Is Florida’s judicial ethics commission about to become collateral damage in a battle over the independence of the courts?
House Speaker Richard Corcoran, the Land O’Lakes Republican, appears to have targeted the Judicial Qualifications Commission (JQC) along with the courts themselves in his campaign to curb the independence of the judiciary.
The JQC and the Supreme Court had not concluded an ethics case against Circuit Judge Mark Hulsey III of Jacksonville when Corcoran scheduled an impeachment hearing a month ago. The judge resigned.
Such intervention in an ongoing JQC matter was an event with scant precedent. Since the agency was established in 1966, there have been only three instances among more than 200 known cases, and none was exactly comparable.
— In 1975, the House held impeachment hearings on three justices after the Supreme Court had rejected the JQC’s recommendation to remove two of them for ethical violations. Two of the three, Hal P. Dekle and David L. McCain, resigned.
— In 1978, the House impeached and the Senate removed Circuit Judge Samuel S. Smith of Lake City despite his attempt to resign after his federal conviction for conspiracy to sell 1,500 pounds of seized marijuana. Gov. Reubin Askew called for the impeachment to make sure that Smith could never hold office again or collect a pension.
— In 2003, legislators dissatisfied with the Supreme Court’s reprimand of a Pinellas-Pasco circuit judge, as recommended by the JQC, threatened to impeach him and he resigned. The judge, Charles W. Cope, was accused of conduct unbecoming a judge for drunken behavior at an out-of-state conference.
The case against Hulsey, who was accused of racist and sexist comments from the bench, had not progressed nearly as far.
Asked for comment on that point, Corcoran’s spokesman, Fred Piccolo, said in an email:
“In this case, the JQC had all the information we had and still delayed. The Speaker believed taxpayers should not be paying a judge like Mr. Hulsey at all, let alone to not hear cases. The Speaker had every confidence that the Judge’s conduct warranted impeachment
” I can say with confidence that this Speaker will not hesitate to use impeachment to remove officers of the government who abuse their office.”
At that point, however, the JQC’s formal case against Hulsey was only five months old. According to the Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA), the average JQC proceeding takes 13 months from the receipt of a complaint to the filing of a disciplinary recommendation with the Supreme Court.
Last week, one of Corcoran’s House committees took on the court itself with criticism for a JQC case that has been awaiting the court’s decision for more than a year, an uncommonly long time. It consists primarily of alleged ethical violations as a lawyer and judicial candidate on the part of Circuit Judge Andrew Decker of Live Oak.
The Public Integrity and Ethics Committee gave no warning to Decker or his attorney, who knew nothing about the meeting until it had been held. The agenda noted only that there would be a report on an unspecified JQC case.
That was a far cry from fair. The chairman, Yahala Republican Larry Metz, was quoted as saying the judge wasn’t invited because “we’re not voting on anything.”
The JQC was created in 1966 to provide a more efficient alternative to impeachment for judges accused of misconduct. Two legislative impeachment efforts had failed.
Though the agency got off to a slow start, it turned aggressive under the chairmanship of Richard T. Earle Jr., a St. Petersburg attorney, who fearlessly pursued corruption on the Supreme Court itself.
Since inception, the JQC has now filed formal charges against more than 200 judges.
When it gets to that point, it rarely ends well for the judge. Of the 206 known cases, by my count, 77 — more than a third — ended with the judge off the bench: 19 removed for violations of the Code of Judicial Conduct, 25 resignations, 4 election defeats, 4 forsaken re-election campaigns, 21 enforced retirements for various disabilities, and 4 under threatened or actual impeachment.
Most of the rest were publicly reprimanded by the court, some also with fines and suspensions. The reprimands, almost always administered in person in public sessions of the court, are meant to be humbling, even humiliating, and the cases become everlasting records. Only seven cases have ever been formally dismissed. Four, including Decker’s, are pending.
So, from what we know, the JQC has been doing a good job — to hear some judges, too good a job.
It’s what we don’t know that may be a problem. The Constitution makes all JQC proceedings confidential until the agency files formal charges. That means no acknowledgment, much less an explanation, for any of the many complaints it dismisses.
According to its most recent report, the JQC received nearly 800 complaints in fiscal 2015 and summarily dismissed about 570 of them. Only 10 proceeded to formal charges.
“A great majority of complaints,” the report said, are about nothing more than dissatisfaction with the outcomes of cases and “that is the province of the appellate courts.” The JQC’s constitutional jurisdiction is limited to conduct that “demonstrates a present unfitness to hold office.”
But as OPPAGA remarked in a January 2015 report, the confidentiality rule left it unable “to assess the efficiency and effectiveness of Commission processes, as well as the consistency of its decisions and actions.
“The Commission documents we were unable to review included complaints screened out by staff, cases dismissed by the commission either summarily or after investigation, and letters of private admonishment. In addition … we were not permitted to attend investigative panel meetings,” the report said.
The case for confidentiality is this: Judges don’t deserve to be embarrassed by publicity about unfounded complaints.
But I don’t buy that. The facts should be allowed to speak for themselves. Judges should accept that as a consequence of public office.
When the Constitution Revision Commission meets, it should provide for eventual disclosure of every complaint to the JQC — not necessarily at the outset, but once it has been either dismissed or moved further along. That’s something that Corcoran’s nine appointees could insist upon without harming the courts.
The public’s trust is something to be earned, not assumed.
Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.