Beleaguered Pinellas County Judge Mary Jean McAllister won't go down without a fight. In the process, she has fired a frontal salvo at one of Florida's loftier institutions.
Two weeks ago, the Florida Supreme Court ruled that McAllister should be removed from the bench, saying she had sexually harassed her judicial assistant, abused a public defender and held improper conversations with prosecutors.
In a motion for rehearing filed Wednesday, McAllister argued that the Judicial Qualifications Commission has violated her rights.
At the very least, the motion means that McAllister will keep her job for another month or so. The JQC has 20 days to respond, and then the Supreme Court may reconsider her case.
Should her petition succeed, the very structure of the JQC will come under challenge.
The motion, filed by St. Petersburg attorney Martin Rice, argues that the JQC violates due process by serving as investigator, grand jury, judge and jury.
The 12-member commission is charged by the Florida Constitution to monitor the conduct of judges. If someone complains about a judge, the commission appoints a lawyer to investigate. The commission then can levy charges and hold hearings. The lawyer who investigated usually acts like a prosecutor. The commission then recommends any disciplinary action to the Supreme Court, which issues a final decision.
This blending of JQC function means that the commission holds private meetings with the prosecuting attorney and examines documents and depositions that the judge never sees, Rice argued. This "has a chilling effect on the judiciary as a whole," he wrote.
Former Citrus County Judge Gary Graham, removed from the bench in 1993, made a similar argument to the court, without success.
McAllister was doubly damaged by the system, Rice argued. When the Supreme Court heard her case in August, it presumed that the JQC's findings were accurate, rather than rehearing the original evidence, Rice wrote.
Such a presumption is standard procedure when the court hears a legal appeal from a lower court. But with a JQC recommendation, Rice wrote, the court should realize "that the proposed findings of fact have not been generated by a neutral and detached finder of fact."
As icing, Rice contended that several parts of the JQC's justification for removal were contradicted by evidence presented in April hearings. Among other inconsistencies, he said:
The JQC said McAllister abused Public Defender John Hudzietz. Even Hudzietz's supervisor testified that McAllister showed bias at only one hearing, Rice wrote. "The court . . . overlooked testimony of multiple witnesses who confirmed that if tension existed in the courtroom . . . he was the cause of the tension; he was late for court, abusive to the judge . . . he was disrespectful."
The JQC indicated that McAllister held closed-door meetings with assistant prosecutors, then told her assistant: "You might as well go ahead and write the letter to the Bar, Mr. Hudzietz is history." The judicial assistant testified that McAllister made that comment at a completely different time, Rice wrote.
The JQC found that McAllister made improper comments about her assistant's legs, breasts, figure and sex life. "The court overlooked the fact that these conversations, if any, took place between two women of similar age, both divorced, in a relationship where they referred to one another by their first names," Rice wrote.