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Butt out, Judicial Qualifications Commission tells high court

By Lucy Morgan, Times Senior Correspondent
In print: Saturday, April 19, 2008

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TALLAHASSEE — No court, not even the state's highest court, can intervene in the affairs of the Judicial Qualifications Commission, attorneys for the JQC said in a sharply worded brief filed Friday with the Florida Supreme Court.

The JQC was responding to an unprecedented effort to get the high court to intervene and block the JQC from proceeding against 1st District Court of Appeal Judge Michael E. Allen.

In the brief filed Friday, lawyers for the JQC said the Supreme Court cannot supervise the JQC, investigate it, fire or select its members or order it to perform any official act.

Allen faces trial June 9 for conduct unbecoming a judge and lying to the JQC as a result of a 2006 opinion questioning the conduct of a fellow judge who attempted to overturn the criminal conviction of former Senate President W.D. Childers.

Allen said Judge Charles J. Kahn Jr. should have recused himself from the Childers case because he was a former law partner of Pensacola attorney Fred Levin, a longtime Childers friend and sometime attorney. Levin's son, Martin, filed the JQC complaint against Allen.

In its brief Friday, the JQC said that because the agency was established in the Florida Constitution as a body independent of the courts or other branches of government, the only way anyone can stop it would be for state legislators to impeach the judges who are members and the governor to suspend members who are not judges.

Instead, the JQC lawyers said, the Supreme Court should let the JQC finish its duty and recommend whether Allen should be disciplined. Then the Supreme Court can throw out the charges if it wants. But short-circuiting the process would be unconstitutional.

Allen had asked the Supreme Court to intervene, arguing that the case marks the first time the JQC has filed charges against a judge for words he wrote in an official opinion.

In their brief filed Friday, Clearwater lawyer F. Wallace Pope Jr. and JQC general counsel Marvin E. Barkin acknowledged the case sets a precedent — but said there's good reason for it.

"There is no precedent in Florida because this is apparently the first time in Florida history that an appellate judge has abused his opinion writing privilege by using it to perform character assassination on a judicial colleague on a purportedly collegial court," the brief said, calling Allen's opinion "biting, mean-spirited and malicious."

Allen has denied harboring animosity toward Kahn, saying that he was concerned about the public's perception of the court. It was his denial of animosity that prompted the JQC to add perjury charges against him.

Allen accused a fellow judge of corruption without supporting evidence, the JQC said, frequently comparing the charges against Allen with those filed against former Pasco-Pinellas Circuit Judge Richard Kelly in 1968. Kelly criticized his fellow judges in a written treatise filed with the court clerk but not in a formal opinion.

Quoting from the Kelly decision in its brief, the JQC accused Allen of attempting to buy public esteem "with the stolen coin of other men's reputations."

The JQC accused Allen of harboring an "intense, visceral dislike" of Kahn while contending that his own actions were pure — "so pure in his own mind that he had a right to burn down the First District Court of Appeal to save it."

Bruce Rogow, the Fort Lauderdale lawyer who represents Allen, noted that the Supreme Court has often issued orders to Florida governors and the Legislature.

"I don't see how the JQC could arrogate to itself more power than the governor has," Rogow said.

He also noted that Allen's opinion never called Kahn corrupt.

"The JQC's repeated reference to corruption with regard to Judge Kahn reflects its misreading of Judge Allen's opinion and damages Judge Kahn and the judiciary," he said.

"To say that Judge Allen is 'burning down the first district' is the pot calling the kettle black. It is the JQC's actions in filing the charges and in this submission to the Supreme Court that is damaging the reputation of the judiciary."

Attorneys for Allen have until May 1 to file a formal response with the court.

Lucy Morgan can be reached at lmorgan@sptimes.com or (850) 224-7263.