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The Nebraska Committee for Judicial Qualifications filed its recommendation Nov. 5 that Lincoln County Judge Kent Florom be removed from the bench.

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That recommendation genuinely surprised some around the Lincoln County courthouse.

“It is a difficult recommendation for a lot of people who appear in front of him regularly to accept or understand,” said North Platte attorney Robert Lindemeier.

It also cast a pall of uncertainty over the future of Lincoln County and a man who has served its citizens as a judge for 18 years.

The committee’s findings came a little over ten months after a complaint was filed against Florom, alleging that, among other things, he had used his judicial authority to interfere in the case of Sharon Kramer.

The commission and its findings

The Commission for Judicial Qualifications is made up of ten members. The chair is Chief Justice of the Nebraska Supreme Court Michael Heavican.

The rest of the committee is comprised of three judges appointed by the Supreme Court, three attorneys appointed by the state bar association, and three citizens appointed by the governor. The names of the members are listed on the Supreme Court’s website.

The Commission for Judicial Qualifications filed its findings and recommendations Nov. 5. The 20-page document is based on analysis of testimony from a June hearing in Lincoln, recommendations from retired Judge Robert Burkhart (who was appointed Special Master over the June hearing by the Supreme Court), and further arguments submitted by special counsel after Burkhart submitted his findings.

Florom was accused of violating Canons one through four of the Nebraska Code of Judicial Conduct:

• Canon one: Upholding the integrity and independence of the judiciary.

• Canon two: Avoiding impropriety or the appearance of impropriety.

• Canon three: Performing the duties of a judicial office impartially and diligently.

• Canon four: Conducting extra-judicial activities so as to minimize the risk of conflict with judicial obligations.

The document stated that the initial complaint against Florom alleged four separate instances of inappropriate conduct.

The first instance involved Florom’s interference with the case of Sharon Kramer, a former teacher and head coach of the 18-and-under Sensations softball team.

Kramer was convicted of stealing money from a school concession stand. Florom recused himself from her case because his daughter played on the Sensations and he was Kramer’s assistant coach.

However, Florom spoke with Kramer’s defense attorney, Russ Jones, and County Attorney Rebecca Harling about the possibility of Kramer paying restitution without being charged, and when that didn’t work, about allowing Kramer to plead guilty by waiver to spare her attention from the media.

The second instance noted in the complaint was a threatening statement Florom made to Jones with the intent that he deliver it to his fellow attorney and close friend Jim Paloucek.

Paloucek serves on the school board and Florom worried that he might take official action against Kramer following her conviction.

He allegedly said to Jones, “Tell your buddy (Paloucek) if he comes after Sharon Kramer he’s going to be making an enemy he doesn’t want to make.”

When Paloucek and his firm partners Royce Norman and Steve Herman called Florom to confirm his statement, Florom did not back down.

Paloucek said Florom was “matter-of-fact” when he confirmed that Paloucek would be “making a mistake”, taking any action against Kramer and stated “favors extended in the past would not be extended in the future.”

Florom also suggested that the lawyers ask him to recuse himself from their cases in the future.

The third instance cited in the complaint alleged that Florom wrote two letters of recommendation on behalf of Kramer in her teaching license revocation proceeding, the first using official stationery. Florom wrote the second on his personal stationery. Both letters detail Florom’s duties and responsibilities as a judge.

The final instance in the complaint stemmed from Florom’s alleged interference in the case of a juvenile who was the shortstop for the Sensations. Florom communicated ex-parte with both Harling and the girl’s Department of Health and Human Services caseworker concerning the case.

The commission’s findings and recommendations document stated that Burkhart found in August that Florom was in violation of Canons one, two, and four. He did not, however, believe that Canon three had been violated. Special Prosecutor Ann Winter, a Lincoln Attorney, objected to Burkhart’s report, and after arguments the matter was submitted to the commission on September 25.

They disagreed with Burkhart’s findings, and wrote, “There is clear and convincing evidence of violations of Canons one, two, three, and four.

In regard to Florom’s interference in Kramer’s criminal case, the commission wrote, “Regardless of motivation, the interest Florom was serving in his contacts with Harling was personal. Florom’s ongoing interest in the Kramer matter was evident, clearly creating the impression that he, as a county judge, wanted this matter to be handled quietly or simply ‘go away.’”

The document did note the committee’s assertion that Florom never contacted his fellow County Judge Kent Turnbull about Kramer’s sentencing, either before or after the hearing.

In regard to the threat Florom instructed Jones to deliver to Paloucek, the commission found that, “Florom contends that he was mad at Paloucek and that the conversation and his threat were the result of his anger. The record belies this excuse.” The document cited Paloucek’s assertion that Florom was professional, direct, and disciplined in the course of the conversation.

It also said that all member’s of Paloucek’s law firm felt the need to have Florom recuse himself from their cases after the threat was made. It read, “Recusal was not a ‘cure’ as envisioned by Florom. The commission finds this direct violation of Canon three reflected a lack of understanding by Florom of the role and authority of a judge in dealing with lawyers who have occasion to appear before him.”

Florom’s letter of recommendation for Kramer represented a clear violation of Canon two, particularly the first letter he wrote using official stationery.

The second letter, written on his personal stationery, was “not as blatant” as the first letter but still constituted a Canon violation.

Referring to Florom’s interference in the juvenile case, the document stated, “The Special Master found that the conversations between Florom and (the caseworker) were’ not the most prudent… but did not rise to a violation of Canon one.’ We disagree.”

The commission said that Florom’s continued conversations with Harling and the caseworker constituted clear violations of both Canons one and two.

The findings said, “For Florom to view a conversation with a caseworker, held privately in chambers, as one in which the judge is speaking as a softball coach and not a jurist was, at best, a naïve misunderstanding of both the role and the influence of a judge within the justice system.”

“At worst,” it continued, “it was an attempt to bring about a desired outcome through the individual having the most influence on the ultimate disposition of a juvenile matter, the assigned caseworker.”

In its conclusion, the commission unanimously determined, “We are mindful that there have been no prior disciplinary matters involving Florom. However, because of the particularly egregious violations involving the threat to members of the local bar and Florom’s attempts to influence the resolution of both a pending juvenile matter and the Kramer criminal case, the commission recommends that Florom be removed from his judicial office.”

The testimony at the hearing

Florom said in the hearing that it was his job to act ethically responsible.

“I got to watch my big mouth,” Florom said.

Florom testified that most first-time misdemeanor theft offenders like Kramer paid the restitution and were fined $150.

He said he questioned Harling to find out what kind of charge Kramer was facing. He stated the Sensations annual budget was $15,000 and he was worried that “Sharon had stolen from that fund and didn’t want anything to do with that.”

Florom also testified at the hearing that his office on the second floor of the Lincoln County Courthouse was where attorneys gathered and they often kidded and ribbed each other. He said he went too far.

Florom said he would apologize to everyone after “this ordeal is over” but did not want to call his “sincerity into question.”

Part of the problem, according to Florom, was that he “allowed attorneys to congregate in his office between court hearings in a effort to promote collegiality among members of the bar.”

Florom said he regretted his poor judgment knowing full well that this was a case pending before Judge Kent Turnbull.

Florom said he believed all parties to the conversation knew he was joking and that it was not an attempt to direct or influence the case. He said he believed he had both a personal and professional relationship with Harling and Jones.

On the stand, Florom expressed regret that his relationship with Harling wasn’t stronger.

During his testimony, Paloucek said the actions of Judge Florom were “out of character” for him but he also claimed that it chilled his faith in Lincoln County Judges.

“I don’t know if I’ll ever go into a Lincoln County courtroom with the same feeling,” Paloucek said. He said he wondered if his law firm would be treated fairly.

Paloucek said it affected Jones and other attorneys too.

“Jones was scared for himself, his family, his practice,” Paloucek said. “I don’t know if what Judge Florom did was a criminal violation but it was a breech of ethics.”

Florom’s attorney Sue Kirchmann asked Paloucek why he didn’t ask Florom if he was kidding.

“It was obvious he wasn’t,” Paloucek said.

Norman testified he was “disappointed” in Florom’s actions.

He said the three attorneys who heard Florom’s comments on the phone call immediately separated and made notes of the call.

Norman said they then “reluctantly” reported it to the Council for Discipline.

Norman continued that it was reported to them that Judge Florom had “declared war” on their law firm.

“There is a continuing level of discomfort in the community,” Norman testified. “We will continue to request Judge Florom take himself off our cases.”

Norman said he had an out-of-town client ask him if he was “on the wrong side of the judges” in Lincoln County. He said he feared it would affect his law firm.

Both Norman and Paloucek believed Florom’s message to be a threat.

Florom testified that he was upset when he received the phone call having heard a rumor that Kramer could be fired from her coaching job with the Sensations.

Florom admitted saying what he said and said he regretted it.

“I am not a subtle man,” Florom said. “I would have been a lot better off if I’d said nothing.”

Florom said he was frustrated and angry and said he viewed the actions as a vendetta against Kramer made solely for political gain by elected officials.

“I wanted the world to know I was mad,” Florom testified when asked why he did it. “I did not have a specific plan.”

Florom testified that he “just needed to get it off my chest.” He testified that he wanted to insure he didn’t take his anger out on the attorneys or their clients so he asked them to request recusals from him.

Florom said a judge once got mad at him when he was a practicing attorney and took it out on his clients. He said he vowed never to do that when sworn in as a judge 17-years ago.

“If I’m mad at an attorney, I make sure that attorney knows it,” Florom said. “I would never take it out on an attorney in the courtroom.”

Florom admitted that his conduct was willful and that it violated one or more provisions of the Nebraska Code of Judicial Conduct.

“I know I shouldn’t talk like this but I’m a dumb ass,” Judge Florom said.

As to his involvement in the juvenile case, Florom testified that he was just telling the caseworker about the opportunities available for the young woman to get a scholarship. He said it was a “carrot before the donkey” principal.

Florom said he did speak to the caseworker but did not discuss what her recommendation to the court should be. Florom said he was concerned about the juvenile’s well being and future success.

Florom also denied that he asked the young woman’s father to ask the other Lincoln County Judge, Kent Turnbull, for a delay on a hearing so his daughter could play in an out-of-town softball tournament, thus giving legal advice.

In regard to his statement to Harling, “Take care of my shortstop,” Florom said he was simply “poking the bear” and teasing Harling.

Florom denied influencing the outcome of her case or any action or misconduct that would bring his judicial office into disrepute.

Florom said he no longer allows attorneys to gather in his office and “joke around.” He said he realizes the distinction between professional and personal and intends to keep the changes in place. He also said he should not have put Jones in the middle of his anger towards Paloucek and he shouldn’t have discussed the case with Harling.

Florom also admitted writing a letter of recommendation for Kramer on judicial stationary was not a prudent thing to do.

What could be in store for Florom

The Nebraska Supreme Court must now decide whether to follow the commission’s recommendation and remove Florom.

It should be noted that Chief Justice Heavican, who signed the recommendation, will not participate in the Court’s ruling.

Florom could become just the fourth judge to be removed for disciplinary reasons since 1962.

Janet Bancroft, the Public Information Officer for the Nebraska Supreme Court, said that the merit-based system of installing judges is such a rigorous process that few judges are ever asked to leave once they are appointed.

She estimated that many more judges are removed in states that utilize public elections for judicial appointments than states that use the merit system.

All three of the judges removed by the Supreme Court lost their positions in the 1990s.

In 1992, Juvenile Court Judge William Staley was removed in Sarpy County due to ex-parte communications with defendants, Bancroft reported.

In 1997, a Platte County District Court Judge named John Whitehead lost his seat on the bench when a federal court convicted him of bank fraud. Bancroft said he was eventually imprisoned in South Dakota.

Finally, in 1998 former Douglas County Judge Richard Jones was removed for bizarre behavior such as prank death threats against members of the bar, intemperate language, and temper outbursts as well as ex-parte communication with defendants, Bancroft stated.

The Supreme Court could decide to take other action against Florom, including written reprimand, censure, or unpaid suspension up to six months.

A more recent case involving another Douglas County judge bears some resemblance to Florom’s.

The Omaha World-Herald reported that Judge Jeffery Marcuzzo had formal complaints filed against him in August 2008.

The complaints alleged that Marcuzzo intervened in a case involving his nephew, who had a plea agreement in place with Douglas County Prosecutors concerning a protection order violation.

When Marcuzzo’s nephew failed to appear at his hearing, the prosecutors withdrew the deal. The judge convinced them to keep it open while he contacted his nephew. He then asked a fellow judge to hear the case.

The nephew wound up receiving probation, a lighter sentence than what had been originally offered in the plea deal.

Additionally, Marcuzzo had to answer charges that he left a profanity-laced tirade threatening physical violence on the voice mail of a prosecutor who added a case to Marcuzzo’s docket at the last minute.

Unlike Florom’s case, however, the Commission for Judicial Qualification recommended that Marcuzzo be suspended for three months. Ultimately, the Supreme Court levied a suspension of four months in August 2009.

What it could mean for Lincoln County

Bancroft said that even if Florom is suspended or removed, the outcomes of cases he presided over were unlikely to be affected. Pending cases would be transferred to Turnbull.

A retired judge could be brought on to take on some of the workload in case of suspension or removal.

That’s what happened in Platte County in 1997, when Whitehead was convicted of fraud. Clerk of the District Court Marline Vetick told the Bulletin that a retired judge “Came back and helped for a little while.”

Ultimately, however, it was decided that the workload in Platte County did not warrant a second District Court judge, Vetick said.

“I don’t know if they transferred the position to another area or if they never filled it.”

Bancroft said that it is a possibility that the Judicial Resources Committee could deem that Lincoln County doesn’t need two county court judges. They would send a recommendation to the Unicameral, and the state legislature could decide to send the position elsewhere. Or, the position could be left vacant indefinitely.

The Clerk of the Lincoln County Court’s office said that Lincoln County is quickly approaching 2600 cases heard in 2009. It averages out to between 50 and 60 a week.

If Florom is removed and the Judicial Resources Committee decides that the position should be filled in Lincoln County, then the process will be the same as if a judge had retired.

A nominating committee accepts applications and thoroughly vets each of the applicants. A list of nominees is then submitted to the Governor, who appoints the new judge.

Bancroft said that the entire process takes months. She also pointed out that there is no set timeline for the Supreme Court to render a decision on Florom’s fate.

In the Marcuzzo case, for example, the Judicial Qualifications Commission recommended a suspension in February 2009, and six months passed before the Supreme Court handed it down.

In the meantime, the county and the man are left in limbo.

County Commissioner Joe Hewgley told the Bulletin, “As long as I've been a county commissioner, I've never seen a judge involved in something like this -- a complaint before the Nebraska Supreme Court," County Commissioner Joe Hewgley said.

Hewgley has been on the county board for nearly 25 years.

There is the question of whether or not the county is better off without Florom. Even with his “particularly egregious violations” of judicial canon, the fact remains that he has served Lincoln County in good standing since 1991.

Certainly, there are those that would hate to see him go.

Lindemeier praised Florom for his efforts to make the court accessible to the public.

“He’s streamlined a lot of cases so people can get in and get their matters heard,” he said.

“Appearing before him through the years, I think that this is something totally out of character for him,” Lindemeier continued. In the past, he said, Florom had gone out of his way to avoid any appearance of involving himself in a case where he may have a personal interest.

He also said that while most of the people he had talked to believed that there would be some sanctions against Florom, many people, including him, believe that removal seemed, “pretty strong.”

“He’s always been fair and conscientious from the bench,” Lindemeier said.

Florom was also approachable, he stated. “People have felt comfortable going in and talking to him about things.”

“Overall,” Lindemeier finished, “he’s done a good job on the bench.”

Turnbull and Harling both declined the opportunity to comment, citing their involvement in the case. Paloucek said he did not want to imperil the fairness of a pending case in front of the Supreme Court.

Repeated attempts to reach Kirchmann, Florom’s counsel, were not answered. She did however submit a statement to the commission stating that Florom always intended to participate in these cases as a private citizen, not as a judge.