BEFORE THE INVESTIGATIVE PANEL OF THE\

FLORIDA JUDICIAL QUALIFICATIONS COMMISSldN STATE OF FLORIDA

INQUIRY CONCERNING A JUDGE,

PAUL M. HAWKES, NO. 10-491 CASE NO. SCI 1-950

RESPONSE TO

MOTION TO DISQUALIFY SPECIAL COUNSEL

Special Counsel hereby responds to Respondent's Motion to

Disqualify Special Counsel. Contrary to Respondent's claims, there has

been no misconduct whatsoever on the part of Special Counsel in violation

of the Rules of the Judicial Qualifications Commission or the Florida

Constitution. The investigation undertaken by Special Counsel is authorized

by and in compliance with the JQC Rules and the Florida Constitution.

Respondent's assertions are completely unfounded. His motion should

therefore be denied.

MEMORANDUM OF LAW

As we said in Alexander v. Tandem Staffing Solutions, Inc., 881

So.2d 607, 608-09 (Fla. 4th DCA 2004):

"Disqualification of a party's chosen counsel is an

extraordinary remedy and should only be resorted to

sparingly." Singer Island, Ltd. v. Budget Constr. Co.,

714 So.2d 651, 652 (Fla. 4th DCA1998); Vick v. Bailey,

111 So.2d 1005, 1007 (Fla.2d DCA 2000). Motions for

disqualification are generally viewed with skepticism

because disqualification of counsel impinges on a

party's right to employ a lawyer of choice, and such

motions are often interposed for tactical purposes. See

Evans v. Artek Sys. Corp., 715 F.2d 788, 791-92 (2d

Cir.1983); Manning v. Waring, Cox, James, Sklar &

Allen, 849 F.2d 222, 224 (6th Cir.1988) (observing that

"the ability to deny one's opponent the services of

capable counsel, is a potent weapon"). Confronted with

a motion to disqualify, a court must be sensitive to the

competing interests of requiring an attorney's

professional conduct and preserving client confidences

and, on the other hand, permitting a party to hire the

counsel of choice.

Manning v. Cooper, 981 So.2d 688 (Fla. 4th DCA 2008)

Disqualification is an extraordinary remedy only employed in civil

matters to avoid conflicts of interest and where a lawyer becomes a witness.

Judge Hawkes is making an extraordinary effort to avoid having a full and

fair hearing on the facts.

The respondent judge claims, in sum, that the investigatory process

that resulted in the filing of Formal Charges was flawed. As in the

previously filed the Motion to Dismiss, the respondent judge takes great

pains attempting to refute the charges that the Investigative Panel found.

Here, however, the prior argument is melded with the promised ad hominim

attack on Special Counsel.

Rule 2(8), Florida Judicial Qualifications Commission Rules provides

that Special Counsel is a member of the Florida Bar designated by the

Investigative Panel to gather and present evidence before the Investigative

Panel, and if probable cause is found, to the Hearing Panel.

On October 14, 2010, the JQC retained F. Wallace Pope, Jr. as Special

Counsel to investigate claims that Judge Paul Hawkes, Chief Judge of the

First District Court of Appeal, violated the Code of Judicial Conduct.

A number of witnesses were either current or former employees of the

Department of Management Services (DMS) or of the First District Court of

Appeal. Judge Hawkes was Chief Judge of the First DCA, the court of last

resort for most appeals in which the state is a party. Since Judge Hawkes

was appointed to the Court in 2002, the First DCA has decided at least 41

cases in which DMS was a party.

The initial investigation centered upon allegations of improper

lobbying efforts and the extravagant misuse of State funds in construction

the new First District Court of Appeal courthouse. This issue has been

extensively covered in the news media and has been the subject of

legislative inquiry. In conducting the investigation, it became apparent that

there were other, significant potential violations of the Code of Judicial

Conduct.

In taking investigatory statements from sensitive witnesses it is

essential when seeking to develop information that a rapport with the

witness is established based on a level of trust. A direct and informal

questioning style using humor, irony, candor, agreement with the witness,

sympathy with the witness and even hyperbole allows for this trust to be

established. If the questioner can establish that rapport, the witness, even if

reluctant, is more likely to be forthcoming with information about the matter

in question.1

As is often the case in seeking truth about those in positions of

authority, the subpoenaed witnesses were conflicted. They were under an

oath to tell the truth, but they were reluctant to say anything that might

adversely affect their jobs, and some had fears of retaliation. For example,

when one witness was asked whether he ever felt threatened in his dealings

with Judge Hawkes, he testified:

Well, I think state employees are always on a level of paranoid

status, because you can fire us on a whim, so, you know, we're

very aware of that whatever we say could be the last, you know,

word, that triggers the removal. (Tr. at 27)

A pattern emerged that when Judge Hawkes did not view a person as

an impediment to a goal of his, he would treat that person civilly and

professionally. But if he viewed the person as an impediment, he was

1 The respondent mischaracterizes this technique as political bias and vindictiveness, without any support for those conclusory assertions.

intimidating, coercive and retaliatory. It became clear that Judge Hawkes

had treated some of these witnesses in that manner.

On the specific complaint about Special Counsel's

deposition exchange with former First DCA Marshal, Don Brannon, the JQC

attaches the two pages of the transcript that reflect the entire exchange.

(Exhibit A). Marshal Brannon earlier in the deposition testified under oath

that Judge Hawkes tried to intimidate Marshal Brannon into changing his

story about the trip that Judge Hawkes attempted to arrange for himself, his

son and his brother and then retaliated against Brannon when Brannon

wouldn't change his story. It was the witness who voluntarily brought up,

without any prompting on Special Counsel's part, the subject of the political

appointment of judges, and the witness lamented that development. This

was viewed as an opportunity to agree with the witness, to sympathize with

him and to also engage in some hyperbole.

Special Counsel's tactics in developing information from reluctant

witnesses who were fearful of retaliation are legitimate investigative tactics

and do not in any way detract from the sworn testimony of these witnesses

that Judge Hawkes abused DMS and Court personnel; that Judge Hawkes'

solicited a trip from a Court vendor for Judge Hawkes, his brother and his

son; that Judge Hawkes used his law clerk to help his son write a brief in a

case that passed through the First DCA on its way to the Florida Supreme

Court; that Judge Hawkes destroyed public records; that Judge Hawkes

misled the other judges on the court about fiscal matters; and the other

matters to which these witnesses have offered sworn testimony.2 Judge

Hawkes' real concern seems to be that Special Counsel was too effective in

getting reluctant witnesses to be forthcoming, and he is offended that the

JQC had the temerity to prosecute.

THE DECISION TO FILE THE NOTICE OF INVESTIGATION

DIRECTED TO JUDGE HAWKES

Once all of the facts available were gathered they were presented to

the investigative panel of the JQC that authorized the service of a 6(b)

Notice of Investigation on Judge Hawkes. The decision to serve a Notice of

Investigation on Judge Hawkes was the decision of the Investigative Panel,

decided by majority vote. Special Counsel did not participate in the

deliberations that led the Investigative Panel to issue the notice of

investigation, which he and the general counsel prepared. The notice

informed Judge Hawkes of the issues of concern to the JQC, and the notice

recited and was based on the testimony and statements of notice was

consistent with the particular witness's testimony. The notice informed

2 Including the responding Judge. In his testimony at the JQC Investigative Panel on April 29, 2011, Judge Hawkes had the opportunity to refute these allegations, however; the Investigative

Panel found that the facts established probable cause to establish each of the allegations.

Judge Hawkes of the matters under investigation and invited him to appear

before the JQC's Investigative Panel. Judge Hawkes and his counsel

appeared on April 29, 2011, and presented the Investigative Panel with over

200 pages of documents, including a 75 page memorandum. The hearing

lasted four hours and sixteen minutes. Judge Hawkes was allowed to make a

full presentation in defense of himself and his counsel was allowed to argue

on his behalf.

THE DECISION TO FILE THE NOTICE OF FORMAL CHARGES

AGAINST JUDGE HAWKES

At the conclusion of the 6(b) hearing, Special Counsel was excused

from the meeting and did not participate in the Investigative Panel's

deliberations on whether to file formal charges against Judge Hawkes. In

due course, counsel was advised that the panel had voted to file formal

charges. The Investigative Panel then approved the content and the filing of

the Notice of Formal Charges against Judge Hawkes.

It should be noted that the Notice of Formal Charges did not include

all of the allegations contained in the Notice of Investigation.

DUE PROCESS CONSIDERATIONS

During the preliminary investigation, various witnesses were asked to

provide both sworn and unsworn information to the JQC. This information

was presented to the Investigative Panel, which deliberated and made the

decision to notify Judge Hawkes that he was under investigation for certain

matters and that he would be given an opportunity to appear with counsel

and explain himself and to submit whatever exculpatory information he

might like to submit. He appeared, submitted written materials and

defended himself at great length. Judge Hawkes was unable to persuade the

Investigative Panel that the witnesses were biased against him, and the

Investigative Panel found probable cause to believe the witnesses against

him and to disbelieve the evidence that Judge Hawkes submitted.

Customarily, the next steps in a JQC proceeding, after the filing of

formal charges, would be the taking of depositions followed by a trial

before a the JQC Hearing Panel, which is composed of JQC members who

did not sit on the Investigative Panel that found probable cause to proceed

against Judge Hawkes. Instead, Judge Hawkes has chosen to file a motion to

dismiss the charges and motion to disqualify Special Counsel. In both

motions he asks the JQC to decide disputed issues of fact on a motion. Such

disputed issues of fact may only be decided at a trial. If Judge Hawkes

believes that Special Counsel so overpowered the witnesses as to cause them

to give false testimony, he has the time-honored remedy of taking their

depositions before trial; of cross examining them at trial; and of submitting

his own witnesses and any other exculpatory evidence at trial. These steps

8

provide Judge Hawkes with a full opportunity to probe the testimony of the

witnesses, and they fulfill all of the requirements of due process. Following

these procedures is the customary way that all fact disputes are resolved.

RESPONSE TO SOME SPECIFIC CLAIMS OF IMPROPRIETY IN

THE MOTION TO DISQUALIFY

(1) THE CLAIM:

Special Counsel breached confidentiality by allowing a DMS

employee to be present for sworn testimony of numerous witnesses.

THE RESPONSE:

The employee in question was Matthew Minno, who is a staff attorney

with DMS. He is not the general counsel of DMS as Judge Hawkes claims.

Mr. Minno was the attorney of record for each DMS witness and was

entitled to attend their depositions as their attorney. Special Counsel

outlined the confidential nature of the investigation both to Mr. Minno and

to each witness and stressed the need to maintain confidentiality.

Special Counsel asked Mr. Minno to attend the depositions of non-

DMS witnesses, Stanley Nettles, Don Brannon and Leslie Tharpe, which

were held at the DMS facility in Tallahassee. Special Counsel asked Mr.

Minno to attend because, as counsel for all DMS witnesses, he was fully

aware of the JQC investigation of Judge Hawkes and because Special

9

Counsel had reason to believe that Messrs. Nettles and Brannon and Ms.

Tharpe might testify as to matters relating to the DMS.

(2) THE CLAIM:

Special Counsel led witnesses by feeding them "buzz words" and

"notions."

THE RESPONSE:

There is no rule of law holding that an investigator cannot ask leading

questions of a witness during an investigation. Some of the "buzz words" of

which Judge Hawkes complains are contained within the Code of Judicial

Conduct. For example, Canon 3B(4) commands that "a judge shall be

patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and

others with whom the judge deals in an official capacity, . . . ". It appears

that Judge Hawkes finds the Code of Judicial Conduct full of "buzz words."

(3) THE CLAIM:

It was improper for Special Counsel to tell a witness that the Code

of Judicial Conduct is vague.

THE RESPONSE:

The Code of Judicial Conduct sets extraordinarily high standards for

judges, as it should, because judges occupy some of the most powerful

positions in our society. Judges have the power to deprive people of life,

liberty and property as long as they afford the person due process of law.

10

The Preamble to the Code of Judicial Conduct characterizes the Code as a

series of "broad statements called Canons." The Code "is not designed or

intended as a basis for civil liability or criminal prosecution." And, the Code

"is not intended as an exhaustive guide for the conduct of judges. They

should also be governed in their judicial and personal conduct by general

ethical standards. The Code is intended, however, to state basic standards

which should govern the conduct of all judges and to provide guidance to

assist judges in establishing and maintaining high standards of judicial and

personal conduct."

Canon 1 provides that:

"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 this Code

should be construed and applied to further that objective."

It would be impossible for a code of conduct to define every circumstance

constituting "high standards of conduct" or constituting unacceptable

standards of conduct. The Constitution of the United States contains vague

concepts, such as equal protection of the law and due process, and those

concepts continue to evolve, and there are more than 200 years of court

decisions developing the meanings of those terms.

11

Special Counsel's reference to vagueness in the Code of Judicial

Conduct was to suggest to the witness that the witness should tell counsel

anything that the witness considered to be improper. It is ultimately up to

the Florida Supreme Court to determine whether specific incidents violate

the Code of Judicial Conduct.

RESPONSE TO LEGAL AUTHORITIES THAT JUDGE HAWKES'

CITES

Forty-one years ago, in In Re Kelly, 238 So.2d 565, 569 (Fla. 1970),

the Florida Supreme Court held that a JQC proceeding "lacks the essential

characteristics of a criminal prosecution. The object is not to inflict

punishment, but to determine whether one who exercises judicial power is

unfit to hold the judgeship."

In paragraph 12 of the motion to disqualify, Judge Hawkes cites four

criminal cases that easily are distinguished from the facts surrounding this

JQC prosecution:

• Martinez v. State, 761 So.2d 1070 (Fla. 200). This is a criminal case

distinguishable because a police detective was called to testify at a

trial and asked about his opinion whether the accused was guilty. The

decision turns on whether a witness may express an opinion of guilt or

innocence about a defendant in a criminal trial.

12

• Sampler v. State, 907 So.2d 1277 (Fla. 5th DCA 2005). This is

another criminal case involving a prosecutor's statement about a

defendant during closing argument at trial that "he did it."

• U.S. v. Young, 470 U.S. 1 (1985). This is another criminal case

involving comments by a prosecutor about his opinion of the

accused's guilt, and it involves conduct occurring during a criminal

trial.

• Rodriguez v. State, 609 So.2d 493 (Fla. 1992). This is a criminal case

that involves a prosecutor's statement during closing argument that

the accused was asleep during closings and involves comments about

the accused's demeanor while on the witness stand.

In paragraph 28, Judge Hawkes cites two civil cases for the

proposition that civil cases ought not to be decided "on the basis of clever

manipulation and maneuvering," and should be marked by "a genuine and

transparent effort to reach the truth." The two civil cases that Judge Hawkes

cites, Cabot v. Clearwater Const. Co., 89 So.2d 662 (Fla. 1956) and Ron's

Quality Towing, Inc. v. Southeastern Bank of Fla., 765 So.2d 134 (Fla. 1st

DCA 2000) relate to amending pleadings after the statute of limitations

expires, have to do with the liberality and pleading requirements under the

13

Florida Rules of Civil Procedure and go to "tricks and technicalities" being

used to bar a party's civil claims.

Under the common law tradition, known as the adversary process, the

law presumes that the best way to "reach the truth" is to have adversaries

bring their dispute before a neutral fact-finder, present their best evidence,

have the respective witnesses thoroughly cross-examined by the opposing

party, and have the neutral fact-finder decide which evidence carries the day.

Judge Hawkes does not want to go through that process. Instead, he seeks to

have the fact-finder decide disputed facts based on a motion to dismiss and a

motion to disqualify opposing counsel, a method that will not "reach the

truth."

Judge Hawkes cites In Re Frank, 753 So.2d 1228 (Fla. 2000), for the

proposition that JQC's counsel must provide reasonable safeguards to ensure

confidentiality. In Frank it was alleged that the JQC "leaked" information to

the press. In investigations there is a distinction between confidentiality and

secrecy. During the course of an investigation it is necessary to reveal the

nature of allegations to witnesses and their employers. In doing so they are

reminded that the investigation is confidential. This has been the standard

operating procedure of the Commission for over 40 years.

14

In Section III of his motion, (p.29), Judge Hawkes cites the following

two inapposite cases:

• Burger v. United States 295 U.S. 78 (1935). A criminal case in which

the representative of the "sovereign" is the United States attorney.

The case involves a prosecutor cross-examining the accused at trial.

He argued with the witness, assumed prejudicial facts not in evidence

and implied that the accused made certain out-of-court statements to

the prosecutor.

• Barnhill v. United States, 11 F.3d 1360 (7th Cir. 1993). A criminal

case involving impropriety between an IRS officer and prosecuting

attorneys having dinner together before a trial in a mail fraud case. It

involves a prosecutor's lack of candor to the tribunal where a

prosecutor counseled a defense witness not to appear at trial and failed

to disclose these actions to the court or to opposing counsel.

CONCLUSION

The Special Counsel is, as a matter of law, adverse to Judge Hawkes.

Special Counsel was not retained to be Judge Hawkes' friend, anymore than

a United States attorney is employed to be a friend to the criminal

defendants he prosecutes. Judge Hawkes seeks to short-circuit the normal

JQC hearing process. This hearing process was most recently summarized

15

in In Re Eriksson, 36 So.3d 580, 592 (Fla. 2010) quoting from In re:

Graziano, 696 So.2d 744 (Fla. 1997):

'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

. . . 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 fist-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?

By following this procedure, Judge Hawkes will be afforded due

process, and, in the words of Judge Hawkes, the proceeding will "reach the

truth." Since this Motion raises no legitimate legal ground upon which relief

could possibly be granted, it begs the question whether it was interposed for

mere tactical purposes.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing JQC's

Response to Judge Hawkes' Corrected Motions has been furnished by regular

16

U.S. mail to Kenneth W. Sukhia, Esq., Sukhia Law Group PLC, 2846-B

Remington Green Cir., Tallahassee, FL 32308 this^/ day of June, 2011.

JUDICIAL QUALIFICATION

POPE, JR.

FBN#: 124449

JOHNSON, POPE, BOKOR,

RUPPEL & BURNS, LLP

P.O. Box 1368

Clearwater, FL 33757

727-461-1818; 727-462-0365- fax

Special Counsel for Florida

Judicial Qualifications Commission

and

Michael L. Schneider

General Counsel

Florida Bar No. 525049

1110 Thomasville Road

Tallahassee, FL 32303

(850)488-1581

17

566008

BEFORE THE INVESTIGATIVE PANEL OF THE

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

STATE OF FLORIDA

INQUIRY NO. 10-491

RE: INQUIRY CONCERNING INVESTIGATION

OF THE JUDGES OF THE FIRST DISTRICT

COURT OF APPEAL CONCERNING THE

CONSTRUCTION OF THE NEW COURTHOUSE

SWORN STATEMENT OF: DON BRANNON

TAKEN BY: Wallace Pope

DATE: Monday, November 22, 2010

TIME: Commencing at 2:10 p.m.

Concluding at 2:55 p.m.

PLACE: 4050 Esplanade Way

Tallahassee, Florida

REPORTED BY: LAURA MOUNTAIN, RPR

Court Reporter and Notary

Public, in and for the

State of Florida at Large

WILKINSON & ASSOCIATES

POST OFFICE BOX 13461

TALLAHASSEE, FLORIDA 32317

(850) 224-0127

EXHIBIT

34

guess it could be going to Federal.

Q It could have been going to Florida Supreme Court.

A Yeah, it could be, it could have been. I don't

know. But that's — you asked me have I heard any — that's

about the only other thing I've ever heard.

Q Okay. Well, I'm looking for leads, you know, to

follow up on and see what's happened here, and I really do

appreciate that.

Well, let me see what else I've got to ask you

her. Anything else, I mean, you have to offer in general?

A No, no, it's just — I won't say — that's my

personal opinion, I won't say it. You know, I was just

Marshal there, and I saw some very outstanding appellate

judges at the First District Court of Appeal, and it was the

best appellate court in the state of Florida.

Q It was.

A And it was known as that.

Q It was.

A And to see where it went to when judges like this

from political appointments who were definitely not the most

qualified are now appellate judges of our court of our state,

Q Right.

A It's a sad state of affairs.

Q It is a sad state of affairs.

A It is. It is.

WILKINSON & ASSOCIATES (850) 224-0127

35

Q I will agree with you. I think that's

unfortunately one of the gifts that Jeb Bush gave us.

A Jeb Bush. Amen.

Q Because he hated courts and he hated judges and he

hated lawyers.

A I know. Some people had the opinion that was his

way of putting the court down —

Q Oh, it was.

A — is put bad judges on it.

Q Put your stooges on there.

A We got our share over there, we did. It's sad.

Q All right, well, I think that I have —

A Well, I'm glad you're talking to Stan. I hope —

I've told you the best I can remember, but I'm pretty sure

I'm 99 percent accurate.

Q Well, Stan is probably here, because he's supposed

to be at 3:00.

A He's a good guy. I don't know if he's retired yet

or not.

MR. POPE: Oh, incidentally, one of the things

that I should have said to your people at the conclusion

of each of their statements is that they certainly are

entitled to a copy and to read and sign it.

MR. MINNO: Sure, they'd like to do that.

MR. POPE: So consider — and do you want to look

WILKINSON & ASSOCIATES (850) 224-0127