PREVIOUSLY FILED MOTION TO STRIKE THE JUDICIAL QUALIFICATION'S BRIEF FOR INCLUSION OF EXTRA-RECORD MATERIAL AND MOTION FOR SANCTIONS

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1 Filing # Electronically Filed 11/04/ :48:48 AM RECEIVED, 11/4/ :53:41, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION INQUIRY CONCERNING A JUDGE No SCl LAURA M. WATSON JUDGE WATSON'S MOTION FOR REHEARING AND/OR CLARIFICATION AS TO THE CLERK'S ORDER DENYING HER PREVIOUSLY FILED MOTION TO STRIKE THE JUDICIAL QUALIFICATION'S BRIEF FOR INCLUSION OF EXTRA-RECORD MATERIAL AND MOTION FOR SANCTIONS Appellant, the Honorable Laura M. Watson (hereinafter "Judge Watson"), by and through undersigned counsel, files this Motion for Rehearing and/or Clarification as to the Clerk's order denying Judge Watson's Motion to Strike Judicial Qualifications Commission's ("JQC") Brief for Inclusion of Extra-Record Material and Motion for Sanctions, and in support thereof states as follows: Previously, on July 31, 2014 the JQC filed its Reply Brief to Judge Watson's Principal Brief regarding the Findings, Conclusions and Recommendations of the Hearing Panel of the JQC. Contained in the JQC's brief are significant amounts of extra-record material which had not been offered, received, or in any way made part of the record at the Final Hearing before the JQC Panel. This is the second attempt to deliberately and improperly interject matters into the record which were LAw offices OF SWEETAPPLE. BROEKER & VARKAs. P.I.. 20 SE 3 STRF E T. BOCA RATON. FLORIDA 33432

2 Inquiry Concerning a Judge No , Laura M. Watson SC : Supreme Court of Florida not presented at the trial of this matter. The JQC claims that these extra-record references should be permitted because portions of Judge Watson's brief and appendix also include extra- record references. This is not accurate. The "extrarecord" references of which the JQC complains, are this Court's own records that Judge Watson has requested this Court to take judicial notice. Pursuant to Fla. Stat (6) and (12), this Court may take judicial notice of records of any court of this state, and of facts which are not in dispute because their accuracy can easily be determined. According to rule, upon its own motion this Court can take judicial notice of a matter and each party should be given a "reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed." Fla. Stat (1). The source of this Court's own records is inherently reliable, and the JQC had the opportunity to move to strike the information in the Principal Brief (which it failed to do), or present information in its Reply Brief relevant to the propriety of this Court taking judicial notice of its own records. The purpose of Judge Watson's citation to these records is to bring to the Court's attention significant authority that was not in existence at the time of the Final Hearing, and which could not be raised prior to the conclusion of the trial. This is essentially the same process used when filing a notice of supplemental LAW OFFICES OF SWEETAPPLE. BROEKER & VARKAS. P.L 20 SE 3" STREET. Ikx:A RATON. FLORIDA 33432

3 Inquiry Concerning a Judge No , Laura M. Watson SCl3-1333: Supreme Court of Florida authority informing an appellate court of a legal authority not cited in the briefs. brief. This Court should strike the extra-record material from the JQC's It is a fundamental requirement that if a party seeks to preserve matters for review, that party must make an offer of proof and submit the evidence into the record and explain the purpose of the materials. The Florida Evidence Code requires that unless a party makes an offer of proof, and receives a ruling from the lower tribunal as to its admissibility, this material cannot serve be considered on appeal. See Fla. Stat (1) (b). The extra-record material that the JQC seeks to introduce into this appeal are documents and matters which were not presented to the JQC, were not proffered to be introduced into evidence, and are matters which Judge Watson had no opportunity to object to and/or defend against. Thus, if this Court accepts the JQC's submission of this extra-record material, the rights of Judge Watson will be substantially and adversely affected. It is well-settled law that the failure of a party to present the evidence into the record at the trial level is a waiver of the right to argue the matter at the appellate level. See Doctor's Company v. State Dept. of Ins., 940 So.2d 466, 471 (Fla. 1" DCA 2006) citing Finnev v. State, 660 So.2d 674, 684 (Fla. 1995). LAw OFFICES OF SWEETAPPLE. BROEKER & VARKAs. P.L. 20 SE 3R STREET. BOCA RATON. FLORIDA 33432

4 SC : Supreme Court of Florida In the instant case, the JQC specifically identifies "Collateral Proceedings" for the Court's consideration (Reply Br. 6-9). The JQC audaciously inserts other cases and matters acknowledging that they are not of record, are not part of this Court's own records, and uses five pages of its brief and numerous footnotes to address these extra-record issues. (Reply Br. pp. 6-9, 43-44, FN. 1-4). The JQC's identification of these issues as "collateral" or "background," acknowledges the matters are not of consequence and not material to the action. The prejudice to Judge Watson is apparent. If considered, this Court would review evidence not introduced at the Final Hearing, the admissibility of which Judge Watson had no opportunity to object to, and no opportunity to present evidence in her support. The purpose of the JQC's inclusion of the extra-record evidence is transparent. The JQC expects the events in its brief to reflect negatively on Judge Watson. Disturbingly, the JQC, the constitutional body charged with the responsibility to investigate and hear matters related to judicial misconduct, knowingly and purposefully ignored the Court's previous order striking TFB's extra-record evidence, and included extra-record evidence in its brief. As stated by the First District Court in Thornber, the principal "that an appellate court may not consider matters outside the record is so elemental there is no excuse for an attorney to attempt to bring such matters before the court." Thornber v. City of 4.Aw OFFICES OF SWEE I APPLE. BROEKER & VARKAs. P.L 20 SE 3R STREET. BOCA RATON. FLORIDA 33432

5 SC13-l333: Supreme Court of Florida Fort Walton Beach, 534 So.2d 754, 775 (Fla. 1" DCA 1988). The JQC's violation of this elemental principal should not be excused by the Court. Further, at pages of the Reply brief, beginning with "[p]arenthetically, Judge Watson also argues..." the JQC once again attempts to introduce into the proceedings by reference the very documentary evidence that the TFB previously attempted to interject into the case and which the Court previously had stricken from the record. The facts of these extra-record references are in dispute and should not be permitted. Further, under the guise of "background material", the JQC adds footnotes one through four, all of which contain extra-record references/evidence which are irrelevant, are in dispute, and should be stricken. The accuracy of this background material cannot be determined by a review of this Honorable Court's own records. Specifically, footnote one discusses a bankruptcy case that Judge Watson was not a party to, and in which Judge Watson did not testify. The bankruptcy order was not introduced at the JQC's Final Hearing and is a type of ad hominem "guilt by association" reference intended to negatively influence the Court's opinion of Judge Watson. Footnote two is an attempt to defend the extra-record evidence in the JQC's Findings and Conclusions also containing the extra-record evidence, and once again references the improper materials. Footnote three contains editorial background information regarding LAw OFFICES OF SWEET APPLE. IlROEKER & VARKAs., P.L. 20 SE 3R" SrREET. BOCA RAmN. FLORIDA 33432

6 SCl3-1333: Supreme Court of Florida Special Counsel McGrane's "personal knowledge" of certain proceedings and "experience" as a Special Counsel and addresses his relationship with Lauri Waldman Ross - none of which was evidence presented to the Hearing Panel. Footnote four contains extra-record assertions that the JQC has no control over the West/aw publication of the current JQC rules and had nothing to do with its publication in the 2014 version of The Florida Rules of Court. Again, none of this was evidence presented to the Hearing Panel. Again none of this evidence was presented to the Hearing Panel, the accuracy of these materials is in dispute, and Judge Watson is prejudiced because she was not able to present contradictory evidence in her behalf. Striking the JQC's Reply Brief for its inclusion of extrarecord evidence is the appropriate remedy. See Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, (Fla. 13' DCA 1987); See also Altchiler at 350. This Court should remain consistent with its prior rulings in this case and strike the extra-record material from the JQC's brief. This is not the first attempt to introduce extra-record material into these proceedings. The first attempt was made by The Florida Bar (hereinafter "TFB) in its Motion to Intervene (R. 04/23/2014) and TFB's Response to Judge Watson's Objection and Motion to Strike Non-Record References (R. 05/15/2014). In TFB's response contained numerous references and documents which were not introduced 6 LAW OFFICES OF SWEETAPPLE. BROEKER & VARKAs. P.L. 20 SE 3RD STREE T. BOCA RATON. FLORIDA 33432

7 SC l : Supreme Court of Florida into evidence the Final Hearing in this matter. This Court granted Judge Watson's Motion to Strike TFB's Response and Appendix containing the extra-record references and denied TFB's Motion to Intervene. See orders (R. 06/19/2014). Notwithstanding the Court's previous order striking of these extra-record documents and references not introduced at trial, the JQC's Reply Brief contains the same previously stricken references and literally pages of information (peppered with editorial comments) which are not introduced in the trial below. When a party presents a brief that contains extra-record evidence, such tactics should not be tolerated and the brief should be stricken. See Altchiler v. State, Department of Professional Regulation, Div. of Professions, Bd. of Dentistry, 442 So.2d 349 (Fla. 1" DCA 1983)(an attorney received a public reprimand for including extra-record material in his brief). Another alternative if for this Court to strike just the extra-record material in the JQC's brief and not require the resubmission of the brief without the improperly included materials. WHEREFORE the appellant, Judge Watson, respectfully requests this Honorable Court strike the JQC's Reply Brief, or the extra-record references in the Reply brief, or grant any other appropriate sanctions this Court deems appropriate Aw OFFICES OF SWEET APPLE. BROE KER & VARKAS. P.L. 20 SE 3 S1REEl. BOCA RATON. FLORIDA 33432

8 SC ; Supreme Court of Florida Respectfully submitted, SWEETAPPLE, BROEKER & VARKAS, PL 20 SE 3 Street Boca Raton, Florida Telephone: (561) pleadings@sweetapplelaw.com By: /s/ Robert A. Sweetapple ROBERT A. SWEETAPPLE Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was fumished via the E-Filing Portal by on this 4th day of November 2014 to: Marvin E. Barkin, Esquire, and Lansing C. Scriven, Esquire, Special Counsel for the JQC, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A. 101 East Kennedy Boulevard, Suite 2700, Tampa, Florida ( mbarkin@trenam.com; 1scriven@trenam.com); The Honorable Laura M. Watson, 201 SE 6'h Street, Room 1005B, Fort Lauderdale, FL ( jwatson@l7th.ficourts.org). By: /s/ Robert A. Sweetapple ROBERT A. SWEETAPPLE Florida Bar No LAw offices OF SWEE1APPl.E. IlROEKER & VARKAS. I).L. 20 SE 3R S i REET. Ih CA RA 1ON. Fl.ORlDA 33432