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Clear and Convincing Factual Findings




Judge Allen first argues that there is no clear and convincing evidence to support the JQC's findings that his concurring opinion was motivated by his dislike of Judge Kahn, that the opinion was a personal attack on Judge Kahn, and that the opinion suggested that Judge Kahn was corrupt. Upon review of the record, however, we find that sufficient evidence supports the JQC's findings.


The Florida Constitution vests this Court with the ultimate decision in determining what constitutes misconduct and how to punish it. Article V, section 12(c)(1) provides, in pertinent part, that "[t]he supreme court may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission and it may order that the justice or judge be subjected to appropriate discipline." In In re Graziano, 696 So. 2d 744, 753 (Fla. 1997), we described how we review the JQC's findings of fact:


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 the 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 first-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.







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Furthermore, we have "relied upon the clear and convincing evidence standard without distinguishing findings of fact from whether the facts as found warrant particular discipline." In re Henson, 913 So. 2d 579, 589 (Fla. 2005) (citing In re Kinsey, 842 So. 2d 77, 85 (Fla. 2003)).


Although there is no direct evidence presented that animus was the motive for Judge Allen's concurring opinion, motive and intent are generally proven through circumstantial evidence. See generally Perreault v. State, 831 So. 2d 784, 786 (Fla. 5th DCA 2002); Walton v. State, 780 So. 2d 1043 (Fla. 4th DCA 2001) (recognizing that intent is ordinarily established by circumstantial evidence); Grover v. State, 581 So. 2d 1379, 1380 (Fla. 4th DCA 1991) ("It is black-letter of course that intent, being a state of mind, is rarely if ever susceptible of direct proof.


Almost inevitably, as here, it must be shown solely by circumstantial evidence.") (citing State v. Waters, 436 So. 2d 66 (Fla. 1983)).


Many of the judges who testified at the final hearing testified that Judge Allen had a genuine dislike for Judge Kahn and did not have respect for Judge Kahn. When it was Judge Kahn's turn to become the chief judge, Judge Allen solicited other judges to run against him in an election instead of continuing the seniority system for determining the chief judge. In soliciting these judges, Judge Allen explained that he did not feel that Judge Kahn was fit to be a chief judge and did not have the proper character traits. Judge Allen even admitted at the final







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hearing that he does not have a lot of respect for Judge Kahn. Thus, even before the Childers case, it is obvious that Judge Allen harbored ill will towards Judge Kahn.


Judge Allen relies on the fact that none of the judges expressed a belief that the opinion was in violation of the Code to argue that the opinion in fact does not violate the Code. The record reflects that the judges had differing views of the concurring opinion. 4 Some of the district court judges opined that a reasonable reading of the opinion suggested that Judge Kahn was corrupt. Several of the judges testified they believed the opinion was not in violation of the Code, while other judges did not express their views either way. Most of the judges testified that they warned Judge Allen that release of the opinion was unwise and it would hurt him more than it would Judge Kahn. However, we conclude that the views of his fellow judges are not determinative of whether a violation occurred.


Further, at the time the concurring opinion was published, the en banc court had already affirmed Childers' conviction by a vote of ten-to-four. Thus, it was already assured that Judge Kahn would not cast a deciding vote reversing the conviction.














4. If a judge believes that another judge's conduct is in violation of the Code of Judicial Conduct, the proper course for the judge is to report what the judge knows to the JQC, or if a judge believes that another judge has violated criminal law, the proper course is to report what the judge knows to the State Attorney.







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A review of the language of the concurring opinion further demonstrates that Judge Allen was motivated by his animus towards Judge Kahn and, based on this animus, he personally attacked Judge Kahn and accused Judge Kahn of corruption.


In his concurring opinion, Judge Allen inserted three old newspaper articles that explained a connection between Childers, Fred Levin, and Governor Lawton Chiles. He brought Judge Kahn into the picture based on Judge Kahn's prior relationship with Fred Levin in the practice of law. Judge Allen then creatively suggested corruption on the part of Judge Kahn by stating, in the third person, the possibilities of bias in the negative. Judge Allen wrote:


During his tenure as governor, Lawton Chiles appointed nine judges to this court. The very first of these appointments went to Fred Levin's 39 year-old law partner, Charles Kahn. It is certainly possible that neither Judge Kahn's senior law partner, Mr. Levin, nor Mr. Levin's well-placed friend, Senator Childers, exercised their reputed considerable influence with their friend, Governor Chiles, in seeking Judge Kahn's appointment to this court. It is even possible that Judge Kahn's relationship with the governor's friend, Mr. Levin, had nothing to do with the governor's decision to appoint Judge Kahn. But a member of the public familiar with the reported relationships between these persons, and also familiar with the realities of the political process, would not be considered unduly cynical to doubt these possibilities. . .

. .


Less suspicious members of the public familiar with the information contained in the articles quoted above and also familiar with Judge Kahn's former association with Mr. Levin and his firm would have found it inappropriate for Judge Kahn to have participated in the case. And more suspicious members of the public would have assumed that Judge Kahn had simply returned past favors provided to him by Mr. Levin and Mr. Childers, thus allowing them, once again, to "snooker the bastards."







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Childers, 936 So. 2d at 627-28. At the final hearing, Judge Allen admitted that he did not have personal knowledge of the facts of the newspaper articles that were included in his opinion, that those articles did not mention Judge Kahn's name, and that he was not familiar with any relationship between Childers and Judge Kahn.


Judge Allen failed to mention in his opinion that Judge Kahn was appointed to the district court in 1991, well before Childers, Fred Levin, and Governor Chiles were involved in the tobacco litigation. Judge Allen also did not mention that the Levin law firm did not represent Childers in his case. Judge Allen instead merely assumed that because Fred Levin, Childers, and Governor Chiles had professional relations and Judge Kahn had worked with Fred Levin before 1991, that Judge Kahn may have paid Levin back for past favors with his vote in Childers.



In essence, Judge Allen accused a fellow appellate judge of judicial corruption based on unverified facts that came from outside the record and were not a part of the Childers case. Although Judge Allen asserts that he wrote the opinion to simply explain why he voted in favor of an en banc consideration, we find that Judge Allen went beyond this explanation and launched an unnecessary personal attack on Judge Kahn based upon his dislike for him. Judge Allen may not have been solely motivated by his dislike for Judge Kahn, but it is obvious from the language of the opinion that his animus towards Judge Kahn played a significant part in his decision to write the opinion.







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Accordingly, we approve the JQC's findings of fact that in writing the concurring opinion, Judge Allen was motivated by his dislike for Judge Kahn, that Judge Allen personally attacked Judge Kahn in his concurring opinion, and that Judge Allen suggested that Judge Kahn cast a corrupt vote in the Childers case.



Conclusions of Law




Judge Allen next argues that the JQC's conclusion that Judge Allen committed misconduct and violated Canons 1, 2A, and 3B(5) of the Code of Judicial Conduct5 are unfounded as a matter of fact and law. We disagree.












5. Canon 1 provides:


An independent and honorable judiciary is indispensable to justice in our society. 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 the Code should be construed and applied to further that objective. Canon 2A provides:



A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.



Canon 3B(5) provides:



A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, ***, religion, national origin, disability, age, ***ual orientation, or socioeconomic status, and shall not permit staff, court







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Like the JQC, we conclude that Judge Allen violated Canon 1 by using his opinion-writing power not only to personally attack another appellate judge of the same court, but also to accuse that judge of judicial corruption based on unverified facts that were outside of the record. By engaging in such action, Judge Allen did not observe a high standard of conduct required of a judge so as to preserve the integrity of the court or the judiciary as a whole. Judge Allen also violated Canon 2A by failing to act in a manner promoting public confidence in the judiciary. The commentary under Canon 2A states that actions and conduct by judges that are harmful are prohibited under the provision. Judge Allen's action of writing and releasing his concurring opinion was not only harmful to Judge Kahn because it accused him of corruption based on unverified facts, but it was also harmful to the integrity of the First District. The proliferation of newspaper articles and public commentary statewide after the publication of the Childers opinion was a clear indication that the opinion did not "promote public confidence" in the judiciary but instead had the opposite effect. Finally, by not writing a reasonable explanation of




officials, and others subject to the judge's direction and control to do so. This section does not preclude the consideration of race, ***, religion, national origin, disability, age, ***ual orientation, socioeconomic status, or other similar factors when they are issues in the proceeding.
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