          Supreme Court of Florida
                                  ____________

                                  No. SC16-2178
                                  ____________


               INQUIRY CONCERNING A JUDGE NO. 16-496
                   RE: PHILIP JAMES YACUCCI, JR.

                               [November 2, 2017]

PER CURIAM.

      This matter is before the Court to review the determination of the Florida

Judicial Qualifications Commission (JQC) that Judge Philip James Yacucci, Jr.,

violated Canons 1, 2A, 3B(8), 3B(9), and 3(E)(1) of the Florida Code of Judicial

Conduct. The JQC recommends: (1) a public reprimand; (2) a thirty-day

suspension without pay; (3) completion of a judicial ethics course within one year;

and (4) payment of the costs of the JQC 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 Yacucci has served as a county court judge in the Nineteenth Judicial

Circuit since 2002. On December 8, 2016, the JQC Investigative Panel filed a


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Notice of Formal Charges against Judge Yacucci for conduct in violation of

Canons 1 (judge shall uphold the integrity and independence of the judiciary), 2A

(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),

3B(8) (judge shall dispose of judicial matters promptly, efficiently and fairly),

3B(9) (judge shall refrain from commenting publicly or non-publicly in ways that

could interfere with fair trials or hearings), and 3E(1) (judge shall disqualify

himself or herself in proceedings where his or her impartiality might reasonably be

questioned) of the Code of Judicial Conduct. In his answer, Judge Yacucci denied

that his conduct was violative of the Code of Judicial Conduct. On May 1, 2017,

the JQC Hearing Panel held an evidentiary hearing, and issued its “Findings of

Fact, Conclusions of Law and Recommendations of the Hearing Panel, Florida

Judicial Qualifications Commission” (Findings) on June 29, 2017. In re Judge

Philip James Yacucci, Jr., No. 16-496 (Fla. Jud. Qual. Comm’n June 29, 2017).

                    FINDINGS OF THE HEARING PANEL

      Judge Yacucci’s violations occurred during the course of an adversarial and

contentious professional relationship between Judge Yacucci and attorney Stephen

Smith. Id. at 1. Judge Yacucci has served as a county court judge in St. Lucie

County since 2002. Id. at 3. Smith, who joined his current employer “The Ticket

Clinic” in 2009, handled all of the Ticket Clinic’s cases in St. Lucie County. Id. at

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4. Judge Yacucci held Smith in contempt in 2009 for accidentally showing up late

to a hearing, and again in 2014 where he jailed Smith for five days for “hotly

disputed” reasons. Id. During the 2014 contempt finding, Judge Yacucci

announced in the courtroom that he had “lost confidence” in Smith, and

subsequently filed a Florida Bar complaint which was later resolved with no

imposition of discipline. Id. at 4-5.

      Thereafter, in 2014, Smith ran against Judge Yacucci for a county court seat

in a highly combative election. Id. at 5. Judge Yacucci sued Smith and an

electioneering communication organization (“ECO”) for defamation, invasion of

privacy, and intentional infliction of emotional distress. Id. Judge Yacucci

obtained a temporary injunction against the ECO, but the Fourth District Court of

Appeal in Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68,

72-73 (Fla. 4th DCA 2014), overturned it for lacking supporting evidence and for

triggering First Amendment concerns. Id. at 5-6.

      Before election day, a public altercation between Smith and Judge Yacucci

occurred at a polling place. Id. at 6. Judge Yacucci asserted that Smith made a

sexual innuendo about Judge Yacucci’s wife, and that he responded with heated

and profane words. Id. Smith asserted that the judge verbally attacked and

physically assaulted him, and so he subsequently sued Judge Yacucci for assault,

battery, and defamation. Id. During a televised interview in his courtroom

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immediately following the incident, Judge Yacucci remarked that Smith “should

not be a lawyer,” “should not be in a courtroom,” and that he is “truly a disgrace as

a judicial candidate and really as a human being.” Id.

      In December 2014, Judge Yacucci won the election, but later appeared

before the JQC to discuss his behavior during the election. Id. Judge Yacucci

informed the Investigative Panel that he would recuse himself on Smith’s cases,

which he did for the following two-and-a-half years. Id. at 7. However, in

September 2016, Judge Yacucci refused to recuse himself in State v. Harracksingh,

2015-CT-2111, resolving that he had recused himself on Smith’s cases for long

enough and that Smith “was simply a conduit of the Ticket Clinic,” which Judge

Yacucci surmised had funded the ECO in the election campaign against him and

was attempting to forum shop by funding judicial campaigns. Id. at 7-8.

      On October 5, 2016, Smith petitioned for a writ of prohibition disqualifying

Judge Yacucci from presiding over the Harracksingh case. Id. at 8. Thereafter,

Judge Yacucci on his own initiative filed a response to Smith’s petition, detailing

the history of disputes between Judge Yacucci and Smith. Id. Judge Yacucci later

denied additional motions to disqualify filed by Smith, despite their legal

sufficiency, because he wanted an appellate ruling and was “not going to recuse

anymore” until he secured it. Id. at 9. Multiple parties subsequently joined the

petition for writ of prohibition. Id.

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      Judge Yacucci later sought guidance from the JQC but did not recuse

himself despite advice that recusal was a safer course. Id. Instead, he filed a

second unsolicited pleading in response to Smith’s petition for writ of prohibition,

reiterating points about Smith’s contempt conviction, Bar complaint, and funding

of judicial campaigns by the Ticket Clinic, as well as accusing appellate counsel of

intentionally misleading the court. Id. at 9-12. On November 16, 2016, the circuit

court granted the writ of prohibition, disqualifying Judge Yacucci from hearing

several cases. Id. at 12.

      At the May 1, 2017, evidentiary hearing, the Hearing Panel heard testimony

from Judge Yacucci who maintained that he did not act inappropriately during the

polling place altercation and in responding to Smith’s petition. Id. at 13. He

further testified that his televised statements about Smith were truthful, and

acknowledged he still held the same feelings about Smith. Id. at 13-14. Judge

Yacucci defended his actions as necessary to counter the Ticket Clinic’s schemes,

and “at no point” considered recusal from the viewpoint of Smith’s clients. Id. at

15-17.

      Ultimately, the Hearing Panel found Judge Yacucci guilty of violating

Canons 1, 2A, 3B(8), 3B(9), and 3E(1) of the Florida Code of Judicial Conduct.

Id. at 19. The Hearing Panel recognized that “[i]t is hard to conceive a situation

more likely to create a reasonable fear of partiality and bias on the part of a litigant

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than the long-standing, personal and professional disputes between these parties.”

Id. at 20. Accordingly, the Hearing Panel recommended: (1) a public reprimand;

(2) a thirty-day suspension without pay; (3) completion of a judicial ethics course

within one year; and (4) payment of the costs of the JQC proceedings. Id. at 23-25.

      After the JQC filed the Hearing Panel’s Findings, this Court ordered Judge

Yacucci to show cause why the recommended action should not be granted. In his

response, Judge Yacucci conceded the findings and most recommendations,

disputing only the recommendation of a thirty-day suspension.

                                    ANALYSIS

      “According to article V, section 12(c)(1) of the Florida Constitution, this

Court has discretion to either accept, reject, or modify the [JQC’s] findings and

recommendation of discipline.” In re Renke, 933 So. 2d 482, 493 (Fla. 2006).

“This Court reviews the findings of the JQC to determine whether the alleged

violations are supported by clear and convincing evidence . . . .” In re Woodard,

919 So. 2d 389, 390 (Fla. 2006). “In cases where a 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 Diaz, 908

So. 2d 334, 337 (Fla. 2005). Judge Yacucci did not contest that his conduct

violated Canons 1, 2A, 3B(8), 3B(9), and 3E(1) of the Florida Code of Judicial




                                        -6-
Conduct, and the JQC’s findings are undisputed. We therefore conclude that the

JQC findings are supported by clear and convincing evidence.

      Although this Court “gives the findings and recommendations of the JQC

great weight, ‘the ultimate power and responsibility in making a determination [to

discipline a judge] rests with this Court.’ ” In re Kinsey, 842 So. 2d 77, 85 (Fla.

2003) (footnote omitted) (quoting In re Davey, 645 So. 2d 398, 404 (Fla. 1994)).

This Court “reviews the recommended discipline to determine whether it should be

approved.” In re Flood, 150 So. 3d 1097, 1098 (Fla. 2014) (quoting In re

Woodard, 919 So. 2d at 390). As previously explained, the JQC recommended: (1)

a public reprimand; (2) a thirty-day suspension without pay; (3) completion of a

judicial ethics course within one year; and (4) payment of the cost of the

proceedings. Because Judge Yacucci does not contest any aspect of the

recommendation other than the thirty-day suspension, we limit our discussion to

the suspension.

      Judge Yacucci argues that a thirty-day suspension without pay is excessive

and inconsistent with this Court’s precedent. To the contrary, because Judge

Yacucci repeatedly violated his duty to be impartial and to disqualify himself from

Smith’s cases, and because this Court’s precedent supports the imposition of this

additional sanction, we conclude that suspension is an appropriate sanction.




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      Judge Yacucci’s conduct warrants a sanction harsher than a mere public

reprimand, as his longstanding combative relationship with Smith created

legitimate fears of partiality and bias on the part of several litigants before his

court. The acrimonious relationship between Judge Yacucci and Smith, marked by

lawsuits, a public altercation and televised disparagement, the jailing of Smith for

contempt, judicial campaign disputes, unsolicited attempts to influence a petition

for writ of prohibition, and multiple refusals to disqualify himself, clearly

displayed Judge Yacucci’s disregard for proper judicial conduct. Further, the

responses filed by Judge Yacucci disputed the charges against him and attempted

to taint the court’s view of Smith. The judge’s pattern of behavior towards Smith

and his refusal to disqualify himself on several cases despite the legal sufficiency

of Smith’s motions constitute clear and egregious violations of the Canons of the

Code of Judicial Conduct.

      In cases involving misconduct of a similarly serious nature, where judges

have diminished the public’s confidence in the integrity of the judiciary and in

judicial impartiality, this Court has previously imposed sanctions such as

suspension without pay in addition to a public reprimand. See In re Holloway, 832

So. 2d 716, 729 (Fla. 2002) (ordering thirty-day suspension without pay where a

judge repeatedly confronted other judges and aided parties in an ex parte manner);

In re Albritton, 940 So. 2d 1083, 1089 (Fla. 2006) (ordering thirty-day suspension

                                          -8-
without pay where a judge violated five canons via a pattern of misconduct

involving improper courtroom decorum and intemperate behavior); In re Shepard,

217 So. 3d 71, 183-84 (Fla.) petition for cert. filed, No. 17-493 (U.S. Sept. 29,

2017) (ordering ninety-day suspension without pay where a judge circulated a

deceptive and misleading advertisement in her judicial campaign).

      In In re Contini, 205 So. 3d 1281, 1284-85 (Fla. 2016), this Court affirmed a

public reprimand, but not suspension, where the judge engaged in ex parte

communications with counsel and berated counsel in open court. However, the

judge in In re Contini admitted to the wrongdoing, accepted complete

responsibility for his actions, and apologized with sincere remorse. Id. Here,

unlike the judge in In re Contini, Judge Yacucci has not exhibited regret or remorse

for his conduct. See In re Davey, 645 So. 2d at 405 (“Where a judge admits

wrongdoing and expresses remorse before the Commission, this candor reflects

positively on his or her present fitness to hold office and can mitigate to some

extent a finding of misconduct.”). Judge Yacucci did not apologize nor cooperate

with the JQC, but instead attempted to justify his actions during the JQC hearings

as well as in his briefs to this Court.

                                    CONCLUSION

      Judge Philip James Yacucci, Jr., is hereby suspended without pay for thirty

days from his duties as a county court judge of the Nineteenth Judicial Circuit. We

                                          -9-
order Judge Yacucci to pay the costs of these proceedings, and we remand this case

to the JQC for a determination of the amount of such costs. We order Judge

Yacucci to attend a judicial ethics course to be completed within one year. We

also command Judge Yacucci to appear before this Court for the administration of

a public reprimand at a time to be set by the Clerk of this Court. The effective date

of the suspension shall be within fifteen days from the date of this opinion at the

direction of the Chief Judge of the Nineteenth Judicial Circuit. Once the effective

date is determined, the Court Administrator for the Nineteenth Judicial Circuit

shall submit a personnel action request (PAR) form to the Personnel Office of the

Office of State Courts Administrators for processing. Absent an order from this

Court, a motion for rehearing of this decision will not toll the effective date of the

suspension.

      It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur.
LEWIS, J., concurs in result.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which
QUINCE, J., concurs.

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

PARIENTE, J., concurring in part and dissenting in part.

      I concur with the majority because I agree that Judge Yacucci violated the

Code of Judicial Conduct throughout the course of an adversarial and contentious

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professional relationship that escalated during a contested election between Judge

Yacucci and attorney Stephen Smith. I dissent in part because I conclude that a

longer suspension of at least ninety days is warranted in light of the totality of

Judge Yacucci’s conduct, which occurred over a period of years and was

unbefitting of a judicial officer both in the courtroom and on the campaign trail. I

recognize that Judge Yacucci, first elected as a county court judge in 2002, has in

many respects had an unblemished legal and judicial career, but we cannot and do

not condone Judge Yacucci’s misconduct as found by the Judicial Qualifications

Commission (“JQC”) and approved by this Court.

      Before the JQC and this Court, Judge Yacucci asserts that his conduct was

motivated by “more important larger issues.” He claims that his conduct was

motivated by a concern to maintain the independence of the judiciary, which he

asserts was under siege by the actions of attorney Smith, and his employer, the

Ticket Clinic. Specifically, Judge Yacucci alleges that attorney Smith engaged in

an unethical campaign with the sole goal of obtaining Judge Yacucci’s blanket

recusal from any of his cases following the campaign.

      But the conduct of attorney Smith is not before this Court, and Judge

Yacucci’s actions in this case, as found by the JQC, show that Judge Yacucci

failed to act in a “manner that promoted public confidence in the integrity and

impartiality of the judiciary.” See Code of Jud. Conduct, Canon 2(A). Stating in a

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televised interview in his courtroom that Smith “should not be a lawyer,” “should

not be in a courtroom,” and is “truly a disgrace as a judicial candidate and really as

a human being” is the type of quintessential conduct that stands contrary to the

core principles espoused in our Code of Judicial Conduct. That those comments

followed a public altercation at a polling place where Smith claims that Judge

Yacucci verbally and physically assaulted him only confirms that Judge Yacucci

was conducting himself in a manner antithetical to the high standards of conduct

expected of our judges.

      As the JQC found, “Judge Yacucci attempted to justify his conduct by resort

to the ‘larger issues’ of judicial independence and its ostensible subversion by the

Ticket Clinic.” In re Judge Philip James Yacucci [Jr.], No. 16-496 (Fla. Jud. Qual.

Comm’n June 29, 2017), at 22. But as the JQC also observed, Canon 1 requires

both judicial integrity and judicial independence. The latter “does not offer judges

the power to do as they please.” Id. (quoting In re Eriksson, 36 So. 3d 580, 588

(Fla. 2010)).

      In this case, the majority makes clear that “Judge Yacucci repeatedly

violated his duty to be impartial and to disqualify himself from Smith’s cases,” and

the “acrimonious relationship between Judge Yacucci and Smith, marked by

lawsuits, a public altercation and televised disparagement, the jailing of Smith for

contempt, judicial campaign disputes, unsolicited attempts to influence a petition

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for writ of prohibition, and multiple refusals to disqualify himself, clearly

displayed Judge Yacucci’s disregard for proper judicial conduct.” Majority op. at

7-8. Moreover, “Judge Yacucci did not apologize nor cooperate with the JQC, but

instead attempted to justify his actions during the JQC hearings as well as in his

briefs to this Court.” Majority op. at 9. Accordingly, the majority properly

concluded and Judge Yacucci conceded that he violated the Code of Judicial

Conduct.

      As the JQC observed, a judge is “not a knight-errant, roaming at will in

pursuit of his own ideal[s].” Yacucci, No. 16-496 (Fla. Jud. Qual. Comm’n June

29, 2017), at 22 (quoting Benjamin N. Cardozo, The Nature of the Judicial Process

(1921)). Apparently Judge Yacucci also claimed to be motivated by the lack of an

adequate response from The Florida Bar to his complaint about attorney Smith. Of

course, as the JQC observed:

             The Florida Bar has jurisdiction to investigate and discipline
      lawyers for their conduct in court and during judicial campaigns.
      Judge Yacucci’s dissatisfaction with the Florida Bar, and perceived
      disparity between judges and judicial candidates during a contentious
      election, did not justify personal efforts to punish Mr. Smith and his
      employer by other means, including improper comments about their
      character on television or in the appellate court.

Id.

      Most assuredly, if an attorney undertook the type of cumulative actions as

occurred here, this Court would have imposed a suspension longer than thirty days.

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Just as we expect attorneys to treat judges with respect, judges have an obligation

to treat attorneys with respect. If attorneys act improperly, there are procedures

judges can properly follow to address a contempt of court. As the JQC observed:

              Judge Yacucci is an experienced lawyer and judge, who made
       what he perceived to be a valiant effort to rid St. Lucie County of
       attempts “to intimidate judges with veiled threats” of future judicial
       challenges. “His zealous pursuit of a pure society apparently clouded
       his ability to impartially adjudicate the matters before him. His
       motives are acceptable, but his methods are not.” [In re] Graham, 620
       So. 2d [1273,] 1275 [(Fla. 1993)].

Id. at 23.

       Judge Yacucci’s cumulative misconduct in this case diminished the public’s

perception of the judiciary and, by engaging in this conduct, Judge Yacucci failed

to uphold the integrity and independence of the judicial office. If the JQC’s

unrefuted findings of misconduct did not cause Judge Yacucci to reflect upon the

totality of his actions, I am skeptical that this Court requiring Judge Yacucci to

take a judicial ethics course will have its desired effect. See majority op. at 1. For

all of these reasons, I would conclude that the conduct in this case warrants, at

minimum, a ninety-day suspension.1


      1. See, e.g., In re Shepard, 217 So. 3d 71, 74 (Fla. 2017) (holding that a
ninety-day suspension without pay, public reprimand, and costs, was appropriate
where judge made an intentionally deceptive campaign ad misrepresenting an
endorsement from a local newspaper and failed to take responsibility for her
conduct through either an apology or acknowledgement of wrongdoing); In re
Decker, 212 So. 3d 291, 309 (Fla. 2017) (holding that discipline including a six-
month suspension, public reprimand, and costs, was appropriate where misconduct
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      Accordingly, I concur with the majority with respect to its findings

regarding Judge Yacucci’s conduct but dissent as to the majority’s imposition of

only a thirty-day suspension without pay and would impose a suspension of at least

ninety days.

QUINCE, J., concurs.

Original Proceeding – Judicial Qualifications Commission

Honorable Kerry I. Evander, Chair, Honorable Robert Morris, Past Chair, Michael
Louis Schneider, Executive Director and General Counsel, and Alexander John
Williams, Special Counsel and Assistant General Counsel, Judicial Qualifications
Commission, Tallahassee, Florida; and Lauri Waldman Ross of Ross & Girten,
Counsel to the Hearing Panel of the Florida Judicial Qualifications Commission,
Miami, Florida,

      for Florida Judicial Qualifications Commission, Petitioner

Robert J. Watson of Robert J. Watson, P.A., Stuart, Florida,

      for Judge Philip Yacucci, Jr., Respondent




included campaign violations, conflict of interest in representation of clients, and
lying to the court and opposing counsel).

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