent's Motion to Appoint New Judge, and repeated with such zeal at the final hearing are not based upon specific facts associated or attributable to specific biases or prejudices of Judge Gonzalez, but rather upon overly broad generalizations of an entire segment of society, i.e. all homosexuals believe "x"; all Caucasians believe "y"; all African-Americans believe "z". (Trans. p. 96) In short the Respondent had no basis in fact or law for filing the "Motion for Appointment of New Judge", he knew at the time of filing said motion that he had no basis in law or fact to file said motion and as such it is my recommendation that he be found in violation of Rule

25 B (a) Impugning Qualifications and Integrity of Judges or Other Officers (a) Impugning Qualifications and Integrity of Judges or Other Officers: A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office. Much ofthe analysis of the violation of Rule 4-8.2(a) is similar to that contained in section III A above, and as such the analysis contained in that section is specifically incorporated herein. As with all of the violations the violation of Rule 4-8.2(a) stems from the Respondent's filing of the pleading entitled Motion for Appointment of New Judge (Florida Bar Exhibit C). From a review ofthe pleadings, the exhibits introduced into evidence at the final hearing and the testimony of the Respondent at the final hearing there can be little doubt that there is clear and convincing evidence that the Respondent made a statement that he knew was false or at the very least was made with reckless disregard as to the truth or falsity of that statement as it applied to the integrity of the referee appointed in case number SC Again, the basis for this finding are the statements contained in the Respondent's Motion for Appointment of New Judge (Florida Bar Exhibit C), and more specifically as articulated in paragraphs 1, 3, and 4 of that motion. 25

26 The Respondent made statements regarding Judge Gonzalez personal life, these statements were made recklessly without direct knowledge of the truth of said statements, and the sole basis of knowledge for making these statements were a discussion with a bailiffprior to a court hearing and speaking with undisclosed "folks" within the community "down there." (Trans. pp 53-54) The Respondent freely admits that these statements were made without any direct evidence or knowledge on his behalf, and that there was no basis under Rule of Judicial Administration to seek disqualification of the Judge. (Florida Bar Exhibit C para.4; Trans. pp 53-57, 60-61, 63-66, 81) The Rule requires that these false or reckless statements must also be made "concerning the qualifications or integrity of the judge..." Rule 4-8.2(a). It is abundantly clear that the statements made in the Motion for Appointment of New Judge were made either with the purposeful intent, or in a reckless attempt, to call into question the Judge's integrity by insinuating that the Judge could not or would not be fair. This accusation of a lack of fairness was not based upon any specific allegations of bias or prejudice of the Judge, but rather, based upon the Respondent's belief of how an entire class of people think and feel. In the Motion for Appointment of New Judge, the Respondent asserts things about Judge Gonzalez's personal life. (Florida Bar Exhibit C para. 1). Then the Respondent sets out his religious/spiritual beliefs and makes reference to a 26

27 previous grievance procedure in which he asserts that a member of the Bar was a lesbian and biased against Southern Baptists. In paragraph 4 of the Motion, the Respondent then articulates that he has concerns regarding "possible bias on the part of County Judge Maria E. Gonzalez...because of his politico-religo-spiritual beliefs, convictions and foundations. He does not have sufficient, direct evidence at this time to file an affidavit to recuse Judge Gonzalez." When these four paragraphs are read in conjunction with one another there can be little doubt that the inference that the Respondent is clearly trying to articulate is that he believes that Judge Gonzalez is a lesbian and because she is a lesbian, and for that reason alone, she is per se biased against the defendant based upon his religious beliefs as a born-again/evangelical Christian; and thus, unfit to sit on a case in which he is a litigant, or certain types of cases in general. There is no other reasonable reading of the Motion. This reading of the purpose and intent of the Motion is supported by the Respondents subsequently filed pleadings and his hearing testimony. (Trans. pp 54, 55, 57, 59, 61, 64, 69, 93,) It is unarguable that Mr. Buckle has the right to believe what he believes. Indeed, his beliefs are shared by a great number of people in our society. However, his right to have these beliefs does not insulate him from disciplinary action under Rule 4-8.2(a). 27

28 The purpose of the ethical rules prohibiting attorneys from making statements impugning the integrity ofjudges is "not to protect judges from unpleasant or unsavory criticism. Rather, such rules are designed to preserve public confidence in the fairness and impartiality of our system ofjustice." Tlle Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001). Thus, in order to protect the integrity of the judicial system, Courts have rejected the purely subjective defamation standard and instead have required an objective standard, that is: whether the attorney making the statement had an objectively reasonable factual basis for making the statement. M. Here there can be no doubt that the Respondent lacked any objectively reasonable factual basis for making the statements he made in his Motion for Appointment of New Judge. The reality is that the Respondent in the Motion itself admits such. (Florida Bar Exhibit C) He repeatedly admitted at the final hearing that he had no objective facts sufficient to seek disqualification. Likewise he admitted that the conduct of the referee had evidenced no prejudice or bias. The sole sources of these facts were a brief discussion with a bailiff prior to a court hearing and his discussions with some "folkes." It is important that these confirmations of the facts are only the facts set out in paragraph 1 of the Respondent's Motion for Appointment of New Judge. At no time does the Respondent ever articulate that he has specific personal knowledge or has received 28

29 information from another source to indicate that the referee held any particular prejudice or bias against him or his cause. The sole basis for these statements is the Respondent's subjective "inferences and conclusions" about the referee superimposed upon the Respondent's own biases about how members of certain groups act or think. Consequently, for the above reasons, it is my recommendation that the Respondent be found guilty of having violated Rule 4-8.2(a). C.4-8.4(d) Misconduct Rule 4-8.4: A lawyer shall not: (d) engage in conduct in connection with the practice of law this is prejudicial to the administration ofjustice, including knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic; From a review of the pleadings, the exhibits introduced into evidence at the final hearing and the testimony of the Respondent at the final hearing there is clear and convincing evidence that the Respondent engaged in conduct in connection with the disciplinary proceedings in case number SC that was prejudicial to the administration ofjustice by knowingly, or through callous indifference, did 29

30 disparage, humiliate, or discriminate against the referee based upon perceived sexual orientation or marital status. The analysis of this Rule violation is similar in nature to the analysis contained in sections III A & B above and those discussions are therefore incorporated by reference herein. There is little doubt that the Respondent's conduct in filing the Motion for Appointment of New Judge (Florida Bar Exhibit C) and the inferences contained therein serve no purpose other than to disparage the appointed referee based upon the Respondent's perception of the referee's sexual orientation. Quite simply, all of the evidence in this case: the pleadings, the Exhibits, and the testimony of the Respondent lead to one and only one conclusion; the respondent does not trust homosexuals; he is biased and prejudiced against homosexuals. According to his personal world view all homosexuals think and act alike. Thus, according to his own world view, the simple fact that someone is a homosexual makes them per se unfair towards the Respondent and unfit to sit in judgment of certain types of cases. (Trans. pp 55, 93; Respondent Exhibit 2) Chief Judge Scwartz of the Third District Court of appeals once wrote these very salient words: We cannot operate a judicial system, or indeed a society, on the basis of the factually unsubstantiated perception of the cynical and distrustful. For example, in this very area, 30

31 it would seem not unreasonable that a member of the community might think a judge could be automatically biased or favorable toward a lawyer or litigant who is a member of the judges own race, gender, religion or nationality. Yet because we must, and do assume, in the absence of something to the contrary, that a judge will abide by his oath and not permit any such consideration to influence his or her judgment, we rightly refuse to accept a suggestion ofthis kind as a basis for disqualification. Breakstone v. Mackenzie, 561 So.2d 1164, Dissenting opinion (Fla. App 3 Dist. 1989) decision approved in part, quashed in part by Mackenzie v. Super Kids Bargain Store Inc., 565 So.2d 1332 (Fla. 1990) In this case the Respondent is the cynic and the distrusting; believing that a person who he thinks is a member of a certain group will, by their very nature, be biased against him. There is no other assessment of what occurred here than the Respondent knowingly, purposefully, and with fully formed intent specifically disparaged, sought to humiliate, or sought to discriminate against the referee, by asserting that she would be biased because she may, or may not have been, a homosexual. As previously discussed, the Respondent had no basis in law or fact for filing the Motion for Appointment of New Judge, and he knew this prior to filing said motion. Thus, the Motion was frivolous from the time that the Respondent put pen to paper. There can be little doubt that these disparaging, humiliating, and discriminatory statements resulted in prejudice to the administration ofjustice. As a result of his filing his Motion for Appointment of New Judge, Judge Gonzalez entered an order recusing herself from the case. (Florida Bar Exhibit D). This 31

32 resulted in the previously set final hearing being canceled, requireing the appointment of another referee and the re-setting of the final hearing. Likewise, the prejudice to the administration ofjustice was exacerbated by the fact that the Respondent filed the Motion for Appointment of New Judge as the date of the final hearing approached. For the above stated reasons it is my recommendation that the Respondent be found guilty of violating Rule 4-8.4(d) in that his filing of the Motion for Appointment of New Judge was prejudicial to the administration ofjustice in that it disparaged, humiliated, or discriminated against the appointed referee based upon her perceived sexual orientation and that filing said Motion at such a late date, without any basis in law or fact served only to unduly delay the proceedings. IV. STANDARDS FOR IMPOSING LAWYER SANCTIONS In an effort to determine the proper recommendation for sanctions, I considered the following Standards for Lawyer Sanctions: 2.1, 2.2, 2.3, 2.5, 2.6, 2.7, 2.8, 3.0, 6.0, 6.1, 6.12, 6.13, 6.14, 7.0, 7.1, 7.2, 7.3, 7.4, 8.0, 8.1, 8.2, 8.3, 8.4, 9.0, 9.1, 9.2, 9.3, and 9.4. Standards for Lawyer Sanctions 3.0 indicates: In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors: (a) The duty violated; 32

33 (b)the lawyers mental state; (c)the potential for actual injury caused by the lawyers misconduct; and (d)the existence of aggravating or mitigating factors. Thus starting with Standard 3.0(a) the duty violated, above all else and perhaps the most troubling is that Mr. Buckle violated the duties he owed to the legal system. In filing a Motion that he knew had no basis in law or fact, Mr. Buckle violated the duty he owed to the legal system. More specifically, in filing a motion that he knew contained false statements, or at the very least statements that were misrepresentations of fact, he engaged in the filing of a motion with the court that was prejudicial to the administration ofjustice and involved dishonesty, fraud, deceit, or misrepresentation to a court. Dissecting the mental state of Mr. Buckle takes a herculean effort; at all times before the Court Mr. Buckle appeared to be acting in a knowing fashion. He demonstrated no signs of cognitive problems, nor any discernable signs of mental illness or disease. Mr. Buckle holds very strong religious, spiritual beliefs. He has characterized this belief system as "born again Christian" or "evangelical Christian" beliefs. Mr. Buckle holds these beliefs very dearly; they are 33

34 intrinsically a part of who he is and how he lives his life, both in private and in public. And, let me be absolutely clear, no man should be punished for his religious beliefs. Mr. Buckle has every right to believe what he does and to freely practice his religion. However, Mr. Buckle has throughout this process, in his pleadings and in his testimony gone far beyond simply espousing a particular religious belief. There is an undercurrent of conspiratorial paranoia that creeps into everything that he has done in these proceedings. When describing prior disciplinary proceedings Mr. Buckle never acknowledged any wrong doing, nor even acknowledged any type of complicity in those prior proceedings. This certainly isn't troubling in-and-of-itself, however Mr. Buckle used all of these prior disciplinary proceedings as proof in his mind, that the Florida Bar was actively conspiring against him, seeking to destroy him personally, professionally, and financially, based upon his religious beliefs. In this case the potential for actual injury is great. The potential injury that existed here wasn't to any tangible thing such as money or property. However the potential injury was just as great and that was the potential for injury to the legal system as a whole and the real potential for erosion in public confidence in the fairness and impartiality of the judiciary. As has been previously noted: "...ethical rules that prohibit attorneys from making statements impugning the integrity of judges are not to protect judges from unpleasant or unsavory criticism. Rather, 34

35 such rules are designed to preserve the public confidence in the fairness and impartiality of our system ofjustice." Ray at Members of the Bar are perceived as possessing special knowledge of the internal workings of the judicial branch of government. Thus, the remarks that attorneys make about judges hold great weight with the public at large. Statements from attorneys regarding the fairness or impartiality of a judge have a great deal of impact in the eyes of the public. It can sway not only the public's opinion of a particular judge, but also the public's opinion of the entire integrity of the system. The issue of aggravating and mitigating factors will be discussed in a separate section. I next considered sections 6.0 Violations of Duties Owed to the Legal System, and section 6.1 False Statements, Fraud, and Misrepresentation. 6.1 False Statements, Fraud, and Misrepresentation: Absent aggravating or mitigating circumstances, and upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration ofjustice or that involves dishonesty, fraud, deceit, or misrepresentation to a court: 6.12 Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action Public Reprimand is appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld. 35