In re Rules of the Florida Judicial Qualifications Commission

346 So. 2d 70, 1977 Fla. LEXIS 3914
CourtSupreme Court of Florida
DecidedMay 12, 1977
DocketNo. 51622
StatusPublished
Cited by2 cases

This text of 346 So. 2d 70 (In re Rules of the Florida Judicial Qualifications Commission) 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 Rules of the Florida Judicial Qualifications Commission, 346 So. 2d 70, 1977 Fla. LEXIS 3914 (Fla. 1977).

Opinion

PER CURIAM.

The Florida Judicial Qualifications Commission has filed with the Court a copy of its rules of procedure as amended on January 20, 1977. Pursuant to Article V, Section 12(d) of the Florida Constitution, this Court may repeal these rules, or any part thereof, so long as five justices concur in that action. We have reviewed the rules in their entirety and now repeal the following provisions of the Commission’s rules.

1. Rule 6(b) is repealed in its entirety. While it is appropriate to have some rule governing appearances before the Commission during the investigatory stages of a proceeding, and although a right of early appearance or comment (as opposed to an opportunity if the Commission so chooses) would seem more suited to the Commission’s fact-gathering responsibilities, we repeal this part of Rule 6 because it allows the judicial official’s appearance or comment to be presented not to the Commission but to “at least three members thereof.” A determination that there exists probable cause to warrant formal proceedings against a member of the judiciary is one of the most serious and solemn responsibilities of the Commission. At least a quorum of the Commission’s members should be present when a justice or judge seeks to avoid a finding of probable cause, and its attendant conversion of the proceeding from a private to a public one, by attempting to explain, refute or admit the alleged misconduct or disability.

2. Rule 11(b) is repealed in its entirety for the reason expressed in paragraph 1.

3. Rule 17 is repealed in its entirety. We appreciate the need for a rule as to pleading amendments during the course of a Commission proceeding, but the second sentence of the rule confers more authority than is required. That sentence reads:

“The Notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing.”

Given the investigative resources of the Commission, there is little necessity and great potential harm in a rule which allows the Commission to set forth additional facts by amendment to the formal charges after the Commission has conducted its hearing and the charges have been filed with this Court, made public, and relied upon by the justice or judge to prepare his or her defense.

4. Rules 23(b) and (c) are repealed in their entirety. These provisions directly conflict with this Court’s decision in Inquiry-Concerning a Judge, No. 75-10, Case No. [71]*7149,062, opinion filed, June 30, 1976 (Fla.). Article V, Section 12(f) of the Constitution assigns to this Court both the responsibility and discretion to order appropriate discipline, removal or retirement, and neither can be abrogated by a Commission rule which creates a conclusive presumption simply from a procedural default by the judge or justice being charged.

5. Rule 23(d) is repealed in its entirety. Although this part of the rule merely reiterates the language of Article V, Section 12(h) of the Florida Constitution as recently amended, which is controlling, it is inappropriate in the Commission’s rules. Article V, Section 12(d) authorizes the Commission to adopt rules “regulating its proceedings, the filling of vacancies by the appointing authorities, the disqualification of members, and the temporary replacement of disqualified or incapacitated members.” This authority does not extend the Commission’s rulemaking power to the composition of the Supreme Court on review of a Commission recommendation concerning a justice of that court.

6. Rule 25(a) is repealed in its entirety. A rule governing the confidentiality of Commission documents and proceedings is appropriate, but this part of the rule contains the following phrases:

“a record recommending discipline, retirement, or removal is filed by the Commission in the Supreme Court, at which time the record shall be made public,, excepting a record filed by the Commission in the Supreme Court, recommending private reprimand, shall remain confidential; provided, however, upon”
“such charges and all further proceedings before the Commission shall be public”.

These provisions are inconsistent with Article V, Section 12(d) of the Florida Constitution, which has the effect of eliminating a Commission recommendation or a Court imposition of a “private” reprimand for judicial misconduct.

7. Rule 28 is repealed in its entirety. While the Commission may have inherent power to find a person in contempt of the Commission, it has no constitutional authority to enforce such a finding or to order an arrest. Contrast, for example, the express authorization for punishment of legislative contempt “by judicial proceedings as prescribed by law”, which appears in Article III, Section 5 of the Constitution. Cf. Article I, Section 18 of the Constitution. Nothing in our repeal of this rule shall be construed to mean that the Commission may not promulgate contempt rules reasonably necessary for the conduct of its proceedings, so long as the enforcement of contempt is reserved to the judiciary.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

RULES OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

Pursuant to the provisions of Article V, Section 12, of the Florida Constitution, as amended 1976, the following Rules are hereby adopted by the Judicial Qualifications Commission.

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES

RULE 1. SCOPE AND TITLE.

These rules apply to all proceedings before the Judicial Qualifications Commission involving the discipline, retirement or removal of justices of the Supreme Court, and judges of the District Courts of Appeal, Circuit Courts and County Courts pursuant to Article V, Section 12, of the Constitution of the State of Florida, as amended. These rules shall be known as Florida Judicial Qualifications Commission Rules and may be abbreviated as “FJQCR”.

RULE 2. DEFINITIONS.

In these rules, unless the context or subject matter otherwise requires:

(a) “Commission” means the Judicial Qualifications Commission.
(b) “Judge” means a justice of the Supreme Court and a judge of a Dis[72]*72trict Court of Appeal, Circuit Court and County Court.
(c) “Chairman” includes the acting chairman.
(d) “Counsel” means the lawyer designated by the Commission to gather and present evidence before the Commission with respect to the charges against a judge and to represent the Commission in all proceedings.
(e) “Shall” is mandatory and “may” is permissive.
(f) “Mail” and “mailed” include ordinary mail and personal delivery.
(g) The masculine gender includes the feminine gender.

RULE 3. MEMBERSHIP AND JURISDICTION.

(a) The membership of the Commission shall be as prescribed in Article V, Section 12, of the Constitution of the State of Florida and for such term as prescribed by general law. When a judge ceases to be a judge of the court from which he was appointed or whenever any member becomes otherwise ineligible to hold office, his membership on the Commission shall terminate.

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Related

In re Rules of the Florida Judicial Qualifications Commission
364 So. 2d 471 (Supreme Court of Florida, 1978)
In Re Inquiry Concerning a Judge, Etc.
357 So. 2d 172 (Supreme Court of Florida, 1978)

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Bluebook (online)
346 So. 2d 70, 1977 Fla. LEXIS 3914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rules-of-the-florida-judicial-qualifications-commission-fla-1977.