The Florida Judicial Qualifications Commission, the investigative arm of the Florida judicial system, last week filed a notice of formal charges against Flagler County Circuit Judge Scott DuPont stemming from allegations that he may have acted unethically and “recklessly” during his just-ended re-election campaign against challenger Malcolm Anthony.
In a series of five charges, the commission found that DuPont spread “scandalous information” about Anthony without substantiating it, that he implied Anthony had been jailed and that his wife and daughter had been arrested two dozen times between them, that Anthony had cheated in a straw poll, though DuPont had no documentation substantiating the allegation, and that, aside from his claims about Anthony, that DuPont himself had flatly declared in a forum that he has and would as a judge continue to refuse to find any statute unconstitutional—itself a violation of his oath to uphold the Constitution.
DuPont hears civil cases in Flagler, and continues to do so in Putnam County as well. He previously sat in Putnam County. It is the first time in memory that a judge in Flagler has faced charges from the Judicial Qualifications Commission, a very serious process that does not lead to such charges absent a strong case against a judge, and that may result in a range of disciplinary consequences that include a public reprimand by the Florida Supreme Court, a suspension, or outright removal from the bench. The process takes several months, which includes giving the judge facing charges the opportunity to rebut them in writing, and may lead to a settlement. The commission recommends disciplinary action. It’s up to the Supreme Court to decide how to proceed.
On Nov. 10, for example, the court approved recommendations to issue a public reprimand to Circuit Judge John Contini in Broward County for violating the code of judicial conduct by making disparaging remarks about prosecutors in that circuit. In July, the commission found probable cause to pursue charges against Circuit Judge Mark Hulsey III in Jacksonville, after Hulsey was accused of using slurs in reference to a female staffer and saying blacks should “go back to Africa.”
In the 7th Judicial Circuit, which includes Flagler, Volusia, St. Johns and Putnam counties, Steven J. deLaroche, who’d served six years as a judge in Volusia County by then, in 2006 faced charges of fixing traffic tickets. He resigned in 2007 rather than face removal from the bench—and tried to run again in 2014. In 1997, the Supreme Court removed Circuit Judge Gayle Graziano from the bench after she was found to have been serially abusing court employees and abusing her power to help friends.
DuPont was first elected in 2010 after defeating Donald Holmes in an at-times bitterly contested election (“It wasn’t coleslaw wrestling, but close,” a FlaglerLive account of their debate began). DuPont’s approach of making unsubstantiated claims, as the qualifications commission saw it in its notice, was apparent then, when DuPont at one point said his opponent was buying the election and his character was suspect.
In the present case, the six-page notice of formal charges describes campaign-trail behavior that may not be surprising for politicians, but that, if substantiated, violates a strict code of ethical conduct judges must abide by.
DuPont, according to the commission’s findings, had conducted a search for “scandalous information” on his opponent on the website instantcheckmate.com, which makes available numerous public records on almost any individual in the nation, after a search and for a fee. The information is not necessarily accurate—in fact, many such searches routinely reflect inaccuracies, mix names, dates, and so on—and the site itself includes lengthy disclaimers, including the line: “The information available on our website may not be 100% accurate, complete, or up to date, so do not use it as a substitute for your own due diligence, especially if you have concerns about a person’s criminal history.” The site also requires its users not to use information culled from it to misuse it.
Put simply, if a defense lawyer or a prosecutor were to present documentation from that site as part of a case in court, a judge would most likely immediately throw it out, if not question the lawyer’s method.
“In spite of those warnings, and instead of taking any steps to verify the scandalous information about your opponent found on the website,” the commission wrote in its findings against DuPont, “you recklessly posted the results of the search under the heading ‘Do You Trust Your Opponent to be your Circuit Judge?’”
The “unsubstantiated and unverified” claims included a suggestion that Anthony used aliases, that he’d posed as an impostor, that he’d received three parking tickets—DuPont could produce only two—that DuPont had suggested he’d had “booking dates,” wording that implies jail bookings, even though that was not accurate, and that he’d once passed a school bus that was unloading children and been ticketed for it, though DuPont could not provide documentation. DuPont also posted information claiming Anthony’s wife had been arrested three times, and his daughter 21 times. “You did nothing to verify the accuracy of those statements and you posted this information in spite of not even knowing the identities of your opponent’s wife or children.”
The commission’s findings regarding DuPont’s claims about his opponents are disturbing enough, but the Supreme Court may find even more disturbing DuPont’s stated judicial doctrine, which contravenes his oath of office. In a forum, the commission found, “you announced your position that it is not the role of a circuit court judge to determine whether a given statute is unconstitutional, because that would be ‘legislating from the bench.’ You further stated that you have refused to find statutes unconstitutional and that ‘[i]f they don’t like the decision, they can appeal it.’ In doing so, you announced your position that you would not find any statute to be unconstitutional. Previously upon assuming your judicial office, you had sworn under oath to uphold the Constitution of the United States and the Florida Constitution.”
A judge is called upon routinely to interpret statutes in case after case, making such interpretations numerous times in a single session at times, when the lawyers before him have competing interpretations. The interpretations most of the times focus on points of law or rules, and very seldom may entail a constitutional issue. But the principle is the same: judges, not lawyers, decide contested points.
If, for example, a prosecutor had a defendant brought to his trial shackled and dressed in prison garb, the defense attorney would immediately call that unconstitutional (the Supreme Court has ruled that, so as not to prejudice the jury, a defendant may be unshackled and dressed in civilian clothes). The prosecutor could (improbably) claim otherwise. But the judge would have to agree with the defense on a clear point of law and declare the defendant’s presence in prison garb unconstitutional before the proceedings continue. DuPont’s claim seems to preclude that sort of intervention.
When he first ran for the bench in 2010, DuPont’s contempt for “legislating from the bench” was apparent in several statements during forums at the time, when he went so far as to criticize Supreme Court Justice Stephen Breyer’s philosophy of a “living constitution.” The move at the time may have been interpreted as a campaign ploy to appeal to a substantially conservative electorate. The difference this time, picked up by the Judicial Qualifications Commission, is that DuPont said he applied that approach in court as a matter of practice. The Florida Supreme Court may not be as accommodating as the electorate.
DuPont—who defeated Anthony with 62 percent of the vote in August—has until roughly mid-December to respond to the charges, which appear in full below.