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November 15, 2011
Amendments to the JQC rules

The Florida Judicial Qualifications Commission has filed with the Florida Supreme Court a Notice of Adoption of Amendments to the Rules of the Florida Judicial Qualifications Commission. According to the notice, the amendments primarily conform the rules to the current practices of the JQC and the court. The court invites all interested persons to comment on the amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before December 1, 2011, with a certificate of service verifying that a copy has been served Miles A. McGrane, III, Commission Chair, 75 Valencia Avenue, Suite 1100, Coral Gables 33134, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The chair has until December 22 to file a response to any comments filed with the court. Electronic copies of all comments also must be filed in accordance with the court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). 


IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES, CASE NO. SC11-1897.

RULE 2. DEFINITIONS
(3) “Hearing Panel” means a division of the Commission vested with the authority to receive and hear formal charges from the Investigative Panel. The Hearing Panel, by majority vote of its members may recommend to the Supreme Court that a judge be subject to appropriate discipline. Upon a two-thirds vote of four members, the panel may recommend to the Supreme Court the removal of a judge, as provided in Article 5, § 12, of the Constitution of the State of Florida, or the involuntary retirement of a judge for any permanent disability that seriously interferes with the performance of judicial duties.

(6) “General Counsel” means any member(s) of The Florida Bar designated by the Commission to serve as legal advisor to the Commission and Investigative Panel, and to perform such other duties as authorized by the Commission.

(8) “Special Counsel” means any member(s) of The Florida Bar designated by the Investigative Panel to gather and present evidence before the Investigative Panel or the Hearing Panel with respect to the charges against a judge and to represent the Commission in all any proceedings, related to the activities of the Commission including investigations.

RULE 3. MEMBERSHIP AND JURISDICTION
(a) The membership of the Commission shall be as prescribed in Article V, Section 12 of the Constitution of the State of Florida and for such term as prescribed by general law. When a member ceases to be a member of the appointing body from which that member was appointed or whenever any member becomes otherwise ineligible to hold office, that person’s membership on the Commission shall terminate. The Chair shall promptly notify the appointing authority of the vacancy. In the event of a vacancy the Chair of the Commission shall appoint a temporary replacement as provided in Rule 25.

RULE 4. OFFICERS OF THE COMMISSION
The Commission shall elect a Chair and a Vice-Chair, each of whom shall serve for a term of two years. The Vice-Chair shall act as the chair of the Commission in the absence of the Chair. If both the Chair and the Vice-Chair are absent, then a majority of the members present may appoint a Chair Pro Tempore. The Commission may appoint employ staff, including an executive director, and General Counsel, and such other staff as necessary to carry out its duties. The Commission will consider and decide matters relating to budget and other business of the Commission not specifically assigned to its panels. The Hearing Panel may appoint Counsel to the Hearing Panel to serve as its legal advisor.

RULE 6. INVESTIGATIVE PANEL RULES
(a) The Investigative Panel of the Commission, upon receiving factual information, not obviously unfounded or frivolous, or an individual complaint made under oath, indicating that a judge is guilty of willful or persistent failure to perform judicial duties, or conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or conduct violative of the Code of Judicial Conduct, or that the judge has a disability seriously interfering with the performance of the judge’s duties, which is, or is likely to become, permanent in nature, may make an investigation to determine whether formal charges should be instituted.

(b) The judge has no right to be present or to be heard during an investigation, but before the Investigative Panel determines that there is probable cause to initiate formal charges, the judge shall be notified of the investigation, the general nature of the subject matter of the investigation, and shall be afforded reasonable opportunity to make a statement before the Investigative Panel, personally or by the judge’s attorney(s), verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct or disability, and to respond to questions from the Panel. The judge shall not have the right to present other oral testimony or evidence, nor the right of confrontation or cross-examination of any person interviewed, called or interrogated by the Investigative Panel; provided that the Investigative Panel in its sole discretion may receive and consider documentary evidence, including affidavits submitted by a judge. Such notification shall be given personally, by registered or certified mail, or by delivery by a commercial service, addressed to the judge at the judge’s chambers or, if returned undelivered, at the judge’s last known residence.

(e) The Investigative Panel shall have access to all information from all executive, legislative and judicial agencies, including grand juries. At any time, on request of the Speaker of the House of Representatives or the Governor, the Commission shall make available all information in possession of the Commission for use in consideration of impeachment or suspension, respectively.

(f) When the Investigative Panel finds probable cause that formal charges should be filed against the judge, the Investigative Panel shall file a Notice of Formal Charges with the Clerk of the Supreme Court. The Investigative Panel shall designate one or more Special Counsel who shall prepare appropriate papers and pleadings, gather and present evidence before the Hearing Panel with respect to the charges against the judge, and otherwise act as counsel in connection with the prosecution of the charges against the judge, including the representation of the Commission in connection with any Commission or judicial proceedings. The Investigative Panel shall cause to be served on the judge a copy of the Notice of Formal Charges. Such proceedings shall be styled:

“BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION”

“Inquiry Concerning a Judge, The Honorable ______________, No. ______”

(h) Service of the notice shall be made personally, by registered or certified mail or by commercial delivery service, addressed to the judge at the judge’s chambers or, if returned undelivered, at the judge’s last known residence.

(j) The Investigative Panel may reach agreement with a judge on discipline or disability, and such stipulation shall be transmitted by it directly to the Supreme Court to accept or reject or modify in whole or in part. If rejected, such agreement shall be without prejudice to any party thereto.

RULE 7. HEARING PANEL RULES
(a) The Hearing Panel shall receive, hear and determine formal charges from the Investigative Panel. The Hearing Panel Chair of the Commission shall select one of its the Hearing Panel members as Chair.

RULE 9. ANSWER
Within 20 days after service of the Notice of Formal Charges, the judge may serve and file an Answer, a copy of which shall be served on the Chair of the Hearing Panel and the original of which shall be filed with the Clerk of the Supreme Court. If the judge desires that all the final hearings be heard in the county of the judge’s residence, the judge shall so demand in writing at the time the initial Answer is filed.

RULE 12. PROCEDURE
(a) Settlement Negotiations. Prior to commencement of the hearing to determine formal charges against a judge, the Investigative Panel retains the authority to enter into stipulations for proposed discipline with the judge or judge’s representatives. After the commencement of the hearing to determine formal charges against a judge, the Hearing Panel shall have the authority to enter into stipulations for proposed discipline with the judge or judge’s representative, which it shall incorporate into its recommendation to the Supreme Court.

(a)(b) In all proceedings before the Hearing Panel, the Florida Rules of Civil Procedure shall be applicable except where inappropriate or as otherwise provided by these rules.

(b)(c) Special Counsel shall, upon written demand of a party or counsel of record, promptly furnish the following:

The names and addresses of all witnesses whose testimony the Special Counsel expects to offer at the hearing, together with copies of all written statements and transcripts of testimony of such witnesses in the possession of the counsel or the Investigative Panel which are relevant to the subject matter of the hearing and which have not previously been furnished, except those documents confidential under the Constitution of the State. When good cause is shown this rule may be waived.

(c)(d) At the time and place set for hearing, the Hearing Panel may proceed with the hearing whether or not the judge has filed an Answer or appears at the hearing.

RULE 21. REVIEW OF PROCEEDINGS
(a) Non-Final. Non-final orders of the Hearing Panel are subject to immediate review only where it can be demonstrated that an order departs from the essential requirements of law, causing material injury to the petitioner, and leaving no adequate remedy after issuance of the Hearing Panel’s report and recommendations. Review of such orders shall be by appropriate extraordinary writ, directly to the Supreme Court. In the absence of a stay the hearing shall proceed to a conclusion.

(b) To the extent necessary to implement this rule, the Florida Rules of Appellate Procedure and Rule 2.140 2.310 of the Florida Rules of Judicial Administration shall be applicable to reviews of Investigative and Hearing Panel proceedings by the Supreme Court.

RULE 22. SUBPOENAS
Subpoenas for the attendance of witnesses and the production of documentary evidence in any proceedings shall be issued as follows:

(a) For investigative purposes, subpoenas may be issued for the attendance of witnesses and the production of documents before the General Counsel or Special Counsel with respect to any potential violation of the Code of Judicial Conduct, and counsel is empowered to administer oaths to all who are summonsed to testify or who may voluntarily appear before counsel to testify as to any potential violations of the Canons of the Code of Judicial Conduct.

(b) Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery, and for the appearance of any person before any panel of the Commission or any member, may be issued by any member, the General Counsel, Counsel to the Hearing Panel, or Special Counsel, and may be served in the manner provided by law for the service of witness subpoenas in a civil action.

(b) (c) Contempt. Any person who, without adequate excuse, fails to obey such a subpoena of the Commission or a panel of the Commission served upon that person may be cited for contempt of the Commission in the manner provided in these rules.

RULE 23. CONFIDENTIALITY OF PROCEEDINGS
(c) Every witness in every proceeding under these Rules shall be sworn swear or affirm to tell the truth and not to disclose the existence of the proceeding, the subject matter thereof, or the identity of the judge until the proceeding is no longer confidential under these Rules. Violation of this oath shall be an act of contempt of the Commission.

RULE 25. DISQUALIFICATION OR VACANCY
(e) Upon the vacancy of a position on the Commission due to resignation or ineligibility as a member of the Commission, or upon the failure of the appointing authority to timely appoint a constituent member, the Chair shall appoint an ad hoc member from a list provided by the appropriate appointing authority. Each such replacement shall be from the same category as the disqualified member(s) set forth in Section 12(a), Article V of the Constitution of the State of Florida, and shall serve only until the appointing authority selects a representative to fill the vacancy.

RULE 26. CONTEMPT
Should any witness fail, without justification, to respond to the lawful subpoena of the Commission or, having responded, fail or refuse to answer all inquiries or to turn over evidence that has been lawfully subpoenaed, or should any person be guilty of disorderly or contemptuous conduct before any proceeding of the Commission, or should any person violate the confidentiality of a proceeding conducted prior to the filing of formal charges, a motion may be filed in the name of the Commission before the Circuit Court of the County in which the contemptuous act was committed, alleging the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of an alleged contempt of the Commission. Such motion shall pray for the issuance of an order to show cause before the Circuit Court why the Circuit Court should not find the person in contempt of the Commission and why that person should not be punished by the Court therefore. The Circuit Court shall issue such orders and judgments therein as the Court deems appropriate.

[Revised: 03-05-2012]