BEFORE THE FLORIDA JUDICIAL QUALIFlCATIONS COMMISSION STATE OF FLORIDA

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1 E]cctronically Filed 09/]6/ : l8:42 PM ET RECEIVED.9/]6/20l3 J7:23:41. Thomas D. Hall. Cicrk. Supreme Court BEFORE THE FLORIDA JUDICIAL QUALIFlCATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE No SCl LAURA M. WATSON JUDGE LAURA M. WATSON'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JUDRISDICTION Notwithstanding the demonstrably false allegations of conduct against Judge Watson and Watson's law firm from over 10 years ago that are contained in the Notice of Formal Charges, both as a matter of law, and as applied here, the Judicial Qualifications Commission (hereinafter referred to as the "JQC") has overstepped its authority and exceeded its jurisdiction against Circuit Court Judge Laura M. Watson (hereinafter referred to as "Judge Watson" or "Watson"). A circuit court judge is a constitutional officer, duly elected, and entitled to the constitutional guarantees of substantive and procedural due process and equal treatment under the law that ultimately require dismissal of these proceeding under the circumstances. As set forth herein, the JQC is without jurisdiction to proceed against a circuit judge for alleged conduct that The Florida Bar did not timely prosecute nor has impaired any judic ial function.

2 STATEMENT OF THE CASE It is not known how the allegations in this matter came to the attention of the JCQ, or the signatories of the Notice of Investigation. Nor is it known how or by whom it was decided to allege specific conduct as violations of the Code of Judicial Conduct or violations of Florida Rules of Professional Conduct. Judge Watson's motion to identify, with specificity, on what allegations the Investigative Panel found probable cause, and motioned to address the JQC's failure to state a cause of action, but these motions were denied on August 26, What is known is that on April 18, 2013, JQC General Counsel, Michael Schneider (hereinafter "Schneider"), and JCQ Special Counsel Miles McGrane III (hereinafter "McGrane"), signed a Notice of Investigation of Judge Watson in the name and on behalf of the "Investigative Panel of the Florida Judicial Qualifications Commission" (hereinafter referred to as the "Investigative Panel") -- absent any meeting of the Investigative Panel on the matter. On July 24, 2013, McGrane, acting on behalf of the JQC, signed and served a Notice offormal Charges enumerating 24 allegations against Judge Watson that purportedly were voted upon by a majority of the Investigative Panel at a meeting. However, it is not known the evidential basis of the probable cause finding which by rule must be forwarded to the Supreme Court. It is similarly unknown when or how the Investigative Panel voted and why the formal charges were materially 2

3 different from the original 17 allegations contained in the Notice ofinvestigation. While Judge Watson appeared and addressed the Investigative Panel, no further contact was attempted until the Notice of Formal Charges was filed. Each and every allegation contained in the Notice of Formal Charges relates to claims for attorney's fees made in June 2004 following the settlement of compensatory and bad faith claims against insurance companies occurring in as more fully described below and were materially different from the original 17 allegations contained in the Notice of Investigation. The Florida Judicial Qualifications Commission Rules ("FJQCR") provide that the judge is to be given a reasonable opportunity to make a statement before the Investigative Panel regarding the subject of the investigation. Rule 6(b) FJQCR. But, Judge Watson was never provided an opportunity to address the new factual allegations asserted in the Notice offormal Charges. STATEMENT OF THE FACTS On or about June 18, 2004, the Father/Son legal team of Larry Stewart and Todd Stewart, along with William Hearon, Esq., who has either worked in the same firm as Larry Stewart or down the hall from him for the last forty years, brought suit against Judge Watson and others. The lawsuit was brought in the Fifteenth Judicial Circuit in Palm Beach County, Florida under the case of Stewart

4 Tilghman Fox & Bianchi, P.A., William C. Hearon, P.A., and Todd S. Stewart, P.A. v. Kane & Kane, Laura M. Watson, P.A. et. al, Case No CA006138XXXXMBAO, i.e. the Attorney 's Fees Litigation. In the Attorney's Fees Litigation, the Stewart Lawyers were represented by Searcy Denney Scarola Barnhart & Shipley (who are listed as witnesses in this action). The Stewart Lawyers claimed that certain attorneys, including Judge Watson, engaged in a myriad of conduct including a Breach of Fiduciary Duty, Constructive Fraud, Fraud in the Inducement, and Quantum Meriut / Unjust Enrichment. The Stewart Lawyers also sought to impose a Constructive Trust claim against Judge Watson and Watson, P.A. for the attorney's fees and costs received by the firm. After a ten week trial, all of these claims against Judge Watson were flatly rejected by the trial court. Judge Crow specifically found that neither Judge Watson nor Watson, P.A. was required to keep any settlement funds in a constructive trust. See Final Judgment, April 24, 2008 in Attorney 's Fees Litigation and Laura M Watson, P.A. d/b/a Watson and Lentner v. Stewart Tilghman Fox & Bianchi, P.A., William C. Hearon, P.A., and Todd S. Stewart, P.A., 85 So.3d 1 l 12 (Fla. 4* DCA 2012) upholding trial court's order. Despite the specific finding that Judge Watson was not liable, and despite the fact that the Stewart Lawyers received approximately $1,130, prior to 4

5 trial by settlement and voluntary payments from Judge Watson and other lawyers, the Stewart Lawyers engaged in a smear campaign against Judge Watson. Because of their conduct, there is currently pending a Libel and Slander, Malicious Prosecution, and Abuse of Process claims against the Stewart Lawyers (hereinafter referred to as the "Defamation Litigation").' In addition, Judge Watson's motion for attorney's fees and cost of approximately $800, is still pending in the Attorney's Fees Litigation. Despite filing the Attorney 's Fees Litigation suit in June 2004, Larry Stewart waited until 2008 to file a complaint with The Florida Bar alleging improper conduct from In 2008, even though Judge Watson was personally vindicated, Judge Crow's order was also forwarded to The Florida Bar to consider whether any violations of the Rules of Professional Conduct were violated in Even though The Florida Bar never took any action to extend its statute of limitations, it issued a determination of probable cause on or about October 25, 2012, during the early voting period of Judge Watson's judicial campaign. During this same election time frame United Automobile Insurance Company, an insurer regularly sued by Watson P.A. for failure to pay legitimate claims, contributed ' Request for Judicial Notice of the Defamation Litigation was filed in this case. Laura M. Watson v. Stewart Tilghman Fox & Bianchi, P.A., William C. Hearon, P.A., and Todd S. Stewart, P.A., Larry S. Stewart, individually; and William C. Hearon, individually, is currently pending in Broward County Case No

6 fifteen thousand ($15,000.00) dollars to Judge Watson's opponent Julio Gonzalez. This contribution was made by funneling money through a Political Action Committee. See BrowardBeat.com, Julio Gonzalez's Last-Minute Shady Campaign, November 3, 2012 The Florida Bar never fded any formal charges against Watson. ARGUMENT I. The Charges Filed Against Judge Watson Exceed The Restrictions Placed on the JQC by the Florida Constitution. Notwithstanding the demonstrably false allegations of conduct against Judge Watson and Watson's law firm from over 10 years ago that are contained in the Notice of Formal Charges, a circuit court judge is a constitutional officer, duly elected, and entitled to the constitutional guarantees of substantive and procedural due process and equal treatment under the law that ultimately require dismissal of these proceeding under the circumstances. In pursuing charges against Judge Watson, the JQC seeks to turn Article V of the Florida Constitution on its ear, and bootstrap itself to an untimely investigation by The Florida Bar from alleged 2 Additionally, United Automobile is represented by Bar grievance committee member Jennifer C. Erdelyi, Esq., of Colodny, Fass, Talenfeld, Karlinsky & Abbate. That firm represents United Automobile and other insurance companies and filed an Amicus Brief in support of United Automobile in the case of Custer Medical Center v. United Automobile Insurance Company, 62 So.3d 1086 (Fla. 2010). 6

7 conduct occurring over 10 years ago. Doing so, however, far exceeds the JQC's purpose and jurisdictional limitations. The JQC is a constitutional body and derives its jurisdiction exclusively from the Florida Constitution. See art. V, 12(a) Fla. Stat. As part of the judicial branch, the Florida Constitution restricts the JQC's "jurisdiction to investigate and recommend to the Supreme Court of Florida" specific circumstances, set forth in relevant part below: "The removal from office of any justice or judge whose conduct, during the term of office or otherwise occurring on or after November 1, 1966 (without regard to the effective date of this section) demonstrates a present unfitness to hold office..."; and... the disciple of a justice or judge whose conduct, during the term of office or otherwise occurring on or after November 1, 1966 (without regard to the effective date of this section) warrants such discipline... The commission shall have jurisdiction over justices and judges regarding allegations that misconduct occurred before or during service as a justice or judge if a complaint is made no later than one year following service as a justice or judge." Clearly, this provision does not give the JQC unlimited power and unbridled restraint to investigate any alleged conduct at any point in time, let alone allegations occurring ten years ago, long before Watson was a judge, a candidate for judge, or performing any judicial function. Such power, as the JQC special counsel seeks, would decimate basic principles of due process and justice under 7

8 both the United States and Florida Constitutions. It would vest in this constitutional body chilling power to circumvent the electorate, investigate any point in the life of a judge, infringe on police powers, bypass the rule of law, etc. There is not a single reported case wherein the JQC has exercised jurisdiction under similar facts. Cases where the JQC has exercised jurisdiction over a judge for violations of the Florida Rules of Professional Conduct all occurred while when the respondent was already a judge, actively becoming a judge or proximate in time to one of those occurrences. See e.g. In re Hapner, 718 So.2d 785, 786, 788 (Fla. 1998) (charged with neglecting client matters when running for county court judge and giving false testimony in her divorce case); In re Ford-Kaus, 30 So.2d 269, , 276 (Fla. 1999)(disciplined for violating bar rules after she become a candidate for judge); In re Meyerson, 581 So.2d 581, 582 (Fla. 1991)(disciplined for conduct after declaration of candidacy, and after elected judge when closing practice of law); In re Henson, 913 So.2d 579, 582, 594 (Fla. 2005) ( disciplined for practicing law in 2000 while he was a sitting judge, left the bench in 2001, and the JQC regained jurisdiction over him in 2003 when he returned to the bench as a circuit judge); In re Davey, 645 So.2d 398, , (Fla. 1994) (the events investigated by the JQC occurred after Davey's election as a judge and he was closing his law practice); In re Block, 496 So.2d 133 (Fla. 1986)(wherein the JQC brought charges against Judge Block after his

9 election for actions that occurred while he was running for county court judge and other violations between ). In each of these cases at least one act of alleged misconduct occurred during the judges tenure, candidacy, or while performing some judicial function and all of the acts occurred relatively close in time to the judge taking the bench. Before the case against Judge Watson, the JQC only exercised jurisdiction over a sitting judge for alleged violations occurring when the respondent was already a judge, actively becoming a judge or proximate in time to one of those occurrences. The JQC now intentionally and arbitrarily applies the law to Judge Watson in a unique and unfavorable manner without any justifiable or legal basis for singling her out--in a text book example of a violation of the equal protection guarantee of the Fourteenth Amendment due process clause. See Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). When it comes to government action, similar individuals are to be dealt with in a similar manner. Article V, section 12(a) (1) has never been interpreted as giving the JQC so much power. To the contrary, the revisions to the jurisdictional provision show the limitations put on the amendments. In interpreting a constitutional amendment, the Court looks to the historical events at the time of the amendment to determine its purpose and aid in its interpretation. See Sullivan v. City of Tampa, 101 Fla. 289, 9

10 134 So. 211, 216 (Fla. 1931). Here, this section of the Constitution was amended in 1974 to add the language "or otherwise occurring on or after November 1, "3 precisely because of an unjust result in the case of Judge Turner, who could not be disciplined because at that time, the JQC did not have jurisdiction to investigate judges presiding in a various judicial capacities (ie. the Criminal Court of Record). Turner v. Earle, 295 So.2d 609 (Fla. 1974). The revision was in direct response to the case of Turner v. Earle, 295 So.2d 609 (Fla. 1974), in which the supreme court held that a circuit judge could not be disciplined or removed from office as a circuit judge for misconduct committed in a different office. The court noted that the office in question, judge of the criminal court of record, was not an office within the jurisdiction of the JQC and that the judge may not be removed for misconduct that he committed in another public office House Joint Resolution Accordingly, the new language was added to prevent a judicial officer who engaged in misconduct while he or she was acting in a judicial capacity (such as a candidate or magistrate) from escaping investigation.4 Likewise, as a result of that amendment, the terms "justice or judge" were clearly defined in the State Constitution and entities such as the criminal court of record were abolished. See 'Note that the "or otherwise" is meant to cover persons who are candidates for judicial office, or performing a judicial function such as a child support hearing officer or special magistrate. See Definitions: Code of Judicial Conduct and Application section at the end of the Code. The Supreme Court of Florida acknowledged this gap in the pre-1974 constitution and noted that they anticipated this would be corrected in the amendment (which it was). Turner at

11 Article V, 3, 4, 5, and 6, Fla. Const. (defining a "justice or judge" as constitutional officers identified as supreme court justices, judges of the district court of appeals, circuit courts, and county court judges). Importantly, in Turner, the Supreme Court of Florida clarified the reasonable scope of the JQC's jurisdiction. The Judicial Qualifications is in effect an investigatory commission and as such it has the right to investigate matters occurring within a reasonable time but not exceeding two years behind its origin where such investigation and matters are germane to an alleged act of misconduct...as a basis for misconduct in a present office only when such investigation is in relation to a charge of misconduct occurring in a present term of office. Id. at Subsequently, the jurisdiction of the JQC was broadened slightly to allow continued jurisdiction for up to one year following the services of a judge, as prior to that change, the JQC lost jurisdiction over a judge who resigned when faced with allegations of misconduct Committee Substitute for Senate Joint Resolution 978. Moreover, pursuant to the JQC's own rules, the subject matter of the Investigative Panel is limited to determining: [ifj a judge is guilty of [1] willful or persistent failure to perform judicial duties, [2] or conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, [3] or that the judge has a disability seriously interfering with the performance of the judge's duties, which is, or is likely to become, 11

12 permanent in nature, may make an investigation to determine whether formal charges should be instituted. Rule 6(a) FJQCR. Like the Florida Constitution, the Florida Judicial Qualifications Commission Rules ("FJQCR") is meant to restrict the jurisdiction of the JQC to actions of a person while a judge, a candidate for judicial office, or someone performing a judicial function such as a child support hearing officer or special magistrate. The whole scope is centered on whether the judge is able to carry out judicial duties without real or perceived impediments to carrying out judicial functions- not investigate something that happened over 10 years ago, that is factually disputed and never timely pursued by the only oversight body who may have been able to address the alleged conduct at that time. Notably, even when the Supreme Court passed The Code of Judicial Conduct, it was not intended "that every transgression will result in disciplinary action... [but] should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards ofjudicial and personal conduct." Id. II. The JOC Cannot Expand the Statute of Limitations of The Florida Bar or Impose Authority Over the Regulation of Lawyers Notwithstanding the demonstrably false allegations of conduct against Judge Watson and Watson's law firm from over 10 years ago that are contained in the Notice of Formal Charges, a circuit court judge is a constitutional officer, duly 12

13 elected, and entitled to the constitutional guarantees of substantive and procedural due process and equal treatment under the law that ultimately require dismissal of these proceeding under the circumstances. Article V, 15, of the Florida Constitution confers "exclusive jurisdiction" to the Florida Supreme Court to regulate lawyers, which is done through The Florida Bar. The fact that a judge is required to be a lawyer (addressed in Article 5, 8, Fla. Const., "[n]o person is eligible for the office of circuit judge unless the person is, and has been for the proceeding ten years, a member of the bar of Florida") does not mean that the JQC can step into the shoes of The Florida Bar and act as its agent.5 Since her May 1985 admission to The Florida Bar, Judge Watson has always been a member in good standing with the privilege to practice law and therefore met the constitutional requirements to run for circuit court judge. If a Rule of Professional Conduct had been violated, The Florida Bar was required to commence the action "within six years from the time the matter was discovered." Rule (a) adopted in 1995; Rule Fla. R. Civ. P. See also Florida Bar re Amendments to Rules Regulating the Florida Bar, 658 So.2d 930 (Fla ). While Watson is mindful of the language allowing for deferral by the Bar of certain matters, that language was not added until many years after the events in question and in no way applicable to Judge Watson's case. See In re 'Article V 8 expressly determines if a person is eligible to be judge, and 9 and 10 determine the number ofjudges and their retention, election and terms. 13

14 Amendments to the Rules Regulating The Florida Bar, 916 So.2d 655 (Fla. 2005). By the plain reading of this section, the change is not retroactive and only applies to conduct occurring after passage of the amendment. It cannot be disputed that The Florida Bar never filed formal charges against Watson, and the statute of limitations for them to do so long since expired. The fact that some action was ultimately taken in the midst of an election in 2012, only meant that Watson would have eventually had an opportunity to defend herself or assert that the statute of limitations passed for formal proceedings to commence. Certainly, it does not mean that the JQC can pick up the mantle of The Florida Bar, ignore the procedural and due process requirements that protect lawyers, and claim that a duly elected circuit court judge is somehow unfit as a result of a disputed claim from 2004 and earlier? There are no allegations that Judge Watson obstructed the process, failed to cooperate with The Florida Bar, or caused delay. Even the 2008 grievance that was filed by Larry Stewart with The Florida Bar or the order forwarded by Judge Crow still provided a two year period of time for The Bar to investigate, follow their procedures and file a Complaint, but that did not happen. It was only after a " Even if somehow permitted, it cannot be overstated that the Notice of Formal Charges in the instant case only contains allegations for which The Florida Bar never filed (and could never legally file) a formal complaint because, even if true, the statute of limitations expired and was never extended. 14

15 controversial election in 2012 that action was taken, and it is unjust and unfair to allow the JQC to now proceed on matters that The Bar may have diligently pursued but chose not to. Even before the passage of the six year statute of limitations, The Florida Bar was required to diligently pursue alleged misconduct and the Supreme Court found that a seven year delay was unjust and unfair. See The Florida Bar v. Walter, 784 So.2d 1085, 1087 (Fla. 2001). Yet, the JQC endeavors to look to those alleged facts that occurred a decade ago, which it claims violate The Florida Bar rules, and by doing so, purport to evidence conduct that would be unbecoming a member of the judiciary. In trying to put itself in the shoes of The Florida Bar, albeit late and outside its exclusive jurisdiction, the JQC disregards the marked difference between the role and conduct of a judge and the role and conduct of a lawyer in our legal system. When a member of the judiciary assumes the bench, that member is prohibited from practicing law or holding office in any political party. See art. V, 13, Fla. Const. In In re Proposed Disciplinary Action, 103 So.2d 632 (Fla. 1958), the Florida Supreme Court stated that once a judge assumes office, all rights and privileges to engage in the practice of law are suspended. The role of a lawyer and the role of a judge are inherently different, and the allegations (even if true) have no rational or necessary connection to Judge Watson's duties as a circuit court judge. Lawyers serve a much different role in the legal system than judges. The 15

16 attorney acts as counselor and advocate of the client and the laws governing an attorney focus on the client-lawyer relationship as well as other duties. At its essence, the Rules of Professional Conduct state that a lawyer shall not "commit an act that adversely reflects on the applicant's fitness to practice law..." Rule (c). Nor, are the duties announced in The Code of Judicial Conduct, Canons 1 and 2(a) (the alleged violations here) imposed on lawyers. Between , the time frame of the JQC's allegations, there were no rules regulating the Florida Bar requiring an attomey to "uphold the integrity and independence of the Judiciary" (Canon 1) or "to respect and comply with the law at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2 (a). But it is not like the alleged impropriety occurred without an opportunity for the public and The Florida Bar to consider it. In fact, the alleged conduct of Judge Watson from was highly scrutinized. First during the litigation which commenced in 2004, then when the Florida Bar investigated and did not timely file a complaint, and finally during the election of 2012 wherein the events were the subject of newspaper articles and political blogs, and yet, Watson was still elected with almost a 400,000 votes. 16

17 IH. Judge Watson has a ConstitutionaHy Protected Property Interest Upon Which the JQC Has No Authority to Infringe Notwithstanding the demonstrably false allegations of conduct against Judge Watson and Watson's law firm from over 10 years ago that are contained in the Notice of Formal Charges, a circuit court judge is a constitutional officer, duly elected, and entitled to the constitutional guarantees of substantive and procedural due process and equal treatment under the law that ultimately require dismissal of these proceeding under the circumstances. A circuit court judge is a constitutional officer under Article V of the Florida Constitution. It comes with constitutional guarantees of substantive and procedural due process and equal treatment under the law pursuant to the state and federal constitutions that cannot be easily overlooked. This prosecution not only violates Judge Watson's constitutionally guaranteed rights, but is a transparent effort to use the JQC to impact existing and ongoing litigation on a pending motion for substantial attorney's fees and costs, as well as a pending Libel and Slander, Malicious Prosecution, and Abuse of Process civil action. Judge Watson's judicial race was highly contested. The allegations which form the basis of the Notice of Formal Charges were and are a matter of public record and were written about during the judicial campaign by the press and political blogs. See, e.g. BrowardBeat.com, "Four with Campaign Baggage Run for Judge," May 4, 2012 ("Two firms thought they deserved more money from the 17

18 settlement and sued three firms that got the bulk of the money, including Watson's firm."). In part because of the thorough public vetting of these issues, Watson won a primary and runoff, winning the vacant circuit court seat. "There are two truisms about Florida's election law concerning judicial races. One, eligibility to run for office is controlled by Article V. section 8 of the Florida Constitution. Any statute that restricts eligibility beyond the requirements of the Florida Constitution is invalid... And two, extreme care must be given to post-election challenges to avoid disenfranchising Florida's voters... barring fraud, unfairness, disenfranchisement of voters, etc. it is too late to attack the validity of an election after the people have voted." Levey v. Difolis, 990 So.2d 688, 692 (Fla. 2008). Despite the will of the electorate with an opportunity to discover all of the allegations of the Attorney's Fees Litigation from 2004, satisfying the constitutional requirements for circuit court judge, and winning the election, the JQC impermissibly seeks to undermine the results of the election and remove Judge Watson from the circuit court either permanently or temporarily for alleged actions unconnected with her service as a judge. Voter's rights are protected by the First and Fourteenth Amendments. See Anderson v. Celebreeze, 460 U.S. 780, , 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).Voters have a right to cast their votes effectively and candidate qualification rules are in place precisely to make certain 18

19 that only qualified candidates appear on the ballot. If Watson was not a qualified candidate, an objection was required to be raised either before the election, or before the governor commissioned Watson as a circuit court judge. The governor is not authorized to commission a circuit judgeelect unless the judge satisfies the constitutional eligibility requirements for that office. There are at least two instances wherein the governor was prohibited from signing the candidates' commissions because they did not meet the Florida Constitution's eligibility requirements. See In re Advisory Op. to Gov., 17 So.3d 265 (Fla. 2009) and In re Advisory Op. to Gov., 192 So.2d 757 (Fla. 1966). The JQC's attempt to impose jurisdiction over Judge Watson almost immediately after she was sworn m as a constitutional officer, amounts to an impermissible attack on the validity of the election. After the voters spoke, and the Governor acted, it is simply too late for anyone including the JQC to attack the validity of an election by claiming that alleged misconduct from 10 years ago--for which Watson has been exonerated- warrants any removal (permanent or temporary) from office. There was no protest to the election result filed by either a candidate or an elector qualified to vote in the election. Thus, the canvassing board was obligated by law to timely certify the results of the election which was done. See Florida Statute , Nothing in Florida Law permits the JQC to overturn the will of the voters by using this process to essentially add some 19

20 unverifiable eligibility requirement. Eligibility to run for office is controlled by the Florida Constitution and no statute or govemmental body (such as the JQC), can alter the eligibility requirements. IV. The JOC has Exceeded its Jurisdiction by Imposing An Unfair and Biased Procedure that Violates Judge Watson's Procedural Due Process Rights and Results in Unequal Treatment Under the Law. Notwithstanding the demonstrably false allegations of conduct against Judge Watson and Watson's law firm from over 10 years ago that are contained in the Notice of Formal Charges, a circuit court judge is a constitutional officer, duly elected, and entitled to the constitutional guarantees of substantive and procedural due process and equal treatment under the law that ultimately require dismissal of these proceeding under the circumstances. The JQC has violated and continues to violate Judge Watson's procedural due process rights guaranteed by the Constitution of the State of Florida and the Fourteenth Amendment of the United States Constitution, 42 U.S. C.A. sec by initiating this inquiry in an unfair and biased manner. Left to defend herself Judge Watson should not also have to confront what appears to be a star chamber- that disregards not only established and tested legal procedures and principals but even its own rules in such a matterof-fact manner that it makes a mockery of any meaningful protection or fairness. "Procedural due process requires that a judge be given notice of the 20

21 proceedings, that the judge be given an opportunity to be heard, and the proceedings against the judge be essentially fair...additionally, due process requires the JQC to be in substantial compliance with its procedural rules." In re Graziano, 696 So.2d 744, 750 (Fla. 1997). Both on its face and in application, the process established by the JQC does not meet this test. Obvious conflicts of interest, cronyism, and unholy alliances abound in this proceeding. The relationships between the Stewart Lawyers and their team, who have been locked in ongoing litigation with Watson since 2004, appointees of the JQC and its paid staff, as well as the leadership of The Florida Bar cannot be ignored. It is both relevant and important to take judicial notice that McGrane, and Hearing Counsel Lauri Waldman Ross, have personal relationships, professional associations, professional activities, Florida Bar activities, and/or business interests, with the Stewart Lawyers (or their relatives), the Searcy Denney firm that represented the Stewart Lawyers in the Attorney's Fees Litigation, the insurance companies that insure the Stewart Lawyers for the claims in the pending Defamation Litigation, and expert witnesses who testified for the Stewart Lawyers in the Attorney's Fees Litigation. Moreover, Allstate Insurance Company, which insures Larry Stewart in the Defamation Litigation for example, has been represented by McGrane in cases critical to the manner in which Allstate and other 21

22 insurance companies conduct business in the State of Florida.' The very fact that McGrane served as Special Counsel for the Investigative Panel in this matter, and now serves as Special Counsel for the Hearing Panel is inherently unfair and violates the constitution. The Florida Constitution requires that "[t]he commission shall hire separate staff for each panel." art. V, 12 (2)(e) Fla. Const. Further, McGrane served on the JQC and chaired the Commission in The relationship between McGrane and David Bianchi (Larry Stewart's partner) has been long standing and believed to be very close. In 2001, McGrane and Bianchi served on the Special Commission on Insurance to study the practices of the property and casualty underwriters of the insurance practices as they relate to using insurance company staff attorneys to represent the insured. McGrane had also been on the Board of Governors from and President of The Bar from Bianchi was on the Board of Governors and serving on numerous committees. Both also served on numerous committees of The Florida Bar Board of Governor's between 2001 and 2005, traveling to various locations in Florida such as Amelia Island, Pensacola, Ponte Vedra Beach, Naples, Key West, Tallahassee, and Palm Beach, but also to Las Vegas, Nevada 7 United Services Automobile Association vs. Evelyn Goodman etc., Case Nos: SC ; SC ; SC ; SC ; SC ; SC ; SC ; SC (Consolidated). Noteably, Ed Moss of Shook Hardy & Bacon appeared on behalf of USAA in this same litigation and appeared as an expert witness for the Stewart Lawyers in the A ttorney 's Fees Litigation. 22

23 and Chicago, IL The Florida Bar Board of Governors Regular Minutes, January 30, 2004 and similarly in 2003? For many years McGrane and his wife have been involved in supporting Kristi House, a local charity. Patty McGrane and Julie Bianchi -- David Bianchi's wife-both served on the Board of Directors of this charity. The connections between Hearing Panel member Mayanne Downs and McGrane, other panel members, and witnesses in this case are just as striking. Downs has been on the Board of Governors from 2002 until the present and on the Executive Committee since When Downs was President of The Florida Bar, she appointed McGrane to the 2011 Special Committee to Study the Decline in Jury Trials." JQC members Alan Bookman, John G. White, and Mayanne Downs have been members of this same committee and McGrane and Alan Bookman spent two days (in addition to the regular meetings) at a symposium on diversity. Diversity in the Legal Profession, Final Report and Recommendations, August 13, Both continued to be Members of the Supreme Court Standing Committee 8 Bianchi -- Larry Stewart's partner -- was the chair of the commission. The commission was composed of twelve members. The meetings were held in Boca Raton, Orlando, Tampa, and Miami between September 2001 and February Report ofthe Special Commission on Insurance Practices II, March 1, McGrane and JQC panel members Mayanne Downs, Alan Bookman, and John G. White have all served as past presidents of The Florida Bar in addition to their other board committees and bar involvement. 23

24 on Faimess and Diversity from Like Downs and McGrane, Bookman and John G. White are past presidents of The Florida Bar. Bookman served on the Board of Govemors , the Executive Committee ; ; President elect and President In a recent disclosure, Bookman admitted that he and his wife "are friends with Mr. and Mrs. McGrane, have stayed in their home in Park City Utah and have attended 2 Destin Charity Wine Auctions in Destin Florida with them." Response of Hearing Panel Members, August 30, 2013, this case. Bookman does not, however, believe this provides a legal basis requiring his disqualification from the Hearing Panel. Both Downs and McGrane have connections to the Searcy Denney firm (attorneys for the Stewart Lawyers in the Attorneys Fees Litigation and witnesses here). McGrane and the Searcy Denney firm co-counseled several appeals including major tobacco related litigation.1 Downs is a shareholder in the firm of GrayRobinson. Both the GrayRobinson firm and the Searcy Denney firm have members on the Fifteenth Judicial Circuit Nominating Commission. Likewise, Downs' GrayRobinson firm and the firm of Colodny, Fass, Talenfeld, Karlinsky & Abbate have members on the Judicial Nominating Commission for this circuit. As to See: Norma R. Broin, et al., v. Phillip Morris Companies, 3D &3D ; Patricia Young et al., v. Norva L Achenbauch et al., SC Robert Endacott v. International Hospitality, Inc., et al., 3D McGrane was one of the lead class counsel with Searcy Denney Scarola in the Engle Trust tobacco settlement. 24

25 previously noted, the Colodny Fass Talenfeld, Karlinsky & Abbate firm represents United Automobile and other insurers. United Automobile contributed $15, to Judge Watson's opponent during the election. [FN 2]. It was Colodny Fass' associate that sat on the grievance committee that made the probable cause determination right before the general election. Obviously if Judge Watson was removed from office, it would greatly benefit those who are in a position to influence the nomination of her replacement. Perhaps most importantly, GrayRobinson lists Progressive Insurance Company as one of their clients. According to the Notice of Formal Charges, Progressive paid Watson P.A. and others an aggregate settlement of $14.5 million dollars in 2004 for all claims in the Gold Coast bad faith action which is the subject of this proceeding. Many of the witnesses that will be called in this case are representatives of Progressive Insurance Company. The business relationships continue throughout this commission. Lauri Waldman Ross and Robert C. Tilghman (son of Jim Tilghman - partner to Larry Stewart), are co-counsel on various appeals and Eileen Tilghman was Ross' former law partner." Eileen Tilghman n/k/a Eileen Tilghman Moss, married Ed Moss of u See: Rosen v. Florida Insurance Guaranty Association, 734 So.2d 491 (Fla. 1" DCA 1999); Robert Endacott v. International Hospitality, Inc., et al.,3d ; Melissa Ricks v. Rene Loyola, M.D., SC01-793; Florida East Coast Railway, LLC v. Stephen P. Roland, 3D ; 25

26 Shook Hardy & Bacon, the firm that appeared on behalf of USAA in this same litigation that McGrane represented Allstate (see above). Ed Moss also served as an expert for the Stewart Lawyers in the Attorney's Fees Litigation and is a witness in this case. Lauri Waldman Ross has co-counseled with Richard Slawson and Fred Cunningham who are witnesses in this case. See United Automobile lns. Co. v. The Estate of Steven D. Levine, Assignee ofjose Hernandez, assignor, by and through Tracy Howard, as Personal Representative, 87 So.3d 782 (Fla ). These relationships, and perhaps others, previously undisclosed by the JQC counsels and panel members, coupled with the strange and unusual circumstances surrounding the initiation of this matter, and the development and production of both the Notice ofinvestigation and the Notice offormal Charges are matters that suggest prosecutorial misconduct and evidence that the JQC is not performing their duties as originally intended -- or they are performing them m an improper way -- allowing members and appointed counsel to favor personal friends, business associates, and relatives. Under these circumstances, there is no conceivable way that any litigant, even one who is a circuit court judge, could reasonably expect a fair and impartial hearing. The procedural rules as applied by the JQC violate any reasonable standard of equal treatment and due process for litigants and attempts to further rig the procedures have been made by McGrane and Schneider. In 2011, McGrane (then 26

27 JQC Chair) and Schneider filed formal pleadings in the Supreme Court seeking to amend the JQC's rules so that the rules "would conform the present practices of the Commission." See In re Amendments to the Florida Judicial Quahfications Commission vs. Rules, SC11-l897. The document acknowledged that many of the JQC's routine practices violated the due process rights of judges and exceeded the constitutional restrictions placed on the Commission. Significantly, the proposed amendment to Rule 12(a) admits that it is the Commission's practice to enter into stipulations for proposed discipline prior to and without the filing of formal charges which violates the Constitution, the current rules, and the public trust by keeping the allegations secret. Such a practice results in unequal treatment under the law as well. The JQC's rules were changed in 1998 to prevent this type of behavior. The changes to Rule 6(f) specifically require that formal charges be filed with the Supreme Court (and therefore made public) once the Investigative Panel finds probable cause. The change came in response to criticism that the JQC engaged in a practice of striking secret deals with some judges -- like Circuit Court Judge William Williams, III. In that case, the JQC allowed Williams to quietly retire for his violations of his 1983 agreement (also secret) to refrain from alcohol use. Federal Judge Daniel Hurley (then Chief Judge for the 15th Judicial Circuit) criticized the secrecy of the JQC's proceedings. So did Chief Judge Peter Weinstein for the 17th Judicial 27

28 Circuit (then Senator) in The Sun-Sentinel on October 27, Similarly, even though Rule 6(b) of the Florida Judicial Qualifications Commission Rules ("FJQCR") provides that the judge is to be given a reasonable opportunity to make a statement before the Investigative Panel regarding the subject of the investigation, Judge Watson was never provided an opportunity to address the new factual allegations asserted in the Notice of Formal Charges. Moreover, several demands for a copy of any witness statements and transcripts of testimony of witnesses in possession of the Investigative Panel have been made by Judge Watson. On August 21" McGrane filed the JQC's preliminary witness list which states that "[t]he JQC has no written statements of any of these witnesses." See Judicial Qualifications Commission's Response to Judge Laura M. Watson's Request Pursuant to Rule 12(b) FJQCR p. 3. According to McGrane, the only statement and transcript in possession of the Investigative Panel is that of Judge Watson when she appeared before them on July 12, This alone acknowledges that the rules governing the JQC have become so compromised as to render the proceedings fundamentally unfair and a violation of due process and equal treatment. The Investigative Panel is authorized to make an investigation "upon receiving factual information, not obviously unfounded or frivolous, or an individual complaint made under oath, indicating that a judge...to determine if 28

29 formal charges should be instituted." Rule 6(a), FJQCR. According to McGrane, at the time the Notice of Investigation issued, not a single document was in the Investigative Panel's possession and not a single witness appeared to provide testimony. Thus, the JQC had no basis to issue the Notice ofinvestigation. Likewise, the filing of the Notice of Formal Charges is just as suspect. At the time the Investigative Panel voted on the formal charges, the only statement in its possession was that of Judge Watson's which related to the original 17 allegations contained in the Notice of Investigation-- not the new allegations ultimately charged in the Notice of Formal Charges. The Investigative Panel had no other witness statements under oath. As required by the JQC's own rules: "When the Investigative Panel finds probable cause that formal charges should be filed against the judge, the Investigative Panel shall file a Notice of Formal Charges with the Clerk of the Supreme Court..." (emphasis added). Rule 6(f), FJQCR. Probable cause is the operative phrase in that sentence. The JQC's rules do not define probable cause, but the Florida Constitution and case law does. Pursuant to the Florida Constitution, probable cause must be established by a written and sworn affidavit or complaint. See art. I, 12, Fla. Const.; Mylock v. State, 750 So.2d 144 (Fla. l ' DCA 1980). The probable cause standard defined by the Florida Constitution must be applied by the JQC in order to ensure judges are afforded due process and equal protection under the law. Unless McGrane is 29

30 claiming that the affidavit filed by Judge Watson in response to allegations in the Notice ofinvestigation, which were materially different than the ultimate charges in the Notice of Formal Charges, somehow provided the basis for the filing, the Investigative Panel had no probable cause to file charges against Judge Watson. The JQC has acknowleged that they ignore the Rules as written. See In re Amendments to the Florida Judicial Quahfications Commission vs. Rules, SC This failure of due process has resulted in a system which allows individual panel members to target or protect certain judges depending on their alliances. The JQC has an important function, but it can only serve that function and earn the public trust if it follows the federal and state constitutions, and plays by the rules of established and tested legal principles. As enumerated above, the natural and obvious result of not following the rules is cronyism, rampant violations of constitutionally guaranteed rights of due process and equal treatment, and loss of the public trust. CONCLUSION Notwithstanding the demonstrably false allegations of conduct against Judge Watson and Watson's law firm from over 10 years ago that are contained in the Notice of Formal Charges, a circuit court judge is a constitutional officer, duly elected, and entitled to the constitutional guarantees of substantive and procedural 30

31 due process and equal treatment under the law that ultimately require dismissal of these proceeding under the circumstances. Both as a matter of law, and as applied here, the Judicial Qualifications Commission (hereinafter referred to as the "JQC") has overstepped its authority and exceeded its jurisdiction against Circuit Court Judge Laura M. Watson (hereinafter referred to as "Judge Watson" or "Watson"). As set forth herein, the JQC is without jurisdiction to proceed against a circuit judge for alleged conduct that The Florida Bar did not timely prosecute nor has impaired any judicial function. There is nothing in the Constitution which permits the JQC to investigate conduct occurring ten years ago when the person was a practicing attorney and not a judge, a candidate for judicial office, or performing judicial functions. These allegations should be dismissed for lack of subject matter jurisdiction. Further, the JQC's attempt to impose jurisdiction over Judge Watson amounts to an impermissible attack on the validity of the election by the addition of a qualification for circuit court judge which does not appear in the statutes. If Watson was not a qualified candidate, an objection was required to be raised either before the election, or before the governor commissioned Watson as a circuit court judge. Before the case against Judge Watson, the JQC only exercised jurisdiction over a sitting judge for alleged violations occurring when the respondent was already a judge, actively becoming a judge or proximate in time to one of those 31

32 occurrences. The JQC now intentionally and arbitrarily applies the law to Judge Watson in a unique and unfavorable manner without any rational basis for singling her out. This conduct violates the equal protection guarantee of the Fourteenth Amendment due process clause. See Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). When it comes to government action, similar individuals are to be dealt with in a similar manner. Obvious conflicts of interest and the unholy alliance of cronyism and trading in influence abound in this proceeding. The relationships between the Stewart Lawyers and their team, who have been locked in ongoing litigation with Watson since 2004, appointees of the JQC and its paid staff, as well as the leadership of The Florida Bar cannot be ignored if due process is to truly be afforded. The structural protections intended by the Florida Constitution and the rules governing the JQC have become so compromised as to render the proceedings fundamentally unfair and a violation of due process. As a matter of law, this case should be dismissed against Judge Watson. Respectfully submitted, The Honorable Laura M. Watson Circuit Judge, 17th Judicial Circuit Room 1005B 201 SE 6'" Street Fort Lauderdale, Florida Tel.: (954) jwatson@l 7th.ficourts.org 32

33 /s/ Laura M. Watson LAURA M. WATSON Florida Bar No.: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by to: Miles A. McGrane, III, Esq. mileswmeuranelaw.com The McGrane Law Firm, Special Counsel, One Datran Center, Ste. 1500, 9100 South Dadeland Boulevard, Miami, Florida ; Lauri Waldman Ross, Esq. RossGirtenáil.aurilaw.com Counsel to the Hearing Panel of the JQC, Ste. 1612, 9100 South Dadeland Boulevard, Miami, Florida ; Michael L. Schneider, Esq. mschneideríd floridaiqc.com General Counsel, 1110 Thomasville Road, Tallahassee, Florida 32303, this day of September Pursuant to FJQCR Rule 10(b) a copy is furnished by to: The Honorable Kerry I. Evander, evanderkúi flcourts.oru, Chair of the JQC, 300 S. Beach Street, Daytona Beach, FL /s/ Laura M. Watson LAURA M. WATSON