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BEFORE THE HEARING PANEL OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION INQUIRY CONCERNING A

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BEFORE THE HEARING PANEL OF THE

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

INQUIRY CONCERNING A

SUPREME COURT NO. SC07-774
JUDGE, NO. 06-249, MICHAEL ALLEN
________________________________/
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE HEARING PANEL,
JUDICIAL QUALIFICATIONS COMMISSION


Pursuant to Article V, §12(a)(1),(b) and (c) of the Florida
Constitution and the FJQC Rules, the Hearing Panel, Judicial
Qualifications Commission (JQC) submits these Findings,
Conclusions and Recommendations to the Florida Supreme Court.

THE COURSE OF PROCEEDINGS

On May 2, 2007, the Investigative Panel of the JQC filed a
notice of formal charges against the Honorable Michael E. Allen,
District Court Judge, First District Court of Appeal.
1
The
Investigative Panel charged Judge Allen with violating Canons 1,
2A, 3B(2), 3B(4), 3B(5) and 3D(1), Code of Judicial Conduct, and
Rule 4-8.2(a), Florida Bar Rules of Professional Conduct. These
charges stem from Judge Allens concurring opinion in the case of
Childers v. State, 936 So. 2d 583, 619 (Fla. 1
st
DCA 2006) (en
banc) (1
st
DCA Case No.: 1D03-2154).

The Investigative Panel filed an Amended Notice of Formal
Charges in February 2008, adding the charge that Judge Allen
knowingly made false statements during an Investigative Panel

1

Pursuant to Fla. Const. Art. V, §12(b), the Investigative Panel
receives or initiates complaints, investigates and submits formal charges
to the Hearing Panel on a finding of probably cause, then files an Notice
of formal charges. The Hearing Panel holds a hearing, issuing findings,

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hearing, in violation of Canons 1, 2A, 3, 4A and 5, Code of
Judicial Conduct and Rule 4-8.4, Florida Bar Rules of Professional
Conduct.

Judge Allen timely moved to dismiss the initial charges. The
Hearing Panel denied the motion on September 20, 2007. Judge
Allen renewed this motion after he was served with the Amended
Notice of Formal Charges. By order dated April 29, 2008, the
Hearing Panel deferred ruling on the renewed motion until the
conclusion of the evidentiary hearing.

Judge Allen answered, generally denying all charges. He
asserted as affirmative defenses that: (1) the matters stated were
true and therefore not subject to sanction; (2) he did not violate
applicable codes of conduct; and (3) the publication of an opinion
by an appellate court judge is not subject to discipline.

Judge Paul Backman chaired the Hearing Panel, which conducted
the final hearing on June 9 through June 11, 2008. Six
Commissioners were present throughout the hearing and
deliberations. In addition to Chairman Backman, these included
Judge Thomas Freeman, attorney Miles McGrane, III, attorney
Michael Nachwalter (ad hoc replacement for recused member John
Cardillo), lay member Ricardo Morales, III and lay member Nancy
Mahon (ad hoc replacement for recused member Leonard Haber).

Special Counsel F. Wallace Pope and Jennifer Reh, and Interim
General Counsel Marvin Barkin, represented the Investigative

conclusions and recommendations
.

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Panel. Judge Allen was represented by attorneys Bruce Rogow,
Cynthia Gunther, Richard McFarlain and Guy Burnette, Jr. Attorney
Lauri Waldman Ross served as counsel to the Hearing Panel.

The pleadings are already on file with the Florida Supreme
Court, S.Ct. Case No.: SC07-974. The parties assisted the hearing
panel with a stipulated time line and exhibits.
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A transcript of the testimony (hereinafter T. __) and the
parties respective exhibits (hereinafter Ex. No. __) are being
filed simultaneously with these Findings of Fact, Conclusions and
Recommendations.

FINDINGS OF FACT
A. Background

Michael Allen served as the Public Defender for the Second
Judicial Circuit, when he was appointed to the First District
Court of Appeal, effective January 1990. (T. 71; 145; 598).
Charles Kahn was an attorney in private practice with the Levin
firm in Pensacola he was appointed to the First District in 1991.
(T.
100).

Both judges were screened by the judicial
nominating process, prior to this appointment. The First District
Judicial Nominating Commission (JNC) covers six judicial circuits,
and is comprised of nine members. At that time, these included
three gubernatorial appointees, three Florida Bar appointees, and
three appointees selected by the other six. (T. 205-06). It was
not weighted either way, thus, filtering the political process.

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Proposed Exhibits 16 and 17 were withdrawn. All of the remaining

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The JNC vetted all prospective candidates, and sent a slate of 3
qualified candidates to the Governor, who selected his appointees.
Both judges had good qualifications, when they received
gubernatorial appointments. (T. 206).

Judge Allen evinced a strong, intense dislike for Judge Kahn
which predated the Childers case. (T. 38; 42; 220-22; 372-73;
378). Judge Allen had nothing nice to say about Judge Kahn, and
when he discussed Judge Kahn with colleagues, it was in a
derogatory manner, not infrequently accompanied by profanity, and
reflected by a physical change in his appearance. (T. 43; 221-22;
260; 373; 378). Judge Allen disavowed such dislike, describing it
more as a lack of respect. (T. 130-31; 135; 214-16; 220).

By custom, the position of Chief Judge at Florida appellate
courts is determined by seniority. (T. 36; 216). Some judges
disagreed with the system, based on Fla. R. Jud. Admin.
2.210(a)(2) (The selection of a chief judge should be based on
managerial, administrative and leadership abilities.). (T. 452).
However, the seniority system remained in place at the First
District until Judge Kahn was next in line. Judge Allen then
actively solicited other judges to contest Judge Kahns election,
voicing objections to his fitness. (T. 37-38; 215; 225). Two
judges declined to run for the chief judgeship, believing a
contested election would prove divisive, inevitably breed bad
feelings, and threaten the Courts collegiality. (T. 39; 215-16).

numbered exhibits went into evidence by agreement.


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A third, encouraged and supported by Judge Allen, ran against
Judge Kahn, but was defeated in the election. (T. 39-41).
B. The Childers Case

W.D. Childers is a former state legislator, convicted of
bribery and unlawful compensation or reward for official behavior.
At the time of his unlawful activity, Childers and Willie Junior
served as Escambia County Commissioners. Junior agreed to testify
against Childers as part of a plea agreement with the State. (Ex.
1). Junior died after Childers conviction, but prior to
resolution of Childers appeal.

Childers appeal was taken to the First District Court of
Appeal, where it was blindly assigned to a three judge panel,
comprised of Chief Judge Kahn, Richard W. Ervin, and William Van
Nortwick, Jr. (Stipulation, ¶1, T. 590). Judge Kahn departed the
Levin firm for the bench in 1991. (T. 118). This was several
years before the tobacco litigation. (T. 100-01; 588). Judge
Kahn routinely recused himself on all appeals handled by Fred
Levins law firm. (T. 134; 151; 527). Fred Levins law firm did
not handle Childers appeal, and the lawyers representing Childers
(the law offices of Richard G. Lubin, P.A., West Palm Beach) were
not connected with the Levin firm. (Exs. 1, 2, 13; T. 193-94; 527;
586-87). No party to the appeal sought Judge Kahns recusal. (T.
114; 281).

Oral argument in Childers was twice postponed, and finally
occurred on November 9
th
, 2004. (T. 443). The three judge panel

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voted unanimously (3-0) to reverse Childers conviction.
(Stipulation, ¶1). Judge Kahn was the primary judge assigned to
author the opinion. (Stipulation, ¶1).

After opinions are written, but prior to their public
dissemination, they are circulated to all judges on the First
District during a pre-release screening process. This process,
among other things, is designed to ensure accuracy. (T. 54).

In January, 2005, a proposed unanimous (3-0) opinion authored
by Judge Kahn, was pre-released, and circulated to the entire
court. (Stipulation, ¶1; T. 54; 141). This unanimous opinion
would have reverse