reprimand

The Oxford Pocket Dictionary of Current English | Date: 2008
rep·ri·mand / ?repr??mand/
” n. a rebuke, esp. an official one.
” v. [tr.] rebuke (someone), esp. officially: officials were dismissed or reprimanded for poor work.

Florida Case Law

IN RE DOWNEY, 937 So.2d 643 (Fla. 2006) Inquiry Concerning
A Judge, No. 05-131, re Brandt C. DOWNEY, III. No.
SC05-2228. Supreme Court of Florida. July 13, 2006.

Appeal from the Judicial Qualifications Commission. Page
644

Honorable James R. Wolf, Chairman, Tallahassee, FL, Brooke
S. Kennerly, Executive Director, Tallahassee, FL, Marvin E.
Barkin, Interim General Counsel, Tampa, FL, John R.
Beranek, Counsel to Hearing Panel, Tallahassee, FL, E.
Lanny Russell and Scott B. Kalil of Smith, Hulsey and
Busey, Special Counsel, Jacksonville, FL, for Florida
Judicial Qualifications Commission, Petitioner. Page 645

Judge Brandt C. Downey, III, pro se, Clearwater, FL, for
Respondent.

PER CURIAM.

We have for review a stipulation between the Judicial
Qualifications Commission (“JQC”) and Judge Brandt C.
Downey, III, as well as the JQC’s recommendation that Judge
Downey be publicly reprimanded for violating the Code of
Judicial Conduct. We have jurisdiction. See art. V,
§ 12, Fla. Const. We accept the stipulation and
approve the JQC’s recommendation.

FACTS

On December 20, 2005, the JQC filed a notice of formal
charges against Judge Downey. This notice charged Judge
Downey with three counts of ethical violations for conduct
that occurred between 2002 and 2005. Judge Downey was
charged with violating canons 1, 2, and 3B(5) of the
Judicial Code of Conduct.[fn1] In relevant part, the JQC’s
notice of formal charges set forth the following:

I. Habitual viewing of pornography from the courthouse
computer[.]

1. Beginning on or about the year 2002, and continuing
through 2005, you engaged in the practice of viewing
pornographic Internet websites from the computer in your
chambers.

2. Your pervasive practice of viewing pornography from
the computer in your chambers resulted in frequent
computer viruses infecting your computer. Courthouse
anti-virus software quarantined the viruses on your
computer which in turn, had to be removed by technology
staff members either from a remote location or in person
by reporting to your office to remove the viruses from
your computer.

3. As a result, on at least two occasions, courthouse
personnel were unwittingly exposed to pornographic images
when they reported to your office to physically remove
viruses from your computer. In addition, on at least one
known occasion, your Judicial Assistant was also exposed
to a pornographic website image while present in your
office during a computer repair service call.

4. You repeatedly ignored e-mail warnings such as the one
below from Page 646 court technology staff, advising you
of the potential risk to the entire computer network due
to your viewing of certain websites:

“Judge Downey, again our Antivirus Server alerted our
staff that your computer has multiple viruses. One of the
technology staff members will either stop by to clean the
virus or we may be able to clean the virus from the
server. Please understand that viruses can be found in
emails or Internet sites. Many Internet sites carry
viruses and just by clicking on a link or popup window
could infect your computer. Please be careful about the
sites you visit and realize that the virus you encounter
could infect our entire network. . . .”

(Emphasis added).

These acts, if they occurred as alleged, were in
violation of Canon, 1, [sic] by failing to maintain a high
standard of conduct to preserve the integrity of the
judiciary. Furthermore, these acts, if true, violate Canon
2A by eroding the public confidence and integrity in the
judiciary through your pervasive conduct of viewing
pornography in your chambers and thereby threatening to
infect the entire courthouse computer system with unwanted
computer viruses.

II. Failure to disclose a juror written communication.

5. In the case of State v. Wilson, (Case
No.:CRC-03-00026CFANO-K) you failed to advise the lawyers
representing the State of Florida and the defendant that
you had received a written communication from a juror
during the trial. The handwritten note from the juror
allegedly advised you that said juror was concerned about
a fellow juror sleeping during the trial and was further
concerned about the fairness of the proceedings due to
the sleeping juror.

6. You failed to disclose the note to the lawyers even
after defense counsel, who independently learned of the
sleeping juror, requested a continuance of the sentencing
hearing to explore legal options on behalf of Mr. Wilson.
In addition to denying the continuance, you also conducted
legal research and cited to Foraker v. State, 731 So.2d
110 ([Fla.] 5th DCA 1999)[,] in support of your decision
to proceed with the sentencing of Mr. Wilson
notwithstanding the sleeping juror. In so ruling, you
stated that there was insufficient evidence of the
sleeping juror to require a hearing. You made this
representation knowing that you had direct evidence in the
form of a juror communication evidencing that a fellow
juror had in fact seen the juror sleeping during the
trial.

7. Defense counsel learned about the juror communication
after the courtroom bailiff who received the note from the
juror reported the existence of the note to the State
Attorney’s Office who in turn notified defense counsel.

8. You claim to have destroyed the note instead of
producing the note to the lawyers or placing the note in
the court file. The withholding of the juror communication
in this case led to your disqualification.

The acts as described above if they occurred as alleged,
are in violation of Canon 1, by failing to uphold the
integrity and independence of the judiciary[,] and Canon
2, by failing to comply with the law in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.

III. Improper contact and communication with female
attorneys.

9. During 2003 through 2004 you displayed an inordinate
interest in a first year female assistant state attorney
assigned to Judge Linda R. Allan’s division. Page 647
As such, you repeatedly sent quick conference computer
messages to Judge Allan regarding said assistant state
attorney’s appearance. You also asked Judge Allan to
“pass” a case to you involving this same prosecutor.
Further, you asked Judge Allan to advise the prosecutor
that her case was coming to your division so that you
could in turn, watch her reaction to the news on your
computer screen. In addition, you sat in the audience and
watched said assistant state attorney in trial on more
that one occasion[.]

10. On another occasion you asked said assistant state
attorney to approach the bench while court was in session
and told her she “looked nice today.” In addition, you
approached her in front of other people and told her she
“looked pretty.”

11. Furthermore, you also telephoned the assistant state
attorney in her office and invited her to have lunch or
dinner with you, to which she declined.

12. Your behavior toward said assistant state attorney
embarrassed her and caused others to mock and ridicule
her. The acts as described above if they occurred as
alleged, are in violation of Canon 1 and 2A as outlined
above and in violation of Cannon [sic] 3B(5) requiring
that a judge perform judicial duties without bias or
prejudice including but not limited to bias or prejudice
based on gender.

13. Furthermore, your inappropriate conduct toward the
unnamed assistant state attorney described above is not an
isolated incident. On March 23, 2005, you asked another
female attorney to approach the bench while court was in
session to engage in a personal conversation with her. In
addition, you authored an e-mail message later that same
day wherein you stated: “IT WAS NICE SEEING U IN COURT
LOOKING SO PRETTY — LOOK FORWARD TO SEEING U SOON
IN COURT, OR OUT — BEST REGARDS, JUDGE D[.]”

14. Moreover, on April 6, 2005[,] you sent the same
female attorney the following message: “WAS GREAT SEEING U
LAST NIGHT AND AGAIN TODAY TOO — U LOOKED GOOD ENUF
TO — OH WELL, WISHFUL THINKING — C U SOON I HOPE[.]”

The acts as described above if they occurred as alleged,
are in violation of Canon 1, 2A and Cannon [sic] 3B(5) as
outlined in paragraph 12 above.

On May 26, 2006, the JQC and Judge Downey presented a
stipulation to this Court in which Judge Downey admitted
count I but denied counts II and III.[fn2] In addition to
receiving a public reprimand, the stipulation requires that
Judge Downey (1) retire from judicial office at the end of
his term on January 1, 2007; (2) not serve as a senior
judge; (3) provide a formal letter of apology; (4) continue
to have restricted email and internet access; (5) continue
his psychological counseling; and (6) not file for
reelection and never again seek election or appointment as
a judge.[fn3] The stipulation also provides that Judge
Downey will sign a letter of resignation Page 648 that
will take effect immediately should the JQC find probable
cause to charge him with any additional ethical violations
or should he fail to abide by the other terms of the
stipulation. Finally, the stipulation recites the JQC’s
disciplinary recommendations. In a separate filing, the JQC
presented its recommendations and findings specifying that
Judge Downey has been found guilty of count I. Neither the
stipulation nor the JQC’s separate filing explains why
counts II and III are not being pursued further or why the
JQC considered the recommended discipline appropriate.
These deficiencies in the filings prompted this Court to
order the JQC and Judge Downey to appear before it on June
29, 2006, for further inquiry.

At this appearance, the JQC explained that Judge Downey’s
long, unblemished record of service as a county and circuit
court judge from 1984 until 2002 weighed heavily in its
decision to enter into the stipulation. Significantly, the
JQC found that Judge Downey’s conduct had not influenced
his judicial actions and that, “based upon [his] long term
of otherwise effective judicial service and the appropriate
limitations on that service” that were imposed subsequent
to the alleged misconduct, his conduct did not demonstrate
a present unfitness to hold office. The JQC also considered
the fact that, pursuant to his agreement with Chief Judge
David A. Demers, Judge Downey voluntarily sought
psychological counseling. Finally, it found that Judge
Downey was remorseful.

As to counts II and III, the JQC did not believe these
serious charges had been disregarded or improperly
minimized. Regarding count II, after conducting further
investigation, the JQC concluded that Judge Downey’s
conduct was “more a matter of judicial error than judicial
misconduct” and did not pursue this charge any further. As
for count III, the JQC ultimately determined that further
proceedings to prove these charges would not be prudent
because the stipulation ensured Judge Downey’s permanent
removal from office as of January 1, 2007. In addition, as
an interim protection, if the stipulation is breached or
further misconduct occurs, Judge Downey would cease to
serve immediately. Lastly, the JQC clarified that Judge
Downey will serve the remainder of his term in the civil
division of the circuit court and will not preside over
criminal cases.

In his appearance before this Court, Judge Downey
clarified that he had never formally answered counts II and
III but had never denied them. Further, he admitted to the
communications with the two female attorneys and agreed
that these communications were improper, but disputed Page
649 the characterization of these communications as rising
to the level of sexual harassment.[fn4] Judge Downey also
informed the Court that while the qualifying period to seek
reelection expired in May, he could still qualify to run
for a newly created position until July 15, 2006. However,
he made it clear that he had no plans to seek reelection.
Judge Downey also explained that his early retirement and
inability to serve as a senior judge essentially worked as
a monetary sanction because he would forfeit approximately
$600,000 worth of benefits.

DISCUSSION

The JQC asks this Court to approve its stipulation with
Judge Downey as well as its disciplinary recommendation.
While we remain deeply troubled by the charges as filed,
particularly those in count III, we approve the stipulation
and the JQC’s disciplinary recommendation. We do so because
under the facts and circumstances of this case, the
stipulation presents a reasonable, expeditious, and assured
way of securing Judge Downey’s permanent removal from
office.

1. Standard of Review

In considering whether to approve or reject a stipulation
entered between the JQC and a judge, we consider both the
terms of the stipulation and the findings of the JQC. In re
Angel, 867 So.2d 379, 382-83 (Fla. 2004). “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 Andrews, 875 So.2d 441, 442 (Fla.
2004). Clear and convincing evidence is the standard of
proof required “to support the alleged ethical violations
— a standard of proof which has been described as
`more than a preponderance of the evidence, but the proof
need not be beyond and to the exclusion of a reasonable
doubt.'” In re Kinsey, 842 So.2d 77, 85 (Fla. 2003)
(quoting In re Davey, 645 So.2d 398, 404 (Fla. 1994));
accord Angel, 867 So.2d at 382. “In cases where a judge
admits to wrongdoing and the JQC’s findings are undisputed
this Court will ordinarily conclude that the JQC’s findings
are supported by clear and convincing evidence.” In re
Diaz, 908 So.2d 334, 337 (Fla. 2005). We have also
recognized that a judge’s “own admissions” of the
misconduct and impropriety of that conduct “bolster the
JQC’s findings, which we give great weight as we consider
its recommendation of discipline.” Angel, 867 So.2d at 383
(citing In re Rodriguez, 829 So.2d 857, 860 (Fla. 2002); In
re McMillan, 797 So.2d 560, 566 (Fla. 2001)). We give the
disciplinary recommendation of the JQC great weight but
recognize that “the ultimate power and responsibility in
making a determination rests with this Court.” Kinsey, 842
So.2d at 85 (quoting Davey, 645 So.2d at 404); accord
Angel, 867 So.2d at 382-83.

2. Analysis

a. Stipulation and Findings Supporting Ethical Violations

Under the terms of the stipulation, Judge Downey admits
both the conduct Page 650 and its impropriety as alleged
in count I. On this basis, the JQC finds Judge Downey
guilty of violating canons 1 and 2A of the Code of Judicial
Conduct as alleged in count I. We conclude that there is
clear and convincing evidence to support the JQC’s finding.
In addition, as to count II, we accept the JQC’s decision
not to pursue this charge. As to count III, given Judge
Downey’s oral admission that his communications with two
female attorneys were inappropriate, that admission may be
considered in our review of the recommended discipline. In
this light, we next consider whether we should approve the
JQC’s disciplinary recommendation.

b. Disciplinary Recommendation

We approve the disciplinary recommendation of the JQC. In
so doing, we must first clarify several important points.
First, while “[t]his Court may `accept, reject, or modify
in whole or in part’ the findings and conclusions of the
JQC,” In re Adams, 932 So.2d 1025 (Fla. May 18, 2006)
(quoting art. V, § 12(c)(1), Fla. Const.), we cannot
modify a stipulation between the JQC and a judge. We may
only accept or reject it. Thus, while we are well aware of
the seriousness of the allegations in count III, other than
the obvious impropriety of the communications later
admitted to by Judge Downey in his appearance before us,
those allegations are otherwise denied. Therefore, though
we consider Judge Downey’s oral admissions to this Court in
deciding whether to accept the stipulation, we do not have
the power to modify the terms of the stipulation and impose
a harsher sanction.

Second, the stipulation was entered into in lieu of
conducting a formal hearing on any of the charges. If we
were to reject the stipulation, the adjudicatory process
would continue and most likely remain unresolved by January
1, 2007. In addition, the outcome of the adjudicatory
process would be uncertain. Moreover, if we were to reject
the stipulation, Judge Downey would be free to qualify and
run again for judicial office. Thus, the practical and
definitive effect of accepting the stipulation and the
JQC’s recommendation is that it ensures that Judge Downey
will no longer serve as a judge after January 1, 2007.
Until that date certain, Judge Downey will preside over
civil cases only and do so with the prospect of immediate
removal as set forth in the stipulation. In light of this,
we now consider the JQC’s recommendation.

Pursuant to the stipulation, the JQC based its
disciplinary recommendation on Judge Downey’s admission to
the ethical violations charged in count I. We have found
that a public reprimand is appropriate in cases involving
violations of canons 1 and 2 where there is significant
mitigation, the incidents of misconduct are isolated, and
the alleged misconduct did not affect the judge’s office.
For instance, in Adams, 932 So.2d 1025, we found that a
public reprimand was an appropriate sanction where a judge
became involved in a romantic relationship with an attorney
practicing before him in violation of canons 1, 2, and 3.
As we explained,

In reaching agreement with Judge Adams on the recommended
sanction, the JQC Investigative Panel noted that Judge
Adams accepted full responsibility for his misconduct
during the relationship, which lasted for approximately
two months, admitted that it should not have occurred, and
regrets and apologizes for the misconduct. Further, the
JQC recognized that Judge Adams has an otherwise
unblemished record as a judge and is active in his
community. Finally, from our review of the record, we
conclude that there is no evidence that the relationship
actually influenced Page 651 his actions in any of the
cases involving the attorney. If evidence had demonstrated
that the relationship affected the disposition of any
matter before the judge, we would not hesitate to impose
stiffer discipline.

932 So.2d at 1027-28; see also In re Cope, 848 So.2d 301,
304 (Fla. 2003) (finding that public reprimand was
appropriate sanction given judge’s “sincere remorse and his
exemplary performance as a judge” where judge admitted to
incident of public intoxication and inappropriate conduct
of an intimate nature while attending an out-of-state
judicial conference at taxpayers’ expense); In re Esquiroz,
654 So.2d 558, 559 (Fla. 1995) (finding that public
reprimand was appropriate sanction where judge pled nolo
contendere to DUI charge, admitted violating canons 1 and
2A, and expressed remorse and JQC determined incident was
isolated).

Similarly, the JQC has found significant mitigation in
this case. It determined that Judge Downey’s misconduct
occurred at the end of an otherwise long and unblemished
record of judicial service. His judicial service began in
1984 and was unmarred until 2002. Judge Downey admitted to
and accepted responsibility for his actions as alleged in
count I. He admitted to habitually viewing pornography from
his computer. In addition, he has admitted to engaging in
inappropriate conduct towards two female attorneys. He
voluntarily sought psychological counseling. And he has
shown sincere remorse. He is stipulating not only to a
public reprimand but also to permanent retirement from the
bench effective January 1, 2007. Finally, the JQC found no
evidence that Judge Downey’s misconduct affected his
judicial office.

Under the unique facts and circumstances of this case, the
JQC’s finding that Judge Downey’s admitted misconduct did
not interfere with his judicial decision making will not be
disturbed by this Court. Although the allegations of sexual
harassment contained in count III are extremely serious and
very disturbing to this Court, we again note that this
count as charged has been denied and remains unproven.
Nonetheless, we also recognize that the JQC and Judge
Downey have not totally ignored the allegations in count
III. Rather, in light of count III, the JQC has recommended
and Judge Downey has stipulated to a much harsher sanction
than a public reprimand and apology. In lieu of a formal
hearing on count III, Judge Downey has agreed to retire at
the end of his current term of office and to be permanently
barred from serving as a judge in Florida. According to
Judge Downey, this inability to serve beyond January 1,
2007, will result in the loss of significant income
otherwise available to him. Considering the foregoing, we
approve the stipulation and accept the JQC’s disciplinary
recommendation as appropriate under the circumstances of
this case.

We reiterate that, pursuant to the terms of the
stipulation, if Judge Downey engages in further misconduct,
he must immediately resign. Moreover, we also note that the
retired status of a judge does not deprive the JQC of its
jurisdiction so long as a complaint is filed within one
year after retirement. Art. V, § 12(a)(1), Fla.
Const. Likewise, retirement does not deprive this Court of
jurisdiction. In re Frank, 753 So.2d 1228, 1230 n. 1 (Fla.
2000) (citing In re Hapner, 718 So.2d 785, 787-88 (Fla.
1998)) (relying on article V, section 12 of the Florida
Constitution to exercise jurisdiction over a case where the
judge had already resigned from the bench).

Accordingly, we approve the stipulation, and, in
accordance with the policy announced in Frank, 753 So.2d at
1242, we hereby command Judge Brandt C. Downey, Page 652
III to appear before this Court for the administration of a
public reprimand on Friday, September 22, 2006, at 8:30
a.m., as directed by this Court in our corrected June 30,
2006, order.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO,
and BELL, JJ., concur.

[fn1]

Canon 1. A Judge Shall Uphold the Integrity and
Independence of the Judiciary

An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in
establishing, maintaining, and enforcing high standards of
conduct, and shall personally observe those standards so
that the integrity and independence of the judiciary may be
preserved. The provisions of this Code should be construed
and applied to further that objective.

Canon 2. A Judge Shall Avoid Impropriety and the Appearance
of Impropriety in all of the Judge’s Activities

A. A judge shall respect and comply with the law and shall
act at all times in a manner that promotes public
confidence in the integrity and impartiality of the
judiciary.

. . . .

Canon 3. A Judge Shall Perform the Duties of Judicial
Office Impartially and Diligently

. . . .

B. Adjudicative Responsibilities.

. . . .

(5) A judge shall perform judicial duties without bias or
prejudice. A judge shall not, in the performance of
judicial duties, by words or conduct manifest bias or
prejudice, including but not limited to bias or prejudice
based upon race, sex, religion, national origin,
disability, age, sexual orientation, or socioeconomic
status, and shall not permit staff, court officials, and
others subject to the judge’s direction and control to do
so. This section does not preclude the consideration of
race, sex, religion, national origin, disability, age,
sexual orientation, socioeconomic status, or other similar
factors when they are issues in the proceeding.

[fn2] This stipulation was presented pursuant to article V,
section 12 of the Florida Constitution and Florida Judicial
Qualifications Commission Rule 6(j).

[fn3] As recited in our June 30, 2006, order, the
stipulation provides in applicable part:

(i) Judge Downey may retain his position as Circuit Judge
until the end of his term on January 1, 2007, at which
time he will retire;

(ii) After his retirement pursuant to this stipulation,
Judge Downey will not serve as a Senior Judge and will not
seek appointment or election as a judge;

(iii) Judge Downey shall sign and provide to the Florida
Judicial Qualifications Commission a letter of apology to
the public, his fellow judges, and the legal community for
his actions which have resulted in this case, which letter
the Commission may distribute to the public;

(iv) Judge Downey’s restricted access to email and the
internet at the courthouse shall continue to remain in
place until his retirement;

(v) Judge Downey shall continue his present counseling
until such time as his counselor releases him. A copy of
such release will be provided to the Florida Judicial
Qualifications Commission;

(vi) Judge Downey shall personally appear before this
Court to receive a public reprimand at a date and time to
be determined by this Court;

(vii) Judge Downey shall sign a letter of resignation to
take effect upon the finding of probable cause by the
Florida Judicial Qualifications Commission of (1) any
violation of the Code of Judicial Conduct other than the
conduct set forth in the notice of formal charges or (2)
Judge Downey’s failure to abide by the terms of this
stipulation;

(viii) Judge Downey shall not file for re-election even
if this Court has not ruled on this stipulation prior to
the end of the qualifying period for the next election.

[fn4] As to the assistant state attorney, Judge Downey told
this Court that after he was confronted by Chief Judge
Demers, he had no further communications with the attorney,
and she did not file any formal charges against him. He
characterized his pursuit of her as overactive mentoring
and denied asking Judge Allan to transfer the state
attorney’s cases to his division. He clarified that he had
contacted Judge Allan regarding transferring a case to his
division when asked to do so by the administrative criminal
judge because Judge Allan was overbooked. As to the second
attorney, he admitted that he was attempting to establish a
social relationship with her and that this was improper.
However, she had not filed any formal charges.