The Florida Bar v. Bryon R. Aven ( 2021 )

Supreme Court of Florida
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No. SC19-1879
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THE FLORIDA BAR,
Complainant,
v.
BRYON R. AVEN,
Respondent.
May 27, 2021
PER CURIAM.
We have for review a referee’s report recommending that Bryon
R. Aven be found guilty of professional misconduct and
reprimanded. We have jurisdiction. See art. V, § 15, Fla. Const.
The Florida Bar (Bar) filed a complaint on November 6, 2019,
alleging that Respondent, Bryon R. Aven, violated numerous Rules
Regulating the Florida Bar (Bar Rules) and several sections of
Canon 7 of the Florida Code of Judicial Conduct, which also
constituted violations of the Bar Rules, in the course of his
unsuccessful campaign for Marion County Court Judge in the
August 2018 primary election. We appointed a referee for further
proceedings pursuant to the Bar Rules.
The Bar’s complaint pertained to Respondent’s conduct in
running for Marion County Judge against incumbent Judge Robert
E. Landt in the August 28, 2018, primary election. Specifically, it
was alleged that Respondent attempted to impugn Judge Landt’s
integrity, citing his record in criminal cases presided over, while
repeatedly implying that Respondent was biased in favor of state
prosecutors and law enforcement. Based upon this misconduct,
the referee recommended that Respondent be found guilty of
violating Bar Rules 3-4.3 (Misconduct and Minor Misconduct); 4-
8.2(a) (Judicial and Legal Officials; Impugning Qualifications and
Integrity of Judges or Other Officers); and 4-8.2(b) (Candidates for
Judicial Office; Code of Judicial Conduct Applies); and Canon 7 of
the Code of Judicial Conduct (A Judge or Candidate for Judicial
Office Shall Refrain From Inappropriate Political Activity),
specifically, Canon 7A(3)(a) (candidate for judicial office shall be
faithful to the law, maintain professional competence, and not be
swayed by partisan interests, public clamor, or fear of criticism);
7A(3)(b) (candidate for judicial office shall maintain the dignity
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appropriate to judicial office and act in a manner consistent with
impartiality, integrity, and independence of the judiciary); 7A(3)(e)(i)
(candidate for judicial office shall not, with respect to parties or
classes of parties, cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments
that are inconsistent with impartial performance of adjudicative
duties of office); and 7A(3)(e)(ii) (candidate for judicial office shall
not knowingly misrepresent the identity, qualifications, present
position or other fact concerning candidate or opponent).
Upon review of the Stipulation of Facts and Consent Judgment
as to Discipline to be Imposed, we conclude that the referee’s
findings in the Report of Referee Accepting Consent Judgment are
sufficient under the applicable rules to support the
recommendations. See Fla. Bar v. Shoureas, 913 So. 2d 554, 557-
58 (Fla. 2005). Further, the referee recommended that Respondent
receive a reprimand. In reviewing a referee’s recommended
discipline, this Court’s scope of review is broader than that afforded
to the referee’s findings of fact because, ultimately, it is the Court’s
responsibility to order the appropriate sanction. See Fla. Bar v.
Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, § 15,
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Fla. Const. In this case, we approve the referee’s recommendation
as reasonable and supported by existing case law. See Fla. Bar v.
Temmer, 753 So. 2d 555, 558 (Fla. 1999).
However, we write to place future candidates for judicial office
on notice that this Court takes misrepresentations that cast a
sitting judge in a false light seriously because of their potential to
undermine confidence in the rule of law. With respect to
candidates who have won judicial elections using similar
misrepresentations, and related campaign-related misconduct, we
have removed the newly elected judges from office. See, e.g., In re
Santino, 257 So. 3d 25 (Fla. 2018); In re Renke, 933 So. 2d 482 (Fla.
2006); In re McMillan, 797 So. 2d 560 (Fla. 2001). Accordingly, in
the future, similar misconduct presented in the posture of this type
of case should be expected to result in a more severe sanction,
including suspension.
Based upon our review of the referee’s report, the stipulation
of facts, and the consent judgment, we hereby reprimand Bryon R.
Aven, which reprimand shall be published in the Southern Reporter.
Judgment is entered for The Florida Bar, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, for recovery of costs from Bryon
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R. Aven in the amount of $3673.66, for which sum let execution
issue.
It is so ordered.
LAWSON, COURIEL, and GROSSHANS, JJ., concur.
POLSTON and MUÑIZ, JJ., concur in result.
CANADY, C.J., dissents with an opinion.
LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
CANADY, C.J., dissenting.
Because I conclude that a reprimand is an insufficient
sanction for Respondent’s misconduct, I would reject the
stipulation. In my view—based on the stipulated facts—a
nonrehabilitative suspension would be appropriate in this case.
LABARGA, J., dissenting.
I concur with the majority that the referee’s findings are
sufficient to support Respondent’s culpability for violating
numerous Rules Regulating the Florida Bar and several sections of
Canon 7 of the Code of Judicial Conduct. However, I disagree with
the majority that the referee’s recommended discipline—a public
reprimand via publication of the majority opinion—is an adequate
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sanction for Respondent’s egregious conduct during a judicial
campaign. I therefore respectfully dissent.
As noted by the majority, The Florida Bar filed a complaint
alleging that Respondent violated numerous Rules Regulating the
Florida Bar and several sections of Canon 7 of the Florida Code of
Judicial Conduct in the course of his unsuccessful campaign for a
seat on the Marion County Court. The referee conducted a final
hearing on August 11, 2020, and September 2, 2020. However, on
October 6, 2020, prior to the sanctions hearing, the parties entered
into a consent judgment which recommended a public reprimand
as the discipline to be imposed. Thereafter, the referee filed his
Report of Referee Accepting Consent Judgment (report) accepting
the parties’ stipulation and recommended sanction.
The stipulated facts contained in the report revealed that
Respondent ran for Marion County Judge in the August 28, 2018,
primary election against incumbent Judge Robert E. Landt. During
the campaign, Respondent maintained pages on various social
media platforms, hosted a campaign website, and appeared at
public forums. According to the referee, “Although the campaign
website was hosted by a campaign committee, respondent
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acknowledged and understood that he was aware of all postings on
the site, approved the format and the text, and accepted the
premise that it was his responsibility to assure that the context and
the messaging were ethically proper and within the rules.”
During the course of his judicial campaign, Respondent made
the following statements on his campaign website:
A motion to suppress is filed when a defendant seeks a
judge to order that evidence obtained by law enforcement
be found inadmissible. Granting a motion to suppress
requires the court to find that law enforcement violated
the rights of the defendant. Generally, law enforcement
officers do an excellent job following the law and
respecting the rights of the defendant. The majority of all
motions to suppress are denied.
Robert Landt has presided over 23 contested hearings
involving motions to suppress. In 14 of the 23 hearings
where he has ruled, he found that law enforcement
officers have violated the rights of the defendant,
excluding the State from using critical evidence against
the defendant. These are the same officers that appear in
every other court in Marion County.
According to the report, Respondent asserted in his campaign
website that Judge Landt had the “Fewest Sentences Appealed by
Defendants” and the “Most State Appeals.” The report noted the
following:
[U]nder the heading “Most State Appeals,” respondent
made the following statement before listing links to state
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appeals against Judge Landt: “From January 2013 to
present, the State Attorney’s Office has appealed the
decisions of Marion County Judges a total of 12 times.
Robert Landt has been appealed by the State ten times.”
. . . Under the heading “Fewest Sentences Appealed
by Defendants,” Respondent made the following
statement: “Defendant’s [sic] generally appeal a judgment
and sentence because of the findings made by the court
of the sanctions imposed. The harsher a judge sentences
defendants, the more defendants will appeal.”
Following these statements on his campaign website, under
the heading “Fewest Sentences Appealed by Defendants,”
Respondent presented a list comparing the lesser number of times
Judge Landt’s decisions were appealed by criminal defendants to
the greater number of times that defendants appealed the decisions
of other Marion County judges.
Given these undisputed facts, the referee made the following
conclusions:
Regarding respondent’s statements about Judge Landt’s
rulings on motions to suppress, respondent improperly
interjected personal bias, and in effect, offered a promise
to the voting public that he would handle such matters
differently than the current presiding judge.
. . . Respondent’s statements about the number of
appeals concerning Judge Landt were misleading. It was
problematic to address this issue on a website with a
post when there are so many other facets of appellate
review. Such an assertive headline, without equally
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establishing full context and analysis, communicates to
the voting public that the incumbent has, and shows,
disfavor to the state. And in a binary choice in a
campaign, in effect, the message is “I won’t be such a
person.”
. . . The combination of the headline on
respondent’s website landing page and the different
sections taken in conjunction with the editorial,
opinionated assertions made by respondent in his
postings, misled the voting public and undermined public
confidence in the judiciary.
. . . The evidence presented was clear and
convincing to establish that respondent expressly and
intentionally implied that the incumbent judge favored
criminals, disfavored law enforcement, disfavored the
state attorney, and that he, as a candidate, would do
differently.
. . . While respondent did not fully accept
responsibility for his conduct, respondent acknowledged
how one could interpret and/or view the campaign
messaging in less than and below the standards that he
must be held to.
Based on these findings, the referee correctly found that
Respondent violated Canon 7A(3)(a) of the Florida Code of Judicial
Conduct, which provides that a candidate for judicial office “shall be
faithful to the law and maintain professional competence in it, and
shall not be swayed by partisan interests, public clamor, or fear of
criticism”; Canon 7A(3)(b), which requires that a candidate for
judicial office “shall maintain the dignity appropriate to judicial
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office and act in a manner consistent with the impartiality,
integrity, and independence of the judiciary, and shall encourage
members of the candidate’s family to adhere to the same standards
of political conduct in support of the candidate as apply to the
candidate”; Canon 7A(3)(e)(i), which provides that a candidate for
judicial office “shall not . . . with respect to parties or classes of
parties, cases, controversies, or issues that are likely to come before
the court, make pledges, promises, or commitments that are
inconsistent with the impartial performance of the adjudicative
duties of the office”; and Canon 7A(3)(e)(ii), which provides that a
candidate for judicial office “shall not . . . knowingly misrepresent
the identity, qualifications, present position or other fact concerning
the candidate or an opponent.”
In many respects, the implications made in Respondent’s
campaign website by his campaign committee are similar to the
offending misrepresentations made in In re Santino, 257 So. 3d 25(Fla. 2018). Santino’s campaign committee for an open seat for
Palm Beach County Judge published an email addressed to
potential voters which listed her experience as a probation officer
and a victim services advocate for victims of rape, homicide, and
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domestic violence, while describing her opponent’s legal experience
as “limited to criminal defense—representing murderers, rapists,
child molesters and other criminals.” Id. at 27. Soon thereafter, a
local newspaper ran an article titled “PBC race gets ugly—some
say—in Donald Trump-like way.” Id. Rather than retracting or
apologizing for her campaign’s disparaging remarks, Santino told
the newspaper reporter, “I completely respect, and I’m proud of our
justice system, and while every person is entitled to a defense,
Mr. Lerman is not a public defender, and chooses to represent
individuals who commit heinous crimes.” Id. Thereafter, the tone
of the campaign deteriorated even further with Santino making
additional improper remarks. Ultimately, Santino was elected and
took office. Soon thereafter, she faced a Judicial Qualifications
Commission (JQC) inquiry which ultimately concluded with a
recommendation of removal from office—a recommendation that a
majority of this Court accepted and imposed.
In considering the proper discipline in Santino, “we first
considered the effect that Santino’s actions had on the public’s
trust in the judiciary.” Id. at 33. We noted that “Florida has a
compelling interest in protecting the integrity of the judiciary and
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maintaining the public’s confidence in an impartial judiciary.” Id.(quoting Fla. Bar v. Williams-Yulee, 138 So. 3d 379, 385 (Fla. 2014),
aff’d, 575 U.S. 433 (2015)). We explained:
Santino’s numerous statements during the
campaign evidenced a bias against criminal defendants,
toward whom she imputed guilt; against criminal defense
attorneys, whom she implied had some character fault
because they “choose” to represent criminal defendants;
and in favor of victims, whom she boasted that she
worked to protect during her legal career. Such
statements are sufficient to create fear on the behalf of
criminal defendants—who are entitled to a presumption
of innocence under the basic tenets of our judicial
system—that they would not receive a fair trial or
hearing.
Santino, 257 So. 3d at 35-36.
Here, likewise, the referee concluded that “[t]he evidence
presented was clear and convincing to establish that respondent
expressly and intentionally implied that the incumbent judge
favored criminals, disfavored law enforcement, disfavored the state
attorney, and that he, as a candidate, would do differently.” As
noted in Santino, “[t]his conduct is antithetical to the conduct
expected of judicial candidates.” Id. at 29 (quoting JQC’s notice of
formal charges).
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In Santino, we also addressed the concern of “allow[ing] one
guilty of such egregious conduct to retain the benefits of those
violations and remain in office.” Id. at 36 (quoting In re Alley, 699
So. 2d 1369, 1370 (Fla. 1997)). In pondering the appropriate
discipline, we considered Judge Santino’s post-election remarks
concerning her view of the seriousness of her violations and the
discipline she anticipated would be imposed. We noted the
following exchange at a social gathering:
Santino defeated Lerman in the general election and
was sworn in as a Palm Beach County Court Judge on
January 3, 2017. She was subsequently asked at a
social gathering whether misconduct charges could
possibly lead to her removal. According to the individual
who asked the question, Santino responded to the
following effect: “No. I think it . . . won’t rise to that. It
will be probably a fine. It’s not a big deal.”
Santino, 257 So. 3d at 32.
Given that expectation, the Investigative Panel of the JQC
contrasted Santino’s remorseful and apologetic response to the
JQC’s Notice of Investigation, and again in her sworn testimony
before the Investigative Panel, with the following allegation:
[I]t is difficult to escape the conclusion that you and your
campaign consultants employed a “win-at-all-costs,” and
pay the fine later strategy. This conduct is antithetical to
the conduct expected of judicial candidates.
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Id. at 29 (quoting notice of formal charges). This Court
emphatically rejected such campaign tactics and expressed the
following sentiments:
We refuse to endorse a “win-at-all-costs-and-pay-the-
fine-later” strategy, especially in light of our past
warnings and stated intolerance for the kinds of
campaign violations at issue here. By her own
admission, had we imposed a fine as a sanction, it would
confirm that Santino’s violations were “not a big deal.”
Moreover, if this Court imposed a suspension, it would
send a message to all attorneys campaigning for judicial
office that they may commit egregious violations of Canon
7 during their campaigns and if they win, a suspension
or a fine or both will be the only result. They will be
allowed to reap the benefit of their misconduct by
continuing to serve the citizens of this state. This we
cannot condone.
Id. at 36.
Here, unlike Santino where the candidates ran for an open
judicial seat, Respondent ran against a sitting judge. As noted
earlier, Respondent’s campaign employed similar “win-at-all-costs-
and-pay-the-fine-later” tactics to those employed in Santino.
Respondent expressly and intentionally implied that his opponent
favored criminals, disfavored law enforcement, disfavored the state
attorney, and that he would do differently.
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Despite Respondent’s egregious conduct and serious violations
of numerous Rules Regulating the Florida Bar and several sections
of Canon 7 of the Florida Code of Judicial Conduct, the majority
accepts the referee’s recommendation and imposes a mere
reprimand as a sanction. In doing so, the majority offers the
following warning:
However, we write to place future candidates for
judicial office on notice that this Court takes
misrepresentations that cast a sitting judge in a false
light seriously because of their potential to undermine
confidence in the rule of law. With respect to candidates
who have won judicial elections using similar
misrepresentations, and related campaign-related
misconduct, we have removed the newly elected judge
from office. See, e.g., In re Santino, 257 So. 3d 25 (Fla.
2018); In re Renke, 933 So. 2d 482 (Fla. 2006); In re
McMillan, 797 So. 2d 560 (Fla. 2001).
Majority op. at 4.
Unfortunately, in situations such as in Santino where the
candidate who utilizes the “win-at-all-costs-and-pay-the-fine-later”
tactics actually wins the election, a lengthy suspension, even
without pay, may be viewed as worth the prize of a guaranteed
commission for a six-year term in office. See, e.g., In re McMillan,
797 So. 2d 560, 573 (Fla. 2001) (noting the risk of sending the
“wrong message to future candidates; that is, the end justifies the
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means and, thus, all is fair so long as the candidate wins”). After
all, once the suspension period ends, the judge will still have the
remainder of the term in office to enjoy and can seek reelection
thereafter. Thus, given the magnitude of the prize to be won, the
majority’s warning may not, unfortunately, serve as much of a
deterrent.
Here, because Respondent did not take office, the question of
removal or suspension from office is not an issue. The only
question is the appropriate Bar discipline to be imposed. Given the
similarities of Respondent’s actions to those in Santino, his Bar
discipline should be a suspension from the practice of law for at
least sixty days, in addition to a public reprimand to be
administered by The Florida Bar. While, as noted above, a
suspension may not deter such behavior in some cases in the
future, it will, however, serve as a stronger message that this Court
will not tolerate the “end justifies the means” approach utilized by
Respondent in this case.
I respectfully dissent.
Original Proceeding – The Florida Bar
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Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff
Counsel, Tallahassee, Florida, and Laura N. Gryb, Bar Counsel, The
Florida Bar, Orlando, Florida,
for Complainant
Scott Kevork Tozian of Smith, Tozian, Daniel & Davis, P.A., Tampa,
Florida,
for Respondent
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