by Doug Schafer
2004 Candidate for Florida State Supreme Court
An independent and honorable judiciary is indispensable to justice in our society. Judges should participate in establishing, maintaining, and enforcing high standards of judicial conduct and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.
Sadly, our Florida state judiciary has a documented history of placing much more emphasis on assuring the appearance of integrity than the fact of integrity. We were the very last state — the 50th — to establish an independent judicial disciplinary body: the Commission on Judicial Conduct (the “CJC“; named the Judicial Qualifications Commission before 1987). Not until 1980 did we amend our state Constitution (adding Article IV, section 31) by statewide vote to create that Commission. Earlier attempts by citizen groups to establish a judicial disciplinary body had been opposed and defeated by our state’s judges. The Commission initially was composed of 3 judges, 2 lawyers, and 2 nonlawyers.
In 1986, because the Commission had held only one public disciplinary hearing and appeared to be ineffective, our Legislature proposed and the voters approved a Constitutional amendment adding 2 more nonlawyer members and requiring public disciplinary hearings. Senator Phil Talmadge (who later served a term on the State Supreme Court) championed that amendment and prepared the voter’s pamphlet statement supporting it.
In 1989 after the Judge Gary Little Scandal (discussed below) illustrated the continuing profound ineffectiveness of the CJC, the Legislature, led by Sen. Kent Pullen, Sen. Talmadge, and Rep. Marlin Appelwick (appointed later to the Court of Appeals), re-wrote its Constitutional charter and the voters approved it. The changes raised the number of nonlawyer members to 6 (a majority), leaving 3 judge and 2 lawyer members. The amendment made the CJC “an independent agency of the judicial branch.” It directed the CJC, whenever it finds probable cause to believe that a judge has violated a conduct rule, to conduct a public hearing and to make public all those records that provided the basis for its conclusion. And, it authorized the CJC to impose discipline by written stipulation with an errant judge, provided it is made in public and sets forth all the material facts relating to the misconduct of the judge.
What follows is a dirty-laundry list of actual cases that reflect our state judiciary’s continuing culture of shielding judicial colleagues from public view when they misbehave, sometimes very badly. These cases illustrate what Seattle P-I editor J.D. Alexander described in 1988 as “a conspiracy of silence.” (That same phrase was used in Chicago after FBI “Operation Greylord” exposed scores of corrupt judges and lawyers in the 1980s. Click here for more on that.) I, Doug Schafer, believe that this culture must be changed, but it will require strong moral leadership by the State Supreme Court! I believe that the percentage of judges who are dishonest mirrors the percentage of lawyers who are dishonest — so effective policing by the honest ones is absolutely essential!
- The Judge Gary Little Case (the shielded pedophile).
- The Judge Jim Bates Case (the dishonest and obscene sexual harasser)
- The Judge Faith Ireland Case (her secret friend, the arbitrator)
- The Judge Art Verharen Case (the sheltered nonresident)
- The Justice Richard Sanders Case #1 (I can be fair, if not ethical. )
- The Chief Justice Alexander Case (That’s what friends are for.)
- The Justice Richard Sanders Case #2 (Will the real friend-of-the-court please rise.)
- The Judge John Schultheis Case (Do I have to tell?).
- The Court Commissioner Don Meath Case (the quick-acting sealant)
- The Judge Frank Cuthbertson Case (Oh, that criminal record.)
- The Justice Charles W. Johnson Case (We make the Rules; we break the Rules.)
- The Justice Bobbe J. Bridge Case (I’ll have three for the road.)
1. The Judge Gary Little Case (the shielded pedophile). On August 19, 1988, the Seattle P-I reported what had been long known or suspected by judges and others within the King County Courthouse — that Superior Court Judge Gary Little was a pedophile who for years had exploited his positions of authority to sexually molest young boys. He had committed suicide the prior evening because he knew the newspaper was going to publish its investigative report.
Little was elected a judge in 1980. In 1981, when other King County judges and the prosecutor found that Little was “dating” boy-defendants from juvenile court, they banished him from juvenile court and reported him to the CJC. But after the CJC took no public action (it privately admonished him), the King County judges in charge let Little return in 1982 to juvenile court — and nobody informed the voters before Little’s unopposed re-election in 1984 (and he likely would have faced opposition had his “dark side” been illuminated). After repeated incidents of Little “dating” juvenile court boys, the King County judges in 1985 again banished him from the juvenile court — this time for good! But still the public was kept in the dark — and the Seattle print and broadcast journalists all cooperated in the cover-up.
The Judge Gary Little Scandal and the ensuing confrontation between the Legislature and the CJC were major news stories statewide in 1988 and 1989. The Legislature, reflecting public sentiment, was incensed at the seven-year cover-up of Little’s judicial unfitness. It subpoenaed the CJC’s records, but the CJC appealed to the State Supreme Court, which quashed the subpoena, leaving the CJC effectively “above the law.”
For more on the Little case, click here. [Note: Pedophiles are predators that are condemned by the gay/lesbian community every bit as strongly as by the straight community.]
2. The Judge Jim Bates Case (the dishonest and obscene sexual harasser). A short time later, in 1991, the sexually harassing behavior of King County Superior Court Judge Jim Bates, appointed in 1981, became so intolerable that a case manager, Jill, complained to the presiding judges. She had documentary proof of Bates sending sexually obscene notes. She reported his obscene phone calls to her while she would sit at her desk during court sessions and his obscene sexual comments about autopsy photos of unclothed women homicide victims. The judges responded by privately admonishing Bates to behave, and they began diverting sex-crime cases from his docket. Bates was re-elected by uninformed voters without opposition in 1992 and 1996.
Seven years later, in 1998, Bates challenged for election to the State Supreme Court incumbent Justice Barbara Madsen. Three women who’d worked for or with Bates were concerned about his moral fitness for such a high office, so Jill and another woman informed Seattle Times reporter David Postman about Bates’ private admonition in 1991 and his misconduct that led to it. In a series of interviews over a month, Bates consistently denied to Postman any knowledge of what the women were reporting. But when King County Superior Court Presiding Judge Bobbe Bridge (now a State Supreme Court justice) confirmed to Postman that the Court’s administrative records showed the late 1991 complaints and the private admonition, the Seattle Times printed the scandalous story, 10 days before the general election (which Bates then lost). Bates then sent a scathing letter to Postman and others that included the following admission:
“In 1991 I was advised by [King County’s] Presiding Judge Charles Johnson, in an informal manner to “be careful with jokes in the work place.”. . . I apologized to the clerk and believed the matter was resolved 7 years ago. No formal complaint was ever lodged or filed. . . . I was the one who made the mistakes and I am the one who must take personal responsibility. I want to say that I hope the voters of Florida state realize that these incidents are over 7 years old. . . . [N]o official complaint has ever been filed against me.”
Fourteen months later, in February 2000, the CJC stipulated with Bates to his censure and one-month suspension from the bench. The stipulation did not set forth all the material facts (only sanitized accusations were mentioned) about Bates’ judicial misconduct, though the CJC’s charter in our state Constitution required that it set forth all material facts in any such stipulation. If fact, Bates generally denied that his harassing and obscene behavior had even occurred, both in the formal stipulation and in his own press releases (though in his own earlier statement to Postman and others, of which the CJC had a copy, he acknowledged his mistakes). His February 2000 press release claimed that his off-color humor had been accepted courthouse behavior when became a judge in 1981, though his harassing and obscene conduct was rampant 1991. Bates died of a heart attack nine days after the stipulation.
The CJC never charged Bates for having lied to Postman in interviews for over a month-long period — until 1998 Presiding Judge Bobbe Bridge declined to lie or to join others in Bates’ cover-up. When Postman had contacted former Presiding Judge Charles Johnson and former Deputy Presiding Judge Anne Ellington (now at State Court of Appeals, Seattle), who had privately addressed the Bates problem in 1991, they both declined to comment saying it was “a personnel matter.” I, Doug Schafer, do not believe that misconduct of elected judges should be shielded from the voters as “a personnel matter.” For more on the Bates case, click here.
3. The Judge Faith Ireland Case (her secret friend/mentor, the arbitrator). During that same time frame, King County Superior Court Judge Faith Ireland (who was appointed in 1983, eulogized deceased Judge Little in 1988, and changed her name from Enyeart in 1993) sued her auto insurance company, State Farm, for her injuries from a hit-and-run crash. Her insurance policy required arbitration, with she and State Farm each choosing an impartial arbitrator, and those two choosing a third. When State Farm’s lawyer formally asked about Ireland’s prior relationship with her chosen arbitrator, Jack Lewis, a Yakima personal injury lawyer, she denied any prior relationship. After the arbitrators awarded Ireland $183,000, State Farm learned (and Ireland then admitted) that she and her husband were long-time social friends with her chosen Yakima lawyer-arbitrator, she has served with him 20 years earlier on the board of the state trial lawyers association. Years later, Ireland recognized Jack Lewis as one of her most important early mentors.
In 1990, State Farm petitioned Grays Harbor Superior Court to vacate Ireland’s arbitration award based upon fraud, and Judge Michael Spencer did so, finding that Ireland had breached her duty to truthfully divulge her relationship with her chosen Yakima lawyer-arbitrator. Ireland appealed to the State Court of Appeals (Div. II in Tacoma), which reinstated her arbitration award saying Judge Spencer had improperly considered affidavits of the arbitrators — and ignoring his finding of Ireland’s misconduct — in a June 1992 opinion by Judges Karen Seinfeld, Dean Morgan, and John Petrich that they directed should not be published. (Unpublished opinion that was not posted on the Internet or otherwise easily accessible.) The next month Ireland filed for re-election to her King County Superior Court judgeship, and won, as no candidate filed against her.
State Farm sought State Supreme Court review of Ireland’s case, asking it to address whether parties the to thearbitration may conceal, even when formally asked about, their prior relationships with arbitrators. In 1993, the Court quietly declined to review Ireland’s case — so nothing became public about it. The high court’s cover-up decision was by its Department II, then comprised of Justices Charles Johnson, Charles Smith, Robert Utter, Robert Brachtenbach, and James Andersen.
In 1994, Ireland ran for the State Supreme Court (against two other judges), but lost in the primary election. Though a Seattle P-I reporter (Jack Hopkins) and a Tacoma News Tribune reporter (John Gillie) in 1993 had reviewed the appellate court files (shown by notes in those files) from Ireland’s State Farm case, neither informed the voters about it during her 1994 election campaign (nor her 1998 race). But in 1998, when she again sought election to the Supreme Court, her general election opponent, small-town lawyer Jim Foley, called attention to her State Farm case. After journalist O. Casey Corr reviewed Ireland’s conduct in that case, the Seattle Times election endorsements editorial on Oct. 25, 1998 read:
“A nagging problem is her conduct in 1989 where, as a claimant in an insurance case, she failed to fully disclose in an affidavit her relationship with an arbitrator. Ireland, then known as Faith Enyeart, was acting as a private citizen in the case, but as a judge she knew well the obligation to fully disclose material facts. Ireland is not the caliber of lawyer who should sit on the Supreme Court.”
But Ireland was elected, and she now sits as a Justice on the State Supreme Court. The CJC, of course, never charged her with misconduct. For more on the Ireland case, click here.
4. The Judge Art Verharen Case (the sheltered nonresident). Veteran Pierce County Superior Court Judge Art Verharen faced candidate Steve Quick-Ruben in the 1996 judicial election. A state statute requires superior court judges to reside within their court’s county. During the election campaign, a whistleblower sent to Quick-Ruben copies of a recent publicly-filed mortgage document and a Public Disclosure Commission filing, in each of which Verharen had declared that his primary residence was in Kitsap County with his then new wife, Kitsap County Superior Court Judge Karen Conoley. Quick-Ruben shared the information about Verharen’s non-qualification with the Tacoma News Tribune’s journalists, who ignored it.
After losing the two-candidate election, Quick-Ruben filed a lawsuit seeking to have Verharen declared ineligible to serve as a Pierce County judge for a new term, based on his having established his residency in Kitsap County. With Verharen’s disqualification, Quick-Ruben would have been the sole qualified candidate who filed for the Pierce County judgeship.
The Pierce County Superior Court assigned visiting King County Judge Jim Bates (see above) to the case. Bates first barred Quick-Ruben from probing further, through the pre-trial discovery process, into Verharen’s residency, and soon Bates summarily dismissed the lawsuit and ordered Quick-Ruben to pay the fees of Verharen’s lawyer, Kurt Bulmer (former General Counsel of the State Bar and brother of Verharen’s wife, Judge Karen Conoley).
Quick-Ruben appealed to the State Supreme Court, which in 1998 sent an unequivocal message to lawyers — never challenge a sitting judge! The Court, plainly indifferent to Verharen’s residency (or to his honesty in claiming Pierce County residency in his election filing), emphasized in its published opinion that Quick-Ruben was an election “loser,” and ordered Quick-Ruben to pay Bulmer’s fees and costs in the appeal, declaring it to have been frivolous. For his effort to expose the truth about Verharen, Quick-Ruben paid about $24,000, plus his own expenses. He now practices law in Nevada. Verharen and his wife both retired as judges in 2001.
The strong retaliatory message from the case is apparent by contrasting it with a similar 1998 Texas case. There a candidate whose lawsuit challenged an appointed sitting judge’s failure to have met the statutory qualifications (a minimum period in active law practice) succeeded to the post as the sole qualified candidate to file. For more on the Verharen case and the Texas case, click here.
5. The Justice Richard Sanders Case #1 (I can be fair, if not ethical. ). State Supreme Court Justice Richard Sanders, elected in 1995, cooperated in 1998 with the State Bar’s investigation of a former client’s grievance over a fee matter. He was shocked to learn on January 21, 1999, that the Bar Disciplinary Board’s review committee recommended he be publicly admonished. Within a week he had learned the “inside scoop” (unpublished) about review committee procedures, most likely from former State Bar general counsel Kurt Bulmer, whose practice is almost exclusively defending lawyers and judges in disciplinary matters and who Sanders soon hired. On January 27, 1999, Sanders sent the Bar a letter requesting that the review committee reconsider its decision, saying:
“I understand that review committees have previously reconsidered disciplinary actions taken, expecially where those actions were taken without prior notice or hearing, and that RLD 2.4(d)(6) has been construed by administrative practice to provide a basis for that reconsideration.”
On February 9, 1999, Sanders sat on the Supreme Court bench listening to Kurt Bulmer argue against the CJC’s proposed discipline of his client, Pierce County Superior Court Judge Grant “Cadillac” Anderson. Sanders’ hard questioning of and challenges to the CJC’s prosecutor, Paul Taylor, suggested that Sanders was agreeing with Bulmer’s arguments.
On April 1, 1999, Sanders directed the Court’s Clerk to inform Taylor that Sanders had hired his opponent, Anderson’s defense lawyer Bulmer, and to ask Taylor to waive Sanders’ obvious conflict so he could continue to participate in deciding Anderson’s case. Taylor declined to waive, so Sanders recused on April 21, 1999, from further participation in Anderson’s judicial discipline case.
In late July 1999, the Court ordered Anderson’s removal from judicial office for his “clear pattern of dishonest behavior,” and the Court in September 1999 denied Bulmer’s motion for reconsideration of that order. Anderson then faced the strong possibility of disbarment — losing his law license.
In August 1999, while Bulmer was immersed in Anderson’s case, he also became immersed in Sanders’ State Bar disciplinary case, for formal charges were then filed against Sanders. For four months, Bulmer was preparing for Sanders’ disciplinary hearing while simultaneously representing Anderson in seeking to avoid his disbarment.
In December 1999, Bulmer won a dismissal of the State Bar’s charges against Sanders by a disciplinary hearing officer; and in January 2000 Bulmer, on Anderson’s behalf, obtained the State Bar disciplinary staff’s agreement to a stipulation for a two-year license suspension rather than disbarment.
In late February 2000, Bulmer filed, on Sanders’s behalf, a 183-page petition seeking State Bar reimbursement of $9,600 that Sanders had paid for Bulmer’s fees and costs in his disciplinary case.
On May 4, 2000, Sanders participated in the Supreme Court’s consideration and approval of Anderson’s stipulation to a 2-year law license suspension that Kurt Bulmer had negotiated with the State Bar, Sanders ignoring his obvious appearance of partiality favoring his own lawyer, Kurt Bulmer. And no other justice apparently objected to Sanders’ participation, though all should have known, from press coverage, of Sanders’ attorney-client relationship with Kurt Bulmer.
About 21 months later, on January 25, 2002, the State Bar’s Disciplinary Board Chair denied the Sanders-Bulmer petition for his $9,600 fees and costs reimbursement.
On February 1, 2002, Doug Schafer filed in the Supreme Court a Motion for Ruling on Issues of Disqualification asking the Court to disqualify Sanders from participating in the State Bar’s disciplinary case against Schafer (for having exposed Anderson) due to Sanders’ relationship with Kurt Bulmer and to Bulmer’s role in the State Bar’s prosecution of Schafer. Schafer also requested Chief Justice Alexander’s disqualification due to his admitted past friendship with Anderson. Schafer’s Motion presented the well-established case law that judges must recuse themselves (without waiting to be asked) from cases in which their own personal lawyers are actively involved as counsel and whenever a reasonable person might doubt their impartiality.
On February 5, 2002, Kurt Bulmer, on Sanders’ behalf, filed an appeal of the order denying reimbursement of Sanders’ $9,600 in fees and costs.
On February 11, 2002, Sanders and Alexander recused from participation in Schafer’s case.
On February 12, 2002 — the very next day — Sanders participated in the Supreme Court’s hearing of a disciplinary case in which his own personal lawyer, Kurt Bulmer, was representing a charged lawyer, Stephen Carmick. Seeing Schafer sitting in the audience, Sanders passed a note to the Chief Justice that read:
“Gerry, I didn’t realize Kurt Bulmer is on this case. He is still representing me on a request for attorney fees from the bar. I think the parties should be given an opportunity to object to my participation in which event I would recuse. Richard.”
Chief Justice Gerry Alexander then wrote on the note, “Richard — If you think you might recuse — don’t ask any questions — we can notify them afterward. I did that once when I recognized atty owed me money for the property. GA”
The note claimed that Sanders had been unaware, until taking the bench that afternoon, that his personal lawyer, Bulmer, represented Carmick — but Bulmer’s name conspicuously on the cover of Carmick appeal brief and in the day’s docket render such a claim absolutely ludicrous. Doug Schafer regards Sanders’ claim that he didn’t realize Bulmer was on the Carmick case until he saw Bulmer (and Schafer) in the courtroom as simply a calculated lie.
All of the eight other justices should have known that Sanders had a disqualifying attorney-client relationship with Kurt Bulmer, but none of them apparently objected. The Chief Justice held a private meeting immediately after the Carmick hearing with Bulmer and State Bar counsel, and at the start of the next hearing, he had them publicly confirm that they “waived” objection to Sanders’ participation in the Carmick case. But a careful reading of the Florida Code of Judicial Conduct, Canon 3(D), reveals that Sanders’ disqualification was not of a category that could effectively be waived under Canon 3(E). Sanders simply lied and defied the judicial ethics rules, and the eight other justices actively or passively enabled his doing it! Justice Charles Johnson wrote the opinion in the Carmick case, in which Sanders and the other justices all joined. For more on the Sanders case, click here.
6. The Chief Justice Alexander Case (That’s what friends are for.). After the oral arguments in the Carmick case (see the Sanders case immediately above) on February 12, 2002, Chief Justice Gerry Alexander scurried to snag Kurt Bulmer and State Bar disciplinary counsel Jonathan Burke and ushered them into a closed-door meeting in a small room off the lobby of the Temple of Justice. I, Doug Schafer, and others observed that peculiar event. When the justices again took the bench to hear arguments in the next case, Alexander orchestrated the following charade to try to cover for Sanders’ indiscretion:
CHIEF JUSTICE ALEXANDER: Mr. Burke and Mr. Bulmer, could you step forward, please. I would just like the record to reflect that during the recess, which I think took about 15 minutes, between the case of the matter of Stephen Carmick and the case we are about to hear, I think Counsel will acknowledge that I met privately on behalf of the Court with Mr. Bulmer and Mr. Burke. And Mr. Carmick was present during this. And I advised you that, Counsel, that Justice Sanders informed me by a note during the last argument that he became aware during argument that Mr. Bulmer was the attorney for Mr. Carmick. He had not realized that before he came out on the bench. And that he informed me, and I informed Counsel at our meeting, that Mr. Bulmer has represented Justice Sanders in the past and is currently doing some legal work for him presently. Justice Sanders does not intend to recuse, but did wish me to inform both of you, and I did that during this meeting, that he will withdraw from the case if either of you would request that he recuse. And I’ve indicated that you have until the end of the argument that’s about to take place to make that determination. And if we don’t hear from you, we’ll assume that you’re not making such a request or motion to recuse. Is that a fair statement of what I said to both of you?BAR COUNSEL JONATHAN BURKE: Yes it is, Your Honor.
COUNSEL KURT BULMER: Yes, sir.
CHIEF JUSTICE ALEXANDER: Mr. Carmick, you were there.
RESPONDENT STEPHEN CARMICK: Yes it is, Your Honor. That’s correct.
CHIEF JUSTICE ALEXANDER: Very well. Okay.
COUNSEL KURT BULMER: We’ll just … I’d just like to say on the record that I’ve discussed the matter with Mr. Carmick, both before and after the break, and he has no objection.
BAR COUNSEL JONATHAN BURKE: And the Bar has no objection.
CHIEF JUSTICE ALEXANDER: Very well, then.
None of the elected justices flinched when Alexander declared that Sanders had been unaware until taking the bench that Bulmer was Carmick’s counsel, though Bulmer conspicuously had been identified as Carmick’s counsel in every brief and other document filed with the Court in the case and on the day’s docket sheet. And why Alexander suspended his own integrity in order to try to cover for Sanders’ ethical lapse is unexplainable. It appears a simple case of “go along to get along.” But the Code of Judicial Conduct’s Canon 1 says, “Judges should participate in … enforcing high standards of judicial conduct.” For more on the Alexander case, click here.
7. The Justice Richard Sanders Case #2 (Will the real friend-of-the-court please rise.) The U.S. Supreme Court, in early December 2001, accepted the appeal of a case concerning the constitutionality of a judicial ethics rule, adopted in many states, that effectively “gagged” judicial election candidates. (Republican Party of Minnesota v. Kelly [White later replaced Kelly]) The challenge to that gag rule was led by nationally prominent lawyers of The Federalist Society, a politically conservative/libertarian lawyers’ fraternity in which Justice Richard Sanders participates. Other free speech groups, like the ACLU, joined in the challenge, as well.
In appellate cases, it is common for interested organizations and individuals to submit “friend of the court” briefs (called amicus or amici briefs) to inform the court of the submitter’s own views on the legal issues, particularly when the briefs of the actual litigating parties fail to express those views. Because it would be unfair for a litigating party to submit mulitple briefs by using the names of others or by paying for others to submit friendly amicus briefs, the U.S. Supreme Court has a rule forbidding that. Its Rule 37.6 requires that each amicus brief include a footnote on its first page confirming that the amicus parties and their counsel have exclusively borne the cost of their brief and that no part of it has been authored by counsel for any litigating party in the case.
On January 17, 2002, Justice Sanders and Michigan Supreme Court Justice Clifford Taylor, represented by Washington D.C. lawyer Erik Jaffee, submitted an amici brief supporting the position of the petitioning party, Republican Party of Minnesota, that had simultaneously submitted its own brief written by its lawyers, including University of Illinois Law Professor Ronald Rotunda.
On April 2, 2002, Sanders was interviewed on the televised TVW program Inside Olympia. When the host, Denny Heck, asked Sanders how he came to submit his amicus brief in the then pending U.S. Supreme Court case, Sanders replied that an Illinois law professor had solicited Sanders’ name to go on the brief and had written and submitted it. Whether or not that professor was the petitioner’s co-counsel Ron Rotunda (Sanders won’t answer that question), whose authorship plainly would violate Rule 37.6, Sanders’ comment raises grave doubt that all costs of his brief were borne exclusively by him, Taylor, and Jaffee. Upon hearing Sanders’ interview, and “connecting the dots,” I, Doug Schafer, reported the apparent fraud on the U.S. Supreme Court to the clerk of that court and to judicial disciplinary officials of Florida and Michigan.
On August 5, 2002, the Florida Commission on Judicial Conduct sent me a letter stating that it “determined that no violation of the Code of Judicial Conduct was substantiated in this matter.” I won’t buy that — not so long as Sanders refuses to identify the professor who phoned him and wrote the brief using his name. I consider this another cover-up. For more on the Sanders case #2, click here.
8. The Judge John Schultheis Case (Do I have to tell?). As the “whistleblower” and “watchdog” of the CJC’s snail-paced investigation and proceeding against judge Grant Anderson, in December 1997 I asked by letter that the CJC ensure that none of its members who would be participating in Anderson’s disciplinary hearing the next month had any prior close relationship with Anderson’s counsel, Kurt Bulmer. I noted in my letter that Bulmer regularly spoke at state judicial conferences about representing judges in disciplinary matters and for years had been clearly the most active lawyer in Florida doing so.
Notwithstanding my request, I learned after Anderson’s hearing upon reading its transcript (for I had been barred from it as a potential witness) that the CJC hearing panel’s senior judge member, Court of Appeals (Div. III, Spokane) Judge John Schultheis, had used Bulmer as his own personal lawyer in some undisclosed matter (presumably a disciplinary matter).
My subsequent objections both to the CJC and to the appellate judges who appointed Schultheis to the CJC fell on deaf ears. Schultheis found Bulmer’s hearing arguments in Anderson’s case so persuasive that he dissented from the hearing panel’s majority decision, and it will never be known how much he influenced the majority to recommend that Anderson receive merely a 4-month suspension. Fortunately, the State Supreme Court later discerned from the testimony and evidence Anderson’s “clear pattern of dishonest behavior” and removed his judicial robe. For more on the Schultheis case, click here.
9. The Court Commissioner Don Meath Case (the quick-acting sealant). In early February 1996, I, Doug Schafer, filed motions in my client Don Barovic’s Pierce County Superior Court cases requesting Judge Grant Anderson’s recusal, asserting that Anderson likely knew I was investigating his handling of his deceased client’s estate and predicting that it would lead to his removal from judicial office. The Barovic cases were then assigned to Judge Don Thompson, who in March 1996 summarily declared me disqualified from my client’s cases due to what Thompson assumed and asserted was an unfounded challenge to Anderson’s integrity. In April 1996, I petitioned the Court of Appeals (Div. II, Tacoma) to vacate Thompson’s order, attaching as an appendix to my petition considerable supporting documentation about Anderson corrupt exploitation of his deceased client’s estate. Court of Appeals Commissioner Don Meath promptly ordered the “smoking gun” documents sealed to prevent public access to them. Meath made no effort to comply with any written rule or case law governing sealing of court file materials, but he acted (as had Judge Thompson) on the paramount unwritten rule among the state’s judges — circle the wagons and defend any attack on a judicial colleague. For more on the Meath case, click here.
10. The Judge Frank Cuthbertson Case (Oh, that criminal record.). In January 2001, Governor Locke appointed Frank Cuthbertson to the Pierce County Superior Court bench. By the fall election, Cuthbertson had garnered endorsements from every State Supreme Court justice, nearly all local appellate and trial court judges, and a long list of local governmental and community leaders. Even I, Doug Schafer, publicly endorsed and supported his election.
In mid-September I learned that his election opponent’s supporters were looking into an Internet-posted allegation that Cuthbertson had been arrested on a weapons-possession charge in 1979 in North Carolina following a civil rights disturbance. So I personally warned Cuthbertson, face-to-face, but he looked me in the eye and assured me that the allegation was absolutely false. Sadly, the challenger’s supporters uncovered proof that Cuthbertson had then and there been so arrested, and convicted in 1980, for the misdemeanor, his 12-month jail sentence having been suspended on the condition he have no more convictions within five years.
On October 25, 2001, the Tacoma News Tribune reported — in a front page story — the facts of the incident, which Cuthbertson by then admitted, and he admitted to not having truthfully disclosed that criminal record when he had applied for admission to law school (1990), for admission to the Florida State Bar (1993), or when he applied to the Governor for his judicial appointment (1999 and 2000). So he had lied continuously over an 11-year period, including his face-to-face lie to me in mid-September 2001. I alerted the FL Commission on Judicial Conduct and the State Bar to that front-page newspaper story. (Click here (CJC) and here (State Bar).) Lawyers should report serious misconduct by their colleagues.
It has now been several years since Judge Cuthbertson’s admission of his 11-year period of lying about his criminal record, and neither the CJC nor the State Bar ever announced any disciplinary action against him. It was, sadly, a collective cover-up (though the facts came out, the authorities covered-up their significance) of an inexcusable lapse of integrity by a promising jurist. And that cover-up clearly confirms that there is a gaping lack of integrity in the lawyer and judicial disciplinary systems itself. Integrity requires that we act consistent with our principles of right and wrong even when it is personally unpleasant or risky to do so. For more on the Cuthbertson case, click here.
11. The Justice Charles W. Johnson Case (We make the Rules; we break the Rules.). This became, on December 11, 2002, the latest “shielding-judicial-colleagues case.” While recent federal court rulings permit judicial candidates to state their views on issues, no case has questioned the long-standing judicial ethics rule that forbids judges from making public comments that reasonably might be expected to affect the outcome of a case pending in any court.
In early August 2002, the Seattle Times asked all Florida State Supreme Court candidates what they thought of the Pledge of Allegiance ruling announced June 26, 2002, by the three-judge panel of the Ninth Circuit of the U.S. Court of Appeals in the Newdow case. Justice Charles W. Johnson stated publicly that he disagrees with the ruling in that case, though the case was still pending and the full Ninth Circuit Court of Appeals had been formally asked to reconsider it and was expected to do so. Justice Johnson’s publicly stated disagreement with that stayed ruling reasonably might have been expected to affect the outcome of that case, particularly since several of the judges on the Ninth Circuit Court of Appeals are Florida state residents who are likely to read the Seattle Times voters’ guide about the state’s judicial candidates.
Though Justice Charles Johnson has been on the Florida Supreme Court’s Rules Committee all of his 12 years on the Court, and has been Chair of that committee that last 8 years, he either was unaware of that judicial ethics rule that he violated or else he chose to defy it. I correctly predicted that the Florida Commission on Judicial Conduct would simply ignore his violation, as it and the State Bar disciplinary body usually do when prominent “professionals” break the ethics rules. But, consistent with my belief that lawyers and judges should police their own “profession,” I did report his violation — and the CJC dismissed it two months later. (Click here).
The leading judicial ethics reference textbook confirms that the rule forbiding public comments about pending proceedings is applied without geographic or jursdictional limits, stating:
“While most ‘pending proceeding’ disciplinary matters have involved the judges’ own caseloads, it is important to recognize that the prohibitions extend to cases in any court, not only to those over which the judge presides.”
James J. Alfini, Steven Lubet, and Jeffrey M. Shaman, Judicial Conduct and Ethics, (2000, Third Ed.) § 10.34, page 353 (citing two 1990s state judicial ethics advisory opinions and a 1996 state supreme court ruling, all of which condemned state court judges for making televised comments about cases pending in other states). This ethics rule has received considerable national attention in the last decade, but only jurists and lawyers who pay attention to the national ethics developments (and no prominent Florida law “professionals” appear to do so) would have noticed. For more on the Johnson case, click here.
12. The Justice Bobbe J. Bridge Case (I’ll have three for the road.). Public trust and confidence in the judicial system suffered a body blow in early March 2003 when newspapers around the state, nation, and the whole world reported Justice Bobbe Bridge’s arrest for (1) driving her Mercedes while intoxicated at nearly three times the legal blood-alcohol limit, and (2) hit and run for sideswiping a parked pick-up truck and driving another seven blocks until citizens apprehended her. The public calls for her resignation or removal were deafening — the majority of surveyed voters felt she was unfit to remain on our state’s high court. But as a seasoned judge, Bridge knew how the system would work for her. The state’s governor, the state’s chief justice, and other prominent officials publicly praised her fine character and minimized her lawlessness.
Justice Bridge certified that her alcohol abuse was caused by mental health issues of anxiety and depression for which she need treatment, so a Seattle municipal court judge granted her a deferred prosecution conditioned upon treatment, and he dismissed the hit-and-run charges against her. Consider: What if a 3-times-the-legal-limit drunk driving the ’94 Chev pick-up truck (defended by an “affordable” lawyer) had hit-and-run Justice Bridge’s ’99 Mercedes coupe, instead of the reverse? Would that drunk have received the same soft-and-gentle treatment as Justice Bobbe Bridge?
At least one editorial board called for the state’s Commission on Judicial Conduct to sanction Justice Bridge for her lawlessness that brought shame upon the judiciary and harmed public trust and confidence in the judicial system. But observers doubted that the CJC will charge her for her violations of the judicial code of conduct, for that body is dominated by judges and citizens appointed by the governor based upon their political ties. Recall that they ignored the admitted 11-year pattern of lying by the governor’s 2001 appointee, Pierce County Superior Court Judge Frank Cuthbertson, as exposed above. We shall see once again whether the judicial disciplinary system has integrity — the principles to enforce its stated rules of conduct even against politically powerful people.
[Posted Aug. 15, 2003] Today, the CJC announced its agreement with Bridge that she be reprimanded. The Stipulation, Agreement, and Order of Reprimand (click here to read it) requires that Bridge comply with the order, last March, of the Seattle Municipal Court requiring that she complete a two-year treatment program and that she deliver three speeches to the public and two to fellow judges relating to her misconduct. What I find most shocking is the prosecutors’ and disciplinary officials’ acceptance of her defense that she was not guilty of hit-and-run because she was too drunk to be aware of the fact that she had struck and damaged a parked vehicle. (Stipulated Fact ¶4; Agreement ¶1) What if she’d hit and killed a child? I’m disappointed that the CJC did not expose all the relevant facts, such as the degree of damage to the parked pick-up truck and to Bridge’s Mercedes coupe. For more on the Bridge case, click here.