Public Defense

Appellate Judge facing discipline for concurring opinion

By Gideon

A very strange story of out Florida, courtesy of the inimitable Howard Bashman. The story goes thusly:

The underlying case began as an appeal from a criminal conviction. The appeal was originally argued before a panel that ultimately decided by a vote of 2-1 to overturn the conviction. Before that ruling was issued to the parties and docketed, the decision was circulated within the appellate court to all active judges. At that point, a majority of the non-recused active judges voted in favor of rehearing en banc.

Following rehearing en banc, the full appellate court voted 10-4 in favor of affirming the convictions. The defendant asked the appellate court to certify for review by the Florida Supreme Court the question whether specific guideposts should exist for determining whether and how a case should qualify for en banc review at the behest of an intermediate appellate court’s judges. In June 2006, the appellate court denied the criminal defendant’s request to certify issues for review by Florida’s highest court.

When denying the request for certification, the Court of Appeal issued a per curiam opinion providing reasons for the denial. In addition, Judge Michael E. Allen issued a concurring opinion in which he explained why he voted for rehearing en banc. Allen wrote that he concluded that one of the judges in the majority on the original panel had made a mistake in failing to recuse because published press reports and that judge’s own background gave rise to an appearance of partiality. In his concurring opinion, Allen quoted in full three separate news reports to support the assertion that an appearance of partiality existed.

The Florida Judicial Qualifications Commission instituted disciplinary proceedings against Judge Allen.

Last year the JQC accused Allen of conduct unbecoming a judge because he criticized fellow judge Charles J. Kahn Jr. in an opinion upholding the bribery conviction of former Senate President W.D. Childers.

Just weeks before Allen was to face a JQC trial last month, the commission added more charges, accusing Allen of lying to the JQC about his motive for writing the opinion when he denied that he harbored extreme animosity toward Kahn.

Judge Allen’s Quo Warranto Petition is available here. Bashman has an excellent analysis of the absurdity of these “charges” here. This is certainly unprecedented. His concurring opinion was certainly relevant to the issue sought to be certified. The JQC seeks to discipline a judge based on his reasons for writing a decision. Under the right circumstances, it seems like a plausible cause of action. However, I doubt these circumstances are those.

“It is hard to imagine a proceeding with more potential for damaging the public perception of the judiciary, or one more disruptive, inappropriate and destructive of judicial independence than the journey into judicial minds proposed by the JQC effort to divine the reason for Judge Allen’s concurring opinion in the Childers case,” [Judge Allen’s lawyer] Rogow said.

I have never read an appellate decision and thought “this judge should be disciplined!”. I have certainly disagreed with many appellate decisions, but I have never thought to questions the judge’s motives for writing it. It certainly was an abnormal concurring opinion, but one that certainly was not unethical in my opinion. Do you disagree?

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Full post as published by A Public Defender on April 07, 2008 (boomark / email).