IN THE SUPREME COURT OF FLORIDA CASE NO.: SC TFB Case No ,543(09E) THE FLORIDA BAR, Complainant, DANIEL WAYNE PERRY, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC TFB Case No ,543(09E) THE FLORIDA BAR, Complainant, v. DANIEL WAYNE PERRY, Respondent. ON REVIEW FROM A REPORT OF THE REFEREE RESPONDENT S INITIAL BRIEF Daniel W. Perry, Esq New Broad St #1007 Orlando, Florida Tel: Fax: Fla. Bar No

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... 2 TABLE OF AUTHORITIES... 5 SYMBOLS AND REFERENCES... 6 STATEMENT OF THE CASE AND FACTS... 7 Judge Smith Rejects Characterization of Enormous Claims as Prolix and Denies Motion to Dismiss... 9 Newly Assigned Judge Lauten Dismisses All Claims With Prejudice... 9 Judge Lauten Did Not Permit The Myers An Evidentiary Hearing Or Consider Lesser Sanctions Both Required by Kozel v. Ostendorf On An Identical Record, The Fifth District Court of Appeal Holds That Judge Lauten s Dismissal With Prejudice Must Have Constituted A Sanction Warranting Kozel Analysis Referee Characterized Respondent s Objectionable Statements as Opinions Referee Concludes Respondent Failed to Prove a Factual Basis for Opinions SUMMARY OF ARGUMENT ARGUMENT

3 ISSUE 1 Whether the referee's finding that respondent had failed to prove a factual basis for his opinions expressed in an affidavit in support of a party's motion to disqualify Judge Lauten was erroneous, unlawful, or unjustified where there was no evidence that such opinions or implied assertions of fact were false? Expert Opinion: Florida Should Apply Subjective Actual Malice Standard Adopted by New York Times v. Sullivan Developments in United States Supreme Court Jurisprudence Regarding Attorney Speech Rights, Due Process and Disqualification Missouri Supreme Court Adopts Sullivan Actual Malice Standard: Disciplinary Authority Must Prove (1) Falsity of Statement and (2) Statement Made with Knowledge of Falsity or Reckless Disregard as to Falsity ISSUE 2 Whether the referee's finding that respondent had engaged in conduct prejudicial to the administration of justice by opinions expressed in an affidavit in support of a party's motion to disqualify Judge Lauten was erroneous, unlawful, or unjustified where there was no evidence of interference or potential interference with a legal proceeding; no evidence that respondent violated a duty owed as a professional; and no evidence that respondent caused injury or potential injury to the public or the legal system? Essential Role of the Attorney in the United States Legal System And the Duty of Protection of Client Rights

4 Engaging in Expression that the Constitution Protects Cannot be Conduct Prejudicial to the Administration of Justice CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

5 TABLE OF AUTHORITIES Cases Page Bridges v. California, 314 U.S. 252, (1941) Caperton v. A.T. Massey Coal Co., Inc. 556 U.S. 868,, 129 S. Ct. 2252, 2259 (2009)... 24, 29, 31, 34, 38 Garrison v. Louisiana, 379 U.S. 64, (1964)...14, 16-19, 26, 28, In re Westfall, 808 S.W.2d 829 (Missouri 1991) Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) Landmark Communications, Inc. v. Virginia, 435 U.S. 829, (1978)... 34, 36 Legal Services Corporation v. Velazquez, 531 U.S. 533, 545 (2001) , 29, 33, 38 NAACP v. Button, 371 U.S. 415, (1963) New York Times v. Sullivan, 376 U.S. 254, (1964) , 28, 37 Powell v. Alabama, 287 U.S. 45, 69 (1932) Republican Party of Minnesota v. White, 536 U.S. 765, 775 (2002)... 21, 25, 29, 34, 37 Smith v. Pace, 314 S.W.3d 124, 135 (Missouri 2010) , 28 5

6 Snyder v. Phelps, 562 U.S., 2011 WL , slip op. at *8 9 (March 2, 2011) St. Amant v. Thompson, 390 U.S. 727, 731 (1968) The Florida Bar v. Morgan, 938 So.2d 496 (Fla. 2006) The Florida Bar v. Ray, 797 So.2d. 556 (Fla. 2001), cert. den., 535 U.S. 930 (2002)... 13, 19-21, 23-24, 28, 30 Disciplinary Rules Rule 4-8.2, of the Rules Regulating The Florida Bar... 15, 18, 33, 35-36, 38 Citations to Other Legal Authorities Page Florida Rule of Civil Procedure Florida Rule of Civil Procedure SYMBOLS AND REFERENCES In this Initial Brief of Respondent, the complainant, The Florida Bar, will be referred to as either "The Florida Bar," "Florida Bar," or "the Bar." Daniel Perry, the respondent, will be referred to as "Perry" or "respondent." Abbreviations in this brief are as follows: "(RR)" will denote the Report of Referee. "(T)" will denote the transcript of the proceedings. 6

7 "(Tab)" will denote the Amended Index of Record. (Tarkington) will denote Prof. Tarkington s expert opinion testimony via her Affidavit A Tabs 25 and Exhibit 1, Vol 1, Respondent s Exhibit Notebook, adopted, referred to and quoted extensively herein. The numbers following "RR," "T," "Tab," and Tarkington will refer to the page number. STATEMENT OF THE CASE AND FACTS This case involves a recommendation by the referee that this Court issue a public reprimand against respondent for expressions of disparaging opinions in an affidavit in support of a party s motion to disqualify Judge Lauten. In his affidavit, respondent fully disclosed his interaction with Judge Lauten sixteen years earlier when, as an assistant state attorney, Mr. Lauten was a material witness on behalf of the Judicial Qualifications Commission in a case against respondent. (Tab 1) Respondent was represented in the JQC action by attorney Agustin Benitez. Respondent opined that Judge Lauten held a current bias against Mr. Benitez for his treatment of Mr. Lauten and the resulting rejection by the JQC of the charges instigated and supported by Mr. Lauten sixteen years earlier. (Tab 1) Respondent had interaction with Judge Lauten (then Assistant State Attorney Lauten) in the years leading up to respondent's departure from the County Court bench in Assistant State Attorney Lauten was instrumental in the filing and 7

8 presentation of a number of charges by the Judicial Qualifications Commission against respondent, then a county court judge. He was a material witness for the JQC against respondent and testified at both deposition and trial. (Tab 1) Respondent's lawyer, Mr. Benitez, conducted extensive and probing examination of Assistant State Attorney Lauten. Assistant State Attorney Lauten was discomforted, embarrassed, humiliated, and intimidated as a result of questioning by respondent's lawyer, Mr. Benitez. (Tab 1, Exh 3, Florida Bar s Exhibit Notebook) Assistant State Attorney Lauten was also publicly confronted and accused by members of the criminal defense bar of making unsubstantiated claims against the respondent. (Tab 1, Exh 3, Florida Bar s Exhibit Notebook) The subsequent trial demonstrated that the charges instigated and supported by Assistant State Attorney Lauten were unsubstantiated and those charges were dismissed. As an example recited in respondent s affidavit, during the JQC investigation and proceedings Assistant State Attorney Lauten took a comment respondent made out of context and falsely represented to another sitting judge that respondent had announced an intent to hold that judge in contempt despite an audiotape which clearly established that the comment was being recklessly taken out of context resulting in an additional charge being filed by the JQC. Respondent was later fully exonerated of that charge. (Tab 1) 8

9 Judge Smith Rejects Characterization of Enormous Claims as Prolix and Denies Motion to Dismiss The Myers and their corporate entities were sued by a business partner over the failure of a complicated multimillion dollar entertainment development project. (Tab 1) The Myers counterclaim and crossclaim pleadings exceeded 200 pages detailing numerous counts with extensive supporting allegations and exhibits. (Tab 1) The opposing party corporate and individual plaintiffs asked Judge Smith to dismiss for, inter alia, prolixity. Judge Smith noted the enormity of the Myers claims but refused to characterize them as prolix and denied the motion to dismiss on that basis. (Tab 1, Exh 20, Vol. II Respondent s Exhibit Notebook) Newly Assigned Judge Lauten Dismisses All Claims With Prejudice But shortly after his new assignment to the lawsuit, Judge Lauten dismissed all their claims with prejudice even those claims not subject to a pending motion to dismiss without notice or an evidentiary hearing. (Tab 1, Exh 28, Vol. II Respondent s Exhibit Notebook) In his Order dismissing the Myers' claims with prejudice (Tab 1, Exh 28, Vol. II Respondent s Exhibit Notebook), Judge Lauten erroneously wrote that despite a clear contrary direction from Judge Smith, the Myers... continued to 9

10 improperly join individual and derivative claims... The Myers amended claims, in fact, did not contain improperly joined individual and derivative claims. (Tab 1) Judge Lauten also wrote that the Myers pleading was "... repetitive, disorganized and disjointed... replete with superfluous factual allegations and rambling legal conclusions that it is barely comprehensible and thus, violative of [Rule 1.110, Fla. R. Civ. P.]. Judge Lauten concluded that the Myers had repeatedly failed to state a claim in short and plain statements and repeatedly refused to comply with the rules of pleading. (Tab 1) But neither Mrs. Myers nor her attorney had been required or ordered to reduce the length of her claims. Neither Mrs. Myers nor her attorney violated any court rule or order. (Tab 1) Judge Lauten Did Not Permit The Myers An Evidentiary Hearing Or Consider Lesser Sanctions Both Required by Kozel v. Ostendorf Significantly, Judge Lauten did not permit Mrs. Myers an evidentiary hearing as required by the Florida Supreme Court in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) and Florida Rule of Civil Procedure Judge Lauten refused to consider the factors set forth in Kozel, and fashion a lesser sanction than dismissal with prejudice. Judge Lauten even summarily denied Mrs. Myers' Motion for Rehearing and Request for Evidentiary Hearing. (Tab 1, Exh 30, Vol. II Respondent s Exhibit Notebook) 10

11 In his affidavit in support of Mrs. Myers motion to disqualify, respondent disclosed his extensive review of the pleadings and legal research and opined that Judge Lauten had wholly denied Mr. Benitez's client protection of the law as a result of his current bias against Mr. Benitez. (Tab 1) Mr. Benitez, as counsel for Mrs. Myers, suggested contributions to respondent's affidavit and subsequently certified the affidavit's good faith. (Tab 1, T. 122) On An Identical Record, The Fifth District Court of Appeal Holds That Judge Lauten s Dismissal With Prejudice Must Have Constituted A Sanction Warranting Kozel Analysis In a subsequent appeal by the Myers of Judge Lauten s dismissal of all claims with prejudice on a identical record as introduced before the referee in the instant case the Fifth District Court of Appeal held that Judge Lauten improperly dismissed various of the Myers claims with prejudice as a sanction for their lawyer s violations of rules of pleading, notably Florida Rule of Civil Procedure Myers v. Highway 46 Holdings, LLC, et al., 65 So.3d 58, (Fla. 5th DCA 2011). The Myers Court observed that the minimum sufficiency of those improperly dismissed claims was conceded because the motions to dismiss for failure to state a cause of action were specifically not addressed to them. Id. We conclude, therefore, that as to those counts..., their dismissal with prejudice must have constituted a sanction based upon trial counsel's multitude of procedural 11

12 faults.... [W]e further conclude that a Kozel analysis had to have been performed... before they could be validly dismissed with prejudice. Id. (Emphasis Added) The Myers Court, then, reversed in part and remanded the case to the trial court to allow the court to address Kozel before taking further action. Myers v. Highway 46 Holdings, LLC, et al., 65 So.3d 58, (Fla. 5th DCA 2011). Referee Characterized Respondent s Objectionable Statements as Opinions In his report and correspondence to the parties and this Court, the referee expressly characterized respondent s objectionable statements as opinions. (Tab 40, paragraph 2g, April 29, 2011 Letter from referee). In his report, the referee observed that respondent s affidavit... expressed his opinion that Judge Lauten holds such a grudge against Mr. Benitez and respondent, that in 2010, Judge Lauten entered the adverse ruling against Mr. Benitez s clients to exact revenge against Mr. Benitez for his representation of respondent in the JQC proceeding. (RR 3) The referee also reproduced, inter alia, a few additional expressed opinions from respondent s affidavit: "I know that Judge Lauten has previously wrongfully used his position to further his own agenda." (RR 3-4); "I know that Judge Lauten has manipulated the situation on occasion by misrepresenting the facts to advance his own position or agenda, regardless of the truth or legality of his actions or omissions." (RR 4); and, 12

13 "I believe that Judge Lauten is intellectually dishonest and will manipulate or ignore the law to get his way or do what he wants to do." (RR 4). Referee Concludes Respondent Failed to Prove a Factual Basis for Opinions The referee rejected respondent s assertion that this Court s decision in The Florida Bar v. Ray required the Florida Bar to prove respondent s objectionable statements to be false. 797 So.2d. 556 (Fla. 2001), cert. den., 535 U.S. 930 (2002). Citing to a footnote in Ray, the referee quoted this Court:... there is no debate that the statements at issue concerned 'the qualifications or integrity of a judge', R. Regulating Fla. Bar 4-8.2(a), and we see no error in the burden then shifting to Ray to provide a factual basis in support of the statements." Id. In short, concluded this referee, if you say it, you better be prepared to prove it. Respondent failed to prove a factual basis to support the statements found to be objectionable within his Affidavit. (RR 6) (Emphasis added) The Florida Bar failed to present any evidence or proof: (a) (b) (c) that respondent's objectionable statements were anything but opinions; that respondent's opinions or implied factual assertions were false; in refutation or rebuttal of any opinion or implied or asserted factual statement expressed by respondent; 13

14 (d) (e) (f) that the filing of an affidavit in support of a party's motion to disqualify caused interference or potential interference with a legal proceeding; that respondent violated a duty owed as a professional; and that respondent caused injury or potential injury to the public or the legal system. But the extensive documentary record in this case, respondent s affidavit and the testimony by respondent (Tab 1, T , Exh 3, Florida Bar s Exhibit Notebook), and Mr. Benitez (T , Exh 3, Florida Bar s Exhibit Notebook) did reflect the factual bases for respondent s opinions. SUMMARY OF ARGUMENT The referee's stated findings of fact and the associated report are erroneous, unlawful, and unjustified. The referee's failure to require the Florida Bar to prove that respondent s expressed opinions and statements about Judge Lauten were false violated the respondent s First Amendment free speech rights to truthfully impugn Judge Lauten s integrity. In light of recent changes in the law regarding the appropriate standard, this Court should adopt the actual malice standard announced in New York Times v. Sullivan, 376 U.S. 254, (1964) and made applicable to a lawyer s criticism of a judge in Garrison v. Louisiana, 379 U.S. 64, (1964). 14

15 The respondent did not engage in conduct prejudicial to the administration of justice where there was no evidence that he interfered with or potentially interfered with a legal proceeding by providing an affidavit in support of a party s motion to disqualify Judge Lauten. Further, there was no evidence that respondent violated a duty owed as a professional. Nor was there any evidence that respondent caused injury or potential injury to the public or the legal system. ARGUMENT Issue 1 Whether the referee's finding that respondent had failed to prove a factual basis for his opinions expressed in an affidavit in support of a party's motion to disqualify Judge Lauten was erroneous, unlawful, or unjustified where there was no evidence that such opinions or implied assertions of fact were false? Expert Opinion: Florida Should Apply Subjective Actual Malice Standard Adopted by New York Times v. Sullivan Over objection by the Florida Bar, the referee admitted into evidence the expert legal opinion testimony of Professor Margaret Tarkington, an expert in First Amendment law, the free speech rights of attorneys, and derogatory criticism of judges. (Tarkington) It was Prof. Tarkington s expert opinion that respondent should not be disciplined for violating Rule 4-8.2(a) of the Rules Regulating The 15

16 Florida Bar (which is based upon the Model Rule of Professional Conduct (MRPC) 8.2) unless it is shown that the respondent has failed to act in compliance with the subjective actual malice standard adopted by the United States Supreme Court in New York Times v. Sullivan, and progeny. (Tarkington 6) In New York Times v. Sullivan, the United States Supreme Court held that the First Amendment of the United States Constitution prohibits a public official from recovering damages for a defamatory falsehood... unless he proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 376 U.S. 254, (1964). (Tarkington 7) Also in that same year, in Garrison v. Louisiana, the United States Supreme Court overturned the conviction of a district attorney for criminal defamation after holding a press conference where he attributed a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations of particular judges and mused about possible racketeer influences on our eight vacation-minded judges. 379 U.S. 64, (1964). The Garrison Court explained that only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. Id. (Tarkington 7-8) (Emphasis added) 16

17 Prof. Tarkington observed that in Garrison, Louisiana had convicted Garrison of criminal libel because his statement was not made in the reasonable belief of its truth. 379 U.S. 64, (1964) (Tarkington 8). The United States Supreme Court emphatically rejected Louisiana s objective reasonableness approach: This is not a holding applying the New York Times test. The reasonable-belief standard applied by the trial judge is not the same as the reckless-disregard-of-truth standard. According to the trial court s opinion, a reasonable belief is one which an ordinarily prudent man might be able to assign a just reason for ; the suggestion is that under this test the immunity from criminal responsibility... disappears on proof that the exercise of ordinary care would have revealed that the statement was false. The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth. Id. at 79 (1964) (Tarkington 8) (emphasis added) Four years later, in St. Amant v. Thompson, the United States Supreme Court reaffirmed that Garrison made it clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. 390 U.S. 727, 731 (1968) (emphasis added). Instead, the actual malice standard for determining whether a statement is made with reckless disregard as to truth or falsity is shown only by examining the speaker s subjective intent, which requires that the defendant in fact entertained 17

18 serious doubts as to the truth or falsity of his publication. St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (Tarkington 8-9) (emphasis added). Prof. Tarkington opined that, under the standard articulated in Garrison and Sullivan, the Florida Bar must prove the falsity of respondent s speech. (Tarkington 9) (emphasis added). This is so because [t]ruth may not be the subject of either civil or criminal sanctions, Garrison, 379 U.S. 64, 74 (1964), and because speakers will be chilled even though a statement is believed to be true and even though it is in fact true, because of doubt whether it can be proved. Sullivan, 376 U.S. at 279 (Tarkington 9) MRPC 8.2, and its Florida counterpart, Rule of the Rules Regulating The Florida Bar, on their face still adopt Sullivan s actual malice standard. Thus, Rule 4-8.2(a) and the current version of MRPC 8.2(a) provide: A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge... (Tarkington 9) And, Prof. Tarkington further opined that the drafters of the ABA Model Rules of Professional Conduct intentionally incorporated Sullivan s subjective standard, indicating that Garrison required them to employ that standard. (Tarkington 10) The proposed final draft of MRPC 8.2 adopted the current 18

19 language of that rule, which prohibits lawyers from making statements that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications of a judge. In the legal explanation for the new MRPC 8.2, the drafters cited both Sullivan and Garrison and explained that [t]he Supreme Court has held that false statements about public officials may be punished only if the speaker acts with knowledge that the statement is false or with reckless disregard of whether it is false or not and concluded that Rule 8.2 is consistent with that limitation. (Tarkington 10) (emphasis added).) The drafters further elaborated that [t]he critical factors in constitutional analysis are the statement s falsity and the individual s knowledge concerning its falsity at the time of the utterance, again citing Garrison for that proposition. (Tarkington 10) (emphasis added). Finally, the drafters of the ABA Model Rules of Professional Conduct indicated that statements made in court filings are not to be punished under Rule 8.2 by stating that The permissible scope of comment to or about a judge in the course of a proceeding is determined by Rule 3.5. (Tarkington 10) Prof. Tarkington emphasized in her expert testimony that the objectionable statements made by Michael Ray in The Florida Bar v. Ray, 797 So.2d. 556 (Fla. 2001), cert. den., 535 U.S. 930 (2002) were proven utterly false : 19

20 Importantly, both the referee and the Florida Supreme Court emphasized that the attorney, Michael Ray had no basis for these statements. See Ray, 797 So.2d at For example, as to his several statements alleging that Judge Montante was a cowardly liar and deceitful, the referee found (as affirmed by the Florida Supreme Court) these accusations to be based on statements that the judge never made and thus it was impossible for Ray to call someone a liar for a statement they never made. See Ray, 797 So. 2d at 559 (emphasis added). In like manner, the referee read the transcript and listened to the tape of the hearing that formed the basis for Ray s allegation that the judge s conduct constituted a discouraging example of judicial railroads, kangaroo courts, lynching, Inquisitions, Salem Witch Trials, Star Chambers, and Nazi Justice rearing their heads like a plague in humankind s struggle upward through history. The referee concluded, as reemphasized by the Florida Supreme Court, that there was nothing nothing that transpired in that hearing that would justify such outrageously false accusations. See Ray, 797 So. 2d at 558 & 559 (emphasis added). Consequently, the referee found that [t]he letters contained accusations which are utterly false and were made at a minimum at a minimum with reckless disregard for the truth. See id. at 558. (Tarkington 13-14) (Emphasis Added) Developments in United States Supreme Court Jurisprudence Regarding Attorney Speech Rights, Due Process and Disqualification Prof. Tarkington acknowledged that Sullivan s subjective actual malice standard was rejected by the Florida Supreme Court in The Florida Bar v. Ray, 797 So. 2d 556 (2001). Yet, Prof. Tarkington testified that several developments in the United States Supreme Court s jurisprudence since the Ray case was briefed and 20

21 decided demonstrate a greater recognition of attorney speech rights and a compelling need for such rights in the context of motions to disqualify a judge or arguments by counsel that a litigant was denied due process because of judicial bias. (Tarkington 14) Notably, opined Prof. Tarkington, in Republican Party v. White, decided after The Florida Bar v. Ray, the United States Supreme Court held as unconstitutional Minnesota s Announce Clause, a rule of professional conduct that prohibited attorney candidates for judicial positions from expressing their views on certain political issues. 536 U.S. 765, 775 (2002). (Tarkington 15) The United States Supreme Court applied strict scrutiny to the Announce Clause because the prohibited speech was at the core of our First Amendment freedoms speech about the qualifications of candidates for public office. 536 U.S. 765, 775 (2002) (Tarkington 15). MRPC 8.2 and Rules Regulating The Florida Bar similarly involve speech at the core of our First Amendment freedoms, by expressly prohibiting speech regarding the integrity or qualifications of those holding public office. (Tarkington 15) In addition to its protection of attorney speech in White, the United States Supreme Court in Legal Services Corporation v. Velazquez, recognized a free 21

22 speech right belonging to attorneys to express and raise arguments in court proceedings and filings. 531 U.S. 533, 545 (2001). (Tarkington 15) (emphasis added) Velazquez involved restrictions placed on attorneys who accepted funds from the congressionally-created Legal Services Corporation (the LSC ). 531 U.S. 533, 545 (2001). At issue were congressionally-imposed restrictions on recipients of LSC funds, specifically prohibiting them from providing any representation that involves an effort to amend or otherwise challenge existing welfare laws, including challenges as to their validity or constitutionality. Id. at 537. The United States Supreme Court struck down the regulations as violative of the First Amendment to the United States Constitution, explaining that the restrictions were: inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which the courts must depend for the proper exercise of the judicial power. Velazquez, 531 U.S. at 545 (Tarkington 15-16) (emphasis added). The United States Supreme Court further stated that Congress had designed the restriction to insulate current welfare laws from constitutional and certain other legal challenges, which the Court held implicat[ed] central First 22

23 Amendment concerns. Id. at 547. Thus Congress could not impose rules and conditions which in effect insulate its own laws from legitimate judicial challenge, nor could it exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider. Id. at 548, 547. The United States Supreme Court concluded: The Constitution does not permit the Government to confine litigants and their attorneys in this manner. Id. at 548. (Tarkington 16) Applying these principles from Velazquez to the suppression or punishment of speech critical of the judiciary made in court filings, courts should not be able to impose rules... which in effect insulate [judicial actions] from legitimate judicial challenge and exclude from litigation those arguments and theories [that the judiciary] finds unacceptable [or insulting] but which by their nature are within the province of the courts to consider. Legal Services Corp. v. Velazquez, 531 U.S. 533, 545 (2001). (Tarkington 17) Threat of professional discipline for impugning judicial integrity can foreclose or chill analysis of certain legal issues and encourage attorneys to truncate [their] presentation to the courts when raising arguments regarding judicial abuse, corruption, or bias, thereby denying attorneys and their clients their constitutionally protected speech and expression. Id. at 545, (Tarkington 17) 23

24 Although Velazquez was decided several months before the Florida Supreme Court s 2001 decision in The Florida Bar v. Ray, Velazquez was decided after all of the briefing in The Florida Bar v. Ray case, which briefing had been completed in (Tarkington 17) Of particular importance to the complaints brought against respondent, noted Prof. Tarkington, in 2009 the United States Supreme Court affirmed in Caperton v. A.T. Massey Coal Co., Inc. that an essential component of due process was the right to an impartial adjudicator. 556 U.S. 868,, 129 S. Ct. 2252, 2259 (2009). The United States Supreme Court stated: It is axiomatic that [a] fair trial in a fair tribunal is a basic requirement of due process. 556 U.S. 868,, 129 S. Ct. 2252, 2259 (2009). The United States Supreme Court held that due process could be denied, and had been denied in Caperton, when a judge refused to disqualify himself. Id. (Tarkington 17-18) Prof. Tarkington testified that the Caperton majority explained that most matters relating to judicial disqualification [do] not rise to a constitutional level and are left to legislative determination. 556 U.S. 868,, 129 S. Ct. 2252, 2259 (2009)(Tarkington 18). Yet, the United States Supreme Court recognized that there were instances which, as an objective matter, require recusal specifically, situations in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Id. 24

25 While the precise contours of Caperton s due process right cannot be defined with precision, the United States Supreme Court held that the inquiry is objective, does not require proof of actual bias, but whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias. Id. at That is, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Id. at The United States Supreme Court also noted that while a showing of actual bias was not required, actual bias, if disclosed, no doubt would be grounds for appropriate relief. Id. (Tarkington 18-19) (emphasis added).) 2010 Missouri Supreme Court Adopts Sullivan Actual Malice Standard: Disciplinary Authority Must Prove (1) Falsity of Statement and (2) Statement Made with Knowledge of Falsity or Reckless Disregard as to Falsity One of the influential state cases that rejected the applicability of the Sullivan actual malice standard in attorney discipline proceedings was the Missouri Supreme Court s 1991 decision in In re Westfall, 808 S.W.2d 829 (1991). In 2010 the Missouri Supreme Court recognized the recent major developments in the United States Supreme Court s protection of attorney speech, specifically citing Republican Party of Minnesota v. White, and held that [t]he scrutiny of a state s 25

26 interest in regulating lawyer speech may be significantly higher today than when the Court decided Westfall. Smith v. Pace, 314 S.W.3d 124, 135 (Missouri 2010). The Missouri Supreme Court in Smith repudiated its holding in Westfall, and adopted the subjective Sullivan actual malice standard, stating: Even in disciplinary cases, this Court and the United States Supreme Court have recognized that lawyers have First Amendment rights. A lawyer's duty to the client requires that the lawyer represent the client zealously within the bounds of the law... Before a lawyer can be found guilty of criminal contempt for what is written in his or her pleadings, there must be some finding that the lawyer's statements were made with actual knowledge of their falsity or that the statements were in fact false and were made with reckless disregard of whether they were true or false. Smith, 313 S.W.3d at 136 (Tarkington 23-24) (emphasis added) Although Smith involved a contempt conviction rather than a disciplinary proceeding, the Missouri Supreme Court explained its holding as being applicable to cases involving lawyers statements, and specifically stated that the actual malice standard would be applicable in the attorney disciplinary process, which the Missouri Supreme Court thought may be a more suitable forum than a contempt proceeding for ascertaining a lawyer s statements. Smith v. Pace, 314 S.W.3d 124, 135 (Missouri 2010) (Tarkington 24) (Emphasis added) The Smith court further held, consistent with Sullivan and Garrison, that [t]here can be no doubt that the First Amendment protects truthful statements 26

27 made in judicial proceedings and thus [i]t is essential, therefore, to prove that the lawyer s statements were false. Id. (Tarkington 24)(emphasis added) Indeed, the Smith court emphasized the need to prove that the statements were in fact false. Id. at 135 (Tarkington 25)(emphasis added). The Court noted, disapprovingly, that the government s only witness in this case was Judge Carter, and that the government had attempted to prove falsity conclusively through testimony from Judge Carter that Smith s written statements were false without even submitting the question of falsity to the fact-finder. See id. at 136 & 128. Additionally, even if falsity and subjective reckless disregard under Sullivan had been submitted to a fact-finder, the Smith court noted that with Judge Carter as the sole, apparently conclusive, witness as to the falsity of the statements, [t]here simply was no evidence from which the jurors could find the requisite state of Smith s mind regarding the falsity of the statements. See id. at 136. (Tarkington 25) In summary, according to Prof. Tarkington, the Missouri Supreme Court acknowledged that recent United States Supreme Court case law recognized an attorney s First Amendment rights to make statements in court filings. See id. at 135. Consequently, the Smith court applied constitutional requirements to the punishment of attorney statements made in court filings that allegedly impugned judicial integrity and held that the First Amendment allowed punishment only if 27

28 the disciplining authority proved both (1) that the statements were in fact false (because the First Amendment protects truthful statements made in judicial proceedings ); and (2) that the lawyer made the statements with actual knowledge of their falsity or with reckless disregard of whether they were true or false. See id. at 136. These requirements are the same constitutional constraints established by the United States Supreme Court in Sullivan and Garrison (and intentionally adopted by the drafters of MRPC 8.2), namely, that speech regarding public officials can be punished only if the statements are false, and if the speaker had knowledge that it was false or [spoke] with reckless disregard of whether it was false or not. Sullivan, 376 U.S. at ; see also Garrison, 379 U.S. at ( [O]nly those [1] false statements [2] made with the high degree of awareness of their probably falsity demanded by New York Times may be the subject of either civil or criminal sanctions. ); see also Legal Background to Proposed Final Draft of MRPC 8.2, Exhibit A at 207 ( The critical factors in [the] constitutional analysis are [1] the statement s falsity and [2] the individual s knowledge concerning its falsity at the time of the utterance (citing Garrison)). (Tarkington 25-26) Thus, as recognized in part by the Missouri Supreme Court in Smith v. Pace, the jurisprudence of the United States Supreme Court since The Florida Bar v. Ray, strongly indicates the following: 28

29 a. Attorneys possess a right under the First Amendment to the United States Constitution to talk about the qualifications and integrity of judicial officers. This speech right is at the core of First Amendment protection and thus entitled to the fullest constitutional protection. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002). (Tarkington 26-27) b. Attorneys possess a right under the First Amendment to the United States Constitution of expression to raise arguments questioning the legality of government action and rulings in court proceedings. Regulators cannot prohibit analysis of certain legal issues [and cannot] truncate presentation to the courts. See Legal Services Corp. v. Velazquez, 531 U.S.533, 545 (2001). (Tarkington 27) c. Litigants possess an individual due process right under the Fifth and Fourteenth Amendments to the United States Constitution to an impartial adjudicator that requires disqualification of judges tainted either by actual bias or an unconstitutional potential for bias. Thus, litigants must be able to raise arguments of actual or potential bias in motions to disqualify. See Caperton v. AT Massey Coal Co., 556 U.S. 868, 129 S.Ct (2009). (Tarkington 27) Thus, although The Florida Bar has argued that respondent s affirmative defenses regarding free speech are not supported by the Rules Regulating The Florida Bar or by decisions from the Supreme Court of Florida (see Reply to 29

30 Affirmative Defenses for Mr. Perry at 1)..., the respondent s claims to free speech protection are strongly supported by decisions of the United States Supreme Court decided after The Florida Bar v. Ray. These U.S. Supreme Court cases are particularly compelling in the context of seeking disqualification or otherwise raising arguments of actual or objective judicial bias in court proceedings. (Tarkington 27-28) Issue 2 Whether the referee's finding that respondent had engaged in conduct prejudicial to the administration of justice by opinions expressed in an affidavit in support of a party's motion to disqualify Judge Lauten was erroneous, unlawful, or unjustified where there was no evidence of interference or potential interference with a legal proceeding; no evidence that respondent violated a duty owed as a professional; and no evidence that respondent caused injury or potential injury to the public or the legal system? Essential Role of the Attorney in the United States Legal System And the Duty of Protection of Client Rights Prof. Tarkington opined that an attorney plays an essential role in the administration of justice in the United States. (Tarkington 28) An attorney must, 30

31 on occasion, challenge the government, including the judiciary, by action through appropriate court proceedings. For example, every appellate attorney challenges judicial action. Frequently such appellate challenges assert that the lower court abused its discretion. All motions to disqualify or arguments, like those accepted in Caperton, that a biased judge denied a client due process are clear challenges to judicial action. The only forum in which attorneys can effectively make such arguments that will preserve client rights is in court proceedings and court filings. Attorneys need First Amendment protection to fulfill these essential functions in the administration of justice and to fulfill their duties to their clients. (Tarkington 28) An attorney has a clear duty to his or her client to raise relevant and colorable arguments. State and federal law, including the United States Constitution, provides litigants with rights to an impartial adjudicator. Further, litigants have a constitutional right to counsel. Even in civil litigation, a client has a constitutional right to retain and be heard through counsel. Powell v. Alabama, 287 U.S. 45, 69 (1932). Thus, an attorney must be able to raise, in court proceedings and through proper motions to disqualify, arguments based on alleged actual judicial bias or an objective potential for bias. (Tarkington 28-29) Punishment and threat of punishment of attorney speech for alleging judicial bias curtails a litigant s ability to raise claims that she has been denied due 31

32 process or is entitled to relief under state or federal disqualification laws, which in turn denies and frustrates a litigant s right to court access secured by the First Amendment s Petition Clause, and the Fifth and Fourteenth Amendments Due Process Clauses. (Tarkington 29) An attorney has many differing and potentially conflicting duties, but if Mr. Benitez, in consultation with respondent, believed that his client had been treated unfairly because of personal animus from a judge, they had a duty to raise this issue in the only forum where the client could obtain relief in a court proceeding and through court filings. Raising such issues with the Florida Judicial Qualifications Committee, even if it resulted in discipline against the judge, would not protect the client s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution to an impartial adjudicator or her state law rights to disqualification. (Tarkington 29) The Florida Bar relies on the case, The Florida Bar v. Morgan, as somehow refuting the duty of an attorney to raise facts and colorable arguments regarding judicial bias or disqualification on behalf of his client in court filings. 938 So.2d 496 (Fla. 2006). (See Reply to Affirmative Defenses for Mr. Benitez at 4.) But Morgan is inapposite to such an argument. In Morgan, the attorney decided to take a judge to task not by appropriately raising allegations of judicial bias or disqualification in court filings, but by interrupting the judge, refusing to obey 32

33 simple requests to approach the bench and discuss issues with the judge, and otherwise disrupting a jury trial, including in the presence of the jury. See Morgan, 938 So.2d at Morgan was appropriately disciplined pursuant to Rules Regulating The Florida Bar 4-3.5(c) for conduct intended to disrupt the tribunal. In contrast to raising colorable arguments and allegations in court proceedings, which the Velazquez Court recognized was constitutionally protected speech and expression, see Velazquez, 531 U.S. 545, , Morgan s disruptive conduct is not the sort of expression necessary to fulfill court functions and preserve client rights. (Tarkington 29-30) The theory of the adversary system is that truth is discovered by allowing multiple points of view. This function is frustrated by allowing viewpoint-based punishment of speech, which allows only one side to be heard. (Tarkington 30) Traditional, and even conservative, First Amendment theory and doctrine forbid the use of Rule of the Rules Regulating The Florida Bar and MRPC 8.2 or similar rules to punish statements regarding the judiciary outside of the requirements of Sullivan, including: a. That viewpoint-based prohibitions on speech are generally unconstitutional. See, e.g., Snyder v. Phelps, 562 U.S., 2011 WL , slip op. at *8 9 (March 2, 2011) (explaining that while content-neutral restrictions on 33

34 funeral picketing may be constitutional, yet the state punishment at issue unconstitutionally turned on the content and viewpoint of the message conveyed ) (Tarkington 30-31) b. That speech regarding and criticizing public officials, including the judiciary, is at the core of First Amendment protection, entitled to the strongest constitutional protection. See, e.g., Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, (1978) (Tarkington 31) c. That a primary purpose for the Free Speech Clause of the First Amendment to the United States Constitution is the checking value of speech meaning the value that free speech... can serve in checking the abuse of power by public officials. This value was uppermost in the minds of the persons who drafted and ratified the First Amendment. See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521, 527, 538 (1977). The checking value has particular weight when the speech is made as part of a motion to disqualify based on allegations of bias. The whole point of recognizing a due process right to an impartial adjudicator, as the Supreme Court did in Caperton, is to allow individual litigants the ability to check the abuse of power by the judiciary. This function is lost to the extent that attorneys are prohibited or chilled from raising such arguments and checking judicial action. (Tarkington 31-32) 34

35 d. That the First Amendment, especially as defined in Sullivan and progeny, rejects the concept of seditious libel. Sullivan, 376 U.S. at Seditious libel punished speech on the theory that criticizing government allegedly reduced governmental power by impairing favorable public opinion and reducing consequent support for government officeholders and the rule of law. The primary rationale for allowing punishment of attorneys for derogatory speech regarding the judiciary is the need to preserve the public perception of judicial integrity, and thereby preserve judicial legitimacy and power. This is precisely the theory of seditious libel, rejected as clearly unconstitutional in Sullivan. Id. (Tarkington 32) Rule of the Rules Regulating The Florida Bar, MRPC 8.2 and its state counterparts are intended to protect judicial reputation. Several courts have argued that MRPC 8.2 is distinct from civil or criminal defamation at issue in Sullivan and Garrison because defamation is aimed at protecting an individual s reputation, and thus is different from attorney regulation that is aimed at preserving the public s perception of judicial integrity. Yet this distinction is flawed because: a. This rationale would apply equally to other government office holders, and if accepted would call for a rule exactly opposite of the one the Court adopted in Sullivan. (Tarkington 32-33) 35

36 b. To protect the public s perception of the integrity of a person or government official is to protect that person s reputation. By definition, reputation is the public s perception of one s qualifications and integrity. Thus both defamation and rules like Rule of the Rules Regulating The Florida Bar and MRPC 8.2 protect reputation. (Tarkington 33) c. Sullivan and Garrison expressly held that the Constitution forbids punishment for impugning either the official or personal reputation of public officials (which includes judges) unless the actual malice standard is applied. Criticism of [] official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. Sullivan, 376 U.S. at 273; see also Garrison, 379 U.S. 64, (explaining that the Sullivan standard protects criticism harmful to the office-holder s private, as well as his public, reputation ). Preserving the public perception of judicial integrity is just another way of attempting to preserve official reputation, or the reputation of a government office. (Tarkington 33) d. The Supreme Court has repeatedly rejected the preservation of the public s perception of judicial integrity as a valid state interest that justifies suppression of speech. See, e.g., Bridges v. California, 314 U.S. 252, (1941); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, (1978); 36

37 see also Republican Party of Minnesota v. White, 536 U.S. 765 (2002). (Tarkington 33-34) e. The First Amendment does not promote the underlying purposes of defamation, or criminal libel, or other laws invalidated by its requirements. Indeed, the First Amendment directly detracts from the purposes of defamation law by allowing harm to the private and official reputations of public officials and figures. Rather, the reason that the First Amendment comes into play in the defamation context is the same as the reason that it is required in the attorney discipline context, namely, that the First Amendment at its core protects speech regarding government officials from being repressed or punished unless the subjective actual malice standard of Sullivan and Garrison is satisfied. See Garrison, 379 U.S. 64, (1964) (holding that only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions, which would certainly include the quasi-criminal sanction of professional discipline); NAACP v. Button, 371 U.S. 415, (1963) ( Thus it is no answer to the constitutional claims... to say, as the [state] has said, that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. (Tarkington 34-35) (Emphasis added.) 37

38 Engaging in Expression that the Constitution Protects Cannot be Conduct Prejudicial to the Administration of Justice Discipline for allegedly engaging in conduct prejudicial to the administration of justice cannot be imposed for engaging in expression that the Constitution protects. Because the First Amendment of the Constitution forbids punishment of speech for impugning judicial integrity or protecting judicial reputation unless the subjective actual malice standard from Sullivan is satisfied, it also forbids punishment that employs a different name or a different rule to punish speech for essentially the same end. (Tarkington 35) Additionally, as outlined above and indicated by Velazquez and Caperton, as part of the attorney s function in the American justice system and to preserve his client s state and constitutional rights to an impartial adjudicator, an attorney requires First Amendment protection to raise allegations in court filings that call into question judicial integrity or allege bias. This holds true whether the punishment is imposed or threatened under Rule of the Rules Regulating The Florida Bar or MRPC 8.2 or under a different rule, such as Rule 4-8.4(d) of the Rules Regulating the Florida Bar. See, e.g., NAACP v. Button, 371 U.S. 415, 429 n. 11 ( Our holding that petitioner s activities are constitutionally protected applies equally whatever the source of Virginia s attempted prohibition. ) (Tarkington 35) 38