Inquiry Concerning a Judge, No. 11-550 Re Judith W. HAWKINS , 39 Fla. L. Weekly Supp. 652 ( 2014 )

Supreme Court of Florida
____________
No. SC12-2495
____________
INQUIRY CONCERNING A JUDGE, NO. 11-550
RE: JUDITH W. HAWKINS
[October 30, 2014]
PER CURIAM.
In this case 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 art. V, § 12, Fla. Const. The Hearing Panel recommended
serious sanctions short of removal, but our constitutional responsibility requires
this Court to determine the appropriate sanction. See In re Sloop, 946 So. 2d 1046,
1049 (Fla. 2006). Article V, section 12(c)(1), of the Florida Constitution confers
on this Court the authority to “accept, reject, or modify in whole or in part the
findings, conclusions, and recommendations of the commission and . . . order that
the justice or judge be subjected to appropriate discipline, or be removed from
office.” We undertake this responsibility with caution and restraint, keeping in
mind, however, the utmost importance of maintaining the integrity of the justice
system. See In re Henson, 913 So. 2d 579, 593 (Fla. 2005). “Although this Court
gives the findings and recommendations of the JQC great weight, the ultimate
power and responsibility in making a determination to discipline a judge rests with
this Court.” In re Turner, 76 So. 3d 898, 907 (Fla. 2011) (quoting In re Colodny,
51 So. 3d 430, 431 (Fla. 2010)). Thus, in the final analysis, we must impose such
sanction as this Court determines is appropriate and required under the specific
circumstances of each case including, when necessary, removal from the bench.
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
-2-
County. A Notice of Amended Formal Charges, adding additional charges arising
from Judge Hawkins’ conduct during the investigation, was filed on June 10, 2013.
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 article V, section 13, of the Florida Constitution. Article V, section 13,
provides in pertinent part that all judges “shall devote full time to their judicial
duties.” The charges comprised five categories: I. use of judicial office to promote
a private business, Gaza Road Ministries, in which Judge Hawkins was a speaker
and a writer, having written and published a book titled “Old Stories, New
Insights” based on biblical stories; II. failure to respect and comply with the law;
III. failure to act in a manner promoting public confidence in the judiciary;
IV. failure to devote full attention to her judicial office; and V. lack of candor with
the Judicial Qualifications Commission (the Commission).
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
-3-
lawyers appearing there; (2) selling and offering to sell those products in the
courthouse to persons over whom she had disparate influence and authority;
(3) offering to sell the products to attorneys appearing before her in chambers on
court business; (4) promoting the sale of the products on a website in which she
appeared in photographs wearing her judicial robes; and (5) knowingly using her
judicial assistant to produce and promote the sale of Gaza Road Ministries
products during working hours.
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
-4-
defendant to contact one of three lawyers and tell them Judge Hawkins sent her.
Count III(B) alleged that Judge Hawkins was observed openly reading magazines
when presiding over jury trials and, when doing so, was inattentive to objections
by counsel. Count IV(A) alleged that Judge Hawkins failed to devote full attention
to her judicial office by using what she viewed as “free time” in judicial chambers
to conduct her for-profit business and to schedule business appointments. Count
IV(B) alleged that Judge Hawkins was often absent, resulting in disruption to those
who appeared before her.
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
-5-
forensic computer expert with regard to the existence of flash drives1 that were
ordered produced by a Commission subpoena and by order of the Hearing Panel
chair, Judge Paul L. Backman, and that she refused to turn over flash drives listed
in the order. Count V(A)(4) alleged that without any legal basis Judge Hawkins
refused to turn over financial data ordered by Judge Backman. Count V(A)(5)
alleged that Judge Hawkins misled the Commission with regard to payments made
to her judicial assistant. Count V(B) alleged that Judge Hawkins’ responses to the
Commission at the “rule 6(b) hearing,”2 at her deposition, and in response to
discovery requests created a pattern of conduct demonstrating refusal to comply
with lawful authority, misleading by incompleteness, and lacking the candor
expected of a judicial officer.
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
1. Flash drives, also referred to as jump drives or thumb drives, are
electronic data storage devices that are plugged into a USB port on a computer and
often used to transfer files from one computer to another.
2. Under Rule 6(b), Investigative Panel Rules, Judicial Qualifications
Commission Rule, the judge has a right to be present or to be heard during an
investigation prior to the Investigative Panel determining that probable cause exists
to initiate formal charges. A second rule 6(b) hearing was held prior to issuance of
the Notice of Amended Formal Charges.
-6-
whom she held disparate authority. She also admitted that her Gaza Road
Ministries website contained photographs of her wearing a judicial robe, but
denied that it was done to promote her private interest. In her response to the
charges, Judge Hawkins asserted that she created and edited the Gaza Road
Ministries materials on her own time using her own equipment, and that her
judicial assistant did not work on the book during working hours at work. Judge
Hawkins denied that her participation in Gaza Road Ministries was ever to the
detriment of prompt and efficient administration of justice. Finally, she contended
that Gaza Road Ministries has enhanced and improved her judicial performance.
In response to the Notice of Amended Formal Charges, Judge Hawkins denied
knowingly using her judicial assistant to help produce and promote the sale of
Gaza Road Ministries products during working hours, and denied that she misled
the Commission concerning payments made to her judicial assistant. Judge
Hawkins denied using court resources in the operation of her business, and
contended that any such use was de minimis. She also denied that involvement
with her business has caused her to devote less than full time to her judicial duties.
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 re-elected ever since. She has served in all divisions of
county court, which include traffic, misdemeanor, civil and administrative. She
-7-
serves with four other county court judges and handles one-fifth of the docket. In
2008, she wrote a self-published book and in the fall of 2010, started Gaza Road
Ministries as an additional source of income for charitable works. As the Hearing
Panel noted, Judge Hawkins has dedicated her life to public service and has been
actively involved in the community and in charitable works.
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 relationship 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
-8-
persons to whom Gaza Road Ministries products were sold, financial records
reflecting the income and expenses of the business, records reflecting income,
gifts, or loans given by Judge Hawkins to her judicial assistant, and tax schedules
and forms. In answer to the subpoena, Judge Hawkins agreed to produce the Gaza
Road Ministries e-mails and dedicated laptop, IRS 1099 forms issued to her
judicial assistant, and her official calendars. Judge Hawkins responded that she
had not deleted any materials on her personal dedicated laptop other than
Commission pleadings and work product, and asserted that she had made no loans
to her judicial assistant. Judge Hawkins stated that she was unable to respond
regarding any gifts, and that income paid to her judicial assistant would be
reflected on the 1099 forms.
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
-9-
the deposition, she admitted that she received approximately $13,500 in income
from the business but refused to provide any records. She also admitted that Gaza
Road Ministries was a fictitious name that was not registered as such. When asked
if she thought that having her photograph on her business website depicting her
wearing her judicial robe was improper, Judge Hawkins stated, “I will not answer
that question.”
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
3. The amount, shown on copies of checks written on the Gaza Road
Ministries account to Judge Hawkins’ judicial assistant, was actually $42.49 or
$42.50.
4. Judge Hawkins explained that she believed it was extremely important
for her judicial assistant to establish this retirement account and thus gave her
monthly sums to enable her to do so.
- 10 -
After the deposition, the Judicial Qualifications Commission obtained an
order preventing the further destruction of evidence and an order compelling
production of documents that had previously been requested in the “Florida
Judicial Qualifications Commission’s Request for Production of Documents to
Judge Judith Hawkins.” In addition to the subpoena duces tecum for deposition,
the Commission requested her to produce a number of documents and records
related to the business.5 Judge Hawkins responded to the request for production by
refusing to produce personal e-mails related to Gaza Road Ministries and refusing
to produce her personal computer, portable hard drives, flash drives, or electronic
storage devices containing records of her business. She objected to producing tax
returns, 1099 forms, or any financial information, contending that they exceeded
the scope of the investigation. She also refused to produce a list of persons to
whom her book was sold. The Commission later filed a second motion to compel
when Judge Hawkins failed to produce all the documents required to be produced
5. The requested documents included e-mails between Judge Hawkins and
her judicial assistant on the Leon County Courthouse work computer concerning
Gaza Road Ministries; personal e-mails between Judge Hawkins and her judicial
assistant concerning the publications and scheduling of non-court travel and
private appearances related to the business; portable computer hard drives or flash
drives concerned with the business; a record of business-related materials that were
deleted from the work computer or the private computer or storage device; tax
forms related to the business or the judicial assistant’s services to the business;
financial records reflecting income, loans, or gifts to the judicial assistant; and a
list of persons to whom the business publications were sold.
- 11 -
under the first order to compel. The motion alleged that Judge Hawkins would not
produce materials evidencing operation of her business, the identity of those to
whom she sold her materials in the courthouse, materials showing her scheduling,
and records pertaining to her business and her publications which were deleted
from her private computer, and certain other records and electronic storage devices
that had been connected to her computers. Judge Hawkins ultimately produced her
computers and other documents for inspection.
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.
- 12 -
Based on the deletion of the financial files from her laptop, the Commission
entered an order to prohibit any further destruction of evidence and, after a hearing
on the second motion to compel, the Hearing Panel Chairman ordered Judge
Hawkins to turn over a list of flash drives and other documents. She produced a
number of flash drives and an external hard drive, as well as a list of purchasers of
her book and Gaza Road Ministries financial records for 2012 and 2013, but not
those for 2010 and 2011.
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
- 13 -
persons over whom she had disparate influence and authority, including lawyers
who appeared before her and various courthouse employees. The Hearing Panel
found Judge Hawkins guilty of promoting the sale of Gaza Road Ministries
products on a website that included photographs of her in her judicial robes, and
guilty of knowingly using her judicial assistant to promote and produce the Gaza
Road Ministries products during working hours.
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
assistance 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.
- 14 -
The Hearing Panel found Judge Hawkins guilty of violations alleged in
Count III that she was openly observed reading magazines, which Judge Hawkins
later characterized as legal materials, during court proceedings and covering up her
inattentiveness by asking counsel to rephrase the question. Judge Hawkins was
found not guilty of the charge that her actions in advising a defendant, who was
about to enter a plea, to contact one of three named lawyers and tell them “Judge
Hawkins sent you” failed to promote public confidence in the judiciary.
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
- 15 -
Panel in her appearance before the Panel and her subsequent deposition concerning
her efforts to keep her private business separate from her judicial duties;
misleading the Commission investigator and its forensic computer expert with
regard to flash drives that were ordered produced; refusing to turn over financial
data required by the Hearing Panel Chair’s order when requested; and misleading
the Investigative Panel with regard to payments made to her judicial assistant, and
only admitting to such payments after her deposition. Also as to Count V, the
Hearing Panel found Judge Hawkins guilty of providing responses at the 6(b)
hearing, her deposition, and in response to discovery that created a pattern of
conduct demonstrating a refusal to comply with lawful authority and lacking the
candor expected of a judge. She was found guilty of obstructive behavior,
untruthful answers, and attempts to repeatedly frustrate and obfuscate discovery,
reflecting an intentional disregard for the rules of procedure applicable to this
action.
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
- 16 -
Hearing Panel found that the business was established for mainly charitable
purposes. Judge Hawkins explained that she was excited about the publication of
her book and talked about it at the courthouse. At the hearing held before the
Hearing Panel, two assistant public defenders testified that once in her chambers to
discuss a plea, Judge Hawkins was signing copies of her book and showed it to the
attorneys, making it clear that the book was for sale. A supervisor in the Clerk’s
Office testified that Judge Hawkins came into the Clerk’s Office carrying some
books and told others in the office that the books were for sale. A receptionist and
administrative assistant in the courthouse testified that Judge Hawkins sat down by
her desk and, in the course of the conversation, mentioned that she had written a
book. The receptionist was a passing acquaintance of the judge and bought the
book because she was interested in the subject.
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.
- 17 -
The Commission investigator, Al Beiner, testified about the Gaza Road
Ministries website where Judge Hawkins appeared in photographs wearing her
judicial robe and where she mentioned her position as a Leon County judge. The
books, study guides, tracts, and souvenirs shown on the website linked to an order
page for the business products.
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
- 18 -
Hawkins deleted data from her Quicken program, reducing the data in the program
to “nothing,” and that she told him she did not have any flash drives.6 Further
examination of the computers showed that numerous flash drives had been inserted
into the computer in the past. The Commission investigator testified that after
orders to compel, Judge Hawkins produced a total of nineteen flash drives for
inspection.
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
6. Even though Judge Hawkins denied that she told Yu she did not have any
flash drives, the Hearing Panel stated that it found the testimony of Yu and Beiner
more credible on this subject.
- 19 -
Revenue sales tax for the years 2012 and 2013. It is also undisputed that Judge
Hawkins failed to register her unincorporated business name under the Florida
Fictitious Name Act, section 865.09, Florida Statutes, although she later did so.
When asked at her deposition about her failure to register the fictitious name, she
responded that she hoped she did not need to but “[i]f I do, oops, I haven’t.”
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
- 20 -
portions as “inaudible due to Judge’s mike being turned away,” and that when
advised of this problem, Judge Hawkins explained she did so to avoid the sound of
magazine pages being turned. The Hearing Panel found these facts but rejected the
assertion that she went off the record in order to defeat appellate review.
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]
- 21 -
had a birthday party.” She also told the Investigative Panel that she kept a fairly
meticulous list of purchasers. These assertions were shown to be erroneous by
evidence at the later evidentiary hearing that persons who were merely courthouse
acquaintances had purchased the book at the courthouse, and that the list she
ultimately provided—after first refusing to disclose it—included some purchasers
by first name only, and Judge Hawkins did not always know their full names.
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.
- 22 -
CONCLUSIONS OF LAW OF THE HEARING PANEL
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 Florida Fictitious Name Act. The Hearing Panel concluded these same Canons
were also violated by Judge Hawkins’ conduct in repeatedly evading and
- 23 -
frustrating discovery, deleting subpoenaed records, misleading the Investigative
Panel and the Commission investigator, and refusing to turn over financial data and
flash drives when ordered by the Hearing Panel. The Hearing Panel also
concluded this conduct demonstrated a lack of candor required of judges.
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
three-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
- 24 -
Panel, and our own determination of the appropriate and necessary sanction in this
case.
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
- 25 -
serve as an impartial judicial officer.” In re McMillan, 797 So. 2d 560, 571 (Fla.
2001) (citing In re Kelly, 238 So. 2d 565, 569 (Fla. 1970)). In making this
determination, judges should be held to higher ethical standards than lawyers “by
virtue of their position in the judiciary and the impact of their conduct on public
confidence in an impartial justice system.” Id. Where “the judge’s conduct is
fundamentally inconsistent with the responsibilities of judicial office,” removal
may be the only appropriate sanction. See id. (quoting In re Graziano, 696 So. 2d
at 753).
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
- 26 -
“one way or the other” about telling her judicial assistant not to work on Gaza
Road Ministries business in the courthouse.
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 books 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.
- 27 -
Pursuant to subpoena, 205 e-mails were found on court computers between
Judge Hawkins, her judicial assistant, and persons interested in the Gaza Road
Ministries materials or services. An analysis of other Gaza Road Ministries
e-mails disclosed that a significant percentage of those e-mails were sent or
received during work hours. Judge Hawkins testified that she might have been at
home when many of the e-mails were written because if she had no hearings and
her calendar was clear, she would usually stay home and not go into the office for
part of the day. Based on this evidence, the Commission correctly found that
Judge Hawkins thought her time was her own during the workday. Her conduct in
this regard showed that Judge Hawkins devoted less than full time to her judicial
duties.
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 sale of her books and had not registered her business under
- 28 -
the fictitious name statute, section 865.09, Florida Statutes (2013), which
constitutes a second-degree misdemeanor.
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 Judge 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
- 29 -
convincing proof of Judge Hawkins’ extreme lack of candor in these proceedings.7
This act alone violated the basic requirement of Canon 1 that a judge “shall
personally observe those high standards [of conduct] so that the integrity and
independence of the judiciary may be preserved.” This act alone was a serious
violation of Canon 2A that a judge “shall respect and comply with the law.”
Compliance with the law includes compliance with the rules of procedure that
govern this proceeding and with the lawful orders of the Investigative Panel and
the Hearing Panel. Noncompliance, obfuscation, and avoidance of those rules and
orders are not justified by a judge regardless of whether the judge personally
believes the investigation is unwarranted.
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.”
7. We have explained that lack of candor may be the basis for discipline
only where the lack of candor is formally charged, the Commission makes
particularized findings on specific points in the record concerning lack of candor,
and the lack of candor is knowing and willful. See In re McAllister, 646 So. 2d
173, 177 n.2 (Fla. 1994) (citing the three-prong test set forth in In re Davey, 645
So. 2d 398, 405 (Fla. 1994)). This three-prong test was met in this case.
- 30 -
Judge Hawkins called the request for production of the documents a fishing
expedition, although she ultimately provided the purchaser information in the form
that she kept it, which did not always include last names, after motions and orders
to compel. The record establishes by clear and convincing evidence that Judge
Hawkins sought to frustrate the discovery of materials relevant to the investigation,
which were subpoenaed or the subject of a request for production, and which were
ordered to be produced pursuant to two motions to compel.
We consider a judge’s deceit or dishonesty to be a very serious 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.
- 31 -
In the case of In re Henson, 913 So. 2d at 587, we also noted that deception
or deceit are important factors bearing on a judge’s fitness because “[t]he judicial
system can only function if the public is able to place its trust in judicial officers.”
Id. (quoting In re Ford-Kaus, 730 So. 2d at 277). Removal is an appropriate
discipline where the actions of the judge simply “should erode confidence in the
judiciary,” even where it does not appear that the public has lost confidence, and
even where the Hearing Panel has recommended a lesser sanction than removal. In
re Sloop, 946 So. 2d at 1055 (quoting In re LaMotte, 341 So. 2d 513, 518 (Fla.
1977)). In In re LaMotte, this Court removed the judge based on his use of a state-
issued credit card for personal trips, even though the judge testified that he thought
the personal charges would be deducted from his salary and he made restitution,
and in spite of ample good character testimony. 341 So. 2d at 518.
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
- 32 -
record, such as the case of In re Henson. There, we stated, “We have previously
removed judges despite strong character evidence or an unblemished judicial
record when their misconduct was fundamentally inconsistent with the
responsibilities of judicial office or struck at the heart of judicial integrity.” 913
So. 2d at 593. We explained that “Judge Henson’s trustworthiness, competence,
and strong work ethic both as an attorney and judge, cannot overcome the grievous
nature of the violations.” Id. at 592-93.8
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
8. The cases cited by Judge Hawkins in her response to our second order to
show cause are inapposite, in that they did not involve a series of violations or a
lengthy investigation thwarted by obfuscation and frustration of discovery of
relevant investigatory materials ordered produced by the Judicial Qualifications
Commission.
- 33 -
materials, even after issuance of an order to compel. In defending her conduct,
Judge Hawkins asserted that her faith instructed her to hold fast to her innocence
and “fight the good fight.” We agree with the Commission that obfuscation and
frustration of proper discovery, and refusal to answer questions posed by the
Investigative Panel, Judicial Qualifications Commission counsel, the Investigator,
and the Hearing Panel, do not constitute fighting the “good fight.” The Canons
require a judge to personally observe high standards of conduct so that the integrity
of the judicial system may be observed. See Canon 1, Code of Judicial Conduct.
The Canons also require a judge to comply with the law. See Canon 2A, Code of
Judicial Conduct. These Canons were violated by Judge Hawkins’ conduct in this
case.
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.”
- 34 -
While this statement extends an apology, albeit a belated one given only when
faced with the possibility of removal, it fails to accept responsibility for her actions
or acknowledge their impropriety. Further, Judge Hawkins’ apology fails to
overcome the grievous nature of her conduct during this proceeding, which was
“fundamentally inconsistent with the responsibilities of judicial office” and which
“struck at the heart of judicial integrity.” In re Henson, 913 So. 2d at 593.
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.” Art. V, § 12(c)(1), Fla. Const.;
see also In re Albritton, 940 So. 2d 1083, 1088 (Fla. 2006). We must gauge Judge
Hawkins’ present fitness to hold office in light of the cumulative nature and
seriousness of the violations proven in this case. See, e.g., In re Henson, 913 So.
2d at 593. When we do so, we conclude that Judge Hawkins’ conduct is
fundamentally inconsistent with the responsibilities of judicial office,
demonstrating present unfitness to hold office, and that removal is the only
appropriate sanction in this case.
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
- 35 -
severe sanction that we impose today. Accordingly, we hereby remove Leon
County Judge Judith W. Hawkins from the office of county judge, effective when
this decision becomes final. It is our hope that this decision will serve as a
reminder to judges of their continuing obligation to personally observe the high
standards of conduct mandated by the Code of Judicial Conduct, and to conduct
themselves in all things in a manner that will demonstrate candor and preserve the
integrity and independence of the judiciary.
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
- 36 -