Inquiry Concerning a Judge re: Michael E. Allen

SC07-774

>> PLEASE RISE, HEAR YE,
HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA,
DRAW NEAR, GIVE ATTENTION AND
YOU SHALL BE HEARD.
GOD SAVE THIS UNITED STATES,
THIS GREAT STATE OF FLORIDA,
AND THIS HONORABLE COURT.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING AND WELCOME TO
THE ORAL ARGUMENTS FOR DECEMBER
2nd.
JUSTICE KENNEDY AND JUSTICE
POLSTON WILL NOT BE
PARTICIPATING IN THIS FIRST
CASE THAT AND FIRST CASE IS IN
THE INQUIRY CONCERNING JUDGE
MICHAEL E ALLEN, ARE YOU READY
TO PROCEED?
>> MAY IT PLEASE THIS COURT,
BRUCE ROGOW FOR JUDGE MICHAEL
ALLEN.
THE PUBLISHED APPELLATE OPINION
THAT HAS BEEN VETTED BY THE
JUDGES OF THE APPELLATE COURT
BEFORE PUBLICATION SHOULD NOT
BE THE SUBJECT OF A JQC INQUIRY
INTO THE MOTIVE --
>> IT SEEMS TO ME THAT THIS
CASE IS ABOUT LIMITS.
AND WHAT I WANTED TO EXPLORE
AND UNDERSTAND IS, DO YOU
BELIEVE THERE ARE ANY LIMITS ON
WHAT A JUDGE CAN SAY IN AN
APPELLATE OPINION.
>> I DO.
>> WHERE WOULD YOU DRAW THE
LINE.
IF IT IS VULGAR, PROFANE,
RACIST, SEXIST, THOSE KINDS OF
THINGS WOULD BE THE LIMITS.
BUT HERE'S THE POINT --
>> WHAT IF -- RELEVANT TO WHAT
OCCURRED IN THIS CASE, AN
APPELLATE JUDGE SAID THAT A --
THAT THERE WAS A REPORT IN ONE
OF THESE MAGAZINES YOU SEE IN
THE PUBLIC AS YOU ARE CHECKING
OUT, THAT A JUDGE ON HIS COURT
HAD AIDS, HAD NOTHING TO DO
WITH THE CASE BUT HE HAD AIDS.

AND HE DID IT WITH THE INTENT
TO EXPOSE THE OTHER JUDGE.
WOULD THAT BE SOMETHING THAT
COULD FIND ITS WAY INTO AN
APPELLATE OPINION?
>> IT WOULD NOT BECAUSE IN AN
APPELLATE OPINION AND THIS IS
THE IMPORTANT DISTINCTION, IT
IS A COLLEGIAL PROCESS.
THE JUDGES OF THAT COURT, OF
THIS COURT, OF EVERY APPELLATE
COURT IN FLORIDA, SEE THE
DECISIONS OR THE PROPOSED
OPINIONS BEFORE THEY ARE
PUBLISHED.
AND IF THAT WERE SO, IF THE
HYPOTHETICAL YOU SAID OCCURRED,
THEN THE JUDGES OF THAT COURT
WOULD HAVE AN OBLIGATION TO GO
TO THE JQC BEFORE THE
PUBLICATION.
>> WAIT.
I WOULD LIKE TO JUST FOLLOW UP
ON THE LIST OF WHAT MIGHT BE
IMPERMISSIBLE... (Inaudible)
JUDGE ALLEN IN THE CASE AGREED
THAT A FALSE ACCUSATION
[INAUDIBLE] WOULD BE A
VIOLATION (Inaudible) INTEGRITY
OF THE (Inaudible) THOSE TYPES
OF THINGS, AND SHOULDN'T BE IN
A POSITION... WOULD YOU AGREE
THAT A FALSE ACCUSATION OF
JUDICIAL CORRUPTION ALSO SHOULD
NOT BE... (Inaudible).
>> I WOULD, BUT TWO POINTS TO
BE MADE.
ONE IS IN THIS OPINION THERE
WAS NOT AN ALLEGATION OF
CORRUPTION, SECONDLY, IT
CERTAINLY WAS NOT FALSE, IT WAS
WRITTEN IN THE OPINION IN THE
CHRONOLOGY, THE RELATIONSHIP,
BUT, MORE IMPORTANTLY, THIS, I
THINK IS THE KEY TO THIS.
WHERE THE PUBLISHED APPELLATE
OPINION, THE JUDGES, REMEMBER,
EVERY JUDGE ON THIS FIRST
DISTRICT COURT OF APPEALS SAW
THIS OPINION BEFORE IT WENT
OUT, FOR THREE WEEKS --
>> SEE, I DIDN'T SEE THAT AND
READING THE BRIEF, AND I
UNDERSTAND BECAUSE I'M...
(Inaudible) THAT MIGHT BE IN
FACT WHAT JUDGE ALLEN SHOULD
HAVE DONE IN THIS CASE.
BUT NOW WHAT YOU ARE SAYING IS
BECAUSE THE OTHER JUDGES DID
NOT PREVENT HIM FROM PUBLISHING
THE OPINION SOMEHOW THAT GIVES
THE HIGHER COURT THE STAMP OF
APPROVAL FOR JUDGE ALLEN'S
OPINION AND MAKES HIM
(Inaudible).
>> NO, I'M NOT SAYING THAT,
JUDGE PARIENTE.
>> WHAT IS THE ROLE WITH THE
OTHER JUDGES SAYING THAT THEY
DIDN'T PREVENT HIM FROM
PUBLISHING IT, IT WAS ONLY THE
-- WHAT DOES THAT HAVE TO DO
WITH WHETHER THERE IS A
VIOLATION OF IT.
>> IF THIS WERE A CLEAR AND
CONVINCING VIOLATION OF THE
CODE OF JUDICIAL CONDUCT ONE
WOULD HAVE THOUGHT THE MEMBERS
OF THAT COURT WOULD HAVE SAID
TO JUDGE ALLEN, THIS IS --
>> THEY DIDN'T SAY, JUDGE ALLEN
YOU ARE VIOLATING THE JUDICIAL
CANON.
BUT, THERE WERE MEMBERS OF THAT
COURT WHO IN FACT TRIED TO GET
HIM TO NOT PUBLISH THAT
OPINION.
IS THAT CORRECT.
>> THERE IS NO QUESTION --
>> AND THERE WERE SOME WHO USED
PRETTY STRONG LANGUAGE ABOUT
HOW THE PUBLICATION OF THIS
OPINION IS GOING TO COME BACK
TO BITE HIM.
>> WELL, I DON'T KNOW IF THAT
WAS STRONG BUT THAT IS TRUE.
AND THAT PERSON, THAT IS
INTERESTING, TOO, BECAUSE THAT
PERSON WAS THE IN COMING
CHAIRMAN OF THE JUDICIAL ETHICS
ADVISORY COMMISSION.
ONE WOULD THINK THAT IN THAT
POSITION ONE WOULD SAY, THIS IS
A VIOLATION OF THE CODE.
>> THE PRINCIPLE -- I'LL TALK
ABOUT WHETHER OR NOT THERE IS
EVIDENCE OF MOTIVE AND WHETHER
OR NOT THERE IS {OFD} OF
NECESSARINESS AND WHETHER OR
NOT THEY ARE CLEARLY IN -- AND
CONVINCINGLY WRONG WHICH I
THINK THEY ARE IN THEIR
FINDINGS OF FACT BUT I'M
TALKING FIRST ABOUT THIS
PRINCIPLE OF A PUBLISHED
APPELLATE OPINION NOT BEING THE
SUBJECT OF AN INQUIRY BY A
QUALIFICATION COMMISSION.
>> RIGHT.
RIGHT.
AND I'M SYMPATHETIC TO THE FACT
THAT THE JQC SHOULD NOT
EVALUATE APPELLATE OPINIONS.
FOR WHETHER SOME JUDGE IS
WRITING A DISSENT OR CONCURRING
OPINION.
SAYING THAT ANOTHER JUDGE ON
THE PANEL MISREAD THE RECORD,
OR DIDN'T UNDERSTAND THINGS, OR
ALL OF THAT.
I DON'T THINK THE JQC SHOULD DO
THAT BUT WHAT I'M CONCERNED
ABOUT IS WHETHER IN A SITUATION
IN WHICH A -- SOMETHING IS NOT
IN THE RECORD OF THE CASE,
WHETHER THAT IS -- AND THERE IS
NO VERIFICATION OF WHAT IS
BEING STATED AS JUDGE ALLEN
SAID, WHETHER THAT CAN BE A
PROPER SUBJECT FOR THE JQC TO
INQUIRE ABOUT AND BECAUSE IT IS
-- ACTUALLY IS OUTSIDE OF THE
RECORD OF THE CASE.
>> MY ANSWER IS NO.
THE JQC CANNOT LOOK AT THAT AND
I WOULD NOT AGREE THAT THIS IS
NECESSARILY -- I UNDERSTAND
WHAT YOU MEAN BY OUTSIDE THE
RECORD OF THE CASE, THE
ARTICLES, NEWSPAPER ARTICLES
AND RELATIONSHIP BETWEEN THE
JUDGE AND THE VARIOUS PARTIES,
BUT, THE POINT HERE IS, IS THAT
-- AND I THINK THE JKC
FINDINGS, I THINK I KNOW THE
JKC FINDINGS, ACCEPTED THIS,
THE MOTIVE FOR THE PUBLICATION,
THE SOLE MOTIVE FOR THE
PUBLICATION WAS INTO THE
RESPONSE OF THE JUDGES' RULE BE
COURT BY GOING EN BANC IN THAT
CASE VIOLATED THE CONSTITUTION
AN STATUTES AND APPELLATE RULES
AN ALL IT TOOK WAS GETTING THE
VOTE.
>> [INAUDIBLE] THEY DIDN'T FIND
THE MOTIVE WAS -- DID JUDGE
ALLEN (Inaudible) THEY ALSO
FOUND IT WAS MOTIVATED AT LEAST
IN PART ON JUDGE ALLEN'S
LONGSTANDING ANIMUS AND
DISRESPECT FOR JUDGE -- WHEN
YOU TALKED ABOUT WHAT THE
FINDINGS WERE, I CAN LOOK AT IT
BUT ARE YOU TELLING ME THEY DID
NOT MAKE THE FINDING.
>> NO, I'M NOT.
THERE WAS A --
>> I THOUGHT YOU SAID THEY MADE
THE FINDING THAT THE REASON WAS
THAT IT IS A -- (Inaudible).
>> THAT WAS ONE OF THE
FINDINGS.
AND, BY THE WAY, JUDGE
PARIENTE, WHAT IS INTERESTING
IS WHEN THEY BROUGHT THIS
CHARGE, THAT WAS THE ONLY
BASIS.
THEY BROUGHT THIS CASE, SAYING
THAT YOU WERE ONLY --
>> LET'S SAY, YOU KNOW, YOU ARE
-- WE ARE VERY FAMILIAR WITH
THE CASE, AND ONE OF THE THINGS
WE CAN DO IN THIS CASE, IS
(Inaudible) AND UNDERSTAND THAT
EVEN THE TIMING -- THE OPINIONS
COMING OUT AFTER IT HAD ALREADY
BEEN AN EN BANC VOTE AND I
THINK WHAT -- WE ARE NOT
GETTING BEYOND AND I'M NOT SURE
-- (Inaudible) MY CONCERN IS I
STILL SEE THAT YOU ARE SAYING,
SOMEHOW, BECAUSE THE OTHER
JUDGES DID NOT GO TO THE JQC,
FACED WITH' MEMBER'S PROPOSED
OPINION THAT THAT IS EVIDENCE
OF THEIR RULING THAT THIS
DIDN'T CONSTITUTE A VIOLATION
OF THE CODE OF JUDICIAL
CONDUCT.
YOU ARE SAYING WE SHOULD DRAW
FROM THEIR NONACTION THAT THEY
DIDN'T THINK ANYTHING WAS
WRONG.
>> WE HAVE TO DISTINGUISH
BETWEEN WRONG AND NOT LIKING IT
AND A VIOLATION OF THE CODE.
>> (Inaudible) LET ME ASK YOU
THIS QUESTION.
JUDGE ALLEN FELT THERE WAS
SOMETHING COMPLETELY UNETHICAL
THE JUDGE (Inaudible)
CONCURRENCE, JUDGE ALLEN FELT
THE JUDGE HAD AN OBLIGATION TO
RECUSE HIMSELF IN THE CASE AND
THE FAILURE TO DO SO
CONSTITUTED THIS VIOLATION OF
THE CANON AND MY QUESTION TO
YOU IS WOULDN'T -- AND THE
JUDGE FEELING ANOTHER MEMBER OF
THE COURT RECUSED HIMSELF,
SHOULDN'T THAT JUDGE GO TO THE
JQC TO REPORT IT, IF THE JUDGE
COULDN'T GET THE OTHER JUDGE TO
RECUSE HIMSELF, (Inaudible) TO
REPORT THE MEMBER OF --
(Inaudible) SIT ON THE CASE IN
WHICH THERE IS A SUBSTANTIAL
RELATIONSHIP IN FRONT OF THE
COURT.
>> SEVERAL THINGS, FIRST OF
ALL, HE NEVER SAID IT WAS
UNETHICAL, HE THOUGHT IT WAS
BAD JUDGMENT FOR HIM TO SIT.
HE DIDN'T SAY IT WAS UNETHICAL
AND HE THOUGHT IT WAS BAD
JUDGMENT FOR HIM TO SIT AND THE
QUESTION OF GOING TO THE JQC
OVER THAT, IS NOT REALLY -- I
WANT TO MAKE THIS CLEAR -- I'M
NOT SAYING THAT THE FACT THAT
THE OTHER JUDGES DID NOT SAY TO
JUDGE ALLEN THIS IS A VIOLATION
OF THE CODE, THAT THAT MEANS
THAT THE JQC CAN NEVER
INVESTIGATE BUT I AM SAYING THE
PRINCIPLE OF LAW THAT WOULD
PROTECT THE NOTION OF JUDICIAL
INDEPENDENCE WHERE YOU HAVE AN
APPELLATE COURT THAT DOES LOOK
AT THIS, IN FACT YOU KNOW, THE
JUDGE HAWKS, THE IN COMING
JUDGE OF THE FIRST DISTRICT
COURT OF APPEAL WROTE AN
E-MAIL, EXHIBIT 4, TO THEIR
BRIEF IN THE APPENDIX, THAT
THAT IS A PAEON TO THE PROFILE
IN COURAGE, THIS THE OPINION
WAS SOMETHING THAT IT TOOK
COURAGE TO DO AND WOULD BE
PROUD --
>> -- SUPPOSED TO LOOK AT THESE
E-MAILS, THESE OTHER JUDGES'
EXPRESSIONS, OUR JOB, REALLY,
IS TO LOOK AT THE CANON, TO
LOOK AT WHAT JUDGE ALLEN DID,
LOOK AT THE OPINION, AND MAKE A
DETERMINATION.
ARE WE REALLY SUPPOSED TO TAKE
INTO CONSIDERATION THE OTHER
JUDGES, SOME OF WHOM BELIEVE HE
WAS RIGHT AND SOME WHO BELIEVE
HE WAS WRONG TAKE THAT INTO
CONSIDERATION HERE.
>> I THINK THE ANSWER, JUSTICE
QUINCE IS THAT THAT IS THE
REASON WHY YOU SHOULD NOT HAVE
TO DO THAT.
THIS IS THE E REASON WHY THE
JQC SHOULD NOT BE ALLOWED TO
TAKE A PUBLISHED APPELLATE
OPINION AND SEARCH FOR MOTIVE
AND NECESSARINESS.
>> JUST -- SEEMS TO ME THAT
THAT MISPERCEIVES THE POWER OF
AN ENTIRE COURT OVER THE
INDIVIDUAL JUDGE AND YOU SEEM
TO IMPLY BECAUSE THE OTHER DID
NOT STEP IN AND STOP HIM, I
KNOW OF NO PRINCIPLE THAT THOSE
OTHER INDIVIDUALS -- INDIVIDUAL
JUDGES COULD HAVE STEPPED IN
AND SAID YOU CANNOT DO THIS.
>> WELL, LET ME SAY --
>> THERE IS A PRINCIPLE OF LAW
SUCH AS THAT.
>> NO BUT EYE COULD HAVE GONE
TO THE JQC --
>> THEN YOUR REASONING IS
CIRCULAR AND YOUR WORDS ARE HOL
LOY BECAUSE YOU ARE SAYING,
THEN, THAT BECAUSE THEY DID NOT
ACT THE PRINCIPLE OF LAW THEN
DEVELOPS, THERE IS NO
ACCOUNTABILITY FOR WHAT THE
WORDS WITHIN THAT OPINION,.
>> THAT IS NOT WHAT I MEAN --
>> THAT IS WHAT I AM
INTERPRETING.
>> I AM TRYING TO ESTABLISH A
PRINCIPLE FOR A NARROW KIND OF
CASE, PUBLISHED APPELLATE
OPINION THAT GOES THROUGH THE
VETTING PROCESS OF THE COURT
AND I THINK IT IS IMPORTANT TO
RECOGNIZE, WOULD ONE DARE TO
HAVE A PUBLIC INQUIRY INTO THE
MOTIVE BEHIND A JUDGE'S --
MAKING A DECIDING VOTE.
>> THIS IS REALLY DIFFERENT
FROM THE GRAHAM CASE.
THAT WAS A COUNTY COURT JUDGE
AND THIS COURT REMOVED FROM THE
BENCH AND HE SAID THINGS --
COUNTY COURT JUDGES ON A NORMAL
BASIS DON'T WRITE OPINIONS BUT
WHAT THEY SAY OR REALLY IS THE
EQUIVALENT OF THEIR OPINION,
SO, WHY THIS IS DIFFERENT?
HE SAID THINGS THAT WERE THE
EQUIVALENT OF HIS OPINION AND
YET HE WAS REMOVED FROM THE
BENCH.
WHERE WE HAVE THOUGH IT IS AN
APPELLATE OPINION THE
EQUIVALENT OF WHAT THIS JUDGE
IS THINKING AND DOING AND HIS
MOTIVES, FOR WHAT HE -- WHAT IS
GO ON HERE.
I DON'T SEE --
GOING ON HERE.
I DON'T SEE A REAL DIFFERENCE
BETWEEN THIS CASE AND GRAHAM,
ALTHOUGH GRAHAM WAS NOT A
PUBLISHED OPINION.
>> BUT GRAHAM WAS A PATTERN OF
MISCONDUCT.
AND NOT ARISING IN THE
SITUATION LIKE THIS, WHERE
THERE WAS A LEGITIMATE REASON
IN JUDGE ALLEN'S MIND FOR THE
RESPONSE TO THE ALLEGATIONS
THAT HAD BEEN MADE.
>> A LEGITIMATE REASON CAN BE
TAKEN TOO FAR.
IT SEEMS TO ME THAT IN THIS
CASE THIS WAS AMPLE AND HE
TALKED ABOUT IT IN THE AMP,
AMPLE INFORMATION ABOUT WHY HE
THOUGHT -- IN THE OPINION,
AMPLE INFORMATION ABOUT WHY HE
THOUGHT THE CONSIDERATION WAS
APPROACHED AND THAT WAS THE
ISSUE HE WAS SUPPOSED TO
ADDRESS, CORRECT.
>> AND HE DID ADDRESS HIS
REASONING.
>> AND HE ADDRESSED THAT, BUT,
WHEN YOU GO BEYOND THAT, IT
SEEMS TO ME, AND YOU HAVE
TALKED ABOUT A NEWSPAPER
ARTICLE THAT HAD NOTHING TO DO
WITH JUDGE KAHN AND POSED
QUESTIONS ABOUT WHAT A
LEGITIMATE READER COULD
INTERPRET.
THAT SEEMS TO ME, THAT WE HAVE
-- HE HAS GONE FAR AFIELD OF
THE LEGITIMATE PURPOSE FOR
WRITING THIS OPINION.
>> AND THE QUESTION IS, GIVEN
THE TERRAIN IN THE CASE, AND I
THINK IT IS IMPORTANT THE FACT
-- AND I UNDERSTAND THE COURT'S
REACTION TO IT BUT THE FACT
THAT THIS IS SO UNIQUE, THE
DIFFERENCE BETWEEN JUDGE GRAHAM
IN THIS CASE IS, YOU HAD A
DOZEN DISTRICT COURT OF APPEAL
JUDGES THAT WERE THERE, LOOKING
AT IT, HALF OF THEM TELLING
THEM THIS IS ETHICAL, THIS IS
PROFESSIONAL, THIS IS
REASONABLE --
>> GO BACK TO THE --
>> NO, BUT --
>> TOOK HIM TO THE JQC.
>> THAT THAT'S NOTE LINCHPIN --

>> LET ME GO BACK, LINCHPIN, I
WENT BACK LAST NIGHT AND REREAD
ALL OF THE OPINIONS TO SEE WHAT
EVERYBODY HAS WRITTEN AND WE
ALL AGREED THAT THERE IS
DISTINCTION BETWEEN CRITICISM
OF THE STATE OF THE LAW AND THE
PERSONAL ATTACK ON AN
INDIVIDUAL.
WOULD YOU AGREE.
>> YES.
>> AND IN APPELLATE OPINIONS
SOMETIMES THE LINE BECOMES...
(Inaudible) YOU WONDER IF IT IS
AN ATTACK ON THE PERSON VERSUS
THE ATTACK ON THE STATE OF THE
LAW BUT IN THE ORIGINAL OPINION
THAT WENT UP AND DOWN, JUDGE
IRVIN, ONE OF -- JUDGER VIN,
WAS NOT QUESTIONED BY EACH
EITHER SIDE AND MAD A
KNOWLEDGEABLE REASON WHY THE
CASE SHOULD NOT -- EN BANC,
CORRECT.
>> CORRECT.
>> AND JUDGE ALLEN WROTE THE
OPINION, SHORT OPINION AS TO
WHY HE THOUGHT IT SHOULD AND
JUDGE KAHN WROTE SOMETHING AND
FRANKLY, READING WHAT HE WROTE,
I HAVE HEAD THOUSANDS AS YOU
HAVE OF APPELLATE OPINIONS, I
DON'T THINK IT IS --
(Inaudible) IT SAID I DON'T
THINK IT IS THE TYPE OF CASE TO
GO EN BANC AND NOW YOU GET TO
THE REHEARING.
AND THE REHEARING TO CERTIFY
THE QUESTION [INAUDIBLE].
TAP, JUDGE KAHN FEELS IT IS
(Inaudible) WHAT ARE THE
CRITERIA FOR HAVING A CASE GO
TO (Inaudible) AND HE WRITES,
WHAT I RED AND REREAD,
SOMETHING THAT DOESN'T ATTACK
ANYBODY, SIMPLY SAYS, I THINK
WE HAVE STANDARDS AS TO WHAT
CONSTITUTES EN BANC.
AND AT THAT POINT JUDGE ALLEN
ESSENTIALLY SAYS, WELL, I
(Inaudible) RECUSE HIMSELF AND
WE AGREE THAT CAN'T BE A REASON
TO GO EN BANC, IF SOMEONE
RE{KUSES} HIMSELF THEY HAVE TO
GET OFF THE CASE AND CAN'T BE
ON THE CASE.
SO, THE THOUGHT OF IT HE WAS
WRITING AFTER THE FACT.
CRITICIZING THE JUDGE SITTING
ON THE CASE, NO ONE ELSE SAID
SHOULD BE REMOVED FROM THE
CASE, TO ME SAYS VOLUMES ABOUT
THE MOTIVE IN WRITING THAT
OPINION.
AND IT WAS AN ALL-OUT PERSONAL
ATTACK ON JUDGE KAHN.
>> LET ME ADDRESS PINPOINTEDLY
THE REASON WHY THEY ARE WRONG
ABOUT MOTIVE.
LOOK AT EXHIBIT 7 WHERE JUDGE
ALLEN WRITES, IF ALL OF THE
OPINIONS ARE WITH IT DRAWN,
THERE IS NO REASON TO PUBLISH
MINE.
THIS IS ABOUT PUBLICATION, NOT
ABOUT WRITING.
HE ON JUNE 22nd SAID, AUTO WILL
NOT PUBLISH.
WITHDRAW ALL THE OPINIONS --
>> THE ORIGINAL OPINION.
>> YES, THE EN BANC AND -- NO,
THE -- CRITICISM GOING EN BANC
AND THE CERTIFICATION PART.
BUT THE POINT I'M MAKING IS, IS
THE EVIDENCE IS UNDISPUTED
UNDER EXHIBIT 7.
>> SAW A BLACK MALE, JUDGE KAHN
WITH A CHARACTER ASSASSINATION
TO HAVE HIM WITHDRAW WHAT WAS A
LEGITIMATE ORIGINAL OPINION?
THAT IS WHAT -- THAT YOU SAY
SHOWS HE HAD MOTIVE.
>> JUDGE ERVIN SUGGESTED THAT
EVERYONE DRAW WEDNESDAY
WITHDRAW THE OPINIONS SO IT
WOULDN'T HAVE THIS KIND OF
CONFLICT IN THE COURT.
BUT THE POINT I'M MAKING IS, IS
THAT THE MOTIVE, NO ONE WHO
TESTIFIED ABOUT JUDGE ALLEN'S
FEELINGS ABOUT JUDGE KHAN,
LINKED THOSE -- KAHN LINKED
THOSE FEELINGS WITH THE REASON
FOR JUDGE ALLEN PUBLISHING THE
OPINION AND JUDGE THOMAS SAID
HE THOUGHT THAT PART OF THE
DISLIKE, THE DISLIKE MAY BE
PART OF THE WRITING, BUT NOT
THE PUBLICATION, LOOK AT
EXHIBIT 7, WHERE ON JUNE
{2I7BD}, HE SAID I WILL
WITHDRAW MY OPINION.
NOW, YOU MIGHT SAY, WELL, THAT
IS A FORM OF BLACKMAIL, JUDGE
PADOVANO TRIED TO WORK IT OUT
AND THE WHOLE COURT WAS
OBVIOUSLY IN AN UPROAR WHAT
THEY WERE DOING THIS AND YOU
SEE THE TEN OPINIONS IN THE
ORIGINAL CASE AND THAT IN AND
OF ITSELF SHOWS THE COURT
CAUSED --
>> IT SEEMS TO ME -- I WOULD
LIKE, BEFORE YOU SIT DOWN, IF
YOU REALLY WANT TO HELP US, TO
LOOK AT WHAT I ALSO AGREE IS A
VERY SERIOUS PRINCIPLE OF LAW
AND THAT IS THE JUDICIAL
INDEPENDENCE ON THE OPINION.
I FEEL THAT YOU HAVE SPENT YOUR
ENTIRE TIME TRYING TO JUSTIFY
WHAT OCCURRED AND I'M NOT SURE
THAT IT IS JUSTIFIABLE.
SO I WE LIKE BEFORE YOU SIT
DOWN TO CONCISELY STATE WHAT
YOU BELIEVE TO BE THE PRINCIPLE
OF LAW WITH REGARD TO THE
JUDICIAL INDEPENDENCE AND HOW
FAR A JUDGE CAN GO.
I THINK IT REALLY GOES BACK TO
THE INITIAL QUESTIONS AND
TRYING TO DEFINE -- THAT IS
WHAT I THINK THE KEY IN MY MIND
IS THE KEY HERE AND 14 SECONDS
LEFT, JUST LOSE AND -- JUSTICE
LOSE AND HERE'S -- JUSTICE
LEWIS AND HERE'S MY {WHOOU}
CHEW, A PUBLISHED APPELLATE
OPINION OF AN APPELLATE COURT
THAT HAS BEEN VETTED AND GONE
THROUGH THE PRE-RELEASE PROCESS
AND THERE HAS BEEN NO, NOTHING
SAID BY ANYBODY ON THE COURT
WHOSE OBLIGATION UNDER THE LAW
IS TO REPORT ANY VIOLATIONS,
THAT THAT CANNOT BE THE SUBJECT
OF AN INQUIRY BY THE JQC INTO
MOTIVE AND SEMINARNESS FOR THE
OPINION.
TO ALLOW THE -- NECESSARINESS
FOR THE OPINION AND TO ALLOW
THE JQC TO LOOK AT THE MOTIVE
FOR AN OPINION AND WHETHER AN
OPINION IS NECESSARY IS A
SERIOUS INCURSION UPON THE
NOTION OF JUDICIAL INDEPENDENCE
AND THE PUBLISHED APPELLATE
OPINION IS DIFFERENT FROM EVERY
OTHER KIND OF JUDICIAL ACT
BECAUSE IT IS A COLLEGIAL
PROCESS BECAUSE YOU DO HAVE THE
BENEFIT OF YOUR COLLEAGUES TO
ADD -- ADVISE YOU AND THE POINT
I MADE BEFORE ABOUT THE FACT,
NOBODY WAS SAYING ANYTHING
ABOUT IT.
BEYOND THAT NOBODY IN THE STATE
OF FLORIDA, NO JUDGE, NO LAWYER
IN THE STATE OF FLORIDA, SAVE
ONE PERSON, FRED LEVIN'S SON
FILED THE COMPLAINT ABOUT THAT
AND TO ME IMPLICIT ABOUT THAT
IS A NOTION THAT THERE IS AN
UNDERSTANDING THAT JUDICIAL
INDEPENDENCE MEANS HERE'S THE
OPINION, IT WENT OUT, IT WAS
PUBLISHED, YOU MAY NOT LIKE IT
AND MAY DISAGREE BUT YOU CAN'T
TRY TO SANCTION THE JUDGE BASED
UPON WHAT YOU ARE TRYING DIVINE
HIS MOTIVE FOR IT, WHETHER OR
NOT IT WAS NECESSARY, FOR HIM
TO WRITE IT AND THE PROCESS OF
DOING IT IS GROSSLY INTRUSIVE,
INTO THE JUDICIAL APPELLATE
PROCESS.
DEPOSITIONS OF THE JUDGES,
GOING THROUGH THE E-MAIL TRACKS
OF THE COURT IN TRYING TO
DETERMINE THE CHRONOLOGY AND
WHAT HAPPENED, DISCOVERY --
>> MR. ROGOW YOU ARE WELL OVER
YOUR TIME.
THANK YOU VERY MUCH.
>> THANK YOU.
>> MAY I HAVE ONE MINUTE FOR
REBUTTAL.
>> WE'LL SEE.
>> MAY IT PLEASE THE COURT,
WALLACE POPE ON BEHALF OF THE
FLORIDA JUDICIAL QUALIFICATIONS
COMMISSION.
>> MR. POPE, LET'S START RIGHT
WHERE JUSTICE LEWIS'S QUESTION
[INAUDIBLE].
I'M GRAVELY CONCERNED
[INAUDIBLE] THE SLIPPERY SLOPE.

AND I FEEL LIKE WE WOULD BE
AMISS IF WE ALLOWED THE JQC TO
BECOME A JUDICIAL EVALUATION
ORGANIZATION AND THAT THE JQC
SOMEHOW HAD A ROLE IN
EVALUATING APPELLATE OPINIONS.
I HAVE AN IMAGE OF "MIRACLE ON
34th STREET" WITH THOUGH GUY
SITTING IN THE BACK WITH THE
CIGAR, SHAKING HIS HEAD.
SO I WANT TO UNDERSTAND THE
RE-- RESTRAINT AND THE
LIMITATION THE JQC SEES THAT IT
HAS.
WHAT IS THE BOUNDARY?
OF THE JQC COMING IN AFTER
[INAUDIBLE].
>> IN THE FIRST PLACE, YOUR
HONOR, THIS OPINION WAS NOT
REALLY GERMANE TO THE DECISION
THAT WAS BEFORE THE COURT.
AT THE TIME, WHEN JUDGE AL LENT
WROTE HIS OPINION, AND
PUBLISHED IT --
ALLEN WROTE HIS OPINION AND
PUBLISHED IT THE CASE ON THE
MERITS HAD BEEN DECIDED BY THE
EN BANC COURT.
THERE WAS NO FURTHER ISSUE
INVOLVED IN THIS MATTER ABOUT
JUDGE KAHN.
HE WAS NO LONGER IN THE
POSITION OF CASTING A DECIDING
VOTE IN THE CASE.
SO, THAT YOU COME DOWN TO A
SITUATION IN WHICH THE SUBJECT
MATTER OF JUDGE ALLEN'S OPINION
WAS MOOT AND YET, HE TORE AFTER
JUDGE KAHN --
>> ON THAT UNDERSTANDING
[INAUDIBLE] WITHOUT PARAMETERS.

THERE WAS A [INAUDIBLE] WASN'T
AS IF THERE WASN'T ANYTHING
[INAUDIBLE] JUDGE ALLEN IN
WRITING THAT OPINION, SAID,
LOOK I WANT TO [INAUDIBLE] THIS
IS WHAT IT WAS AND THERE IS --
ON THE RESTITUTION [INAUDIBLE]
SO I'M NOT -- I'M A LITTLE
CONCERNED ABOUT SAYING, WELL,
WE'LL LOOK AT THE TIMING OF
WHEN YOU [INAUDIBLE] SAYING IT
WASN'T NECESSARY.
I HAVE TO AGREE IT WASN'T
NECESSARY BUT A LOT OF US IN
THE STATE WRITE OPINIONS I'M
SURE OTHER MEMBERS OF OUR COURT
AND THE PUBLIC THINK ARE NOT
NECESSARY.
WRITE TOO MUCH.
SO IT'S NOT NECESSARY TO WRITE
THAT MUCH.
>> YOUR HONOR, HERE'S WHERE IT
SEEMS TO ME, HAVING ALSO READ A
LOT OF OPINIONS IN -- OVER THE
YEARS, HERE'S THE LINE.
WHEN YOU ARE CRITICIZING A
JUDGE OR A JUSTICE'S APPROACH
TO THE LAW, AND ANALYZING THEIR
APPROACH TO DECIDING A LEGAL
PRINCIPLE, THAT IS WAY PAST
ANYTHING THAT THE JUDICIAL
QUALIFICATIONS COMMISSION COULD
EVER GET INVOLVED IN, LET ME
GIVE YOU A GOOD EXAMPLE.
I CAME ACROSS THE CASE OF
WALTON COUNTY VERSUS STOP THE
BEACH RENOURISHMENT THIS COURT
DECIDED ON SEPTEMBER 29th.
JUSTICE LEWIS SAID IN HERE,
THAT "I CANNOT JOIN THE
MAJORITY BECAUSE OF THE MANNER
IN WHICH IT BUCHERED FLORIDA
LAW AND MADE OTHER VERY --
BUTCHERED LAW AND THE CASES
JUDGE ALLEN CITED FROM
PENNSYLVANIA AND MONTANA,
STRONG LANGUAGE BUT IT WAS
LANGUAGE DEALING WITH THE LEGAL
PRINCIPLE AT ISSUE BEFORE THE
COURT AND SAYING YOU ARE JUST
DEAD WRONG ABOUT IT AND I
COMPLETELY DISAGREE WITH YOU,
AND I THINK YOU ARE -- IN ONE
CASE I THINK YOU ARE
INTELLECTUALLY DISHONEST AND
BEING INTELLECTUALLY DISHONEST
IS FAIR GAME BUT BEING CORRUPT
DISHONEST AND TRADING YOUR VOTE
FOR NONE OR FAVORS IS WAY
BEYOND THE PAIL, WHERE THE LINE
IS IN THE CASE.
THAT IS WHERE IT IS.
AND THE JQC WOULD NEVER --
WOULD NEVER TRY TO GO AND
EVALUATE A JUSTICE OR A JUDGE'S
ANALYSIS, LEGAL ANALYSIS IN
COMING TO AN OPINION.
>> HAVE YOU EVER COME ACROSS AN
OPINION -- THERE IS A PRINCIPLE
OF LAW THAT HAS BEEN PRACTICED
AND I'M NOT SURE IF IT IS IN
RE. CARLTON -- WHO STARTED IT,
AN APPELLATE JUDGE AND THE DUTY
TO RECUSE RESTS WITH THAT JUDGE
IN A REVERSAL DECISION AND
THEREFORE LOOKING AT THIS AS A
PARTICULAR BRAND OF A TYPE OF
CASE, REALLY, AGAIN, JUDGE
ALLEN IS EXPRESSING HIS
PROFOUND DISAGREEMENT WITH
JUDGE KAHN'S PARTICIPATION
WHICH HE FELT THE JUDGE HAD A
DUTY TO RECUSE.
AND I CAN SEE THAT, YOU KNOW,
THERE IS -- ARE SITUATIONS AND
I HAVE DISCUSSED AMONG MY
COLLEAGUES SITUATIONS WHERE I
SHOULD GET OFF A CASE OR NOT,
THE THOUGHT THAT A COLLEAGUE
WOULD PUT UNWRITING I THINK
THAT JUDGE SO-AND-SO SHOULD GET
OFF THE CASE, BECAUSE I HAPPEN
TO KNOW THAT HE OR SHE DOES
THIS WITH A NEIGHBOR.
AT LEAST IT SAYS SOMETHING THAT
HAS BASIS IN TRUTH AND YOU
START TO UNDERMINE THE PROCESS
BECAUSE THAT HAS NO PLAY IN AN
-- SWAY IN AN OPINION AND I
DON'T KNOW IF THE JQC IS TAKING
THAT TACK BUT IT SEEMS TO ME
THAT THAT IS THE SUBJECT OF IT.

JUDGE KAHN SHOULD HAVE RECUSED
BECAUSE HE'S SOMEBODY THE
PUBLIC COULD SEE IS A CORRUPT
JUDGE AND CAST A CORRUPT VOTE
IN THE CASE AND SHOULD HAVE
GOTTEN OFF THE CASE AND THAT'S
WHY I VOTED TO TAKE THE CASE
AWAY FROM HIM YET HE REMAINS ON
THE PANEL.
SO TELL ME ABOUT THE PARAMETERS
OF THE FACT OF -- THAT IT
WASN'T NECESSARY BUT BEYOND
THAT, IT WAS A PERSONAL ATTACK,
BUT WHAT ELSE?
ANYTHING ELSE ABOUT THE
PARAMETERS THAT WE WOULD HAVE
AS TO WHERE THE LIMITS ARE?
>> WELL, IN THE FIRST INSTANCE,
I DON'T THINK THE -- THERE EVEN
NEEDS TO BE A FINDING OF HATRED
OR ILL WILL HEAR TO SUSTAIN THE
COMMISSION.
IF YOU TAKE THAT CONCURRING
OPINION AND JUST READ IT VERY
CAREFULLY LINE BY LINE, AND
THEN, REALIZE THE SLIGHT OF
HAND THAT WENT INTO IT TO HOOK
JUDGE KAHN UP WITH EVENTS THAT
OCCURRED AFTER HE CAME ON THE
BENCH, IT IS JUST A PIECE OF
WORK.
AND IT IS OVER THE TOP, AND IT
EXCEEDS ANY BOUNDARY THAT AN
OPINION SHOULD EXCEED.
IN ACCUSING VERY STRONGLY
DEFAMATION BY IMPLICATION, IS
REALLY WHAT IT AMOUNTS TO, JUST
AS YOU HELD SUCH A FOR THE
EXISTED IN THE JEWS FOR JESUS
CASE IN THE LAST COUPLE OF
MONTHS.
THIS WAS DEFAMATION BY
IMPLICATION, IT WAS STRINGING
TOGETHER A BUNCH OF FACTS, SOY
AS TO CREATE AN ILLUSION AND
OMITTING OTHER FACTS SO AS TO
CREATE THE IMPRESSION OF
CORRUPTION.
AND WHEN YOU MIX THE INTENT --
INTENSE PERSONAL DISLIKE THAT
WAS PROVEN BEYOND A REASONABLE
DOUBT IN THIS CASE, THAT WAY
PREDATES CHILLEDDERS, WHEN YOU
THROW THAT INTO THE MIX, AND I
--
>> I AM CONCERNED ABOUT GETTING
INTO THE INTENSE DISLIKE AND
THOSE FACTORS.
IT SEEMS TO ME THAT IN DRAWING
A LINE THAT CAN BE --
INSTRUCTIVE TO JUDGES, IF THIS
IS GOING TO BE FOUND TO BE A
VIOLATION OF THE CODE, WHAT YOU
HAVE TO DO IS TO DRAW A LINE
THAT SAYS THAT BY REASON OF THE
FACT THAT YOU'RE NOT DEALING
WITH A MATTER THAT IS IN THE
RECORDS, I MEAN, THAT IS WHERE
-- WHAT BOTHERS ME HERE, AND I
JUST WONDER HOW YOU PIECE THAT
TOGETHER IN ANY TYPE OF WAY
THAT REALLY IS A BOUNDARY FOR
THE -- NOT ONLY THE JUDGES, BUT
A BOUNDARY FOR THE JQC.
>> WELL, YOUR HONOR I DON'T SEE
ANYTHING WILD AND OVERLY BROAD
ABOUT A HOLDING THAT IT IS A
VIOLATION OF CANONS ONE AND TWO
FALSELY TO IMPLY THAT A
JUDICIAL COLLEAGUE IS CORRUPT.

IN AN OPINION OR OR REALLY OR
IN A LETTER TO THE EDITOR OR
ANY OTHER WAY.
THE FACT THAT IT APPEARED IN --
IN AN OPINION SHOULD BE
IMMATERIAL.
THIS IS NO ASSAULT OF JUDICIAL
INDEPENDENCE.
THIS IS NO CRITICISM OF THE
HOLDING OF A CASE.
THIS IS NO MEDDLING BY THE JQC
IN THE INTERNAL OPERATING
MATTERS OF THE FIRST DISTRICT
COURT OF APPEALS.
IT IS -- I MEAN, HE PUT THIS
THING OUT --
>> BUT THE FACT THAT IT IS IN A
JUDICIAL OPINION DOES MAKE IT A
DIFFERENT SPECIES.
BECAUSE OF THE CHILLING EFFECTS
THAT THE JQC EVALUATION OF
JUDICIAL OPINION COULD HAVE ON
THE JUDICIAL PROCESS.
>> WELL, YOUR HONOR I ASKED
JUDGE ALLEN DURING MY
CROSS-EXAMINATION OF HIM IF IT
WOULDN'T HAVE A CHILLING EFFECT
IF IT WERE JUST OPEN SEASON FOR
JUDGES TO LASH OUT AT OTHER
JUDGES IN OPINIONS ANY OLD TIME
THEY WANT TO AND ACCUSE THEM OF
CORRUPTION.
THAT WOULD HAVE A CHILLING
EFFECT ON OPINIONS.
AND JUDGES.
IF EVERY TIME YOU GET INTO A
PETERED DISAGREEMENT, WHOEVER
IS ON THE LOSING SIDE OF IT
GOES OUT AND DREDGES UP EVERY
NASTY THING THEY CAN FIND OR
EVERY IMPLICATION IN THE
JUDGE'S BACKGROUND AS -- AND
SPREADS IT ON THE PAGES OF THE
EARN REPORTER, THAT
WOULD HAVE A KILLING --
SOUTHERN REPORTER, THAT WOULD
HAVE A CHILLING EFFECT.
>> I WANT TO ASK YOU A QUESTION
ABOUT THE PROCESS HERE AND WE
CAN GO BACK ON IT AND YOU SAID
WE COULD MAKE A FILING IT WAS A
VIOLATION OF THE CANON OF CODE
OF JUDICIAL CONDUCT, BY READING
THE OPINION.
WHICH WOULD MAKE THIS SOMETHING
THAT WOULD BE A -- A QUESTION
OF LAW AND NOT REALLY REFERRING
TO ANY KIND OF FINDING OF FACT.

ARE YOU SUGGESTING THE COURT DO
THAT, THAT WE NOT LOOK AT THE
FINDING OF FACT, THERE WAS
ANIMUS AND THE OPINION WAS
MOTIVATED IN PART BY ANIMUS AND
DETERMINING THE OUTCOME IN THIS
CASE.
>> I AM NOT, YOUR HONOR, AND
THE REASON I'M NOT IS BECAUSE
OF YOUR OPINION IN THE KELLY
CASE.
MANY YEARS AGO, IN WHICH YOU
BASICALLY SAID WHEN ONE JUDGE
GOES AFTER ANOTHER CRITICALLY,
IT IS THE AREAS OF INQUIRY ARE
METHOD AND MOTIVE.
AND THAT IS WHAT -- THAT WAS
NOW -- NOW THE HEARING PANEL
WROTE AN OPINION IN WHICH THEY
CONSIDERED SOME OTHER FACTORS,
BUT IN MY VIEW, WHEN I WAS
PROSECUTING THIS CASE, I WAS
TRAVELING ON THE KELLY CASE.
METHOD AND MOTIVE.
>> I WANT TO ASK YOU ANOTHER
QUESTION, AND IT REALLY GOES
BACK TO PARAMETERS OF THIS CASE
AND FOR THE FUTURE.
WE AT SOME POINT WERE FACED --
WITH A MOTION TO DISMISS BY
JUDGE -- MR. ROGOW, AND I -- MY
RECOLLECTION IT WAS AFTER
PROCEEDINGS HAD GONE ON FOR A
PERIOD OF TIME AND THE E-MAILS
HAD ALREADY BEEN PRODUCED,
REVEALING A LOT OF THE INTERNAL
PROCESS OF THIS -- THE PUBLIC
KNOWS A LOT ABOUT HOW OPINIONS
ARE CIRCULATED BEFOREHAND AND
SO FORTH.
IT SEEMS TO ME THAT DEPENDING
ON WHAT WE DO IN THIS CASE, FOR
THE FUTURE, THAT THE JQC IS A
-- [INAUDIBLE] IF THERE IS A
POTENTIAL FOR AN INQUIRY INTO
WHAT IS IN A WRITTEN OPINION,
THERE OUGHT TO BE A THRESHOLD
BY WHICH THE COURT WOULD BE
ABLE TO MAKE A DECISION AS TO
WHETHER THE OPINION ITSELF
NEEDS TO -- THRESHOLD FOR
ALLOWING THE JQC TO GO BEHIND
THE WALL OF CONFIDENTIALITY
THAT IS INVOLVED WITH THE
DELIBERATIVE PROCESS OF THE
COURTS.
WHAT IS THE -- JQC SAY TO THAT.

BECAUSE WHEN I READ ALL OF THE
E-MAILS I THOUGHT, YOU KNOW,
THIS IS USUALLY IN ANY OPINION,
SIR -- [INAUDIBLE]
LOTS OF -- CIRCULATED AND LOTS
OF E-MAILS GO AROUND THE -- AND
SOMETIMES THEY ARE NOT PLEASANT
AND SOMETIMES THEY ARE BUT YOU
THINK OF THEM AS BEING
PROTECTED COMMUNICATIONS.
SO TELL ME ABOUT THAT FOR THE
FUTURE.
IS THE JQC, CAN LOOK AT THE
OPINION AND THINK IT IS --
IMPLIES CORRUPTION AND THEN,
THERE BY, GETS ALL OF THE
E-MAILS AND YOU KNOW -- DEPOSE
ALL THE JUDGES.
>> I WAS INTERESTED AS THE
PROSECUTOR OF THE CASE IN THE
E-MAIL TRAFFIC BECAUSE OF THE
KELLY OPINION THAT SAID METHOD
AND MOTIVE ARE THE TWO THINGS
YOU LOOK AT.
I WANTED TO KNOW WHAT, WHAT
MOTIVATED JUDGE ALLEN TO DO
THIS.
AND THAT IS WHY WE ASKED FOR
THIS, AND IT WAS GIVEN TO US.
BY THE FIRST DISTRICT COURT OF
APPEALS.
AND OF COURSE --
>> ARE YOU SAYING IT WAS GIVEN,
NO OBJECTION WAS MADE.
>> IF THERE WAS -- THERE WAS
NEVER AN ASSERTION OF ANY KIND
OF PRIVILEGE, IT WAS PRODUCED
TO US.
SO -- BUT BEAR IN MIND THERE
WAS A COURT IN ENORMOUS TURMOIL
SO I MEAN, THERE ARE FACTIONS
THERE SO IT WAS PRODUCED TO US
AND IT SEEMED TO ME ON THE
EXISTING STATE OF THE LAW I WAS
ENTITLED TO KNOW WHY DID THIS
MAN WRITE THIS NASTY OPINION
ABOUT HIS COLLEAGUES?
>> LET ME ASK YOU A QUESTION,
THAT IS REALLY RELATED TO THE
CONCERNS YOU HAVE HEARD FROM
OTHER PANEL MEMBERS ABOUT THE
PARAMETER -- PARAMETERS ONCE
YOU GET INTO -- A FELLOW
JUDICIAL OPINION.
-- EVALUATING A FELLOW JUDICIAL
OPINION BY THE JQC AND AS YOU
MENTIONED IN ANSWER TO AN
EARLIER QUESTION, THAT YOU
BELIEVE THAT REALLY WHAT IT --
OCCURRED HERE WAS DEFAMATION BY
IMPLICATION.
[INAUDIBLE] REASON RECENT
DECISIONS.
RENDERED IN THAT AREA OF THE
LAW.
BUT, WHAT WE HAVE DONE, THOUGH,
WITH REFERENCE TO THE
DEFAMATION AND OTHER LEGAL
ACTIONS, AGAINST PARTICIPANTS
IN THE JUDICIAL PROCEEDINGS, TO
SAY THERE IS A PRIVILEGE AND
THAT WE WANT THERE TO BE
VIRTUAL ABSOLUTE FREEDOM IN
JUDICIAL PROCEEDINGS FOR THINGS
TO BE SAID, OR WHATEVER TO BE
CERTAIN THAT THINGS ARE FULLY
AIRED.
SO THAT, HOPEFULLY, THAT CAN
HELP IN THE RESOLUTION OF
SERIOUS DISPUTES SO WHAT WE
HAVE DONE IS GRANTED A GREAT
IMMUNITY TO THESE PROCEEDINGS.

PROBABLY OFF THE TOP OF MY
HEAD, DEFAMATION BY IMPLICATION
WOULD NOT BE SUCCESSFUL BECAUSE
OF THE EXISTENCE OF THIS
PRIVILEGE.
WOULD YOU AGREE WITH THAT?
THAT IS WHERE I WANT TO TAKE
YOU WITH MY QUESTION AND I'M
REALLY EXPRESSING THE SAME
CONCERN COMING AT IT FROM A
DIFFERENT DIRECTION.
IF WE HAVE [INAUDIBLE] SUCH
IMMUNE FROM OTHER ACTIONS WHY
SHOULD WE MAKE AN EXCEPTION FOR
THE JQC TO ESSENTIALLY DO THE
SAME THING THROUGH THESE KINDS
OF PROCEEDINGS.
AND THAT IS, IF IT IS SUCH A --
OF SUCH GREAT VALUE TO US, TO
BE SURE THAT EVERYBODY SAYS
WHAT THEY WANT TO SAY, IT'S SO
IMPORTANT TO US WE GRANT THIS
IMMUNITY, FROM THINGS THAT ARE
SAID IN JUDICIAL PROCEEDINGS,
AND WHY SHOULD WE MAKE AN
EXCEPTION FOR AN ETHICAL
PROCEEDING?
>> THE CANONS OF JUDICIAL
CONDUCT ARE THEMSELVES
RESTRICTIONS ON JUDICIAL
INDEPENDENCE.
THAT IS THE VERY NATURE OF
THESE CANONS.
A JUDGE MUST LIVE UP TO THE
STRICTEST OF THESE CANONS,
STRICTER THAN STANDARDS IMPOSED
ON LAWYERS, YOU SAID THAT MANY
TIMES IN YOUR OPINIONS, YOU
CAN'T ALLOW IN MY VIEW, IF YOU
DO IT WILL BE OPEN SEASON ON
JUDGES, AND JUSTICES, YOU CAN'T
ALLOW THE NOTION OF JUDICIAL
INDEPENDENCE TO EVISCERATE THE
CANONS.
YOU HAVE SAID TIME AND TIME
AGAIN, AND MOST RECENTLY
[INAUDIBLE] SEPTEMBER 29th, A
BANNER DAY FOR ME, HERE'S WHAT
YOU SAID.
A JUDGE HAS AN ABSOLUTE
OBLIGATION TO ACT AT ALL TIMES
IN A MANNER THAT PROMOTES
PUBLIC COULD SAY DENSE IN THE
INTEGRITY AND IMPARTIALITY OF
THE JUDICIARY AND THEN YOU SAID
TO DRIVE THE THING HOME, QUOTE,
THIS PROVISION IS NOT AND AS
EXPIRATIONAL PRINCIPLE BUT A
CLEAR AND UNEQUIVOCAL MANDATE.

NOW IF IT IS GOING TO BE A
CLEAR AND UNEQUIVOCAL MANDATE
YOU CAN'T LET JUDGES GO OFF THE
RESERVATION AND WRITE A
PERSONAL CHARACTER
ASSASSINATION ABOUT ANOTHER
JUDGE AND SHROUD IT IN AN
OPINION.
>> WHAT IS THIS PUBLIC TO THINK
IF THEY READ AN ORDER
DISMISSING A DEFAMATION ACTION,
BECAUSE WE GRANT IMMUNITY TO
JUDICIAL PROCEEDINGS AND AND
ESSENTIALLY SAY YES, WE
RECOGNIZE THE ALLEGATIONS ARE
THAT IN A VERY EXTREME LANGUAGE
WAS USED AND THAT IN ORDINARY
CIRCUMSTANCES, OUTSIDE OF
JUDICIAL PROCEEDINGS THIS WOULD
BE A VALID ACTION.
BUT, NEVERTHELESS, WE'LL
DISMISS THE CASE BECAUSE OF THE
CON -- PRIVILEGE IN A
JUDICIAL PROCEEDING AND
YESTERDAY YET HOW THIS IS
PUBLIC TO UNDERSTAND IF WE SAY
THAT ON THE ONE HAND AND THE
OTHER HAND SAY BUT THE JUDGE
CAN BE PROSECUTED ETHICALLY.
>> THE BIG DIFFERENCE IS IN A
DEFAMATION SUIT, IT WOULD BE
PROBABLY ONE OF THE PARE TO THE
SUIT, SUING A JUDGE.
THIS IS THE CASE OF A JUDGE
DOING IT TO ANOTHER JUDGE AND
IN THE CONTEXT OF AN APPELLATE
COURT AND THE ONLY WAY YOU CAN
REACH THAT IS THROUGH A
CRIMINAL PROSECUTION OR
JUDICIAL QUALIFICATION AND LET
ME TELL YOU WHY I CITED THE
JEWS FOR JESUS CASE.
FOR THE STANDARDS THAT YOU SET
OUT.
AND, WHEN A DEFENDANT JUXTAPOSE
IS A SERIES OF FACTS SO AS TO
IMPLY A DEFAMATORY CONNECTION
OR DEFAMATORY IMPLICATION BY
ADMITTING FACT AND I DIDN'T
MEAN TO SAY THERE WAS A CIVIL
CAUSE OF ACTION FOR WHAT JUDGE
ALLEN DID AND JUDGE KAHN -- I
MEANT TO SAY IT THIS IS SAME
THING, JUXTAPOSING OF FACTS OR
ADMISSION OF FACTS TO CREATE AN
IMPRESSION.
>> THIS IS REALLY -- THE REAL
CRUX OF THIS IS THE SUBJECT
MATTER OF WHAT THAT CRITICISM
IS AND THAT BEING CORRUPTION.
ISN'T THAT REALLY WHAT IT IS?
BECAUSE IF HE HAD --
JUDGE KAHN ON HIS LEGAL
ABILITIES OR HIS REASONING
CAPACITY OR SOME OF THOSE TYPES
OF THINGS WHICH FROM
TIME-TO-TIME WE SEE, YOU KNOW,
THOSE KINDS OF WORDS IN A -- IN
OPINIONS IT IS THE SUBJECT
MATTER IS CORRUPTION, SENT,
REALLY THE HEART OF THE CASE.
>> HE COULD HAVE SAID JUDGE K
-- KAHN BUCHERED THE CASE.
>> I'M NOT PROUD OF THAT,
EITHER.
>> THAT IS FAIR GAME, WHEN
YOU'RE IN THE HEAT OF
INTELLECTUAL BATTLES ABOUT
PRINCIPLE HAVE AT IT BUT WHEN
YOU CROSS OVER AND SLING
PERSONAL MUD ON SOMEBODY AND
BASICALLY ACCUSE THEM OF DOING
SOMETHING TO LAND THEM IN JAIL
FOR BRIBERY OR TAKING A BRIBE,
THAT IS BEYOND THE PALE AND I
DON'T SEE, I DON'T SEE THAT AS
A SLIPPERY SLOPE.
>> MR. POPE WITH OUR HELP YOU
HAVE ALSO USED UP MORE OF --
THAN YOUR TIME, I THANK YOU FOR
YOUR ARGUMENTS HERE TODAY AND
WE WILL OF COURSE TAKE THIS
CASE UNDER ADVISEMENT.