Judicial Timekeeping

Seemingly in every exposition, we have become accustomed to the overarching disclaimer of innocence. The U.S. attorney regularly precedes listings of charges with something like: "The charging documents are merely accusations and defendants are presumed innocent until proven guilty." That is an appropriate reminder, and we must all maintain a focus on that reality. In this country, we are each presumed innocent until such time as the government proves us guilty.

With that caution in mind, a recent filing regarding a Florida judge is of interest. On April 13, 2021, the Florida Judicial Qualifications Commission filed a Notice of Formal Charges with the Florida Supreme Court.

This references multiple canons of the Code of Judicial Conduct, applicable to the Florida Courts through adoption by the Supreme Court pursuant to constitutional authority:

"Your actions constitute violations of the provisions of Canons 1, 2A, 3B(2), 3B(4), 3B(8) and 3C(1) of the Florida Code of Judicial Conduct and Art. V, §13 of the Florida Constitution, Canon 3A and Florida Supreme Court Admin. Order 2014-66, and Palm Beach County Admin. Orders 11.107-9/08 and 11.107-01/18"

The topic is worthy of consideration here because the same Code is applicable to Florida Judges of Compensation Claims through legislative adoption, see section 440.442, Fla. Stat.

The Notice, as quoted above, finds concern with three separate Canons, the Constitution, and more. Canon 1 is focused on "Uphold(ing) the Integrity and Independence of the Judiciary." Canon 2A is focused on "promot(ing) public confidence in the integrity and impartiality of the judiciary." Canon 3A is focused upon judicial "duties . . . tak(ing) precedence over all the judge's other activities. Canon 3B(2) requires a judge "shall be faithful to the law"; Canon 3B(4) requires a judge "shall be patient, dignified, and courteous"; Canon 3B(8) requires a judge "judge shall dispose of all judicial matters promptly"; and 3C(1) requires a judge "shall diligently discharge the judge's administrative responsibilities."

Specifics in the Notice are more focused, providing the following foundation statements:

Art. V, §13 of the Florida Constitution “All justices and judges shall devote full time to their judicial duties.”

Canon 3A “The judicial duties of a judge take precedence over all the judge’s other activities.”

Florida Supreme Court Admin. Order 2014-66 (‘Diligent Performance of Judicial Duties’) “The failure of any judge to comply with an administrative order or directive of the Chief Judge is considered neglect of duty…” “The chief judge in each circuit shall separately communicate to all trial court judges in that circuit the importance of a professional work ethic and accountability to the judiciary as a full-time commitment under the [Code of Judicial Conduct] and the Constitution of Florida.”

Being a judge is a full-time job. I know many judges, and I am persistently amazed by their perseverance, patience, and dedication. Their work ethic is often laudable and sometimes simply above and beyond expectations. I have known judges to wait patiently into the evening for a jury, all the while working on other orders, correspondence, and more in the interim. I have become aware of JCCs who work evenings, weekends, and early mornings to produce the orders necessary to keep this community functioning. That is not to say judges do not have slack time, or that they do not take leave. They do. But, overall, most invest incredible time and effort into their responsibilities. 

The Notice of Formal Charges in this instance alleges that a county court judge "failed to devote full time and attention to . . . judicial duties during" at times in 2016. The document notes that courthouse absences and work less than "full time" are alleged "on a recurring basis." There are similar allegations about 2017 and 2018 and 2019.

In addition, the Commission alleges that this county court judge failed to "properly notify the Chief Judge of . . . absences or keep adequate records of . . . leave time between 2016 and 2019." Judges keep records and report time away from the office. That may come as a surprise to some. 

The Commission concluded that these alleged absences and record-keeping allegations:

"constitute violations of the provisions of Canons 1, 2A, 3B(2), 3B(4), 3B(8) and 3C(1) of the Florida Code of Judicial Conduct and Art. V, §13 of the Florida Constitution, Canon 3A and Florida Supreme Court Admin. Order 2014-66, and Palm Beach County Admin. Orders 11.107-9/08 and 11.107-01/18."

The Judge is permitted 20 days in which to file a response with the Florida Supreme Court. The judge's attorney commented to the South Florida Sun-Sentinel that the judge "always, without exception, completed all her own work on the County Court." Furthermore, the attorney asserts that this judge additionally performed "hundreds of hours of additional work for Circuit Court Judges.” The attorney essentially asserts that this judge was working "remotely" before the COVID-19 pandemic made that paradigm familiar and accepted. Will challenges with time-keeping become more common to all employers as a result of this shift to a "remote" world?

Too many years ago for me to admit (candor), I was appointed to the bench with high aspirations. I was convinced that there was much that troubled the Florida Office of Judges of Compensation Claims. In those days, the work ethic of some of our judges was a frequent subject of both disdain and complaint.

There was the story of a judge who showed up late for a trial due to urgent Christmas shopping. Another was told of a judge adjourning a trial to accommodate a grooming appointment. Some recounted often finding a particular judge sitting in chambers reading a newspaper or book. Back in those days, as hard as it may be for the current practitioners to grasp, it sometimes took years for a final order to be issued after a trial concluded. We currently average well under 30 days; that remains true year after year.

When I was appointed, one of my first conversations was with a seasoned Judge of Compensation Claims. The judge offered me several suggestions, which were well taken. I relished the advice significantly, but I was more touched that this judge thought enough of me to offer advice. As Baz Lurhman taught me long ago:

"Advice is a form of nostalgia, dispensing it is a way of fishing the past

From the disposal, wiping it off, painting over the ugly parts

And recycling it for more than it's worth"

You have to be careful of advice. Baz acknowledges that: "Be careful whose advice you buy but be patient with those who supply it." But, I was pleased to have this advice. That judge told me: "Dave, just remember that half of this job is just showing up." The judge explained to me that the public needed to know that when they had needs, those would be met. I took that to heart and strove to be present in the district office persistently.

Many years have passed. For the last 14 years, the Florida OJCC has published aggregate figures regarding the time required to enter trial orders. The period for trial orders is also reported for each individual judge. For several years, the Annual Report has similarly included the average days from the filing of a settlement motion to the entry of an order. These figures support that tremendous progress has been made as regards timeliness. And, as important, the judges of the twenty-first century OJCC are known for their professional demeanor, timely adjudications, and efficiency. We have indeed come a long way.

I try to pass that senior judge's advice on to each new appointee: "Show up." In the midst of COVID, we had some judges, mediators, and staff telecommute out of necessity. Their reasons varied. The need was most often periodic. At the height of telecommuting, perhaps 20% of the OJCC staff was doing so on a given day. The OJCC never closed, though a couple of offices were shuttered for a day of deep cleaning here or there. But, the work was done, and demonstrably so. the Florida Judge of Compensation Claims is more transparent and apparent in terms of work accomplished than any other judicial officer of which I am aware. The Annual Report is encyclopedic and detailed, easily accessed, and broadly informative.

Throughout the pandemic, and for years before, the judges here accepted the maxim "show up." The work may not require it; we might write orders at home, the beach, or the mountains. But, the people who depend upon us expect it nonetheless: "show up." I am proud of the performance of this Office, the dedicated staff, mediators, and judges that not only saw you through a pandemic but continued each day before and since to "show up."

I will watch with interest as the Supreme Court works its way through the allegations noted at the outset. Will the issue in this case be time spent in the Courthouse or volume of work product produced? How will the Court view the "full-time" and "precedence" requirements of the Canons of the Code? What will the Court conclude as to the merits of the allegations the Judicial Qualifications Commission has filed? In any event, the filing is an interesting reminder of our obligations as judges, and the pride I have in those with whom I am honored to serve.