Saturday, May 12, 2007

When Should a Judge Face Discipline for What an Opinion Says?

Howard J. Bashman
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Related: Bashman Archive

Earlier this month, the Investigative Panel of the Florida Judicial Qualifications Commission issued formal disciplinary charges against an appellate judge serving on Florida's 1st District Court of Appeal based on statements contained in a concurring opinion the judge had issued in the course of deciding a case on appeal. This would be quite remarkable if that opinion were in fact deserving of censure, but what makes this event all the more outrageous is that it is difficult to conceive from reviewing the case that the concurring opinion provides any cause for disciplining its author.

The underlying case began as an appeal from a criminal conviction. The appeal was originally argued before a panel that ultimately decided by a vote of 2-1 to overturn the conviction. Before that ruling was issued to the parties and docketed as the appellate court's judgment, the decision was circulated within the appellate court to all active judges. At that point, a majority of the non-recused active judges voted in favor of rehearing en banc. As a result, the three-judge panel's decision never issued.

Following rehearing en banc, the full appellate court voted 10-4 in favor of affirming the convictions. Thereafter, the criminal defendant asked the appellate court to certify for review by the Supreme Court of Florida the question whether specific guideposts should exist for determining whether and how a case should qualify for en banc review at the behest of an intermediate appellate court's judges. In June 2006, the appellate court denied the criminal defendant's request to certify issues for review by Florida's highest court.

When denying the defendant's request for certification, Florida's 1st District Court of Appeal issued a per curiam opinion providing reasons for the denial. In addition, Judge Michael E. Allen issued a concurring opinion in which he explained why he voted for rehearing en banc. Allen wrote that he concluded that one of the judges in the majority on the original panel had made a mistake in failing to recuse because published press reports and that judge's own background gave rise to an appearance of partiality. In his concurring opinion, Allen quoted in full three separate news reports to support the assertion that an appearance of partiality existed.

Now, it certainly is rare to see one appellate judge publicly call into question a colleague's refusal to recuse from deciding a case. But a central question before the court when Allen wrote his concurring opinion was whether the case presented a good vehicle for the Supreme Court of Florida to announce the procedure and grounds for court-initiated rehearings en banc. It was directly relevant to that question for Allen to explain why he had voted in favor of rehearing en banc.
The basis for the disciplinary charges against Allen strike me as especially weak. The charges suggest that no judge other than the one whose impartiality is being questioned has the ability to comment on that subject. The charges also accuse Allen of acting improperly in relying on newspaper articles, which were outside of the record on appeal and constituted hearsay evidence in any event. The charges further accuse Allen himself of undermining public confidence in the judiciary.
Examining these accusations in turn, it is certainly true, at least in the first instance, that the question whether a given judge should recuse is vested in that judge's own discretion. But even if a judge's colleagues cannot override the judge's decision not to recuse, I see nothing wrong with an appellate judge discussing the grounds for his belief that a colleague should have recused in a case in which that colleague was poised to cast the dispositive vote to overturn a criminal conviction that the en banc court later decisively affirmed.

Also, Allen's explanation for why he voted to rehear the case en banc was, as I have noted above, relevant to whether the case provided a good vehicle for review by the Supreme Court of Florida on the question of whether and how court-initiated rehearings en banc should occur. Thus, even if Allen's concurring opinion was intended merely as a malicious attack on his judicial colleague -- and there is certainly no evidence of this from its text -- the concurring opinion should not subject its author to discipline because, on its face, the opinion was not improper.

The charge that Allen violated his judicial duty by quoting from and relying on newspaper articles is laughable. The relevant inquiry is whether a reasonable person with knowledge of the relevant facts would conclude that the other judge's impartiality might reasonably be questioned. This standard is necessarily based on information that would be available to such a reasonable person rather than based only on evidence admissible in a court of law. The disciplinary charges' suggestion that only admissible evidence can give rise to an actionable appearance of partiality would set the recusal bar far too high.

Finally, the charges' claim that Allen, in issuing a concurring opinion asserting that his colleague acted improperly in failing to recuse, himself acted improperly by undermining public confidence in the judiciary is likewise absurd. An appellate judiciary whose members were prohibited from publicly questioning their own colleagues' failure to initiate necessary recusals would seem to me to pose a far greater threat to the judiciary's integrity and impartiality than the events in this particular case.

Because Allen had a reasonable basis for explaining why he voted in favor of rehearing en banc in this case; because it was reasonable for him to rely on newspaper articles to furnish the basis for his conclusion that a colleague should have recused from deciding the case due to an appearance of partiality; and because Allen's assertion of wrongdoing was not unreasonable based on the information on which he relied, the judicial misconduct charges against Allen appear entirely meritless. I never expected to see an appellate judge face disciplinary charges based on the content of a judicial opinion, and thus it is especially unfortunate that the first instance of this happening arises in such an egregiously weak case.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at You can access his appellate Web log at

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