Filing # 21740916 Electronically Filed 12/17/2014 05:45:38 PM RECEIVED, 12/17/2014 17:48:45, John A. Tomasino, Clerk, Supreme Court BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE JUDGE LINDA D. SCHOONOVER CASE NO.: SC-14-1647 RESPONSE TO SECOND MOTION TO DISMISS BASED ON FAILURE TO STATE A CAUSE OF ACTION OR IN THE ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT AND MOTION TO STRIKE Undersigned Special Counsel responds to the Second Motion to Dismiss Based on Failure to State a Cause of Action or in the Alternative Motion for More Definite Statement and Motion to Strike (the Motion), as follows: Alleged Failure to State a Cause of Action 1. The Motion moves to dismiss based on failure to state a cause of action. Respondent previously filed a similar motion on October 9, 2014 (in that previous motion to dismiss, Respondent also answered the complaint). Special counsel responded to that previous motion on October 21, 2014. On October 31, 2014, the Honorable Robert Morris, FJQC Hearing Panel Chair, filed a Notice of Status Conference scheduled for November 21, 2014 at 9:00 a.m. The Notice directed the parties to be prepared to argue Judge Schoonover's motion to dismiss. During the November 21, 2014 status conference, Respondent's counsel asked for the argument to be rescheduled and said that he would file a motion for statement of particulars. Instead, Respondent filed this motion. In both motions to dismiss, Respondent argues the merits of the factual allegations and attempts to defend the allegations, which is not proper for a motion to dismiss for failure to state a cause of action. See McWhirter, Reeves, McGothlin, Davidson, Rief
& Bakas, P.A., 704 So.2d 214, 215 (Fla. 2"d D.C.A. 1998) ("A motion to dismiss, filed pursuant to Florida Rule of Civil Procedure 1.140(b)(6), tests the legal sufficiency of a complaint to state a cause of action and is not intended to determine issues of ultimate fact."). Special Counsel adopts its response filed on October 21, 2014. Motion for More Definite Statement 2. "A party may move for a more definite statement before interposing a responsive pleading." See Fl. R. Civ. Proc. 1.140(e). Respondent filed an Answer to Amended Notice of Formal Charges on October 9, 2014. Therefore the motion is not timely and unnecessary as Respondent was able to draft a response. In addition, the commentary to Rule 1.140(e) states, The rule on the other hand, limits the motion for a more definite statement to the needs of a party in framing a responsive pleading. The rules for pre-trial discovery are thought to provide more adequate means for supplying detailed information than did the common-law bill of particulars or the motion for more definite statement. Respondent filed a discovery request under FJQCR Rule 12(c). Special Counsel has served responses listing all names and addresses of witnesses he expects to offer at the hearing. On December 11, 2014, Respondent filed a First Request for Production to the Judicial Qualifications Commission. Special Counsel on December 12, 2014 served his exhibit list for trial and served his response to Respondent's First Request for Production. Respondent's counsel has also stated Respondent intends to take depositions and the parties have exchanged dates for scheduling the depositions. Even though the time has passed for filing a motion for more definite statement, Respondent will be able to inquire as to any of her uncertainty in the discovery process. 2
3. Respondent argues that the charges fail to "inform Judge Schoonover of what specific judicial canon these beliefs/actions would violate." Judicial Qualifications Commission (JQC) Rule 12(g) requires the notice of formal charges to "specify in ordinary and concise language the charges against the judge and allege the essential facts upon which such charges are based." The first paragraph of the Amended Notice of Formal Charges charged Judge Schoonover with violating a list of specific Judicial Canons. Respondent cites to In re Diaz, 908 So.2d 334, 344 (Fla. 2005), to support her position that the Notice of Amended Formal Charges does not follow Rule 12(g) and afford her due process. Respondent quotes Justice Cantero, but fails to note that Justice Cantero wrote the dissenting opinion. In Diaz, Justice Cantero's complaint in his dissent was that the Notice of Formal Charges did not allege a violation of "any statute, canon, or ethical principal." Id. (emphasis added). The majority opinion accepted the stipulation agreed to by Judge Diaz even though the stipulation did not allege any actual canons violated. Id. at 337. In In re Andrews, 875 So.2d 441, 442 n. 3, the Florida Supreme Court upheld the JQC's recommendation in a case in which the Notice of Formal Charges did not specify the canons allegedly violated when "canons 1, 2, and 3 were mentioned in the Notice of Investigations and Findings and Recommendations of the Investigative Panel state that 'the respondent is guilty as charged in the Notice of Investigation." Judge Andrew filed a stipulation admitting to the conduct and did not object to the findings of guilt and recommendation of discipline. Id. at 441. Following the majority in Diaz and the decision in Andrews, the Amended Notice of Formal Charges along with the notices of investigation sufficiently inform Respondent of each canon violated. 3
4. Respondent argues that some of the factual allegations in the Notice of Amended Notice of Formal Charges do not identify the names of the people involved such that she "cannot even conduct discovery." In addition to the required discovery, on November 20, 2014, Special Counsel submitted Special Counsel's Disclosure of Witness Summaries to Respondent. The Respondent has received sufficient notice to be able to conduct discovery and defend against the allegations. 5. Respondent also argues that the language "includes but not limited to," in allegations numbers seven, eight, and eleven means "that there is conduct not yet specified that the Judge should defend against." The charge is clearly stated in the first sentence of number seven, eight, and eleven. The "included but not limited to" refers to the types of behavior that prove the charge. The allegations were so voluminous Special Counsel chose to organize them into categories as was done in charges seven, eight, and eleven. The Amended Notice of Formal Charges states the canons violated and the "essential facts upon which the charges are based." Motion to Strike 6. Respondent alleges the language in the Notice of Amended Formal Charges is "scandalous serving to intimidate and harass" and moves to strike pursuant to Fla. R. Civ. Proc. 1.140(f). Respondent complains of the language "inexplicable," and "bizarre behavior." "'A motion to strike matter as redundant, immaterial or scandalous should only be granted if the material is wholly irrelevant, can have no bearing on the equities and no influence on the decision.'" McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So. 2d 214, 216 (Fla. Dist. Ct. App. 1998), quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972). The terms used in the Amended Notice of Formal Charges 4
accurately describe Respondent's behavior and are the basis for the listed canon violations. Therefore, the Motion to Strike should be denied. Florida Rule of Civil Procedure 1.130(b) Respondent cites Fla. R. Civ. Proc. 1.130(a) as a basis for the Motion. Rule 1.130 is related to attaching instruments and exhibits to a pleading. This rule is not relevant to Respondent's Motion. Florida Rule of Civil Procedure 1.120 Respondent cites Fla. R. Civ. Proc. 1.120(b) as a basis for the Motion. Rule 1.120(b) requires allegations of fraud or mistake to be plead with particularity. This rule does not apply to the factual allegations in this case, except for possibly the lack of candor allegation in number twelve. In re Davey, 645 So.2d 398, 406 (Fla. 1994) requires that a lack of candor must be "formally charged and proven", and that "discipline based on lack of candor may be imposed only where the Commission makes particularized findings on specific points in the record." The lack of candor allegation in number twelve makes the required particularized allegations. Respondent addresses these particularized allegations in the Motion for over three pages in an attempt to defend against the lack of candor charge. Rule 1.120(b) does not otherwise apply or provide a basis for Respondent's Motion. WHEREFORE, Special Counsel respectfully requests the FJQC Hearing Panel Chair deny Respondent's Second Motion to Dismiss Based on Failure to State a Cause of Action or In the Alternative Motion for More Definite Statement and Motion to Strike. 5
Respectfully submitted, JUDICIAL QUALIFICATIONS COMMISSION BEDELL, DITTMAR, DeVAULT, PILLANS & COXE Professional Association By: Henry M. Coxe, III Florida Bar No. 0155193 E-mail: hmc@bedellfirm.com Oliver David Barksdale Florida Bar No. 0957331 E-mail: odb@bedellfirm.com Ashley W. Greene Florida Bar No. 010973 E-mail: awa@bedellfirm.com 101 East Adams Street Jacksonville, Florida 32202 Telephone: (904) 353-0211 Facsimile: (904) 353-9307 Michael L. Schneider General Counsel Florida Bar No. 525049 E-mail: mschneider@,floridajqc.com Judicial Qualifications Commission P.O. Box 14106 Tallahassee, Florida 32317 Telephone: (850) 488-1582 6
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true an correct copy of the foregoing has been furnished by electronic mail to Gregory W. Eisenmenger, gregeisenmenger@ebplaw.com., and Robert Berry, attyrobertberry@aol.com, counsel to The Honorable Linda D. Schoonover, this 178' day of December, 2014. Attorney 7