BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA INQUIRY CONCERNING A JUDGE, NO. 06-432, TERRI-ANN MILLER / CASE NO. SC07-1985 The Honorable Judge Terri-Ann Miller, by and through undersigned counsel, hereby files her Motion to Dismiss the Notice of Formal Charges of the Judicial Qualifications Commission (hereinafter referred to as JQC ) with the Honorable Hearing Panel, and states: Generally, Rule 6 of the Rules of the Florida Judicial Qualifications Commission states that the notice of formal charges shall, specify in ordinary and concise language the charges against the judge and allege the essential facts upon which such charges are based We hereby move to dismiss each and every count of the charges for violating that rule and other legal reasons in this matter as follows: COUNT 1 SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION A. Canon 7A(3)(d)(ii) of the Code of Judicial Conduct provides in pertinent part, that a candidate for judicial office shall not: 1
(ii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent; (emphasis added). BLACK'S LAW DICTIONARY 521 (6TH ED. 1990) defines misrepresentation as an untrue statement of fact, or an incorrect or false representation. Count 1 fails to allege any knowing or otherwise, factual misrepresentation. It fails to state any incorrect or false representations or untrue statements of fact by Judge Miller during the campaign in her materials. Conversely, it was well known to the JQC Investigatory Panel that Judge Miller was a former county court judge for eight years and left her position honorably. A candidate is free to discuss his or her background and qualifications for the position. In re Kinsey, 842 So.2d 77, 89. (Fla. 2003). A knowing misrepresentation is the gravamen of a violation of this Canon. This count fails to state any well pled facts to which a response could be fashioned that there was a knowing misrepresentation. Further, this lack of facts constituting, as a matter of law, just what the knowing misrepresentation was supposed to be, causes the count to fail as well for subject matter jurisdiction purposes of the JQC. Without a knowing misrepresentation of the kind stated in Canon 7A(3)(d)(ii), Alleged with specific facts, it cannot be said there is even a violation. In order to draft a facially sufficient Notice of Formal Charges, the JQC is 2
required to specify in ordinary and concise language the charges against the judge and the essential facts upon which such charges are based. Fla. Jud. Qual. Comm n R. 6(g). That was not done herein. All that is actually contained in this count are conclusions, including that the campaign materials were "calculated to imply that Judge Miller occupied the status of an incumbent Broward County judge. There is no recitation of facts as to how her campaign materials implied that she occupied the status of an incumbent Broward County judge, or facts to demonstrate that such actions were calculated. Moreover, the Florida Rules of Civil Procedure apply to JQC proceedings unless those procedural rules are inappropriate or contrary to the JQC Rules. As such, the JQC should adhere to the pleading requirements set forth in the Florida Rules of Civil Procedure. A review of Count 1 will disclose that it does not incorporate by reference any attachments or exhibits containing materials which are alleged to purportedly give rise to judicial candidate misconduct, as required by Fla. R. Civ. P. 1.130(a). It is suggested that without any specified facts which are in themselves knowing misrepresentations, or exhibits or attachments which are referenced therein showing such knowing misrepresentations, that this Honorable Hearing Panel lacks subject matter jurisdiction over the two 3
provisions of Canon 7 contained in Count 1, and as such should dismiss same, or in the alternative, that the matter should be dismissed for failure to state a cause of action, both pursuant to Fla. R. Civ. P. 1.140(b). B. No claim contrary to the following foundational principles set forth in the Preamble to the Code of Judicial Conduct has been alleged. The Preamble states that the Code should be applied consistent with Constitutional requirements, statutes, other court rules and decisional law (Emphasis added.) By definition, the campaign materials alluded to in Count 1 are considered political advertisements, as defined by Florida Statute 106.011(17). Florida Statute 106.143(5) states what language is required in political advertisements so as not to imply incumbency. It states: No political advertisement of a candidate who is not an incumbent of the office for which the candidate is running shall use the word "re-elect." Additionally, such advertisement must include the word "for" between the candidate's name and the office for which the candidate is running, in order that incumbency is not implied. (Emphasis added.) Count 1 contains no facts which suggest that Judge Miller failed to follow this statutory scheme in any of her campaign materials. Therefore, if the Code is to be applied consistent with this statute, then this Count should be dismissed for failure to state a cause of action pursuant to Fla. R. Civ. P. 4
1.140(b)(6). Additionally, it was well known to the Investigatory Panel that the Florida Elections Commission concluded, after two complaints alleging violations of this statute, that there was no probable cause to charge Judge Miller with violations of this statute and hence, dismissed same. Although the Code of Judicial Conduct does not define the term decisional law, it is suggested that this determination by a quasi-judicial administrative body such as the Florida Elections Commission, which was required to investigate or ascertain the existence of facts, hold hearings, weigh evidence and draw conclusions, should be regarded as decisional law within the context of this term as contained in the Preamble to the Code of Judicial Conduct. As such, if the Code of Judicial Conduct is to be applied consistent with this decisional law as to whether Judge Miller implied incumbency in her campaign materials, it can be said that Count 1 fails to state a cause of action, for a determination has already been made on this issue by the decisions of the Florida Elections Commission with its findings of no probable cause and dismissing the complaints alleging she violated the statute which determines how incumbency is implied in political advertisements. 5
COUNT 2 SHOULD ALSO BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION Count 2 of the Notice of Formal Charges should be dismissed as it does not state any Canon which it is alleged, as a matter of law, that Judge Miller has violated. It merely contains a list of statements, along with a list of exhibits which contain these purported statements, stating conclusively that they imply incumbency, without linking them either individually or as a group, to any violation of any specific provision of Canon 7 of the Code of Judicial Conduct. Without alleging a violation of a specific provision of Canon 7, the Judicial Qualifications Commission and this Honorable Hearing Panel is without subject matter jurisdiction over this Count, pursuant to Fla. R. Civ. P. 1.140(b)(1). The failure to state which Canon Judge Miller is alleged to have violated also causes this Count to fail to state a cause of action, pursuant to Fla R. Civ. P. 1.140(b)(6). Further, given that the JQC has failed to specify which Canon in Count 2 the act or acts listed therein correspond to, this Count is so vague and ambiguous that it is impossible for the Judge to adequately draft a responsive pleading or prepare her defense. 6
COUNT 3 SHOULD ALSO BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION Count 3 of the Notice of Formal Charges should be dismissed as it does not state any Canon which it is alleged, as a matter of law, that Judge Miller has violated. This Count also fails to state any well pled facts to which a response could be fashioned as to how Judge Miller knowingly and purposefully either implied incumbency in the first place, in violation of either the law (see B, Motion to Dismiss Count 1, supra), or Canon 7, so as to have to disclaim it. It also fails to state facts as to how Judge Miller then failed to consistently disclaim incumbency. It also fails to state what were the disclaimers or limiting words in type and size and significance or any facts showing how they were allegedly designed to mislead the voting public and obscure your lack of judicial incumbency in 2006. (emphasis added), It is suggested that the language of this Count contains conclusions rather than specific facts which Judge Miller can either admit or deny. These failures of not stating which Canon Judge Miller is alleged to have violated in this Count, as well as failing to state therein any well pled facts, should cause this Count to be dismissed, pursuant to Fla R. Civ. P. 1.140(b). 7
COUNT 4 SHOULD ALSO BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION Count 4 should fail and be dismissed, given the fact, again, as alleged in this motion to dismiss with reference to Count 1, supra, there have been no facts alleged how there was a continuing deliberate effort to misrepresent, on Judge Miller s part, her qualifications for office. Inasmuch as there has been no factual allegation of an untrue statement of fact, or an incorrect or false representation as to any of her qualifications, there cannot have been any resulting knowing misrepresentation. Neither have there been any facts alleged as to how Judge Miller failed during the campaign, to maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, nor have there been any facts pled either in this Count 2 and 3 which would constitute misconduct on the part of Judge Miller. Thereby there has also been no pattern and practice unbecoming a candidate, with the effect of bringing the judiciary into disrepute. By failing to state therein any well pled facts, should cause this Count 4 to be dismissed, pursuant to Fla R. Civ. P. 1.140(b). 8
WHEREFORE, Judge Miller respectfully requests that the Hearing Panel of the Judicial Qualifications Commission dismiss the Notice of Formal Charges filed in this proceeding. In the alternative, Judge Miller respectfully requests this Hearing Panel to enter an order requiring the JQC to amend the Notice of Formal Charges to comply with Florida Rule of Civil Procedure 1.110(b) and Judicial Qualifications Commission Rule 6(g). Dated this 12 th of November, 2007 Respectfully submitted: Michael A. Catalano, Esq. Fla. Bar No.: 371221 Michael A. Catalano, P.A. 1531 N.W. 13 th Court Miami, Florida 33125 Telephone: (305) 325-9818 Fax: (305) 325 8759 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished as listed below this 13 th day of November, 2007, to the following: Marvin E. Barkin Interim General Counsel 9
101 E. Kennedy Blvd., Suite 2700 P.O. Box 1102 Tampa, FL 33601-1102 813/227-7459 FAX: 813/227-0459 And Michael L. Schneider Associate General Counsel Judicial Qualifications Commission Florida Bar No. 525049 1110 Thomasville Road Tallahassee, FL 32303 (850) 488-1581 Counsel for the Judicial Qualifications Commission, by US Mail. Also, per Rules 9, and 10 of the Florida Judicial Qualifications Commission, all of our pleadings are being filed as follows: Original and one copy to the Clerk of the Florida Supreme Court by US Mail. An electronic copy will be sent to the Clerk of the Court per Supreme Court Rule: AOSC04-84. Email to: e-file@flcourts.org A copy will be sent directly to the Chair of the Hearing Panel, Judge Jesse Preston Silvernail, 2825 Judge Fran Jamieson Way, Viera, FL 32940 by US Mail. An additional 5 copies will be sent to the JQC c/o Mr. Schneider to be distributed to the full hearing panel. By: Michael A. Catalano, Esq. 10