Inquiry Concerning a Judge, No. 09-524 Re: Cohen

99 So. 3d 926, 37 Fla. L. Weekly Supp. 530, 2012 WL 3732848, 2012 Fla. LEXIS 1667
CourtSupreme Court of Florida
DecidedAugust 30, 2012
DocketNo. SC10-348
StatusPublished

This text of 99 So. 3d 926 (Inquiry Concerning a Judge, No. 09-524 Re: Cohen) 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
Inquiry Concerning a Judge, No. 09-524 Re: Cohen, 99 So. 3d 926, 37 Fla. L. Weekly Supp. 530, 2012 WL 3732848, 2012 Fla. LEXIS 1667 (Fla. 2012).

Opinion

PER CURIAM.

This matter is before the Court for action on the recommendation of the Florida Judicial Qualifications Commission (JQC) that Broward County Judge Dale C. Cohen be publicly reprimanded and charged the costs of proceedings based upon findings that he violated the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons discussed in this opinion, we approve the JQC’s recommendation.

I. FACTS AND PROCEDURAL HISTORY

On February 25, 2010, the Investigative Panel of the JQC filed a Notice of Formal Charges against Judge Cohen. The charges arose out of a hearing on a motion for disqualification that was filed on August 6, 2009, by an attorney appearing before Judge Cohen. The motion alleged the existence of a conflict between the attorney and Judge Cohen’s wife. At a hearing on the motion, Judge Cohen called his wife as a witness to refute the allegations in the motion. Judge Cohen later held additional hearings in which he questioned the attorney’s clients and threatened to file a complaint against the attorney with The Florida Bar. The JQC filed its Findings, Conclusions and Recommendations with this Court on March 28, 2011, in which it found Judge Cohen guilty of violating Canons l,1 2A,2 2B,3 3B(1), 3B(2), 3B(7),4 and 3E(l)(d)5 of the Code of Judicial Conduct.

[929]*929A. Background

The parties have stipulated to numerous facts surrounding the case as well as to the authenticity of relevant records and documents, including transcripts of the ev-identiary hearings which resulted in the investigation of Judge Cohen by the JQC. Accordingly, the pertinent facts on which the instant charges and findings are based are largely undisputed. In 2006, Mardi Levey Cohen, the wife of Judge Dale C. Cohen, ran unsuccessfully for judicial office in Broward County. Attorney Stephen Melnick was a supporter of Levey Cohen during that campaign. In 2008, Levey Cohen ran for a circuit court seat held by then-Judge Pedro Dijols. Melnick supported Judge Dijols in that election. Following the primary election, Judge Dijols filed a lawsuit against Levey Cohen, arguing that she had improperly campaigned under her maiden name. Although the trial court found in Judge Dijols’ favor, that decision was reversed by the Fourth District Court of Appeal.6 Le-vey Cohen was later defeated in the general election. In January 2009, Levey Cohen filed financial paperwork with the Broward County Supervisor of Elections, allowing her to run again in the 2010 elections.7

Following Levey Cohen’s unsuccessful 2008 campaign for judicial office, attorney Melnick was slated to appear before Judge Cohen as counsel in the case of State v. Rigby, Case No. 08-16006-CF-10A (Fla. 17th Jud. Cir.). On November 18, 2008, Melnick filed a motion requesting that Judge Cohen recuse himself from the case. The motion first alleged that Melnick had been retained by the defendant, Kevin Rigby. The motion then stated:

4. While the above case was pending the undersigned Counsel began to work as an active fund raiser, and speaker on behalf of the Honorable Judge Pedro Dijols retention campaign.
5. In fact prior to the fund raiser for Judge Dijols at the law office of the undersigned Counsel, the undersigned received a telephone call from Mardi Cohen who was running under the name Mardi Levey.
6. During this telephone conversation Ms. Cohen threatened that the fund raiser information posted by the undersigned was in violation of election rules and that the undersigned was making a big mistake.

The motion further alleged that in the course of the election, Melnick participated [930]*930in a lawsuit against Levey Cohen on behalf of Judge Dijols. The motion stated that the defendant had been advised of the facts surrounding the election and that, based on those facts, he did not believe he would receive a fair or impartial trial before Judge Cohen. Judge Cohen granted the motion to recuse. In the following months, Melnick filed approximately sixteen additional recusal motions in cases before Judge Cohen, all of which were granted. In each case, Melnick alleged the same grounds for disqualification as in the Rigby motion.

On the morning of August 6, 2009, Mel-nick filed a motion seeking Judge Cohen’s recusal in the case of State v. Gibbs, Case No. 08-22681-10A (Fla. 17th Jud. Cir.). The motion was in substance identical to the recusal motions Judge Cohen had previously granted. Rather than grant the motion, however, Judge Cohen asked Mel-nick to return to the courtroom after lunch, and informed Melnick that the motion would be addressed at that time.

That afternoon, Judge Cohen held an evidentiary hearing on the motion to re-cuse. At the beginning of the hearing, Judge Cohen announced his intention to call his wife, Levey Cohen, as a witness. Melnick objected, arguing that the hearing would require the court to weigh his credibility against Levey Cohen’s credibility. Judge Cohen overruled the objection, stating, “We’ll approach that bridge when we get to it.” Judge Cohen then questioned Levey Cohen about the facts alleged in the recusal motion. Levey Cohen testified that in 2008, when she was running in an election against Judge Dijols, she saw an advertisement for Judge Dijols’ retention on a blog that was missing a disclaimer. She was aware that Melnick was working on behalf of Judge Dijols’ campaign, so she called to inform him about the missing disclaimer. Cohen said that she had been friends with Melnick for many years and described the conversation as friendly. She denied making any threats. She also said that she was not aware of Melnick’s involvement in any litigation on behalf of Judge Dijols.

Melnick conducted a cross-examination and disputed Levey Cohen’s account of the phone conversation. He asked whether the conversation involved a missing disclaimer, or whether it concerned the use of the term “re-elect” versus the term “retain” on the advertisement. Levey Cohen agreed that may have been the subject of the conversation. Melnick also informed the court that the conversation was not friendly, that Levey Cohen told him he was making a “big mistake” and that he would “be sony if it’s not changed,” and that Levey Cohen hung up on him. Mel-nick said he felt that Levey Cohen’s tone implied a personal threat against him. He asserted that he was “directly and heavily involved in Pedro Dijols’ unsuccessful retention campaign and was directly involved in all the research involved with that litigation.” Melnick explained that he discloses his involvement in the Dijols campaign to each of his clients whenever he is slated to appear before Judge Cohen, and he then lets the clients decide whether they want to request a different judge. At the end of the hearing, Judge Cohen granted the motion to recuse.

Later that month, the Gibbs case was transferred back to Judge Cohen. At an initial hearing on August 22, 2009, the defendant, Stephen Gibbs, informed the Court that he was no longer being represented by Stephen Melnick. Judge Cohen asked Gibbs if Melnick had ever explained to him the basis of the conflict that resulted in the recusal. Gibbs responded that he understood the conflict involved “[sjomething about a campaign,” and expressed frustration that Melnick had not [931]

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99 So. 3d 926, 37 Fla. L. Weekly Supp. 530, 2012 WL 3732848, 2012 Fla. LEXIS 1667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inquiry-concerning-a-judge-no-09-524-re-cohen-fla-2012.