In re Inquiry Concerning a Judge [Joseph A. BOYD, Jr.] No. 74-18

308 So. 2d 13, 1975 Fla. LEXIS 3710
CourtSupreme Court of Florida
DecidedFebruary 4, 1975
DocketNo. 46601
StatusPublished
Cited by1 cases

This text of 308 So. 2d 13 (In re Inquiry Concerning a Judge [Joseph A. BOYD, Jr.] No. 74-18) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Inquiry Concerning a Judge [Joseph A. BOYD, Jr.] No. 74-18, 308 So. 2d 13, 1975 Fla. LEXIS 3710 (Fla. 1975).

Opinions

PER CURIAM.

This matter involves a disciplinary proceeding in which the Judicial Qualifications Commission, constituted under Article V, Section 12, Florida Constitution, has found Petitioner Justice Joseph A. Boyd, Jr., guilty of conduct unbecoming a judge and has recommended to the Supreme Court that he be removed from office. Petitioner seeks herein to have the Court reject the recommendation or modify it.

The Commission gave notice to Justice Boyd on September 30, 1974, that he had engaged in conduct unbecoming a member of the judiciary in that the role he played as a member of the Supreme Court of Florida in the case of Gulf Power Company v. Bevis et al., reported at 289 So.2d 401, was not free from impropriety and appearance of impropriety; that his conduct in said case gave credence to and justified the impression that he was improperly influenced by communications with one of the attorneys representing parties in the case, one Edwin L. Mason of Tallahassee, Florida, which communications were both ex parte and dehors the record; that his conduct and ex parte communications with the above named attorney justified the impression that said attorney improperly influenced him “and that both of your opinions in the case were affected by the position or influence of said attorney or other persons”; and that his aforementioned conduct has caused public confidence in the integrity and impartiality of the Supreme Court to be eroded.

These charges were bottomed primarily upon Canon 3, subd. A(4) of the Code of Judicial Conduct:

“Canon 3—

“(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.” (Fla., 281 So.2d 21, 24)

In the evidentiary hearings that ensued the notification to Justice Boyd that his conduct was being inquired into as described, it appears that in Gulf Power Company v. Bevis, 289 So.2d 401, the case was orally argued in the Supreme Court on June 7, 1973, before a five member panel consisting of Chief Justice Carlton and Justices Adkins, Boyd, McCain and Dekle; that thereafter on July 16, 1973, Justice Boyd and attorney Mason, who had filed amicus briefs for the St. Joe Telephone and Telegraph Company and the Gulf Telephone Company, played golf together at the Killearn Country Club in Tallahassee, Florida. Mason testified before the Commission that on that occasion he gave [15]*15Justice Boyd a written memo in the form of a proposed opinion to be used in Gulf Power v. Bevis as a majority opinion to reverse the Public Service Commission in favor of the power company. Mason deposed that he gave it to Boyd either before they left Boyd’s home to- go to the golf course or on their return from the golf course; Boyd denied that he ever received the ex parte memo from Mason, that he did not solicit it or in anywise suggest that it be prepared and given to him. Mason testified he got the impression from Boyd in a prior golf game with him that Boyd would appreciate such a memorandum to help him prepare the majority opinion for the panel reversing the Public Service Commission which he had been assigned to prepare.

Mrs. Elizabeth Potts, secretary to Justice Boyd, testified that Justice Boyd told her that Mason had given him the memo. Boyd denied this and stated that Mrs. Potts had been hostile to him and was actuated improperly toward him either from psychiatric or family problems or through a vindictive motive in giving such testimony which was induced by others who sought revenge upon him for exposing the extraneous memorandum.

Boyd’s research aide, Roger A. Schwartz, testified that Boyd called him into his office in July, 1973, greatly agitated, stating that he had discovered on his desk among the file papers of the Gulf Power v. Bevis case a written memo of several pages length that purported to be a proposed opinion to be used in the power company case in the company’s favor. This discovery by Boyd, according to Schwartz, occurred in July shortly after his golf game with Mason and before the August recess of the Supreme Court.

Schwartz testified that Boyd told him to check the authenticity of the memo, see if it had been properly filed in the Clerk’s office as a pleading or brief in the case and served on other counsel in the case. This Schwartz testified he did and found it was an extraneous communication which was improperly placed before Boyd without being properly filed. Boyd testified that at the time he discovered the extraneous memorandum in his office, it put him in great fear of what might happen to him in terms of accusations of judicial misconduct if it became known that the extraneous memo had been in his possession because the extraneous communication’s mysterious appearance in his office in itself implied impropriety ; Schwartz testified that in checking out the contents of the memo he found that it agreed with the power company’s briefs filed in the Gulf Power Company v. Bevis case. He also testified, with Boyd’s testimony corresponding, that Justice Boyd decided that the best course then to pursue was to destroy the memo rather than to hazard bringing it to the attention of the Chief Justice of the Supreme Court and other members of the Court or to a grievance committee of The Florida Bar, or to the Judicial Qualifications Commission because of the possibility Boyd’s connection with the memo could not be satisfactorily explained to the point of exonerating him of impropriety and that he might be unjustly accused of improper possession of it. Accordingly, late in July, 1973, Boyd, in Schwartz’s presence, flushed the memo down a toilet in a men’s room of the Supreme Court. Boyd also testified he had Schwartz commit to memory as far as possible the contents of the memo before it was destroyed. Schwartz testified that he, along with David- LaCroix, Chief Justice Carlton’s research aide, did this. Boyd testified his purpose in having this done was for these aides with this knowledge to determine later on if some other justice had received the same memo and used it in framing a majority opinion reversing the Commission. By this means, Boyd testified, it might be possible to “trap” another justice improperly using the extraneous memorandum.

Thus, there is contradictory evidence as to whether Mason gave Boyd the memo with the latter’s knowledge, however, it is quite clear from the evidence that Boyd [16]*16did not follow the memo which was intended to be a model for an opinion reversing the Public Service Commission in the Gulf Power v. Bevis case. Instead, on October 19, 1973, Boyd filed and put into circulation for the concurrence of the majority of the panel, an opinion that affirmed the Public Service Commission contrary to the views of the power company. There is undisputed testimony that Boyd’s proposed opinion for the majority affirming the Public Service Commission was the same in substance as his dissent in the case. See 289 So.2d at page 409. Boyd dissented after a dissent by Justice Dekle to Boyd’s original opinion was recast as a majority opinion.

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Related

In Re Boyd
308 So. 2d 13 (Supreme Court of Florida, 1975)

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Bluebook (online)
308 So. 2d 13, 1975 Fla. LEXIS 3710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-inquiry-concerning-a-judge-joseph-a-boyd-jr-no-74-18-fla-1975.