Supreme Court cracks down on errant judges

By DARA KAM
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, June 25, 2015..… A year ago, a Brevard County judge interrupted court proceedings to scuffle with an assistant public defender after threatening to "beat your ass" in a video that quickly went viral.

Judge John C. Murphy is now facing a $50,000 fine and a four-month suspension without pay as the Florida Supreme Court, which metes out punishments for judges and lawyers, considers sanctions proposed by the investigative panel that oversees judicial conduct.

Murphy, who took a month-long leave of absence and issued a public apology, is in line to join dozens of judges who have been upbraided by an increasingly stern Florida Supreme Court.

An investigation by The News Service of Florida found that the number of judges facing sanctions jumped last year and that the high court is more often seeking harsher penalties than those originally proposed by the state Judicial Qualifications Commission.

"The Supreme Court is treating transgressions or judicial misconduct more seriously than they have in the past," Michael Schneider, the panel's executive director, said.

Of the 70 cases involving judges over the past 15 years, when the Supreme Court first began posting the documents online, six judges have been removed from office, 14 resigned before their punishments were meted out and just one successfully defended himself against the charges.

On average, four judges a year have been hit with sanctions, ranging from letters of reprimand to removal from office for violating judicial canons. The cases typically drag out for years. The misconduct runs the gamut from fraudulently obtaining a $350,000 loan, used by a former appeals court judge to buy a house in Hawaii with a stripper, to purchasing a table at a partisan event.

Last year, nine judges were accused of misconduct. So far this year, cases against six circuit or county judges have been filed. Since January, the high court has ordered one judge to be removed from the bench and rejected the recommendations for sanctions in three other cases, sending them back to the oversight panel because the penalties weren't stiff enough.

"It doesn't mean that there's more of this behavior now than there was before. It's just that it was almost like a good old boy's network at one time. That is, we're going to help the attorneys. We're going to help the judges. We don't really want to subject them to public ridicule. We'll just give them the talk that you're going to straighten up or else. Now, the philosophy is we want the attorneys and the judges to know that we're not fooling around anymore," former Supreme Court Justice Gerald Kogan said in an interview.

The court's recent rejections of the stipulation agreements or recommendations approved by the JQC --- something that has happened in eight of the 70 cases --- depart from the justices' nearly universal acceptance of the overseers' suggestions during the past 15 years.

"We have used precedent for years in terms of what the appropriate sanction is for a lawyer that does something wrong, and all that precedent's been thrown out the door because this Supreme Court, these seven justices are becoming tougher and tougher and tougher with lawyers and judges," Gregory Coleman, a lawyer who on Friday will finish a one-year stint as president of The Florida Bar, said in a recent interview.

With about 1,000 judges in Florida, the number of judges chastised for bad behavior is relatively small. But some court watchers predict that those numbers could continue to climb, thanks to the advent of social media and websites like YouTube, where the video of Murphy giving an abrasive Andrew Weinstock a tongue-lashing went viral.

"You know if I had a rock, I would throw it at you right now. Stop pissing me off. Just sit down. I'll take care of this. I don't need your help. Sit down," Murphy said in a scene captured by a Viera courtroom camera last June.

When Weinstock persisted, Murphy issued a challenge in front of a crowded courtroom.

"If you want to fight, let's go out back and I'll just beat your ass,'' Murphy told Weinstock.

After a scuffle in the hallway, a disheveled and panting Murphy returned to the bench and continued to handle the cases of several of Weinstock's clients, who appeared before the judge without an attorney after the altercation.

"The dispute in Judge Murphy's courtroom and the hallway was more than inappropriate. It was aggressive and appalling," a hearing panel of the JQC found last month. Murphy's comments to Weinstock "were reprehensible," the panel wrote after what was essentially a trial for the judge.

"The altercation between Weinstock and Judge Murphy created a remarkable national embarrassment for not only the judiciary of the state of Florida, but for its citizens as well," the six-member panel --- comprised of two judges, two lawyers and two lay persons --- found.

"We are more aware of things going on in the highest level of government than we ever were before. In response, there's nothing that secret. So if a judge goes off on someone, or if a judge does something that's not kosher, everyone's going to find out about it," said former JQC member David Young, a former judge who is again seeking election to the bench in Miami-Dade County.

Holding judges to a higher standard "is all about the appearance of impropriety," Young said.

"As we've seen recently, the court has not had a lot of patience for judges who don't act like judges. They're not putting up with any foolishness committed by members of the judiciary," he said. "The court is and should be concerned about the reputation of the third branch of government. Becoming a judge is a privilege, it's not a right. And if you want to have this privilege, you need to conform your behavior. If you're not able to do that, then you can become a lawyer or you can work at Starbucks or whatever makes you happy."

The JQC investigates complaints against judges, which are kept secret unless a hearing panel finds there is probable cause of wrongdoing. The judges then are subject to what is essentially a trial, and, as in other legal cases, often reach an agreement with the JQC before that takes place. But the Supreme Court makes the final decision about the sanctions.

Minor indiscretions by a judge could also result in a meeting with the JQC for a "6G" hearing, "which means that everybody in the JQC gets to yell at that judge and hopefully teach that judge a lesson," Young said.

Or individual members of the JQC could have private conversations, known as "Dutch uncle talks," with errant judges, Young said.

"The purpose of that is to hopefully plant a seed in the judge's mind not to repeat the bad behavior," he said.

All of those talks go into the judge's file, Young said.

Many of the judges' sanctions involve violations of the judicial canons governing campaign activity. Circuit and county judges are elected in nonpartisan races, and judicial candidates aren't allowed to indicate how they would rule in certain cases.

In a seminal opinion penned in 2001, the Supreme Court agreed with the JQC's recommendation to permanently suspend Matthew McMillan from his post as a Manatee County judge.

McMillan had been accused of more than a dozen charges of misconduct, including campaign-related violations and for inappropriate behavior on the bench subsequent to his 1998 election in which he ousted a veteran sitting judge. Prior to winning the election, McMillan, a former cop, had pledged to "go to bat for" police and said that he "would always have the heart of a prosecutor."

The justices delivered a stinging rebuke in a 27-page opinion and citied a previous admonition by former Chief Justice William Glenn Terrell.

"Chief Justice Terrell's words guaranteeing to all 'the cold neutrality of an impartial judge' have special application here where the personal political aspirations and subsequent vindictiveness of an individual judge have been allowed to tarnish the robes of justice," they wrote.

They chided McMillan for ignoring warnings handed down in previous campaign-related sanctions while also making an example of him.

"…To allow someone who has committed such misconduct during a campaign to attain office to then serve the term of the judgeship obtained by such means clearly sends the wrong message to future candidates; that is, the end justifies the means and, thus, all is fair so long as the candidate wins,” the justices wrote.

Former Supreme Court Justice Harry Lee Anstead told The News Service that the Supreme Court's trend toward more exacting penalties for judges began with more stringent sanctions for lawyers. The harsher treatment for both judges and lawyers continued when he took over as chief justice, a year after the McMillan opinion was issued.

The justices felt strongly that "the public should be assured, both with reference to lawyer conduct, and then really, especially judicial conduct, that the court was very concerned with maintaining high standards," Anstead said.

"I do believe we discussed in conference frequently how important it was to have public confidence," Anstead, who retired in 2009, said."We agreed that we had to be on special alert. … Judges are public servants. And it's critical for them to know, again with this impartiality, that the bench may be elevated, but judges should at no time feel that they're above the public."

After taking over as chief justice, Anstead delivered a frequently cited reprimand to a Marion County judge, Carven Angel, who attended a number of GOP events and identified himself as a Republican while campaigning.

Anstead, who said his reprimand was intended to serve as a warning for all judges and judicial candidates, lectured Angel about the "risks" and "opportunities" inherent in judicial elections and the need for judges to avoid becoming "a pawn in the partisan rhetoric" that dominates political campaigns in the other two branches of government.

"Above all, we must never forget that the rule of law is not a conservative or liberal value. It is certainly not a Republican or Democratic value. Rather, it is an American value, and confidence in that rule of law rests entirely, at any given point in time, on the character and integrity of the individual American judge and the judge's absolute commitment to fairness and impartiality," Anstead said at the time.

Since Anstead lectured Angel, who still serves as a senior judge, dozens of other judges have faced rebukes for similar activities.

Judges need to remember that they "did not gain wisdom on the day you were sworn in as a judge that you didn't have the day before," said Kogan, who represented a Tallahassee judge who was removed from the bench last year.

"You're not anointed. You're appointed," he said.