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
-1-
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
-2-
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
-3-
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.
-4-
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
-5-
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.
-7-
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
- 10 -
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
- 11 -
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
- 12 -
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.
- 13 -
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
- 14 -
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).
- 15 -