Inquiry Concerning A Judge, No. 06-249 Re: Michael E. Allen
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Supreme Court of Florida
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No. SC07-774
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INQUIRY CONCERNING A JUDGE, NO. 06-249 RE: MICHAEL E.
ALLEN.
[December 18, 2008]
CORRECTED OPINION
PER CURIAM.
We have for review the finding of the Judicial Qualifications Commission
(JQC) that First District Court of Appeal Judge Michael Allen violated the Code of
Judicial Conduct and its recommendation that Judge Allen be publicly
reprimanded. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons
discussed below, we approve the JQC’s findings, conclusions, and
recommendation.
FACTS AND PROCEDURAL HISTORY
This case arises from formal charges brought by the JQC against Judge
Michael Allen. These charges involve Judge Allen’s concurring opinion in
Childers v. State, 936 So. 2d 619 (Fla. 1st DCA 2006). In the Notice of Formal
Charges, the JQC accused Judge Allen of being motivated by ill will in writing his
concurring opinion and personally attacking First District Court of Appeal Judge
Charles Kahn in that opinion. As a result, Judge Allen was charged with violating
the preamble and Canons 1, 2A, 3B(2), 3B(4), 3B(5), and 3D(1) of the Code of
Judicial Conduct, and violating Rule 4-8.2(a) of the Rules of Professional Conduct
of The Florida Bar and the Oath of Admission of The Florida Bar. 1 After hearing
the testimony of several First District judges and attorneys who knew Judge Allen
and reviewing other evidence, the Hearing Panel of the JQC concluded that Judge
Allen violated Canons 1, 2A, and 3B(5) of the Code of Judicial Conduct and
recommended that Judge Allen be publicly reprimanded.
The following facts were determined by the JQC to be established by the
evidence. Judge Allen was appointed to the First District in January 1990. Judge
Kahn was appointed to the First District in 1991. 2 Judge Allen expressed a strong
dislike for Judge Kahn that predated the Childers case. Judge Allen generally
never had anything nice to say about Judge Kahn. In fact, when Judge Allen spoke
about Judge Kahn with other judges, it was usually in a derogatory manner. Judge
1. The JQC later filed an Amended Notice of Formal Charges, adding the
charge that Judge Allen knowingly made false statements during an Investigative
Panel hearing. However, the JQC found Judge Allen not guilty of this charge due
to insufficient evidence to support the charge.
2. Prior to joining the First District, Judge Kahn was an attorney in private
practice with the law firm of attorney Fred Levin. After joining the First District,
Judge Kahn routinely recused himself on appeals handled by the Levin law firm.
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Allen also did not respect Judge Kahn and believed that Judge Kahn was not what
a judge should be, was corrupt, and did not have the character traits to be chief
judge. When it was Judge Kahn’s turn to be chief judge in 2004, Judge Allen
solicited several judges to run against Judge Kahn for the chief judge position.
W.D. Childers, a former state legislator, was convicted of bribery and
unlawful compensation or reward for official behavior, and appealed his conviction
to the First District. This case was blindly assigned to a three-judge panel,
consisting of Chief Judge Kahn, Judge Ervin, and Judge Van Nortwick. After
hearing oral arguments, the three-judge panel voted unanimously to reverse
Childers’ conviction, and Judge Kahn, as the primary judge on the case, was
assigned the responsibility of authoring the opinion. After the proposed
unanimous opinion was circulated to all the judges, Judge Allen sought out another
judge to talk to Judge Kahn about recusing himself from the case. Judge Kahn told
that judge that he saw no reason to recuse himself. However, after further
discussion within the Court, a revised two-to-one Childers opinion was circulated
to all the judges.
Before the new two-to-one opinion was released, one of the judges prepared
an extensive memorandum, urging en banc review, which was circulated to all
judges. Subsequently, on February 2, 2006, the First District issued an en banc
decision, affirming Childers’ conviction by a ten-to-four vote. See Childers v.
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State, 936 So. 2d 585 (Fla. 1st DCA 2006). This decision consisted of nine
different opinions, which was the result of a legal dispute among the judges over
the district court’s decision to proceed en banc. One of the dissenting opinions was
authored by Judge Kahn, an opinion in which he expressed his view that the court
should not have granted en banc review. 3
Following the release of the en banc decision, Childers’ attorney moved to
certify certain questions to this Court. It was in the decision denying Childers’
motion for certification that Judge Allen filed his concurring opinion that is at issue
in the instant proceeding. See Childers v. State, 936 So. 2d 619, 622-29 (Fla. 1st
DCA 2006). After Judge Allen circulated this proposed concurrence to the other
judges, some of the judges warned Judge Allen not to release the opinion because
it was unwise and it would be problematic for him.
At the evidentiary hearing, several judges from the First District testified.
One judge said he specifically told Judge Allen that releasing the opinion would
affect him more than it would Judge Kahn. Although two judges believed that the
opinion was a reasonable explanation of why Judge Allen voted for an en banc
consideration and was not a personal attack on Judge Kahn, a majority of the
judges believed that the opinion was inappropriate and that it suggested that Judge
3. Judges Ervin, Webster, and Wolf also wrote separate opinions dissenting
to an en banc review of the case.
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Kahn was corrupt. Two judges testified that they believed the opinion was also
unnecessary because the case was, for all intents and purposes, over by the time
Judge Allen wrote his concurring opinion. Another judge testified that he showed
Judge Allen a proposed order that was a one sentence per curiam denial of
Childers’ motion for certification. However, Judge Allen refused to sign the
proposed order and said, “It’s time for them to get theirs.” The judge understood
“them” to mean Judge Kahn and Judge Wolf. Another judge believed that the
opinion was an abuse of power and that Judge Allen wrote the opinion to “settle a
score.”
Judge Allen also testified at the final hearing. He testified that if Judge
Kahn had recused himself and had not written his dissent on the en banc issue (and
if Judge Wolf had not written his dissent) accusing the majority of the court of
ignoring the requirements of the law, he would not have published his opinion. He
also said he did not believe he attacked Judge Kahn’s integrity. With regards to
the content of his concurring opinion, he admitted that although he quoted
extensively from three newspaper articles, he had no personal knowledge of the
facts contained in the articles and that Judge Kahn’s name did not appear in any of
the articles. He also conceded that he was not familiar with the relationship
between Judge Kahn and Childers.
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Based on these factual findings, the Hearing Panel of the JQC made
numerous conclusions including the following: Judge Allen’s concurring opinion
clearly implied that Judge Kahn cast a corrupt vote as a payback to friends; the
opinion was counter-productive and unnecessary; the opinion was a personal attack
on Judge Kahn even though Judge Allen phrased the opinion in the third person;
Judge Allen did not pursue proper methods of bringing claims of impropriety to the
appropriate authority such as the JQC or law enforcement; Judge Allen acted from
a dual motive: (1) a perceived threat to the integrity of the court by criticism, and
(2) an extraordinary level of antipathy to Judge Kahn; Judge Allen knew that his
opinion would harm Judge Kahn and would impede future endeavors by Judge
Kahn, including other judicial opportunities; Judge Allen’s opinion brought the
court and the judiciary into disrepute; and the opinion did not promote public
confidence in the integrity and impartiality of the judiciary. As a result, the JQC
Hearing Panel found that Judge Allen was guilty of misconduct and recommended
that Judge Allen be publicly reprimanded.
ANALYSIS
Judge Allen now asserts that: (1) the JQC’s findings of fact are not
supported by clear and convincing evidence; (2) the conclusions of law are
unfounded as a matter of fact and law; and (3) a JQC proceeding based on a
judge’s written opinion violates the principles of judicial independence.
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Clear and Convincing Factual Findings
Judge Allen first argues that there is no clear and convincing evidence to
support the JQC’s findings that his concurring opinion was motivated by his
dislike of Judge Kahn, that the opinion was a personal attack on Judge Kahn, and
that the opinion suggested that Judge Kahn was corrupt. Upon review of the
record, however, we find that sufficient evidence supports the JQC’s findings.
The Florida Constitution vests this Court with the ultimate decision in
determining what constitutes misconduct and how to punish it. Article V, section
12(c)(1) provides, in pertinent part, that “[t]he 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.” In In re Graziano, 696 So. 2d 744, 753 (Fla. 1997), we described how
we review the JQC’s findings of fact:
Before reporting findings of fact to this Court, the JQC must conclude
that they are established by clear and convincing evidence. In re
McAllister, 646 So. 2d 173, 177 (Fla. 1994). This Court must then
review the findings and determine whether they meet this quantum of
proof, a standard which requires more proof than a “preponderance of
the evidence” but the less than “beyond and to the exclusion of a
reasonable doubt.” In re Davey, 645 So. 2d 398, 404 (Fla. 1994). If
the findings meet this intermediate standard, then they are of
persuasive force and are given great weight by this Court. See In re
LaMotte, 341 So. 2d 513, 516 (Fla. 1977). This is so because the JQC
is in a position to evaluate the testimony and evidence first-hand. See
In re Crowell, 379 So. 2d 107 (Fla. 1979). However, the ultimate
power and responsibility in making a determination rests with this
Court. Id.
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Furthermore, we have “relied upon the clear and convincing evidence standard
without distinguishing findings of fact from whether the facts as found warrant
particular discipline.” In re Henson, 913 So. 2d 579, 589 (Fla. 2005) (citing In re
Kinsey, 842 So. 2d 77, 85 (Fla. 2003)).
Although there is no direct evidence presented that animus was the motive
for Judge Allen’s concurring opinion, motive and intent are generally proven
through circumstantial evidence. See generally Perreault v. State, 831 So. 2d 784,
786 (Fla. 5th DCA 2002); Walton v. State, 780 So. 2d 1043 (Fla. 4th DCA 2001)
(recognizing that intent is ordinarily established by circumstantial evidence);
Grover v. State, 581 So. 2d 1379, 1380 (Fla. 4th DCA 1991) (“It is black-letter of
course that intent, being a state of mind, is rarely if ever susceptible of direct proof.
Almost inevitably, as here, it must be shown solely by circumstantial evidence.”)
(citing State v. Waters, 436 So. 2d 66 (Fla. 1983)).
Many of the judges who testified at the final hearing testified that Judge
Allen had a genuine dislike for Judge Kahn and did not have respect for Judge
Kahn. When it was Judge Kahn’s turn to become the chief judge, Judge Allen
solicited other judges to run against him in an election instead of continuing the
seniority system for determining the chief judge. In soliciting these judges, Judge
Allen explained that he did not feel that Judge Kahn was fit to be a chief judge and
did not have the proper character traits. Judge Allen even admitted at the final
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hearing that he does not have a lot of respect for Judge Kahn. Thus, even before
the Childers case, it is obvious that Judge Allen harbored ill will towards Judge
Kahn.
Judge Allen relies on the fact that none of the judges expressed a belief that
the opinion was in violation of the Code to argue that the opinion in fact does not
violate the Code. The record reflects that the judges had differing views of the
concurring opinion. 4 Some of the district court judges opined that a reasonable
reading of the opinion suggested that Judge Kahn was corrupt. Several of the
judges testified they believed the opinion was not in violation of the Code, while
other judges did not express their views either way. Most of the judges testified
that they warned Judge Allen that release of the opinion was unwise and it would
hurt him more than it would Judge Kahn. However, we conclude that the views of
his fellow judges are not determinative of whether a violation occurred.
Further, at the time the concurring opinion was published, the en banc court
had already affirmed Childers’ conviction by a vote of ten-to-four. Thus, it was
already assured that Judge Kahn would not cast a deciding vote reversing the
conviction.
4. If a judge believes that another judge’s conduct is in violation of the
Code of Judicial Conduct, the proper course for the judge is to report what the
judge knows to the JQC, or if a judge believes that another judge has violated
criminal law, the proper course is to report what the judge knows to the State
Attorney.
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A review of the language of the concurring opinion further demonstrates that
Judge Allen was motivated by his animus towards Judge Kahn and, based on this
animus, he personally attacked Judge Kahn and accused Judge Kahn of corruption.
In his concurring opinion, Judge Allen inserted three old newspaper articles that
explained a connection between Childers, Fred Levin, and Governor Lawton
Chiles. He brought Judge Kahn into the picture based on Judge Kahn’s prior
relationship with Fred Levin in the practice of law. Judge Allen then creatively
suggested corruption on the part of Judge Kahn by stating, in the third person, the
possibilities of bias in the negative. Judge Allen wrote:
During his tenure as governor, Lawton Chiles appointed nine
judges to this court. The very first of these appointments went to Fred
Levin’s 39 year-old law partner, Charles Kahn. It is certainly possible
that neither Judge Kahn’s senior law partner, Mr. Levin, nor Mr.
Levin’s well-placed friend, Senator Childers, exercised their reputed
considerable influence with their friend, Governor Chiles, in seeking
Judge Kahn’s appointment to this court. It is even possible that Judge
Kahn’s relationship with the governor's friend, Mr. Levin, had nothing
to do with the governor’s decision to appoint Judge Kahn. But a
member of the public familiar with the reported relationships between
these persons, and also familiar with the realities of the political
process, would not be considered unduly cynical to doubt these
possibilities.
....
Less suspicious members of the public familiar with the
information contained in the articles quoted above and also familiar
with Judge Kahn’s former association with Mr. Levin and his firm
would have found it inappropriate for Judge Kahn to have participated
in the case. And more suspicious members of the public would have
assumed that Judge Kahn had simply returned past favors provided to
him by Mr. Levin and Mr. Childers, thus allowing them, once again,
to “snooker the bastards.”
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Childers, 936 So. 2d at 627-28. At the final hearing, Judge Allen admitted that he
did not have personal knowledge of the facts of the newspaper articles that were
included in his opinion, that those articles did not mention Judge Kahn’s name, and
that he was not familiar with any relationship between Childers and Judge Kahn.
Judge Allen failed to mention in his opinion that Judge Kahn was appointed to the
district court in 1991, well before Childers, Fred Levin, and Governor Chiles were
involved in the tobacco litigation. Judge Allen also did not mention that the Levin
law firm did not represent Childers in his case. Judge Allen instead merely
assumed that because Fred Levin, Childers, and Governor Chiles had professional
relations and Judge Kahn had worked with Fred Levin before 1991, that Judge
Kahn may have paid Levin back for past favors with his vote in Childers.
In essence, Judge Allen accused a fellow appellate judge of judicial
corruption based on unverified facts that came from outside the record and were
not a part of the Childers case. Although Judge Allen asserts that he wrote the
opinion to simply explain why he voted in favor of an en banc consideration, we
find that Judge Allen went beyond this explanation and launched an unnecessary
personal attack on Judge Kahn based upon his dislike for him. Judge Allen may
not have been solely motivated by his dislike for Judge Kahn, but it is obvious
from the language of the opinion that his animus towards Judge Kahn played a
significant part in his decision to write the opinion.
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Accordingly, we approve the JQC’s findings of fact that in writing the
concurring opinion, Judge Allen was motivated by his dislike for Judge Kahn, that
Judge Allen personally attacked Judge Kahn in his concurring opinion, and that
Judge Allen suggested that Judge Kahn cast a corrupt vote in the Childers case.
Conclusions of Law
Judge Allen next argues that the JQC’s conclusion that Judge Allen
committed misconduct and violated Canons 1, 2A, and 3B(5) of the Code of
Judicial Conduct 5 are unfounded as a matter of fact and law. We disagree.
5. Canon 1 provides:
An independent and honorable judiciary is indispensable
to justice in our society. A judge should participate in
establishing, maintaining, and enforcing high standards of
conduct, and shall personally observe those standards so that
the integrity and independence of the judiciary may be
preserved. The provisions of the Code should be construed and
applied to further that objective.
Canon 2A provides:
A judge shall respect and comply with the law and shall
act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary.
Canon 3B(5) provides:
A judge shall perform judicial duties without bias or
prejudice. A judge shall not, in the performance of judicial
duties, by words or conduct manifest bias or prejudice,
including but not limited to bias or prejudice based upon race,
sex, religion, national origin, disability, age, sexual orientation,
or socioeconomic status, and shall not permit staff, court
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Like the JQC, we conclude that Judge Allen violated Canon 1 by using his
opinion-writing power not only to personally attack another appellate judge of the
same court, but also to accuse that judge of judicial corruption based on unverified
facts that were outside of the record. By engaging in such action, Judge Allen did
not observe a high standard of conduct required of a judge so as to preserve the
integrity of the court or the judiciary as a whole. Judge Allen also violated Canon
2A by failing to act in a manner promoting public confidence in the judiciary. The
commentary under Canon 2A states that actions and conduct by judges that are
harmful are prohibited under the provision. Judge Allen’s action of writing and
releasing his concurring opinion was not only harmful to Judge Kahn because it
accused him of corruption based on unverified facts, but it was also harmful to the
integrity of the First District. The proliferation of newspaper articles and public
commentary statewide after the publication of the Childers opinion was a clear
indication that the opinion did not “promote public confidence” in the judiciary but
instead had the opposite effect. Finally, by not writing a reasonable explanation of
officials, and others subject to the judge’s direction and control
to do so. This section does not preclude the consideration of
race, sex, religion, national origin, disability, age, sexual
orientation, socioeconomic status, or other similar factors when
they are issues in the proceeding.
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why he voted for an en banc consideration and, instead, using his power of the pen
to personally attack another appellate judge, Judge Allen violated Canon 3B(5).
By writing and publishing this opinion, Judge Allen created an impression that he
would have difficulty performing his judicial duties fairly and without bias.
Accordingly, we approve the JQC’s conclusion that Judge Allen committed
misconduct by personally attacking another appellate judge based on unverified
facts that were not in the record of the Childers case and, as a result, violated
Canons 1, 2A, and 3B(5) of the Code of Judicial Conduct.
Judicial Independence
Judge Allen contends that the doctrine of judicial independence precluded
the JQC from filing charges against him for his concurring opinion. Judge Allen
argues that to question by threat of sanction the reason for, the wisdom of, or the
motive behind a decision constitutes a gross intrusion into judicial independence
and will have a chilling effect on judges carrying out their duties.
While judicial independence is critical to the functioning of the judiciary, it
is not unlimited. In In re Turner, 421 So. 2d 1077 (Fla. 1982), we placed a judge’s
independence into context:
The duties, responsibilities, and powers entrusted to judges are
awesome. Judges must necessarily have a great deal of independence
in executing [their] powers, but such authority should never be
autocratic or abusive. We judges must always be mindful that it is our
responsibility to serve the public interest by promoting justice and to
avoid, in official conduct, any impropriety or appearance of
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impropriety. We must administer our offices with due regard to the
system of law itself, remembering that we are not depositories of
arbitrary power, but judges under the sanction of law. Judges are
expected to be temperate, attentive, patient and impartial, diligent in
ascertaining facts, and prompt in the performance of a judge’s duties.
Id. at 1081.
Generally, appellate judges are free to write almost anything in their
opinions regarding the decision of the case or the facts and law involved in the
case. However, the discussion must be germane to the case at bar and the facts that
are within the record of the case. In the instant proceeding, Judge Allen did not
confine his opinion to the facts that were within the record of the Childers case;
instead he used extrarecord materials to personally attack Judge Kahn’s decision to
not recuse himself from the case and to accuse Judge Kahn of corruption. In
addition, he failed to include vital facts that could have put doubt on Judge Allen’s
assumption that Judge Kahn had cast a corrupt vote. This type of action in a
judicial opinion cannot be condoned, nor can it be protected by judicial
independence. An appellate judge cannot use his opinion-writing power to
inappropriately personally attack another appellate judge by accusing him of a
crime. 6
6. To support his argument that an appellate judge cannot be sanctioned for
writing an opinion, Judge Allen cites to the Montana Supreme Court’s decision in
State ex rel. Shea v. Judicial Standards Commission, 643 P.2d 210 (Mont. 1982).
However, Judge Allen’s reliance on his case is misplaced because Shea did not
personally attack another justice in his opinion nor did he write the opinion out of
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While we find that the doctrine of judicial independence did not preclude the
JQC from filing charges against Judge Allen for writing and releasing his
concurring opinion in this case, we caution that our opinion today should not be
viewed as a license for the JQC to judge and evaluate judicial opinions. Often
judges use intemperate or colorful language in their evaluation of a fellow judge’s
opinion or reasoning. The choice of language used in such instances may not be
subject to scrutiny. However, Judge Allen’s opinion was not one of intemperate or
colorful language but crossed that line by falsely accusing Judge Kahn of
corruption and using unverified statements from materials outside of the record of
the case.
Discipline
Having approved the JQC’s conclusion that Judge Allen committed
misconduct, the final matter is the appropriate discipline. The JQC recommends
that we issue a public reprimand to Judge Allen. We agree.
Judge Allen does not challenge the propriety of a public reprimand and we
find it to be an appropriate punishment considering the nature of his conduct.
Although this type of conduct is one of first impression for this Court, we have
imposed public reprimands for judges who have criticized or made improper
animus for another justice. Rather, the opinion used intemperate language towards
the majority’s decision.
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statements towards other judges, attorneys, and other persons who came before the
court. See In re Schwartz, 755 So. 2d 110 (Fla. 2000) (involving judge who made
rude and discourteous remarks during oral argument); In re Marko, 595 So. 2d 46
(Fla. 1992) (involving judge who made improper and inappropriate remarks during
dissolution of marriage hearing); In re Carr, 593 So. 2d 1044 (Fla. 1992)
(involving judge who made rude and improper remarks regarding ethnicity during
a court hearing). Accordingly, we accept the JQC’s recommendation of a public
reprimand.
CONCLUSION
For the reasons stated, we approve the JQC’s findings of fact and its
conclusion that Judge Allen violated the Code of Judicial Conduct. We also
approve the JQC’s recommendation that Judge Allen be publicly reprimanded. In
accordance with the policy announced in In re Frank, 753 So.2d 1228, 1242 (Fla.
2000), we hereby command Judge Michael Allen to appear before this Court for
the administration of a public reprimand at a time to be established by the Clerk of
this Court.
It is so ordered.
QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.
CANADY and POLSTON, JJ., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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Original Proceeding – Judicial Qualifications Commission
Judge Morris Silberman, Chair, Judicial Qualifications Commission, Tampa,
Florida; Michael L. Schneider, General Counsel, Judicial Qualifications
Commission, Tallahassee, Florida; Marvin E. Barkin, Interim General Counsel,
Judicial Qualifications Commission, Tampa, Florida; Brook S. Kennerly,
Executive Director, Judicial Qualifications Commission, Tallahassee, Florida;
Lauri Waldman Ross of Ross and Girten, Miami, Florida, Special Counsel to
Judicial Qualifications Commisson; and F. Wallace Pope, Jr., and Jennifer A. Reh
of Johnson, Pope, Bokor, Ruppel and Burns, LLP, Clearwater, Florida, Counsel to
Judicial Qualifications Commission Hearing Panel,
for the Florida Judicial Qualifications Commission
Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort
Lauderdale, Florida; Sylvia Walbolt of Carlton Fields, P.A., Tampa, Florida;
Richard C. McFarlain, Tallahassee, Florida; and Guy E. Burnette, Jr., Tallahassee,
Florida,
for Judge Michael E. Allen
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