INQUIRY CONCERNING A JUDGE, NO. 11-550 RE: JUDITH W. HAWKINS
No. SC12-2495
Supreme Court of Florida
[October 30, 2014]
In this сase we review the determination of the Hearing Panel of the Florida Judicial Qualifications Commission (the Hearing Panel) that Judge Judith W. Hawkins has committed a series of violations of the Code of Judicial Conduct. We have jurisdiction. See
We remain mindful that removal is the ultimate sanction in a judicial disciplinary proceeding, but we will impose that sanction when we conclude that the judge‘s conduct is fundamentally inconsistent with the responsibilities of judicial office. See In re Shea, 759 So. 2d 631, 638 (Fla. 2000). For the reasons we explain, based on the violations found by the Hearing Panel which were supported by clear and convincing evidence, we conclude that removal from the bench is the only appropriate sanction in this case.
FACTS AND PROCEDURAL HISTORY
On December 5, 2012, an Investigative Panel of the Florida Judicial Qualifications Commission filed a notice of formal charges against the Honorable Judith W. Hawkins, a county judge in the Second Judicial Circuit, in and for Leon
The amended notice alleged violations of the Code of Judicial Conduct, Canons 1, 2A, 2B, 3A, 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), 4D(1), and 5D(1), and violation of
It was alleged in count I(A) of the Notice of Amended Formal Charges that Judge Hawkins used court resources to operate a private business from which she derived substantial income, in that she operated her Gaza Road Ministries business in large part from her judicial chambers, utilizing official time, office space, utilities, equipment, and the services of her judicial assistant. Count I(A) also alleged that Judge Hawkins used her position to promote her business by: (1) selling and offering to sell Gaza Road Ministries products in her courtroom to
Count II(A)(1) alleged that Judge Hawkins maintained an idiosyncratic system of justice in which she would go off the record to avoid having coercive discussions recorded, to prevent the preparation of a full record, and to avoid the recording of inappropriate comments or the sound of magazine pages turning during trial. Count II(A)(2) alleged that Judge Hawkins took measures to coerce compliance with her system of justice. Count II(B) alleged that Judge Hawkins failed to comply with sales tax laws. Count II(C) alleged that she paid her judicial assistant to assist in the operation of the business but failed to report that pay to taxing authorities and to the Judicial Qualifications Commission. Count II(D) alleged that she violated Florida law by failing to register Gaza Road Ministries under the Florida Fictitious Name Act.
Count III(A) alleged Judge Hawkins failed to act in a manner that promotes public confidence by presiding over a criminal case in which she instructed the
Count V(A) alleged that Judge Hawkins exhibited a lack of candor and ignored the applicable law in responding to the charges brought by the Commission. Count V(A)(1) alleged that on the morning of her scheduled deposition, Judge Hawkins deleted financial information from her private business computer, which records had been subpoenaed for production at the deposition. Count V(A)(2) alleged that she misled the Commission with regard to efforts to keep her private business separate from her judicial duties and from the duties of her judicial assistant, and that Judge Hawkins worked extensively on her business at her judicial office and encouraged her judicial assistant to do the same. Count V(A)(3) alleged that Judge Hawkins misled the commission investigator and
In response to the original Notice of Formal Charges, Judge Hawkins admitted selling and offering to sell her Gaza Road Ministries book in her courtroom and in the courthouse, but she denied that she sold them to persons over
The facts concerning Judge Hawkins’ background and judicial service were presented during this proceeding. She was first elected to the county court bench in 1996 and has been rе-elected ever since. She has served in all divisions of county court, which include traffic, misdemeanor, civil and administrative. She
Prior to the formal charges being filed in this case, the Commission Investigative Panel met with Judge Hawkins pursuant to a notice of investigation to take her unsworn statement regarding the allegations brought against her. On November 16, 2012, Judge Hawkins appeared before the Commission Investigative Panel at the rule 6(b) hearing and told the panel that she was careful in attempting to separate her judicial and business activities. She contended that she never pressured anyone to buy her book, and sold it only to persons with whom she had a personal relationshiр or who were personal friends, and that she kept a fairly meticulous list of purchasers. She denied using State resources to operate her business and explained that she paid her judicial assistant separately for work performed by her for Gaza Road Ministries. The Notice of Formal Charges was then filed on December 5, 2012.
In the course of the investigation, the Commission issued a subpoena duces tecum to Judge Hawkins to produce twenty categories of documents at her deposition that was scheduled for February 19, 2013. The documents related to
The deposition of Judge Hawkins was held on February 19, 2013, at which Judge Hawkins refused to produce e-mails relating to Gaza Road Ministries, her dedicated computer, and any federal 1099 forms reflecting payment to her judicial assistant. Significantly, when Judge Hawkins was asked about the requested financial documents related to Gaza Road Ministries, she responded that she had a Quicken software program on her Gaza Road Ministries laptop, but said “I deleted whatever financial information had been put into the Quicken program, and I did that this morning.” She also refused to provide her tax return and tax forms or to answer the question of where the Gaza Road Ministries account was located. At
When asked at her deposition about income or gifts to her judicial assistant, Judge Hawkins responded that the income would be reported on a federal 1099 form, which she refused to produce, and that she had no independent recollection of giving her judicial assistant any gifts, including cash gifts, over $50. However, after the deposition was concluded, and after her judicial assistant was deposed, Judge Hawkins returned to the deposition room and disclosed that for many months she has given her judicial assistant approximately $48 or $49 dollars3 each month to reimburse her for payments the judicial assistant made into a deferred compensation account.4
As part of the investigation, the Commission retained Marc Yu, a forensic computer examiner who performs digital forensic analysis of computer drives. He was provided four computers to inspect, including the office desktop computer in Judge Hawkins’ office, a personal laptop computer from her office, a personal laptop from her home, and the office desktop computer in her judicial assistant‘s office. Yu confirmed that the Quicken log on Judge Hawkins’ personal computer had been opened on February 19, 2013, at 5:17 a.m., and that by 5:20 a.m., the Quicken log had been reduced essentially to nothing, but there was no way he could determine the amount of data that had previously existed on it. He testified he also discovered that 55 separate ESDs, which are electronic storage devices such as USB flash drives or thumb drives, had been plugged into Judge Hawkins’ computers. Yu said that when asked about them, Judge Hawkins responded that she did not have any flash drives, a statement Judge Hawkins denied making.
A final hearing was held October 7-9, 2013, before the Hearing Panel comprising the Chairman and five Commissioners. Judge Hawkins was represented by counsel, as she had been throughout the proceedings.
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE HEARING PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION
The Hearing Panel issued its “Findings, Conclusions and Recommendations of the Hearing Panel, Florida Judicial Qualifications Commission” on January 27, 2014. After considering all the evidence presented, the Hearing Panel concluded that Judge Hawkins was guilty of violation of Count I(A) in that she operated a private, for-profit business, from which she derived substantial income, from her judicial chambers using official time and judicial resources. The Hearing Panel also concluded that she used her judicial position to promote Gaza Road Ministries by selling and offering to sell Gaza Road Ministries products in the courthouse to
Judge Hawkins was also found guilty of the violations alleged in Count II of the Amended Notice of Formal Charges in failing to comply with Florida tax laws in the sale of her products and failing to register Gaza Road Ministries as a fictitious name. She was found not guilty of the charges that she maintained an idiosyncratic system of justice known as “Hawkins’ law” and that she used coercive measures to effect compliance. The Hearing Panel concluded that “Hawkins’ law” was nothing more than two basic rules—“know your judge” and “don‘t annoy your judge.” The Hearing Panel also found Judge Hawkins not guilty of failing to properly report to the appropriate taxing authorities and the Commission the full amount of payments made to her judicial assistant for her assistancе in the operation of the business. The Hearing Panel concluded that monies given to her judicial assistant to reimburse her for payments into the judicial assistant‘s deferred compensation account were gifts, and taxes were not due from Judge Hawkins on those payments.
As to Count IV, the Hearing Panel found that Judge Hawkins’ explanation that she and her judicial assistant had a great deal of free time and used that time to operate the business in part from chambers proved that Judge Hawkins failed to devote full time and attention to her judicial office. The Hearing Panel found Judge Hawkins not guilty of the charge that taking time away from her court duties was to the detriment of prompt and efficient administration of justice. She was also found not guilty of taking trips and vacations during her trial weeks and not informing parties or attorneys in a timely fashion, to the detriment of the parties and attorneys.
Finally, as to Count V, the Hearing Panel found Judge Hawkins guilty of exhibiting a lack of candor before the Commission, ignoring the requirements of law, and evading lawful orders of the Hearing Panel by deleting subpoenaed financial records on the morning of her deposition; misleading the Investigative
FINDINGS OF FACT
The Hearing Panel found that Judge Hawkins was guilty of the above counts based upon its findings of fact. The Hearing Panel found, as Judge Hawkins stated in her response to the formal charges, that in 2008 she wrote a self-published book and later started her business, Gaza Road Ministries, which facilitated the sale of the book and other writings and which promoted Judge Hawkins as a speaker. The
The Hearing Panel found, as Judge Hawkins acknowledged, that she sold a book to an attorney appearing before her in open court who had asked her about the book and requested a copy. Judge Hawkins accepted $15 for a copy of the book at that time. Another attorney testified that he had a conversation with Judge Hawkins in the courthouse hallway in which she mentioned that she had a book for sale, which the attorney purchased although he was not really interested in the subject. He testified he did not want to offend the judge.
Records subpoenaed from the State computer system reflected that Judge Hawkins’ judicial assistant set up her own not-for-profit corporation to conduct business with Gaza Road Ministries. The record disclosed 205 e-mail communications on the State computer between Judge Hawkins, her judicial assistant, and persons interested in the business‘s products and services. Many of the e-mails were copied to the judicial assistant‘s corporation. The investigator also obtained a CD of 885 e-mails from the judicial assistant‘s business and testified that they showed a significant amount of Gaza Road Ministries business being conducting during court workdays.
The investigator testified that Judge Hawkins refused to make her personal laptop available for inspection and that she admitted that on the morning of her deposition she had deleted the Gaza Road Ministries financial files in the Quicken program from the computer. This testimony was augmented by the testimony of Mark Yu, the forensic computer examiner, who found by examining Judge Hawkins’ personal computer that on February 19, 2013, at 5:17 a.m., Judge
Portions of Judge Hawkins deposition were read into evidence at the hearing in which she initially refused to make her Gaza Road Ministries e-mails available to the investigator and refused to make her personal laptop available for inspection. In the deposition, she admitted deleting the Quicken files and refused to release any income tax information pertaining to income she received from Gaza Road Ministries. She refused to provide information concerning IRS 1099 forms reporting income to her judicial assistant‘s corporation, and refused to tell the Commission‘s counsel the location of the bank account for Gaza Road Ministries.
The Commission investigation disclosed, and it is undisputed, that Judge Hawkins did not pay State sales tax on the sale of Gaza Road Ministries products. In 2013, after the proceeding had commenced, she did pay the State Department of
As to the charge that Judge Hawkins was observed reading magazines in court and not paying attention, the Hearing Panel heard testimony from an Assistant State Attorney who had been assigned to practice in front of Judge Hawkins. She had observed Judge Hawkins reading a magazine during trial. She also observed other attorneys trying cases in front of Judge Hawkins, and testified that often when attorneys made objections, it appeared that Judge Hawkins would continue to read a magazine or other material and would “wave” them along without a ruling. When they asked to be heard, Judge Hawkins would sometimes explain that she was not listening. A misdemeanor division supervisor with the Office of the State Attorney who routinely observed prosecutors practicing in Judge Hawkins’ courtroom also testified that on numerous occasions he observed Judge Hawkins reading a magazine and flipping pages during voir dire and trial testimony. The managing court reporter that reported digitally recorded proceedings in Judge Hawkins’ court testified that in transcribing digital records from Judge Hawkins’ courtroom, the court reporters would often have to report
As to the charge that Judge Hawkins devoted less than full time to her judicial duties, Judge Hawkins explained that she is often out of the office during court working hours because, if she had no trials or hearings, she would go home. She further explained that when e-mails showed her working on Gaza Road Ministries business during court working hours, she might have been doing so from home, but that if she was needed at court or to sign a warrant, she always made herself available. The Hearing Panel found that this conduct demonstrated that Judge Hawkins believes her time is her own when she is not in court, and constitutes less than full time devotion to judicial duty. However, the Hearing Panel rejected the assertion that Judge Hawkins was often absent during trial weeks, creating disruption or prejudice to the parties.
In its findings of fact, the Hearing Panel noted that in the 6(b) hearing held November 16, 2012, before the Investigative Panel, Judge Hawkins appeared and made a statement not under oath that she was meticulous in trying to separate judicial and business activities and that persons to whom she sold her books in the courthouse were personal friends who, for instance, she would invite “when [she]
The Hearing Panel noted an e-mail in evidence that was sent from Judge Hawkins’ Gaza Road Ministries e-mail account to the business e-mail account of her judicial assistant on April 6, 2011, at 2:13 p.m., directing her judicial assistant to “learn about self-publishing” so they could select a publishing company. The e-mail also asked her judicial assistant, “How do you charge me? Must be different from others b/c you get much done during work day.” Investigator Beiner prepared reports analyzing the volume of e-mails relating to Gaza Road Ministries generated by Judge Hawkins and her judicial assistant during work hours, which analysis showed that Judge Hawkins regularly accessed her private e-mail from her State computers, and the Hearing Panel found that she “likely” did a significant amount of work relating to Gaza Road Ministries while occupying a state office.
The Hearing Panel concluded based on the evidence that Judge Hawkins’ actions in operating a private business in significant part from her judicial chambers, linking the sale of her products to her judicial office by depicting herself wearing judicial robes on the business website, and using State time and resources to promote her business violated Canons 1, 2B and 5D of the Code of Judicial Conduct. Canon 1 provides that judges personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. Canon 2B provides in pertinent part that a judge shall avoid impropriety and the appearance of impropriety and thus shall not lend the prestige of judicial office to advance private interests. Canon 5D of the Code of Judicial Conduct provides in pertinent part that a judge shall not engage in financial and business dealing that may reasonably be perceived to exploit the judge‘s position or involve the judge in frequent transactions or continuing business relationships with lawyers or other persons who are likely to come before the court on which the judge serves.
The Hearing Panel concluded that Judge Hawkins’ conduct violated Canons 1 and 2A of the Code of Judicial Conduct by her failure to pay sales tax on the sale of Gaza Road Ministries products and by her failure to register her business under the
Based on these findings of fact and conclusions of law, the Hearing Panel found that the case presented a very close call between the sanctions of removal and discipline, and opted to recommend discipline in the form of a reprimand, a threе-month suspension without pay, and a $17,000 fine. This decision was based in part on the fact that Judge Hawkins had charitable motives in operating her business and had a lengthy judicial career and exemplary conduct for many years.
After issuance of the Hearing Panel‘s order, this Court ordered Judge Hawkins to show cause why the recommended discipline should not be followed, but after further consideration of the record, we issued a second order to show cause why removal is not the appropriate sanction. In response to that order to show cause, Judge Hawkins asserted in part that her obstructive conduct during the investigation was the result of “a moment when my faith instructed me, like many other litigants, to hold fast to my innocence and fight the good fight.” The Judicial Qualifications Commission response countered that intentional misrepresentation, destruction of evidence, and obstruction of justice do not constitute the “good fight.” Thus, we turn to our analysis of the evidence, the findings of the Hearing
ANALYSIS
The Court will independently review the Commission‘s findings “to determine if they are established by clear and convincing evidence.” Turner, 76 So. 3d at 901. This quantum of proof is an intermediate standard, more than “a preponderance of the evidence,” but less than “beyond and to the exclusion of a reasonable doubt.” In re Holloway, 832 So. 2d 716, 726 (Fla. 2002). This intermediate level of proof involves both a qualitative and quantitative standard. “The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” Id. We have noted the significance of the fact that “the JQC is in a position to evaluate the testimony and evidence first hand.” Turner, 76 So. 3d at 901 (quoting In re Graziano, 696 So. 2d 744, 753 (Fla. 1997)). Moreover, and particularly applicable to this case, where multiple violations are found, “the cumulative weight of the improprieties [may] support removal.” In re Henson, 913 So. 2d at 593 (Fla. 2005) (bracketed material added).
“This Court has emphasized that the object of disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge‘s fitness to
We have carefully reviewed the entire record of this proceeding and conclude that clear and convincing evidence supports the Hearing Panel‘s factual findings and its conclusions that Judge Hawkins violated Canons 1, 2A, and 5D of the Code of Judicial Conduct. Clear and convincing evidence demonstrated that she regularly used court resources, including the services of her judicial assistant, for Gaza Road Ministries business at work and during working hours. Judge Hawkins explained in her February 19, 2013, deposition, which was admitted into evidence at the hearing, that speaking engagement requests relating to Gaza Road Ministries may have come to her at work because that was the only way the requestor had to contact her. When asked if her judicial assistant handled those during working hours, Judge Hawkins responded that she had “no independent recollection” of how her judicial assistant did the work and had no recollection
Judge Hawkins told the investigator that she used her State computer as a repository for her Gaza Road Ministries records and texts because she feared that if that material was only on her laptop, it might get stolen. Testimony by investigator Beiner and forensic examiner Yu established that a significant number of Gaza Road Ministries e-mails were routed through or placed on the work computers of Judge Hawkins and her judicial assistant.
Evidence clearly established that Judge Hawkins showed her book to attorneys in her chambers and made clear it was for sale. She accepted payment from an attorney for one of her boоks while on the bench. She offered her book to another attorney in the courthouse hallway. Judge Hawkins testified at the hearing that three or four attorneys bought her book, as well as some judicial assistants, some court administration personnel, a judge, two bailiffs, an employee in the probation department, and some court clerks. She did not know all the names of those to whom she sold the book, and defended her noncompliance with the order to compel a complete list of purchasers by saying she was under no obligation to create anything, but just to provide what information she had. This conflicted with her earlier statements to the Investigative Panel that she kept a “fairly meticulous list” of those persons to whom she sold the book.
Clear and convincing evidence supported the conclusion that Judge Hawkins violated Canon 1 by failing to maintain and enforce high standards of conduct and personally observe those standards by her failure to pay state sales tax on the sale of her business products and failure to register the name of her business under the fictitious name law. Clear and convincing evidence also established that Judge Hawkins’ failings in this regard also violated Canon 2A, requiring respect and compliance with the law. Judge Hawkins acknowledged that she had not paid State sales tax on the salе of her books and had not registered her business under
The Hearing Panel had before it clear and convincing evidence that Judge Hawkins linked the sale of her business products to her judicial office by her appearance on her website in judicial robes, which lent the prestige of the judicial office to advance private interests. This conduct violated Canon 5D, which prohibits judges from engaging in business dealings that may reasonably be perceived to exploit the judicial position. Judge Hawkins acknowledged that she appeared on her business website in photographs depicting her in her judicial robes.
We also conclude that Judge Hawkins’ conduct during the investigation violated Canons 1 and 2A by her lack of candor required of a judge. Lack of candor is exhibited when a judge gives materially misleading and incomplete statements during a deposition, refuses to answer relevant questions during the investigation, and refuses to turn over relevant documents after being ordered to do so, as Judge Hawkins did in this case. Especially distressing is Judgе Hawkins’ conduct in deleting Gaza Road Ministries financial data in the early morning hours of the day of her deposition after that data had been subpoenaed and after Judge Hawkins had originally agreed to produce it. This act alone is clear and
At the hearing, Judge Hawkins testified that she was offended that the Commission and the investigator sought to look at her financial records, and said, “Why would you expect me to give you the information to investigate me?” Concerning the Judicial Qualifications Commission‘s request for a list of purchasers of her book, she testified, “You‘re the one who said that I sold the books. Surely you should have gone around and figured out who I sold them to.”
We consider a judge‘s deceit or dishonesty to be a very sеrious factor in determining an appropriate sanction. In the case of In re Ford-Kaus, 730 So. 2d 269 (Fla. 1999), that judge was removed for violations that included misrepresentations and untruthful statements to a client before becoming a judge, and untruthful statements to the Investigative Panel about the matters in issue. See id. at 273-75. We later referred to our Ford-Kaus decision in In re Eriksson, 36 So. 3d 580 (Fla. 2010), where we noted that we had “factored dishonesty into [our] decision to remove [Ford-Kaus] from office.” Id. at 591. Judge Hawkins’ misstatements to the investigating attorney and Investigative Panel, her deletion of subpoenaed financial information from her computer on the morning of her deposition, and her denial that she had flash drives are all forms of deception that can be equated to deceit or dishonesty for purposes of determining if removal is a proper sanction in this case.
We are fully mindful that the Hearing Panel found that Judge Hawkins has a generally exemplary record as a dedicated public servant who cares about others and who has been efficient and innovative in dispensing justice. We are also aware that Judge Hawkins operated her Gaza Road Ministries business primarily as a charitable enterprise, with good intentions. The Hearing Panel found that these mitigating factors played a large part in the “close call” whether to remove or simply discipline Judge Hawkins. Nevertheless, we have found removal the appropriate sanction in cases where the judge has good character and a strong
Similarly in this case, we are constrained to conclude that Judge Hawkins’ prior record of service and good intentions cannot overcome the grievous nature of the violations in this case. While sale of her book to employees and lawyers in the courthouse, standing alone, would not justify removal, we cannot ignore the fact that Judge Hawkins employed court resources in the operation of her business for a lengthy period of time and failed to see that such conduct was improper under the Canons of Judicial Conduct. Moreover, even in the response to our final order to show cause, Judge Hawkins maintained a defensive posture concerning her conduct in refusing to answer questions and refusing to provide investigatory
In past cases, this Court has also given favorable consideration to a judge‘s acceptance of responsibility for his or her actions, such as occurred in In re Holloway, 832 So. 2d at 729, and In re Schwartz, 755 So. 2d 110, 113 (Fla. 2000). However, in the present case, Judge Hawkins did not show acceptance of responsibility for her actions, or acknowledge their impropriety, until her response to the second order to show cause why removal from office is not the appropriate sanction. Only in her final words in that response did Judge Hawkins state “I apologize to the Investigative Panel of the FJQC for my responses, to all of the people that were affected by my actions, and to all the Justices of this Court.”
Removal is proper when clear and convincing evidence is presented that the judge has engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.”
CONCLUSION
For the reasons set forth herein, we find, based on clear and convincing evidence, that Judge Judith W. Hawkins violated Canons 1, 2A, and 5D of the Code of Judicial Conduct, and that those violations cumulatively warrant the most
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and PERRY, JJ., concur. QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
Original Proceeding - Judicial Qualifications Commission
Ricardo Morales, III, Chair, Michael Louis Schneider, General Counsel, Tallahassee, Florida, and Gregory Robert Miller, Special Counsel, Beggs & Lane, RLLP, Tallahassee, Florida, and David Lee McGee, Special Counsel, Beggs & Lane, RLLP, Pensacola, Florida, and Lauri Waldman Ross, Counsel to the Hearing Panel, Ross & Girten, Miami, Florida, and James A. Ruth, Chair, Hearing Panel, Jacksonville, Florida,
for Judicial Qualifications Commission, Petitioner
Gerald Kogan, Coconut Grove, Florida,
for Judge Judith W. Hawkins, Respondent