Judgment lacking in ethics case

By A Times Editorial
Published February 10, 2008

Put aside, for a moment, the possible motivations. An appellate judge who blew the whistle on a jarring conflict of judicial interest is now being punished by the Florida Judicial Qualifications Commission, and its selective prosecution is indefensible.

The commission, which has shown undue tolerance in recent years for many judges' misdeeds, is all but throwing the book at 1st District Court of Appeal Judge Michael E. Allen. His crime is that he questioned whether the court's then-chief judge, Charles J. Kahn Jr., should have recused himself in a high-profile corruption case that was defended by his former law partner.

"We should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions," Allen wrote in joining other judges who rejected the appeal of former Escambia County Commissioner W.D. Childers. "Yet I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration in this case."

Rather than pursue Kahn for a clear ethical violation and for well-founded charges of sexual harassment and workplace intimidation, the commission has instead set its sights on Allen. It is claiming he, not Kahn, has damaged the judiciary's image and, further, that Allen was pursuing some vendetta.

The case so far borders on farce. First, the stain on the judiciary is entirely Kahn's making. He not only voted to overturn the Childers conviction, but now has admitted to calling former law partner Fred Levin to warn him about the release of Allen's opinion. Kahn even admits he baited Levin's son into filing the ethics complaint against Allen.

It doesn't end there. In a series of sworn depositions of other judges and court personnel, Kahn has been described as "volatile," "duplicitous" and "schizoid."

Current Chief Judge Edwin B. Browning Jr. said that Kahn, when told about public records requests by the Times, "went schizoid - bouncing off the walls, he was totally irrational and started screaming and hollering he was going to report me to the JQC. He threatened to sue me, too." Another judge said Kahn, when asked about the case, told him to "get the f--- out of my office." A longtime court marshal said Kahn "didn't seem to be stable, it was scary."

If personal animosity is at the core of this case, as the JQC suggests, then it clearly has the wrong angry man.

By selecting Allen alone for prosecution, the JQC has essentially told judges in Florida to keep their mouths shut if they see bad judicial behavior. That's the unmistakable and unacceptable message from this prosecution, and the Florida Supreme Court ought to be asking questions. If the JQC thinks whistleblowers are the problem, it defends the judiciary's longstanding code of silence.