          Supreme Court of Florida
                                   ____________

                                  No. SC15-2148
                                  ____________


               INQUIRY CONCERNING A JUDGE NO. 15-200
                     RE: JOHN PATRICK CONTINI.

                                [December 1, 2016]
                               REVISED OPINION

PER CURIAM.

      In this case, we review the Findings and Recommendations of the Florida

Judicial Qualifications Commission (JQC). The JQC recommends that Judge John

P. Contini receive the sanction of a public reprimand plus the conditions that he

hand deliver a written apology letter, continue active judicial mentoring for three

years, set up and complete a stress management program, and be assessed the costs

of these proceedings. We have jurisdiction. See art. V, § 12, Fla. Const. For the

reasons that follow, we approve the JQC’s findings and recommended discipline.

                                 BACKGROUND

      Judge Contini of the Seventeenth Judicial Circuit took office in January

2015. On October 9, 2015, the JQC filed a Notice of Formal Charges against

Judge Contini for conduct in violation of Canons 1, 2A, 3B(4), 3B(7), 3B(9), and
3E(1) of the Code of Judicial Conduct.1 As detailed below, these violations

manifested themselves threefold: (1) sending an ex parte e-mail to the Broward

Public Defenders Office; (2) failing to seek a recusal or transfer when an appeal

effectively froze his division; and (3) making impertinent and belittling remarks in

open court about a pending matter.

      During his first day of attendance at Phase I of Florida’s Judicial College, in

March 2015, Judge Contini sent the Broward Public Defender’s Office an ex parte

e-mail. That e-mail—which contained suggestions for the use of a proposed order

as a general template for downward departure motions—was neither copied nor

forwarded to the Broward State Attorney’s Office at that time. Instead, Judge

Contini waited seven days, until he returned home to the bench after attending the

Judicial College, to distribute the order to several state attorneys. On March 26,

2015, after the State Attorney’s Office became aware of the ex parte

communication, the State filed a motion to disqualify Judge Contini from all open

pending criminal cases. Judge Contini denied that motion as legally insufficient.

      As a result, on April 9, 2015, the State, through the Attorney General’s

Office, petitioned the Fourth District Court of Appeal for a writ of prohibition




      1. The Notice also alleged violations of Canons 4A(1), 4A(2), 4A(3), 4A(4),
4A(5), 5A(1), 5A(2), 5A(3), 5A(4), and 5A(5) of the Code of Judicial Conduct;
however, those allegations were without factual support.


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seeking to disqualify Judge Contini from a list of 962 cases. On June 10, 2015, the

Fourth District issued an order to show cause concerning the writ, which stayed

further proceedings in the cases to which it applied. Although there was no formal

stay in effect until the show cause order was issued, all parties acted as though a

stay was in effect between March 26 and June 10. Judge Contini’s division—the

criminal division—was essentially frozen, yet he neither recused himself sua

sponte nor sought an administrative transfer. Instead, he remained within the

division hoping for personal vindication.

      While the writ proceedings were pending, on May 4, 2015, the JQC served

Judge Contini with a Notice of Investigation with regard to his ex parte e-mail. In

response, Judge Contini acknowledged that the e-mail was a “serious mistake” and

explained that he denied the disqualification motion because the ex parte e-mail—

while improper—was general in nature and unrelated to any particular case. Still,

Judge Contini appeared before the JQC Investigative Panel on June 5, 2015,

offered “no excuses,” and apologized for his conduct. The JQC took his testimony

under advisement, but it did not vote on whether to pursue formal charges.

      It appears that Judge Contini became increasingly frustrated until he lost his

temper in open court during August 11 and 12, 2015, hearings. In one instance, he

said, “And if a prosecutor, someone with the AG’s office, wants to put that

person’s case on their disingenuous list of cases that are pending sentencing, that’s


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a lie from the pit of hell, and that is a fraud on the Fourth [District].” He wished

that the Fourth District would “spank the person who put [a case on the]

disingenuous list” and “ream out the idiot who put [that case] on the list.” The

assistant attorney general who signed the initial list was not present. However,

Judge Contini chastised her by name for “misleading” and committing “fraud on

the Fourth [District].” In another instance, Judge Contini threatened a state

attorney with contempt while raising his voice and accusing him of inappropriate

behavior. Judge Contini demanded that the state attorney admit to assisting the

assistant state attorney who created the initial list and ordered bailiffs to escort the

attorney from the courtroom after the exchange.

      Almost immediately following the August 11 and 12 exchanges, Judge

Contini sought an administrative transfer. Before filing formal charges, the JQC

held a second investigative hearing during which Judge Contini explained that he

disagreed with the State’s list of cases, but he admitted that he “personified

incivility” and offered “no excuses.” After a Final Hearing, the JQC issued its

findings, conclusions, and recommendations, which Judge Contini expressly

accepted.

      The JQC determined that “Judge Contini was a new judge, who

underestimated the process of transitioning from a well-respected, professional

lawyer to a judge, and made a series of significant missteps.” However, the JQC


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did not recommend suspension or removal for this misconduct. Due to the nature

of Judge Contini’s variegated infractions, and the mitigating factors in this case,

the JQC reasoned that a public reprimand plus conditions were appropriate.

                                    ANALYSIS

      The Florida Constitution provides that, in a case of judicial misconduct, this

Court “may accept, reject, or modify in whole or in part the findings, conclusions,

and recommendations of the [JQC].” Art. V, § 12(c)(1), Fla. Const. This Court

reviews JQC findings to ensure that there is clear and convincing evidence to

support the alleged misconduct. In re Watson, 174 So. 3d 364, 368 (Fla. 2015),

cert. denied, 136 S. Ct. 863 (2016). When the respondent judge “admits to

wrongdoing and the JQC’s findings are undisputed, this Court will ordinarily

conclude that the JQC’s findings are supported by clear and convincing evidence.”

In re Collins, 195 So. 3d 1129, 1132 (Fla. 2016); In re Diaz, 908 So. 2d 334, 337

(Fla. 2005).

      Judge Contini acknowledged that his conduct constituted the following

violations of the Florida Code of Judicial Conduct: (1) sending the ex parte e-mail

(Canon 3B(7)2); (2) failing to seek a recusal or administrative transfer from his

division when the State’s appeal effectively froze the criminal division (Canon



    2. “A judge shall not initiate, permit, or consider ex parte
communications . . . .”


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3E(1)3); and (3) making impertinent and inappropriate comments during the

August 11 and 12 hearings (Canons 1,4 2A,5 3B(4),6 and 3B(9)7). Thus, based on

this Court’s precedent and Judge Contini’s admissions, we conclude that the JQC

findings are supported by clear and convincing evidence.

      When JQC findings are supported by clear and convincing evidence, the

findings are entitled to “persuasive force and great weight.” In re Maloney, 916

So. 2d 786, 787-88 (Fla. 2005). “However, the ultimate power and responsibility

in making a determination rests with this Court,” In re Davey, 645 So. 2d 398, 404

(Fla. 1994); therefore, this Court “reviews the recommended discipline to

determine whether it should be approved.” In re Flood, 150 So. 3d 1097, 1098

(Fla. 2014).



      3. “A judge shall disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned . . . .”
       4. “A judge should participate in establishing, maintaining, and enforcing
high standards of conduct, and shall personally observe those standards . . . .”

       5. “A judge shall respect and comply with the law and shall act at all times
in a manner that promotes public confidence in the integrity and impartiality of the
judiciary.”

      6. “A judge shall be patient, dignified, and courteous to litigants, jurors,
witnesses, lawyers, and others with whom the judge deals in an official
capacity . . . .”

       7. “A judge shall not, while a proceeding is pending or impending in any
court, make any public comment that might reasonably be expected to affect its
outcome or impair its fairness . . . .”


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      The people of Florida demand that our judiciary meet a high standard of

ethics. See In re Hawkins, 151 So. 3d 1200, 1212 (Fla. 2014). Altogether, Judge

Contini’s conduct fell well below that standard. His actions “not only damaged

public confidence in him as a judicial officer but struck ‘at the very roots of an

effective judiciary . . . .’ ” In re Shea, 110 So. 3d 414, 418 (Fla. 2013).

Accordingly, Judge Contini’s conduct warrants serious review to determine

whether he possesses the present fitness to hold office as required by article V,

section 12, of the Florida Constitution.

      Although Judge Contini’s conduct was as improper as it was rude, this

Court’s precedent suggests that a public reprimand with additional conditions are

appropriate under these circumstances. See generally In re Shea, 110 So. 3d 414

(demeaning comments made to litigants and attorneys over the course of three

years); In re Schapiro, 845 So. 2d 170 (Fla. 2003) (pattern of belittling,

embarrassing conduct directed at attorneys over four years); In re Collins, 195 So.

3d at 1129 (“berat[ing] and belittl[ing] a victim of domestic violence” once); In re

Holder, 195 So. 3d 1133 (Fla. 2016) (holding that even a well-intentioned ex parte

communication may be a conduct violation). In Shea, this Court approved a

similar recommendation based on the JQC findings. 110 So. 3d at 416-17. As in

this case, Judge Shea admitted his Code of Judicial Conduct violations for




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repeatedly losing his temper in open court. Id. This Court approved the public

reprimand plus conditions tailored to the misconduct. Id. at 419.

      To be sure, the nature of a judge’s misconduct is central to our analysis;

however, this Court also considers mitigating factors when reviewing JQC

recommendations. See In re Eriksson, 36 So. 3d 580, 595 (Fla. 2010). Judge

Contini accepted full responsibility for his actions at every stage of these

proceedings and, according to the JQC, he “expressed sincere remorse.” Also,

Judge Contini was new to the bench, sending the ex parte e-mail during his first

day of Judicial College. The fact that he distributed the order to the State within a

week suggests that his ex parte communication was not intentionally prejudicial.

Finally, Judge Contini apologized to one attorney, agreed to apologize to another,

and has agreed to mental health treatment and guidance from experienced judges,

which are all conditions directly relevant to his misconduct.

      The mitigation and severity of misconduct here is comparable to that

reflected in Shea; therefore, an analogous result is appropriate. Were it not for the

mitigating circumstances and Judge Contini’s full and complete cooperation with

the JQC, this Court could have considered more severe sanctions. In light of Judge

Contini’s actions, the relevant case law, and the mitigating factors, these sanctions

and conditions imposed today are fitting and appropriate. Thus, without condoning

Judge Contini’s misconduct, this Court approves the JQC recommendations.


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                               III. CONCLUSION

      For these reasons, we approve the JQC’s Findings and Recommendations of

a public reprimand, letter of apology, continued judicial mentoring, completion of

a mental health program, and assessment of costs of these proceedings.

Accordingly, we hereby command Judge John P. Contini to appear before this

Court for the administration of a public reprimand at a time to be set by the Clerk

of this Court. See In re Frank, 753 So. 2d 1228, 1242 (Fla. 2000).

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Original Proceeding – Judicial Qualifications Commission

Hon. Kerry I. Evander, Chair, Michael Louis Schneider, Executive Director and
General Counsel, and Alexander John Williams, Special Counsel and Assistant
General Counsel, Tallahassee, Florida; Hon. Robert James Morris, Jr., Hearing
Panel Chair, Lakeland, Florida; and Lauri Waldman Ross of Ross & Girten,
Miami, Florida,

      for Florida Judicial Qualifications Commission, Petitioner

David Bill Rothman and Jeanne T. Melendez of Rothman & Associates, P.A.,
Miami, Florida; and Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow,
P.A., Fort Lauderdale, Florida,

      for Judge John Patrick Contini, Respondent




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