Inquiry Concerning a Judge No. 16-534 Re: Dana Marie Santino

Supreme Court of Florida
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No. SC17-362
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INQUIRY CONCERNING A JUDGE NO. 16-534
RE: DANA MARIE SANTINO.
October 19, 2018
PER CURIAM.
On July 2, 2018, this Court issued an order removing Dana Marie Santino
from the office of county judge of Palm Beach County, Florida. The order
provided that an opinion would follow explaining the reasons for removal.1
CHARGES, FINDINGS, AND RECOMMENDATION
On March 6, 2017, the Investigative Panel of the JQC filed a notice of
formal charges against then-Judge Dana Marie Santino finding probable cause
existed for formal proceedings to be brought against her based upon violations of
canons 7A(3)(a), 7A(3)(b), 7A(3)(c), 7A(3)(e)(i), and 7A(3)(e)(ii) of the Florida
1. We have jurisdiction. See art. V, § 12(c), Fla. Const.
Code of Judicial Conduct, and rules 4-8.2(a) and 4-8.2(b) of the Rules Regulating
the Florida Bar. The specific allegations were as follows:
1. During your 2016 campaign for Palm Beach County Judge, you
paid over $143,000 for the campaign consulting services [of] Richard
Giorgio and Francine Nelson, of Patriot Games, Inc.
2. In October of 2016, your campaign published an e[-]mail
addressed to potential voters, which lists your experience as a
probation officer, a victim services advocate for victims of rape,
homicide and domestic violence. Your advertisement then states that
your opponent’s legal practice is “limited to criminal defense—
representing murderers, rapists, child molesters and other criminals.”
a. Your campaign e[-]mail advertisement prompted the
Palm Beach Post to run an article about your statements
titled “PBC race gets ugly—some say—in Donald
Trump-like way”. Rather than retracting or apologizing
for your campaigns [sic] disparaging remarks, you told
the Palm Beach Post newspaper that, “I completely
respect, and I’m proud of our justice system, and while
every person is entitled to a defense, Mr. Lerman is not a
public defender, and chooses to represent individuals
who commit heinous crimes.”
b. Significantly, your statement that Mr. Lerman is not a
public defender, but chooses to represent individuals who
commit heinous crimes, undeservedly impugns the
integrity of the entire judicial system by demeaning the
work of private attorneys who represent accused persons.
In light of your own experience working in a public
defender’s office, you attempt to draw a distinction
between public defenders and private defense attorneys
and the quality of their character.
3. Ms. Nelson, of Patriot Games consultants, also registered a
political organization named ‘Taxpayers for Public Integrity.’ This
political organization promoted your candidacy by attacking your
opponent, Gregg Lerman.
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a. During the 2016 campaign, ‘Taxpayers for Public
Integrity’ produced a Facebook webpage, titled ‘The
Truth About Gregg Lerman.’ The headline banner of this
page proclaimed that, “Attorney Gregg Lerman has
made a lot of money trying to free Palm Beach
County’s worst criminals. Now he’s running for
judge!” Below that, a photograph of Mr. Lerman was
surrounded by the words, “CHILD PORNOGRAPHY,”
“DRUG TRAFFICKING,” “MURDER[,]” “Identity
Theft,” “RAPE,” “Sexual Assault,” “Internet
Solicitation of Minors,” and “PEDOPHILES.”
[emphasis used in original].
b. This webpage also highlights several cases where Mr.
Lerman represented persons accused of high-profile
crimes. In describing these crimes, the website states:
“Instead of representing victims of crime,
Gregg Lerman chose to represent convicted
serial killer Ronald Knight who targeted gay
men and brutally murdered them. Now, he’s
running for Judge!”
“Instead of representing the victims of
crime, Gregg Lerman chose to represent one
of the convicted accomplices in the
‘Turnpike Murder’ of a family of four,
including two children ages 3 and 4. Now,
he’s running for Judge!”
“Instead of representing the victims of
crime, Gregg Lerman chose to represent one
of the four convicted codefendants in the
‘Three Amigos’ robbery-murder. Now, he’s
running for Judge!”
“Instead of representing the victims of
crime, Gregg Lerman chose to represent one
of the convicted ‘Thanksgiving Day’
murderers. Now, he’s running for Judge!”
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c. In addition to the wholly inappropriate connotation
and tenor of these statements, the substance of the
statements is also false. In three of the cases, Mr.
Lerman was court-appointed to represent the accused
person. The website is no longer viewable.
4. In response to your conduct, your opponent filed a complaint with
the Palm Beach County Bar Association’s Judicial Campaign
Practices Commission (“JCPC”), a group that renders advisory
opinions about perceived misconduct in Palm Beach judicial
campaigns.
a. In responding to the JCPC complaint, you steadfastly
defended your conduct by stating that[:] (1) your e[-]mail
truthfully states Mr. Lerman’s experience, (2) that the
Facebook post was made by an ECO [electioneering
communications organization] independent of you, and is
truthful, including the statement that Mr. Lerman has
made a lot of money representing criminal defendants,
and (3) that the statements in the e-mail, in the Facebook
post, and to the Palm Beach Post merely are efforts to
highlight the differences between you and Mr. Lerman.
Specifically, your response to the JCPC stated, “I have
been an advocate for the victims of rape, homicide and
domestic violence while Mr. Lerman has chosen to
represent the criminal defendants convicted of those
crimes.”
b. On November 2, 2016, in [the] final days before the
November election, the JCPC, by a vote of 11-0, found
your campaigns’ [sic] statements and conduct violated
the Code of Judicial Conduct. The JCPC wrote that your
e-mail advertisement was “inflammatory,” and “rife with
innuendo that Mr. Lerman would favor even the worst of
the worst from the bench, whereas by implication, Ms.
Santino would not.” This, the JCPC found, “. . . invites
the voter to choose based on a candidate’s supposed
predisposition—or in Ms. Santino’s case an implied
pledge—that is inconsistent with the impartial
performance of judicial duties.”
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c. The JCPC also noted that your e-mail and other
campaign messages “. . . omits important context: the
presumption of innocence, the constitutional right to
counsel that persons accused of crimes are afforded, and
the system of court-appointed counsel that supports that
right.” The advisory Committee also found that your
e[-]mail “implies that representing such persons is
dishonorable and antithetical to the public good, when, in
fact, the representation of person[s] accused of crimes—
even heinous crimes—is an essential component of our
criminal justice system.”
d. In responding to the JCPC’s unanimous decision, you
told the Palm Beach Post, in a November 2 article titled
PBC judge hopeful Dana Santino violated judicial
canons advisory panel finds, that the JCPC’s decision
was, “just their opinion,” and that your statements were,
“an honest comparison.” Your campaign manager also
referred to Mr. Lerman as “desperate,” for filing the
complaint about your conduct.
e. At the time the JCPC released its decision, you also
commented to Mr. Lerman that your campaigns’ [sic]
statements were “nobody’s business,” and that you have
a right to free speech. Prior to this, you also informed
Mr. Lerman that it was your belief that you were not
responsible for whatever others, including your campaign
consultants, said or did on your behalf. You also made a
similar claim to an audience at a campaign forum shortly
after your October e-mail message became a topic of
public discussion. This is contrary [to] the requirements
of Canon 7.
5. In your response to the Commission’s Notice of Investigation, and
again in your sworn testimony before the Investigative Panel, you
appeared remorseful and apologetic. You accepted “full
responsibility” for your campaigns [sic] conduct, and you recognized
that the language used was “not appropriate and was inconsistent with
the dictates of Canon 7.” You called the statements about your
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opponent “disparaging,” and acknowledged that the statements could
lead a reasonable person to question your impartiality.
6. When your appearance before the Investigative Panel is contrasted
with your prior repeated, and steadfast defense of your misconduct, it
is difficult to escape the conclusion that you and your campaign
consultants employed a ‘win-at-all-costs,’ and pay the fine later
strategy. This conduct is antithetical to the conduct expected of
judicial candidates. Further, your inability to understand and comply
with, or willingness to overlook the requirements of the Code of
Judicial Conduct represent [sic] a clear and present unfitness for
office.
(Fifth alteration in original.)
A final hearing was held before the JQC Hearing Panel, and on
September 28, 2017, the panel issued its findings and conclusions.
Judge Santino admits violating Canon 7A(3)(a) and 7A(3)(b),
and Rule 4-8.2(b) of the Rules [Regulating] the Florida Bar. Her
admissions are supported by clear and convincing evidence. See In re
Kinsey, 842 So. 2d 77, 89-90 (Fla. 2003). This Panel concludes that
Judge Santino also violated Judicial Canon 7A(3)(c), (e)(i), and (e)(ii)
and Rule 4-8.2(a), Rules of Professional Conduct, for the same
reasons reached by the JCPC. Candidate Santino did not merely
compare her background, qualifications, character and integrity with
that of her opponent. She imputed guilt to those that were merely
accused. She also expressly stated and implied that Lerman was not
impartial, was predisposed to favor criminals, while she was
predisposed to victims, and courted votes based on each candidate’s
supposed predisposition. Her entire campaign was inflammatory and
rife with innuendo. She repeatedly implied that representing persons
charged with crimes was, by its very nature, dishonorable and
antithetical to the public good. See generally Little Bridge Marina,
Inc. v. Jones Boatyard, Inc., 673 So. 2d 77, 78-79 (Fla. 3d DCA 1996)
(impeachment of a critical witness by resort to his past career as a
criminal defense attorney warranted reversal for inflaming the passion
of a jury). Santino expressly stated or implied that Lerman could not
be trusted “for laboring in an occupation that serves to breathe life and
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meaning into the Sixth Amendment.” Id. [at 79.] Her published
comments, as well as the Facebook page, falsely communicated to the
reader that Lerman was unfit for judicial office because of the type of
law he practiced, and the type of clients he represented.
Candidate Santino did not prohibit or discourage campaign
personnel from doing what she was prohibited from doing, even
though they were subject to her control. By her own account, Santino
allowed such personnel to operate unfettered or unrestrained.
Candidate Santino, individually, and through her campaign
manager, made statements about Mr. Lerman’s integrity, with reckless
disregard of the truth. She claimed evident partiality and bias on
Lerman’s part, based solely on his employment as a criminal defense
attorney. The Taxpayers for Public Integrity Facebook website,
established by Santino’s campaign manager, encapsulated Lerman’s
photograph, with bold prominent displays of crimes, in an attempt to
portray Lerman as a criminal or, [sic] one who associates with
criminals. It was specifically designed to evoke base human emotions
that our legal system, this profession, and our State and Federal
Constitutions all seek to overcome. It was a calculated, tactical
decision to ensure that Santino won her election for a judgeship.
While she disclaims her role in this process, Judge Santino was
reckless in delegating decision-making to her campaign manager,
without supervision, and permitting him to speak and act on her behalf
continuously even after the filing of the JCPC complaint (October 25,
2016), when she believed she had been misled.
The Hearing Panel concluded that removal was the only appropriate discipline in
this case.
FACTS AND BACKGROUND
This disciplinary matter against Santino arose out of both false and
misleading statements that Santino made about her opponent, Gregg Lerman, in
e-mail advertisements and on social media during her 2016 election campaign for
the office of county judge for Palm Beach County. In April 2016, the Palm Beach
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County judge seat became available after the sitting judge resigned. We
determined that the vacancy was to be filled by election rather than appointment,
Lerman v. Scott, No. SC16-783, 2016 WL 3127708, *1 (Fla. June 3, 2016), and
Santino entered the race after the original qualifying period was reopened by this
Court. Attorney Gregg Lerman was one of two candidates who had qualified prior
to the date that Lerman issued.
Santino hired Richard Giorgio of Patriot Games, Inc., as her campaign
manager. She testified that she reviewed the judicial canons, attested under oath
that she understood all requirements, and received a pamphlet on understanding
Canon 7. Nonetheless, Santino admitted that she failed to review the case law
attached to the pamphlet pertaining to her ethical obligations in her judicial
campaign. Furthermore, Santino did not attend the local judicial campaign conduct
forum.
The third candidate seeking the judicial seat was subsequently eliminated
during the primary election, leaving a runoff between Santino and Lerman.
Approximately one month later, on September 23, 2016, a Facebook page titled
“The Truth About Gregg Lerman” was created by Taxpayers for Public Integrity,
an electioneering communications organization (ECO) formed and administered by
Patriot Games, Inc. The header of the Facebook page stated “Attorney Gregg
Lerman has made a lot of money trying to free Palm Beach County’s worst
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criminals. Now he’s running for judge!” Additionally, the page contained posts
that outlined Lerman’s representation in four high-profile homicide cases, stating
that he “chose” to represent the defendants. Lerman testified before the Hearing
Panel that he was court-appointed on three of those cases, and was privately
retained on the fourth. He is also one of a limited number of attorneys in Florida
who meets the qualifications to represent defendants in cases where the State is
seeking the death penalty.
The Facebook page was viewable for approximately one month, from
September 23, 2016, until October 21, 2016. Santino testified that she had
discussed a Facebook page with Giorgio that would juxtapose the candidates’
relative positions. However, Santino testified that she was not aware of the content
of the page before it was posted and, upon her request after she was informed by
two prominent attorneys that it was being “ill-received,” the page was taken down.
On October 12, 2016, Santino’s campaign sent out an e-mail that stated
Lerman’s legal practice was “limited to criminal defense—representing murderers,
rapists, child molesters and other criminals.” Santino admitted at the final hearing
that this statement was inappropriate and violated the canons. She testified that
Giorgio had convinced her it was not a violation because the language was true,
and Lerman advertised it on his own website.
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The Palm Beach Post published an article on October 21, 2016, entitled
“Facebook New Weapon in Nasty PBC Judicial Race.” Four days later, a local
attorney filed a complaint about Santino with the Palm Beach County Bar
Association’s Judicial Campaign Practices Commission (JCPC).2 In her response
to the complaint, Santino defended her actions by indicating her statements about
Lerman’s experience were truthful, the Facebook page was made by an ECO
independent of her campaign and was truthful, and the statements were attempts to
highlight differences between herself and Lerman. On October 27, 2016, the Palm
Beach Post published another article titled “PBC Court Race Gets Ugly—Some
Say—in Donald Trump-Like Way.” In the article, Santino defended her
statements concerning Lerman’s “choice” to represent criminal defendants by
stating, “I completely respect and I’m proud of our judicial system and while every
person is entitled to a defense, Mr. Lerman is not a public defender and chooses to
represent individuals who commit heinous crimes.” She further defended her
statements by claiming that she was pointing out differences between herself and
Lerman.
2. The JCPC is a group of attorneys from the Palm Beach County Bar
Association that attempts to moderate judicial campaigning in the Fifteenth
Judicial Circuit by rendering advisory opinions about allegations of misconduct in
Palm Beach County judicial campaigns. The JCPC is not a body of the JQC or
The Florida Bar.
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The advisory opinion issued by the JCPC less than one week before the
general election unanimously concluded that Santino had violated judicial canons.
The JCPC concluded that Santino knowingly mischaracterized Lerman’s
experience through inflammatory statements that failed to take into account the
presumption of innocence to which an accused is entitled, the constitutional right
to counsel, and the constitutional right of indigent defendants to court-appointed
counsel. It further concluded Santino made statements that invited voters to
choose a candidate based on an alleged predisposition. The same day, the Palm
Beach Post published an article about the JCPC’s findings. Santino again
defended her actions, stating, “I appreciate the opinion of the commission;
however, as the commission itself discloses in their letter, it is just that—their
opinion.”
On November 3, 2016, Lerman and Santino were present at an early voting
site and exchanged words over alleged misrepresentations made to putative voters.
During a deposition, Lerman recalled stating to Santino, “We’ll see what the JQC
and the Florida Bar have to say . . . about what you’ve done,” to which Santino
responded, “It’s none of their business, the JQC’s or the Florida Bar’s business,
anything about this.” Lerman later testified that Santino also stated, “We didn’t do
anything wrong. I didn’t do anything wrong.” (Emphasis added.)
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Santino defeated Lerman in the general election and was sworn in as a Palm
Beach County Court judge on January 3, 2017. She was subsequently asked at a
social gathering whether misconduct charges could possibly lead to her removal.
According to the individual who asked the question, Santino responded to the
following effect: “No. I think it . . . won’t rise to that. It will be probably a fine.
It’s not a big deal.” (Emphasis added.)
On March 6, 2017, the Investigative Panel of the JQC filed a notice of
formal charges against Santino, alleging she made false or misleading statements
about her opponent in advertisements and social media during her campaign for
election to judicial office. Additionally, the charges addressed her defense of these
statements in response to the complaint filed with the JCPC. In her answer to the
formal charges, Santino acknowledged that her comments drawing a distinction
between public defenders and private defense attorneys were inappropriate. While
explaining that the Facebook page was taken down at her direction, Santino
admitted the statements were inappropriate, wrong, and used language that violated
the canons.
Santino testified at the final hearing that all of the conduct alleged in the
formal charges occurred in the last three and a half weeks of the campaign.
Regarding the Facebook page, Santino again admitted at the final hearing that the
page was inappropriate and violated the canons. She explained she had not been
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aware of the content of the Facebook page prior to it being posted and ultimately
had the page taken down after hearing from prominent attorneys that it was being
“ill-received.” As to the e-mail sent out by Santino’s campaign on October 12,
2016, she took full responsibility for the language that outlined Lerman’s legal
practice as “limited to criminal defense—representing murderers, rapists, child
molesters and other criminals.” In response to an inquiry by a Hearing Panel
member as to why she waited until after the election to apologize to Lerman,
Santino answered:
Mr. Lerman, after the election was over, had made it clear that he was
going to file a JQC complaint against me, so I did not know how to
handle the matter of apologizing to him, and as soon as everything
became official, the first thing I discussed with [my lawyer] was
apologizing to [Lerman] and apologizing to the JCPC.
Moreover, Santino was asked, “So as a candidate, you never said to the citizens of
this county, ‘what was on that Facebook page was a violation of the rules I agreed
to follow and it was deplorable and atrocious’? Did you ever say anything like that
during the campaign at any time?” Santino responded that she did not.
The Hearing Panel of the JQC concluded that Santino violated canons
7A(3)(a), 7A(3)(b), 7A(3)(c), 7A(3)(e)(i), and 7A(3)(e)(ii) of the Florida Code of
Judicial Conduct, and rules 4-8.2(a) and 4-8.2(b) of the Rules Regulating the
Florida Bar and recommended that she be removed from office.
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ANALYSIS
In removing Santino from judicial office, we fully agreed with the findings,
conclusions, and recommendation of the JQC.
The supreme court may accept, reject, or modify in whole or in part
the findings, conclusions, and recommendations of the commission
and it may order that the justice or judge be subjected to appropriate
discipline, or be removed from office with termination of
compensation for willful or persistent failure to perform judicial
duties or for other conduct unbecoming a member of the judiciary
demonstrating a present unfitness to hold office . . . .
Art. V, § 12(c)(1), Fla. Const. “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.’ ” In re
Hawkins, 151 So. 3d 1200, 1216 (Fla. 2014) (quoting art. V, § 12(c)(1), Fla.
Const.).
Where a judge commits misconduct in office, this Court has examined the
issue of “present fitness” 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 Sloop, 946 So. 2d 1046, 1055 (Fla. 2006); see also In re Murphy, 181 So. 3d
1169, 1177 (Fla. 2015). However, the Court has also considered “present fitness”
from a different vantage point where the misconduct at issue involves campaign
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violations in the course of seeking judicial office. See, e.g., In re McMillan, 797
So. 2d 560, 573 (Fla. 2001) (“[T]o allow someone who has committed such
misconduct during a campaign to attain office to then serve the term of the
judgeship obtained by such means 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 the present case, we first considered the effect that Santino’s actions had
on the public’s trust in the judiciary. “Florida has a compelling interest in
protecting the integrity of the judiciary and maintaining the public’s confidence in
an impartial judiciary . . . .” Fla. Bar v. Williams-Yulee, 138 So. 3d 379, 385 (Fla.
2014), aff’d, 135 S. Ct. 1656 (2015); see also In re Kinsey, 842 So. 2d 77, 87 (Fla.
2003); In re Code of Judicial Conduct (Canons 1, 2, & 7A(1)(b)), 603 So. 2d 494,
497 (Fla. 1992). As this Court has explained:
“The concept of public confidence in judicial integrity does not easily
reduce to precise definition, nor does it lend itself to proof by
documentary record. But no one denies that it is genuine and
compelling.” Williams-Yulee v. Fla. Bar, 135 S. Ct. at 1667. A
judicial candidate who knowingly misrepresents any fact concerning
the candidate or an opponent necessarily intends to mislead the public
concerning the judicial election, thus undermining the public’s
confidence in the integrity of the judiciary. See, e.g., In re Renke, 933
So. 2d 482, 495 (Fla. 2006). Such conduct “raises an appearance of
impropriety and calls into question, in the public’s mind, the judge’s”
integrity.
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In re Shepard, 217 So. 3d 71, 78 (Fla. 2017) (citation omitted) (quoting Williams-
Yulee, 138 So. 3d at 385).
According to the Hearing Panel:
Santino reviewed the Judicial Canons and signed a form, under
oath, attesting that she understood their requirements. She also
received and said she reviewed an “Aid to Understanding Canon 7,” a
pamphlet given to judicial candidates which addresses campaign
pitfalls and restrictions. She did not review any case law hyperlinked
by the pamphlet. Nor did Santino attend the local judicial campaign
conduct forum sponsored jointly by the Florida Supreme Court and
the Florida Board of Governors held in West Palm Beach.
Despite the resources available to her to run a professional, ethical campaign in
accordance with Canon 7, the JQC Hearing Panel concluded:
Candidate Santino, individually, and through her campaign
manager, made statements about Mr. Lerman’s integrity, with reckless
disregard of the truth. She claimed evident partiality and bias on
Lerman’s part, based solely on his employment as a criminal defense
attorney. The Taxpayers for Public Integrity Facebook website,
established by Santino’s campaign manager, encapsulated Lerman’s
photograph, with bold prominent displays of crimes, in an attempt to
portray Lerman as a criminal or, [sic] one who associates with
criminals. It was specifically designed to evoke base human emotions
that our legal system, this profession, and our State and Federal
Constitutions all seek to overcome. It was a calculated, tactical
decision to ensure that Santino won her election for a judgeship.
While she disclaims her role in this process, Judge Santino was
reckless in delegating decision-making to her campaign manager,
without supervision, and permitting him to speak and act on her behalf
continuously even after the filing of the JCPC complaint (October 25,
2016), when she believed she had been misled.
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Moreover, the JQC concluded that these messages were not just present in one
campaign advertisement or a single post on a Facebook page, but rather, were the
“theme of [Santino’s] entire campaign.”
We agreed with the JQC that it “strain[ed] credulity to believe that [] Santino
never looked at the Facebook []page she knew was going to be created, when it
was available to the public, after she received telephone calls from prominent
lawyers telling her it was not being ‘well received,’ or even, as she said, before
telling her campaign consultant to take it down.” As noted by the Hearing Panel,
“[n]othing in Canon 7 permitted Santino to delegate to her campaign manager the
responsibility for written materials created or distributed by the campaign.”
Santino’s conduct cannot be deemed the product of “missteps” in the course of a
heated campaign. Accordingly, the actions of Santino—individually and through
her campaign, for which she was ultimately responsible—unquestionably eroded
public confidence in the judiciary.
We next examined the degree to which Santino’s past misconduct points to
future misconduct. We were mindful that before the JQC and this Court, Santino
accepted full responsibility for her actions. Additionally, we recognized that
Santino sent apology letters to Lerman and the members of the JCPC following the
election. Finally, we noted the exemplary character testimony received at the
hearing.
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However, although Santino accepted responsibility for her actions, she did
not do so until the JQC complaint was filed against her. Until that occurred,
Santino demonstrated a consistent refusal to accept responsibility for her actions.
For example, after the JCPC issued its unanimous advisory opinion concluding she
had violated the judicial canons, Santino was quoted in a news article as stating
that, while she “appreciate[d] the opinion of the commission . . . it is just that—
their opinion.” When Santino and Lerman discussed at an early voting site what
The Florida Bar and the JQC would say about her campaign comments, she
responded, “It’s none of their business, the JQC’s or the Florida Bar’s business,
anything about this,” and that she did nothing wrong.
This Court has previously warned judicial candidates that serious campaign
violations could warrant removal. See, e.g., In re Renke, 933 So. 2d 482, 493-96
(Fla. 2006); McMillan, 797 So. 2d at 572-73; In re Alley, 699 So. 2d 1369, 1370
(Fla. 1997). Santino correctly observed that prior election cases ordering removal
based on violations of Canon 7 involved some type of additional misconduct. See
Renke, 933 So. 2d at 494 (judge accepted illegal campaign contributions);
McMillan, 797 So. 2d at 569-70 (judge presided over first appearance and set
excessive bond in a case to which he was not assigned and in which he personally
observed and reported to the police the conduct of the defendant). However, even
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if we had not previously imposed the discipline of removal for violations of
Canon 7 alone, nothing prohibited us from doing so here.
Santino’s reliance on In re Kinsey, 842 So. 2d 77, to support rejection of the
JQC’s recommended sanction was misplaced because her misconduct was far more
egregious. While Santino was correct that, similar to Kinsey, her campaign made
wholly improper statements asserting that her opponent favored a particular group,
Santino failed to acknowledge that she did not merely imply that Lerman would
favor criminal defendants if elected. She also personally attacked his character,
demeaned private criminal defense attorneys, and implied she would favor the
State in criminal trials. Moreover, Santino, in an effort to discredit and attack her
opponent, evidenced a clear bias against criminal defendants. As the Hearing
Panel determined:
Candidate Santino did not merely compare her background,
qualifications, character and integrity with that of her opponent. She
imputed guilt to those that were merely accused. She also expressly
stated and implied that Lerman was not impartial, was predisposed to
favor criminals, while she was predisposed to victims, and courted
votes based on each candidate’s supposed predisposition. Her entire
campaign was inflammatory and rife with innuendo. She repeatedly
implied that representing persons charged with crimes was, by its
very nature, dishonorable and antithetical to the public good. See
generally Little Bridge Marina, Inc. v. Jones Boatyard, Inc., 673 So.
2d 77, 78-79 (Fla. 3d DCA 1996) (impeachment of a critical witness
by resort to his past career as a criminal defense attorney warranted
reversal for inflaming the passion of a jury). Santino expressly stated
or implied that Lerman could not be trusted “for laboring in an
occupation that serves to breathe life and meaning into the Sixth
Amendment.” Id. [at 79]. Her published comments, as well as the
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Facebook page, falsely communicated to the reader that Lerman was
unfit for judicial office because of the type of law he practiced, and
the type of clients he represented.
(Emphasis added.)
Santino’s numerous statements during her campaign evidenced a bias
against criminal defendants, toward whom she imputed guilt; against criminal
defense attorneys, whom she implied had some character fault because they
“choose” to represent criminal defendants; and in favor of victims, whom she
boasted that she worked to protect during her legal career. Such statements are
sufficient to create fear on the behalf of criminal defendants—who are entitled to a
presumption of innocence under the basic tenets of our judicial system—that they
would not receive a fair trial or hearing.
In removing Santino from office, we did not take this sanction lightly.
However, despite the significant mitigation in this case, we agreed with the JQC’s
recommendation. The JQC clearly considered the mitigation presented and
ultimately concluded:
Judge Santino’s post-election remarks that discipline would
“probably be a fine” and was “no big deal” confirm that a fine or
suspension would be inadequate, and treated as the routine cost of
doing business. See Kinsey, 842 So. 2d at 99-10[0] (Lewis, J). A
suspension without pay would also have the “unavoidable
consequence” of punishing the circuit and its citizens by a vacancy in
the position. Id. at 95-96 (Pariente, J).
We likewise agree.
- 20 -
Simply stated, Santino’s conduct does not evidence a present fitness to hold
judicial office. It is “difficult to allow one guilty of such egregious conduct to
retain the benefits of those violations and remain in office.” Alley, 699 So. 2d at
1370. We refuse to endorse a “win-at-all-costs-and-pay-the-fine-later” strategy,
especially in light of our past warnings and stated intolerance for the kinds of
campaign violations at issue here. By her own admission, had we imposed a fine
as a sanction, it would confirm that Santino’s violations were “not a big deal.”
Moreover, if this Court imposed a suspension, it would send a message to all
attorneys campaigning for judicial office that they may commit egregious
violations of Canon 7 during their campaigns and if they win, a suspension or a
fine or both will be the only result. They will be allowed to reap the benefits of
their misconduct by continuing to serve the citizens of this state. This we cannot
condone. Accordingly, we continue to share the sentiments of the JQC:
We are mindful of—and heavy-hearted about—the testimony
of Judge Santino’s witnesses that she is beloved by many, and a
judge with a strong work ethic. However, were we to countenance
her studied and continued refusal to abide by Canon 7, we would
ourselves be undermining the rules governing judicial elections.
- 21 -
CONCLUSION
For the reasons discussed above, by order dated July 2, 2018, Dana Marie
Santino was removed from judicial office.
PARIENTE, QUINCE, LABARGA, and LAWSON, JJ., concur.
LEWIS, J., concurs in result only with an opinion.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LEWIS, J., concurring in result only.
Today, the majority has chosen to sanitize and soften the facts surrounding
the campaign misconduct committed in this case apparently in the interest of
political correctness or for some other reason. The circumstances of this case,
however, are so egregious and so reprehensible that any attempt to refine them
does a disservice to the bench and to our judicial system as a whole and it further
diminishes the citizen’s trust in the judiciary beyond the damage that Santino has
already inflicted. I simply cannot endorse the sanitized rendition of the facts with
the omission of the actual published material along with the analysis that the
majority adopts. Nevertheless, I support the JQC’s recommended sanction of
removal, given the nature of the facts in this case and this Court’s precedent, which
has long stated our intolerance for judicial candidate misconduct such as that at
issue in the present case.
- 22 -
In determining that removal was the appropriate discipline, the Hearing
Panel concluded as follows:
First, we reject the notion that candidate Santino merely made
“mistakes” or “missteps” in the course of a heated campaign. Her
conduct “was not simply the product of an isolated instance of
indiscretion, a momentary lapse of judgment; or the exposure of
human frailty from which we all suffer from time to time. The
conduct here was repeated, intentional, direct action with a designed
purpose which cast aspersions and doubt onto the heart of the judicial
system and the elected judicial office sought by [the] Judge . . .” In re
Kinsey, [842 So. 2d 77, 97 (Fla. 2003)] (Lewis, J, concurring in part
and dissenting in part). Santino knew, and acknowledged without a
shadow of a doubt, that she had violated Canon 7 after the JCPC
issued an adverse unanimous opinion, but chose to take no curative
action for fear it would cost her the election.
Second, it strains credulity to believe that Judge Santino never
looked at the Facebook webpage she knew was going to be created,
when it was available to the public, after she received phone calls
from prominent lawyers telling her it was not being “well received,”
or even, as she said, before telling her campaign consultant to take it
down. Nor does this Panel accept Judge Santino’s explanation that
she was too busy or sleep-deprived to manage, let alone pay attention
to her campaign.
Third, the Florida Supreme Court has now been warning
judicial candidates about the same type of serious campaign violations
at issue for some 20 years. In re Alley, 699 So. 2d 1369, 1370 (Fla.
1997); In re McMillan, 797 So. 2d [560, 572 (Fla. 2001)]; In re
Kinsey, 842 So. 2d at 91-92; In re Renke, 933 So. 2d [482, 494-96
(Fla. 2006)]. Seminars and forums are regularly conducted in election
years, district-wide, presented by the JEAC. An entire pamphlet has
been devoted to ensure that every judicial candidate understands
Canon 7 and abides by it. Even JEAC 98-27, cited by Giorgio, quoted
extensively from Alley supra, and warned of the need to carefully
craft advertisements to avoid improper pledges, misrepresentations or
personal attacks. Candidate Santino’s failure to read pertinent case
law, or to attend the Palm Beach County seminar does not favor
mitigation.
- 23 -
This case arose from both false and misleading statements that Santino made
about her opponent in e-mail advertisements and on social media during her 2016
election campaign for the office of County Court Judge for Palm Beach County. In
April 2016, the Palm Beach County judge seat became available after the sitting
judge resigned. Two candidates for the vacant seat, Gregg Lerman and Tom
Baker, petitioned this Court to determine whether the vacancy would be elected or
appointed. On June 3, 2016, in Lerman v. Scott, No. SC16-783, 2016 WL 3127708(Fla. June 3, 2016), we determined that the county court vacancy should be filled
by election, and Santino then entered the race after the original qualifying period
was reopened by this Court.
Santino has been an attorney for fifteen years with a majority of her practice
being in probate, guardianship, wills and trusts, and real estate. Santino has no
prior disciplinary measure with the Florida Bar. Santino hired Richard Giorgio of
Patriot Games, Inc., as her campaign consultant. She testified that she reviewed
the judicial canons, attested under oath that she understood all requirements, and
received a pamphlet on understanding Canon 7. Nonetheless, Santino admitted
that she failed to review any of the case law attached to the pamphlet pertaining to
her ethical obligations in her judicial campaign. Furthermore, Santino did not
attend the local judicial campaign conduct forums.
- 24 -
On August 30, 2016, Baker was eliminated during the primary election,
leaving a runoff between Santino and Lerman. About a month later, on September
23, 2016, a Facebook page titled “The Truth About Gregg Lerman” was posted by
Taxpayers for Public Integrity, an electioneering communications organization
(ECO) formed and administered by Patriot Games, Inc. See Appendix. The
header of the Facebook page stated “Attorney Gregg Lerman has made a lot of
money trying to free Palm Beach County’s worst criminals. Now he’s running for
judge!” Additionally, the page contained posts that outlined Lerman’s
representation in four high-profile homicide cases, stating that he chose to
represent them and now wishes to be a judge. Lerman testified that he was court
appointed on three of the featured cases, and was privately retained for the fourth
case. Lerman is on the rotating list of attorneys and is one of the limited number of
death penalty qualified attorneys in Florida. He testified that there is a process for
the selection of conflict registry counsel and he has provided counsel under that
system. Lerman testified that he was on the conflict registry to provide counsel
after being appointed to represent indigent defendants if his name was next on the
list.
The majority has chosen to omit the photographic evidence of Santino’s
advertisements. The visual impact of these advertisements, however, says far more
- 25 -
than words could ever convey. These posts exhibit just how far Santino was
willing to go, and how low she was willing to travel to win this election.
The Facebook page remained up for approximately one month, from
September 23, 2016, until October 21, 2016. Santino testified that she was not
aware of the content of the Facebook page before it was posted and that, upon her
request after being contacted by two prominent attorneys, the page was removed.
Santino testified that she had discussed a Facebook page with Giorgio that would
juxtapose the candidates’ relative positions.
On October 12, 2016, Santino sent an e-mail that included the statement that
her opponent’s experience is “limited to criminal defense – representing murderers,
rapists, child molesters and other criminals.” On October 12, 2016, Santino’s
campaign also sent out an e-mail that stated that Lerman’s legal practice was
“limited to criminal defense – representing murderers, rapists, child molesters and
other criminals.” Santino testified and finally admitted at the hearing and in her
response to the notice of formal charges that this statement was inappropriate and
violated judicial canons. She testified that Giorgio, her campaign manager, had
convinced her it was not a violation because the language was true and Lerman had
published this information on his own website.
On October 21, 2016, the Palm Beach Post published an article entitled
“Facebook New Weapon in Nasty PBC Judicial Race.” On October 25, 2016, a
- 26 -
local attorney filed a complaint about Santino with the Palm Beach County Bar
Association’s Judicial Campaign Practices Commission (JCPC).3 In her response
to the JCPC complaint filed, Santino defended her actions by indicating that her
statements about Lerman’s experience were truthful, that the Facebook page was
made by an ECO independent of her campaign and was truthful, and that the
statements were attempts to highlight differences between Santino and Lerman.
On November 2, 2016, less than a week before the general election, the JCPC’s
advisory opinion unanimously concluded that Santino had violated several
provisions of the Judicial Canons, finding that she knowingly misrepresented
Lerman’s qualifications on numerous occasions, she made inflammatory
statements out of context, and she made statements that attempted to lead the
voters to choose a candidate based on an alleged predisposition. That same day,
the Palm Beach Post published an article about the JCPC’s findings against
Santino. In that article, Santino was quoted defending her actions again, stating, “I
appreciate the opinion of the commission; however, as the commission itself
discloses in their letter, it is just that–their opinion . . . .” In addition, Santino’s
3. The JCPC is an advisory body consisting of lawyers from the Palm Beach
Bar Association who attempt to moderate judicial campaigning in the Fifteenth
Judicial Circuit by offering advisory opinions about allegations of ethical
misconduct by judicial candidates. The JCPC is not a body of the JQC or the
Florida Bar.
- 27 -
campaign advisor, Giorgio, described Lerman as “desperate” and characterized the
JCPC complaint as “an attempt to generate press for his failing campaign.”
On October 27, 2016, the Palm Beach Post published another article titled
“PBC Court Race Gets Ugly–Some Say–in Donald Trump Like Way.” Santino
was quoted in the article defending her statements concerning Lerman’s choice to
represent criminal defendants, stating, “I completely respect and I’m proud of our
judicial system and while every person is entitled to a defense, Mr. Lerman is not a
public defender and chooses to represent individuals who commit heinous crimes.”
She further defended her statements by claiming to be pointing out differences
between herself and Lerman.
On November 3, 2016, Lerman and Santino were on opposite sides of an
early voting site and exchanged words over alleged misrepresentations made to
primary voters. Lerman recalled the exchange between them as Lerman stating,
“we’ll see what the Florida Bar and the JQC has to say about that,” to which
Santino responded, “it’s none of the business of the Florida Bar, the local Palm
Beach County Bar or the JQC. It has nothing to do with that. We didn’t do
anything wrong. I didn’t do anything wrong.”
On November 8, 2016, Santino defeated Lerman in the general election.
Santino never released an apology or a retraction about the statements made before
the election on November 8. Santino was sworn in as Palm Beach County Court
- 28 -
Judge on January 3, 2017. After being elected, Santino was questioned at a social
gathering with regard to whether misconduct charges could possibly lead to her
removal. Santino responded to the effect that “No. I think it will be – won’t rise to
that. It will be probably a fine. It’s not a big deal . . . .” (Emphasis added.)
On March 6, 2017, the Investigative Panel of the JQC filed a notice of
formal charges against Santino. The charges alleged that Santino made statements
that were false or misleading or both about her opponent in advertisements and
social media during her campaign for election to judicial office. Additionally, the
charges also addressed her defense of these statements in response to the JCPC
complaint. In her answer, Santino acknowledged that her comments drawing a
distinction between public defenders and private defense attorneys were
inappropriate. While explaining that the Facebook page was taken down at her
direction, Santino admitted that the statements were inappropriate, wrong, and used
language that violated the canons. However, she has continuously denied that the
inappropriate conduct represents a clear and present unfitness for office.
Santino testified at the final hearing that all of the conduct alleged in the
formal charges occurred in the last three and a half weeks of the campaign. As to
the Facebook page, Santino again admitted at the final hearing that the Facebook
page was inappropriate and violated the canons. Santino articulated that she had
not been aware of the content of the page prior to it being posted and ultimately
- 29 -
had the page taken down, which was after the damage had been inflicted. As to the
e-mail sent out by Santino’s campaign on October 12, 2016, Santino admitted full
responsibility for the language of the e-mail that outlined Lerman’s legal practice
as “limited to criminal defense – representing murderers, rapists, child molesters
and other criminals.” When asked by a panel member why she waited until after
the election to apologize to Lerman, Santino answered:
Mr. Lerman, after the election was over, had made it clear that he was
going to file a JQC complaint against me, so I did not know how to
handle the matter of apologizing to him, and as soon as everything
became official, the first thing I discussed with [my lawyer] was
apologizing to [Lerman] and apologizing to the JCPC.
Moreover, Santino was asked, “So as a candidate, you never said to the citizens of
this county, ‘what was on that Facebook page was a violation of the rules I agreed
to follow and it was deplorable and atrocious’? Did you ever say anything like that
during the campaign at any time.” Santino responded that she did not.
As explained above, after the hearing, the Hearing Panel found Santino
guilty of violating the Code of Judicial Conduct and the Rules Regulating the
Florida Bar, and it recommended a discipline of removal.
Santino is guilty of serious campaign violations that warrant the most severe
penalty. Based on this Court’s repeated warnings in past cases with regard to this
type of campaign behavior, I agree with the approval and confirmation of the
JQC’s recommendation of removal.
- 30 -
The supreme court may accept, reject, or modify in whole or in part
the findings, conclusions, and recommendations of the commission
and it may order that the justice or judge be subjected to the
appropriate discipline, or be removed from office with termination of
compensation for willful or persistent failure to perform judicial
duties or for other conduct unbecoming a member of the judiciary
demonstrating a present unfitness to hold office.
Art. V, § 12(c)(1), Fla. Const. “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.’ ” In re
Hawkins, 151 So. 3d 1200, 1216 (Fla. 2014) (quoting art. V, § 12(c)(1), Fla.
Const.).
I agree with the Court’s decision to abide by the JQC’s recommendation and
remove Santino from the bench for her egregious conduct during her campaign
because her decisions throughout her campaign, and her lack of authentic remorse
after being investigated and being found to have committed these campaign
violations, clearly demonstrated a present total unfitness to serve.
This Court has declared from time immemorial that the lack of
bias and partiality is an essential prerequisite to service as a judicial
officer. The promise of “Equal Justice Under Law” is essentially
predicated upon an independent judiciary committed to fairness and
justice in the application of the law to the facts of each individual
case. In Rose v. State, 601 So. 2d 1181 (Fla. 1992), we reaffirmed this
long established and oft-repeated principle in our jurisprudence:
The impartiality of the trial judge must be beyond
question. In the words of Chief Justice Terrell:
- 31 -
This Court is committed to the doctrine that
every litigant is entitled to nothing less than
the cold neutrality of an impartial judge. . . .
The exercise of any other policy tends to
discredit the judiciary and shadow the
administration of justice.
. . . The attitude of the judge and the
atmosphere of the court room should indeed
be such that no matter what charge is lodged
against a litigant or what cause he is called
on to litigate, he can approach the bar with
every assurance that he is in a forum where
the judicial ermine is everything that it
typifies, purity and justice. The guaranty of
a fair and impartial trial can mean nothing
less than this.
State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194
So. 613, 615 (1939).
Id. at 1183. Accordingly, no other principle is more essential to the
fair administration of justice than the impartiality of the presiding
judge.
In re McMillan, 797 So. 2d at 571.
This Court may order that a judge be removed from office for “conduct
unbecoming a member of the judiciary demonstrating a present unfitness to hold
office.” Art. V, § 12(c)(1), Fla. Const.
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 Sloop, 946 So. 2d 1046,
1055 (Fla. 2006).] To preserve the integrity of the judiciary, a judge
- 32 -
must observe a high standard of personal conduct, [and] “act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary,” . . . . Fla. Code of Jud. Cond. Canons 1,
3. We have repeatedly held that “[r]emoval 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.” Hawkins, 151 So. 3d
at 1215 (quoting Sloop, 946 So. 2d at 1055 (emphasis in original)).
See also In re Henson, 913 So. 2d [579, 588 (Fla. 2005)] (finding
removal appropriate because “the respect of the public [is] essential to
[the judiciary’s] mission as the third branch of government.”); In re
LaMotte, 341 So. 2d 513, 518 (Fla. 1977) (finding removal proper
even where misconduct does not appear to have shaken public faith in
the judiciary). Even where a judge has an outstanding record,
removal is the appropriate sanction for a judge whose misconduct is
fundamentally inconsistent with the responsibilities of judicial office
or strikes at the heart of judicial integrity. See, e.g., In re Graziano,
696 So. 2d 744, 749 (Fla. 1997); In re Johnson, 692 So. 2d 168, 172
(Fla. 1997) (“We cannot dispute Judge Johnson’s otherwise
unblemished judicial record.”); In re Garrett, 613 So. 2d 463, 464
(Fla. 1993) (removing Judge Garrett based on one incident of petit
theft despite an “unblemished career of public service”).
Our inquiry into judicial misconduct must also consider its
future implications on the offending judge’s ability to serve. Our
determinations of appropriate discipline are based in part on the
likelihood of that misconduct reoccurring. Compare, e.g., In re
Crowell, 379 So. 2d 107, 110 (Fla. 1979) (removing Judge Crowell
for unfitness “substantially due to his tendency to lose his temper”)
and Sloop, 946 So. 2d at 1059 (removing Judge Sloop because “we
[were] unconvinced that [he could] both effectively manage his
temper and remain an effective jurist”) with In re Wood, 720 So. 2d
506, 509 (Fla. 1998) (finding public reprimand appropriate given
Judge Wood’s candor and commitment to ongoing treatment for anger
and stress management). This Court has found removal appropriate
even where a judge seeks treatment for a medical condition related to
his or her severe misconduct. See, e.g., Sloop, 946 So. 2d at 1056(finding removal appropriate for arresting traffic defendants who were
in the wrong courtroom as a result of being misdirected, where the
judge blamed his conduct on his Attention Deficit Hyperactivity
- 33 -
Disorder); Garrett, 613 So. 2d at 464 (finding removal appropriate for
a one-time theft of electronics where the judge suffered from
depression). Furthermore, a pattern of misconduct is not necessary for
removal. See Sloop, 946 So. 2d at 1056; Garrett, 613 So. 2d at 464.
In re Murphy, 181 So. 3d 1169, 1177-78 (Fla. 2015).
Thus, the first step in the analysis requires examining the effects of Santino’s
actions on the public’s trust in the judiciary. Again, the question is not only
whether Santino’s campaign misconduct did erode the public’s confidence in the
judiciary, but also whether “the actions of the judge simply ‘should erode
confidence in the judiciary,’ even where it does not appear that the public has lost
confidence” in the judiciary. In re Hawkins, 151 So. 3d at 1215 (quoting In re
Sloop, 946 So. 2d at 1055). Here, it is indisputable that repeated comments
indicating Santino’s prejudice against criminal defendants and their legal counsel
should—and does—erode the public’s confidence in the fairness and impartiality
of members of the judiciary. Santino’s campaign used e-mails, news articles, and
Facebook posts to target Lerman and to imply his inability to be a good member of
the judiciary, based solely on his legal practice as a criminal defense attorney—
three cases of which were undertaken based on court appointment from a conflict
registry for indigent defendants—a fact that Santino ignored and failed to mention
in her smear campaign. These types of misadventures cause the public to lose trust
and confidence in the judiciary. See In re Dempsey, 29 So. 3d 1030, 1033 (Fla.
2010) (“It is clear that a member of the judiciary or judicial candidate should not
- 34 -
mislead the public by placing factually incorrect statements in campaign
materials.”); see also id. (stating that this Court has “repeatedly placed judicial
candidates on notice that this type of misconduct will not be tolerated”).
Furthermore, Santino’s repeated lack of remorse and her numerous pompous
statements to various members of the public defending her misconduct as being
beyond reproach further erode the public’s confidence in the judiciary. “Given the
clear erosion of public confidence in the judiciary caused by [her] misconduct,
removal is an appropriate sanction.” In re Murphy, 181 So. 3d at 1178; see also id.
at 1177 (“Even where a judge has an outstanding record, removal is the appropriate
sanction for a judge whose misconduct is fundamentally inconsistent with the
responsibilities of judicial office or strikes at the heart of judicial integrity.” (citing
In re Graziano, 696 So. 2d at 749; In re Johnson, 692 So. 2d at 172; In re Garrett,
613 So. 2d at 464)).
The next step in the analysis requires an examination of the likelihood of
future misconduct. Although there was testimony that Santino served in the civil
division, her egregious campaign conduct presented serious issues of fairness and
impartiality, should she ever have been assigned to serve in the criminal division of
any court. How could criminal defendants believe that Santino would be a fair and
impartial arbiter of the law after her comments during her campaign, especially
when represented by a private attorney? Every aspect of her judicial campaign
- 35 -
violations demonstrated that Santino’s conduct was “fundamentally inconsistent
with the responsibilities of judicial office.” In re Graziano, 696 So. 2d at 753.
Moreover, as this Court has repeatedly emphasized, a pattern of misconduct is not
a necessary prerequisite for removal. Here, Santino’s clean prior record alone
could not absolve her of the sanction of removal, given her very public and
repeated statements concerning her opinion on private criminal defense attorneys
and criminal defendants in general. In re Graham, 620 So. 2d 1273, 1276 (Fla.
1993) (“Conduct unbecoming a member of the judiciary may be proved by
evidence of specific major incidents which indicate such conduct, or it may also be
proved by evidence of an accumulation of small and ostensibly innocuous
incidents which, when considered together, emerge as a pattern of hostile conduct
unbecoming a member of the judiciary.” (quoting In re Kelly, 238 So. 2d 565, 566
(Fla. 1970))).
In addition, Santino attempted to justify her poor judgment, stating that she
was too busy and sleep deprived to appropriately manage her campaign. I would
be remiss, however, to accept this unjustified and feeble justification. Members of
the judiciary often face times of high stress, busyness, and sleep deprivation; yet,
they are nonetheless expected to maintain appropriate judicial composure during
these high-pressure situations. It lends no consolation that, under times of stress,
busyness, or sleep deprivation in the future, Santino would potentially lash out
- 36 -
again against criminal defendants and their counsel. Additionally, because Santino
may at some point during her time on the bench have been rotated to the criminal
division of her court, I cannot say with any degree of certainty that future
misconduct was unlikely—especially in times of high stress. Therefore, based on
Santino’s clear and repeated erosion of public faith in our court system and the
unmistakable possibility that she may have repeated this misconduct in the future, I
necessarily agree that Santino was presently unfit to serve. See In re Renke, 933
So. 2d at 495 (“[O]ne who obtains a [judicial] position by fraud or other serious
misconduct . . . is by definition unfit to hold that office.”).
This Court also considers mitigating factors when reviewing the
recommendations of the JQC, including, among other things, an expression of
genuine remorse, acceptance of full responsibility for the actions committed,
apologizing to the harmed parties, and seeking treatment or guidance for the
problematic behaviors. In re Contini, 205 So. 3d 1281, 1284 (Fla. 2016). As I will
discuss at length below, however, Santino repeatedly attempted to defend and
justify her campaign violations, until the moment when a JQC complaint was filed
against her, at which point she decided to apologize to Lerman and the JCPC.
Therefore, despite any positive character testimony presented in her favor, I am
unpersuaded by the mitigation Santino attempted to present. In re Murphy, 181
So. 3d at 1178; see also id. at 1177 (“Even where a judge has an outstanding
- 37 -
record, removal is the appropriate sanction for a judge whose misconduct is
fundamentally inconsistent with the responsibilities of judicial office or strikes at
the heart of judicial integrity.” (citing In re Graziano, 696 So. 2d at 749; In re
Johnson, 692 So. 2d at 172; In re Garrett, 613 So. 2d at 464)). Furthermore,
although the majority attempts to commend the mitigation Santino presented in her
favor, this mitigation, in my view, is nothing more than another attempt at
rationalizing her campaign misconduct.
Santino attempted to reduce her flagrant misbehavior during her campaign to
simple “mistakes” that were caused by the erroneous advice of a ruthless campaign
advisor and her failure to attend the local judicial campaign conduct forum
sponsored by this Court and the Florida Board of Governors. However, Santino
signed a form under oath attesting that she reviewed the judicial canons and
understood her obligations under those canons. She also allegedly reviewed a
pamphlet she received that explained Canon 7 and discussed campaign pitfalls and
restrictions. Nevertheless, she admitted that she failed to review any of the case
law attached to the pamphlet pertaining to her ethical obligations in her judicial
campaign. Despite having failed to perform her due diligence with regard to her
ethical obligations as a judicial candidate, Santino sought to be excused by this
Court for her violations. I cannot, however, reconcile Santino’s willful blindness
with the concept of due diligence or with the obligation of all attorneys and judges
- 38 -
to comport themselves in a manner consistent with the ethical and professional
obligations that every single member of The Florida Bar swore an oath to uphold.
Further, it was not Santino’s “rogue” campaign manager who was responsible for
informing her of her ethical obligations during her judicial campaign. The duty to
inform herself of the requirements and limitations of judicial election campaigns
was Santino’s and hers alone, and her reliance on her campaign manager’s every
word further buttressed her questionable judgment.
In fact, Santino’s campaign behavior is exactly the behavior that I cautioned
would arise in the aftermath of In re Kinsey, when Judge Kinsey was not removed
from office as the JQC had recommended. See 842 So. 2d at 97-100 (Lewis, J.,
concurring in part and dissenting in part). In re Kinsey involved a series of
campaign literature and interviews that portrayed Judge Kinsey as “pro law
enforcement” and as a judge who, if elected, would favor victims and police
officers over defendants in criminal cases due to her prosecutorial background. Id.
at 80-85. This Court imposed a $50,000 fine and a public reprimand in response to
these campaign violations. Id. at 92-93. In my separate opinion, I detailed my
frustrations with simply imposing a fine for these very serious campaign
violations, specifically predicting that dirty campaign schemes would become the
trend in the future, as long as candidates were able to pay the fine. Id. at 99(Lewis, J., concurring in part and dissenting in part).
- 39 -
In my view, the imposition of this fine, the amount of which is
clearly designed and intended to represent the enormity of the
reprehensible behavior, sends the message to future candidates that
they may violate the Code and commit ethical breaches, if they are
prepared to pay a monetary fine following the election. The kinds of
promises and type of condemnable campaign behavior demonstrated
here tarnishes the very purpose for which the judiciary was
established—to fairly and impartially consider any and all matters,
without preconceived notions or positions about the merits of each
case. Judges should not pledge to be prosecutors or defense attorneys;
they should pledge to administer the law neutrally and justly. . . . I
conclude that if the actions are so reprehensible that the majority
believes the imposition of a $50,000 fine is justified, those actions
must certainly justify removal from the office so tainted. Selecting an
enormous fine as discipline only sends the message that “anything
goes” in judicial elections if a candidate has the financial ability to
pay the monetary consequences. Indeed, in this era in which many
judicial candidates in Florida are able to produce significant campaign
funds from donations or personal assets, there may come a day when
candidates simply maintain monetary reserves to pay fines following
the election and then only the economically powerful can successfully
compete in the election process.
Id.To make matters worse, in the instant case, after being sworn in as a Palm
Beach County judge, Santino was questioned with regard to whether her
misconduct during the election campaign could possibly lead to her removal.
Santino’s response to this questioning was:
‘No. I think it will be – won’t rise to that. It will probably be a fine.
It’s not a big deal . . . .’
(Emphasis added.) However, as this Court has repeatedly cautioned in past
precedent, I believe that what she has done to obtain the judicial office is a big
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deal. See In re Renke, 933 So. 2d at 493-95 (discussing this Court’s repeated
warnings in past case law concerning campaign violations). I refuse to endorse
Santino’s “win-at-all-costs-and-pay-the-fine-later” strategy, especially in light of
this Court’s past warnings and stated intolerance for the kinds of campaign
violations at issue here. By her own admission, if this Court simply imposed a fine
in an attempt to evidence the enormity of Santino’s reprehensible behavior, it
would be seen as “no big deal” in her eyes.
Furthermore, Santino asserted that she accepted responsibility for her actions
and felt remorse for her conduct during her campaign. However, contrary to her
assertion, Santino demonstrated a consistent and repeated lack of remorse and
refusal to accept responsibility for her actions throughout her campaign, which this
Court has repeatedly deemed to be a sufficient basis for removal. See In re
McMillan, 797 So. 2d at 572 (citing In re Shea, 759 So. 2d 631 (Fla. 2008); In re
Graham, 620 So. 2d 1273). Specifically, in response to the complaint filed against
Santino with the JCPC, Santino responded that her statements concerning her
opponent were truthful statements that were meant to highlight the differences
between her and Lerman, and that the Facebook posts in question had been created
by an ECO.4 In response to a news article covering her comments concerning
4. Although Santino claims that the ECO was responsible for the
problematic Facebook posts, this ECO was formed and controlled by Santino’s
campaign consultant, Patriot Games, Inc. Moreover, the misleading Facebook
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Lerman’s criminal defense practice, she defended herself by saying that she was
simply stating the facts and attempted to draw a distinction between public
defenders who represent indigent criminals and private criminal defense attorneys,
stating “Lerman is not a public defender and chooses to represent individuals who
commit heinous crimes.” (Emphasis added.) After the JCPC issued its unanimous
advisory opinion finding that Santino had violated several judicial canons, Santino
nevertheless continued to attack Lerman for representing persons accused of
crimes and made no efforts to retract prior statements or to instruct her campaign
manager to conform his behavior to the campaign rules. Additionally, the same
day that the JCPC’s opinion was issued, Santino was quoted in a news article
stating that the JCPC’s findings were “just . . . their opinion” and her campaign
manager described Lerman as “desperate.” While at an early voting site, Santino
and Lerman discussed what The Florida Bar and the JQC would say about her
campaign comments, and she responded, “It’s none of the business of the Florida
Bar, the local Palm Beach County Bar, or the JQC. It has nothing to do with that.
We didn’t do anything wrong. I didn’t do anything wrong.” (Emphasis added.) In
posts about Lerman were clearly under Santino’s control, as evidenced by the fact
that, when the Facebook posts at issue began to receive negative pushback from
prominent attorneys in the area, Santino ordered that the posts be deleted and her
request was immediately honored. Thus, despite her attempt at deflecting
responsibility, these reprehensible Facebook posts were created by Santino’s
campaign agents and were the direct product of her election campaign.
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sum, Santino’s campaign strategy was quite literally one of win-at-all-costs and it’s
better to beg for forgiveness than to follow the law.
Now, when faced with a JQC investigation and possible removal from the
bench, Santino reversed course and attempted to play nice after being caught and
being held accountable for her shameful actions. Santino’s obvious lack of
authentic remorse or genuine apology throughout her campaign and the JQC
investigation5 reflect deep-rooted character flaws that should have, on their own,
served as a basis for removal due to her unfitness to serve on the bench. Further,
her obvious bias against lawyers who choose engage in criminal defense work,
specifically those who represent non-indigent criminal defendants, showed an
alarming disregard for the fundamental constitutional values that every judicial
5. The JQC was in the best position to determine the genuineness of
Santino’s asserted remorse. The JQC, however, made it clear that it did not
consider Santino’s apology after the fact to be a credible one. “It is worth pointing
out, however, that [Santino’s] acceptance of responsibility, and expressions of
remorse came only after the JQC had provided a Notice of Investigation.
Throughout her campaign, Santino did not apologize for her campaign’s
inflammatory and derogatory statements about her opponent. Indeed, time and
again, when presented with an opportunity, [Santino] defended her misconduct.”
Because the JQC was in the best position to view Santino, and take into account all
of the testimony presented for and against her, I defer to its findings on the
credibility and genuineness of her acceptance of responsibility. See In re
Graziano, 696 So. 2d at 753 (“If the [JQC] findings meet [the clear and convincing
evidence] standard, then they are of persuasive force and are given great weight by
this Court. This is so because the JQC is in a position to evaluate the testimony
and evidence first-hand.” (citation omitted)).
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officer swears to uphold. See In re McMillan, 797 So. 2d at 571 (“[T]he Court has
often pointed out that 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.” (citing In re Boyd, 308 So. 2d
13, 21 (Fla. 1975))). Therefore, Santino’s disingenuous apologies and assertions of
remorse did not provide adequate mitigation to persuade me against the sanction of
removal. See In re Graham, 620 So. 2d at 1276 (“A judge who refuses to
recognize his [or her] own transgressions does not deserve the authority or
command the respect necessary to judge the transgressions of others.”).
Most concerning, however, is that Santino’s campaign violations again
remind us that this Court’s prior precedent with regard to these kinds of violations
are being repeatedly ignored, while the conduct itself becomes more and more
aggravated. See In re Renke, 933 So. 2d at 493-95 (discussing this Court’s
repeated warnings in past case law concerning campaign violations); see also In re
Angel, 867 So. 2d 379, 383 (Fla. 2004) (“Certainly, in very egregious cases, where
a judge’s misconduct included implications that he or she would make partisan
decisions on the bench, the JQC has recommended a substantial fine in addition to
a public reprimand and even removal.” (emphasis added) (citing In re Kinsey, 842
So. 2d at 92; In re McMillan, 797 So. 2d at 572)). In In re Alley, this Court
addressed these kinds of campaign violations and cautioned future judicial
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candidates against their repetition. 699 So. 2d 1369. Four years later, this Court
again voiced its disapproval of similar, but more egregious, campaign violations in
In re McMillan. 797 So. 2d 560. Then, only two years later, in In re Kinsey, the
Court was again faced with even more serious campaign violations that were in the
same vein as those of the cases that preceded it. 842 So. 2d 77. Now, the Court is
yet again addressing campaign violations similar to those in cases past. Moreover,
the campaign violations that Santino committed are the most flagrant to date, and
her lack of remorse is the most blatant yet. Thus, I reemphasize this Court’s
previously stated no-tolerance practice in these situations and conclude that the
only result worthy of yet another case involving conduct that ignores our judicial
canons on campaign misconduct was removal.
In sum, I believe that:
Chief Justice Terrell’s words guaranteeing to all “the cold
neutrality of an impartial judge” have special application here where
the personal political aspirations and subsequent vindictiveness of an
individual judge have been allowed to tarnish the robes of justice.
Further, as we attempted to make clear in In re Alley, to allow
someone who has committed such misconduct during a campaign to
attain office to then serve the term of the judgeship obtained by such
means 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 McMillan, 797 So. 2d at 573. “A judgeship is a position of trust, not a
fiefdom. Litigants and attorneys should not be made to feel that the disparity of
power between themselves and the judge jeopardizes their right to justice.” In re
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Graham, 620 So. 2d at 1277. We must remember lawyers represent citizens when
charged with crimes. Some citizens are found to be guilty but others are found not
guilty. Who will be there to defend the innocent citizens when wrongly charged by
our government if we allow judicial candidates to batter and demean lawyers who
afford legal representation? This type of campaign conduct is a full attack on the
system of equal justice and the right to counsel.
Accordingly, I agree that Judge Santino’s misconduct clearly
“demonstrate[d] a present unfitness to hold office.” Art. V, § 12(c)(1), Fla. Const.
Therefore, pursuant to this Court’s precedent, removal was not only warranted, it
was the only appropriate result. However, for the reasons set forth above, although
I concur in the result of Santino’s removal, I cannot sign on to a majority that is not
fully developed and presented.
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APPENDIX
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POLSTON, J., dissenting.
In this matter involving serious campaign misrepresentations in violation of
the Florida Code of Judicial Conduct, I would impose a very severe discipline of a
90-day suspension without pay, a $50,000 fine plus the cost of these proceedings,
and a public reprimand. However, unlike the majority, I would not follow the
JQC’s recommendation of removal because removal is not consistent with our
precedent involving this type of serious campaign misconduct. Therefore, I
respectfully dissent.
I. BACKGROUND
On March 6, 2017, the Investigative Panel of the JQC filed a notice of
formal charges against Judge Dana Santino. The charges alleged that Judge
Santino made false or misleading statements about her opponent in advertisements
and social media during her judicial campaign. Additionally, the charges
concerned Judge Santino’s defense of these statements in response to a complaint
filed with the Palm Beach County Bar Association’s Judicial Campaign Practices
Commission (JCPC). In her answer, Judge Santino acknowledged that her
comments were inappropriate, and she expressed regret for them. She explained
that the Facebook page that was viewable for approximately one month was taken
down at her direction. And Judge Santino acknowledged that the statements were
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inappropriate and violated the canons. However, she denied that those mistakes
represent a clear and present unfitness for office.
On August 2, 2017, a final hearing was held before the Hearing Panel of the
JQC. Santino’s opponent for judicial office, Gregg Lerman, testified that he dealt
with the other candidate for the seat “on an extremely friendly and personal basis”
and “took the position with Ms. Santino that I not deal with her at all.” Lerman
testified that he “was admittedly unhappy that she was running on [his] dime, to
put it bluntly, because [he] had been the one to sue the governor and paid the fees
to sue the governor, and she jumped in after that.” Lerman also was asked about
derogatory statements he made about Judge Santino during the campaign.
Specifically, when asked whether he commented, “I don’t have the luxury of being
an attractive woman riding on my husband’s coattails,” Lerman answered that he
said something to that effect. Additionally, on the night of the primary, Lerman
gave an interview where he stated that “the gloves are going to come off in the
upcoming months.” Shortly after, Lerman sent an email that stated, “I need your
help in order to protect the integrity of the bench from becoming a vanity prize.”
Judge Santino testified at the final hearing that all of the conduct alleged in
the formal charges occurred in the last three and a half weeks of the campaign. As
to the Facebook page, Judge Santino testified at the final hearing that the Facebook
page was inappropriate and violated the canons. Judge Santino articulated that she
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had not been aware of the content of the page prior to it being posted and had the
page taken down immediately when she learned of its existence. As to the email
sent out by her campaign on October 12, 2016, Judge Santino admitted full
responsibility for its language. Judge Santino testified that in the 5 days between
the release of the JCPC advisory opinion and the final day of voting in the election
on November 8, 2016, she did not release an apology or a retraction about the
statements she had previously made or fire her campaign manager. However,
Santino testified that she sent apology letters to Lerman and the members of the
JCPC after the election was over.
Additionally, the Hearing Panel of the JQC heard testimony from witnesses
on behalf of Judge Santino. Judge Jeffrey Colbath testified that he was serving as
the Chief Judge of the Fifteenth Judicial Circuit when Judge Santino became a
sitting judge in January 2018. Judge Colbath testified that he never got any
complaints about Santino and that she volunteered to help out colleagues. Judge
Colbath testified that Judge Santino volunteers for weekend civil drug court that
carries no extra compensation. When asked if Judge Santino was presently fit to
sit as a county court judge, Judge Colbath stated, “I think she’s presently fit. I
think what’s happened is unfortunate and worthy of your attention and
consideration, but as far as her ability to do her job not only efficiently, but
exemplary in the Palm Beach County Courthouse, I think she’s good to go.”
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Judge Theodore Booras, who has served as a Palm Beach County Judge for
11 years, testified that he has known Judge Santino since 1993, when he was an
assistant state attorney and she worked as a probation officer. Judge Booras
testified that he also worked with Judge Santino when she worked for a
community-based drug treatment program where she advocated for eligible
individuals to be offered diversion programs. Judge Booras acted as Judge
Santino’s unofficial mentor in the civil division. Judge Booras testified that Judge
Santino has a strong work ethic, is helpful to colleagues, well-regarded by
practitioners, and has worked hard to manage her caseload. When asked about
Judge Santino’s fitness to serve as a judge, Judge Booras stated that Judge Santino
is an excellent judge. The Hearing Panel also heard testimony from two lay
witnesses who gave exemplary character references for Judge Santino.
As detailed by the majority, the Hearing Panel concluded that Judge
Santino’s statements violated Canon 7 of the Florida Code of Judicial Conduct, and
it recommended her removal from office.
II. ANALYSIS
While I agree with the JQC and the majority that Judge Santino is guilty of
serious campaign violations that warrant a severe penalty, I disagree with removal.
“The supreme court may accept, reject, or modify in whole or in part the
findings, conclusions, and recommendations of the commission and it may order
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that the justice or judge be subjected to appropriate discipline, or be removed from
office with termination of compensation for willful or persistent failure to perform
judicial duties or for other conduct unbecoming a member of the judiciary
demonstrating a present unfitness to hold office. . . . ” Art. V, § 12(c)(1), Fla.
Const. (emphasis added). “Removal is proper when clear and convincing evidence
is present that the judge has engaged in ‘conduct unbecoming a member of the
judiciary demonstrating a present unfitness to hold office.’ ” In re Hawkins, 151
So. 3d 1200, 1216 (Fla. 2014) (quoting Art. V, § 12(c)(1), Fla. Const.).
This Court’s imposition of removal in prior cases involving Canon 7
violations was dependent on misconduct in addition to campaign
misrepresentations. See, e.g., In re Renke, 933 So. 2d 482 (Fla. 2006); In re
McMillan, 797 So. 2d 560 (Fla. 2001). In In re McMillan, this Court ordered
removal after Judge McMillan committed serious violations while campaigning
and committed additional violations while a sitting judge. 797 So. 2d at 573.
During his campaign, Judge McMillan represented that he would favor the State
and police in court proceedings and would side against the defense. Id. at 562.
The JQC further alleged that, after taking the bench, Judge McMillan violated the
canons when he presided over the first appearance of a DUI case that he personally
witnessed and provided a statement to the police, a clear conflict of interest. Id. at
564. While acknowledging the severity of Judge McMillan’s improper and
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misleading campaign tactics, this Court explained that his conduct “after he
became a judge also places this case in a different category.” Id. at 572. This
Court concluded that the “combined effect of the proven misconduct, culminating
in a blatant breach of the fundamental principles of judicial ethics while sitting as a
judge, demonstrate Judge McMillan’s lack of fitness for office.” Id. at 573.
This Court was once again faced with campaign misrepresentations plus
additional conduct in In re Renke, 933 So. 2d at 484. In his campaign materials,
Judge Renke misrepresented that he was an incumbent, misrepresented his position
on the Southwest Florida Water Management District, misrepresented his judicial
experience, misrepresented endorsements, misrepresented his experience as a
lawyer, and misrepresented the qualifications of his opponent. Id. at 485-86.
Additionally, Judge Renke accepted illegal donations from his father, disguised as
compensation, in violation of state finance laws. Id. at 495. In concluding that
Judge Renke was presently unfit to hold office, which warranted removal, this
Court explained that “[t]he JQC’s finding of guilt on the severe campaign finance
improprieties evidenced here, when coupled with Judge Renke’s efforts to mislead
the voting public as to his experience and qualifications to serve as judge, lead us
to conclude that his conduct during his judicial campaign was ‘fundamentally
inconsistent with the responsibilities of judicial office.’ ” Id. at 495. (quoting In re
Graziano, 696 So. 2d 744, 753 (Fla. 1997)).
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More recently, in In re DuPont, 43 Fla. L. Weekly S337 (Fla. Sept. 6, 2018),
this Court determined that removal was appropriate where the judge not only
committed violations by making inappropriate campaign statements but also
committed violations while serving on the bench. While campaigning, Judge
DuPont falsely claimed that his opponent’s wife and daughter had been arrested
multiple times, improperly implied that his opponent changed his name to hide his
past, falsely asserted that his opponent received a traffic ticket for passing a school
bus with children on it, and inappropriately promised to never find a statute
unconstitutional. Id. at S337-40. However, in addition to these wrongful
campaign statements, Judge DuPont also violated the canons by conducting first
appearance hearings earlier than his judicial assistant had advised and when there
were no lawyers present for the State or the defendants. Id. at S340. And during a
hearing involving support for a minor child, he ordered a deputy to search a party
and to seize any money found after the party asserted an inability to pay for a
parenting class. Id. at S387. Further, the Chief Judge of the Seventh Judicial
Circuit “testified that he received far more complaints about Judge Dupont than
any other judge.” Id. at S340. In In re DuPont, this Court explained that “[b]ased
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
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conclude that Judge DuPont has demonstrated a present unfitness to hold office
and approve the recommended discipline of removal from office.” Id. at S342.
In contrast, in determining the appropriate discipline in a case involving only
serious improper campaign statements, in In re Kinsey, 842 So. 2d 77 (Fla. 2003),
this Court affirmed a public reprimand, fine of $50,000, and the cost of the
proceedings. During her campaign, Judge Kinsey distributed campaign literature
aligning herself with law enforcement, including several pamphlets that
proclaimed a judge’s role was to protect victims and put criminals behind bars in
support of law enforcement. Id. at 80-85. Specifically, Judge Kinsey included a
brochure where she was “standing with ten heavily armed police officers that was
captioned ‘Who do these guys count on to back them up?’ ” Id. at 87. In
determining Judge Kinsey’s present fitness in relation to the violations, this Court
explained that “[w]hile a reprimand alone is insufficient, there was no evidence
that Judge Kinsey is presently unfit to hold office other than her misconduct
involved in winning the election.” Id. at 92 (quoting JQC findings). This Court
supported the decision of a $50,000 fine, noting that this severe penalty was “to
warn any future judicial candidates that this Court will not tolerate improper
campaign statements which imply that, if elected, the judicial candidate will favor
one group of citizens over another or will make rulings based upon the sway of
popular sentiment in the community.” Id. Accordingly, this Court determined that
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the appropriate discipline was a $50,000 fine, proceeding costs, and a public
reprimand. Id.The misconduct detailed in In re Kinsey is similar to the misconduct
involved in the present case. In In re Kinsey, this Court determined that removal
was not warranted when the judge utilized campaign materials to make improper
campaign statements that implied she would favor a particular group in her rulings.
See In re Kinsey, 842 So. 2d at 92. Here, Judge Santino utilized a Facebook page
and a campaign e-mail to make improper statements regarding her opponent’s
favoring of a particular group. Thus, similar to the discipline appropriate in In re
Kinsey, Judge Santino’s conduct warrants discipline other than removal.
Unlike this Court’s prior election cases ordering removal, Judge Santino’s
misconduct is limited to campaign misrepresentations. It is undisputed that Judge
Santino engaged in conduct amounting to serious campaign violations. The posted
Facebook page suggested that Lerman was unfit as he was pro-defense,
highlighting his extensive experience in criminal defense. Additionally, Santino’s
campaign e-mail framed her opponent’s experience as “limited to criminal
defense-representing murderers, rapists, child molesters and other criminals.”
However, this Court’s prior cases resulting in removal for improper campaign
statements involved additional misconduct by the judge. Judge Santino’s
misconduct does not rise to that level. Unlike the judge in In re Renke, Judge
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Santino did not commit serious campaign finance violations that amounted to
illegal conduct. In re Renke, 933 So. 2d at 484. Additionally, unlike the judge in
In re McMillan or the judge in In re DuPont, Judge Santino did not commit any
violations upon taking the bench that would suggest a present unfitness for office.
In re McMillian, 797 So. 2d at 565; In re DuPont, 43 Fla. L. Weekly at S338,
S341-42. Because Judge Santino committed serious campaign misrepresentations
without some additional misconduct establishing present unfitness, the
recommendation of removal is not the appropriate discipline.
To be clear, the nature of Judge Santino’s misconduct should be central to
our analysis, but this Court also considers mitigating factors when reviewing the
recommendation of the JQC. See In re Eriksson, 36 So. 3d 580, 595 (Fla. 2010).
While acknowledging the severity of Judge Santino’s improper and misleading
campaign tactics, her conduct after becoming a judge aids in the determination of
present fitness for office. Judge Santino accepted full responsibility for her actions
at every stage of these proceedings. Although it was a contentious election, as
evidenced by the record, Santino did not attempt to excuse her conduct during the
hearing and did not attempt to justify her actions in her two briefs to this Court.
Additionally, after the election, Judge Santino sent apology letters to Lerman and
the members of the JCPC. See In re Davey, 645 So. 2d 398, 405 (Fla. 1994)
(“Where a judge admits wrongdoing and expresses remorse before the
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Commission, this candor reflects positively on his or her present fitness to hold
office and can mitigate to some extent a finding of misconduct.”).
This mitigation is considered alongside the exemplary character testimony
received at the hearing. Judge Colbath, who served as the Chief Judge when Judge
Santino joined the Fifteenth Judicial Circuit, testified that in his opinion, Judge
Santino was presently fit to sit as a county court judge, pointing to her efficient and
exemplary work at the courthouse. Additionally, Judge Booras, from the civil
division, opined that Judge Santino is an excellent judge who has a strong work
ethic, is helpful to colleagues, and well-regarded by practitioners.
Accordingly, Judge Santino’s misconduct, although serious, is not sufficient
to “demonstrate[] a present unfitness to hold office.” Art. V, § 12(c)(1), Fla.
Const. Therefore, a severe penalty rather than removal is warranted.
III. CONCLUSION
Based on our prior precedent involving serious and improper campaign
statements but no additional misconduct, I would suspend Judge Santino without
pay for 90 days, order her to pay a fine of $50,000, plus the costs of these
proceedings, and remand this case to the JQC for a determination of the amount of
such costs. Accordingly, I respectfully dissent.
CANADY, C.J., concurs.
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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, Judicial Qualifications Commission, Tallahassee, Florida; and Lauri
Waldman Ross of Ross & Girten, Counsel to the Hearing Panel of the Florida
Judicial Qualifications Commission, Miami, Florida,
for Florida Judicial Qualifications Commission, Petitioner
Jeremy J. Kroll of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, Florida,
for Judge Dana Marie Santino, Respondent
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