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Judge Stettin Whitepaper #1

In Florida’s system of justice there are many constitutional rights. Two are fundamental. One is that the citizens of Florida are guaranteed the right to elect their circuit judges.[1]  The other is that the citizens of Florida are guaranteed that any person elected to judicial office can serve but one master – the citizens who elected them. Unfortunately, with one judge in Florida, both fundamental guarantees have been repeatedly ignored.

In Miami, there is a presiding circuit judge who was elected once in the mid to late 1970’s. Then he left the bench. Later he returned. He did so, not as result of an election. Rather, he was appointed as a “temporary” judge, by the Florida Supreme Court.[2]

Such appointments are authorized. But, they are designed by statute to be only temporary in duration.[3]  The imposed limitation for such appointments clearly contemplated the constitutional right of Florida citizens to elect their County and Circuit judges. But, for Herbert Stettin, a “temporary assignment” as a circuit judge has lasted over a decade. Not one Florida citizen voted to keep him there.

Nonetheless, Judge Herbert Stettin, who was an elected circuit judge for just one four year term, over thirty years ago, has been a sitting senior circuit judge in Florida, as a result of repeated temporary appointments, every year since 1999.[2]  As such, he has served as a circuit judge in Dade, Broward and Palm Beach Counties. He has also served as a “temporary judge” for the Fourth District Court of Appeal.[2]

In sum, Judge Stettin has remained on the circuit bench for the past 11 years, without ever winning an election. Unfortunately, the anomalies attendant to Stettin’s service as a Florida judge, do not end with his unending successive appointments. They are also apparent in his “extra-judicial conduct” while serving as a judge. The entire time Judge Stettin has served as a “temporarily appointed” judge, he has conducted a “private practice.”[4]  He has done so, contrary to the sworn statement he made to the Florida Supreme Court, prior to his appointment, that he was not engaged in the practice of law or any other business activity that would interfere with his duties as a judicial officer.

Article V, Section 13, Fla. Const. unambiguously requires that “all justices and judges” in Florida's judicial system “devote full time to their judicial duties.” Fla. Const. Art V, § 13 (emphasis added).[1]  This provision was initially proposed and ultimately adopted, because a similar preexisting provision did not apply to all “justices and judges.” Fla. Const. Art. V, § 18 (1885 rev.); Fla. Const. Art. V, § 13 (emphasis added). Since its adoption in 1972, this provision of the Florida Constitution has dictated that members of Florida’s judiciary may serve only one master - the law of this state and the public it protects. Thus all Florida judges are constitutionally prohibited from procuring privately paid employment (of any kind) while sitting as a judge at any level in Florida's judicial system.

Regardless, Judge Stettin has been allowed to serve as a privately paid arbitrator while serving as a judge.[5] One year he made almost half a million dollars as a paid private mediator and arbitrator. Although senior judges are permitted to conduct private mediation under limited circumstances, there is no rule permitting an active judge to conduct arbitration in which legally binding decisions are made in a privately paid setting and with only the most scant form of appellate review. Over the last eleven years he has made millions of dollars in this type of extra judicial income.[6]  He has done so, while also receiving the salary, benefits, and esteem of a sitting member of the Florida judiciary. Moreover, Stettin has done so using public facilities, on the public tab. Stettin has used his judicial chambers, and office facilities, in conducting his private practice as a mediator and arbitrator. He has used the courtroom, his judicial assistant, supplies and amenities, all at public expense.[7]

Even if Stettin’s conduct is found not to violate the Constitution, Judges should not be allowed to exploit technical loopholes for personal financial gain.(Ref#2) To do so is to violate the honor of judicial office and to breach the “public trust” of those he was appointed to serve. How did this happen? Why has it been allowed to continue? And, where are the first amendment “watchdogs”, whose primary purpose is to keep the system honest. Why is nobody listening? Why is it that other members of the judiciary do not seem to care?

When the issue of Stettin’s conduct was raised in the Fourth District Court of Appeal (on which Stettin has served) the complaining parties brief was actually stricken, something which virtually never happens in a Florida Court. The brief was then removed from the public docket and the complaining party was not allowed to even argue the issue in an open court.[8] Thus, the issue of Stettin’s service was removed from the only public judicial forum in which the issue could be raised. When argued on an administrative level, the Judicial Qualifications Committee (appointed to ensure the integrity of the judiciary) simply brushed it aside.[9]

As a result, Stettin continues to serve as a “temporarily appointed judge.”[2] He continues to practice as a privately paid mediator and arbitrator.[4] And, he has used public facilities in doing so. All the while, the courts of appeal, other justices and judges elected to enforce the laws of this State and the Constitution under which they serve, have chosen to ignore the situation and look the other way.

Reference Notes

(1) Judge Stettin swore to the Florida Supreme Court (prior to judicial appointment under Art. V §2(b) Fla. Const. that he was not engaged in any business activity which would interfere with duties imposed under the Code of Judicial Ethics.[1]  (See [Stettin’s “Consent to be Assigned to Judicial Service,”September 14, 1998] (“I am not engaged in any business activity ... that would interfere with the proper performance of judicial duties under the Code of Judicial Ethics .... If assigned to judicial service, I will promptly dispose of all matters and perform all duties assigned to me.”)) (emphasis added).[10]  See also Payret v. Adams, 500 So.2d 136, 138-139 (Fla. 1986).[11]

‘Temporary’ is an antonym for ‘permanent.’ It is a comparative term. It can be said that if a duty is not permanent it is temporary. If a county judge is assigned to perform solely circuit court work, the assignment must be for a relatively short time for it to be temporary. If a county judge is assigned to spend a portion of his time performing circuit work, the assignment can be longer, but the assignment cannot usurp, supplant, or effectively deprive circuit court jurisdiction of a particular type of case on a permanent basis.  Article V, section 10(b) mandates that circuit judges shall be elected by vote of the qualified electors within the territorial jurisdiction of the court. Article V, section 11(b), provides that when a vacancy on a circuit court occurs, the governor shall appoint a judge to fill that vacancy. Respondent has become a permanent circuit judge not by the method mandated by the constitution, but by administrative order.[1]  This cannot be done.(emphasis added).

 

(2) See also Fla. Code Jud. Conduct, Canon 5F (“A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity.”) S.D. Fla. L.R., Gen R. 16.2B(6); Fla. Sup. Ct. Hearing, No. SC04-2482, June 10, 2005 at 7 (“We all know, of course, that a sitting judge cannot sit as a private mediator or arbitrator and that has long been the rule.”).[12] [13] [14]  Those ethical standards apply to every judge in this state. Each is bound by Florida’s Code of Judicial Conduct. All are barred from acting as a privately paid mediator or arbitrator while a sitting judge. (Canon 5F). It should be noted that Senior Judges eligible for temporary assignment are not subject to the restrictions in Cannon 5F(1). However, there is a critical difference between being eligible for temporary assignment and actively serving on temporary assignment. Once a Senior Judge accepts an assignment, he becomes vested with all the power of judicial office and thus should be subject to the code of judicial conduct as any other Art V Judge. Furthermore, it has also been argued that the commentary to Cannon 5F(2) implies that Cannon 5F(2) allows both mediation and arbitration. However, the word “Arbitration” is not used anywhere in the text of Cannon 5F(2) and under the express wording of the Code’s preamble, “The commentary is not intended as a statement of additional rules. Judges are also barred from using the title “Judge” when acting in a private capacity. Any transgression of these ethical edicts is subject to review by the Florida Supreme Court. See In re Code of Judicial Canon 5F (June 12, 1997) (in which the Florida Supreme Court amended Canon 5F to allow active judges only “to take the necessary education and training programs to be certified or qualified as a mediator or arbitrator”).[12]  See Florida Bar Ethics Opinion 73-27 (Nov. 14, 1973) (former judge “should never personally use the courtesy title ‘judge’ in his private practice”); Ethics Opinion 73-31 (Oct. 22, 1973) (former judge may not even use the name “judge” in active private practice); Ethics Opinion 75-34 (Mar. 10, 1977)(“may not be proper for a former judge to identify himself [as judge] below his name on letters related to the practice of law”).[15] [16] [17]