INQUIRY CONCERNING A JUDGE, No. 93-391, re Hugh M. FLETCHER, 664 So. 2d 934

PER CURIAM. We review the recommendation of the Judicial Qualifications Commission (the Commission) that Judge Hugh M. Fletcher be disciplined. We have jurisdiction. Art. V, § 12, Fla. Const. The Notice of Formal Charges filed against Judge Fletcher alleged that: 1. On the night of April 4, 1993, at approximately 9:00 o’clock p.m., you were operating your boat in the Intracoastal Waterway in the vicinity of the residence of Frank Driggers, 4973 San Pablo Road, South, Jacksonville, Florida. 2. At that time and place, you drove your boat so that it struck a dock belonging to Mr. Driggers.

You left the scene of the accident without reporting it. Shortly thereafter, when you encountered a Florida Marine Patrol officer on your way home, you denied that you struck the dock and stated that you struck an object in the channel. 3. You were under the influence of alcohol while operating your boat on the evening in question. Shortly after you arrived home, you failed a horizontal gaze test for alcohol impairment administered by a Florida Marine Patrol officer. Your speech was slurred. Judge Fletcher’s answer denied that he struck the dock and admitted that he told the officer he did not strike the dock: 1.

As to paragraph 1, the respondent admits that on April 4, 1994, he was operating a boat in the intracoastal waterway and denies the remaining allegations therein. 2. As to paragraph 2, the respondent denies that he struck the dock as alleged, he admits that he denied striking the dock to Marine Patrol Officers and admits that he told the officers he struck an object in the canal. 3. As to paragraph 3, the respondent denies each and every allegation therein. Judge Fletcher and the Commission subsequently entered into a stipulation providing that: 1.

On the evening of April 4, 1993, Judge Fletcher was operating his motor boat on the Intraeoastal Waterway in northern St. Johns County when it collided with a dock belonging to Mr. and Mrs. Frank Driggers. He left the scene without reporting the accident. Shortly thereafter, Judge Fletcher encountered a Florida Marine Patrol officer and told him he had struck an object in the middle of the channel. 2. Judge Fletcher regrets and apologizes that this incident occurred and recognizes that it diminishes the public’s confidence in the Judiciary. 3.

Judge Fletcher will not contest the recommendation of the Commission as set forth below, charging him with a violation of Canon 1 and Canon 2A of the Code of Judicial Conduct and will not contest that he violated those provisions of the Code of Judicial Conduct. 4. The Commission and Judge Fletcher waive oral argument.

The Commission recommends that Judge Fletcher be found guilty of violating the Code of Judicial Conduct and that he be publicly reprimanded: After full and deliberate consideration of the charges set forth in the notice, the Commission by a vote of at least nine (9) members, finds that the conduct of Judge Fletcher violated the provisions of Canons 1 and 2A of the Code of Judicial Conduct, and recommends to the Supreme Court of Florida that Judge Hugh McKay Fletcher be publicly reprimanded for his above-described conduct and his violation of Canons 1 and 2A of the Code of Judicial Conduct.

We withhold acting on the Commission’s recommendation because this record is too sparse to serve as a basis for imposing or declining to impose discipline. The stipulation is silent as to the most critical charges contained in the complaint— colliding with a dock while operating a boat under the influence of alcohol and lying to a Florida Marine Patrol officer when confronted. Although Judge Fletcher asserted in his answer that he did not strike the dock and that he told the officer he did not, the stipulation contradicts his answer and admits that he struck the dock.

It is unclear whether Judge Fletcher is also admitting that he lied to the officer. The Commission is charged with the constitutional duty “to investigate and recommend to the Supreme Court ... the reprimand of a ... judge ... whose conduct ... warrants such a reprimand.” Art. V, § 12(a), Fla. Const. Unfortunately, the present record contains no explanation and little or no investigative evidence in support of the Commission’s recommendation.

In fact, the only documents of substance are the Commission’s four-page complaint, the judge’s one-page answer, and the two-page “Stipulation and Recommendation.” There are no affidavits or testimony. We recognize that this Court can impose no discipline without a recommendation from the Commission, but for this Court to act blindly on a stipulation and recommendation that is silent on the pivotal charges reduces the Court to little more than a rubber-stamp in the review process. We are convinced that

article V,

section 12 does not envision this as the proper role for the Court. The constitution states in unambiguous terms that the report of the Commission is a recommendation: “Upon recommendation of two-thirds of the members of the judicial qualifications commission, the supreme court may order that the ... judge be disciplined by appropriate reprimand....” Art. V, § 12(f), Fla. Const, (emphasis added).

Giving this language its plain meaning, we conclude that use of the word “may” connotes discretion and indicates that acceptance or rejection of recommended disciplinary measures is left ultimately in the hands of this Court. In a similar case of judicial discipline involving a stipulation, Justice Ehrlich decried the lack of an adequate record and advocated remanding the case for formal proceedings: The issue before us is far too serious, and the consequences too far-reaching, to handle on the basis of the facts given to us.

I would therefore refuse to accept the recommendations of the JQC and would remand the matter to the JQC to handle by means of formal proceedings. In re Speiser, 445 So.2d 343, 345 (Fla.1984) (Ehrlich, J., dissenting). We stop short of remanding for formal proceedings because we feel that this would exceed our constitutional authority.

We have no sound basis for exercising our discretion concerning Judge Fletcher’s discipline and are left with a choice: either blindly accepting or rejecting the Commission’s recommendation, or withholding action on the recommendation pending submission of a more complete record or explanation. We choose the latter course as the most prudent alternative and remand this case to the Commission to give it an opportunity, if it so chooses, to supplement the record or submit an explanation addressing this Court’s concerns.

In sum, this Court cannot reach a fair and informed decision concerning Judge Fletcher’s discipline on the information before us. If the judicial review process is to mean anything at all, the reviewing court must be given an adequate record or explanation on which to base its decision. This is especially critical in the sensitive area of judicial discipline. It is so ordered. SHAW, KOGAN, WELLS and ANSTEAD, JJ., concur. SHAW, J., concurs with an opinion, in which KOGAN and WELLS, JJ., concur. KOGAN, J., concurs with an opinion, in which SHAW and WELLS, JJ., concur.

GRIMES, C.J., dissents with an opinion, in which OVERTON, J., concurs. OVERTON, J., dissents with an opinion. HARDING, J., dissents with an opinion, in which GRIMES, C.J., and OVERTON, J., concur. . The Commission, for example, may have concluded that insufficient proof is available to support some of the charges. We cannot tell. Further, we cannot tell whether Judge Fletcher is admitting in the stipulation that he lied to the officer about striking the dock.