I have spent many hours studying the Florida Code of Judicial Conduct. It is a fascinating document full of cautions, prohibitions, and implications. Through various statutory amendments over the years, the Legislature has applied its terms to the Judges of Compensation Claims (JCC), see sections 440.442 and 440.45, Fla. Stat.
In the administrative realm, the Code might serve as the basis for a complaint against a JCC and be examined by the Division of Administrative Hearings. But, in the constitutional courts, allegations or complaints are investigated by the Judicial Qualifications Commission (JQC), a constitutionally independent commission comprised of judges appointed by judges, lawyers appointed by The Florida Bar, and laypersons appointed by the Governor. Fla. Const. Article V., section 12.
I have spoken with many who mistakenly believed the JQC to be an arm of the Florida Supreme Court. Though its constitutional authority is within Article V., its membership and function are separate from the courts, per se. Ultimately, any complaint that the JQC pursues is heard by the Supreme Court, and the independence of each is therefore critical.
There are various complaints each year, and the published opinions periodically grace these pages. Eventually, I will perhaps finish my tome on the Code and its implications for judges. But if you are interested in the history of the code, there is a video on YouTube. The history of the Code is intriguing and strange.
The Code, the JQC, and the implications came back to me recently when a news article hit my feed. Channel 6 South Florida noted that the JQC had concluded an "appellate court judge 'demeaned' her judicial office." That is a headline you don't readily anticipate. The allegations are about as far from Paradise as you can get while still in Florida (Miami), but are interesting nonetheless.
The facts surround a criminal prosecution years ago and a prosecutor who progressed from that occupation to trial judge and eventually the Third District Court of Appeal (3DCA). The story of that prosecution reads like some Hollywood thriller with allegations of conspiracy, intrigue, murder, coercion, threats, and more. The case she had prosecuted was recently returned to the trial court by the Florida Supreme Court to readdress some issues.
That led to questions about the prosecution years ago, and therefore questions for the former prosecutor, now appellate judge. It is fair to say that the circumstances of that prosecution, the challenges, tragedies, and trepidations, are all interesting in their own right; still, the intricacies of engaging this judge as a witness were a significant feature.
The current State Attorney was on a first-name basis with the judge and texted her on her personal phone. Thereafter, there were various text messages, which ended up in the news and in the hands of the JQC. Some were focused on the mechanics of testifying, but some expressed perceptions, thoughts, or conclusions.
The JQC conclusions here were not about the 3DCA judge's testimony in those recent court proceedings. They are not really centered on the 3DCA judge's judicial duties, as the judges of that court recused themselves when the matter returned to them.
The conclusions are instead centered on the text messages between the 3DCA judge and the State Attorney's office. The judge contends they were private communications, on her time and on her personal phone. The JQC seems to see little pertinence to that distinction.
The JQC Notice of Formal Charges is 22 pages and concludes with multiple charges. These include failing to observe the high standards of conduct necessary to the integrity of the judiciary, failure to demonstrate respect and compliance with the law, making comments that "might substantially interfere with a fair trial," and various concerns with impartiality, demeaning the office, interference with other judges, and the potential for disqualification.
The Judge's response is actually a motion to dismiss and for other relief. It is broad and about twice as long as the Notice. It includes extensive allegations about the JQC Notice, criticisms or rebuttals of specific paragraphs and charges, and citations to various precedents and conclusions. Among these is a challenge based on the First Amendment to the U.S. Constitution and the contention that judges have the right to freedom of expression.
Every lawyer would love to make constitutional arguments. There is a draw to the foundational and elemental role of that document in America and her judicial history. The Judge's response pulls in the thoughts of James Madison and Thomas Jefferson and quotes from Justices Black, Cantero (FL), Kennedy, Roberts, Scalia, and Thomas (no primacy is inferred in this alphabetical listing).
The arguments are, as to be expected, advocacy. There is much to consider in both Notice and Response/Motion. As the Court examines these allegations, it will be intriguing to explore its determinations of the applicability and pervasiveness of the First Amendment. The underlying theme of each is interesting reading.
The outcome will potentially be of interest to all who serve under the umbrella of the Code of Judicial Conduct, in Florida and beyond. To what extent does the judge yield freedom upon taking the oath?
