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why he voted for an en banc consideration and, instead, using his power of the pen to personally attack another appellate judge, Judge Allen violated Canon 3B(5).


By writing and publishing this opinion, Judge Allen created an impression that he would have difficulty performing his judicial duties fairly and without bias.




Accordingly, we approve the JQC's conclusion that Judge Allen committed misconduct by personally attacking another appellate judge based on unverified facts that were not in the record of the Childers case and, as a result, violated Canons 1, 2A, and 3B(5) of the Code of Judicial Conduct.


Judicial Independence


Judge Allen contends that the doctrine of judicial independence precluded the JQC from filing charges against him for his concurring opinion. Judge Allen argues that to question by threat of sanction the reason for, the wisdom of, or the motive behind a decision constitutes a gross intrusion into judicial independence and will have a chilling effect on judges carrying out their duties.


While judicial independence is critical to the functioning of the judiciary, it is not unlimited. In In re Turner, 421 So. 2d 1077 (Fla. 1982), we placed a judge's independence into context:


The duties, responsibilities, and powers entrusted to judges are awesome. Judges must necessarily have a great deal of independence in executing [their] powers, but such authority should never be autocratic or abusive. We judges must always be mindful that it is our responsibility to serve the public interest by promoting justice and to avoid, in official conduct, any impropriety or appearance of







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impropriety. We must administer our offices with due regard to the system of law itself, remembering that we are not depositories of arbitrary power, but judges under the sanction of law. Judges are expected to be temperate, attentive, patient and impartial, diligent in ascertaining facts, and prompt in the performance of a judge's duties.


Id. at 1081.


Generally, appellate judges are free to write almost anything in their opinions regarding the decision of the case or the facts and law involved in the case. However, the discussion must be germane to the case at bar and the facts that are within the record of the case. In the instant proceeding, Judge Allen did not confine his opinion to the facts that were within the record of the Childers case; instead he used extrarecord materials to personally attack Judge Kahn's decision to not recuse himself from the case and to accuse Judge Kahn of corruption. In addition, he failed to include vital facts that could have put doubt on Judge Allen's assumption that Judge Kahn had cast a corrupt vote. This type of action in a judicial opinion cannot be condoned, nor can it be protected by judicial independence. An appellate judge cannot use his opinion-writing power to inappropriately personally attack another appellate judge by accusing him of a crime.6












6. To support his argument that an appellate judge cannot be sanctioned for writing an opinion, Judge Allen cites to the Montana Supreme Court's decision in State ex rel. Shea v. Judicial Standards Commission, 643 P.2d 210 (Mont. 1982). However, Judge Allen's reliance on his case is misplaced because Shea did not personally attack another justice in his opinion nor did he write the opinion out of







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While we find that the doctrine of judicial independence did not preclude the JQC from filing charges against Judge Allen for writing and releasing his concurring opinion in this case, we caution that our opinion today should not be viewed as a license for the JQC to judge and evaluate judicial opinions. Often judges use intemperate or colorful language in their evaluation of a fellow judge's opinion or reasoning. The choice of language used in such instances may not be subject to scrutiny. However, Judge Allen's opinion was not one of intemperate or colorful language but crossed that line by falsely accusing Judge Kahn of corruption and using unverified statements from materials outside of the record of the case.


Discipline




Having approved the JQC's conclusion that Judge Allen committed misconduct, the final matter is the appropriate discipline. The JQC recommends that we issue a public reprimand to Judge Allen. We agree.



Judge Allen does not challenge the propriety of a public reprimand and we find it to be an appropriate punishment considering the nature of his conduct.


Although this type of conduct is one of first impression for this Court, we have imposed public reprimands for judges who have criticized or made improper


animus for another justice. Rather, the opinion used intemperate language towards the majority's decision.







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statements towards other judges, attorneys, and other persons who came before the court. See In re Schwartz, 755 So. 2d 110 (Fla. 2000) (involving judge who made rude and discourteous remarks during oral argument); In re Marko, 595 So. 2d 46 (Fla. 1992) (involving judge who made improper and inappropriate remarks during dissolution of marriage hearing); In re Carr, 593 So. 2d 1044 (Fla. 1992) (involving judge who made rude and improper remarks regarding ethnicity during a court hearing). Accordingly, we accept the JQC's recommendation of a public reprimand.



CONCLUSION




For the reasons stated, we approve the JQC's findings of fact and its conclusion that Judge Allen violated the Code of Judicial Conduct. We also approve the JQC's recommendation that Judge Allen be publicly reprimanded. In accordance with the policy announced in In re Frank, 753 So.2d 1228, 1242 (Fla. 2000), we hereby command Judge Michael Allen to appear before this Court for the administration of a public reprimand at a time to be established by the Clerk of this Court.



It is so ordered.


QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.


CANADY and POLSTON, JJ., recused.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.








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Original Proceeding ­ Judicial Qualifications Commission Judge Morris Silberman, Chair, Judicial Qualifications Commission, Tampa, Florida; Michael L. Schneider, General Counsel, Judicial Qualifications Commission, Tallahassee, Florida; Marvin E. Barkin, Interim General Counsel, Judicial Qualifications Commission, Tampa, Florida; Brook S. Kennerly, Executive Director, Judicial Qualifications Commission, Tallahassee, Florida; Lauri Waldman Ross of Ross and Girten, Miami, Florida, Special Counsel to Judicial Qualifications Commisson; and F. Wallace Pope, Jr., and Jennifer A. Reh of Johnson, Pope, Bokor, Ruppel and Burns, LLP, Clearwater, Florida, Counsel to Judicial Qualifications Commission Hearing Panel,



for the Florida Judicial Qualifications Commission


Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, Florida; Sylvia Walbolt of Carlton Fields, P.A., Tampa, Florida; Richard C. McFarlain, Tallahassee, Florida; and Guy E. Burnette, Jr., Tallahassee, Florida,


for Judge Michael E. Allen
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