House panel reminded of its impeachment powers

By Jan Pudlow
Florida Bar News
February 1, 2005

FLORIDA - You have the power to remove bad judges from the bench, Rep. Bruce Kyle reminded fellow legislators serving on the House Justice Council.

The Republican prosecutor from Ft. Myers said January 12 that he was inspired by the Judge Charles W. Cope case to remind the members of the council he chairs of that little-used authority.

Cope resigned as Pinellas-Pasco circuit judge in January, 2004, five months after the Florida Supreme Court reprimanded him for public intoxication, wandering the streets in Carmel-by-the-Sea, California, while at a judicial conference, and ‘’inappropriate conduct of an intimate nature’‘ with a woman he had just met.

As impeachment proceedings were brewing in the House, Cope resigned, telling the St. Petersburg Times, ‘’I don’t have resources to fight the legislature.’‘

Kyle said he was frustrated by the light punishment doled out by the Judicial Qualifications Commission and the Florida Supreme Court.

‘’I was pushing the speaker to impeach Judge Cope,’‘ Kyle said. ‘’One reason I’m having this meeting is I want members to be aware they do have final authority in establishing whether someone should be removed from office. It’s a right vested to the House and Senate in the Florida Constitution. But it should be done really in select circumstances.’‘

The circumstances of Cope’s case also frustrated First District Court of Appeal Chief Judge James Wolf, who serves on the JQC, and came to the House Justice Council to explain the history and overview of the JQC process.

‘’I have been on the commission for seven years. I don’t think we have a lot of malicious judges. We have some who do stupid things you wouldn’t believe. Most, if we guide them, toe the line. I think we do a good job of regulating conduct. Are we perfect? Perhaps not. And impeachment is a backstop,’‘ Wolf said.

‘’One case I am not proud of is Judge Cope in Pinellas County. . . . We brought formal charges. After the case was heard, that hearing panel did not believe the testimony of the two women. I, to this day, believe the women were telling the truth. But that was a case where people heard the evidence and did not believe the charges. It doesn’’t work perfectly all the time.’‘

The JQC panel did not find clear and convincing evidence of stealing a hotel room key belonging to the two women; prowling and attempting to forcibly enter the women’s hotel room; making a material false statement to the police after being placed under a citizen’s arrest; and failing to disclose his citizen’s arrest upon returning to the bench.

The JQC hearing panel found Cope guilty on two counts ‘’based largely on the admissions of Judge Cope.’‘ In its May 29, 2003, order, the Florida Supreme Court said: ‘’We give deference to the hearing panel’’s determination that insufficient evidence exists to support counts I, IV, and V. . . . Given his sincere remorse and his exemplary performance as a judge, a public reprimand is appropriate.’‘

But Kyle, for one, found the punishment inappropriate, especially for a judge who had a previous DUI and yet another DUI after the JQC investigation was complete.

‘’If we had another case that rose to that level, I would be asking an impanelment of the House Judiciary Committee to review it for possible impeachment procedures,’‘ Kyle said.

The matter would be taken to the House floor, which would require a two-thirds vote to impeach. Then, it would go to the Senate for a trial within a six-month period. If there is not a two-thirds vote to impeach by the Senate, then the person is reinstated to office.

Judge Wolf told the council that from 1838 to 1972, the only method of judicial oversight was impeachment.

‘’Only four judges have been impeached in Florida,’‘ Wolf said. ‘’None were ever found guilty.’‘

The first was Judge Magbee in 1870. Among other things, Magbee fined a citizen $100 for contempt after publishing an article criticizing his speech and ordered the man jailed until the fine was paid.

In 1963, Judge Richard Kelly was the last judge impeached in Florida, Wolf said.

Kelly was accused of berating witnesses and intimidating and embarrassing lawyers in court. Initially, the House fell seven votes short of the required two-thirds vote to impeach, but later did impeach. The Senate then acquitted.

Judge Wolf explained the JQC was created in 1972 ‘’mainly in response to the Kelly case. A lot thought the JQC was created due to the scandals at the Supreme Court.

‘’You cannot, because of the bulkiness of the process, oversee 800 judges of the state,’‘ Wolf told the House Justice Council. ‘’But you still have that power to impeach. And the JQC recognizes we have supplemental power.’‘

Of an average 600 cases handled by the JQC each year, Wolf said, 550 are thrown out because it’’s just an upset litigant in a case or a ‘’prisoner with nothing better to do.’‘

Of the 50 cases the JQC looks into, Wolf said, 10 to 15, ‘’We determine there is no reason to go forward.’‘

Another 10 to 15, Wolf said, they pay a ‘’dim view visit’‘ to the judge and admonish him or her to stop the behavior. About 20 to 25 rise to the level of formal probable cause hearings, he said, and of those, ‘’maybe 10 will involve the filing of formal charges.’‘

After the meeting, Kyle said, ‘’I think the JQC does a great job in culling out these cases. . . . I still think it’’s incumbent on us to look at the active cases and review them periodically, so we don’’t have an issue like Judge Cope. . . . Members lose sight that we actually have that authority.’‘

Kyle encouraged members not to wait until an egregious case makes the newspaper headlines, but to go to the Supreme Court’’s Web site and review current and archived JQC cases, which become public record only after probable cause is found.

‘’I’m as guilty as any other House member of not looking at those cases and perusing them while I’ve been elected - until Judge Cope.’‘

Judicial Performance Commission
Seeks Wider Range of Sanctions

Jill Duman
The Recorder
February 2, 2005

CALIFORNIA - State judicial leaders are expected to consider a tentative plan to give the Commission on Judicial Performance a broader range of powers to sanction errant judges short of removing them from the bench.

Currently, the commission has the authority to privately and publicly admonish judges, publicly censure them or kick them off the bench permanently. However, it cannot suspend jurists. That could soon change.

State legislators and members of the Judicial Council are slated to discuss temporary, unpaid bench suspensions and other proposed reforms in an invitation-only meeting with bench and bar leaders Thursday in San Francisco.

The agenda also includes proposals aimed at giving the commission the power to order training or treatment for judges, according to the Administrative Office of the Courts' director, William Vickrey. Insiders say both ideas are likely to go over with most judges.

"In the past, the CJA [California Judges Association] has been pretty open to intermediate sanctions that respond to problems without draconian measures," said Mike Belote, a CJA lobbyist.

Edith Matthai, an attorney with Robie & Matthai in Los Angeles who represents judges in commission hearings, said she favors providing CJP with a broader arsenal of remedies.

"There are some situations in which there should be more of an ability to figure out how to correct a problem and then get it corrected, which is to the good of everybody," she said.

Victoria Henley, the commission's director and chief counsel, said the idea of giving the commission more remedies has been favored by both judges and their defense attorneys, who felt a wider range of options would do more to protect the public as well as ensure "the commission didn't err on the side of removal" when a lesser action would do the job.

Many other states have the temporary suspension option the CJP wants. Judicial conduct commissions in 37 states have the power to suspend a judge without pay for periods ranging from 15 days to two years, said Cynthia Gray, director of the American Judicature Society's Center for Judicial Ethics.

Henley said there is also support within the legal community for the concept of ordering additional education or treatment for judges who have addiction or debilitating medical problems, or who require a better understanding of policy or laws related to their office.

The commission currently has limited power to order medical reviews and can recommend that a judge seek counseling or treatment, but has no power to make treatment compulsory.

Last year, Matthai worked on legislation to give judges discovery rights when facing CJP disciplinary hearings. The bill was dropped, but the CJP is working on rewriting its own rules to allow judges more rights to conduct discovery and even de-pose witnesses, once charges are brought against them.

But some lawyers and judges complain that the CJP is accumulating too much authority over judges, given that the Judicial Council also is slated to consider additional disciplinary rules for the commission.

"It looks to me like an endeavor to increase their authority," said James Murphy, a San Francisco-based attorney whose clients include several judges publicly sanctioned by the commission.

Murphy said he particularly opposes suspending judges without pay. "A censure or public admonishment is an embarrassment enough," said Murphy, who added that suspension without pay "is going to hit [judges] where it hurts them the most -- right in the wallet."

According to figures from the Center for Judicial Ethics, a total of 19 state judges across the United States were permanently removed from office last year, and another 86 were subject to public discipline, including suspension without pay.

In California, the CJP has removed only 20 judges from office since 1960, including three in 2003. Yuba County Superior Court Judge David Wasilenko retired last month as the commission was recommending his removal on charges of ticket-fixing.