Petition for Writ of Certiorari — Kelly v. Florida Judicial Qualifications Commission

Supreme Court brief1971

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| Mack v. Florida State Board of Dentistry,

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CITATIONS Continued

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Florida Constitution, Article V STA e

Mlorida Constitution, Article V STA ‘3, 28

CASE NO.

THE HONORABLE RICHARD KELLY,

CIRCUIT JUDGE

Petitwner,

va.

FLORIDA JUDICIAL QUALAFICATIONS

COMMISSION,

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

The Petitioner, Crtheentite tment, Cir-

cuit Judge, prays that a Writ of Certiorari issue to re-

view the opinion and judgment of the Supreme Court of

Florida entered in these proceedings on June 17, 1970.

OPINIONS BELOW

The opinion of the Supreme Court of Florida, which

is reported at 238 So.2d 565, appears in Appendix “A”

appended hereto at pages 13-40. The opinion or report

of the Judicial Qualifications Commussion is unreported

and appears in the separately bound Appendix “B” filed

herewith at pages 11-23.

The opinion of the Supreme Court of Florida was

entered on June 17, 1970. A timely Petition for Rehear-

ing was denied on September 14. 1970, and this Petition

for Certiorari was filed within ninety days of that date.

The Order Denying Petition for Rehearing appears in

Appendix “A” appended hereto at page 41. This Court's

juriediction is invoked under 28 USC §1257(3).

Constitution of the United States, Amendment I:

“Congress shall make , law respecting an estab-

lihment of religion, or prohibiting the free asercine

thereof; or abridging the freedom of speech, or of

“. . mor shall any state deprive any person of life,

liberty or property without due process of law...”

Florida Constitution, Article V § 17A(3) :

“. - After such investigaticn as it deems necessary,

the judicial qualifications commission may conduct /

a hearing concerning the removal, discipline or re-

Nos. 8, 9, 11, 12, 21, 22, and 23 (published at 207 So.2d

443)? ' |

STATEMENT OF THE CASE

Petitioner, the Honorable Richard Kelly, is a judge

of the Sixth Judicial Circuit of the State of Florida and

is a resident of Pasco County, Florida. Judge Kelly was

first elected a circuit judge in November, 1960 and was

re-elected to a second successive term in the general

election of November, 1966.° In 1963 Judge Kelly was

the subject of impeachment proceedings before the

Florida Legislature; after the prosecution completed

‘ts case the Senate dismissed the charges and acquitted

the judge without any defense being necessary.

In February, 1968, Judge Kelly was elected presid-

ing judge of the Sixth Judicial Circuit. Between the time

of his election and March 19, 1968, Judge Kelly made

certain suggestions and sought to institute certain pro-

posals relative to the administration of the coorts in

the Sixth Judicial Circuit. On March 19, 1968, Judge

' The complete ‘text of Article V {17A. Florida Constitution is set

forth in Appendix “B” filed herewith at pages 43-46.

2 The pertinent text of the aforesaid rules is set forth in Appendix

“B” filed herewith at pages 46-50.

3 In Florida, the Cireuit Court is the highest court of general

jurisdiction. . ——

@ ° ;

Kelly was notified of the determination of a majority of

the other judges in the Circuit that Judge Kelly be re-

moved or rocalied as presiding judge. Judge —

On April 5, 1968, Judge Kelly filed with the Clerk/

of the Sixth Judicial Circuit in Pinellas County, Florida,

a Petition addressed to the judges of the Sixth Judicial

Cireuit. (A 1-12)° In his petition he sought to explain

to the public why he had resigned as presiding judge

and set forth a description of conditions that had and

did exist and as a solution recommended certain admin-

istrative reforms. a

in June, 1968, the Florida Judicial Qualifications —

Commission ‘hereinafter referred to as the Commis-

_ tien) notified Judge Kelly that it was undertaking to

investigate Judge Kelly's conduct in publishing the

aforesaid Petition to determine if Judge Kelly's conduct _

may have been “conduct unbecoming a member of the

judiciary.” (B 1) The Commission advised Judge Kelly

that it would meet in Pasco County. Subsequently, the

Commission again notified Judge Kelly of its continuing

investigation and of its intention to meet for a second |

time in Pasco County. (B 52-53) During this investiga-

tion by the. Commission, the witnesses who later testi-

fied at the trial, were interrogated under oath by the

‘Commission in Judge Kelly's asence; and in November,

1968, the Commission filed formal charges against Judge

Kelly. (B 24) In response to these formal charges,

Judge Kelly filed a Motion to Dismiss the charges on

« “(B)” refers to separately bound Appendix “B” filed herewith.

* “(A)” refers to Appendix “A” appended hereto.

the grounds, among others, that the Commission was

without jurisdiction over Judge Kelly in that its rules

and conduct violated Judge Kelly's constitutional right

to freedom of speech under the First ard Fourteenth

Amendments to the Constitu..cr of the United States

and further violated Judge Kelly's right to be afforded

due process of law under the Fourteenth Amendment

to the Constitution of the United Stated (B 5-7) The

Commiasion, on its own initiative, then entered an Order

striking Judge Kelly's Motion to Dismiss on the ground

that the rules of the Commission do not provide for the

filing of such Motions. (B 7)

Judge Kelly then filed an Answer to the charges

and raised in the Sixth Defense of said Answer the con-

stitutional infirmities previously raised by means of his

Motion to Dismiss, that is, the violation of his right to

eer ty ~~: glace ceed

ceas of law. (B 8-10) | ;

In January 1969 and in March : , the Commis-

sion conducted hearings at which its

sion itself acted as trier of fact and

law. The hearings were held for the of inquiring

into the charges filed by the against Judge

its attorneys.

On May 7, 1969, the | filed with the Su-

preme Court of Florida its report, background,

findings of fact, conclusions and recommendations. (B-

11-23) The Commission found that there was suffi-—

cient evidence to support specific allegations relating

7 ,

to the charge against Judge . conduct unbecom-

te ye

musston with respect fat based

on the Commission ae no

> cminte ap 0 Sate

Kelly's

PROUT 0 nent

CN aE ie cee,

mee seh Sa

aes ee

The Supreme Court of Florida thereafter entered

its opinion, dated June 17, 1970. ( A 13-40) The majority

opinion of the Supreme Court of Florida (representing

the view of four of the justices) approved and accepted

the recommendations of the Commission except for the

suggested restriction of Judge Kelly to Pasco County.

The majority of the Court indicated that the entire

record of the :nquiry might be introduced into evidence

in any subsequent inquiry brought before the Commis-

sion concerning Judge Kelly. (A 40) The majority of

teenth Amendments to the Constitution of the United

Judge Kelly's protected rights to free-

dom of speech. (B 35-43) The Petition for Rehearing

was denied. “

REASONS FOR GRANTING THE WRIT

I |

The public reprimand of Petitioner by the Supreme

Court of Florida for publication of a Petition criticizing

the administration of the,courts in his judicial circuit

conflicts with free speech principies enunciated im pre-

vious decisions of this Court.

the “conduct unbecoming a membef-of the judiciary”,

according to the Commission, included (1) failing to co-

_@perate with other circuit judges, (2) attempting to

seek alieged change in court procedures in a manner

contrary to certain canons of judicial ethics, (3) seek:

ing publicity with the intent tc embarrass other judges

_ by filing a Petition with the Clerk of the Cireuit Court,

(4) using-the office of Circuit Judge for the purpose of

advancing personal ambitions and pubjicity to the detri-

ment or embarrassment of fellow judges and (5) con-

duct leading to the disrespect for, and the lowering of,

thé image of the Court. (B 2-4) Review of the full

report of the Commission together with the opinion of

the Supreme Court of Florida indicates quite clearly

that the sine qua non of the charges against Judge

Kelly was his filing. with the Clerk of the Circuit Court,

the Petition criticizing the administration of the courts

in his circuit and recommending reforms believed by

Judge Kelly to be in the best interest of the Circuit and

the peaple. The majority opinion of the Supreme Court

of Florida recognizes this fact by stating (A 27):

} i ile pill

133 f LTE

HAGA ate ri

ETE A

fay! :

Hie ii aa

methods rather than his right to criticize. (A 21) How-

ever, the curtailment of Judge Kelly's freedom of speech

is no less severe simply because this result is achieved

through indirection.

The Commission and the majority of the Supreme

Court of Florida have disciplined Judge Kelly by publicly

reprimanding him for his criticiam of the courts and

they have publicly warned Judge Kelly that he may be

removed from office if he persists in his criticiem. The

disciplinary measures taken by the Commission and the

majority of the Supreme Court are clearly inconsistent

with the principle established by this Court that public

criticism of the courts must create a clear and present

danger of disrupting the administration of justice for

punishment of the critic to be constitutionally permitted.

See Wood v. Georgia, 370 U.S. 375, 82 8.Ct. 1364, 8 L.Ed.

2d 5690 (1962); Craig v. Harney, 331 U.S. 367, 67 S.Ct.

1249, 91 L.Ed. 1546 (1946); Pennekamp v. Florida, 328

U.S. 331, 66 S.Ct. 1028, 90 L.Ed. 1295 (1945) ; Bridges v.

California, 314 U.S. 252 62 8.Ct. 190, 86 L.Ed. 192 (1941)

Cf. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 208, 13

L.Ed. 2d 125 (1964). Embarrassment of other judges;

as allegedly resulted from Judge Kelly's criticism, is

certainly not such a disruption of the administration of

justice which would warrant the infringement of Judge

Kelly's right to criticize.

Judge Kelly is a public official twice elected by the

voters in his circuit. In his Petition directed to the other

judges of his circuit, Judge Kelly recognized that:

“The substance of our judicial responsibility is to

dispense justice according to law and provide an

efficient court that is responsive to the public's

need,” (A 2)

Each and every one of the proposals set forth by Judge

Kelly in his Petition is designed to promote more ef-

ficient and effective administration of the courts. It is

not merely the right of a public official to espouse such

changes but indeed it is his duty. The public's right to

know and receive information is an integral part of the

freedom of speech that Judge Kelly is here seeking to

protect. Cf., Pickering v. Board of Education, 301 U.S.

_ 563, 88 S.Ct. 1731, 20 L.Ed. 2d 811 (1968).

This Court has held that the right of a public of-

ficial to criticize is no less constitutionally protected be-

cause of his official capacity. See Pickering v. Board of

Education, 301 U.S. 563, 88 S.Ct. 1731, 20 L.Ed. 2d 811

(1968); Puentes v. Board of Education, 392 U.S. 653,

88A S.Ct. 2271 (1968). Significantly, in Pickering v.

Board of Education, supra, this Court recognized that

teachers, as a class, are the members of a community

most likely to have informed and definite opinions as to

the administration and operation of the schools and

that, accordingly, “it is essential that they be able to

speak out freely on such questions without fear of re-

talitory dismissal.” (391 U.S. at 572) In the same way,

judges, as a class, are the members of a community most

likely to have informed and definite opinions as to the

SOO AMET PAGE NR ELD, ERS

administration and operation of the courts. Therefore,

it is just as essential that they be able to speak out

freely on such questions without fear of public repri-

mand or retaliatory disminsal.’

According to the majority of the Supreme Court of

Florida, Judge Kelly and members of tle swdiciary in

general are constantly “enmeshed in the conflict between

candor and responsibility. maintaining the candor of

the politician without shirking the responsibilities of a

judge.” (A 27) Further, the majority of the Supreme

Court of Florida found as follows:

“The candor of Petitioner | Judge Kelly| as a poli-

tician resulted in a large givup of dedicated fol-

lowers, but, in the final analysis, his candor as a

politician caused him to shi:-k re responsibilities

asa member of the judiciary.” (A 28)

Thus, Judge Kelley stands accused, convicted and cen-

sured for being candid, for speaking out, for refusing

to be timid,

It is in this context that we respectfully recall to

this Honorable Court a recent statement delivered at

the annual meeting of the American Bar Association in

St. Louis, Missouri, on October 10, 1970. In discudsing

certain problems with the federal judicial system, Mr.

Chief Justice Warren E. Burger stated:

? The fact that Judge Kelly has not yet been removed from office

but has, at thia point, only been reprimanded and warned does not

make the protection of the First and Fourteenth Amendments pre-

mature. Because the threat of sanctions may deter simost as

potently as the actual application of sanctions, this Court has

treated a threatened loss of public employment as if it were actual.

Kevishian v. Board of Regents, 385 U.8. 580, 87 8.Ct. 675, 17 L.Ed.

2d 629 (1067); Elfbrandt v. Russell, 384 U.S. 11, 86 B.Ct. 1238,

16 L.Ed. 2d 321 (1065).

“The price we are paying and will pay is partly be-

cause judges heve been too timid and the bar has

been too apathetic to make clear to the public and

the Congress the needs of the courts. I intend to

be neither timid nor apathetic about this.” US.

News and World Report, August 24, 1970, page 70.

Timidity and apathy are especially costly in this regard

in Florida because the judges are elected and the fran-

chine of the individual is valueless unless he has free ac-

cess to information concerning the Courts. Recognizing

this Judge Kelly has been neither timid nor apathetic.® It

Q In connection with this, do you think that you can go along

with these rules, whatever they might be, and recognize the fac.

that in this country of ours we must, if the courts are going t’,

operate, we have got to accept the rule of the majority ? nes

A Yen, Judge Moody, I understand that. But there are some

very difficult problems in this. And just to say yes to that I think

doesn't countenance all these problems. For instance, in the fina!

analynin the public has to make some decisions in this thing, and if

they don't know what the issues are they can’t intelligently exerciac

of the court is inconsistent with what I believe is appropriate. The

reality of the court. (Emphasis added)

Q I believe you ate getting away from the question that I asked

you.

A Well, Judge Moody, what I was trying to aim at is this. You

asked should a majority rule. Yes, I believe that. And I think that

if your question was should the majority of the Judges rule within

the Circuits, yes, I think that they should. But I did not want, in

order to curry favor with you, to be unfair or deceitful about it.

is this very circumstance which cries out for this Court

to reaffirm the free speech principles enunciated in the

decisions mentioned hereinabove by issuing a Writ of

Q 1 don't want you to eurry favor. | am trying to get at your

basic concepts.

A I wasn't suggesting you did.

Q It is a problem. We live under the law. We must. We must

abide by the law. We must abide by our rules.

A Yes.

Q We can't change the law by violent means.

A Yen, air.

Q We should change the law in the recognized method of chang-

ing the law.

A Yes , amen

Q We, as Judges, have that primary obligation, and it is under

that thought I was asking whether or not you felt that you could

comply with the rules and try to change them in an orderly manner

“if you disagree with them, and under the preseribed manner of

change, rather than a manner that shall we sey would be in viola-

tion of the Canons of Ethics.

A Judge Moody, let me say this. 1 have no business violating

the Canons of Ethies. There is no justification for that. And I have

no refuge from the law if I do. There is no question about that, And

I recognize the validity of that and the responsibility. But I am

not real sure that there is anything well defined which says that

for a Judge to file with the clerk of his court what he thinks a

problem is and the solution for it when you consider this, In your

Cireuit you have a dismissal procedure and it has been in existence

I think for ten years or more than 15 years, I don’t know, but I

know for a long time. In my -Cirevit when I came here we had no

rules. There were more than 0,000 cages in Pinellas County. There

were 2,000 cases pending in this County. And yet the clerk was

representing to the public that there were.only 300 pending. There

135 appeals pending. Fifty-two of them had been pending more thrn

20 years. Now, I think these are vital things, and vital to the public.

And the issue is this: If an individual Judge tries to unilaterally

try to do something about this in a conservative way after long

Certiorari to the Supreme Court of Florida so that _

judges all over the United States, as well as Judge

Kelly, will be protected in their right and duty to in-

form the public regarding the needs of the Courts and

#0 that the public's right to receive informed informa-

tion will remain unfettered.

The combination of the Commission's functions as

investigator, grand jury, prosecutor, and judge and jury

of facts and law directly conflicts with procedural due

process principles previously established by this Court.

—_—————

urgings to his brothers, if the question is must he then simply

capitulate and let it go on and draw his salary, it is a hard question

for me. It in very difficult for me as an individual -- now, I don't

file petitions every day. I have been on the Bench for more than

eight years and | filed three petitions. I think they were all juati-

fied. And I have tried to rectify these things. And I think this is

oud for the Judges. I think that it serves the image of the court

that I want to serve, and I am no trying to cause trouble. But I am

concerned about these matters.

manner that is recognized, a recognized custom and recognized by

the rules, in trying to handle the matter in the best interests of

question about that. But I should be punished for tho things that

I have not done in the years that I have let go by and not doing

UC NRRDA POR ( of ee

i) OED Pee

Pe ape ORE

Although Article V, Section 17A(3) of the Plorida

Constitution provides that the Comminsion may requent

the appointment of special referees “to hear and to

take evidence .. . and to report thereon to the Com-

mission,” in the instant case the Commiasion chone to

perform thw function itself. (B 45) Thus, it was

the Comminsion which decided tu, and d.d, investigate

the conduct of Judge Kelly. It was the Commin-

sion which then filed formal charges agaimnt

Judge Kelly. It was the Commusnon, through its demiy-

nated counsel, which prosecuted Judve Kelly. It was

the Commiasion which heard and took evidence relative

to these charges. It was the Commission which then

made findings of fact, conclusions and recommendations

to the Supreme Court of Florida. It was the Commis-

sion, aggin through its designated counsel, which

briefed argued facts and law allegedly in support —

of its position before the Supreme Court of Florida.

And, presumably, it will be the Commission again,

through its designated counsel, which will before this

Court, attempt to uphold the decision of the majority

of the Supreme Court of Florida.

In In re Murchinson, 349448. 133, 75 8:Ct. 623, 99

L.Ed. 042 (1955), this Court indicated that a mixing

of functions of grand jury and judge is a denial of due

process. This Court condemned a procedure under

which a single judge acted first as a grand jury and

then tried the criminal contempt proceedings arising

out of his investigation as grand jury. This Court

stated:

“It would be very strange if our system of law per-

mitted a judge to act as a grand jury and then try

the very persons accused as a result of his investi-

gation.” (349 U.S. at 137, 75 8. St. at 625)

Also in Wong Yang Suny v. McGrath, 330 U.S. 33, 70

S.Ct. 445, 9 L.Ed. 616 (1950), this Court, addressing

ituelf to the purposes for enactment of the Federal Ad-

ministrative Procedure Act, stated (330 US. at 41,04

L.Ed. at 625) >

“More fundamental, however, was the purpose to

curtail and change the practice of embodying in

one person or agency the duties of prosecutor and

See also American Cynamid Company v. F.T.C. 363

¥.2d 757 (6th Cir. 1066); Amos Treat and Com ,

Inc. v. Becurities Bachange Commission, 306 F.2d 260

(D.C. Cir, 1962) ; Mack v. Florida State Board of Dentis-

try, 306 VP Supp. 1968 (S.D. Fla. 1960).

U.S. 544, 88 S.Ct. 1222, 20 L.d.2d 117 (1968) ; Spevack

V. Klein, 385 U.S. 511, 87 S.Ct. 625, 17. L.Ed.2d 574

_ These proceedings, which can lead to removal

of a judge from office, are no leas “penal” than dis-

barinent proceedings,

The natural compulsion upon the Commission to

justify its finding of probable Cause for holding hear-

ings and the natural inclination of the Commiasion to

be persuaded by its designated counsel have necessarily

prevented impartial findings, conclusions and recorn-

mendations on the part of the Commission. Although

it is true that the Commission can only recommend and;

the Supreme Court of Florida is not bound by any of

the recommendations of the Commission, the Supreme

Court of Florida does not take additional evidence and

the majority opinion of the Supreme Court itself recog-

nizes the significance of the Commiagion's recommenda-

tions. The majority opinion states (A 23-24):

“While the power to render the ultimate judgment

in these cases is vested in this Court, the findings

and recommendations of the Florida Judicial] Quali-

fications Commission are entitled to receive due

consideration and are of persuasive force... . In

view of these constitutional provisions prescribing

the composition of the Commission, its findings

should be given great weight.”

We would respectfully submit that giving great

weight to the findings and recommendations of the Com-

mission in the instant case results in a denial of due

process to Judge Kelly.

- CONCLUSION

The development of modern machinery for inquir-

ing into judicial conduct is a vital part of our conteni-

_ porary legal history. Errant judicial conduct should be

_ dealt with promptly. Yet, whatever system is used,

judges must receive the same basic fairness expected

of them. Instrumentalities such as the Florida Judicial

Qualifications Commission may be a wholesome concept.

But they must not be allowed. to assume the role of

censors or to stifle constructive criticism of judicial

administration. It is timely and urgent, that this Court

furnish its guidance with regard to. the critical con-

stitutional aspects of these developments.

Judge Kelly sought to inform the public of his views

on the need for reform and change in judicial adminis-

tration in Florida's Sixth Judicial Circuit. He did so

through the filing of a public document which was

thoughful and respectful and which constituted a heart-

felt act of conscience by a judge in the performance

of his duty. Without hesitation, we urge this Court to

read that document (Appendix “A”, pages 1-12) in its

entirety with a view to determining whether such public

comment may constitutionally serve as the basis for

adverse disciplinary action against a judge; or whether

the sanctions imposed here miay constitutionally stand

as a muzzle against similar public comment by judges

in Florida or any other state. |

We submit that the vital needs of a free society,

where the free flow of information from informed

sources is imperative, cannot accommodate the stiflin

effect of the opinion sought to be reviewed.

INES iy

For these reasons, a writ of certiorari should issue

to review the action and opinion of the majority of the

Supreme Court of Florida. .

Respectfully submitted,

— |

Joun W. Bout, Esquine, or

‘FOWLER, WHITE, GILLEN,

HUMKEY & KINNEY, P.A.

Post Office Box 1438

~ Tampa, Florida 33601

ae Counsel for Petitioner

Of Counsel

EDWARD M. WALLER, a... ESQUIRE

Post Office Box 1438

Tampa, Florida 33601

and

BERNARD J. MASTERSON, ESQUIRE, OF

MASTERSON, LLOYD, SUNDBERG AND ROGERS

447 - 3-d Avenue North

St. Petersburg, Florida

APPENDIX “A”:

INDEX TO APPENDIX “A”

TDererupnnnernnt Date Pape

Vetition to the Judges April, 1968 A 1-12

of the Sixth Judicial

Cireuit

Opinion of the Supreme — June 17, 1970 A 13-40

Court of Florida %

Order Donying Septembmer 14,1970 =A 4l

Werbvesarinny

A-1

IN THE CIRCUIT COURT OF THK SIXTH JUDICIAL

CIRCUIT OF FLORIDA

PETITION TO THE JUDGES OF THE SIXTH

JUDICIAL CIRCUIT .

Comes now the undersigned as Judge of the Sixth

Judicial Circuit and submits to his fellow judges for

their approval a wet of administrative reforms for the

purpose of causing this Court to render a more efficient

and direct service to the public. .

On the 26th day of March, 196%, the Petitioner re-

Kigned as Previding Judge of this circuit. Such an event

deserves more explanation than was contained in the

written resignation. The need for administration of the

business of this circuit is urgent and this aspect of the

Cour’'# responsibility has been largely neglected, Your

Petitioner has consistently and conservatively urged

this view. The reforms presented by this Petitioner have

always been sought in the privacy of judicial confer-

ences and individual discussions with the judges of this

circuit, Precipitous action by this Petitioner in bringing

about the accomplished reforms has occurred only when

it was made apparent that the alternatives were unila-

teral action or abandonment of a cause necessary in the

interest of the Court and the public we serve. ,

It is not intended that a rehash of past debates be

had in this text but it is clear that reference to these

matters is necessary in order that the present situation

be made clear,

Attached is a petition filed the 7th day of Septem-

ber, 1962, a consideration of which is pertinent to pre-

sent understanding. (Exhibit A)

This reference clearly indicates that What has been

suggested by this Petitioner has in the past proven to

be reasonable, conservative and in the best interest of

this Court and eventually adopted. This establishes that

A-2

the present response is not new but is old. It became ap-

parent that this Petitioner as Presiding Judge was faced

with a need for expending considerable energy to main-

tain his position as Presiding Judge which is really ir-

relevant. The substance of our judicial responsibility 's

to dispense justice according to law and provide an ef-

ficient court that ia responsive to the public's need. Who

is Presiding Judge is unimportant, —

Nothing that is said here should indicate that this

Petitioner is the only Judge in the circuit that is con-

cerned with the present condition and direction of the

courts in Pinellas County. This very presentation is an

expression of confidence that even the most militant ob-

jector can be stimulated to share this concern, Some of

the judges presently agree that changes should be made

but not necessarily in complete agreement with the pro-

posals here made,

Basically the ebjection to any kind of administra-

tive improvement has been found primarily with the

concern that change constitutes a criticiam of those who

have not acted in the past atid have failed to make im-

provements in the present and that any change is an in-

dictment of their inertia. This is unfortunately negative

and unwarranted because such a result is more than

compensated for by the positive appreciation for pres-

ent accomplishment. The public is logically entitled to

hope for evolution and progress in every governmental

function.

The judges of this circuit know all or most of what

is here to be suggested. The conditions, however, cause

a need for a record and the responsibility fixed.

A comparison of the cases completed and disposed

of in Pinellas County with Pasco County, the other coun-

ty in the circuit, and with Hillsborough County which

constitutes the Thirteenth Judicial Circuit and is well

suited for comparison, reveals that from 1963 through

1966' the production of the court in Pinellas County and

A-3

the Sixth Circuit in terms of work completed was sub-

stantially less for every year of comparison than the

work accomplished in Hillsborough County. (See at-

tached Exhibit B)

A comparison of the work load and condition of the

Circuit Court in Pinellas and Pasco County? shows that

Pinellas has a case load ten times greater than Pasco

County. It has eleven times as many judges aan thirty

times as many cases pending. It is also significant to

note that at the beginning of 1967, Pinellas County had

7,110 cases pending before its Circuit Court and that at

the close of the year there were 7,454 cases, which

shows a trend in the wrong direction.? While in Pasco

County at the beginning of 1967, there were cases

pending before the Circuit Court and at the close of the

year there were 273 cases, which shows a change of ten

per cent in the right direction.¢

The records® show that for the year 1967 the Cir-

cuit Judges of Pinellas County assigned twenty-five per

cent of the cases disposed of to general masters causing

an additional and unnecessary annual cost to the liti-

gants of $24,060.00. Besides the additional cost, this pro-

cedure imposes a seven’to ten day delay in the disposi-

tion of the case compared to a procedure where a judge

tends to the case himself. These cases being heard by

the judges could and should result in additional savings

of thousands of dollars in unnecessary transcription and

court oe fees. This suggestion will not be popular

because it will interfere with a source of income of the

court reporters of this circuit; however, this is a much

more acceptable alternative than make work ineffici-

ency. -

In August of 1965 there were 139 prisoners being

held in the Pinellas County jail awaiting action by the

Circuit Court. Attention was focused on this situation

by the Petitioner in September of 1965, and by Septem-

ber of 1966 this number had been reduced to 52. A year

later the number had risen to 93 and by March of 1968,

} ae

A-4

the number of prisoners awaiting action by the Circuit

Court had increased to 123. It is apparent that with the

increase in the county's population, the crime rate and

the efficiency of law enforcement that the number of

people waiting in jail for action by the Court would nat-

urally increase, It is submitted, however, that the pheno-

mena] increase from September, 1966, to March, 1968, is

more evidence of need for administrative change than.

an alarming increase in the crime rate.

The tremendous reduction in the number of prison-

ers between September, 1965, and September, 1966, is

an excellent case in point for the purpose of showing the

gross lack of administration of the Circuit Court in Pi-

nellas County and the serious consequences of a poorly

administered court. The change was accomplished with.

the simple expediency of appointing the Public Defend-

er at an early date, and yet to bring this simple admin-

istrative change into effect resvited unreasonably in

crisis, controversy and ill-will among the judges which

varied only in degree from the same response that has

met every other suggestion to improve administration.

Soon after the undersigned took office in 1961, he

started urging that the procedure for expediting crim-

inal cases, especially cases in which the defendant was

being held in jail, be reviewed, Years went by and noth-

ing was done in Pinellas County; then in 1965, your Peti-

tioner went to the then Criminal Administrator for Pi-

nellas County and requested the reform and argued its

urgency. The rejection was unqualified. During the

same time a grand jury was convened in Clearwater, em-

paneled by the Criminal Administrator and although it

is the duty of a judge presiding over a grand jury to in-

struct the grand jurors on their duties,* no instruction

was given regarding Section 905.16’ of the Florida Stat-

utes. (See Exhibit C) This provision in the law makes

it the duty of the grand jury to inquire into every case

in which a citizen is being held and against whom no in-

dictment or information (formal charge) has been filed,

the purpose being to use the grand jury for protecting

A-5

citizens from being held far extended periods of time

without prompt prosecution and to avoid the very situa-

tion that existed in the Pinellas County jails.

_ As a result this Petitioner arranged for a confer-

ence of the judges of the circuit at which he reminded

the judges of his long standing requests that something

be done, presented a transcript of the Criminal Admin-

istrator’s charge to the jury, and a jail list prepared by

the Sheriff of Pinellas County. The response was con-

troversy, personal attacks and the Petitioner reminded

that he was a trouble maker. In spite of this your Peti-

tioner made the proposition to“his fellow judges that

either they were going to take action “now” or the Peti-

tioner would “empanel a grand jury and sit in Clearwa-

ter with the grand jury until the jail is as clean as a

hound’s tooth as the letter and spirit of the law re-

quires.” This resulted in the Criminal Administrator re-

signing with a statement that if he could not “run the

job my way I won't run it.” This Petitioner personally

urged him not to resign saying,” the responsibility be-

longs to all of us, we just need to make some changes.”

The change was effected and within one year the num-

ber of prisoners in the Pinellas County jail awaiting ac-

tion by the Circuit Court was greatly reduced. This is

another good example of a typical episode in the Sixth

Judicial Circuit and it goes a long way to explain the

presént condition. | ?

This reform was necessary to guarantee the protec-

tion afforded the public by the Constitution but it was

also necessitated by the fact that a new jail just con-

structed at a tremendous public expense was already

overcrowded and great sums of public money were being

wasted.

Virtually every phase of the criminal administra-

tion at the present time is burdened with inefficiency.

An excellent example of this is the large number of per-

sons held in custody being transported to the various

Justice of the Peace Courts in St. Petersburg, Tarpon

SOOM Oe —>

A-6

Springs, and other areas of the county from the county

jail in Clearwater for the purpose of an insolvency hear-

ing then transported back to the county jail to be re-

turned at-a later date for a preliminary hearing, all of

this at a gross and unnecessary expense to the taxpay-

ers and at unnecessary risk to the guards charged with

the responsibility of this unwarranted prisoner trans-

portation. .

The county prisoners most often are in the county

jail in Clearwater at one end of a passageway which

runs from the county jail to the courthouse with sever-.

al Circuit Judges at the other end. This passageway is )

grated with heavy fencing at a great public expense for

security purposes. All that would be required would be

for the prisoners to be taken through this passageway

to a Circuit Judge so lawyers could be appointed for

those who qualify. This would result in the prisoner

making one trip in most instances to the Justice of the

Peace Court instead of two or three trips. This simple

effort would save thousands of dollars a year. This sug-

gestion is not a criticism of the Justices of the Peace but

deals with the lack of sensitivity on the part of the Cir-

cuit Court to the needs of administration in expediting

the business of the courts efficiently and economically.

The records of the Circuit Court for Pinellas Coun-

ty show that six judges scheduled 38 cases for trial dur-

ing the week of October 9, 1967. If these same trials had

been scheduled before only three judges, the 38 cases

could have been tried with four court days to spare.

Scheduling these cases before the six judges required

six courtrooms, six or niore bailiffs, six deputy clerks,

six court reporters, six jury panels or time consuming .

and confusing panel sharing, and the scheduling of the

time of six judges while one-half of this force could have

- done the same work in the same time with four days to

spare, (See Exhibit D)

This same comparison for the whole month of Octo-

ber-shows that nineteen trial weeks were scheduled

A-7

while only nine were required with the result that hun-

dreds of hours of judges time and thousands of taxpay-

ers dollars were wasted. These same comparisons for .

the last quarter of 1967 and the first two months of

1968 reveal that 1,360 hours of judges.time was largely

lost along with gross waste of jurors time and the time

of clerks, bailiffs, court reporters and public money.

During the time that this writer served as Presid-

ing Judge it was quite apparent that all of the Pinellas

County officials that would be involved in necessary

court reforms, including the State Attorney, the Public

Defender, the Sheriff and other law enforcement offi-

cials, the Clerk of the Court, and the Board of County

Commissioners for Pinellas County were eager to bring

more efficient administration to the Circuit Court for

Pinellas County. Their cooperation was responsive and

real and greatly-appreciated. The previous lack of gom-

munication was manifest in every procedure and regard

and is evidence of inattention on the part of the judges

upon whom the other officials necessarily look for lead-

ership.

The Board of County Commissioners for Pinellas

County has expressed its concern about the mounting

cost of operating the courts. This concern is justified

and applauded. Every dollar added to the cost of litiga-

tion whether paid directly by the litigants or the tax-

payers is a negative in determining the efficiency of our

trial court system.

(on)

~ VY

Vast and important and much needed judicial re-

forms await only the interest and action by the judges

of this circuit. P

It is not intended that this petition constitute an in

depth study or report on reorganizing and reforming

this circuit. It is intended to bring attention to/the glar-

ing problems and demonstrate obvious solutions. The

detection of more need and the suggestion of more clev-

er remedy is readily ayailable if this prod creates con-

cern and action.

eS cee Oe ee ie .

A-8

. ° Good administration will result in better courts run

for less giving better service and leave the judges with

free time to take up additional tasks and further leaden

the tax burden.

Efficient administration in this circuit is clearly go-

ing to mean that the judges will not have enough work

to do and more jurisdiction is required in order to more:

effectively utilize their time, The Civil and Criminal

Court of Record in Pinellas County is continuing to

grow. It started with one judge, it now has two and in ~

the norma! course it will soon grow to three. In good

conscience, the circuit judges can not avoid taking this

additional jurisdiction enabling the Civil and Criminal

Court of Record to be abolished and the cost of that

court which amounts to thousands of dollars to be

saved. An orderly and efficient acquisition of the Civil

and Criminal Court of Record jurisdiction would de-

mand that the two present Court of Record judges be

made Circuit Judges at the time of the transition. This

would assure a smooth transfer by causing two ex-

tremely experienced and qualified judges familiar with

= and calendar to be present to assist in the

task.

It can be anticipated that under the present popula-

tion criteria provided in the Constitution, one new judge

will be added in this circuit each year. Taking the two

Court of Record judges would mean that another Cir-

mcuit Judge would not be added until the population

had sufficiently increased to justify the addition of

these two Court of Record Judges.

Such a plan would contemplate that at the present

time the number of judges handling the entire jurisdic-

tion of both courts would not increase and that two

’ years hence when under the present situation two addi-

tional Circuit Judges could be added they would not be

added and this suggestion would pay tremendous di-

vidends to the taxpayers and be a source of accomplish-

ment and pride for every judge in this circuit.

At the present time the judge acting as Criminal |

Administrator has a secretary working with him in that

capacity and a few doors down the hall has another

secretary tending to his other judicial tasks at a salary

of $5,000.00. No one familiar with the operation of a

judge's office or the duties of his secretary would con-

tend that a Circuit Judge needs two secretaries.

The individual judges should impose additionally

upon their secretaries in handling the administration

and disposition of criminal cases and thus avoid the

luxury of a secretary to the Crimina] Administrator or

Presiding Judge. Many of the tasks heretofore per-

formed by such person being specified in the Statute as

the duty of officials which currently have adequate per-

sonnel to handle these matters without additional ex-

penditure. Specific reference is had to such matter as

the notification to the bondsmen and the parents of

minor defendants. (Section 903.26 and 932.38, Florida

Statutes)

We, as Circuit Judges, share an awesome responsi-

bility. This Petitioner has resigned a position he coveted

to remove any possibility of personality and vanity as a

consideration in the discharging of this obligation. In

return it is only requested that these suggestions. be

considered on their merits and adopted or be substituted

for by better plans.

In this vein, the following recommendations are

humbly and respectfully submitted in the hope that they

will be an improvement or will stimulate thought bring-

ing forth better suggestions.

A-10

A. That no more than three judges be assigned for

the trial of civil and criminal cases in Pinellas Coun-

ty on any given week until such time as a need for

more is shown to exist.

The mechanics of this suggestion may be demon-

strated by assuming that there was a need for the

trial of civil and criminal cases in a given week in

Clearwater and a need for the trial of civil cases

in St. Petersburg. All St. Petersburg cases would

be assigned to one judge sitting there. All civil

cases in Clearwater would be assigned to one

judge at that location and all criminal cases as-

signed to the third judge in Clearwater, all cases

to be scheduled on Monday morning. Each judge

upon completing the cases scheduled before him

would then have an obligation to assist the other

judges with the result that each judge would be

totally occupied with the trial of cases until all of

the cases scheduled for trial that week had been

completed. _

This suggestion further contemplates that in

many weeks the services of only one judge or

possibly two would be required to handle all

trials, civil or criminal, leaving the other ten or

eleven judges free to dispose of and schedule full

«Calendars with &mple notice on matters not re-

quiring a jury.

B. That all cases in the Circuit Court be heard by

the judges of that court unless there is some parti-

cular need suggesting the referral of the cases to a.

apecial or genera! master for hearing. To this énd

any judge feeling that the burden of his calendar

or the cases.assigned to him will cause undue delay

make this fact known to the Presiding Judge and

agsistance from the other judges be brought to bear

rather than passing the case from the attention

the judges to a hearing before a general or specia:

master at the expense of unnecessary delay and

cost to the litigants.

C. That the Public Defender be appointed by the

Circuit Judges as a daily routine for all indigent

persons qualifying under the law for the services of

that office. 7

D. That pre-sentence investigations be requested of

_ lic Defender is aware that his client intends to plead

guilty and not wait until an information or indict-

ities, including but not limited to the use of Section

909.14 of the Florida Statutes.

F, That the Public Defender be encouraged and co-

operated with in order to permit him to commence

at the earliest possible time to develop the informa-

tion that will enable advice to be given to his client

_ on a plea and to avoid ag so the commencement

of this process unti] an information or indictment

has been filed, a

G. That the Court, the State Attorney, the Public

Defender and representatives of the Bar make a

concerted effort, ta avoid last minute pleas of guilty

in cases scheduled for trial,

Suggestions D, E, F and G are directly dependent

upon the Circuit Judges providing the communi-

cation and coordination. These are especially fer-

tile areas.

H, That the job of secretary to the Criminal Ad-

ministrator be eliminated.

I, That all orders providing for the payment from

a funds for testimony and trial] transeripts be ;

ted in amount to that provided by Chapter 29,

Florida Statute, and if the law in this regard is in-

adequate that the Court urge its change upon the

legislature when it next convenes.

J, That the Civil and Criminal Court of Record be

abolished and the jurisdiction assumed by this

DATED this 3rd day of April, 1968.

Respec y submitted

RICHARD KELLY

Circuit Judge

Se a a a

v °

A-12.

KOOTNOTIES

An thown by the annual report of the Judicial Couneil of Mlorida

Statintieal return Clea by the Clerk of the Cirenit Court in the

Peapective countion to the Judicial Counetl of Mlorida for Vimy

Statintienl return tiled by the Clerk of the Cirenit Court wf

Pinethin County to the Judtetal Counetl of Mlorida for 17

Statintienl eeturn Cilod by the Clerk of the Crreeuit Court of Paseo

County to the Judieml Counerl of Mlorida for 17

The veport veterved to in Vemotnveoter Bute adivtae Creede by the

(htee general masters for Pinellas County, showing (ho Honorable

Goorge Lo Brown, dr (409), the Honorable Hdwin R Milian COND)

wid the Honorable Riehard A Magle (odd)

Seetion MO Uh, Mloriuda Statutes CHARGE Of COURT

After the prand JUPOPN ADO sworn the court almadll charge Chem

Concerning them duties Comphasia supplied)

POO TE DO TINS OF GRAND JUROKS

Vhe grand guowrs shall TPE Into every offense triable wathin

the county for whieh AMY person has been held to answer, if an

Madtetment has not been found or Wnoinformation Ciled for aueh

offense, and all other indictable offenses trinble within the county

Which ave presented to them by the Prosceuling: attorney or other

Wise come Co ther knowledge (emphasis supplred)

ENEIBITS *

Petthon tiled with Clerk of the Cireuit Court, Clearwater, Sep-

tember 7, 10.

Comparison chart for Pasco, Pinellas and Hillsborough,

Transeript of proceedings before Cireuit Court, Clearwater, on

the S0th day of Anjgust, 1905.

Chart showing trial schedules for lust quarter of 1967 and first

two months of 196s.

The Exhibits to Judge Kelly's Petition are set forth

in the separately bound Appendix “B" filed herewith

at pages 53 through 90

A-13

NOT FINAL UNTIL TIME EXPIRES TO FILE RE-

HEARING PETITION AND, IF FILED, DETER-

MINED.

IN THE SUPREME COURT OF FLORIDA

JANUARY TERM, A. D. 1970

INQUIRY CONCERNING A

JUDGE NO. 1 :

Richard A. Kelly, Circuit Judge : CASE NO. 38,505

Opinion filed June 17, 1970

Cane of original jurisdiction Report from The Florida

Judicial Qualifications Commission

Masterson, Lloyd, Sundberg & Rogers and Fowler,

White, Collins, Gillen, Humkey & Trenam, for Petitioner

William D. Hopkins and F. EF. Steinmeyer, HI, for Re-

spondent ‘

Joseph F. McDermott, as Amicus Curiae Committee for

Judge Kelly

ADKINS, J.

We have for consideration a petition to reject the

recommendations, findings and conclusions of the Flor-

ida Judicial Qualifications Commission in its first pro-

ceeding. Rule 24(a), Florida Judicial Qualifications

Commission Rules (F.J.Q.C.R.). The Commission found

petitioner Judge Richard A. Kelly of Dade City, Florida,

guilty of certain conduct unbecoming a member of the

judiciary.

Conduct unbecoming a member ‘of the judiciary

may be proved by evidence of specific major incidents

which indicate such conduct, or it may also be proved

REPT OGY wer oe

A-14

by evidence of an accumulation of small and ostensibly

innocuous incidents which, when considered together,

emerge as a pattern of hostile conduct unbecoming a _

member of the judiciary. The record in this case clearly

reflects a pattern of petitioner's hostility toward many

attorneys, court officials, and fellow judges, as well as

a concerted effort to pamper the public and news media

- by press releases designed to bolster his personal image

at the expense of the judiciary. This is conduct unbe-

coming a member of the judiciary.

Petitioner is a judge of the Sixth Judicial Circuit

of the State of Florida and a resident of Pasco County.

He was first elected a circuit judge in November 1960,

and was re-elected to that office in the general election

of November 1966.

Petitioner was the subject of impeachment proceed-

ings before the Florida Legislature in 1963, and was ac-

quitted.

On February 13, 1968, petitioner was elected Presid-

ing Judge of the Sixth Judicial Circuit. He immediately

demanded that various changes in the method by which

criminal prosecutions were handled in the circuit, order-

ed one of the newly-appointed judges to duty in Pasco

County for ninety days even though this judge resided

in St. Petersburg, Pinellas County (this order was res-

cinded), indicated that he was going to transfer all do-

mestic relations cases to one particular judge of the cir-

cuit, proposed the elimination of special masters in un-

contested divorce cases, ordered the official court re-

porter to report all Justice of the Peace hearings upon

call of the Public Defender of Pinellas County. Although

some of petitioner's proposals may have been appro-

priate, the Commission found that they were presented

in such a manner as to create turmoil, confusion and

chaos within the circuit. As a result, a majority of the

other judges of the circuit determined to remove or re-

call him as presiding judge in March of 1968. He was

notified of the determination of the majority on March

19, 1968.

A-15 —

Judge Kelly first requested the judges to refrain

from removing him or recalling him, assuring them he

would return to Pasco County and not interfere with the

administration of the court in Pinellas County if they

would let him remain as presiding judge. When this of-

fer was not accepted by the other judges, he requested

and was granted a week’s reprieve in order that he

might tender his resignation as presiding judge.

After this delay, a majority of the circuit judges

again met with Judge Kelly to consider his recall as pre-

siding judge. At this meeting Judge Kelly polled all of

the judges and determined that they still intended to re-

move him.as presiding judge. He then announced his

resignation; but threatened those in attendance that

they would regret their actions and that he would cause

them embarrassment.

Several days later he arranged an appointment

with the editor and several reporters of a local newspa-

per in St. Petersburg to enlighten them about a petition

he intended to file proposing certain alleged judicial re-

forms. Subsequently, on April 5, 1968, he filed with the

Clerk of the Circuit Court what was styled “Petition to

the Judges of the Sixth Judicial Circuit in the Circuit

Court of Pinellas County.” His fellow judges were not

given an opportunity to see or examine the contents of

the petition although it contained suggested court re-

forms and criticism of court administration. As an ex-

ample of petitioner’s public criticism of his fellow

judges, the petition stated: :

“The tremendous reduction in the number of

prisoners between September, 1965, and September,

1966, is an excellent cas in point for the purpose of

showing the gross lack of administration of the

Circuit Court in Pinellas County and the serious

consequences of a poorly administered Court. The

change was accomplished with the simple expedi-

ency of appointing the Public Defender at an early

date, and yet to bring this simple administrative

e®-

A-16

change into effect resulted unreasonably in crisis,

— controversy and ill-will among the judges which

varied only in degree from the same response that

has met every other suggestion to improve admin-—

istration.

“Soon after the undersigned took office in 1961,

he started urging that the procedure for expedit-

ing criminal cases, especially cases in which the de-

fendant was being held in jail, be reviewed, Years

went by and nothing was done in Pinellas County;

then in 1965, your Petitioner went to the then Crim-

inal Administrator for Pinellas County and request-

ed the reform and argued its urgency. The rejec-

tion was unqualified. During the same time a grand

jury was convened in Clearwater, empaneled by the

Criminal Administrator and although it is the duty

of a judge presiding over a grand jury to instruct.

the srand jurors of their duties, no instruction.

was given regarding Section 905.16 of the Florida

_ Statutes.”

“Virtually every phase of the criminal admin-

istration at the present time is burdened with inef-

ficiency.” ~ =

“Vast and important and mich needed judicial

reforms await only the interest and action by the

judges of this circuit. ”

‘es

“The individual judges should impose addition-

ally upon their secretaries in handling the admin-

istration and disposition of criminal cases and thus

avoid the luxury of a secretary to the Criminal Ad-

ministrator or Presiding Judge.”

Apparently, for the purpose of seeking favorable

publicity for himself, petitioner misrepresented the

A-17

facts in this petition regarding his removal as presiding

judge when he said:

“This Petitioner has resigned a position he

coveted to remove any possibility of personality

and vanity as a consideration in the discharging of

this obligation.”

The office of the Clerk of the Circuit Court is not

a receptacle for the ex parte grievance petition of a po- |

litician, particularly when the object is to seek revenge

by embarrassing public officials. Since we have a gov-

ernment of law and not of men, no-member of the judi-

ciary should act officially as a “judge” save only as it is

found in and defined by the law. Petitioner knew judi-

cial reform could be attained in a variety of ways “un-

der the law,” but vengeance could best be served through

publicizing his grievance. This was accomplished when

petitioner, in his official capacity as a judge, filed his

ex parte petition with the clerk so that it would be a

public record.

The evidence is replete with instances in which the

judicial temperament of petitioner was lacking. Nine-

teen of the approximately twenty-one lawyers of Pasco

County were willing to, and did, sign a petition for the

impeachment of Judge Kelly; seven lawyers left Dade

City in Pasco County because of Judge Kelly; many

cases ordinarily filed in Pasco County were filed out of

the county because of Judge Kelly; attorneys and court

personnel were fearful of Judge Kelly; he was rude and

inconsiderate of attorneys and court personnel. His er-

‘atic behavior culminated in the filing of the petition.

The filing of the petition by Judge Kelly came to

the attention of the Florida Judicial Qualifications Com-

mission and precipitated a preliminary investigation.

This Commission was created under the provisions of

Sec. 17A(2), Fla. Const., Subsection (3) of which con-

tains the following provisions:

“Any aka or judge to whom this section ap-

plies may be disciplined by private reprimand or re-

| £ A-18

moved from office for willful or persistent failure

to perform his duties or habitual intemperance or.

conduct unbecoming a member of the judiciary or

he may be involuntarily retired for disability seri-

ously interfering with the performance of his

duties, which is, or is likely to become, permanent in

nature. After such investigation as it deems neces-

sary, the judicial qualifications commission’ may

conduct a hearing concerning the removal, discip-

line or retirement of a justice or judge or request

the supreme court to appoint three special referees,

who shall be active or retired justices or judges of

courts of record, to hear and take evidence in any

such matter, and to report thereon to the commis-

sion... . If after hearing, or after considering the

record and report of the referees, the commission

finds good cause therefor, it shall recommend to

the supreme court the removal, discipline or retire-

ment of the justice or judge. The supreme court

shall review the record of the proceedings on the

law and facts and shall order removal, discipline

or retirement, as itfinds just proper, or wholly re-

ject the commission's recommendation.” |

These constitutional provisions vest juriadiction over

the discipline of eircuit judges in this Court and author

ize it to exercise such jurisdiction through the Judicial

Qualifications Commission. By the express provision

of Section 17A(1), all justices or judges included with-

in the constitutional provision are still liable to im-

peachmeat for any misdemeanor in office.

raf

Petitioner complains that the proceedings before

the Commission and its recommendations abridge his

freedom of speech in violation of the First and Four-

teenth Amendments to the United States Constitution

and the Declaration of Rights of the Florida Constitu-

tion. He argues that he is being punished solely because

his petition was published in the St. Petersburg Times ~

and cites numerous decisions saying that the criticism

of the judiciary must create a clear and present dan-

A-19

ger of disrupting the administration of justice before

his utterances may be punished,

The proceeding before the Commission lacks the

essential characteristics of a criminal prosecution. The

object is not to inflict punishment, but to determine _ -

whether one who exercises judicial power is unfit to

hold a judgeship. The Commission, created by the Con- —

stitution as an arm of this Court, is authorized to con-

duct a hearing for the purpose of aiding this Court in

determining whether a judge is unfit or unsuitable. Un-

der the provisions of the Constitution this Court may

exclude from the judiciary, those persons whose unfit-

ness or unsuitability bears a rational relationship to his

qualifications for a judgeship, so long as the adjudica-

tion of unfitness rests. on constitutionally permissible

standards and emerges from a proceeding which con-

forms to the minimum standards of due process, In

short, the essence of the sanction imposed is not “pun- |

ishment” but a reprimand based on grounds bearing ra-

tional relationship to the interest of the State in the fit-

ness.of its judicial personnel. See Sharpe v, State ex rel.

Oklahoma Bar Association, 448 Pac. 2d 301 (Okla.

1968) cert. den., 394 U.S. 904, 89 Sup. Ct. 1011, where

the Court discussed the applicability of the Sixth

Amendment to the United States Constitution (Right to

Jury Trial), in a proceeding before the trial division of

the Court on fhe judiciary.

In these proceedings we are not faced with the

question of petitioner’s right of freedom of speech or

with the contents of his pronouncements. The question

is whether the motive of, and the methods used by, the

petitioner together with the resulting turmoil created

by his actions should be considered as conduct unbe-

coming a member of the judiciary and contrary to the

Canons of Judicial Ethics.

Public sical of the judicial processes can

be obtaingd only through the use of respongible and in-

formed news reporting. This understanding secures the

SP RE Re MY ENE TRE TE ONY PI 4

A-20

respect and obedience of the general populace so that

the Court may effectively protect the rights of individ-

uals as well as the rights of soeiety. The public’s access

to information concerning the functions of various

branches of government should not be limited and the

public’s right to know should be jealously guarded by

the judiciary. The courts have never demanded favor-

able publicity.

There are many authorized methods of protest, dis-

sent and:criticism within the framework of the judici-

ary, such as the preparation of dissenting opinions, peti-

tions to the Supreme Court for changes in the rules of

procedure, submission of suggested changes to various

committees of the Florida Bar, participating in the

various legal seminars conducted by the Committee on

Legal Education, or taking an active part in the state

and local conferences of judges.

Criticism is not neutral. When a judge sets him-

self up to criticize other judges, his criticism ultimately

must be viewed as having been constructive or destruc-

tive in its impact. If he has been temperate and judi-

cious, his criticism is likely to be, in its ultimate result,

beneficial to the community which he serves — and it

does not matter whether this constructive criticism is

publicly or privately voiced. On the other hand, impet-

uous argument, or criticism taken by methods which

prevent honest discussion and a fair rebuttal can be ex-

pected only to have a destructive result. No matter how

bland or even wholesome the content, if the methods

used raise suspicion of motives among the judges, and

renders the courts all suspect to the public, the result

can.only be an increase in disrespect for law and order,

an increase in lawlessness, a greater tendency among

some of our citizens to let loose their tendencies to dis-

order.

By the use of the power and prestige of his judi-

cial position, the petitioner consistently sought favor-

able newspaper publicity in furtherance of his general

A-21

political ambition and in an effort to force his views

upon his fellow judges. He cannot avoid the resulting

inquiry as to his motive and methods by invoking the

right of freedom of speech in this disciplinary proceed-

ing. We are not concerned with his right to speak, but

whether his motive or method does violence to the Can-

ons of Judicial Ethics.

The petitioner compliins that the Commission re-

port wrongfully and unnecessarily includes comments

as to the alleged mental! disability or illness of petition-

er even though he was acquitted of this charge. The in-

itial charges contained the charge that ‘you have a dis-

ability seriously iaaieiaes with the performance of

your duties.”

After several days of testimony, much of which re-

lated to an alleged mental disability from which Judge

Kelly may have been suffering, the Commission recessed

the hearing and directed that an amendment to the for-

mal charges be filed pursuant to Rule 15, F.J.Q.C.R.,

setting up the alleged mental disability. Pursuant to

Rule 12B, F.J.Q.C.R., the Commission further directed

that Judge Kelly submit to a psychiatric examination.

Judge Kelly declined to submit to an examination

by the Commission-appointed psychiatrist and the Com-

mission resumed its hearing. Because of his failure to

submit to the psychiatric examination ordered by the

Commission, Judge Kelly was not allowed to offer evi-

dence of medica! doctors as to his mental condition. This

limited the record to lay testimony previously given as

to his mental condition in accordance with general Flor-

ida authorities. See: 6 F.L.P., Criminal Law, : 467; 13

Fla. Jur., Evidence, § 329; Redfearn, Wills and Admin-

istration in Florida, 4th Ed. Vol. 1, £ 4.18, p. 78, and

$ 10.23, p. 206; Armstrong v. State, 30 Fla. 170, 11 So.

618; Norman v. State, 156 So. 2d 186 (Fla. App. 1963) ;

Byrd v. State, 178 So. 2d 886 (Fla. App. 1965); Brady

v. State, 190 So. 2d 607 (Fla. App. 1966) ; 72 A.L.R., p.

579; 40 A.L.R. 2d, p. 22. The Commission correctly found

A-22

that the evidence was insufficient to support a finding

that Judge Kelly had a mental or emotiona! disability

that seriously interefered with his conduct as a circuit

judge. However, it was appropriate for the Commission

to make reference to this testimony in determining

whether the Judge, by reason of his conduct in the vari-

ous matters charged, destroyed confidence in the Court

and in the efficiency of the petitioner.

Because of the nature of the proceeding, the doc-

trines of res judicata and double jeopardy do not ap-

ply. The Commission may at any time consider any acts

of misconduct which reflect adversely upon the genera!

character and fitness necessary to the proper perform-

ance of the duties of judicial office. The accumulation

of minor incidents may only justify a reprimand at this

time, but, if continued, may result in unbecoming con-

duct sufficient to warrant removal from office. The re-

primand does not amount to an acquittal, nor does it

have the elements of a final judgment necessary to in-

voke the principles of res judicata. See 10 F.L.P., For-

mer Adjudication, § 8.

Petitioner also contends that the proceedings be-

fore the Commission denied him due process of law in

violation of the Fourteenth Amendment to the United

States Constitution and the Declaration of Rights of

the Florida Constitution in that the Commission was

illegally constituted, being vested with the functions of

investigation, prosecution, grand jury, and judge and

jury of facts and law.

The proceedings were in accord with that estab-

lished by Sec. 17A, Art. V, Fla. Const., and the Rules of

Procedure adopted by this Court.

The following appears in Annotation, 98 Law Ed.

855:

“Procedural due process, that is, the element

of the due process provisions of the Fifth and Four-

A-23

teenth Amendments which relates to the requisite

characteristics of proceedings seeking to effect a

deprivation of life, liberty, or property, may be de-

scribed as follows: one whom it is sought to de-

prive of such rights must be informed of this fact

(that is, he must be given notice of the proceedings

against him); he must be given an opportunity to

defend himself (that js, a hearing); and the pro-

ceedings looking toward the deprivation must be

essentially fair,”

And further, on page 857

“Proceedings looking toward the suspension

or revocation of a medical) or legal professional) li-

cense are free of any due process defect, so far as

procedure is concerned, so long as the basic requi-

sites of notice and/ hearing are complied with; the

form of the notice /and hearing is immaterial.”

Attorneys were retained to present the charges

and petitioner had the benefit of counsel in his de-

fense. In fact, the hearing afforded petitioner met all

the standards of judicial procedure. The findings of the

Commission were not made until after a fair investiga-

tion and with such notice, hearing-and opportunity to

answer for the petitioner as would constitute due pro-

cess. See Annotation, 6 Law Ed. 2d 1332.

While the Judicia) Qualifications Commission is

not technically a judicial tribunal, its findings and

recommendations should be considered as though an in-

termediate agency of this Court, The Commission is in

fact an arm of this Court dealing with a vital function

of the Court and under its exclusive jurisdiction, While

the power to render the ultimate judgment in these

cases is vested in this Court, the findings and recom-

mendations of the Florida Judicial Qualifications Com-

mission are entitled to receive due consideration and

are of persuasive force, The Conatitution requires that

the Commission be composed of:

“abs

Bee WAC2), Art. V, Ma. Const

| Supreme Court, a‘ter reviewing the record, “whall order

removal, discipline or retirement, as tt finds just and

proper. or wholly reject the Comminson's recommenda.

The findings of the Commission comniained the

following :

“The publicity incidental to the filing of this

petition did bring the Sixth Judicial Circuit into

disrepute and. as testified to. the

“sick” Circuit. Certainly the to

know ovr

finding is not right to

know of the is that

Judge Keily methods of

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IN THE SUPREME COURT OF FLORIDA

JULY TERM A.D. 1970

MONDAY, SEPTEMBER 14, A.D. 1970

_ Inquiry Concerning A Judge No.1 **

Richard A. Kelly, Cireuit Judge *

Case No. 38,595

On consideration of the Petition for Rehearing filed

by Attorneys for Petitioner,

IT 1S ORDERED by the Court that said petition be

and the same is hereby, denied.

Sp J. Wurre

Clerk Supreme Court

ine

iil

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.