In Re: Amendments to the Florida Judicial Qualifications Commission Rules , 252 So. 3d 733 ( 2018 )

Supreme Court of Florida
____________
No. SC17-1362
____________
IN RE: AMENDMENTS TO THE FLORIDA JUDICIAL
QUALIFICATIONS COMMISSION RULES
August 30, 2018
PER CURIAM.
The Florida Judicial Qualifications Commission (Commission or JQC) has
submitted for this Court’s review recent amendments to the Florida Judicial
Qualifications Commission Rules (JQC Rules). Article V, section 12(a)(4) of the
Florida Constitution authorizes this Court, with five justices concurring, to repeal
the Commission’s rules of procedure or any part thereof. The Court now exercises
that authority and repeals the recent amendments to JQC Rules 6 and 20 that
purport to authorize the Commission’s investigative and hearing panels to
designate filings with this Court confidential (confidentiality amendments). These
amendments are inconsistent with Florida Rule of Judicial Administration 2.420
(Public Access to and Protection of Judicial Branch Records) and beyond the
Commission’s authority under the Florida Constitution.
In its July 24, 2017, notice of adoption, the Commission submitted for this
Court’s review a number of recent amendments to the JQC Rules, including the
confidentiality amendments to rules 6 and 20.1 This Court reviewed all the
amendments and ordered the Commission to explain why the confidentiality
amendments should not be repealed for inconsistency with rule 2.420. After
receiving the Commission’s response, this Court issued an order requesting
clarification of the amendments. The Commission responded to this order and
simultaneously provided a notice of adoption of revised confidentiality
amendments to rules 6 and 20. Having considered the originally submitted
amendments, the Commission’s responses to this Court’s orders, and the notice of
adoption of revised amendments to rules 6 and 20, the Court repeals only the rule 6
and 20 confidentiality amendments.
Similar to the confidentiality amendments originally submitted in this case,2
the revised confidentiality amendments, which resulted in newly adopted JQC
1. The amendments originally submitted are the amendments included in
the October 27, 2017, second revised appendix A to the July 24, 2017, notice of
adoption. The Court published those amendments for comment. No comments
were filed.
2. The original confidentiality amendments consisted of amendments to
relettered rule 6(k) and a new rule 20(b) that authorized the investigative and
hearings panels to designate portions of filings with this Court confidential. The
Commission added the following sentence to relettered rule 6(k):
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Rules 6(l) and 20(b), authorize the Commission’s investigative and hearing panels
to designate filings with this Court, or portions of those filings, confidential.3
The Investigative Panel may designate portions of the filing with the
Supreme Court confidential. Portions of the filings designated as
confidential shall be described without revealing the confidential
information and will remain so, subject to further order from the
Supreme Court.
Appendix A Second Revised at 5, In re Amends. to Fla. Jud. Qualif. Comm’n
Rules, No. SC17-1362 (Fla. appendix filed Oct. 27, 2017). The Commission added
new rule 20(b) to provide as follows:
The Hearing Panel may designate portions of the record, findings, and
recommendation confidential. Portions of the record designated as
confidential shall be described without revealing the confidential
information and will remain so, subject to further order from the
Supreme Court.
Id. at 7.
3. Newly adopted rules 6(l) and 20(b), included in the Commission’s
March 13, 2018, response and notice of adoption, provide that the
investigative and hearing panels
may designate filings with the Supreme Court, or portions of
documents therein, as confidential. The confidential information shall
be described without revealing the confidential information, consistent
with the procedure contained in Rule 2.420 of the Florida Rules of
Judicial Administration. The materials that may be designated as
confidential include those items listed in Rule 2.420, or other medical
and psychological records, or filings referencing those materials. The
materials designated as confidential by the Commission shall remain
so, subject to review by, and further order of the Supreme Court.
Response to Request for Clarification; and Notice of Adoption of Amends. to
Rules 6 and 20(b) of the Fla. Jud. Qualif. Comm’n at 2-3, In re Amends. to Fla.
Jud. Qualif. Comm’n Rules, No. SC17-1362 (Fla. document filed Mar. 13, 2018).
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According to the Commission, authorizing its panels to designate filings with this
Court confidential is the Commission’s “attempt to avoid disclosure of medical and
personal information that is necessary to provide to [this] Court in cases involving
disability or illness.”4 This Court does not question that the Commission’s attempt
to protect such sensitive medical and personal information from public view is
made with good intentions. However, this Court must repeal the confidentiality
amendments because neither the Commission nor its panels have authority to
designate filings in this Court confidential under rule 2.420 or the Florida
Constitution, and the Commission does not have authority to adopt a rule of
procedure purporting to grant such authority.
Under article V, section 2(a) of the Florida Constitution, this Court has
exclusive authority to “adopt rules for the practice and procedure in all courts,”
including this Court. Article V, section 12(a)(4) of the Florida Constitution
authorizes the Commission to “adopt rules regulating its proceedings.” However,
neither that provision of the constitution5 nor article I, section 24, which creates the
4. Notice of Adoption of Amendments to the Rules of the Fla. Jud. Qualif.
Comm’n at 6, 10, In re Amends. to Fla. Jud. Qualif. Com’n. Rules, No. SC17-1362
(Fla. notice filed July 24, 2017); Response to Request for Clarification; and Notice
of Adoption of Amends. to Rules 6 and 20(b) of the Fla. Jud. Qualif. Comm’n at 2-
3, In re Amends. to Fla. Jud. Qualif. Comm’n Rules, No. SC17-1362 (Fla.
document filed Mar. 13, 2018).
5. Cf. In re Rules of Fla. Jud. Qualif. Comm’n, 364 So. 2d 471, 471 (Fla.
1978) (repealing JQC rule purporting to establish procedures governing JQC
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public’s right of access to judicial branch records and the limitations on that right,6
authorizes the Commission to adopt rules allowing its panels to designate filings in
this Court confidential.
Article I, section 24 of the Florida Constitution recognizes the rules of this
Court that were in effect at the time of the adoption of that section as one source of
limitation on the public’s right of access to judicial branch records.7 Therefore, in
October 1992, in anticipation of the adoption of article I, section 24, this Court
adopted Florida Rule of Judicial Administration 2.420 to govern access to judicial
branch records.8
As relevant here, rule 2.420 provides the procedures for determining the
confidentiality of court records, which includes all filings with this or any other
proceedings in this Court as exceeding Commission’s constitutional authority to
“adopt rules regulating its proceedings” and intruding on this Court’s exclusive
authority to “adopt rules for the practice and procedure in all courts”).
6. Article I, section 24 of the Florida Constitution creates a right of access to
all public records as defined by that section, which includes judicial branch
records, except for those records made confidential by another section of the
constitution, by a statute enacted by the Legislature, or by a court rule that was in
effect when article I, section 24 was adopted.
7. Art. I, § 24(d), Fla. Const.
8. See In re Amends. to Fla. Rule of Jud. Admin.—Public Access to Jud.
Records, 608 So. 2d 472 (Fla. 1992) (adopting Florida Rule of Judicial
Administration 2.051, which has been renumbered 2.420, to govern public access
to judicial branch records).
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state court.9 Thus, the only filings in a JQC proceeding in this Court that can be
designated and maintained as confidential are those determined to be confidential
in accordance with the rule 2.420 procedures adopted by this Court.10 A filing in
this or any other state court is not confidential under rule 2.420 and cannot be
otherwise “designated” confidential simply because it contains sensitive personal
information.11 And nothing in rule 2.420 excludes from its requirements filings in
JQC proceedings in this Court or authorizes the Commission or its panels to
designate such filings confidential and exempt from the public’s constitutional
right of access to those records.
9. See Fla. R. Jud. Admin. 2.420(b)(1) (defining “[r]ecords of the judicial
branch”); 2.420(b)(1)(A) (defining “court records”).
10. See Fla. R. Jud. Admin. 2.420(d)(1)-(d)(3) (listing information in court
records that the clerk of court must designate and maintain confidential; providing
for the filing of a notice of confidential information in court filings; and providing
for the filing of motions to determine confidentiality of information in court
records that may be confidential under subdivision (c) of rule 2.420 but is not listed
under subdivision (d)(1)); Fla R. Jud. Admin. 2.420(g)(1), (g)(8) (providing for the
filing of motions to determine confidentiality of appellate court records and
providing that records of a lower tribunal determined to be confidential by that
tribunal must be treated as confidential during any review proceedings).
11. Cf. In re Implementation of Comm. on Privacy & Court Records
Recommendations, 78 So. 3d 1045, 1049-50 (Fla. 2011) (explaining that Florida
Rule of Judicial Administration 2.425 provides the procedures for minimizing the
amount of sensitive personal information included in documents being filed with
the court and that rule 2.420 provides the procedures for determining the
confidentiality of information after it has been filed).
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Consistent with article V, section 12(a)(4) of the Florida Constitution, which
makes proceedings against a judge before an investigative panel of the
Commission confidential, rule 2.420(c)(3)(A) recognizes as confidential
complaints alleging misconduct against judges until probable cause is found.
However, after an investigative panel finds probable cause and files formal charges
with the Clerk of this Court, any further proceedings before the Commission or this
Court are public, and the records created in connection with or filed in those
proceedings are public unless they are recognized as confidential under rule
2.420(c).
This Court cannot agree with the Commission that rule 2.420(c)(8)
authorizes the Commission to adopt the confidentiality amendments at issue here.
Rule 2.420(c)(8) recognizes as confidential “[a]ll records presently deemed to be
confidential by . . . the rules of the Judicial Qualifications Commission.” This
provision was adopted in 1992, shortly before article I, section 24 of the Florida
Constitution.12 Section 24(d) preserves the effectiveness of rules of court
exempting certain judicial branch records from public access as of the date this
section was adopted, but it does not authorize new rules of court providing
additional exemptions. On the contrary, section 24(c) grants only the Legislature
12. In re Amends. to Fla. Rule of Jud. Admin.—Public Access to Jud.
Records, 608 So. 2d at 474.
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the power to create new exemptions. Consistent with these constitutional
provisions, rule 2.420(c)(8) simply recognizes as confidential records that were
confidential under any JQC rule that existed at the time rule 2.420 was adopted.13
That rule does not authorize the Commission to adopt new rules of procedure
addressing the confidentiality of its filings in this Court.
Accordingly, this Court repeals the amendments to JQC Rules 6 and 2014
that purport to authorize the Commission’s panels to designate filings with this
Court confidential.
It is so ordered.
CANADY, C.J., and PARIENTE, QUINCE, POLSTON, LABARGA, and
LAWSON, JJ., concur.
LEWIS, J., concurs in result.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
13. The term “presently” as used in rule 2.420(c)(8) means at the time of the
1992 adoption of the rule. See id. at 472-73 (recognizing that proposed
amendment to the Florida Constitution, which became article I, section 24,
provided that all judicial branch records are public except those exempted by rule
in effect on the date of the adoption of the amendment or those exempted by the
Legislature and therefore constitutional amendment would prohibit the later
adoption of judicial branch rules that would close any other judicial branch
records).
14. To avoid any revival issues, the Court repeals new rules 6(l) and 20(b)
included in the appendix to this opinion and the amendment to relettered rule 6(k)
and new rule 20(b) quoted in footnote 2 of this opinion.
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Original Proceeding – Florida Rules of Judicial Qualifications Commission
Krista Marx, Chair, West Palm Beach, Florida, Michael L. Schneider, Executive
Director, and Alexander J. Williams, Assistant General Counsel, Judicial
Qualifications Commission, Tallahassee, Florida,
for Petitioner
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APPENDIX
APPENDIX A THIRD REVISED (with Changes to 6(l) and 20(b))
FILED MARCH 14, 2018
RULE 2. DEFINITIONS
In these rules, the singular shall include the plural and vice-versa, and any
singular personal pronoun shall include both feminine and masculine genders, and
unless the context or subject matter otherwise requires:
(1) “Commission” means the Judicial Qualifications Commission.
(2) “Investigative Panel” means a division of the Commission vested with
the jurisdiction to receive or initiate complaints, conduct investigations, dismiss
complaints, and, upon a vote of a simple majority of the panel, submit formal
charges to the hearing panel. The chair of the Commission shall be its chair.
(3) “Hearing Panel” means a division of the Commission vested with the
authority to receive and hear formal charges from the Investigative Panel. The
Hearing Panel, by majority vote of its members may recommend to the Supreme
Court that a judge be subject to appropriate discipline. Upon a two-thirds vote, the
panel may recommend to the Supreme Court the removal of a judge, as provided in
Article 5, § 12, of the Constitution of the State of Florida, or the involuntary
retirement of a judge for any permanent disability that seriously interferes with the
performance of judicial duties.
(4) “Judge” means a justice of the Supreme Court and a judge of the
District Court of Appeal, Circuit Court and County Court.
(5) “Chair” includes the acting chair.
(6) “General Counsel” means any member of The Florida Bar
designatedemployed by the Commission to serve as legal advisor to the
Commission and Investigative Panel, and to perform such other duties as
authorized by the Commission to gather and present evidence before the
Investigative Panel or the Hearing Panel with respect to the charges against a judge
and to represent the Commission in any proceedings, related to the activities of the
Commission.
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(7) “Counsel to the Hearing Panel” means any member(s) of The Florida
Bar, designated by the Hearing PanelChair of the Commission to serve as legal
advisor to the Hearing Panel. Counsel to the Hearing Panel shall act as clerk to the
Hearing Panel during the trial, collect evidence, and transmit the record to the
Supreme Court.
(8) “Special Counsel” means any member(s) of The Florida Bar
designated by the Investigative Panel to gather and present evidence before the
Investigative Panel or the Hearing Panel with respect to the charges against a judge
and to represent the Commission in any proceedings, related to the activities of the
Commission.
(9) “Shall” is mandatory and “may” is permissive.
(10) “Mail” and “mailed” include ordinary, registered, certified, or other
form of United States mail, personal delivery, and delivery by a commercial
delivery service.
(11) “Executive Director” means a person designatedmember of The
Florida Bar employed by the Commission to supervise its staff, to serve as legal
advisor to the Commission and Investigative Panel, and to render such services to
the Commission and its several panels as required, provided, however, that. theThe
Executive Director and administrative staff will provide only ministerial or similar
services to facilitate the activities of the Hearing Panel.
(12) “Member” means a member of the Commission.
(13) “Supreme Court” means the Supreme Court of Florida.
RULE 4. OFFICERS OF THE COMMISSION
The Commission shall elect a Chair and a Vice-Chair, each of whom shall
serve for a term of two years. The Vice-Chair shall act as the chair of the
Commission in the absence of the Chair. If both the Chair and the Vice-Chair are
absent, then a majority of the members present may appoint a Chair Pro Tempore.
The Commission may employ staff, including an eExecutive dDirector and
General Counsel, and such other staff as necessary to carry out its duties. The
Commission will consider and decide matters relating to budget and other business
of the Commission not specifically assigned to its panels. The Hearing Panel
mayChair shall appoint Counsel to the Hearing Panel to serve as its legal advisor.
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RULE 6. INVESTIGATIVE PANEL RULES
(a) The Investigative Panel of the Commission, upon receiving factual
information, not obviously unfounded or frivolous, or an individual complaint
made under oath, indicating that a judge is guilty of willful or persistent failure to
perform judicial duties, or conduct unbecoming a member of the judiciary
demonstrating a present unfitness to hold office, or conduct violative of the Code
of Judicial Conduct, or that the judge has a disability seriously interfering with the
performance of the judge’s duties, which is, or is likely to become, permanent in
nature, may make an investigation to determine whether formal charges should be
instituted.
(b) The judge has no right to be present or to be heard during an
investigation, but before the Investigative Panel determines that there is probable
cause to initiate formal charges, the judge shall be notified of the investigation, the
general nature of the subject matter of the investigation, and shall be afforded
reasonable opportunity to make a statement before the Investigative Panel,
personally or by the judge’s attorney(s), verbally or in writing, sworn or unsworn,
explaining, refuting or admitting the alleged misconduct or disability, and to
respond to questions from the Panel. The judge shall not have the right to present
other oral testimony or evidence, nor the right of confrontation or cross-
examination of any person interviewed, called or interrogated by the Investigative
Panel; provided that the Investigative Panel in its sole discretion may receive and
consider documentary evidence, including affidavits submitted by a judge. Such
notification shall be given personally, by registered or certified mail, or by delivery
by a commercial service, addressed to the judge at the judge’s chambers or, if
returned undelivered, at the judge’s last known residence.
(c) The Investigative Panel shall have the right to require a judge to meet
with it on an informal basis in reference to matters that relate to the judge’s duties.
(d) When a judge has received a notice of investigation, or a notice to
appear before the Investigative Panel, or has requested such notification, the judge
shall be promptly notified in writing if the investigation does not disclose probable
cause to warrant further proceedings.
(e) The Investigative Panel shall have access to all information from all
executive, legislative and judicial agencies, including grand juries. At any time, on
request of the Speaker of the House of Representatives, the Commission shall
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make available all information in possession of the Commission for use in
consideration of impeachment.
(f) When the Investigative Panel finds probable cause that formal charges
should be filed against the judge, the Investigative Panel shall file a Notice of
Formal Charges with the Clerk of the Supreme Court. The Investigative Panel shall
designate one or more Special Counsel who shall prepare appropriate papers and
pleadings, gather and present evidence before the Hearing Panel with respect to the
charges against the judge, and otherwise act as counsel in connection with the
prosecution of the charges against the judge, including the representation of the
Commission in connection with any Commission or judicial proceedings. The
Investigative Panel shall cause to be served on the judge a copy of the Notice of
Formal Charges. Such proceedings shall be styled:
“BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS
COMMISSION”
“Inquiry Concerning a Judge, The Honorable____________, No. ______”
(g) The notice shall be issued in the name of the Commission and specify
in ordinary and concise language the charges against the judge and allege the
essential facts upon which such charges are based, and shall advise the judge of the
judge’s right to file a written answer to the charges against within 20 days after
service of the notice upon the judge.
(h) Service of the notice shall be made personally, by registered or
certified mail or by commercial delivery service, addressed to the judge at the
judge’s chambers or, if returned undelivered, at the judge’s last known residence.
(i) After the notice has been filed, any notice or other material shall be
mailed to the judge at the judge’s chambers or residence address, or to the judge’s
attorney(s), if any.
(j) The notice may also include the judge’s prior relevant judicial
disciplinary history with the Commission and the record will be made available to
the Hearing Panel to establish a pattern of conduct or to assist the Hearing Panel in
recommending the appropriate sanction to the Supreme Court.
(k) The Investigative Panel may reach agreement with a judge on
discipline or disability, and such stipulation shall be transmitted directly to the
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Supreme Court to accept or reject. If rejected, such agreement shall be without
prejudice to any party thereto.
(l) The Investigative Panel may designate filings with the Supreme
Court, or portions of documents therein, as confidential. The confidential
information shall be described without revealing the confidential information,
consistent with the procedure contained in Rule 2.420 of the Florida Rules of
Judicial Administration. The materials that may be designated as confidential
include those items listed in Rule 2.420, or other medical and psychological
records, or filings referencing those materials. The materials designated as
confidential by the Commission shall remain so, subject to review by, and further
order of the Supreme Court. (REPEALED)
RULE 8. SUSPENSION OF JUDGE
Before or after the filing of a Notice of Formal Charges, the Investigative
Panel may, in its discretion, issue its order directed to the judge ordering the judge
to show cause before it why that panel should not recommend to the Supreme
Court that the judge be suspended from office, either with compensation or without
compensation, while the inquiry is pending. The order to show cause shall be
returnable before the Investigative Panel at a designated place and at a time certain,
at which place and time the Investigative Panel shall consider the question of
suspension and any action thereto. Factors to be considered include: the
seriousness of the allegation of misconduct, the preservation of public confidence
in the judicial system, the responsiveness of the judge to the disciplinary process,
or whether the judge has engaged in conduct that demonstrates a present unfitness
to hold office. The arrest or conviction of a crime constitutes a sufficient basis for
the recommendation for suspension under this rule. Thereafter, and upon the filing
of a Notice of Formal Charges with the Supreme Court, the Investigative Panel, not
less than two-thirds of its members concurring, may recommend to the Supreme
Court that the judge be suspended from performing the duties of office, either with
or without compensation, pending final determination of the inquiry. If the
Investigative Panel recommends suspension, such recommendation shall have
incorporated therein a record of the proceedings of the Investigative Panel in
relation to the order to show causethe factual basis for the recommendation.
RULE 11. SETTING FOR HEARING
After the filing of an Answer or the expiration of the time for its filing, the
Hearing Panel shall set a time and place for a hearing and shall give notice of such
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hearing at least 20 days prior to the date set. If the judge timely requests that the
hearing be held in the county of the judge’s residence, it shall be so held unless the
Hearing Panel, by an affirmative vote of two-thirds of its members, determines
otherwise. Hearings before the Commission should be accorded precedence over
most other proceedings due to the extraordinary nature of the hearing.
RULE 12. PROCEDURE
(a) Settlement Negotiations. Prior to commencement of the hearing to
determine formal charges against a judge, the Investigative Panel retains the
authority to enter into stipulations for proposed discipline with the judge or judge’s
representatives. After the commencement of the hearing to determine formal
charges against a judge, the Hearing Panel shall have the authority to enter into
stipulations for proposed discipline with the judge or judge’s representative, which
it shall incorporate into its recommendation to the Supreme Court.
(b) In all proceedings before the Hearing Panel, the Florida Rules of Civil
Procedure shall be applicable except where inappropriate or as otherwise provided
by these rules.
(c) Summary Judgment is not available to either party.
(d) Special Counsel shall, upon written demand of a party or counsel of
record, promptly furnish the following:
The names and addresses of all witnesses whose testimony the Special
Counsel expects to offer at the hearing, together with copies of all written
statements and transcripts of testimony of such witnesses in the possession of the
counsel or the Investigative Panel which are relevant to the subject matter of the
hearing and which have not previously been furnished, except those documents
confidential under the Constitution of the State. When good cause is shown this
rule may be waived.
(de) At the time and place set for hearing, the Hearing Panel may proceed
with the hearing whether or not the judge has filed an Answer or appears at the
hearing.
RULE 14. EVIDENCE
(a) At a hearing before theThe Hearing Panel, legal evidence only shall
be received and oral evidence shall be taken only on oath or affirmation has wide
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latitude to admit or exclude evidence and is not bound by the technical rules of
evidence. It may admit evidence that is relevant and reliable as described in The
Florida Bar v. Tobkin, 944 So. 2d 219 (Fla. 2006).
(b) Past disciplinary actions by the Commission may be admitted by the
Hearing Panel to demonstrate a relevant factual matter such as a pattern of
conduct, or, upon a finding of guilt, to properly assess the appropriate sanction to
recommend to the Supreme Court.
RULE 20. CERTIFICATION OF HEARING PANEL
RECOMMENDATIONS TO SUPREME COURT
(a) If the Hearing Panel dismisses the formal charges, the Hearing Panel
shall promptly file a copy of the dismissal order certified by the Chair of the
Hearing Panel with the Clerk of the Supreme Court. Upon making a determination
recommending discipline, retirement or removal of a judge, the Hearing Panel shall
file a copy of the recommendation certified by the Chair of the Hearing Panel,
together with a transcript and the findings and conclusions, with the Clerk of the
Supreme Court and shall mail to the judge and to the judge’s attorney(s) notice of
such filing, together with a copy of such recommendations, findings, and
conclusions.
(b) The Hearing Panel may designate filings with the Supreme Court, or
portions of documents therein, as confidential. The confidential information shall
be described without revealing the confidential information, consistent with the
procedure contained in Rule 2.420 of the Florida Rules of Judicial Administration.
The materials that may be designated as confidential include those items listed in
Rule 2.420, or other medical and psychological records, or filings referencing
those materials. The materials designated as confidential by the Commission shall
remain so, subject to review by, and further order of the Supreme Court.
(REPEALED)
(c) If the Hearing Panel determines to recommend removal, it may also
include in its findings and recommendations that the judge be suspended with or
without pay pending the final determination of the inquiry.
RULE 22. SUBPOENAS
Subpoenas for the attendance of witnesses and the production of
documentary evidence shall be issued as follows:
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(a) For investigative purposes, subpoenas may be issued for the
attendance of witnesses and the production of documents before the General
Counsel or Special Counsel with respect to any potential violation of the Code of
Judicial Conduct, and counsel is empowered to administer oaths to all who are
summonsed to testify or who may voluntarily appear before counsel to testify as to
any potential violations of the Canons of the Code of Judicial Conduct.
(b) Subpoenas for the attendance of witnesses and the production of
documentary evidence for discovery after formal charges are filed, and for the
appearance of any person before anythe Hearing pPanel of the Commission, may
be issued by the General Counsel, Counsel to the Hearing Panel, or Special
Counsel, or counsel for the judge, and may be served in the manner provided by
law for the service of witness subpoenas in a civil action, but without cost.
(c) Contempt. Any person who, without adequate excuse, fails to obey
such a subpoena of the Commission or a panel of the Commission served upon that
person may be cited for contempt of the Commission in the manner provided in
these rules.
RULE 25. DISQUALIFICATION OR VACANCY
(a) Whenever a judge against whom formal proceedings have been
instituted, shall file with the Hearing Panel an affidavit that the judge fears the
judge will not receive a fair hearing before the Hearing Panel on the charges
because of the prejudice of one or more members of the Hearing Panel against the
judge, and the facts stated as the basis for making the affidavit shall be supported
in substance by affidavit of at least two reputable citizens of the State of Florida
not kin to the judge or the judge’s attorney, or if any member of the Hearing Panel
shall voluntarily recuse himself, such member or members of the Hearing Panel
shall proceed no further therein and shall be disqualified from hearing the charges.
The affidavit shall state the facts and the reasons for the belief that any such
prejudice exists, shall specify the member(s) of the Hearing Panel allegedly
prejudiced and shall be filed not more than 15 days after service of the Notice of
Formal Charges upon the judge chargedAfter the filing of formal charges, a judge
may move to disqualify a member of the Hearing Panel. The motion shall be in
writing, sworn to by the judge, and shall specifically allege the facts and reasons
that establish a legally sufficient factual basis for disqualification.
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(1) Grounds. A motion to disqualify shall show facts would place
a reasonably prudent person in fear of not receiving a fair and impartial hearing if
the Hearing Panel member participates.
(2) Time. A motion to disqualify shall be filed within a reasonable
time not to exceed 15 days after the Hearing Panel members are identified, or the
discovery of the facts constituting the grounds for the motion and shall be promptly
presented to the Hearing Panel for an immediate ruling. A motion made during
hearing shall be ruled on immediately.
(3) Determination. The Hearing Panel shall determine whether the
facts alleged are sufficient to support a motion to disqualify. The matter of
disqualification shall be by a majority vote of the panel.
(4) Member’s Initiative. If any member of the Hearing Panel
voluntarily recuses him or herself, the member shall not participate in the hearing.
(b) The ChairExecutive Director of the Commission shall request from
each of the appointing authorities a list of four persons who may temporarily serve
in the absence of incapacitated or disqualified members. The appointing authorities
are the Conference of District Court of Appeal Judges, the Conference of Circuit
Court Judges, the Conference of County Court Judges, the Board of Governors of
The Florida Bar, and the Governor of Florida. Upon the disqualification of or in
the absence of a member of the Hearing Panel, the replacement shall be chosen by
the Chair of the Commission from those listed by the appropriate appointing
authority. Each such replacement shall be from the same category as the
disqualified member(s) set forth in Section 12(a), Article V of the Constitution of
the State of Florida.
(c) The judge may within 15 days after receiving notice of such ad hoc
appointment, file a like affidavit as to that appointee, which shall be supported in
substance by an affidavit of two citizens as set forth above, in which event the ad
hoc appointee shall not be disqualified on account of alleged prejudice against the
judge unless the appointee admits that it is then a fact that the appointee is
prejudiced against the judge, or unless a majority of the Hearing Panel, which may
include any ad hoc appointee, holds that the appointee is prejudiced against the
judge, in which event the same ad hoc appointment procedure set forth above shall
be followed until a qualified person has been appointed.
(d) A judge moved against by the Commission may, by affidavit, suggest
the disqualification of a member or members of the Commission unsupported by
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two citizens, but in such event the determination of the matter of disqualification
shall be by majority vote of the panel having jurisdiction unless the person sought
to be disqualified voluntarily recuses himself.
(e) Upon the vacancy of a position on the Commission due to resignation
or ineligibility as a member of the Commission, or upon the failure of the
appointing authority to timely appoint a constituent member, the Chair shall
appoint an ad hoc member from a list provided by the appropriate appointing
authority. Each such replacement shall be from the same category as the
disqualified member(s) set forth in Section 12(a), Article V of the Constitution of
the State of Florida, and shall serve only until the appointing authority selects a
representative to fill the vacancy.
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