Judging the judges:A look at the JQC
Judging the judges:
A married judge sent a spicy e-mail to a fellow judge suggesting they sneak down to Colombia, sip margaritas at their own private happy hour and do an exotic dance together, signing it “Lover Boy.”
Another judge was so angry that a death-penalty expert didn’t appear for a trial — even though he had been improperly subpoenaed by fax — that she issued a bench warrant for his arrest. The expert, who was the guest speaker at a death-penalty conference, was mortified in front of a large group of attending lawyers when he was handcuffed by police and led away to a squad car that took him to jail.
In a separate incident, this same judge marched into another judge’s trial, walked up to the court reporter who was busy taking down every word of opening statements and demanded that she immediately move her car improperly parked in her judicial assistant’s spot. The trial was at a standstill while the court reporter left the courtroom in tears.
And yet another judge was so miffed a police officer gave him a ticket for parking his green Corvette in a no-parking zone that he angrily spewed the “f-word” and told the cop he was a judge who’d be on the bench for four years and he’d have to deal with him every time he came to court.
Such are the human foibles of Florida judges who — fueled by arrogance, ignorance or a lapse of judgment — cross the line of behavior expected of the judiciary, as detailed in the Code of Judicial Conduct. The agency charged with the duty of investigating complaints against judges is the Judicial Qualifications Commission, made up of judges, lawyers and lay people.
Since a constitutional revision created it in 1966, the agency now housed in the Historic Capitol has been quietly going about its business with little funding, little public fanfare and generous help from its volunteer members.
Most everyone on the JQC agrees the system works pretty well at its mission to protect the public from judges who abuse their power or help faltering judges see the errors of their ways. Statistically, the JQC appears to discipline a high number of the judiciary, compared with other licensed professionals in the state. Between 1990, when the state judiciary had 726 members, to 1999, when it had grown to 829, charges were filed by the JQC against judges 70 times. That means on average a bit under one percent of the judiciary each year faces JQC charges.
That compares with a typical Bar disciplinary rate of around 0.8 percent annually and about half or less for most professions regulated by the state Department of Business and Professional Regulation and the Agency for Health Care Administration.
Overall, since 1970, the JQC has filed charges 118 times with the Supreme Court. Members added that does include several cases where judges resigned once they learned the JQC was investigating them.
Out of about 500 complaints received each year, about 400 don’t belong at the JQC at all, such as disagreements with how a judge ruled in a particular case.
But there are some new administrative challenges brought by a 1996 constitutional amendment that separates the investigative/prosecutorial function of the JQC from the hearing panel that decides whether formal charges are warranted. The bifurcation was imposed to address concerns that the same people who investigate the complaint also sit in judgment. Now, the problem is that while the investigative panel meets monthly, the hearing panel may go long stretches without meeting at all, and, as one JQC member said, “They feel like outcasts.”
“It was a dumb idea to begin with,” said Ninth Judicial Circuit Judge Frank Kaney, who has served on the JQC for 11 years and is also dean of the Florida Judicial College.
“It was something to scream about, particularly when you had the Supreme Court saying there was nothing wrong with it and it didn’t violate due process. But some judges started complaining about it, and the reason they complained is they didn’t know how it worked. In the 11 years I was on, I don’t remember a trial where we found a judge guilty of all of the charges filed,” Kaney said. He said that shows there is no predilection to finding a judge guilty because they also investigated the case.
“But then you hear: `But you haven’t turned anyone loose.’ And I say, ` Yes, and we’re proud of it! We don’t file junk.'”
In fact, Judge Kaney said, he recalled a time the JQC members agreed they had probable cause, but didn’t file charges because they realized they would not be able to prove the charges by the burden of “clear and convincing evidence” — which is greater than a civil case’s “preponderance of the evidence,” but less than a criminal case’s “beyond a reasonable doubt.”
Former Florida Bar President John Frost, who is on his second year on the JQC, on the hearing panel side, understands the need for the bifurcated system.
“If I were a judge, I would share the concern this is the same group that investigated me and found probable cause, and now they’re going to try me,” Frost said.
“I have just gone through my first trial, and I think there were good lawyers on both sides. I’m impressed with the system.”
Frost added that he hopes the JQC could “speed the process up,” because its decisions greatly affect people’s lives.
One problem with the bifurcated process was pointed out by several commissioners: No member of an investigating panel can sit as a member of the hearing panel. Members’ rotation between panels at the end of the year has created a logistics problem for pending cases as JQC officials try to ensure no member on the investigating panel will wind up slated to hear a case they investigated. That rotation has the potential for delaying investigative panel action until early next year.
“I think it is operating very well. I think we have a group of hardworking commissioners,” said First District Court of Appeal Judge James Wolf, who has served on the JQC for about two years.
“The goal of the commission is to protect the public from bad judges and protect good judges from themselves. I think the commission really only goes after people extensively or hard if they suspect there may be some harm to the public or injury to the judiciary in the public’s eye.”
Though Judge Wolf agrees the bifurcated system is working, he does have a proposal — now on the back burner — that he hopes will be considered in the future: rotating panels of commissioners, with each panel getting a chance to serve on the investigative side of things, as well as taking turns on the hearing panel side of things.
“It seemed to me that the people on the hearing panel were not feeling like part of the commission because it took so long to get a case to them, and they were not attending the monthly meetings with the investigative panels,” Judge Wolf explained. “They really felt like outcasts. And this is a way to get everyone involved and still try to keep the spirit of the constitution.”
Former Bar President Rutledge Liles served for eight years on the JQC and is now on-call for hearings.
“I was in favor, initially, of the change to a bifurcated system, because I was concerned about the appearance of prejudice or predecision making by the same group of people. I’ve done a complete reversal,” Liles said.
“The people who sit on that group are extremely fair and bend over backwards to be fair.”
Recounting how much time away from the office it takes to serve — sometimes two or three weeks for a hearing, as well as the emotional drain — Liles said of his appointment to the JQC: “To those on the outside, they look at it and say it’s a plum. Once you get in, it’s more a prune.
“It comes at great personal expense. I talked with Judge Kaney about how it kept us up at night, how we agonized over the decisions. At times, you were depressed because you wanted to do the right thing.”
But at the same time, Liles called it “one of the most enjoyable service-oriented things I did in my 34 years in the Bar. I thought it gave a chance to assist in making sure we had a solid judiciary and to counsel those who were making some mistakes, in the hope they would never make them again.”
Into the Woodshed
Sometimes, all that is needed to keep a stumbling judge on the straight-and-narrow is what is called “the woodshed talk,” an unofficial stern warning for minor problems that don’t merit full-blown official proceedings.
“They’re about to cross the line. You see the red flag. It’s waving. You can sense the bull is in the arena and you want to try to stop it,” said Leonard Haber, a psychologist for 40 years, who is one of the Governor-appointed lay members of the JQC, of the “woodshed option.”
“Why not try to help the judge, to help the judge get a better hold before something actually happens that crosses the line? I’m a big believer that intelligent people are able to learn a lot from good advice. Now some, whose arrogance is boundless, have an inability to respect the opinion. Those who are dwarfed by their own egos, it just doesn’t work. These people are back before us with a vengeance.”
And some who come back before the JQC and show no remorse — such as the judge who had the death-penalty expert wrongly arrested and insisted the court reporter move her car in the middle of a trial, among other charges — find themselves faced with the ultimate sanction: removal from office. In that 1996 case, the Supreme Court agreed there was a “pattern of improper conduct” which continued after a public reprimand, “an abuse of power,” “rank misuse of judicial office for personal reasons,” and “an inability or refusal to distinguish right from wrong.”
With the increase in judicial elections comes more chances to annoy political opponents and trigger complaints to the JQC.
“Over the past several years, you have to look at the amount of money spent, the intensity of debates. The contests have escalated, and the attempts to educate the public are spectacularly on the increase,” said Haber, who served in Miami politics as city commissioner, vice mayor and mayor from 1971-83.
“All of this gives rise to fierce competitiveness that is often at odds with judicial canons.”
Back in the days when he ran for office, it was feasible to walk door-to-door to campaign in Miami. Not anymore.
“What happens is, you get kind of cranked up and maybe because it’s not something you’re accustomed to doing, you may invite others to substitute their judgment for yours. You need to keep your own counsel,” Haber said.
Curtis Richardson, another lay member of the JQC, is also a psychologist and a Tallahassee politician, running for state representative, House District 8.
“We’ve had two instances where current judges ran against sitting judges and they won. And I almost felt like there was an unwritten rule that you don’t run against a sitting judge,” Richardson said. “My personal opinion is the judges on the [JQC] panel are helping send that message: `We’re going to support our fellow [sitting] judges.'”
Richardson admitted his view as a lay person and politician is that it’s a free country: Run for office against a sitting judge if you think you’ll do a better job.
Judge Kaney agrees the severity of election abuses are on the rise.
“Eleven years ago, the worst one we had was two judges who got together and jointly printed up a sample ballot and had each of their names X’d out, indicating the judges were voting for each other. Now we’ve got people misrepresenting their opponents’ records,” Judge Kaney said.
Why is that?
“Maybe as judicial salaries go up and lawyers are not making as much, more are jumping in. I don’t know what’s going on out there, other than desperation and lack of professionalism,” Judge Kaney said.
Miette Burnstein, judge of the 17th Judicial Circuit and chair of the JQC, said: “I really think a lot of complaints now, particularly in the last year, have been focusing on things we did not complain about five years ago. Five years ago, no one would have thought to complain about a judge accepting minor gratuities from a lawyer. Now, they do complain about that. Five years ago, no one would have complained about a judge flirting with his assistant or secretary. Now, we do get those.”
Dale Sanders, a Ft. Lauderdale attorney who is on his fourth year on the JQC, observed: “The people on the commission are of the highest caliber and of the highest quality. Their intentions are nothing but honorable. And because of that, the system works well. There are no witch hunts. There are no axes to grind. They do the right thing for the right reason.”
That caliber, members say, helps keep the commission operating, despite a spartan budget. For seven of the past 10 years, the JQC has had to seek emergency funding at the end of the fiscal year because of expected trials, according to Executive Director Brooke Kennerly. A few times the extra funds turned out not to be needed because of delayed trials or other reasons, she added.
Sanders said the budget is a continuing problem. “We are somewhat restricted in the investigative process because of the funding,” he said. “I think it could be improved with more funding of investigations up front, especially at the end of the year. There’s only so much the members can do in the investigative process.”
“Our funding, each year, is an issue,” Richardson said. “We’re always running out of money. In the two years I’ve been on the JQC, before the fiscal year ends, we’ve had to submit a proposal for supplemental funding.”
Last year, when the JQC had to seek additional funds, Kennerly said the commission’s total budget was $519,000. That pays for her and one other staffer’s salaries, travel for commission members, fees for attorneys hired to prosecute cases, court reporters, travel expenses and other costs.
This year, the commission requested $965,000 and actually got $770,000, its biggest increase ever.
That includes, Kennerly said, approval for two new employees, although commissioners are still discussing the best way to utilize those new positions. The original plan was to have the new hires work exclusively with the hearing panel, but questions have arisen about whether there’s enough work, she said.
The number of judges who don’t always do the right thing has been an eye-opener for lay member Richardson.
“For me, it has just been surprising the amount of misbehavior that occurs among judges, the rudeness of judges in their courtroom, the sexual harassment. That’s what surprises me,” Richardson said. “There’s a finite number of judges, and our agenda is full every month. One point that needs to be made is that although there is a lot of misbehavior, it’s only a small percentage of judges. But we have had some people come in and kind of thumb their noses at us. Some people are back before our group three or four times.”
One trip to the JQC was all it took for J. Allison DeFoor, a former member of the Bar Board of Governors, to pay attention to a lapse of judgment. In 1986, when he was a Monroe County judge, the JQC reprimanded him for the appearance of a conflict of interest for having a financial interest in a company that provided house-arrest ankle bracelets that were used for criminal defendants.
“It was horrible,” said DeFoor, who went on to become Monroe County sheriff, a lieutenant gubernatorial candidate and the state’s top environmental official. “There’s probably no way to make it very pleasant from the recipient’s end, but the integrity of the system is what is important.”
He believes separating the prosecutorial and judicial functions of the JQC is “a net positive. Even if nothing changed by way of result, it helps the appearance.”
When he thinks back to his brush with the JQC, DeFoor admitted, “I was young and had a lot to learn. It’s certainly not to be recommended. It’s a lot like how you deal with life. For some people, it’s an end-of-the-road event. For others, you learn and you move on. I guess that’s what happened to me. It clearly wasn’t a career-ending thing for me.”
As dean of the Florida Judicial College, Judge Kaney teaches ethics to new judges and how to best steer clear of the JQC.
“I don’t think judges are delighted the JQC is there. But I don’t think they think of us as the gestapo. I try to dispel that image. I tell them we do not knock on your door at midnight and arrest them,” Judge Kaney said.
He tells judges: “If you have to ask the question, it’s probably `no.'”
And he tells them: “When the history of the world is written, the fact you kept going when tired and should have taken a break won’t make a footnote.
“When your hackles come up, escape to your office, sit there for a few minutes and you ain’t going to do something stupid.”
In his class, he gives his judicial students a hypothetical scenario and asks them to write a headline for a newspaper that includes the word “judge,” such as “Judge Found Guilty of DUI.”
“I’ve had several judges tell me that really stuck with them, thinking: `What will it look like on the front page of the
St. Pete Times
And here’s what he calls “Dr. Kaney’s Quick Fix for Ethical Ills” — simply asking yourself: Would you want your mother to see you do it?