SC11-950 Response to Motion to Disqualify Special · PDF filebefore the investigative panel of...
Transcript of SC11-950 Response to Motion to Disqualify Special · PDF filebefore the investigative panel of...
BEFORE THE INVESTIGATIVE PANEL OF THE\
FLORIDA JUDICIAL QUALIFICATIONS COMMISSldN STATE OF FLORIDA
INQUIRY CONCERNING A JUDGE,
PAUL M. HAWKES, NO. 10-491 CASE NO. SCI 1-950
RESPONSE TO
MOTION TO DISQUALIFY SPECIAL COUNSEL
Special Counsel hereby responds to Respondent's Motion to
Disqualify Special Counsel. Contrary to Respondent's claims, there has
been no misconduct whatsoever on the part of Special Counsel in violation
of the Rules of the Judicial Qualifications Commission or the Florida
Constitution. The investigation undertaken by Special Counsel is authorized
by and in compliance with the JQC Rules and the Florida Constitution.
Respondent's assertions are completely unfounded. His motion should
therefore be denied.
MEMORANDUM OF LAW
As we said in Alexander v. Tandem Staffing Solutions, Inc., 881
So.2d 607, 608-09 (Fla. 4th DCA 2004):
"Disqualification of a party's chosen counsel is an
extraordinary remedy and should only be resorted to
sparingly." Singer Island, Ltd. v. Budget Constr. Co.,
714 So.2d 651, 652 (Fla. 4th DCA1998); Vick v. Bailey,
111 So.2d 1005, 1007 (Fla.2d DCA 2000). Motions for
disqualification are generally viewed with skepticism
because disqualification of counsel impinges on a
party's right to employ a lawyer of choice, and such
motions are often interposed for tactical purposes. See
Evans v. Artek Sys. Corp., 715 F.2d 788, 791-92 (2d
Cir.1983); Manning v. Waring, Cox, James, Sklar &
Allen, 849 F.2d 222, 224 (6th Cir.1988) (observing that
"the ability to deny one's opponent the services of
capable counsel, is a potent weapon"). Confronted with
a motion to disqualify, a court must be sensitive to the
competing interests of requiring an attorney's
professional conduct and preserving client confidences
and, on the other hand, permitting a party to hire the
counsel of choice.
Manning v. Cooper, 981 So.2d 688 (Fla. 4th DCA 2008)
Disqualification is an extraordinary remedy only employed in civil
matters to avoid conflicts of interest and where a lawyer becomes a witness.
Judge Hawkes is making an extraordinary effort to avoid having a full and
fair hearing on the facts.
The respondent judge claims, in sum, that the investigatory process
that resulted in the filing of Formal Charges was flawed. As in the
previously filed the Motion to Dismiss, the respondent judge takes great
pains attempting to refute the charges that the Investigative Panel found.
Here, however, the prior argument is melded with the promised ad hominim
attack on Special Counsel.
Rule 2(8), Florida Judicial Qualifications Commission Rules provides
that Special Counsel is a member of the Florida Bar designated by the
Investigative Panel to gather and present evidence before the Investigative
Panel, and if probable cause is found, to the Hearing Panel.
On October 14, 2010, the JQC retained F. Wallace Pope, Jr. as Special
Counsel to investigate claims that Judge Paul Hawkes, Chief Judge of the
First District Court of Appeal, violated the Code of Judicial Conduct.
A number of witnesses were either current or former employees of the
Department of Management Services (DMS) or of the First District Court of
Appeal. Judge Hawkes was Chief Judge of the First DCA, the court of last
resort for most appeals in which the state is a party. Since Judge Hawkes
was appointed to the Court in 2002, the First DCA has decided at least 41
cases in which DMS was a party.
The initial investigation centered upon allegations of improper
lobbying efforts and the extravagant misuse of State funds in construction
the new First District Court of Appeal courthouse. This issue has been
extensively covered in the news media and has been the subject of
legislative inquiry. In conducting the investigation, it became apparent that
there were other, significant potential violations of the Code of Judicial
Conduct.
In taking investigatory statements from sensitive witnesses it is
essential when seeking to develop information that a rapport with the
witness is established based on a level of trust. A direct and informal
questioning style using humor, irony, candor, agreement with the witness,
sympathy with the witness and even hyperbole allows for this trust to be
established. If the questioner can establish that rapport, the witness, even if
reluctant, is more likely to be forthcoming with information about the matter
in question.1
As is often the case in seeking truth about those in positions of
authority, the subpoenaed witnesses were conflicted. They were under an
oath to tell the truth, but they were reluctant to say anything that might
adversely affect their jobs, and some had fears of retaliation. For example,
when one witness was asked whether he ever felt threatened in his dealings
with Judge Hawkes, he testified:
Well, I think state employees are always on a level of paranoid
status, because you can fire us on a whim, so, you know, we're
very aware of that whatever we say could be the last, you know,
word, that triggers the removal. (Tr. at 27)
A pattern emerged that when Judge Hawkes did not view a person as
an impediment to a goal of his, he would treat that person civilly and
professionally. But if he viewed the person as an impediment, he was
1 The respondent mischaracterizes this technique as political bias and vindictiveness, without any support for those conclusory assertions.
intimidating, coercive and retaliatory. It became clear that Judge Hawkes
had treated some of these witnesses in that manner.
On the specific complaint about Special Counsel's
deposition exchange with former First DCA Marshal, Don Brannon, the JQC
attaches the two pages of the transcript that reflect the entire exchange.
(Exhibit A). Marshal Brannon earlier in the deposition testified under oath
that Judge Hawkes tried to intimidate Marshal Brannon into changing his
story about the trip that Judge Hawkes attempted to arrange for himself, his
son and his brother and then retaliated against Brannon when Brannon
wouldn't change his story. It was the witness who voluntarily brought up,
without any prompting on Special Counsel's part, the subject of the political
appointment of judges, and the witness lamented that development. This
was viewed as an opportunity to agree with the witness, to sympathize with
him and to also engage in some hyperbole.
Special Counsel's tactics in developing information from reluctant
witnesses who were fearful of retaliation are legitimate investigative tactics
and do not in any way detract from the sworn testimony of these witnesses
that Judge Hawkes abused DMS and Court personnel; that Judge Hawkes'
solicited a trip from a Court vendor for Judge Hawkes, his brother and his
son; that Judge Hawkes used his law clerk to help his son write a brief in a
case that passed through the First DCA on its way to the Florida Supreme
Court; that Judge Hawkes destroyed public records; that Judge Hawkes
misled the other judges on the court about fiscal matters; and the other
matters to which these witnesses have offered sworn testimony.2 Judge
Hawkes' real concern seems to be that Special Counsel was too effective in
getting reluctant witnesses to be forthcoming, and he is offended that the
JQC had the temerity to prosecute.
THE DECISION TO FILE THE NOTICE OF INVESTIGATION
DIRECTED TO JUDGE HAWKES
Once all of the facts available were gathered they were presented to
the investigative panel of the JQC that authorized the service of a 6(b)
Notice of Investigation on Judge Hawkes. The decision to serve a Notice of
Investigation on Judge Hawkes was the decision of the Investigative Panel,
decided by majority vote. Special Counsel did not participate in the
deliberations that led the Investigative Panel to issue the notice of
investigation, which he and the general counsel prepared. The notice
informed Judge Hawkes of the issues of concern to the JQC, and the notice
recited and was based on the testimony and statements of notice was
consistent with the particular witness's testimony. The notice informed
2 Including the responding Judge. In his testimony at the JQC Investigative Panel on April 29, 2011, Judge Hawkes had the opportunity to refute these allegations, however; the Investigative
Panel found that the facts established probable cause to establish each of the allegations.
Judge Hawkes of the matters under investigation and invited him to appear
before the JQC's Investigative Panel. Judge Hawkes and his counsel
appeared on April 29, 2011, and presented the Investigative Panel with over
200 pages of documents, including a 75 page memorandum. The hearing
lasted four hours and sixteen minutes. Judge Hawkes was allowed to make a
full presentation in defense of himself and his counsel was allowed to argue
on his behalf.
THE DECISION TO FILE THE NOTICE OF FORMAL CHARGES
AGAINST JUDGE HAWKES
At the conclusion of the 6(b) hearing, Special Counsel was excused
from the meeting and did not participate in the Investigative Panel's
deliberations on whether to file formal charges against Judge Hawkes. In
due course, counsel was advised that the panel had voted to file formal
charges. The Investigative Panel then approved the content and the filing of
the Notice of Formal Charges against Judge Hawkes.
It should be noted that the Notice of Formal Charges did not include
all of the allegations contained in the Notice of Investigation.
DUE PROCESS CONSIDERATIONS
During the preliminary investigation, various witnesses were asked to
provide both sworn and unsworn information to the JQC. This information
was presented to the Investigative Panel, which deliberated and made the
decision to notify Judge Hawkes that he was under investigation for certain
matters and that he would be given an opportunity to appear with counsel
and explain himself and to submit whatever exculpatory information he
might like to submit. He appeared, submitted written materials and
defended himself at great length. Judge Hawkes was unable to persuade the
Investigative Panel that the witnesses were biased against him, and the
Investigative Panel found probable cause to believe the witnesses against
him and to disbelieve the evidence that Judge Hawkes submitted.
Customarily, the next steps in a JQC proceeding, after the filing of
formal charges, would be the taking of depositions followed by a trial
before a the JQC Hearing Panel, which is composed of JQC members who
did not sit on the Investigative Panel that found probable cause to proceed
against Judge Hawkes. Instead, Judge Hawkes has chosen to file a motion to
dismiss the charges and motion to disqualify Special Counsel. In both
motions he asks the JQC to decide disputed issues of fact on a motion. Such
disputed issues of fact may only be decided at a trial. If Judge Hawkes
believes that Special Counsel so overpowered the witnesses as to cause them
to give false testimony, he has the time-honored remedy of taking their
depositions before trial; of cross examining them at trial; and of submitting
his own witnesses and any other exculpatory evidence at trial. These steps
8
provide Judge Hawkes with a full opportunity to probe the testimony of the
witnesses, and they fulfill all of the requirements of due process. Following
these procedures is the customary way that all fact disputes are resolved.
RESPONSE TO SOME SPECIFIC CLAIMS OF IMPROPRIETY IN
THE MOTION TO DISQUALIFY
(1) THE CLAIM:
Special Counsel breached confidentiality by allowing a DMS
employee to be present for sworn testimony of numerous witnesses.
THE RESPONSE:
The employee in question was Matthew Minno, who is a staff attorney
with DMS. He is not the general counsel of DMS as Judge Hawkes claims.
Mr. Minno was the attorney of record for each DMS witness and was
entitled to attend their depositions as their attorney. Special Counsel
outlined the confidential nature of the investigation both to Mr. Minno and
to each witness and stressed the need to maintain confidentiality.
Special Counsel asked Mr. Minno to attend the depositions of non-
DMS witnesses, Stanley Nettles, Don Brannon and Leslie Tharpe, which
were held at the DMS facility in Tallahassee. Special Counsel asked Mr.
Minno to attend because, as counsel for all DMS witnesses, he was fully
aware of the JQC investigation of Judge Hawkes and because Special
9
Counsel had reason to believe that Messrs. Nettles and Brannon and Ms.
Tharpe might testify as to matters relating to the DMS.
(2) THE CLAIM:
Special Counsel led witnesses by feeding them "buzz words" and
"notions."
THE RESPONSE:
There is no rule of law holding that an investigator cannot ask leading
questions of a witness during an investigation. Some of the "buzz words" of
which Judge Hawkes complains are contained within the Code of Judicial
Conduct. For example, Canon 3B(4) commands that "a judge shall be
patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and
others with whom the judge deals in an official capacity, . . . ". It appears
that Judge Hawkes finds the Code of Judicial Conduct full of "buzz words."
(3) THE CLAIM:
It was improper for Special Counsel to tell a witness that the Code
of Judicial Conduct is vague.
THE RESPONSE:
The Code of Judicial Conduct sets extraordinarily high standards for
judges, as it should, because judges occupy some of the most powerful
positions in our society. Judges have the power to deprive people of life,
liberty and property as long as they afford the person due process of law.
10
The Preamble to the Code of Judicial Conduct characterizes the Code as a
series of "broad statements called Canons." The Code "is not designed or
intended as a basis for civil liability or criminal prosecution." And, the Code
"is not intended as an exhaustive guide for the conduct of judges. They
should also be governed in their judicial and personal conduct by general
ethical standards. The Code is intended, however, to state basic standards
which should govern the conduct of all judges and to provide guidance to
assist judges in establishing and maintaining high standards of judicial and
personal conduct."
Canon 1 provides that:
"a judge should participate in establishing, maintaining and
enforcing high standards of conduct, and shall personally
observe those standards so that the integrity and independence
of the judiciary may be preserved. The provisions of this Code
should be construed and applied to further that objective."
It would be impossible for a code of conduct to define every circumstance
constituting "high standards of conduct" or constituting unacceptable
standards of conduct. The Constitution of the United States contains vague
concepts, such as equal protection of the law and due process, and those
concepts continue to evolve, and there are more than 200 years of court
decisions developing the meanings of those terms.
11
Special Counsel's reference to vagueness in the Code of Judicial
Conduct was to suggest to the witness that the witness should tell counsel
anything that the witness considered to be improper. It is ultimately up to
the Florida Supreme Court to determine whether specific incidents violate
the Code of Judicial Conduct.
RESPONSE TO LEGAL AUTHORITIES THAT JUDGE HAWKES'
CITES
Forty-one years ago, in In Re Kelly, 238 So.2d 565, 569 (Fla. 1970),
the Florida Supreme Court held that a JQC proceeding "lacks the essential
characteristics of a criminal prosecution. The object is not to inflict
punishment, but to determine whether one who exercises judicial power is
unfit to hold the judgeship."
In paragraph 12 of the motion to disqualify, Judge Hawkes cites four
criminal cases that easily are distinguished from the facts surrounding this
JQC prosecution:
• Martinez v. State, 761 So.2d 1070 (Fla. 200). This is a criminal case
distinguishable because a police detective was called to testify at a
trial and asked about his opinion whether the accused was guilty. The
decision turns on whether a witness may express an opinion of guilt or
innocence about a defendant in a criminal trial.
12
• Sampler v. State, 907 So.2d 1277 (Fla. 5th DCA 2005). This is
another criminal case involving a prosecutor's statement about a
defendant during closing argument at trial that "he did it."
• U.S. v. Young, 470 U.S. 1 (1985). This is another criminal case
involving comments by a prosecutor about his opinion of the
accused's guilt, and it involves conduct occurring during a criminal
trial.
• Rodriguez v. State, 609 So.2d 493 (Fla. 1992). This is a criminal case
that involves a prosecutor's statement during closing argument that
the accused was asleep during closings and involves comments about
the accused's demeanor while on the witness stand.
In paragraph 28, Judge Hawkes cites two civil cases for the
proposition that civil cases ought not to be decided "on the basis of clever
manipulation and maneuvering," and should be marked by "a genuine and
transparent effort to reach the truth." The two civil cases that Judge Hawkes
cites, Cabot v. Clearwater Const. Co., 89 So.2d 662 (Fla. 1956) and Ron's
Quality Towing, Inc. v. Southeastern Bank of Fla., 765 So.2d 134 (Fla. 1st
DCA 2000) relate to amending pleadings after the statute of limitations
expires, have to do with the liberality and pleading requirements under the
13
Florida Rules of Civil Procedure and go to "tricks and technicalities" being
used to bar a party's civil claims.
Under the common law tradition, known as the adversary process, the
law presumes that the best way to "reach the truth" is to have adversaries
bring their dispute before a neutral fact-finder, present their best evidence,
have the respective witnesses thoroughly cross-examined by the opposing
party, and have the neutral fact-finder decide which evidence carries the day.
Judge Hawkes does not want to go through that process. Instead, he seeks to
have the fact-finder decide disputed facts based on a motion to dismiss and a
motion to disqualify opposing counsel, a method that will not "reach the
truth."
Judge Hawkes cites In Re Frank, 753 So.2d 1228 (Fla. 2000), for the
proposition that JQC's counsel must provide reasonable safeguards to ensure
confidentiality. In Frank it was alleged that the JQC "leaked" information to
the press. In investigations there is a distinction between confidentiality and
secrecy. During the course of an investigation it is necessary to reveal the
nature of allegations to witnesses and their employers. In doing so they are
reminded that the investigation is confidential. This has been the standard
operating procedure of the Commission for over 40 years.
14
In Section III of his motion, (p.29), Judge Hawkes cites the following
two inapposite cases:
• Burger v. United States 295 U.S. 78 (1935). A criminal case in which
the representative of the "sovereign" is the United States attorney.
The case involves a prosecutor cross-examining the accused at trial.
He argued with the witness, assumed prejudicial facts not in evidence
and implied that the accused made certain out-of-court statements to
the prosecutor.
• Barnhill v. United States, 11 F.3d 1360 (7th Cir. 1993). A criminal
case involving impropriety between an IRS officer and prosecuting
attorneys having dinner together before a trial in a mail fraud case. It
involves a prosecutor's lack of candor to the tribunal where a
prosecutor counseled a defense witness not to appear at trial and failed
to disclose these actions to the court or to opposing counsel.
CONCLUSION
The Special Counsel is, as a matter of law, adverse to Judge Hawkes.
Special Counsel was not retained to be Judge Hawkes' friend, anymore than
a United States attorney is employed to be a friend to the criminal
defendants he prosecutes. Judge Hawkes seeks to short-circuit the normal
JQC hearing process. This hearing process was most recently summarized
15
in In Re Eriksson, 36 So.3d 580, 592 (Fla. 2010) quoting from In re:
Graziano, 696 So.2d 744 (Fla. 1997):
'Before reporting findings of fact to this Court, the JQC must
conclude that they are established by clear and convincing
evidence. In re McAllister, 646 So.2d 173, 177 (Fla. 1994).
This Court must then review the findings and determine
whether they meet this quantum of proof, a standard which
requires more proof than a 'preponderance of the evidence' but
. . . less than 'beyond and to the exclusion of a reasonable
doubt.' In re Davey, 645 So.2d 398, 404 (Fla. 1994). If the
findings meet this intermediate standard, then they are of
persuasive force and are given great weight by this Court. See
In re LaMotte, 341 So.2d 513, 516 (Fla. 1977). This is so
because the JQC is in a position to evaluate the testimony and
evidence fist-hand. See In re Crowell, 379 So.2d 107 (Fla.
1979). However, the ultimate power and responsibility in
making a determination rests with this Court. Id?
By following this procedure, Judge Hawkes will be afforded due
process, and, in the words of Judge Hawkes, the proceeding will "reach the
truth." Since this Motion raises no legitimate legal ground upon which relief
could possibly be granted, it begs the question whether it was interposed for
mere tactical purposes.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing JQC's
Response to Judge Hawkes' Corrected Motions has been furnished by regular
16
U.S. mail to Kenneth W. Sukhia, Esq., Sukhia Law Group PLC, 2846-B
Remington Green Cir., Tallahassee, FL 32308 this^/ day of June, 2011.
JUDICIAL QUALIFICATION
POPE, JR.
FBN#: 124449
JOHNSON, POPE, BOKOR,
RUPPEL & BURNS, LLP
P.O. Box 1368
Clearwater, FL 33757
727-461-1818; 727-462-0365- fax
Special Counsel for Florida
Judicial Qualifications Commission
and
Michael L. Schneider
General Counsel
Florida Bar No. 525049
1110 Thomasville Road
Tallahassee, FL 32303
(850)488-1581
17
566008
BEFORE THE INVESTIGATIVE PANEL OF THE
FLORIDA JUDICIAL QUALIFICATIONS COMMISSION
STATE OF FLORIDA
INQUIRY NO. 10-491
RE: INQUIRY CONCERNING INVESTIGATION
OF THE JUDGES OF THE FIRST DISTRICT
COURT OF APPEAL CONCERNING THE
CONSTRUCTION OF THE NEW COURTHOUSE
SWORN STATEMENT OF: DON BRANNON
TAKEN BY: Wallace Pope
DATE: Monday, November 22, 2010
TIME: Commencing at 2:10 p.m.
Concluding at 2:55 p.m.
PLACE: 4050 Esplanade Way
Tallahassee, Florida
REPORTED BY: LAURA MOUNTAIN, RPR
Court Reporter and Notary
Public, in and for the
State of Florida at Large
WILKINSON & ASSOCIATES
POST OFFICE BOX 13461
TALLAHASSEE, FLORIDA 32317
(850) 224-0127
EXHIBIT
34
guess it could be going to Federal.
Q It could have been going to Florida Supreme Court.
A Yeah, it could be, it could have been. I don't
know. But that's — you asked me have I heard any — that's
about the only other thing I've ever heard.
Q Okay. Well, I'm looking for leads, you know, to
follow up on and see what's happened here, and I really do
appreciate that.
Well, let me see what else I've got to ask you
her. Anything else, I mean, you have to offer in general?
A No, no, it's just — I won't say — that's my
personal opinion, I won't say it. You know, I was just
Marshal there, and I saw some very outstanding appellate
judges at the First District Court of Appeal, and it was the
best appellate court in the state of Florida.
Q It was.
A And it was known as that.
Q It was.
A And to see where it went to when judges like this
from political appointments who were definitely not the most
qualified are now appellate judges of our court of our state,
Q Right.
A It's a sad state of affairs.
Q It is a sad state of affairs.
A It is. It is.
WILKINSON & ASSOCIATES (850) 224-0127
35
Q I will agree with you. I think that's
unfortunately one of the gifts that Jeb Bush gave us.
A Jeb Bush. Amen.
Q Because he hated courts and he hated judges and he
hated lawyers.
A I know. Some people had the opinion that was his
way of putting the court down —
Q Oh, it was.
A — is put bad judges on it.
Q Put your stooges on there.
A We got our share over there, we did. It's sad.
Q All right, well, I think that I have —
A Well, I'm glad you're talking to Stan. I hope —
I've told you the best I can remember, but I'm pretty sure
I'm 99 percent accurate.
Q Well, Stan is probably here, because he's supposed
to be at 3:00.
A He's a good guy. I don't know if he's retired yet
or not.
MR. POPE: Oh, incidentally, one of the things
that I should have said to your people at the conclusion
of each of their statements is that they certainly are
entitled to a copy and to read and sign it.
MR. MINNO: Sure, they'd like to do that.
MR. POPE: So consider — and do you want to look
WILKINSON & ASSOCIATES (850) 224-0127