Filing # 13889223 Electronically Filed 05/20/2014 03:49:51 PM RECEIVED, 5/20/2014 15:53:41, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION INQUIRY CONCERNING A JUDGE No. 12-613 SC13-1333 LAURA M. WATSON JUDGE WATSON S MOTION TO STRIKE THE FLORIDA BAR S RESPONSE AND APPENDIX TO JUDGE WATSON S RESPONSE AND MOTION TO STRIKE MOTION TO INTERVENE AND NON-RECORD REFERENCES IN THE FLORIDA BAR S MOTION TO INTERVENE Respondent, the Honorable Laura M. Watson (hereinafter Judge Watson ) moves to strike the Florida Bar s response and appendix to Judge Watson s Response and Motion to Strike Non-record References in the Bar s Motion to Intervene and states: (1) that the Rules of Appellate Procedure do not permit The Florida Bar to respond to Judge Watson s response to the Bar s Motion to Intervene, (2) that this Court must first determine whether the Florida Judicial Qualifications Commission (hereinafter JQC or Commission ) has any jurisdiction over Judge Watson, and (3) that The Florida Bar states that it is unsure of its right in intervention and this admission echoes judge Watson s complaint that the entire JQC process fails to provide Judge Watson with the due process required by the Florida and United States Constitution. This alone should be sufficient for the Court to strike the response and appendix and deny the Bar s
motion to intervene. Judge Watson s case presents a unique opportunity for the Florida Supreme Court to ensure that the JQC adheres to its proper and essential role of policing judicial misconduct and does not ignore Florida Supreme Court precedent regarding jurisdiction. The independence of the judiciary depends on this Court preventing the JQC from bending the text of the Florida Constitution to comport with its own agenda. I. The Rules of Appellate Procedure Do Not Permit a Party to Reply to the Opposing Party s Response to a Motion. On April 23, 2014, The Florida Bar filed a Motion to Intervene in this proceeding to seek disciplinary action against Judge Watson in the event this Court removes Judge Watson from the bench. As permitted by rule, Judge Watson timely filed her objection and response to the Bar s motion to intervene in the case. Without citation to authority, or order of the Court, The Florida Bar filed a Response and Appendix to Judge Watson s response. These filings should be stricken from the record and not considered by the Court. The Florida Bar was required to file a self-contained Motion to Intervene 2
and include an appendix if necessary in its initial motion. As provided by Rule 9.300(a), an appellate motion must contain an application for an order, state the grounds on which it is based, the relief sought, and an appendix if needed. Fla.R.App.P. 9.300(a). If the Bar intended to file an appendix in this matter, it should have been included as part of its initial motion. Once the initial motion is filed, a party opposing the motion may serve 1 response to a motion within 10 days of service of the motion. The court may shorten or extend the time for response to a motion. Fla.R.App.P. 9.300(a). No further responses by either party are permitted absent court order. As noted in the Committee Notes to Rule 9.300, provision is made for a response by the opposing party but no further responses by either party are permitted without an order of the Court. Further, the appendix the Bar seeks to have this Court consider contained documentary evidence that was not presented to the Hearing Panel and the consideration of such evidence would violate the well established principle that if intervention is permitted, the intervening party is bound by the record made at the time that party intervenes. See Coast Cities Coaches, Inc. v. Dade County, 178 3
So.2d 703, 706 (Fla. 1965). Thus pursuant to rule, The Florida Bar was not permitted to respond and file an appendix to Judge Watson s response and case law prohibits The Florida Bar from inserting non-record documents into the proceedings for the Court s consideration. Accordingly, the Bar s response and appendix should be stricken and not considered by the Court. II. The Catch-22: The Florida Bar and the JQC Created Arbitrary Rules in Order to Justify and Conceal their Own Abuse of Power. In Judge Watson s case, the JQC first takes the arbitrary and unconstitutional position that it has jurisdiction over all Florida justices and judges for any alleged misconduct occurring after November 1, 1966, including attorney misconduct and youthful indiscretions. This interpretation directly conflicts with art. V, 15 (1973) of the Florida Constitution which places exclusive jurisdiction to regulate attorneys with the Supreme Court. 1 1 SECTION 15. Attorneys; admission and discipline The Supreme Court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. The Supreme Court of Florida has designated certain entities as agencies for the purpose of assisting the Court in investigating and disciplining attorney misconduct. The board of governors, grievance committees, and referees shall have jurisdiction and powers as are 4
Notwithstanding the Florida Constitutional limitations placed on the JQC, that constitutional body (motivated by personal and political considerations rather than existing law) 2 then investigated, charged, and conducted a Final Hearing to determine if Judge Watson engaged in judicial misconduct. This was based solely upon alleged and disputed attorney misconduct between the years 2002 and 2004 when she was not a judge, was not a candidate for judicial office, and was not performing any judicial function (App. 1 pp. 1, 7, and 8 of Judge Watson s previously filed response to the Bar s motion to intervene). After the hearing, the JQC panel recommended removal of Judge Watson, not for judicial misconduct, but for alleged attorney misconduct ten years before she was elected to the bench. Once the JQC filed its findings and recommendations, The Florida Bar moved to intervene in these proceedings to disbar Judge Watson for the same alleged attorney misconduct for which the Bar never filed a Formal Complaint and necessary to conduct the proper and speedy disposition of any investigation or cause for the discipline of persons admitted to the practice of law. Rule 3-3.1, Rules Regulating the Florida Bar. This Court has never designated the JQC as an agency for attorney discipline or bar violations, nor does the Florida Constitution. 2 As more fully set forth in Judge Watson s response, emails between Special Counsel Miles McGrane and complainant Larry Stewart demonstrate the improper purpose for which the JQC process is being used. 5
for which the Florida Bar never tried Judge Watson. While judges must conduct themselves in a neutral manner, attorneys have the opposite duty-- to diligently represent their clients in a non-neutral manner and advocate their clients position to the best of their ability. Attorneys are not bound to follow the Code of Judicial Conduct and judges are forbidden to practice law and therefore do not follow the Rules Regulating the Florida Bar. But, when the JQC abandoned its proper and essential role of policing judicial misconduct and ignored Florida Supreme Court precedent 3 regarding these issues, the JQC espoused fallacious legalistic justifications to rely on alleged attorney misconduct to somehow find Judge Watson guilty of present judicial misconduct rendering her unfit for office. This bureaucratic absurdity is now compounded by The Florida Bar s motion to intervene in these proceedings to disbar Judge Watson based upon the 3 This interpretation by the JQC is completely contrary to the Florida Constitution and this honorable Courts pronouncement in In re Kinsey, 842 So.2d 77 (Fla. 2003). The Supreme Court held that these canons do not apply to a judicial candidate. Canons 1, 2, and 3, however, are directed only to a judge and hence cannot constitute an independent violation as to a judicial candidate who is not yet a judge. (Emphasis added). In re Kinsey, at 85. 6
JQC s findings and recommendations of the alleged attorney misconduct for which the JQC had no jurisdiction to investigate or hear in the first instance. This is precisely the contradictory circular logic that Joseph Heller described in his 1961 novel Catch-22. III. The Florida Bar Acknowledges There are No rules or Case Law (i.e. No Due Process) which Provide Any Guidance on How to Proceed if the Supreme Court Grants the Florida Bar s Motion to Intervene. The Florida Bar acknowledges that there are no rules or case law to advise the parties of the procedure to follow if this Court grants the Bar s motion to intervene. As stated by the Bar: Although Rule 3-4.5 provides a mechanism for the Bar to seek to actively intervene in proceedings brought by the JQC once a recommendation for removal is filed with the Court, neither the rule nor case law provide any guidance on how to proceed if and when the Court permits the Bar to intervene and seek disciplinary action. At this stage, the Bar is merely seeking leave to intervene pursuant to Rule 3-4.5. In the event the Court removes Judge Watson, and if the motion is granted, the Bar requests guidance on how the Court wishes the Bar to proceed thereafter. (Emphasis added). The Florida Bar s Response to Judge Watson s Motion to Strike Non-Record References at p. 4. 7
Symptomatic of the entire JQC proceedings below, and as acknowledged by the Bar in its response, the fundamental tenets of due process, i.e. notice and a right to be heard, do not exist in the intervention process. There are no rules which govern an intervention procedure. An agency s failure to follow its own rules is a denial of due process. See Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed. 2d 270 (1974). In the case at bar, there are ambiguous or no known rules, there are no guarantees of a fair and impartial tribunal, and the process is left to guesswork. In contradictory fashion during the JQC proceeding the Bar moved for a protective order and blocked the discovery regarding the very facts and documents it now seeks to improperly interject into the record. Accordingly, the Court should strike the Bar s response and appendix and deny the motion to intervene. WHEREFORE, Respondent, the Honorable Laura M. Watson, prays this Court strike the Florida Bar s Response and Appendix to Judge Watson s Response and Motion to Strike Non-Record References in the Bar s Motion to Intervene. Respectfully submitted, SWEETAPPLE, BROEKER & VARKAS, PL 8
20 SE 3 rd Street Boca Raton, Florida 33432 Telephone: (561) 392-1230 E-Mail:pleadings@sweetapplelaw.com By: /s/ Robert A. Sweetapple ROBERT A. SWEETAPPLE Florida Bar No. 02969 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via the E-Filing Portal by e-mail on this day of May, 2014 to: Marvin E. Barkin, Esquire, and Lansing C. Scriven, Esquire, Special Counsel for the JQC, Trenam, Kemker, Scharf, Barkin, Frye, O Neill & Mullis, P.A. 101 East Kennedy Boulevard, Suite 2700, Tampa, Florida 33602 (E-mail: mbarkin@trenam.com; lscriven@trenam.com); Lauri Waldman Ross, Esquire, Counsel to the Hearing Panel of the JQC, Ross & Girten, 9130 South Dadeland Boulevard, Suite 1612, Miami, Florida 33156 (E-mail: RossGirten@Laurilaw.com, Susie@Laurilaw.com); Michael L. Schneider, Esquire, General Counsel to the JQC, 1110 Thomasville Road, Tallahassee, Florida 32303 (E-mail: mschneider@floridajqc.com); David B. Rothman, Esquire, Rothman & Associates, 9
P.A., Special Counsel to the Florida Bar, 200 S. Biscayne Blvd, Suite 2770, Miami, Florida 33313 (E-mail: dbr@rothmanlawyers.com); Ghenette Wright Muir, Esquire, Bar Counsel, The Florida Bar, 1300 Concord Terrace, Suite 130, Sunrise, Florida 33323 (E-mail: gwrightmuir@flabar.org); Alan Anthony Pascal, Esquire, Bar Counsel, The Florida Bar, 1300 Concord Terrace, Suite 130, Sunrise, Florida 33323 (E-mail: apascal@flabar.org); Adria Quintela, Esquire, Staff Counsel The Florida Bar, 1300 Concord Terrace, Suite 130, Sunrise, Florida 33323 (E-mail: aquintela@flabar.org). Pursuant to FJQCR Rule 10(b) a copy is furnished by e-mail to: The Honorable Kerry I. Evander, Chair of the JQC, 300 S. Beach Street, Daytona Beach, Florida 32114 (Email: evanderk@flcourts.org). By: /s/ Robert A. Sweetapple ROBERT A. SWEETAPPLE Florida Bar No. 0296988 10