Inquiry Concerning a Judge No. 16-377 Re: Scott C. DuPont

Supreme Court of Florida
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No. SC16-2103
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INQUIRY CONCERNING A JUDGE, NO. 16-377
RE: SCOTT C. DUPONT
September 6, 2018
PER CURIAM.
We have for review the recommendation of the Florida Judicial
Qualifications Commission (JQC) that Judge Scott C. DuPont of the Seventh
Judicial Circuit be removed from office for violations of the Code of Judicial
Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. We previously
entered an order in this case approving the JQC’s recommendation of removal and
removing Judge DuPont from office. See In re DuPont, No. SC16-2103, 2018 WL
3153686 (Fla. June 25, 2018). This opinion follows.
I. BACKGROUND
Judge DuPont was elected to the Seventh Circuit bench in 2010. At the
time, he was thirty-eight years old and had six years of legal experience.
A. Charges
On November 23, 2016, the JQC filed a Notice of Formal Charges against
Judge DuPont. An Amended Notice of Formal Charges was filed on August 16,
2017. The amended notice alleged, in relevant part, the following violations of
canons 1, 2A, 3A, 3B2, and 7A,1 of the Code of Judicial Conduct:
1. Canon 1 provides:
An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in establishing,
maintaining, and enforcing high standards of conduct, and shall
personally observe those standards so that the integrity and
independence of the judiciary may be preserved. The provisions of
this Code should be construed and applied to further that objective.
Canon 2A provides:
A judge shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
Canon 3A provides:
The judicial duties of a judge take precedence over all the
judge’s other activities. The judge’s judicial duties include all the
duties of the judge’s office prescribed by law. In the performance of
these duties, the specific standards set forth in the following sections
apply.
Canon 3B(2) provides:
A judge shall be faithful to the law and maintain professional
competence in it. A judge shall not be swayed by partisan interests,
public clamor, or fear of criticism.
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1. While engaged in a contested election to retain judicial
office, you had a campaign website created and maintained to assist in
your election. On the homepage of that website you had a tab devoted
to your opponent entitled, “About Judge DuPont’s Opponent.”
If a viewer clicked on that tab, it took the viewer to a page
where you posted the results of a search you obtained through an
internet website, “Instant Checkmate.” Before a search can be
conducted on the “Instant Checkmate” website, a caution notice
appeared. That notice stated in part, “Please BE CAREFUL when
conducting a search . . . .” At the bottom of this website’s initial page
the disclaimer stated, “The information available on our website may
not be 100% accurate, complete or up to date, so do not use it as a
substitute for your own due diligence, especially if you have concerns
about a person’s criminal history.”
In spite of those warnings, and instead of taking any steps to
verify the scandalous information about your opponent found on the
website, you recklessly posted the results of the search under the
heading “Do You Trust [Malcolm Anthony] to be your Circuit
Judge?” Those unsubstantiated and unverified entries included:
a. A suggestion that your opponent employed
aliases, when in fact you had no information that he did
so.
b. A suggestion that there existed “Imposter
Information” about your opponent, which implied he had
Canon 7A provides, in pertinent part:
(3) A candidate for a judicial office:
....
(e) shall not:
(i) 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; or
(ii) knowingly misrepresent the identity, qualifications, present
position or other fact concerning the candidate or an opponent[.]
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posed as an imposter. You did this with no information
that would justify the inclusion of the listing for any
other purpose than to impugn your opponent.
c. Your posting of the entries stated that your
opponent had received three parking tickets for parking
in a handicapped zone, yet you never verified whether
your opponent personally received the tickets or if it was
a third party using his vehicle. In response to the 6(b)
Notice of Investigation in this inquiry, you only produced
two such tickets. To compound the inappropriate
imputation, the heading of the entries listed “booking
dates” that suggested there was an arrest associated with
those entries, which was not accurate.
d. You posted information that stated that your
opponent’s wife had been arrested 3 times, and his
daughter had been arrested 21 times. You did nothing to
verify the accuracy of those statements and you posted
this information in spite of not even knowing the
identities of your opponent’s wife or children.
2. Your website implied that your opponent’s legal name
change was an attempt to hide his past by stating that he was
managing member of HideYourPast.com in 2013, and then stating
that he changed his legal name. Your opponent’s name change was
legally completed in 1990, but nowhere did you provide that
information.
3. At a televised candidate forum, you asserted facts about your
opponent’s driving record that were not accurate, and you did nothing
to verify the information. Rather, you relied on an e-mail from a
person working on your campaign that suggested your opponent
received a ticket for passing a school bus while it was loading or
unloading children. In response to the 6(b) Notice of Investigation in
this inquiry, you were unable to provide any documentation to
substantiate your assertions.
....
5. During the same forum, you announced your position that it
is not the role of a circuit court judge to determine whether a given
statute is unconstitutional, because that would be “legislating from the
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bench.” You further stated that you have refused to find statutes
unconstitutional and that “[i]f they don’t like the decision, they can
appeal it.” In doing so you announced your position that you would
not find any statute to be unconstitutional. Previously upon assuming
your judicial office, you had sworn under oath to uphold the
Constitution of the United States and the Florida Constitution.
6. Prior to making public the material critical of your opponent,
you were advised not to publish the material by two judges, on two
separate occasions. On one of the occasions, you were advised to be
certain of the accuracy of the information.
7. You attended a required Judicial Ethics Advisory Committee
training session at the outset of the 2016 judicial campaign. The
session specifically included instruction that compliance with the law,
the Code of Judicial Conduct, and the Election Code, were solely your
responsibility, not that of campaign managers or others.
Notwithstanding this instruction, you included in your response to the
initial 6(b) investigation hearing notice that you relied on your
campaign manager for guidance regarding the claims about your
opponent.
....
10. In May 2016, you presided over first appearance hearings
in Putnam County during the extended Memorial Day weekend. Your
judicial assistant circulated e-mails to court personnel advising that,
for the three-day holiday period, first appearance hearings would
commence at 7:00 a.m. on Saturday, 7:00 a.m. on Sunday and 6:30
a.m. on Monday. Your judicial assistant apologized in an e-mail to
court personnel, explaining that Judge DuPont had “27 places to be in
(4) counties over these (3) days or the early times would not be
necessary.”
You were at the time campaigning for reelection inasmuch as
your opponent had announced his intention to run against you for your
circuit seat a month earlier.
On Saturday, May 28, you conducted the first appearance
hearings at 6:30 a.m. instead of 7:00 a.m. as your judicial assistant had
advised. When you conducted the hearings, there were no lawyers
present for either the State of Florida or the Public Defender’s Office.
You proceeded to handle all matters that morning without counsel.
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You significantly increased the bonds of some defendants without
counsel.
....
12. In 2011, you served over the family law division in Putnam
County. A party appeared before you and asserted an inability to pay
support. You ordered the deputy sheriff to search the individual to
determine if there was anything of value on his person, and directed
that the deputy seize the money that was in his possession.
Judge DuPont responded to the amended notice. As to paragraphs 1-3 and 5,
Judge DuPont admitted that he was “careless” in not personally confirming the
accuracy and source of the information he disseminated about his opponent,
Malcolm Anthony, and the Anthony family but stated that he would show that he
acted “in good faith, with the belief that the information was accurate.” As to
paragraphs 6 and 7, Judge DuPont denied the allegations as framed and stated that
he “at all times believed the information published was accurate” and “acted in
good faith.” As to paragraph 10, Judge DuPont denied the allegations as framed.
He admitted that he started the first appearance hearings on Saturday, May 28,
2016, early but stated that “is common over a holiday weekend,” he conducted the
hearing appropriately “within his judicial discretion,” that only two bonds were
raised, and that he appointed the public defender to represent those charged. As to
paragraph 12, Judge DuPont denied the allegations as framed but admitted “that he
enlisted the assistance of the deputy in divesting the party of assets in his
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possession” and stated that he was attempting to ensure that the party complied
with the law and precedent relating to his obligation to support his family.
B. Findings of the JQC
After an evidentiary hearing before the JQC’s Hearing Panel, the JQC issued
its findings and recommendation of discipline on February 15, 2018.
2011 Family Court Hearing
In April 2011, approximately four months into his first term, Judge DuPont
presided over a hearing involving support of a minor child. When Judge DuPont
questioned the absence of a certificate for successful completion of a parenting
class, the husband explained that he did not take the class because he lacked the
necessary funds. Judge DuPont then ordered his bailiff to search the husband for
money. The search yielded $180, which the man claimed he was holding for
someone else. Judge DuPont immediately turned the $180 over to the wife,
ordering it credited to outstanding child support.
The court-ordered search was reported by law enforcement officers to Judge
Terrill J. LaRue, then administrative judge for the Seventh Circuit. Judge LaRue
thought that Judge DuPont had simply made a rookie mistake. He explained to
Judge DuPont that he had employed “a very poor procedure” which should not be
used again. Judge LaRue was taken aback when Judge DuPont insisted, “I can do
that” and “we do that all the time in St. Johns County.”
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Judge DuPont testified before the panel that he had directed several such
searches previously, but never did so again after this incident. He stated that in
ordering such a search, he was acting in the best interest of children who are in
need of support.
The JQC found Judge DuPont guilty of this charge, found in paragraph 12 of
the amended notice.
Dissemination of False and Misleading Information About the Anthonys
In 2015, Judge DuPont qualified for a second judicial term. In preparation
for his campaign, Judge DuPont certified that he had “received, read, and
unders[tood] the requirements of the Florida Code of Judicial Conduct” and he
attended a candidate election forum held by the Judicial Ethics Advisory
Committee (JEAC). During the forum, candidates were reminded that compliance
with Florida’s Code of Judicial Conduct and Florida Statutes was the candidate’s
responsibility and that candidates could not rely on campaign managers or others
for compliance.
For the 2016 campaign, Judge DuPont hired Maureen France, an
experienced campaign consultant already in the midst of handling multiple
campaigns for other judicial candidates. According to France, Judge DuPont
sought “opposition research” on his opponent, Anthony. France recommended Bill
Tavernier, a researcher with whom she was acquainted, to conduct that research.
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France told Judge DuPont she would relay any information Tavernier discovered
but that it would be up to Judge DuPont to determine its validity. Judge DuPont
suspected that Anthony changed his name for meretricious reasons and was
running from financial problems, and he sought research on Anthony’s name
change and “different legal problems he may have had.” France emailed Tavernier
a list of topics that the judge wanted researched.
Tavernier performed two hours of research, pulling information off various
websites. Among these websites was InstantCheckmate.com, a subscription
service “originally created as a resource for online daters.” Tavernier also pulled
up “case history-type” reports from clerk of court websites. Tavernier located
Anthony’s name change but did not notice that the petition for name change was
filed by both Anthony and his wife. Tavernier searched Anthony’s name on
sunbiz.org, and found him listed as the manager of a former Florida limited
liability company, known as “Hideyourpast.com llc,” which had been
administratively dissolved three years earlier. Tavernier did not determine what
the purpose of the company had been.
In June 2016, Tavernier emailed to France documents regarding Anthony’s
name change and other documents with a note stating that “other violations were
all in Duval. St. Johns consists of speeding, school bus and again driving with an
expired tag,” all of which France promptly forwarded to Judge DuPont. Tavernier
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admitted that his “research” was cursory at best and not vetted. He testified that he
was not requested to and did not pull underlying documentation. His reference to a
school bus in his email to France may have been “meant for someone else” since
he was working on several projects simultaneously.
The 1990 petition for name change filed by Malcolm Anthony Neundorfer,
was joined in by his wife, Andrea Lynette Neundorfer. Evidence adduced from
Andrea Anthony reflected there was nothing nefarious about this name change,
which dropped the difficult to pronounce Neundorfer, in favor of Anthony’s then
middle name. Hideyourpast.com was an internet business created as part of
Anthony’s law practice, which processed information for persons eligible to have
criminal records sealed or expunged.
Judge DuPont did nothing to verify the information provided by Tavernier.
He testified that he relied on France and Tavernier to determine its accuracy and
that France confirmed its accuracy multiple times. France attested to the opposite;
she made it clear to Judge DuPont when she was hired that she “wasn’t really
going to be involved” and would simply pass on research for the judge’s review
and decision. She testified that Judge DuPont never questioned, and she never
confirmed, the accuracy of the information she relayed to him.
In July 2016, Judge DuPont filled out a League of Women Voters
questionnaire, and asked France to review his following proposed response:
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Character, Honesty, Integrity, Common Sense, and Experience
distinguishes me from my opponent, Malcolm Anthony. I have
brought to the bench and maintained the highest morals, values, and
ethical standards. My opponent, Malcolm Anthony, has been ticketed
twice for parking in handicapped parking without a permit, he has
been ticketed once for speeding in a school zone, and he has been
ticketed once for passing a school bus while it was loading children.
He is a current member of www.hideyourpast.com, which is a website
that you join to hide your personal history, he has changed his legal
name . . . .
France asked Judge DuPont if he was sure that he wanted to include
specifics in his response, since, she said, “I don’t know that we know the specifics
for example if the school bus had children on it, etc.” France also tried to talk
Judge DuPont out of posting materials she forwarded from Tavernier on his
campaign website, concerned that use of unvetted materials could get them all in
trouble. France tried to dissuade Judge DuPont from using these materials “many
times.” After discussions with the designer of the campaign website, France took
the step of requesting that Judge DuPont execute a “hold harmless” agreement
protecting her and the web designer. The agreement provided that the DuPont
campaign “shall fully defend, indemnify, and hold harmless” France and the web
designer “from any and all claims, lawsuits, demands, causes of action, liability,
loss, damages and/or injury, of any kind whatsoever.” Judge DuPont insisted that
the information be posted on the website but refused to sign the agreement.
Judge DuPont also discussed the negative information about Anthony with
two other judges before he posted it on the website. Judge McGillin cautioned
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Judge DuPont that “you need to be very, very sure of the information that you have
before you use it.” Judge DuPont told Judge Foxman that he possessed
information reflecting that Anthony had numerous traffic issues, including
“citations for parking in a handicapped zone, something to do with a school bus
moving violation,” and that Anthony had changed his name and was “somehow
affiliated with a website that would conceal your identity or your past.” Judge
Foxman advised Judge DuPont that the use of such materials was “unnecessary” in
his opinion because Judge DuPont was winning handily. But when it became
readily apparent that he was not going to be able to talk Judge DuPont out of using
the materials, Judge Foxman warned Judge DuPont to make sure the information
“was both true and accurate.” Judge DuPont responded that “his campaign
people . . . were experienced at this.” Judge DuPont testified that during several
conversations he and Judge Foxman had about the campaign, Judge Foxman
“never told me not to use it” and “there came a time where he indicated that he
doesn’t see how I can’t use it.” Judge Foxman testified that this was “not true,”
and he said nothing remotely close to that during their discussions.
In late July 2016, Judge DuPont’s campaign website went up with a picture
of Anthony under the caption “About Judge DuPont’s Opponent.” To the right of
the photograph, appeared the following statements:
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 HideYourPast.com Managing Member 2013, with an asterisk
noting, “All information obtained from public records and
websites,”
 Changed his Legal Name SCROLL TO PAGE 4 BELOW
To the right of the picture, immediately below these statements, bold print queried,
“Do You Trust Malcolm Anthony to be your Circuit Court Judge?” Judge
DuPont’s campaign website listed “imposter information,” suggesting Anthony
was using “aliases.” It connected Anthony’s name change to
“HideYourPast.com,” insinuating that Anthony had secrets in his past that he
sought to conceal. It indicated that Anthony had received three parking tickets for
parking in a handicapped zone, with associated “booking dates,” suggesting arrests
when there were none. As “Possible Matching Arrest Records for Family/Known
Associate,” the website listed three arrest records for Andrea Anthony and twenty-
one arrest records for Elizabeth Anthony, the candidate’s then-twenty-one-year-old
daughter. Neither had ever been arrested. Elizabeth is a second lieutenant serving
with the Army Corps Reserves, and, at the time the information was posted on
Judge DuPont’s campaign website, was enrolled in veterinary school in
Gainesville, Florida.
Judge DuPont admitted only to “mistakes” and “carelessness,” and denied
violating the judicial canons, including canon 7, on the basis that he did not
“knowingly” or intentionally disseminate false information. He claimed he relied
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on France and Tavernier for the accuracy of the information. The panel concluded
that it is impossible to reconcile Judge DuPont’s testimony with the testimony of
other witnesses, documentary evidence, and his own admissions. The panel found
that the timing and content of emails between Judge DuPont and France supported
France’s account that the judge knew she was not going to be vetting any of the
research provided, that it lacked detail, and that it should not be used. The panel
concluded that Judge DuPont’s explanation why he did not sign the “hold
harmless” agreement, which was because he had “no idea” why France’s name
appeared on the agreement and she was unable to explain, defies logic and
common sense. The panel found that Judge DuPont clearly knew that France and
the web designer requested the agreement’s execution to protect them from the
repercussions of his decision to publish the unvetted information about Anthony.
Judge DuPont also ignored the warnings of Judges McGillin and Foxman and
decided to post unvetted information impugning Anthony, and his wife and
daughter, despite certifying that he understood the judicial canons, attending the
JEAC seminar, and receiving multiple warnings from his own campaign manager
and two judicial colleagues.
The JQC found Judge DuPont guilty of the allegations found in paragraphs
1-3 and 5-8 of the amended notice.
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The Televised Candidate Forum
A televised judicial candidate forum for the Seventh Circuit was held on
July 26, 2016. Judge DuPont, Anthony, and Judge McGillin all participated in the
forum. The moderator first asked the candidates, “Why should voters support you
rather than your opponent?” Anthony responded by recounting his thirty-three
years of experience practicing law “in every conceivable field,” teaching law at
two universities and police academies, his experience as a prosecutor and special
prosecutor, and his “AV preeminent” rating by Martindale Hubbell for legal ability
and ethics. He invited the public to compare his resume with Judge DuPont’s.
Judge DuPont took the microphone immediately thereafter, responding:
Thank you very much. Let’s talk about the facts.
Fact one: I’ve presided over 30,000 cases since I’ve been serving as
your circuit court judge, my opponent has presided over zero.
Fact number two: I have maintained the highest ethical, moral, and
value standards on the bench as I have been serving as your circuit
court judge.
Fact number three: My opponent has been ticketed twice for parking
in handicapped parking without a permit.
Fact number four: My opponent has been ticketed once for speeding
in a school zone.
Fact number five: My opponent has been ticketed for passing a school
bus while it was stopped and loading children.
Fact number six: My opponent has changed his legal name.
Fact number seven: My opponent is a current member of
www.hideyourpast.com. That’s H-I-D-E-Y-O-U-R-P-A-S-T dot com.
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And for those of you who don’t know what that is, it’s a website you
join to hide your personal history.
....
Those are the facts ladies and gentlemen. Thank you.
Later, the moderator asked each candidate to describe their judicial
philosophy substantively. Judge DuPont responded:
Thank you very much. I know that this sounds cliché, but-uh,
my philosophy is to not legislate from the bench.
I don’t believe that the Constitution is living and breathing.
And I don’t believe that it evolves on its own. I believe that our
founders knew exactly what they were doing when they created it—
and that they created a mechanism whereby it can be changed.
And to be quite honest with you, uh, there have been numerous
[sic] where I have actually been asked by attorneys to find that [a]
statute is unconstitutional. I have refused to do that, because my
thought process is there’s another way to do that.
If they don’t like the decision they can appeal it, and it can start
going up the food chain to do it that way.
But even though I’ve been asked to find a statute
unconstitutional as a sitting judge, I have refused to do so. Because
again, it’s not my job to legislate from the bench.
During closing argument, Judge DuPont stated,
[T]he question that you have to walk away from tonight is this: Who
do you trust? Do you trust me? Or do you trust my opponent, who
again, has received two tickets for parking in handicapped without a
permit, he’s been ticketed for speeding in a school zone, he’s been
ticketed for passing a school bus without—while it was loading the
children, he’s also a current member of HideYourPast.com.
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And walk away with this: Please remember what he said.
HideYourPast.com is a website you go to erase your criminal
history.[2] He’s a member.
The panel concluded that Judge DuPont never had a single public record
reflecting that Anthony was ticketed for speeding in a school zone or for passing a
school bus while it was loading children. Judge DuPont later attributed this charge
to information provided by France via phone, but he claimed that he “didn’t
remember” France’s emailed warning against using such unknown specifics.
After the televised judicial forum, Judge McGillin became concerned that
“there was something terribly wrong” and he might have just witnessed ethics
violations. Judge McGillan ran Anthony’s name through the Duval County
Clerk’s CORE record system (at “attorney access” level3), and although multiple
violations of parking in handicapped spaces popped up, the underlying documents
revealed ordinary parking tickets. It took Judge McGillin only “a click of the
mouse” to determine that the database search used to obtain information about
Anthony “hadn’t gotten into the details.”
2. Anthony had previously responded that “HideYourPast.com is a website
to help people seal and expunge criminal records. It is a legitimate business. It
just has a good name that attracts customers.”
3. The “attorney access” level used by Judge McGillin is greater than access
granted the general public, but less than “judicial access” afforded to judges.
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The panel concluded that Judge DuPont’s statement about his “judicial
philosophy” violated canon 7. By definition, Judge DuPont’s oath of office
required his determination of a statute’s constitutionality when the issue came
before him in a proper case, but Judge DuPont publicly pledged at the televised
forum to hold no statute unconstitutional and to require litigants to appeal.
The JQC found Judge DuPont guilty of the allegations found in paragraphs 3
and 5 of the amended notice.
First Appearances Memorial Day Weekend 2016
On May 25, 2016, Judge DuPont’s judicial assistant notified necessary
personnel, including attorneys from the state attorney’s and public defender’s
offices, that Judge DuPont would be handling first appearances during the
upcoming Memorial Day weekend. The next day, at Judge DuPont’s direction, his
judicial assistant notified the same people that the time of first appearances on
Saturday and Sunday had been moved up from 9 a.m. to 7 a.m., which was due to
Judge DuPont’s campaign-related obligations that weekend.
On Saturday, May 28, 2016, with no notice to anyone, Judge DuPont began
the 7 a.m. first appearance hearings at 6:30 a.m. and conducted them without
counsel in attendance. Judge DuPont admittedly ignored the requirements of
Florida Rule of Criminal Procedure 3.130(a)—which requires the attendance of
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counsel at first appearance proceedings—and was unable to explain why he started
the proceedings early in the absence of counsel.
The panel found Judge DuPont guilty of this charge, found in paragraph 11
of the amended notice.
Character and Fitness
Judge DuPont called numerous live character witnesses and offered letters
and affidavits from others attesting to his fitness. The panel found that by all
accounts, Judge DuPont is a hard-working judge, who gave willingly of his time,
and was extraordinarily efficient. He is interested in children, established the first
truancy court in Putnam County, and created a series of forms in different legal
areas to help pro se litigants navigate the legal system.
Judge Terrence Perkins, Chief Judge of the Seventh Judicial Circuit from
June 2013 through June 2017, testified that he received far more complaints about
Judge DuPont than any other judge, which were mostly related to “heavy
handedness.” Judge Perkins refused to assign Judge DuPont to a criminal division,
fearing that such heavy-handedness might lead to excessive or inappropriate
incarcerations. Instead, he transferred Judge DuPont to the civil division to take
him “out of the firing line” and place him in a position where “he wasn’t putting
people in jail all the time.” Judge Perkins initially attempted to address problems
directly with Judge DuPont, but this proved ineffective because Judge DuPont
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“would say the right things; it just didn’t seem to change the behavior.” Judge
Perkins then reached out for assistance from other judges, notably Judge
Alexander, Judge DuPont’s judicial mentor.
Judge Wendy Berger, a former Seventh Circuit judge who was elevated to
the Fifth District Court of Appeal in 2012, rendered a qualified opinion that Judge
DuPont was fit to serve, but should be sanctioned if the allegations regarding the
election were proven.
Like Judge Berger, Judge Carlos Mendoza, a federal judge and former
Seventh Circuit judge, offered a qualified opinion regarding Judge DuPont’s
fitness. Although he testified that he never saw any evidence of “heavy
handedness” from Judge DuPont, Judge Mendoza was disappointed about the
negative information Judge DuPont posted about Anthony on his website and the
wallet search during the 2011 family court hearing, but he urged sanctions short of
removal, because he likes Judge DuPont and thinks he has “a good heart.”
Hubert Grimes, a retired Seventh Circuit judge, testified that Judge DuPont
is “a good man,” who has an “excellent reputation” for truth and veracity.
James Alexander,4 a lawyer practicing in St. Johns County who had
appeared before Judge DuPont, described Judge DuPont’s first year as “kind of
4. James Alexander is a cousin of Judge John Alexander, Judge DuPont’s
mentor.
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shaky”; he said that Judge DuPont was “pretty tough,” “rough around the edges,”
“heavy-handed,” overbearing, that he overreacted on occasion, did not appear to
know what he was doing, and failed to listen to lawyers and litigants. But
Alexander opined that Judge DuPont “grew into the job,” improved, and became
more receptive after a period of twelve to eighteen months, in which he went from
a “D-” judge to an “A+” judge.
Judge DuPont’s judicial mentor, Judge John Alexander, testified that Judge
DuPont is the hardest working judge in the Seventh Circuit. He characterized
Judge DuPont as “efficient, dedicated . . . diligent” and a “straight shooter” who
was doing an “excellent job.” Judge Alexander was not in touch with Judge
DuPont during the 2016 campaign and was unfamiliar with the campaign website.
Judge Alexander opined that Judge DuPont was presently fit to serve but
characterized his conduct as “befuddling.”
II. ANALYSIS
“This Court reviews the findings of the JQC to determine whether the
alleged violations are supported by clear and convincing evidence . . . .” In re
Shea, 110 So. 3d 414, 418 (Fla. 2013) (quoting In re Woodard, 919 So. 2d 389,
390 (Fla. 2006)). “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 Hawkins, 151 So. 3d 1200, 1212 (Fla. 2014) (quoting In
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re Holloway, 832 So. 2d 716, 726 (Fla. 2002)). “If the findings meet this
intermediate standard, then they are of persuasive force and are given great
weight.” In re Turner, 76 So. 3d 898, 901 (Fla. 2011) (quoting In re Graziano,
696 So. 2d 744, 753 (Fla. 1997)). We have noted that any conflicts in the evidence
should be resolved in favor of the JQC’s findings. In re Henson, 913 So. 2d 579,
591-92 (Fla. 2005).
A. Undisputed Charges
As a preliminary matter, Judge DuPont does not appear to dispute the JQC’s
findings with respect to the charges alleged in paragraph 5 of the amended notice,
alleging a violation of canon 7 by promising not to find statutes unconstitutional,5
or paragraph 10 of the amended notice, alleging violations of canons 1, 2A, and 7A
by holding first appearances without counsel present. Those charges are supported
by audio or video evidence of the alleged violations. Judge DuPont expressly
admitted wrongdoing regarding holding first appearance hearings without counsel
present. Because the JQC’s findings are undisputed and Judge DuPont has
5. Although Judge DuPont admits to making this statement, he asserts that
he does not believe this statement violated canon 7 because he did not mean that he
would never find a statute unconstitutional, only that he does not go into a case
looking to overturn a statute but instead presumes statutes are constitutional. We
reject this argument. Judge DuPont made the statement in a very public forum and
failed to take any steps to correct the statement even after he realized that he
“screwed up.”
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admitted this misconduct, we conclude that the findings are supported by clear and
convincing evidence. See In re Murphy, 181 So. 3d 1169, 1176 (Fla. 2015) (citing
In re Diaz, 908 So. 2d 334, 337 (Fla. 2005); In re Andrews, 875 So. 2d 441, 442
(Fla. 2004)); In re Kinsey, 842 So. 2d 77, 85 (Fla. 2003)).
B. Dissemination of False and Misleading Information About the Anthonys
Judge DuPont admitted that he acted inappropriately in failing to personally
verify the negative and false information he disseminated about Malcolm Anthony
and his family during the 2016 judicial campaign, but Judge DuPont claims that
while he was “careless,” he did not “knowingly” violate the canons of judicial
conduct because he did not “know” that the information was false and believed it
was accurate. He testified that he relied completely on France and Tavernier to
provide him accurate information and admitted doing “absolutely nothing” to
verify any of the information. We reject Judge DuPont’s reasoning that he did not
“knowingly” disseminate false information or misrepresent information about
Anthony because he did not have personal knowledge that the information was
false.
Not only did Judge DuPont fail to verify the accuracy of the information he
was provided as was his obligation, but it also appears that Judge DuPont actually
manufactured some of the facts he disseminated in relation to that information.
For example, Judge DuPont stated that Anthony was a “current member of
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www.hideyourpast.com, which is a website that you join to hide your personal
history.” First, hideyourpast.com LLC was administratively dissolved in 2013,
three years before Judge DuPont made the statement that Anthony was a “current
member.” Second, while Anthony had been a managing member of the LLC prior
to 2013, there is nothing in the record to indicate that he personally used the
services of the LLC, the purpose of which was to help people seal and expunge
criminal records in connection with Anthony’s law practice.
Judge DuPont also posted “Possible Matching Arrest Records for
Family/Known Associate[s]” of Anthony on his website. The website listed three
arrest records for a person named Andrea Anthony and twenty-one arrest records
for a person named Elizabeth Anthony. Andrea Anthony is the name of Anthony’s
wife, and Elizabeth Anthony is the name of his then twenty-one-year-old daughter.
But neither of them had ever been arrested and thus could not be the individuals
identified in the website. At the hearing, Judge DuPont testified that he did not
know that Andrea and Elizabeth were relatives of Anthony; he stated that he
thought they were possible family members. He admitted being only “careless to
the point that [he] should have known that it was family.” Judge DuPont’s
“careless” actions with respect to Anthony’s wife and daughter caused the potential
for harm to both of them. There is clear and convincing evidence in the record to
support the JQC’s finding that such “carelessness” is inconsistent with a judge
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acting in such a manner that promotes public confidence in the integrity of the
judiciary and contrary to canon 2A.
We therefore conclude that there is clear and convincing evidence in the
record to support the JQC’s findings that Judge DuPont violated canons 1, 2A, and
7A by knowingly misrepresenting facts about the Anthonys during his 2016
campaign.
C. The Search During the 2011 Family Court Hearing
With regard to the search during the 2011 family court hearing, Judge
DuPont admits that the search and seizure occurred, but he emphasizes that it was
not forceful and he felt that it was appropriate because other judges in the Seventh
Circuit employed similar techniques. Judge DuPont’s motives in conducting the
search may have been “pure” as he claims, but we have previously condemned
such unlawful, judicially ordered seizures in open court, see In re Turner, 76 So.
3d 898, 906 (Fla. 2011), and we conclude that there is clear and convincing
evidence in the record to support the JQC’s findings that Judge DuPont violated
canons 1 and 2A.
D. Discipline
The JQC recommends that Judge DuPont be removed from office. Under
article V, section 12(c)(1) of the Florida Constitution, we have discretion to either
accept, reject, or modify the commission’s findings and recommendation of
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discipline. In re Renke, 933 So. 2d 482, 493 (Fla. 2006). “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.” Id. at 493. We are authorized to remove a judge from office for
“conduct unbecoming a member of the judiciary demonstrating a present unfitness
to hold office.” Art. V, § 12(c)(1), Fla. Const. “[T]he object of disciplinary
proceedings is not for the purpose of inflicting punishment, but rather to gauge a
judge’s fitness to serve as an impartial judicial officer.” In re Dempsey, 29 So. 3d
1030, 1034 (Fla. 2010) (alteration in original) (quoting In re McMillan, 797 So. 2d
560, 571 (Fla. 2001)).
We examine judicial misconduct for present fitness to hold
office “from two perspectives: its effect on the public’s trust and
confidence in the judiciary as reflected in its impact on the judge’s
standing in the community, and the degree to which past misconduct
points to future misconduct fundamentally inconsistent with the
responsibilities of judicial office.”
In re Murphy, 181 So. 3d at 1177 (quoting In re Sloop, 946 So. 2d 1046, 1055 (Fla.
2006)). “It is clear that a member of the judiciary or judicial candidate should not
[intentionally] mislead the public by placing factually incorrect statements in
campaign materials.” In re Dempsey, 29 So. 3d at 1033. And “[w]e have
repeatedly placed judicial candidates on notice that this type of misconduct will not
be tolerated.” Id.- 26 -
We have also repeatedly warned that we will not allow judges who have
committed egregious misconduct during a judicial campaign in order to attain
office to serve the term of their judgeship. See In re Renke, 933 So. 2d at 495; In
re McMillan, 797 So. 2d at 573; In re Alley, 699 So. 2d 1369, 1369, 1370 (Fla.
1997). To do so “clearly sends the wrong message to future candidates; that is, the
end justifies the means and, thus, all is fair so long as the candidate wins.” In re
Renke, 933 So. 2d at 495 (quoting In re McMillan, 797 So. 2d at 573).
Judge DuPont’s assertion that he had no evil intent in disseminating the false
information about Anthony is irrelevant. As stated in article V, “[m]alafides,
scienter or moral turpitude on the part of a justice or judge shall not be required for
removal from office of a justice or judge whose conduct demonstrates a present
unfitness to hold office.” Art. V, § 12, Fla. Const. Further, in holding first
appearances early on the Saturday of Memorial Day weekend in 2016 without
counsel present in order to suit his campaign schedule, Judge DuPont blatantly
disregarded the rules of criminal procedure and disrespected the attorneys and the
rights of the inmates involved in the proceeding. This behavior was not
inadvertent, and Judge DuPont has offered no excuse or explanation for it. Judge
DuPont’s misconduct both negatively affects the public’s trust and confidence in
the judiciary and points to the potential of future misconduct fundamentally
inconsistent with the responsibilities of judicial office.
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Like Judges Renke, McMillan, and Alley, Judge DuPont committed
egregious misconduct during his campaign to attain his office. Under these
circumstances, we cannot allow Judge DuPont to serve the term of his judgeship.
Based on the misrepresentations Judge DuPont made during his campaign to attain
his office as well as the other instances of misconduct during his time in office, we
conclude that Judge DuPont has demonstrated a present unfitness to hold office
and approve the recommended discipline of removal from office.
III. CONCLUSION
For the reasons set forth herein, we conclude that Judge DuPont’s violations
of the Code of Judicial Conduct warrant the most severe sanction of removal from
office. Accordingly, Judge DuPont has been removed from office. The removal
took effect on June 25, 2018.
It is so ordered.
CANADY, C.J., and PARIENTE, QUINCE, POLSTON, LABARGA, and
LAWSON, JJ., concur.
LEWIS, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Original Proceeding – Judicial Qualifications Commission
Eugene Pettis, Chair, Fort Lauderdale, Florida, Michael Louis Schneider,
Executive Director and General Counsel, Alexander J. Williams, Assistant General
Counsel, Henry M. Coxe, III, Special Counsel, Judicial Qualifications
Commission, Tallahassee, Florida; Brian T. Coughlin and Ashley W. Cox of
Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, Florida; and Lauri
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Waldman Ross of Ross & Girten, Counsel to the Hearing Panel of the Florida
Judicial Qualifications Commission, Miami, Florida,
for Florida Judicial Qualifications Commission, Petitioner
Rutledge R. Liles and Pamela H. Klavon of Liles Gavin, P.A., Jacksonville,
Florida,
for Judge Scott C. DuPont, Respondent
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