An appearance of impropriety: Mothers say Judge Shull tramples their rights to favor fathers

By Noreen Marcus, FloridaBulldog.org

Three mothers, parties in Judge Darren Shull’s family court, accuse him of taking this approach: Listen to the fathers, ignore the mothers’ conflicting evidence and rule for the men.

When challenged for bias, Shull fights to keep his cases instead of stepping down like judges who want to avoid the appearance of impropriety.

No supervisory judges or ethics regulators have censured Shull for his work in Palm Beach Circuit Court. Regulators brushed aside at least two formal complaints against him; a higher court removed him from one case, but that was an exception.

Six months ago the Fourth District Court of Appeal removed Shull from a case with the same issues the women describe. Yet, oddly, this recent ruling hasn’t affected a case pending in the same court, Nanea Marcial v. David Custin.

“It is insane how they are treating my kids like Yo-Yos, like objects,” Marcial said when the 4th DCA first tabled, then supported a Shull order telling sheriffs to pick up her two sons and take them to their father. Meanwhile, the 4th DCA is weighing her arguments to remove and replace Shull.

The father is Marcial’s ex-husband Custin, a political consultant and lobbyist whose clients include Lt. Gov. Jeanette Nunez and Gov. Ron DeSantis. DeSantis appointed criminal defense lawyer Shull to Palm Beach Circuit Court in April 2022; two months later the Custin-Marcial case wound up on his docket.

THIRD SHULL JQC COMPLAINT

Marcial says the connections among Shull, DeSantis and Custin influence Shull to favor Custin and treat her unfairly in their ongoing custody battle. She wants to relocate their sons to New Hampshire; Custin, of Kendall in Miami-Dade County, wants to wrest custody away from her.

When a party has good reason to fear bias, a court rule compels the judge to give up the case. Custin’s lawyer used this rule to disqualify the entire Broward Circuit Court bench from hearing the custody case.

But Judge Shull won’t budge.

Late last week, Marcial filed a complaint against him with the Judicial Qualifications Commission (JQC), the designated ethics monitor for state court judges.

Shull “has not upheld the impartiality of the judicial system. Instead, he has created a court that is no longer looking out for the wellbeing of the children, but one that actually hurts them,” the complaint says. “He has diminished the public confidence in the judiciary and thereby has done injury to the system of government under law.”

Shull declined Florida Bulldog’s request for a response, writing, “I cannot comment on these matters.”

‘I FELT AMBUSHED AND DEMEANED’

The JQC weeds out weak claims, investigates and hears misconduct charges that pass a “probable cause” test, and recommends disciplinary measures to the Florida Supreme Court for final decisions.

The commission rejected two previous complaints about Shull from Andrea Spleha of Davie and Angela Bentrim of Loxahatchee. Like Marcial, they are mothers who say Shull showed bias against them.   

Before Shull, the judge in charge of Spleha’s and Bentrim’s cases was Renatha Francis, now a Florida Supreme Court justice. In a sworn affidavit attached to her Nov. 30 complaint about Shull, Spleha said she had similar reactions to Shull and Francis.

“I felt ambushed and demeaned, like I do now with Judge Shull,” Spleha’s affidavit says. She recalled Francis screaming at her and setting a hearing so quickly, “I had no time to hire a lawyer.” 

In response to Spleha’s and Bentrim’s personal accounts of dealing with Shull, the JQC ran superficial screenings and closed out their complaints with an impersonal notice.

“The concerns you have expressed are not allegations involving a breach of the Code of Judicial Conduct warranting further action by the Commission but are matters for review through the normal court process,” says the note the women received from JQC executive director Blan Teagle.

VANISHING JQC COMPLAINTS

Still, it’s easy to see how an obviously biased judge who disregards a party’s rights and hangs onto their case violates the Code of Judicial Conduct, a list of seven commandments called canons.

Canon 2 states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Canon 3 states, “A judge shall perform the duties of judicial office impartially and diligently.”

“Boilerplate letters denying the judge’s specific canon violations absolve the judge of their wrongdoing, emboldening them,” said Margherita Downey, the lawyer for Spleha and Bentrim. The JQC’s referral to “the normal court process,” she said, “effectively closes its door and leaves the client no choice but to file an appeal.”

Spleha, Bentrim and Marcial gave Florida Bulldog copies of their complaints.

The JQC deems all complaints confidential unless and until they result in charges. After a hearing, the commission recommends no further action or a reprimand, suspension, or removal from office. 

The Spleha and Bentrim complaints were handled like the vast majority that go to the JQC, where they usually disappear and never see the light of publication.

For the five fiscal years 2018-2019 through 2022-2023 that ended June 30, the commission reported a total of 3,608 incoming complaints. The JQC website shows that during the same period, 18 complaints resulted in discipline, usually reprimands. That’s less than one-half of one percent.

And because the commission sometimes starts inquiries on its own, the JQC itself — not a wronged party or lawyer — may have initiated one or more of the 18 discipline cases. The commission is composed of six county court judges chosen by their peers, four Florida Bar appointees and five laypersons tapped by the governor.

THE TOUGHEST SANCTIONS

A review of the 18 cases shows these scenarios drew the toughest sanctions: judges accepting freebie hotel stays, going AWOL from the bench, publicizing “scandalous information” about a political opponent, or mistreating staff members.

Mistreating parties through biased rulings doesn’t seem to qualify as misconduct. Occasionally, though, it spurs appellate courts to action.

In that context, Spleha, Bentrim and Marcial have a strong gripe against Shull: He handed down ex parte, or one-sided, orders without giving them notice or an opportunity to present conflicting evidence. Their claim of ex parte treatment is a textbook example of how to violate the right to due process of law.

Specifically, Spleha and Marcial complained that Judge Shull issued ex parte orders behind their backs for deputies to pick up their children and take them to their fathers.

Bentrim’s JQC complaint says Shull held hearings attended only by her ex-husband’s lawyer after sending her hearing notices to a defunct email address. She suggested that someone had to notice when they bounced back.

And Bentrim says she had the same problem with Justice Francis, the previous judge on her case.

Judge Shull’s use of ex parte orders was the main reason the 4th DCA removed him from the case of Karen Erren v. Eduardo Marin six months ago. Seeking more alimony from his ex-wife, Marin filed a claim and then abandoned it, according to the appellate court’s factual summary.

Erren filed a motion to dismiss Marin’s inactive petition that was set to be heard on Aug. 16, 2022 until Marin’s lawyer claimed to have COVID-19. Apparently expecting a switch to a routine scheduling hearing, Erren didn’t send a lawyer to represent her.

But something else happened on Aug. 16, according to the court’s summary. Shull heard motions from Marin’s counsel to force mediation and make Erren pay his attorney fees and costs.

ONE-SIDED ORDERS SANK SHULL

At some point Marin’s lawyer gave Judge Shull proposed orders to effectuate the ex-husband’s wish list. When Shull signed them, Erren asked the 4th DCA to step in and disqualify him.

She got a new judge.

In their March 8 decision, Chief Judge Mark Klingensmith and Judges Spencer Levine and Alan Forst came down hard on ex parte activity.

“Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant,” the panel wrote.

“Even a single act of ex parte communication can be sufficient for judicial disqualification,” their decision says. The court removed Shull.

In the Custin-Marcial case Forst, a member of the earlier panel, joined Judge Martha Warner to table a Shull directive while the court decides if he should be disqualified again for ex parte actions.

But 12 days later, on Aug. 28 an “order of the court” with no names attached ended that temporary stay. Now sheriffs’ deputies can pick up Marcial’s and Custin’s sons at any time; Shull may get to keep the case after all.

So much for precedent. The only apparent difference between the present case and Erren v. Marin is this: David Custin has friends in high places.