For stating opinion, judge is charged

A judicial panel says Michael E. Allen was wrong to question a fellow judge's ethics.

Published May 4, 2007

TALLAHASSEE - For daring to question the ethics of a fellow judge, 1st District Court of Appeal Judge Michael E. Allen is facing formal misconduct charges.

The state Judicial Qualifications Commission filed charges against Allen on Thursday that could lead to his removal from office.

In charges filed with the Florida Supreme Court, the commission said that by criticizing Judge Charles J. Kahn Jr. in a written court opinion, Allen could "impair the confidence of the citizens of this state in the integrity of the judicial system."

Said Bruce Rogow, one of Allen's attorneys: "It is unprecedented, not just here, but anywhere in the country, " for a judge to face disciplinary charges based on a written opinion.

"This is all about judicial independence, " Rogow said. "Can an appellate court judge write an opinion seen by all the members of the court before it goes out and still have to fear that the JQC will seek to punish him for that opinion?"

Historically, charges against judges are based on personal or professional misconduct or the alleged mistreatment of lawyers and litigants.

"All Judge Allen did was be candid about his reasons for thinking Judge Kahn should have recused himself, and he had the integrity to share it, " Rogow said.

Even Talbot "Sandy" D'Alemberte, who represented Kahn before the JQC, said he questions the decision to pursue charges against Allen.

"I really hope this thing disappears; it just isn't helpful to anybody, " D'Alemberte said. "I think judges should be disciplined because they've caused some kind of corruption or embarrassment to the judicial system. I like it better when the JQC sticks to that task."

The charges likely will further disrupt relations among the 15 judges at Florida's largest district court of appeal, where virtually all litigation involving state government is reviewed.

The charges against Allen stem from a June 28, 2006, court decision affirming the bribery conviction and prison sentence given former Sen. W.D. Childers.

At the time, Kahn was chief judge, but the uproar over the Childers case and questions raised about extramarital affairs Kahn had with two court employees led his fellow judges to replace him and file a complaint against him with the JQC.

The JQC rejected the complaint involving Kahn but accepted one filed against Allen by Martin Levin, son of Pensacola lawyer Fred Levin, a former law partner of Kahn's and a longtime friend of Childers'.

After leaving the state Senate in 2000, Childers won election to the Escambia County Commission and landed in trouble.

He was charged with delivering a cooking pot filled with cash to fellow Commissioner Willie Junior in return for his vote on a $4.1-million land purchase.

Junior testified against Childers, who was convicted of bribery.

Before Childers' appeal was decided, Junior was found dead under a house. The coroner attributed his death to drinking antifreeze.

Childers appealed the conviction and 3 1/2 year sentence to the district court. A three-judge panel headed by Kahn voted 2-1 to overturn the conviction.

Had that decision stood and with the key witness dead, Childers might not have faced another trial.

Over Kahn's vehement objections, the full appeal court reconsidered the case and voted 10-4 to uphold the conviction.

Judge Allen's opinion was issued after Childers' lawyers asked the court to reconsider. Allen wrote: "We should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions. Yet I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration in this case."

Oddly, Allen's concerns are almost precisely what the JQC now accuses him of doing: causing citizens to question the integrity of the court.

The formal charges criticize Allen for quoting from newspaper articles that described the longtime friendship and political influence wielded by Levin and Childers and former Gov. Lawton Chiles, who appointed Kahn to the court.

"In expressing your 'doubt' about what the 'public' would believe and not believe, you conveyed your own, personal belief in the truth of the matters, " the commission charged.

Allen's "attack on Judge Kahn, " the JQC said, was "unnecessary, unjustified and motivated by ill will."

Instead of criticizing Kahn publicly, the JQC said, Allen should have followed the rules and reported his belief to the JQC.

Complaints filed with the JQC are generally secret unless formal charges are brought.

In addition to Rogow, Allen is being defended by former JQC Chairman Richard McFarlain.

Lucy Morgan can be reached at lmorgan@sptimes.com or 850 224-7263.