BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA CASE NO.:

Transcription

1 BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA CASE NO.: INQUIRY CONCERNING JUDGE CLIFFORD BARNES; / SUPREME CT. CASE NO. SC FINDINGS, CONCLUSIONS AND RECOMMENDATIONS BY THE HEARING PANEL OF THE JUDICIAL QUALIFICATIONS COMMISSION The Hearing Panel of the Judicial Qualifications Commission ("JQC") respectfully submits the following Findings, Conclusions and Recommendations pursuant to Article V, 12(a)(1), (b) and (c), of the Florida Constitution. OVERVIEW AND CONCLUSIONS County Court Judge Clifford Barnes of St. Lucie County is a life-long resident of that county. (T ). He was active in local politics, and was elected to the county court in Judge Barnes had served as a County Commissioner for the previous 12 years. He had been a practicing attorney working in the public defender's office and doing criminal defense work for over 20 years before assuming the bench. (T ). St. Lucie county has, in recent years, been one of the fastest growing counties in Florida. (T ). The substantial population growth has presented numerous problems including jail overcrowding. As a County Commissioner, Judge Barnes became embroiled in the jail overcrowding controversy. (T. 437). A Criminal Justice System Assessment and Report was

2 compiled by an outside entity named The Institute for Law and Policy Planning of Berkley, California. (Barnes Exh. 2). Judge Barnes was involved in obtaining this report which made various suggestions regarding solving the jail overcrowding problem. (T. 82). The report was critical of several county officials, including the office of the Sheriff, the Public Defender, the State Attorney and the judges involved in presiding over criminal first appearances pursuant to Rule of Criminal Procedure and , Florida Statutes. Although the problems were complex there were two basic approaches to the overcrowding situation. The alternatives were to add jail space or to reduce the number of persons in the jail. (T. 174,416). When compared with neighboring counties there were an inordinately high number of persons arrested in St. Lucie County and due to their financial inability to post bond these arrested persons spent significant time in the county jail awaiting court action. (T ; Barnes Exh. 10/26/04 Palm Beach Post Summary of Report). By far the greatest percentage of jail population were not yet convicted of a crime. Arrestees often spent over 60 days in the County jail even in situations where the maximum penalty for the offense they might be charged with was only 60 days. (T ). These are citizens who have not yet been found guilty but are instead those who have been 2

3 unable to bond out. Almost all of these citizens were indigent. (T ). As indicated, building additional jail space was one of the proposed alternatives. Another view was to reduce the number of people incarcerated or to reduce the number of days they were incarcerated before their cases could be tried or otherwise disposed of. As a County Commissioner, Judge Barnes was on the side of those that wanted to reduce the need for new jail beds by reducing the number of people incarcerated and the number of days they spent awaiting further court procedures. Judge Barnes left office as a County Commissioner and ran in a contested election for a County Court seat. He won and took office as a county judge in January of His first year in office was indeed stormy and he carried the overcrowding controversy with him from his County Commission position. (T ,449) Shortly after being elected he began doing criminal first appearances and the political controversy on jail overcrowding and the release of prisoners at first appearances became an all consuming part of his life as a judge. (T ). There were numerous written and oral disputes between Judge Barnes and the office of the Public Defender, the office of the State Attorney, Sheriff Ken Mascara and the office of the Chief Judge, 3

4 William Roby. (T ). In addition, serious disputes between Judge Barnes and other judges handling first appearances arose. Judge Barnes was accused of illegally interfering in their cases by releasing arrested persons. (Barnes Exh. 8 and Exh. 13, letters from Judge Yacucci and Walsh). Judge Barnes believed that the Public Defender Diamond Litty and her assistants could do a great deal more about releasing arrestees if they sought and encouraged non-monetary release arrangements during first appearance hearings under Rules and , Florida Statutes. Due to the controversy over first appearances, the other county judges became extremely critical of Judge Barnes because he released certain defendants which other judges contended should be incarcerated. (Barnes Exh. 8,13,16,38). Eventually Judge Roby, in his capacity as Chief Judge, removed Judge Barnes from sitting on first appearances and the controversy continued to expand and become more acrimonious. 1 On July 11, 2006, Judge Barnes himself filed a Petition for Mandamus in the Fourth District Court of Appeal in which he requested that the District Court require the other first 1 Chief Judge Roby sent Barnes two letters removing him from first appearance duty. These letters were dated April 1, 2005 and July 25, (Exh. 16,38). The April letter also stated that Judge Roby was reporting Judge Barnes to the JQC. 4

5 appearance judges, the Public Defender, the State Attorney, Judge Roby and numerous other public officials to correctly apply the law and rules on first appearances in numerous different ways. (JQC Exh. 2). The petition accused the other judges and officials of illegally refusing to give defendants meaningful first appearances as required by Florida law. A primary assertion was that the Public Defender and State Attorney did not attend first appearances on weekends and that the other judges were in direct noncompliance with the Rules of Criminal Procedures and Statutes governing first appearances. While these rules and statutes required an immediate first appearance within 24 hours along with the assistance of appointed counsel, the other judges allegedly refused to consider nonmonetary release arrangements and instead simply set a bond which they knew the defendants would be unable to make. Thus these arrested individuals ended up in jail when they might have been released under a nonmonetary arrangement had the rules been followed. Judge Barnes was reported to the JQC by Judge Roby and assistant state attorney Bakkedahl. (T. 311,314). Charges were filed against him on October 26, The Formal Charges are in numbered paragraphs which will be referred to herein as Counts. The charges asserted that Judge Barnes had demeaned the 5

6 integrity and the independence of the judiciary by taking all of his complaints regarding his fellow judges along with the Sheriff, State Attorney and Public Defender before the public in published newspaper articles and in the Petition for Mandamus he filed in the Fourth District Court of Appeal. The Petition for Mandamus was the primary matter at issue. He was charged with failing to follow proper channels concerning grievances regarding other judges' alleged misconduct and of violating the Cannons in airing his grievances publicly. He was also charged with practicing law by filing the Petition for Mandamus. At the request of Judge Barnes, the matter was set for hearing in St. Lucie County and the hearing began on April 22, On that day counsel for the JQC withdrew Count 4 leaving Counts 1, 2, 3, 5, 6 and 7 to be heard and determined. Count 7 alleged that Judge Barnes was guilty of cumulative misconduct constituting a pattern unbecoming a judicial officer. Conclusions The evidence and arguments were fully presented and the Hearing Panel concludes that Judge Barnes is guilty, at least in part, of Counts 2, 3, 5 and 6. The ruling on Count 5 is a determination of partial guilt. These charges can be summarized and referred to herein as: (2) the Mandamus Petition showing partiality in criminal proceedings, (3) the Mandamus Petition as 6

7 constituting the practice of law, (5) attacks against other sitting judges on matters not before him, and (6) failure to follow proper channels within the legal system to modify judicial conduct. These findings are based on Judge Barnes own written and oral admissions and the clear and convincing evidence. Judge Barnes is found not guilty on Count 1 and not guilty on portions of Count 5 due to the lack of clear and convincing evidence. Count 5 made specific mention of the judicial education process, appropriate attire in court and failure to attend judge meetings. The Panel concludes that these three assertions were not proven by clear and convincing evidence. Based on these findings of guilt, the Hearing Panel recommends that Judge Barnes be publicly reprimanded by this Court but that he be allowed to remain on the bench. The costs of these proceedings should be imposed on Judge Barnes. The Charges and the Answer Judge Barnes was served with the Amended Notice of Formal Charges by the Investigative Panel on October 26, The charges are here quoted in full: COUNT 1: You have violated Canon 2 and Canon 3 demeaning the integrity and independence of the judiciary and the judicial system by taking your complaints regarding the propriety of the conduct of the sheriff, state 7

8 COUNT 2: COUNT 3: COUNT 4: COUNT 5: attorney and public defender in your county or circuit into a public forum. Specifically, you have demeaned the integrity and independence of the judiciary by writing an article as a guest columnist for a local newspaper, which provides misleading information to the public concerning the judicial system. You have violated Canons 1, 2 and 3 by filing as a judge a Petition for Writ of Mandamus in the Fourth District Court of Appeal that creates the appearances of impropriety concerning your ability to act in an impartial manner as a judge in criminal proceedings. In violations of Canon 5, you filed a Petition for Writ of Mandamus in the Fourth District Court of Appeal advocating a position that benefits third parties and thereby violating that canon's prohibition against a sitting judge practicing law. You have violated Canons 1 and 2 by violating Administrative Order issued by William L. Roby, Chief Judge in and for the Nineteenth Judicial Circuit for Saint Lucie County, Florida by ordering that defendants be placed into the Pretrial Global Positioning System ("GPS") Program without first obtaining the necessary eligibility certification required to participate in this program. You have violated Canons 1 and 2 by taking actions that called the judiciary into disrepute. These actions include public attacks against the judiciary and sitting judges and other public officials, demeaning your office by a series of actions including: contempt for the judicial education process; failure to wear appropriate attire during 8

9 COUNT 6: COUNT 7: court proceedings; engaging in inappropriate colloquies on the bench with defendants; and by refusal to attend judicial meetings with other judges in your circuit. In violations [sic] of Cannons 1 and 2 you have demeaned the integrity and independence of the judiciary by failing to follow proper channels concerning grievances regarding other judges' alleged misconduct. In this regard, you have chosen to air your grievances in the media rather than by taking available steps to bring your complaints to the appropriate authorities, including but not limited to, the Judicial Qualifications Commission and/or the Florida Bar or by steps within the system to enlist the support of other judge's to appropriately modify judicial conduct or attitudes. You have violated Canons 1, 2 and 3 as detailed in these Charges cumulatively. This cumulative misconduct constitutes a pattern and practice unbecoming a judicial officer and lacking the dignity appropriate to judicial office, with the effect of bringing the judiciary into disrepute. The Answer by Judge Barnes is somewhat confusing because the Formal Charges were amended and the paragraphs renumbered. The initial Answer to the first set of charges was never revised so the paragraph numbers do not match up. The Answer by Judge Barnes denied any violations of the Canons but admitted most of the basic facts. Judge Barnes admitted that he did publish a newspaper article which was extremely critical of the way first appearances were handled by the other judges and the elected Public Defender and State 9

10 Attorney. 2 He also of course admitted he had filed the Petition for Mandamus. The Answer contended that Judge Barnes' motive was to improve the system concerning first appearances. He admitted being critical of the Sheriff, the Public Defender, the State Attorney, the Chief Judge and several of the other county and circuit judges but he contended that none of them were fulfilling their legal duties concerning first appearances. He asserted he was guilty of nothing more than "constructive criticism." As to the Petition for Mandamus, the Answer asserted that it was proper to ask the District Court of Appeal to address the "irregularities" in the way the Sheriff, the Public Defender, the State Attorney and the judges conducted first appearances. Several cases; State v. Norris, 768 So. 2d 1070 (Fla. 2000), Resendes v. Bradshaw, 935 So. 2d 19 (Fla. 4th DCA 2006), and Puffinberger v. Holt, 545 So. 2d 900 (Fla. 4th DCA 1989), were cited in support of the argument that the St. Lucie County judges and public defender were disobeying the rules and the law and allowing citizens to be illegally incarcerated. 2 The Public Defender was Diamond Litty and she was married to County Judge Tom Walsh who handled first appearances and testified that he never really saw any public defenders participate in first appearances. (T ). Judge Barnes attempted to have Judge Walsh removed from all first appearance duty. 10

11 On the "practicing law" assertion contained in Count 3, Judge Barnes contended that he did not have a client so he could not be practicing law. Judge Barnes also moved for summary judgment on the practicing law issue. This motion was denied at a hearing of October 1, (Tr. 10/1/07 p.16). On Count 5 (previously designated Count 4), Judge Barnes admitted that he had been late for two classes at the new judges college in early 2005 for which he accepted blame and had apologized. He pointed out that he had graduated from the college. As to his attire while on the bench he admitted that he had twice forgotten his robe between his Ft. Pierce office and his St. Lucie County office and presided wearing a shirt and tie without a robe. He admitted missing several judge's meetings but asserted he had proper excuses including surgery in his family. As to Count 6 he denied failing to follow proper channels and asserted that he "pursued and exhausted all available remedies" among the other judges and officials before seeking mandamus in the District Court of Appeal. On Count 7 he denied a cumulative pattern of misconduct. Although not a part of the charges or the answer, it must be noted that Judge Barnes filed his Petition for Mandamus on July 10, 2006 and that the Fourth District Court of Appeal 11

12 promptly ordered all parties to address the issue of whether Judge Barnes had standing to file the petition. parties filed responses on the standing issue. The numerous The case then sat for one year and eight months without any ruling on standing or on the merits. All of the public official respondents were represented by counsel but no order to show cause was entered. Judge Barnes eventually voluntarily dismissed his Petition for Mandamus on April 2, (JQC Exhibit 11). The dismissal pointed out that the Florida Bar Criminal Procedure Rules Committee was considering an amendment to the rules specifically requiring the presence of the State Attorney and the Public Defenders at all first appearances. Consideration of this rule amendment was stated to be "at the request of petitioner's lawyer." The dismissal also pointed to several new opinions from the Fourth District addressing several of the issues raised in the Petition for Mandamus. See: Narducci v. State, 952 So. 2d 622 (Fla. 4th DCA 2007) requiring bond determination to comply strictly with the rules and statutes, Hollander v. Crowder, 952 So. 2d 1289 (Fla. 4th DCA 2007) prohibiting the use of bond schedules at First Appearance, and Duffy v. Crowder, 960 So. 2d 909 (Fla. 4th DCA 2007) requiring the State to file motions for pretrial detention in order to deny pretrial release. The dismissal urged that these 12

13 developments had improved the first appearance procedures in St. Lucie County and that therefore the Petition for Mandamus was dismissed. The media reported that Judge Barnes had "declared victory." (T ; JQC Exh. 12). The Hearing The hearing began on April 22, 2008 and lasted two days. The three volume transcript of the testimony before the Hearing Panel has been filed along with these Findings and Recommendations. The exhibits were all stipulated into evidence and are contained in two notebooks. (T. 52). The Petition for Mandamus is JQC Exhibit 2 as an attachment to the JQC's trial memorandum which is also filed along with these Findings. The Petition for Mandamus is a 23-page document containing an appendix. All of the witnesses testified on direct and cross examination and the Hearing Panel members also questioned each witness. The Panel was composed of Judge Thomas Freeman, Chair, Judge Preston Silvernail, attorney John Cardillo and attorney Miles McGrane and lay members Leonard Haber and Ricardo Morales. Attorney John Beranek acted as counsel to the Hearing Panel. Special Counsel acting on behalf of the JQC Investigative Panel was Michael Schneider and Judge Barnes was represented by attorneys Donnie Murrell and Thomas Gano. 13

14 The prosecution presented the testimony of Judge Phillip Yacucci, Judge Thomas Walsh and Chief Judge William Roby. (T. 53,170,225). Sheriff Ken Mascara was also called along with Thomas Bakkendahl, who was the Chief Assistant State Attorney who filed a formal JQC complaint against Judge Barnes and volunteered this fact. (T. 311,314). Bakkedahl testified the Petition for Mandamus caused a "firestorm of public controversy" and was "unprecedented." (T. 311). Judge Roby testified to an ongoing series of conflicts with Judge Barnes including a demand that Judge Walsh be removed from presiding over first appearances. (T ). Although listed as a prosecution witness Public Defender Diamond Litty did not testify. Judge Barnes presented his own testimony along with the testimony of Dennis Devlaming (a defense attorney) and Michael Minerva (a retired public defender). (T. 326,354). Defense counsel Murrell placed Judge Barnes on the stand and allowed the prosecution to cross examine him at length. Judge Barnes, without the assistance of questions from his own counsel, presented an extended explanation as to his side of the entire political and legal controversy. (T. 396,etc.). The controversy will be dealt with in greater detail herein but it was apparent that Judge Barnes, as a County Commissioner and as a County Judge believed that the solution to the jail 14

15 overcrowding problem was fewer inmates as opposed to more jail capacity. (T. 416). Numerous others in the court system disagreed. (T ,249). The jail was in fact enlarged. (T. 6-7). In addition, a public defender was stationed at the jail building to assist on first appearances. The basic facts concerning Judge Barnes' guest column newspaper publication along with the Petition for Mandamus and the numerous letters back and forth were all uncontested and stipulated to. Judge Barnes contended that the numerous other public officials, including the first appearances judges, were not complying with the law in fulfilling their duty regarding first appearances. On the other hand, the other judges and other public officials asserted they were acting correctly and in accordance with law. In short they asserted that first appearances were rarely important and it was really not necessary that they be attended. (T. 308). It was agreed that the Public Defender and State Attorney did not attend weekend first appearances and indeed in earlier days attendance during the week was not routine. (T ,117,120,122,307, 313). Assistant State Attorney Thomas Bakkendahl indicated that several of his lawyers were complaining to him about Judge Barnes. (T. 303). He also testified that "I was once told by a seasoned judge in this circuit...that the state attorney is 15

16 nothing more than a potted plant at first appearances." (T. 308). On the other hand, Judge Barnes called an attorney who had done criminal defense work for the last 36 years who testified that the state attorney and public defender should attend first appearances and that the public defender particularly can provide information concerning what will be a proper bond or other release arrangement so that people do not have to sit in jail awaiting further court action. (T. 337,340,352). He recognized that the rules governing first appearances require nonmonetary release arrangements or some sort of supervised release arrangement. Judge Barnes also called Michael Minerva who is a retired public defender from Tallahassee. He testified the public defender always appears at first appearances in Leon County, that counsel are to be appointed before the first appearance and that the sitting judge is supposed to start with a presumption in favor of a nonmonetary release arrangement. (T. 357,359,361,364). Mr. Minerva's opinion was that public defenders would be derelict in their duty in not attending weekend first appearances. (T. 378). Judge Barnes testified at length and provided numerous arguments of a legal nature against the legal positions taken by the State Attorney and Public Defender's offices. (T ). 16

17 Judge Barnes further introduced a CD reflecting a hearing he presided over on a mentally retarded individual who he released which became a very controversial ruling by Judge Barnes. The charge against this defendant on a violation of probation was a serious sexual offense and the case was actually before Judge Phillip Yacucci who became irate when the release occurred. (T ). Barnes and Yacucci had been in the public defender s office together and were close friends. The first appearance controversy came between them. (T ). There was conflicting evidence on the statewide practice of attendance at first appearances by public defenders. The Panel concludes that weekend first appearances are usually attended by the other public defender's offices but there are a limited number of counties where the public defender does not routinely attend first appearances. All of this is further complicated by the fact that first appearances are often done on a video hookup and the arrested individual is never actually in the physical presence of the trial judge. Due to this controversy, St. Lucie County eventually funded a public defender to be present at the jail to assist in first appearances on weekdays. (T ). However there were also numerous complaints that the rules require the arresting officer to immediately put the person arrested in contact with the public defender's office if the 17

18 officer has reason to believe the person is indigent. See Rule There was substantial evidence, including the Justice System Assessment and Report, that this did not occur in St. Lucie County. (Barnes Exh. 2). It was agreed that the State Attorney and Public Defender did not attend weekend first appearances and that these were the days when the largest number of individuals are arrested. (T ,120). It was also uncontested that when a person is arrested he or she is initially given the opportunity to post a bond by resort to a bond schedule which lists different amounts for all of the different possible offenses. If the person posts the scheduled bond, then he is not placed in jail. On the other hand, if he cannot post the necessary bond, he is incarcerated and under the Criminal Rules and statutes is to be given a first appearance before a judge along with the assistance of counsel within 24 hours. In short, according to Judge Barnes, if the arrested person cannot pay then he goes to jail and only the first appearance judge can take the necessary steps to fashion nonmonetary release conditions. Judge Walsh was criticized by Judge Barnes because at first appearances he routinely tells indigent and unrepresented defendants that he does "not take statements" and refuses to hear them at all. (T ). 18

19 The Florida Criminal Rules address the pretrial release of arrested person in detail. The constitutional right to bail is fully recognized and Rule requires that, aside from capital and life felonies, every defendant "shall be entitled to pretrial release on reasonable conditions" and that "there is a presumption in favor of release on nonmonetary conditions...". Thus Florida judges are required to start with a presumption that an arrested person should be released without the posting of a monetary bond. The rules require that the court consider a list of nonmonetary conditions before the court can impose a monetary bail bond. Rule 3.131(b) states the list in order of preference. First, a personal recognizance which is commonly known as an "ROR" or release on own recognizance must be considered. The second alternative that must be considered is an unsecured appearance bond in an amount set by the judge. The third alternative is the placing of restrictions on travel and the place of abode of the defendant during the period of his release. The fourth alternative is to place the defendant in the custody of a designated person or organization that agrees to supervise him or her awaiting further court action. The fifth alternative is the "execution of a bail bond with sufficient solvent sureties". 19

20 Thus it is clear that the imposition of the bail bond should not be the first alternative considered by a judge presiding over first appearances. In addition, the rules require that the arrested individual be immediately placed in contact with the public defender and that the public defender be given the opportunity to confer with his new client before anything else occurs concerning his first appearance. In addition to the procedural rules, Florida Statues also creates a "presumption in favor of release on nonmonetary conditions" for all but certain enumerated "dangerous crimes". In addition to all of the duties of the public defender outlined in the rules, the state also has a mandatory duty under Rule 3.132(a) to file a written motion seeking pretrial detention at the time of the first appearance. When the state does not file such a motion the trial court must proceed to determine the conditions of release pursuant to Rule 3.131(b)(1). Duffy v. Crowder, 960 So. 2d 909 (Fla. 4th DCA 2007). Thus, pursuant to the rules an arrested individual is not to be incarcerated when he is unable to post a bond unless the state files an actual motion requesting that incarceration. The Petition for Mandamus This document was typed solely by Judge Barnes and sums up the entire controversy over the first year of Judge Barnes' 20

21 position on the county court. The Petition was never responded to and it is obviously an argument from Judge Barnes' point of view. The District Court raised the question of standing but that issue was never decided. The Hearing Panel concludes that it has no duty to determine the standing of Judge Barnes to file the Petition nor does it have a duty to determine the validity of the Petition. The primary question is whether the Petition should have been filed at all. The Petition, which was signed by Judge Barnes in his capacity as a County Judge, was not filed within a case which was pending before Judge Barnes. There is little doubt that a prisoner could have filed for mandamus in his own case to compel the public officials to perform their mineristal duties but it is apparent that no such filing occurred. Mandamus is a common law remedy used to compel a public official to perform a ministerial duty rather than a discretionary act. Allston v. State, 685 So. 2d 1312 (Fla. 2d DCA 1996). The Vote of the Panel The findings of guilt contained in these Findings, Conclusions and Recommendations where each determined by at least a two-thirds vote of a six member hearing panel in accordance with Article V, 12(b) of the Florida Constitution and Rule 19 of the JQC Rules. In the view of the hearing panel, 21

22 each of the affirmative findings herein are supported by Judge Barnes admissions along with the clear and convincing evidence in accordance with In re Henson, 913 So.2d 579 (Fla. 2005); In re Ford-Kause, 703 So.2d 269 (Fla. 1999); In re Graziano, 696 SO.2d 744, 753 (Fla. 1997); and In re Davey, 645 So.2d 398, 404 (Fla. 1994). The vote of the six member panel on both guilt and recommended discipline met the two-thirds requirement of the Florida Constitution and the JQC Rules. COUNT 1 The Guest Column Article. The hearing panel concludes that the evidence on this issue was not sufficiently clear and convincing and thus Judge Barnes is found not guilty. Other judges in the county also published their views in the local press. (T. 68,69). COUNT 2 The Petition for Mandamus and the appearance of inability to act in an impartial manner in criminal cases. The hearing panel finds that the Petition for Mandamus did create a real question as to Judge Barnes ability to act in an impartial manner in criminal cases before him. Although the Petition was critical of numerous public officials including the state attorney and the public defender the overall effect was to advocate for the rights of the accused defendants and to advocate against their incarceration. We do not fault Judge Barnes for any of his individual rulings on specific cases which were before him. These rulings were his proper functions as a 22

23 trial judge. However the Petition for Mandamus was much more than a ruling in an individual case. There can be little doubt that after the Petition for Mandamus individual defendants would prefer to have had Judge Barnes sitting on their cases rather than any of the other judges at first appearances. This is particularly true here where Judge Barnes severely condemned the actions of the public defender and state attorney, the sheriff and the other judges. Without question this was a political controversy of long standing and it may well have deserved the serious attention and efforts of Judge Barnes. However, he should not have effectively sued all of the other elected public officials asserting that they were all refusing to apply the law. Certainly Judge Barnes had appealing legal and factual arguments but there were similarly many possibly meritious counter-arguments by all those persons he named as respondents. As previously indicated this panel is simply not in the position of being able to judge who was right and who was wrong on these very important issues. They are largely unsettled legal or political issues, and will remain so until a court in an individual case actually determines an issue. Our judicial system runs on the underlying principle of reliance on precedent. Florida Dept. of Transp. V. Juliano, 801 So. 2d 101 (Fla. 2001); Finston v. Finston, 37 So. 2d 423 (Fla. 1948). 23

24 Even Judge Barnes seemed to agree with this in his dismissal of his own Petition for Mandamus. If an appellate court rules that the public defender must attend every first appearance then that will be the law of the district but that ruling will occur in an individual case rather than in a largely political argument postured as a Petition for Mandamus against public officials. Count 3 - Petition for Mandamus as the practice of law. Judge Barnes contended that he was not practicing law because he was not representing a client. The panel concludes the filing of the Petition for Mandamus did constitute the practice of law and that Judge Barnes is guilty of an ethical violation in this regard. We recognize it is "difficult to define exactly what constitutes the practice of law". See The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). Indeed, the Supreme Court of Arizona has described the practice of law: "We believe it is sufficient to state that those acts, whether preformed in court or in the law office, which lawyers customarily have carried on from day to day through the centuries must constitute "the practice of law". See State Bar of Arizona v. Arizona Land & Title Trust Co., 366 P.2d 1, 9 (Ariz. 1961) (enbanc). Under The Florida Bar v. Kaufman, 452 So. 2d 526 (Fla. 1984), the appearance in court in any proceeding which is part of the judicial process constitutes the 24

25 practice of law. Here Judge Barnes was not acting on his own behalf but was instead acting on behalf of all those persons who had been or might be arrested and incarcerated in St. Lucie County. Indeed, his own Petition, which he signed as a judge, stated that he was acting as a public defender in reliance on 27.59, Florida Statutes. The panel concludes that Judge Barnes has violated the Canons by practicing law in this matter. However, the panel notes that Judge Barnes was not motivated by ill-will or any desire to harm the judicial system in the filing of the Petition for Mandamus. In fact, the motives of Judge Barnes were essentially high-minded and proper. Count 5 Public attacks against sitting judges. The panel concludes that Judge Barnes is guilty of this charge in a qualified sense. As already indicated the panel does not find that the allegations regarding judicial education, attire during court proceedings and attendance at judicial meetings to have constituted ethical violation. However, Judge Barnes clearly mounted public attacks against his fellow sitting judges and this constituted a violation of Canons 1 and 2 because these sitting judges were called into disrepute. Judge Barnes was acting outside his proper judicial function in criticizing these other sitting judges. The basic function of a judge in Florida is to deal with issues placed before him in 25

26 actual court cases over which he has jurisdiction. In filing this Petitioner for Mandamus Judge Barnes was clearly acting outside of his proper judicial functions. In any given case Judge Barnes was certainly at liberty to write a judicial order concerning a defendant s release from incarceration following a weekend first appearance. He could have expressly ruled that the public defender had been absent and imposed a sanction against her. This would have been an appealable order and the District Court of Appeal would have ruled on it. This would have been entirely distinguishable from the Petition for Mandamus attacking the majority of the judicial structure of St. Lucie County. Surely there must have been an individual case in which the defendant was wrongly incarcerated by another judge and Judge Barnes could have put that defendant in contact with an attorney who could have made the necessary arguments on his behalf. The panel concludes that Judge Barnes is guilty of this charge as qualified herein. Count 6 - Failure to follow proper channels. The panel concludes Judge Barnes is in violation of Canons 1 and 2 by failing to follow proper channels regarding the other judges alleged misconduct. Although we do not find guilt under Court I concerning the newspaper article, we do suggest that Judge Barnes should have resorted to the JQC or the Florida Bar 26

27 or taken other steps within the system. He could have postured cases for appeal. Instead, Judge Barnes himself chose to become a litigant against the system. Even if his motives where good he was still not at liberty to become a litigant in a case that was not before him. We do not find guilt concerning the newspaper article but we do find guilt concerning the Petition for Mandamus. Judge Barnes asserts there was no other alternative but the Panel does not accept this as true. Even if no one else was willing to help that did not give Judge Barnes the right to proceed as he did. Count 7 - Cumulative Misconduct The panel concludes that Judge Barnes is not guilty under this count. The Applicable Canons The Canons allegedly violated are Canons 1, 2, 3 and 5. In relevant part these Canons provide as follows: Canon 1. A Judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence in the judiciary maybe preserved. Canon 2 A and B provide: (A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence and impartiality of the judiciary. (B) A judge shall not allow family, social, political or other 27

28 relationships to influence the judge s judicial conduct or judgment. Canon 3 provides: The judicial duties of a judge take precedence over all of the judges other activities. The judge s judicial duties include all of the duties of the judge s office described by law. In the performance of these duties, the specific standards set forth in the following sections apply (B) Adjudicative Responsibilities (1) a judge shall hear and decide matters assigned to the judge... (2) a judge shall be faithful to the law and maintain professional confidence in it. A judge shall not be swayed by partisan interest, public clamor, or fear of criticism. We note that Canon 3 also allows the judge to make pubic statements in the course of official duties and that these restrictions do not apply when the judge is a litigant in a personal capacity. As previously indicated we do not consider the Petition for Mandamus to have been filed in a personal capacity by Judge Barnes. Canon 5 provides: A judge shall conduct all of the judge s extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge s capacity to act impartially as a judge. Despite his good motives we conclude Judge Barnes has violated these Canons and recommend he should be publicly reprimanded by this Court and compelled to pay costs of these proceedings. 28

29 SO ORDERED this 29th day of July, FLORIDA JUDICIAL QUALIFICATIONS COMMISSION By:/s/ Thomas B. Freeman THOMAS B. FREEMAN, Chairman, Hearing Panel, Florida Judicial Qualifications Commission 1110 Thomasville Road Tallahassee, Florida / / (fax) Copies furnished in accordance with the attached list. 29

30 Donnie Murrell Counsel to the Judge 400 Executive Center Drive Suite Executive Center West Palm Beach, FL (561) (561) Michael Schneider Brooke Kennerly Florida Judicial Qualifications Commission 1110 Thomasville Road Tallahassee, Florida (850) (850) (fax) Marvin C. Barkin Special Counsel P.O. Box 1102 Tampa, FL (813) (813) (fax) John Beranek Counsel to the Hearing Panel Ausley & McMullen P.O. Box 391 Tallahassee, Florida (850) (850) (fax) h:\jrb\jqc\barnes\barnes.findings.doc 30