In Re Maxwell

994 So. 2d 974, 2008 WL 4379602
CourtSupreme Court of Florida
DecidedSeptember 29, 2008
DocketSC08-1285
StatusPublished
Cited by4 cases

This text of 994 So. 2d 974 (In Re Maxwell) 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 Maxwell, 994 So. 2d 974, 2008 WL 4379602 (Fla. 2008).

Opinion

994 So.2d 974 (2008)

Inquiry Concerning a Judge, No. 07-540 re George W. MAXWELL, III.

No. SC08-1285.

Supreme Court of Florida.

September 29, 2008.

Michael Louis Schneider, Associate General Counsel, and Brooke S. Kennerly, Executive Director, Tallahassee, FL, for Florida Judicial Qualifications Commission, Petitioner.

Richard C. McFarlain of Carr Allison, Tallahassee, FL, for Respondent.

*975 PER CURIAM.

This matter is before the Court for review of the recommendation of the Florida Judicial Qualifications Commission (JQC) that Judge George W. Maxwell, III, be publicly reprimanded. We have jurisdiction. See art. V, § 12, Fla. Const. We approve the JQC's findings and recommended sanction.

I. FACTS

The JQC formally charged Judge Maxwell with conduct alleged to violate Canons 1[1], 2A[2], 3B(4)[3], and 3B(7)[4] of the Code of Judicial Conduct. The charges against Judge Maxwell stem from his actions on October 28, 2007.

On the morning of October 28, 2007, the Brevard County Sheriff's Office responded to a battery complaint at a private residence. The officers determined that the wife had committed domestic violence battery against her husband, and she was charged, arrested, and transported to the Brevard County Jail. Later that day, the wife's brother, Jack Platt, who is an attorney *976 with whom Judge Maxwell was previously affiliated in private practice and with whom Judge Maxwell appeared on the firm's letterhead, called Judge Maxwell at his residence and requested his assistance in securing the release of his sister. Even though the matter was not assigned to him, Judge Maxwell thereafter contacted the Brevard County Sheriff's Office and authorized her release to the Pretrial Release Program without the benefit of a first appearance. Judge Maxwell authorized the defendant's release notwithstanding the fact that she was currently serving a sentence of five years probation for obtaining controlled substances by fraud, thus making her ineligible for the Pretrial Release Program.

In its Notice of Formal Charges, the JQC concluded that Judge Maxwell's conduct, if it occurred as alleged, violated Canons 1, 2A, 3B(4), and 3B(7). However, the JQC and Judge Maxwell reached an agreement and entered into a stipulation in which Judge Maxwell acknowledged that he violated Canons 1, 2A, and 2B of the Code of Judicial Conduct.[5] According to the stipulation, Judge Maxwell accepted full responsibility for the conduct, admitted that it should not have occurred, expressed his regret and apologies for such conduct, and noted that he had undertaken steps to prevent reoccurrence of the conduct.[6] Judge Maxwell also denied that he intended to violate the applicable Canons, and contended that he acted with a good faith belief that such conduct was appropriate. Because the JQC concluded that the actions were misguided but not ill-intentioned, it recommended a public reprimand.

II. ANALYSIS

In In re Maloney, 916 So.2d 786 (Fla. 2005), we explained:

When the JQC presents a case for our review, we are authorized under the Florida Constitution to "accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission" and to "order that the justice or judge be subjected to appropriate discipline." Art. V, § 12(c)(1), Fla. Const. "This Court reviews the findings of the JQC to determine if they are supported by clear and convincing evidence and reviews the recommendation of discipline to determine whether it should be approved." In re Pando, 903 So.2d 902, 903 (Fla.2005). While *977 the Court gives the JQC's findings and recommendations great weight, "the ultimate power and responsibility in making a determination rests with this Court." In re Davey, 645 So.2d 398, 404 (Fla.1994). Thus, "we review the findings to ensure that there is `clear and convincing evidence' to support the alleged ethical violations" and determine whether to approve the recommendation of discipline. In re Andrews, 875 So.2d 441, 442 (Fla.2004) (quoting In re Kinsey, 842 So.2d 77, 85 (Fla.2003)). Additionally, where the findings of the JQC are supported by clear and convincing evidence, the Court gives the findings persuasive force and great weight in considering the JQC's recommendation of discipline. See In re Holloway, 832 So.2d 716, 726 (Fla.2002) (finding clear and convincing evidence to support finding that judge used the prestige of judicial office to request a scheduling favor for a family member from another judge, but insufficient evidence to support conclusion that judge abused her office based on single telephone call to a detective handling a criminal investigation involving a friend).

In re Maloney, 916 So.2d at 787-88.

In recommending that Judge Maxwell receive a public reprimand, the JQC stated that it was guided by this Court's decision in In re Maloney. There, Judge Maloney had a close friend whose son was arrested for driving under the influence ("DUI"). Id. at 786. Judge Maloney's son was a passenger in the car, but was not charged with any violations. Id. Although the law prohibits the immediate release of persons arrested for DUI, Judge Maloney nevertheless contacted the Lakeland Police Department after picking up his own son on the morning in question and demanded the release of his friend's son. Id. at 786-87. The police department objected, but released the son to the custody of his father based on the judge's demand. Id. The JQC found that the judge's actions violated Canons 1, 2A and 2B, but agreed to a public reprimand after the judge admitted the allegations, acknowledged the violations of the Code of Judicial Conduct, and agreed to the stipulated penalty. Id. at 787. On appeal, this Court approved the stipulation because "[a] public reprimand, as disciplinary action, is consistent with governing precedent regarding sanctions for judicial misconduct where a judge uses the prestige of judicial office to obtain favorable treatment for himself or another individual." Id. at 788. This Court noted that in recommending a public reprimand, the JQC considered various mitigating circumstances, including Judge Maloney's lack of disciplinary history, reputation as a fair, impartial, and competent jurist, candor before the JQC Investigative Panel, and testimony that he was unaware his conduct constituted a violation of state law. Id. at 788-89.

This case does bear some similarity to In re Maloney. In the instant case, Judge Maxwell contacted the Brevard County Sheriff's Office and sought the release of a former colleague's sister to the Pretrial Release Program, despite the fact that the law prohibited such a release because she was already on probation for a controlled substance offense. However, we also note that this case could be viewed as more serious than In re Maloney because Judge Maxwell accepted an ex parte communication from an attorney without input from the prosecutor or any other interested party.[7] In addition, he relied on this ex parte communication in ordering the defendant's release, even though it appears that Judge Maxwell may not have had the complete *978 picture of the exact details of the crime or the defendant's prior record.[8]

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Bluebook (online)
994 So. 2d 974, 2008 WL 4379602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-maxwell-fla-2008.