Saturday, 12 May 2007

When Should a Judge Face Discipline for What an Opinion Says?

May 12, 2007

When Should a Judge Face Discipline for What an Opinion Says?

Howard J. Bashman,

Earlier this month, the Investigative Panel of the Florida Judicial
Qualifications Commission issued formal disciplinary charges against an
appellate judge serving on Florida's 1st District Court of Appeal based on
statements contained in a concurring opinion the judge had issued in the
course of deciding a case on appeal. This would be quite remarkable if that
opinion were in fact deserving of censure, but what makes this event all the
more outrageous is that it is difficult to conceive from reviewing the case
that the concurring opinion provides any cause for disciplining its author.

The underlying case began as an appeal from a criminal conviction. The
appeal was originally argued before a panel that ultimately decided by a
vote of 2-1 to overturn the conviction. Before that ruling was issued to the
parties and docketed as the appellate court's judgment, the decision was
circulated within the appellate court to all active judges. At that point, a
majority of the non-recused active judges voted in favor of rehearing en
banc. As a result, the three-judge panel's decision never issued.

Following rehearing en banc, the full appellate court voted 10-4 in favor of
affirming the convictions. Thereafter, the criminal defendant asked the
appellate court to certify for review by the Supreme Court of Florida the
question whether specific guideposts should exist for determining whether
and how a case should qualify for en banc review at the behest of an
intermediate appellate court's judges. In June 2006, the appellate court
denied the criminal defendant's request to certify issues for review by
Florida's highest court.

When denying the defendant's request for certification, Florida's 1st
District Court of Appeal issued a per curiam opinion providing reasons for
the denial. In addition, Judge Michael E. Allen issued a concurring opinion
in which he explained why he voted for rehearing en banc. Allen wrote that
he concluded that one of the judges in the majority on the original panel
had made a mistake in failing to recuse because published press reports and
that judge's own background gave rise to an appearance of partiality. In his
concurring opinion, Allen quoted in full three separate news reports to
support the assertion that an appearance of partiality existed.

Now, it certainly is rare to see one appellate judge publicly call into
question a colleague's refusal to recuse from deciding a case. But a central
question before the court when Allen wrote his concurring opinion was
whether the case presented a good vehicle for the Supreme Court of Florida
to announce the procedure and grounds for court-initiated rehearings en
banc. It was directly relevant to that question for Allen to explain why he
had voted in favor of rehearing en banc.

The basis for the disciplinary charges against Allen strike me as especially
weak. The charges suggest that no judge other than the one whose
impartiality is being questioned has the ability to comment on that subject.
The charges also accuse Allen of acting improperly in relying on newspaper
articles, which were outside of the record on appeal and constituted hearsay
evidence in any event. The charges further accuse Allen himself of
undermining public confidence in the judiciary.

Examining these accusations in turn, it is certainly true, at least in the
first instance, that the question whether a given judge should recuse is
vested in that judge's own discretion. But even if a judge's colleagues
cannot override the judge's decision not to recuse, I see nothing wrong with
an appellate judge discussing the grounds for his belief that a colleague
should have recused in a case in which that colleague was poised to cast the
dispositive vote to overturn a criminal conviction that the en banc court
later decisively affirmed.

Also, Allen's explanation for why he voted to rehear the case en banc was,
as I have noted above, relevant to whether the case provided a good vehicle
for review by the Supreme Court of Florida on the question of whether and
how court-initiated rehearings en banc should occur. Thus, even if Allen's
concurring opinion was intended merely as a malicious attack on his judicial
colleague -- and there is certainly no evidence of this from its text -- the
concurring opinion should not subject its author to discipline because, on
its face, the opinion was not improper.

The charge that Allen violated his judicial duty by quoting from and relying
on newspaper articles is laughable. The relevant inquiry is whether a
reasonable person with knowledge of the relevant facts would conclude that
the other judge's impartiality might reasonably be questioned. This standard
is necessarily based on information that would be available to such a
reasonable person rather than based only on evidence admissible in a court
of law. The disciplinary charges' suggestion that only admissible evidence
can give rise to an actionable appearance of partiality would set the
recusal bar far too high.

Finally, the charges' claim that Allen, in issuing a concurring opinion
asserting that his colleague acted improperly in failing to recuse, himself
acted improperly by undermining public confidence in the judiciary is
likewise absurd. An appellate judiciary whose members were prohibited from
publicly questioning their own colleagues' failure to initiate necessary
recusals would seem to me to pose a far greater threat to the judiciary's
integrity and impartiality than the events in this particular case.

Because Allen had a reasonable basis for explaining why he voted in favor of
rehearing en banc in this case; because it was reasonable for him to rely on
newspaper articles to furnish the basis for his conclusion that a colleague
should have recused from deciding the case due to an appearance of
partiality; and because Allen's assertion of wrongdoing was not unreasonable
based on the information on which he relied, the judicial misconduct charges
against Allen appear entirely meritless. I never expected to see an
appellate judge face disciplinary charges based on the content of a judicial
opinion, and thus it is especially unfortunate that the first instance of
this happening arises in such an egregiously weak case.


Source : (Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached
via e-mail at You can access his appellate Web log at

No comments: