For the second time this year, a Florida House committee has received a scathing report about a pending Judicial Qualifications Commission proceeding against a sitting judge, including hints that an impeachment proceeding may be in the offing.
In the first case, 4th Circuit Judge Mark Hulsey resigned in January the day before the House Public Integrity and Ethics Committee was set to look into charges pending at the JQC that he misused law clerks, used his judicial assistant for personal tasks and made racially charged and sexist statements.
On Feb. 14, the committee heard a report on the case against 3rd Circuit Judge Andrew J. Decker III, who has been subject of a JQC inquiry since 2013 stemming from his actions as an attorney before being elected to the bench in 2012 and violations of judicial canons governing campaign activities.
Hulsey’s case was five months away from being heard by the JQC.
For Decker, the commission recommended discipline to the Florida Supreme Court.
Committee Chair Rep. Larry Metz, R-Groveland, said the committee was exercising its oversight of another branch, and questioned why the Supreme Court has not acted more than a year after it received responses to its last show cause order in December case.
“It’s a very long time to have a judge being under that type of order and having no final action occur,” he said. “It gives you a feel why we’re concerned about this, why we feel this is taking too long and needs to be brought to a conclusion. This is part of our oversight function, shining a light on something we feel may not be right.”
Carine Mitz, a staff attorney for the committee, noted in March 2015 the Supreme Court entered a show cause order why it should not approve the JQC’s findings and recommended discipline for Decker of a 90-day suspension without pay and a public reprimand.
After the responses were filed in May, the court entered another show cause order in November 2015, asking why Decker’s discipline should not be more severe, including perhaps removal from office.
Responses were filed by February 2016 and the court has not yet acted, Mitz said.
She noted the Rules of Judicial Administration has a goal of 180 days for deciding cases on appeal after completion of briefing or oral arguments, which the court failed to achieve both on its first and second show cause orders.
She said JQC findings on Decker included:
• During a televised debate in his judicial campaign, Decker claimed he had never been charged with a conflict of interest even though a former client had filed a Bar complaint against him three months previously alleging a conflict.
Before the JQC, Decker admitted the conflict.
• Decker represented a sitting judge and two partners regarding dealings with property they owned, including a foreclosure.
At the same time, Decker represented a couple in a separate foreclosure proceeding that was scheduled to be heard by the same judge, and he failed to inform the lawyer representing the other side.
Decker admitted that conduct.
• Related to the property owned by the judge and the two partners, Decker took action that favored the judge and harmed the other two clients, causing them to seek other counsel and one to file the Bar complaint.
Decker never explained to the clients the advantages and risks of representing all three in the same case. None of the clients executed a conflict of interest waiver, Mitz said.
• In another foreclosure case where Decker represented one of the defendants, Decker and his client met secretly with another defendant and reached an agreement without informing that defendant’s attorney.
According to JQC records, a Bar grievance committee found probable cause on at least some of the charges on Dec. 14, after Decker’s election and less than a month before he took office. The file was forwarded to the JQC on Jan. 10, days after Decker joined the bench.
Mitz said all of Decker’s actions occurred when he was an attorney and hence could not be subject of an impeachment by the Legislature.
However, she said there were two parts of his testimony before the JQC that might be a basis for the committee to act.
In the conflict of interest case, she noted that Kris Robinson, the new attorney for Decker’s former client who filed the Bar grievance, testified to the JQC that in an attempt to settle litigation over the property, Decker tried to include as a condition that Robinson’s client would drop the Bar grievance case.
Robinson said he refused that request. Before the JQC, Decker denied he made such a request.
If Decker were found to be lying on that, it would constitute grounds for impeachment, since it occurred when he was a judge, Mitz said.
In response to a question from a committee member, she said the court was empowered to impose a range of lawyer sanctions from letters of admonishment to private reprimands to suspensions to disbarment.
At another point, she said, “You and I and all the other citizens have no idea what he was reprimanded for. A legislator charged to check and balance on other branches of government might righteously wonder how such secret proceedings protect the people from lawyers and judges and particularly unethical lawyers who become judges.”
The Supreme Court did away with private reprimands in 1990. Under current rules, Bar records related to any grievance filed are public record for a year after the case is concluded, after which the records are destroyed. Records are kept for the life of the attorney plus 10 years where a discipline is imposed.
Mitz did not mention to the committee other charges the JQC found as proven against Decker, including that at a campaign forum he identified himself as a Republican.
Challenged later at the event that candidates were not supposed to reveal their personal positions, Decker said he was “pro-life” and had been since college. Those actions violated judicial canons, Bar rules, and state law, the JQC said.
In response to a question from Rep. Randy Fine, R-Palm Bay, on whether Decker was aware the committee would be looking at his case and whether he was invited to the meeting, Mitz said he was not invited and she was unaware if he knew about the proceeding.
Rep. David Richardson, D-Miami Beach, asked Mitz about her contention, made twice, that Rule of Judicial Administration 2.250 “requires” the court to act within 180 days when a case is ready for decision.
He noted the rule said the time standards are “presumptively reasonable times” and most cases should be completed in those time frames.
Mitz agreed the rule is not a requirement, but added, “My position is 180 days is a sufficient time to decide whether you’re going to reprimand someone 90 days without pay or removal, We’re at 13 months now.”
While Metz said the committee was exercising its oversight function, he did not rule out an eventual impeachment process, adding “We’re sort of parallel tracking that right now with the information Ms. Mitz referred to with the (JQC) testimony.”
Craig Waters, spokesman for the Supreme Court, declined comment on the committee’s actions.
“The court cannot comment on the pending JQC case, because doing so would tend to violate the guarantee of due process as well as the judicial ethics rules,” he said.
Scott Tozian, who represented Decker before the JQC, said neither he nor the judge knew about the committee’s presentation until a reporter emailed him while it was ongoing.
“This is a political issue between the Legislature and the Supreme Court, and Judge Decker has the misfortune of having a case that has been pending for some time before the Supreme Court,” he said. “The suggestion the court doesn’t properly handle JQC cases is wildly inaccurate.”
Tozian said he’s handled cases before the JQC for about 20 years, and said the current court is the strictest on disciplining judges in his experience.
As for Mitz’s report, “What they presented, it was really synopsized a lot,” he said. “It was a summary that doesn’t necessarily match my belief of what the different counts were.”