BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA

INQUIRY CONCERNING A JUDGE SC13-1333

LAURAM. WATSON, NO. 12-613 I ---------------------------------

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION'S MOTION TO TRANSFER COMPLAINT TO ENFORCE

FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY AND MONETARY RELIEF TO THE FLORIDA SUPREME COURT

The Florida Judicial Qualifications Commission ("JQC"), by and through its

undersigned counsel, hereby files its Motion to Transfer Complaint to Enforce

Florida's Public Records Act and for Declaratory and Monetary Relief to the

Florida Supreme Court.

As grounds therefor, the JQC states as follows:

1. On May 7, 2015, Judge Watson filed an action against the JQC in the

Circuit Court for the Second Circuit in and for Leon County, Florida denominated

as a "Complaint to Enforce Florida's Public Records Act and for Declaratory and

Monetary Relief," Case No. 15-CA-001047 (hereinafter "Public Records Action).

A copy of Judge Watson's Complaint in the Public Records Action is attached

hereto as Exhibit A ("Complaint").

2. In the Public Records Action, Judge Watson generally alleges that on

October 9, 2014, she served a public records request on the JQC pursuant to

Chapter 119, Florida Statutes ("Public Records Request") and that the JQC has

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unlawfully refused to permit inspection of the requested public records. See

Complaint at ,-r,-r 9- 13. She also alleges in paragraph 15 ofher Complaint that:

The [JQC's] refusal to allow Plaintiff to inspect the requested public records violates Art. I, § 24(a) of the Florida Constitution, § 119.07(1)(a), Florida Statutes, Rule 2.420, Florida Rules of Administration, and is inconsistent with well-established case law.

See Complaint at ,-r 15.

3. Judge Watson's Public Records Action is inextricably intertwined

with her judicial disciplinary proceeding, which is currently pending in this Court.

4. To be sure, Judge Watson has acknowledged that nexus in her

previous submissions to this Court. For instance, in her Notice of Direct Criminal

Contempt by The Florida Bar and Judicial Qualifications Commission (Cox,

McGrane, and Muir) and Motion to Reject the Report and Recommendations of the

JQC Based Upon Perjury, Fraud, Spoliation of Evidence, and Numerous

Violations of the Rules Regulating The Florida Bar, and Other Related Relief

("Notice of Direct Criminal Contempt") filed on March 11, 2015, Judge Watson

implored this court to take "original jurisdiction" over her Public Records

Requests, on the basis that "they relate directly to the action of [The Florida

Bar] and JQC proceeding against [her]." See Notice of Direct Criminal

Contempt at 64 (emphasis added).

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5. In her Notice of Direct Criminal Contempt, Judge Watson

emphatically argued, as she does now, that the JQC's records are not exempt from

disclosure under Chapter 119 and that this Court should require the JQC's

immediate compliance with her public records request. See Notice of Direct

Criminal Contempt at 66. She further argued that the JQC's failure to permit

inspection of the requested public records was the only way she could marshal

evidence from which to attack Larry Stewart, whom she identified as the only

adverse witness testifying against her in her disciplinary proceeding. See Notice of

Direct Criminal Contempt at 66.

6. By Order dated April 14, 2015, this Court denied Judge Watson's

Notice of Direct Criminal Contempt.

7. In accordance with article v., section 2( a) of the Florida Constitution,

this Court is empowered to "adopt rules for the practice and procedure in all courts,

including . . . the transfer to the court having jurisdiction of any proceeding

when the jurisdiction of another court has been improvidently invoked . ... "

8. Pursuant to art v., section 12(c) of the Florida Constitution, this Court

also has exclusive jurisdiction to consider recommendations of discipline made by

the Hearing Panel of the JQC. Because Judge Watson is seeking relief in her

Public Records Action which has already been the subject of a motion she has filed

in her disciplinary proceeding in this Court (and which has already been denied by

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this Court), this Court should invoke its authority under art. v., section 2(a) to

transfer the Public Records Action to this Court.

9. Such a transfer would be consistent with prior precedent in which this

Court has ordered that collateral litigation arising out of JQC proceedings be

transferred to this Court. For instance, in Reiter v. Gross, 599 So. 2d 1275 (Fla.

1992), the JQC filed formal charges against Judge Hugh Glickstein based on his

alleged violation of a judicial canons that prohibited judges from publicly

endorsing candidates for public office." !d. at 599. After the formal charges were

filed, Judge Glickstein then brought an action for declaratory and injunctive relief

against the individual members of the JQC to enjoin the JQC's disciplinary action,

contending that the canons in question violated his right to free speech.

10. In response to the declaratory judgment action, the JQC then

petitioned this Court for a writ of prohibition to enjoin the circuit court from

proceeding with the declaratory judgment action. Although this Court denied the

JQC's writ of prohibition, the Court nonetheless transferred Judge Glickstein's

declaratory judgment action to itself (on its own motion) to determine the

constitutionality of the canons in question. In so ruling, this Court reasoned as

follows:

The Code of Judicial Conduct of this state was adopted by this Court in In re The Florida Bar - Code of Judicial Conduct, 281 So. 2d 21 (Fla. 1973), and modified in subsequent decisions. This Court has

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exclusive original jurisdiction to eliminate, change or modify these provisions. Furthermore, the courts of this state are bound to follow the decisions and rules of this Court, and only this Court can void or modify a rule it has adopted.

Under article V, section 2(a) of the Florida Constitution, this Court has the responsibility to transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked. The basis of the circuit court action underlying this petition for prohibition is the constitutionality of provisions of the Code of Judicial Conduct.

Given the above circumstances, and in accordance with the provisions of article V, section 2, we transfer [Judge Glickstein's declaratory judgment and injunctive action) to this Court and treat it as a petition to declare unconstitutional the subject provisions of the Code of Judicial Conduct.

Reiter, 599 So. 2d at 1275 (emphasis added).

11. While Judge Watson's Public Records Action does not directly

implicate any provision of the Code of Judicial Conduct, the disruption that could

ensue were Judge Watson permitted to sue the JQC in a collateral proceeding

during the pendency of her disciplinary proceeding (particularly as to an issue she

has previously raised in this Court), is no less troublesome than in the Glickstein

case.

12. This Court is the exclusive arbiter of recommendations of discipline

made by the JQC's Hearing Panel. Judge Watson has previously filed a Notice of

Direct Criminal Contempt and specifically urged this Court to reject the Hearing

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Panel's recommendation that she be removed from office based, in part, on the

JQC's alleged failure to comply with her Public Records Request.

13. Instead of moving for rehearing of this Court's April 141h Order

denying her request that this Court take "original jurisdiction over [her] [P]ublic

[R]ecords [R]equest and require the JQC's immediate compliance," see Notice of

Direct Criminal Contempt at 66, Judge Watson instead filed a collateral action

against the JQC in the Circuit Court for Leon County, again challenging the JQC's

compliance with Chapter 119.1

14. Judge Watson's attempt to undermine her pending JQC proceeding by

filing her Public Records Action is reminiscent of the "Original Petition for

Declaratory and Injunctive Relief' she filed against the JQC in this Court on April

11, 2014, several weeks after her final hearing before the Hearing Panel. See Case

No. SC 14-749. In that Petition, Judge Watson sought a declaration, inter alia, that

the JQC was without jurisdiction to initiate formal charges against her and that the

JQC's enforcement of its rules of procedure violated her rights of due process.

After filing her Petition, Judge Watson then filed a motion requesting that this

Court stay consideration of the Hearing Panel's recommendation of removal

pending this Court's resolution of her Petition for Declaratory and Injunctive

1 Presumably, had this Court determined the JQC was in violation of Chapter 119, it would have so indicated and/or granted Judge Watson some relief in her Notice of Direct Criminal Contempt.

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Relief (and appeals she was pursuing against the JQC in the Eleventh Circuit Court

of Appeals).

15. By Order dated June 12, 2014, this Court denied Judge Watson's

Petition for Declaratory and Injunctive Relief without prejudice to her right to

present the arguments contained therein in her response to the Court's Order to

Show Cause in the main case. Specifically, the Court stated:

Judge Watson's "Petition for Declaratory and Injunctive Relief' is hereby denied without prejudice to raise these claims in her response to the Order to Show Cause issued by this Court on April 29, 2014, in case no. SCI3-1333, Inquiry Concerning A Judge No. 12-613 Re: Laura Marie Watson.

16. Although not articulated as such in the Court's June 1th Order, it

would have been a waste of judicial resources to have litigated issues relating to

the Hearing Panel's recommendation that Judge Watson be removed from office in

two different proceedings, even if before the same court. That same rationale

applies with no less force here where Judge Watson is again attacking the JQC,

albeit in a different forum.

17. Finally, in urging this Court to transfer jurisdiction over Judge

Watson's Public Records Complaint to this Court, the JQC in no way concedes

that it is a state agency or otherwise subject to Chapter 119. Justice Coalition v.

First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185

(Fla. I st DCA 2002); Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). Notably, even

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Judge Watson's counsel has acknowledged that the JQC is not an agency for

purposes of Chapter 119. See Exhibit C to Public Records Complaint at p. 1

("Although the judiciary is not an agency for purposes of Chapter 119, F.S ..... ).

18. In an attempt to mitigate the fact that the JQC is not subject to Chapter

119, Judge Watson is apparently attempting to invoke Chapter 119 against the JQC

by arguing that Chapter 119 is made applicable to the JQC through Rule 2.420 of

the Florida Rules of Judicial Administration. See Public Records Complaint at ~

15 and Exhibit C to Public Records Complaint at p. 4 (arguing that "Rule

2.420(m)(3) makes applicable [to the JQC] section 119.07, Fla. Stat.").

19. Judge Watson's attempt to construe the Rules of Judicial

Administration in such a manner as to apply Chapter 119 to the JQC in the context

of a pending JQC matter is even more reason why her Public Records Action

should be transferred to this Court. Interestingly, this Court's own website

undermines Judge Watson's assertion that Chapter 119 is made applicable to the

JQC through the Rules of Judicial Administration.

20. Specifically, the following information appears on this Court's

website:

Is the JQC a [p]art of the State Courts System [a]dministered by the Chief Justice?

No. Article V, section 12 of the state Constitution specifically creates the JQC as a body independent of the state courts and the other branches of government. The

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JQC makes its own rules but is funded by the Legislature. The Supreme Court does not supervise the JQC, cannot investigate it, cannot fire or select its members, and cannot order it to perform any official act.

21. The debacle that could ensue from respondent judges filing collateral

litigation against the JQC during the pendency of their disciplinary cases should be

apparent to this Court. Here, having already been rebuffed by this Court in her

first attempt to persuade the Court to "take original jurisdiction over [her] [P]ublic

[R]ecords [R]equest and require the JQC's immediate compliance," see Notice of

Direct Criminal Contempt at 66, Judge Watson has now sought identical relief in

the circuit court. This Court should not countenance such forum shopping and

should accordingly transfer the Public Records Action to this Court.

CONCLUSION

For the foregoing reasons, the JQC respectfully requests that Judge Watson's

Public Records Action, Laura M Watson, v. Florida Judicial Qualifications

Commission, Case No. 15-CA-001047, currently pending in the Second Judicial

Circuit Court in and for Leon County, be transferred to this Court and consolidated

with this Court's consideration of the Hearing Panel's Findings, Conclusions, and

Recommendation of Discipline dated Aprill5, 2014.

[SIGNATURE LINE ON FOLLOWING PAGE]

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Is/ Lansing C. Scriven MARVIN E. BARKIN, ESQ. Florida Bar No. 003564 mbarkin@trenam.com LANSING C. SCRIVEN, ESQ. Florida Bar No. 729353 lscri ven@trenam. com

TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEIL & MULLIS, P.A. 101 East Kennedy Blvd., Suite 2700 Tampa, FL 33602 Phone: 813-223-7474 I Fax: 813-229-6553 Special Counsel to the Florida Judicial Qualifications Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FLORIDA JUDICIAL QUALIFICATIONS COMMISSION'S MOTION TO TRANSFER COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY AND MONETARY RELIEF TO THE FLORIDA SUPREME COURT has been furnished by E-Mail on this 4th day of June, 2015 to the following:

Lauri Waldman Ross, Esq. Ross & Girten 9130 South Dadeland Boulevard Miami, FL 33156-7818 1 wrpa@lauri law. com

Honorable Laura Marie Watson Circuit Judge, 17th Judicial Circuit 201 S.E. 6th Street, Room 1005B Ft. Lauderdale, FL 33301 jwatson@l7th.flcourts.org I tucker@l7 th. fl courts. org

Robert A. Sweetapple, Esq. Alexander Varkas, Jr., Esq. Sweetapple, Broeker & Varkas, PL 165 East Boca Raton Road Boca Raton, FL 33432 plead ings@sweetapp lelaw. com cbailey@sweetapplelaw.com

JayS. Spechler, Esq. Jay Spechler, P.A. Museum Plaza- Suite 900 200 South Andrews A venue Fort Lauderdale, FL 33301-1864 jay@jayspechler.com

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Colleen Kathryn O'Loughlin, Esq. Colleen Kathryn O'Loughlin, P .A. P. 0. Box 4493 Fort Lauderdale, FL 33338 colleen@colleenoloughlin.com

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The Honorable Keny I. Evander Fifth District Court of Appeal 300 South Beach Street Daytona Beach, FL 32114-5002 evanderk@flcourts.org

Is/ Lansing C. Scriven Attorney

EXHIBIT A

Filing# 27014734 E-Filed 05/07/2015 01:33:54 PM

IN THE CIRCUIT COURT OF THE 2ND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

CASE NO: LAURAM. WATSON,

Plaintiff,

v.

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION,

Defendant.

COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY AND MONETARY RELIEF

The Plaintiff, LAURA M. WATSON, by and through undersigned counsel, hereby sues the

Defendant, the FLORIDA JUDICIAL QUALIFICATIONS OCOMMISSION, and as grounds

therefore alleges as follows:

1. This action concerns the Defendant's violation of Plaintiff's civil rights pursuant to Article

I, §24 of the Florida Constitution, Chapter 119, Florida Statutes (2011), (the "Public

Records Act"), and Rule 2.420 Florida Rules of Judicial Administration.

2. This action seeks declaratory and monetary relief.

3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its

constitutional and statutory duty to permit access to public records, and compelling the

Defendant to provide access to the requested public records and awarding Plaintiff's

attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant

LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. 20 S.E. 3RD STREET, BocA RATON, FLORIDA 33432-3911

Laura M. Watson v. Florida Judicial Qualifications Commission Case No: ; Leon County

to §119.11(1), Fla. Stat.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida

Constitution, and§ 119.11, Fla. Stat. and Rules of Judicial Administration.

5. This Court has personal jurisdiction over the Defendant, because the Defendant operates

from and is headquartered in Leon County, Florida.

THE PARTIES

6. Plaintiff is an individual residing in Broward County, Florida and is sui juris. Plaintiff is

a circuit court judge sitting in the 17th Judicial Circuit of Florida.

7. Defendant is an independent constitutionally created commission and is subject to the

requirements of §119.011(2), Florida Statutes.

8. Defendant has a duty to permit the inspection, copying, and photography of Defendant's

public records by any person desiring to do so, at a reasonable time, under reasonable

conditions, and for reasonable costs. (Emphasis added). See§ 119.07, Fla. Stat.; Art. I, §24,

Fla. Const., and Rules of Judicial Administration.

FACTUAL BACKGROUND

9. On October 9, 2014, Plaintiff submitted the same public record request both to the Records

Custodian of the Florida Judicial Qualifications Commission ("JQC") and to Michael L.

Schneider, Esquire, Executive Director of the JQC. (Exhibits A and B respectively).

2 LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. 20 S.E. 3Ro STREET, BOCA RATON, FLORIDA 33432-3911

Laura M. Watson v. Florida Judicial Qualifications Commission Case No: ; Leon County

10. On October 13, 2014, Mr. Schneider, on behalf of the JQC, refused to comply with the

requests, asserting that the JQC was not an agency for purposes of Chapter 119, Florida

Statutes.

11. On January 9, 2015, undersigned counsel advised the Defendant that Plaintiff believed

Defendant's position was legally unsupportable. Counsel specifically cited amended

Article I § 24 of the Florida Constitution, which establishes a constitutional right of access

to any public record made or received in connection with official business including

commissions created pursuant to law or constitution. (Exhibit C)

12. On January 14, 2015, the agency, through correspondence from Mr. Schneider, continued

in its refusal to process the public records request attached as Exhibit A. (Exhibit D)

13. Defendant has refused to produce the public records responsive to the Request. That refusal

is unlawful.

COUNT I-UNLAWFUL WITHHOLDING OF PUBLIC RECORDS

14. Plaintiff re-alleges and incorporates and be reference paragraphs 1 through 13 as if fully

alleged herein.

15. The Defendant's refusal to allow Plaintiff to inspect the requested public records violates

Article I., §24(a) ofthe Florida Constitution, §119.07(l)(a), Florida Statutes, Rule 2.420

Florida Rules of Judicial Administration, and is inconsistent with well-established case

law.

3 LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. 20 S.E. 3RD STREET, BOCA RATON, fLORIDA 33432-3911

Laura M. Watson v. Florida Judicial Qualifications Commission Case No: ; Leon County

16. The records being sought by Plaintiff are public records pursuant to § 119.011 (12), Florida

Statutes, and Florida Rules of Judicial Administration.

17. There is no statutory exemption that applies to the requested public records and the

Defendant has cited none.

18. Violations of Section 119.07, Florida Statutes constitute an irreparable public injury.

19. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to

permit inspection, copying and photographing of public records.

20. Section 119.11 (1 ), Florida Statutes requires this matter be set for an immediate hearing.

21. All conditions precedent to this action have occurred or have been excused or waived.

ATTORNEYS' FEES

22. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce

the provisions of this chapter and if the court determines that such agency unlawfully

refused to permit a public record to be inspected or copied, the court shall assess and award,

against the agency responsible, the reasonable costs of enforcement including reasonable

attorneys' fees." See §119.12. Fla. Stat. As a result of Defendant's conduct, Plaintiff has

retained undersigned counsel and is obligated to pay reasonable attorneys' fees.

4 LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. 20 S.E. 3RD STREET, BOCA RATON, FLORIDA 33432-3911

Laura M. Watson v. Florida Judicial Qualifications Commission Case No: ; Leon County

RELIEF REQUESTED

WHEREFORE, Plaintiff prays this Court:

a. Set an immediate hearing pursuant to §119.11, Florida Statutes and Florida Rules of

Judicial Administration.

b. Declare that the Defendant's refusal to provide Plaintiffwith access to the requested public

records was unconstitutional and unlawful under Article I., §24 of the Florida Constitution

and the Public Records Act and Florida Rules of Judicial Administration;

c. Order the Defendant to allow the inspection, copying and photographing of the requested

records (upon payment of the statutorily authorized fees);

d. Award Plaintiff its reasonable attorneys' fees, costs and expenses incuned in this action,

as provided in§ 119.12, Florida Statutes, Florida Rules of Judicial Administration; and

e. Grant such further relief as the Court deems proper.

Respectfully Submitted,

SWEET APPLE, BROEKER & VARKAS, P.L. 20 S.E. 3rd Street Boca Raton, Florida 33432-3911 Telephone: (561) 392-1230 E-Mail: Pleadings@sweetapplelaw.com

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By: IS/ Robert A. Sweetapple ROBERT A. SWEETAPPLE Florida Bar No. 0296988

LAW OFFICES OF SWEET APPLE, BROEKER & VARKAS, P.L. 20 S.E. 3RD STREET, BOCA RATON, FLORIDA 33432-3911

LAW OFFICES OF

SWEET APPLE, BROEKER & V ARKAS, P.L.

DOUGLAS C. BROEKER, P.A. 44 West Flagler Street, Ste. 1500 Miami, Florida 33130-6817 Telephone: (305) 374-5623 Facsimile: (305) 358-1023

ROBERT A. SWEET APPLE •, •• DOUGLAS C. BROEKER ALEXANDERD. VARKAS,JR KADISHA D. PHEU'S ASHLEIGH M. GREENE

• 801\.R.D CBlmP1BO BU'SINESS UTIOATl[)f'J ATrD.RNEY

•• BOAJ!D CEllTIFlEil CI\IIL WAL ATTORNEY

SENT VIA E-MAIL AND U.S. MAIL

October 9, 2014

Records Custodian of the Florida Judicial Qualifications Commission The Judicial Qualifications Commission P.O. Box 14106 Tallahassee, FL 32317 (Emai 1: contact@fl oridajq c.com)

RE: Public Records Request

Dear Sir or Madam:

SWEET APPLE & VARKAS, P.A. 20 S.E. 3'' Street Boca Raton, Florida 33432-4914 Telephone: (561) 392-1230 Fucsimile: (561) 394-6102

Please Reply To: Boca RAton E-Mail: rsweetapple@swectapplelaw.com avarkas@swectapplelaw.com kphelps@sweetapplelaw.com ebailey@sweetapplelaw.com dsmitb@sweetapplelaw.com

Paralegals: Cynthia J. Bailey, CP, FCP, FRP Deborah Smith, CP, FRP Jamie Ardea, FRP

This letter is a public records request pursuant to the Public Records Act, Florida Statutes, Section 119. I am writing on behalf of Judge Watson to request the following:

1. The complete file of the JQC regarding the Honorable Laura Watson excluding any pleadings filed with the Supreme Court. This request includes all emails exchanged bet\veen any person including Larry S. Stewart, Esquire, James B. Tilghman, Esquire, Gary D. Fox, Esquire, David W. Bianchi, Esquire, Stephen F. Cain, Esquire and A. Dax Bello, Esquire or any member, representative or employee of his law firm and Miles A. McGrane, III, Esquire or any member, representative or employee at the Judicial Qualifications Commission fiom November l, 2012 to the present.

2. Any and all e-mails from Miles A. McGrane, III, Esquire, Lauri Waldman Ross, Esquire, or any member, employee, or representative of the Judicial Qualifications Commission to Larry S. Stewart, Esquire, James B. Tilghman, Esquire, Gary D. Fox, Esquire, David W. Bianchi, Esquire, Stephen F. Cain, Esquire and A. Dax Bello, Esquire or any member representative or employee of his law firm from November 1, 2012 to the present.

3. Any correspondence fTom any representative or employee of the Florida Bar to any employee or representative of the JQC from November 1, 2012 to the present.

EXHIBIT

I A---"'---

Records Custodian of the Florida Judicial Qualifications Commission October 9, 2014

4. Any correspondence from any representative or employee of the Florida Judicial Qualifications Commission to any employee or representative of the Florida Bar from November 1, 2012 to the present.

5. Any and all emails or correspondence between any representative or employee of the Florida Judicial Qualifications Commission and the Clerk ofthe Supreme Court from January 1, 2013 to the present.

6. The complete file of the Florida Judicial Qualifications Commission including emails or correspondence from any representative or employee of the Florida Judicial Qualifications Commission to any employee or representative of Westlaw, Thomson Reuters, andfor any

subsidiaries or affiliates of these corporations/entities, from January 1, 2011 to the time of service of this request.

7. The complete file of the Florida Judicial Qualifications Commission including emails or correspondence from any representative or employee of the Florida Judicial Qualifications Commission to any employee or representative of the Clerk of the Supreme Court or any other

Clerks of Courts in the State of Florida, from January I, 20 I lto the time of service of this request.

Please advise my office of the cost of providing these records, if any, and payment will be promptly remitted. If these public records can be provided electronically, please email them to pleadings@sweetapplelaw.com and cbailey@sweetapplelaw.com. Alternatively, please produce the information responsive to this request to Robert A Sweetapple, Esquire, Sweetapple, Broeker & Varkas, PL, 20 SE 3rd Street, Boca Raton, Florida 33432.

We would appreciate confirmation that you have received this request and an estimated date of when we might receive the public records. Thank you in advance for your prompt consideration of our request. Please feel free to contact my office if you have any questions.

This request is made pursuant to: Chapter 119 of the Florida Statutes, the common law right to know and to access; to any statutory right to know or have access. This request is also made pursuant to requestor's rights under the Florida and United States Constitutions.

In the event any privilege is claimed a log should be provided indicating the specific identity of any document being withheld and the legal basis for the claimed privilege. Copies should be two sided when possible and charges billed in accordance with controlling law, Fla. Stat.§ 119.07(4)(a)(2).

Please provide an estimate of the costs if any to comply with this public records request in advance. It is required that the requestor approves in advance any costs being imposed on the requestor.

You are cautioned that the failure of the requestee to fully comply may result, inter alia, in the institution of litigation, the request for appointment by the court of independent review and an award of attorney's fees and costs to requestor's legal counsel.

2

L'lwOmCESOf

SWEET APPLE, BROEKER & VARK,\5, PL.

Records Custodian of the Florida Judicial Qualifications Commission October 9, 2014

The above request shall include text messages and e-m ails from private accounts.

Respectfully submitted,

, ·{{v~~ A - ~u.-~~L} L~:_, ROBERT A. SWEETAPPLE ~ .

RAS:cjb cc: The Honorable Laura M. Watson

3

LAW OFFICES OF

SWEETAPPLE, BROEKER & V ARK AS, PL

LAW OFFlCES Oi'

SWEETAPPLE, BROEKER & VARKAS, P.L.

DOUGLAS C. BROEKER, P.A. 44 West Flagler Street, Ste. 1500 Miami, Florida 33130-6817 Telephone: (305) 374-5623 Facsimile; (305) 35&-1023

RODERT A. SWEET APPLE •, •• DOUGLAS C. BROEKER ALEXANDER D. VARKAS, JR. KADJSHA D. P!-iELPS ASHLE!GH M. GREENE

• BOIJW c;EP.TIJ'JW BU5JNEM LJr.OATlO~ Ancrum'

t• BO.-.Jttl C'E11.11Flf.D CML TRIA!- A.rrORN"eY

SENT VIA E-MAIL AND U.S. MAIL

October 9, 2014

Michael L. Sclmeider, Esquire, Executive Director of the JQC 1110 Thomasville Road Tallahassee, Florida 32303 (Email: mschneider@floridajqc.com)

RE: Public Records Request Dear Mr. Schneider:

SWEET APPLE & VARKAS, P.A. 20 S. E. 3"' Street Boca Raton, Florida 33432-4914 Telephone: (56!) 392-1230 Facsimile: (561) 394-6102

Please Reply To: Boca Rnton E-Mail: rsweelapple@sweelnpplelaw.com nvarkas@sweetapplelaw.com kphelps@swcetapplclaw.com cbailey@swet:tapplelaw.com dsmith@sweclapplclaw.com

l'Rrnlegals; Cynthia J. Bniley, CP, PCP, FRP Deborah Smith, CP, FRP Jamie Arden, FRP

This letter is a public records request pursuant to the Public Records Act, Florida Statutes, Section ] 19. I am writing on behalf of Judge Watson to request the following:

1. The complete file of the JQC regarding the Honorable Laura Watson excluding any pleadings filed with the Supreme Court. This request includes all emails exchanged between any person including Larry S. Stewart, Esquire, James B. Tilghman, Esquire, Gary D. Fox, Esquire, David W. Bianchi, Esquire, Stephen F. Cain, Esquire and A Dax Bello, Esquire or any member, representative or employee of his law firm and Miles A. McGrane, III, Esquire or any member, representative or employee at the Judicial Qualifications Commission from November 1, 2012 to the present.

2. Any and all e-mails from Miles A. McGrane, III, Esquire, Lauri Waldman Ross, Esquire, or any member, employee, or representative of the Judicial Qualifications Commission to Larry S. Stewart, Esquire, James B. Tilghman, Esquire, Gary D. Fox, Esquire, David W. Bianchi, Esquire, Stephen F. Cain, Esquire and A. Dax Bello, Esquire or any member representative or employee of his law firm from November 1, 2012 to the present.

EXHIBIT

Michael L. Schneider, Esquire October 9, 2014

3. Any correspondence from any representative or employee of the Florida Bar to any employee or representative of the JQC from November 1, 2012 to the present.

4, Any correspondence from any representative or employee of the Florida Judicial Qualifications Commission to any employee or representative of the Florida Bar from November 1, 2012 to the present.

5. Any and all emails or correspondence between any representative or employee of the Florida Judicial Qualifications Commission and the Clerk of the Supreme Court from January 1, 2013 to the present.

6. The complete :file of the Florida Judicial Qualifications Commission including emails or correspondence from any representative or employee of ihe Florida Judicial Qualifications Commission to any employee or representative of Westlaw, Thomson Reuters, and/or any subsidiaries or affiliates of these corporations/entities, from January 1, 2011 to the time of service of this request.

7. The complete file of the Florida Judicial Qualifications Commission including emails or correspondence from any representative or employee of the Florida Judicial Qualifications Commission to any employee or representative of the Clerk of the Supreme Court or any other Clerks of Courts in the State ofFlorida, from January 1, 201lto the time of service of this request.

Please advise my office of the cost of providing these records, if any, and payment will be promptly remitted. If these public records can be provided electronically, please email them to pleadings@sweetapplelaw.com and cbailey@sweetapplelaw.com. Alternatively, please produce the information responsive to this request to Robert A. Sweetapple, Esquire, Sweetapple, Broeker & Varkas, PL, 20 SE 3rtl Street, Boca Raton, Florida 33432.

We would appreciate confinnation that you have received this request and an estimated date of when we might receive the public records. Thank you in advance for your prompt consideration of our request. Please feel fi:ee to contact my office if you have any questions.

This request is made pursuant to; Chapter 119 of the Florida Statutes, the common law right to know and to access; to any statutory right to !mow or have access. This request is also made pursuant to requestor's rights under the Florida and United States Constitutions.

In the event any privilege is claimed a log should be provided indicating the specific identity of any document being withheld and the legal basis for the claimed privilege. Copies

2

LAW OFFICES OF

SWE£TAPPLE, BROEiCER & VARKA5, F.L.

Michael L. Schneider, Esquire October 9, 2014

should be two sided when possible and charges billed in accordance with controlling law, Fla. Stat. §119.07(4)(a)(2).

Please provide an estimate of the costs if any to comply with this public records request in advance. It is required that the requestor approves in advance any costs being imposed on the requestor.

You are cautioned that the failure of the requestee to fully comply may result, inter alia, in the institution of litigation, the request for appointment by the court of independent review and an award of attorney's fees and costs to requestor's legal counsel. The above request shall include text messages and e-mails from private accmmts.

Respectfully submitted,

RAS:dls cc: The Honorable Laura M. Watson

3

LAW OfFICES OF

SWEET tiPPLE, BROEKER&: VARKAS, P.L.

STATE OF' FLORIDA

RlCAHDO "RICK"' MDRALC$. HI CHAIR

.JUDICIAL QUALIFICATIONS COMMISSION

HOI-. KERRY L EVA~DER VtCE- CNAlR

MICHAEL L, SCHNEIDER OENE:RAL COUNSEJ..,

A\..E.XANDER ,J, WILL!A!'oi$ ASSISTANT Gt:HERAL COUN'SEL

Robert A. Sweetapple 20 S.E. 3rct Street

POST OFFICE BOX I 4 I 06

TALLAHASSEE, FLORIDA 323 I 7

(850) 488-158 I

October 13, 2014

Boca Raton, Florida 33432

Dear Mr. Sweetapple:

The Commission is in receipt of your public records request dated October 9, 2014 1 and sent to our former location. Unfot tunately, the Commission will not be able to comply with your reque,::t as the Commission is not considered an "agency" for purpose::: of Chapter 119, Florida Statutes. See Justice Coalition v. First District C':ourt of Appeal Judicial Nominating Commission, 823 So. 2d 185 (Fla. l.st DCA 2002); LDcke v. Hawkes, 595 So. 2d 32 (Fla. 1992).

The Commission regrets being unable to assist you.

MLS/rnc

Sincerely yours,

I~ -~-~-c::~~ Michael L. Schneider Executive Director and General Counsel

LAW OFFICES OF

SWEET APPLE, BROEKER & V ARKAS, P .L.

DOUGLAS C. BROEKER, P.A. 44 West Flagler Street, Ste. 1500 Miami, Florida 33130-6817 Telephone: (305) 374-5623 Facsimile: (305) 358-1023

ROBERT A. SWEET APPLE+,"" DOUGLAS C. BROEKER ALEXANDER D. V ARKAS, JR. KADISH A D. PHELPS ALEXANDER D. V ARKAS, [JJ ASHLEIGH M. GREENE

• BOARD CERTIFll!D BUSINI!5S LmGAT!Orl i\.Tl'Ol!NE¥

.,., BOARD CERT£P1flD C!V!L 11Ur\L AnOR.."'tEY

VIAE-MAIL Michael L. Schneider, Esq. Executive Director of the JQC mschneider@floridajqc.com 111 0 Thomasville Road Tallahassee, Florida 32303

January 9, 2015

Re: Public Records Request dated October 9, 2014

Dear Mr. Schneider:

SWEET APPLE & VARKAS, P.A. 20 S.E. 3ru Str~t Boca Raton, Florida 33432-4914 Telephone: (561) 392-1230 Facsimile: (561) 394-6102

Please Reply To: Boca Raton E-Mail: rsweetapple@sweetapplelaw.com avarkas@sweetapplclaw.com ajvarkas@sweetapplelaw.com cbailey@swcctapplelaw.com dsmith@sweetapplelaw.com

Paralegals: Cynthia J. Bailey, CP, FCP, FRP Deborah Smith, CP, FRP Jamie Arden, FRP

I am in receipt of your October 13, 2014 letter regarding Judge Watson's Public Records Request dated October 9, 2014. We take issue ·with your overall assertion/suggestion that the requested records are somehow confidential and are not required to be disclosed. Irrespective of whether the JQC is considered an "agency" for purposes of Ch. 119, F.S., nonetheless Judge Watson is entitled to the requested documents. Although the judiciary is not an "agency" for purposes of Ch. 119, F.S., there is a constitutional right of access to judicial records pursuant to Article L § 24: Access to public records and meetings, Fla. R. Jud. Admin., Rule 2.420: Public Access to Judicial Branch Records, and applicable case law. The Public Records Act applies to these proceedings. I have enclosed for your convenience The Florida Bar's ("TFB") own publication explaining that judicial proceedings and records are presumed to be open. (Exhibit "C" L Summary). This publication explains that the person trying to deny access to these records bears a heavy burden of overcoming the presumption that the records be kept from the public view. Further, the publication states that judicial proceedings and its records are subject to Ch. 119, F .S. and that '"[i]n 2005, Florida's policy on open records was amended to clarify that all state, county, and municipal records are open for personal inspection 'and copying.' Compare § 119.01(1), Fla. Stat. (2004), with§ 119.01, Fla. Stat. (2005)." (Exhibit "C" L Summary). The requested documents are not confidential and Judge Watson and the public at large are entitled to access these records.

First, your reliance on the case of Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992) to assert that Judge Watson is not entitled to the requested infonuation is misplaced. Article I. § 24 of the

EXHIBIT

I c

Michael L. Schneider, Esquire January 9, 2015

Florida Constitution was amended because of the Locke holding. These changes were adopted at the general election held November 3, 1992 and became effective July 1, 1993, a year after Locke was issued. (See Const. Art. XII § 20). The amendment to Article I. § 24 specifically establishes a constitutional right of access to any public record made or received in connection with official business, including the judicial branches and any officers, boards, or commissions created pursuant to law or constitution. I have quoted the pertinent infonnation from Article I. § 24 below:

Article I. § 24 Access to public records and meetings

In 1992, the State Constitution was amended to guarantee that documents produced by the legislature and the judicial branches are open and available to citizens:

(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of the government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or tills Constitution. (emphasis supplied). Article I. § 24 (a), Fla. Canst.

As for your claim that the case of The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185 (Fla. 1st DCA 2002) supports withholding the requested documentation, this case is inapposite to a determination of whether Judge Watson is entitled to the requested documents. The Justice Coalition case concerned a request to the JNC for vote sheets, ballots, and tally sheets created prior to and during the JNC's interviews of candidates. The First DCA held that these documents were part of the members' deliberations and therefore specifically excluded by the Constitution from public exposure. Article 5. § 11 (d) specifically states that "[ e ]xcept for deliberations of the judicial nominating commissions, the proceedings of the connnissions and their records shall be open to the public." Thus, the vote sheets) ballots, and tally sheets were exempt by the constitution. But the The Justice Coalition case does not (as your letter suggests) stand for the proposition that the INC's records are not subject to disclosure because the JNC is not an agency as defined by Ch. 119, F.S.

Rule 2.420 Public Access to Judicial Branch Records

Further, Fla. R. Jud. Admin. 2.420 governs public access to judicial branch records. '"Records of the judicial branch' are all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity and consist of: 'court records' ... and 'administrative records ... which are all other records made or received .... " Rule 2.420 (b)(l)(A) and (B). The Judicial Branch includes The Florida Bar ("TFB"), the Florida Board of Bar Examiners, the Judicial Qualifications Commission, "and all other entities established by or operating under the

LAWOFF!CESDF

SWEET APPLE, BROEKER & VARKAS, P.L.

Michael L. Schneider, Esquire January 9, 2015

authority of the supreme court or the chief justice." Rule 2.420 (b)(2). This definition is consistent with the definition of "court records" in Rule 2.075(a)(1) [renumbered to 2.420 in 2006], and the definition of "public records" contained in Ch. 119, F.S. and includes administrative records.

This rule further explains that complaints alleging misconduct against judges or other entities or individuals licensed or regulated by the courts are only confidential and exempt "until a finding of probable cause or no probable cause is established." Rules 2.420 (c )(3)(A) and (B). As you are aware, probable cause was found against Judge Watson and therefore the requested records are no longer confidential or exempt.

In 2010, Rule 2.420 was amended "to balance the public's constitutional right to access to court records with the courts' responsibility to protect from public access court records that are confidential." See In re Amendments to the Florida Rules of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So. 3d 756 (Fla. 2010). The term "confidential'' as applied to information contained within a judicial branch record (including by definition those in possession of the JQC) means that information that is "exempt" or confidential under Article I. § 24 (a), Fla. Canst. and Rule 2.420 (c) only until afinding of probable cause or no probable cause.

Moreover, the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect these interests. Rule 2.420 (c)(9) (B). In 2007, in order to address concerns about hidden cases and secret dockets, the Florida Supreme Court amended the Florida Rules of Judicial Administration and adopted Fla. R. Jud. Admin. 2.420. See In re Amendments to Florida Rule of Judicial Administration 2.420 - Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007). The Court noted that the "Florida Constitution mandates that the public shall have access to court records, subject only to certain enumerated limitations, See Art. I, ' 24 Fla. Canst., and this Court has adopted rules of procedure recognizing this right of public access to court records." Id. at I 7. The test for sealing of cowi proceedings and records is set forth in Barron v. Florida Freedom Newspapers. Inc., 531 So. 2d 113 (Fla. 1988). The Barron decision states, in part (1) that a strong presumption of openness exists for all court proceedings, (2) a trial is a public event, and the filed records of court proceedings are public records available for public examination, (3) the burden of proof in these proceedings shall always be on the party seeking closure, ( 4) closure of court proceedings or records should occur only when necessary, (5) before entering a closure order, the trial court shall determine that no reasonable alternative is available to accomplish the desired result, and, if none exists, the trial court must use the least restrictive closure necessary to accomplish its purpose, (6) the presumption of openness continues through the appellate review process, and the party seeking closure continues to have the burden to justify closure. This heavy burden is placed on the pruiy seeking closure not only because of the strong presumption of openness but also because those challenging the order will generally have little or no knowledge of the specific grounds requiring closure. Id. at 118.

The Florida Supreme Court has held that evidence which is gathered in the course of the JQC's investigation of misconduct loses its confidential nature once formal charges are filed and the charges are made public. See In re Leon, 440 So. 2d 1267, 1269 (Fla. 1983). The Florida

LAW OFFICES OF

SWECTAPPL£, BROEKER& V.~RKAS, P.L

Michael L. Schneider, Esquire January 9, 2015

Supreme Court has been consistent as to when the JQC's proceedings are "confidential" and not subject to disclosure. The Court in In re Graziano, 696 So. 2d 744 (Fla. 1997) found that the purpose of the confidentiality provisions of the Florida Judicial Qualifications Commission Rules only attached to the original complaint and that all other documents were discoverable:

Although not allowing for discovery of the complaint itself, discovery pursuant to rule 12(b) allows an accused to have foll access to the evidence upon which formal charges are based. The policy reasons for the confidentiality of the original complaint clearly outweigh any benefit the discovery of it could have in view of the discovery right provided by rule 12 ... " (emphasis supplied). I d. at 751.

Subsequent to the holding in In re Graziano, however, the Florida Supreme Court ruled that documents in possession of the JQC prior to the finding of probable cause are exempt only until the JQC determined probable cause. Once the JQC finds probable cause, the records become public records, including the original complaints. See Media General Convergence, Inc., ~tal. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008 (Fla. 2003). "[T]he plain language of section 2. 051 ( c )(3 )(A) [renumbered to 2.420 in 2006], as well as the relevant constitutional provisions, dictate that the complaints in this case remained confidential until the JQC determined probable cause ... " (emphasis supplied). ld. at 1018. The complaints and the related records became exempt from disclosure after the JQC began its investigation until it found probable cause ... However, once the JQC found probable cause the complaints and related records were required to be released. I d. at 1 019.

The JQC has no legitimate claim of exemption/confidentiality to the records requested by Judge Watson. The requested records are not exempt by statute, rule, or constitution. Rule 2.420 (m) (2) states that responses to requests for access to records under this rule shall be made in a reasonable manner and "the custodian shall determine the form in which the record is provided. If the request is denied, the custodian shall state in writing the basis for the denial." Rule 2.420 (m) (2). We provided a specific list of requested documents. (Copy attached). It is incumbent on you to state in writing the basis for denying the requested record. In addition, Rule 2.420 (m) (3), makes applicable section 119.07, Fla. Stat.

Costs of the Search

As a matter of Florida law, unless the nature or volume of public records to be inspected or copied requires "extensive" use of information technology resources or 11extensive" clerical or supervisory assistance, the special service charge is not authorized. Nonetheless, if authorized due to the nature or volume of a request, the special service charge should not be routinely imposed, but should reflect the information teclmology resources or labor costs actually incurred by the agency. AGO 90-07. See also, AGOs 92-3 8, 86-69 and 84-81. Moreover, the statute mandates that the special service charge be "reasonable." See, Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), stating that an "excessive charge" under s. 119.07(1)(b), F.S., "could well serve to inhibit the pursuit of rights conferred by the Public Records Act."

LAW OFFICES OF

SWEET APPlE, BROEK£R & VARKAS, P.l.

Michael L. Schneider, Esquire January 9, 2015

We agree that we will compensate you for the actual cost of duplication of any of the records that we have requested. If the nature or volume of the public records requested is such to require extensive use of information technology resources and/or extensive clerical and/or supervisory assistance by personnel of your office, we agree that we will compensate you for those costs that are reasonable as well, subject to the terms enumerated herein.

Please note that section 119.07(2)(a) of the Public Records Law provides that a person who has custody of a public record and who asserts that a11 exemption applies to a particulru· pubic record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination. This section further provides that if the person who has custody of a public record contends that the record or part of it is exempt from inspection, he shall state the basis of the exemption which he contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he shall state in writing and with particularity the reasons for his conclusion that the record is exempt.

It is hereby requested that you do state in writing both the statutory citation to any exemption which you claim applicable to any requested record and the specific reasons for a conclusion that the requested record is exempt.

Also, please note that section 119.07(2)(C) prohibits the destruction of any of the. requested records, including any which you claim are exempt, for a period of 30 days after the date on which you receive this written request. If a civil action is instituted to enforce the Public Records Law with respect to the requested records within the 30-day period, you may not dispose of the records except by court order after notice to all affected pmties.

Before incurring any charges. please contact me and advise me of the actual cost basis of duplication and/or any necessary and reasonable staff research time, and we will be happv to fof'Nard a check for the same.

Your production of documents pursuant to this request is seriously late ru1d should have been complied with by this time. Further delay will result in litigation over this matter.

RAS: cjb Encl. Cc: Honorable Laura M. Watson

Very truly yours,

I

ROBERT A. SWEETAPPLE

LAW 0Fr!CI:SOF

SWEETAPPLE, BROEKER & VARKAS, P.L

Reporter's Handbook- Judicial Access: The Reporter's Right of Access To The Judicial S... Page l of 8

THE FLORIDA BAR

,,

Report•~• H•ndbook

Judicial Access: The Reporter's Right of Access To The Judicial System

by Sanford L Bohrer, Karen Williams Kammer, and Amanda Hill

Updated Decemb•.!r 201Z

l. SunHTfJlty

1nform2tion on Fionda's open rnectmgs and pc:V•c records acts, sec tho,.~ chapters elsewhere tn th•S Handl:ock).

B;;Ck U Top 1

H. ACCESS TO FLORIDA STATE COURT PROCEEDII'IGS MID RECORDS,

Tl1e Flonda Supreme Court f.r5t articulated the ngllt of the press to ath'nd all judtcoal proceedmgs •n State ex rei. /'-Jiamt HerJid Pttb/lshing Co. v. Nc/nros/1, 3~0 So. 2d 904 (Fla. 1977). a cRsc rnv?l,,nc the tnal of three mcrtg~ge brokers ar.d three brok'!rage f~rms accused of sccurtltcs freud. The dt rccosn•zcd the nqhl of thn. nre>s to gather news and to h~ve acccos to all ;udicr~l

http://wvvw .floridnbar.org/DIVCC Exhibit "C" 90a748525676f00... 10/112014

Reporter's Handbook- Judicial Access: The Repoiter's Right of Access To The Judicial S... Page 2 of 8

1l has been reruyntzed In FlondJ and el.ewr.~rc that th·~ r,e.v~ r,1ed1a, even thollgh not a party to l:tigation below, has stand1119 to quest•on the valid1ty of an crder b"'ee 1l5 2b1hty to gn'i""~' rt•ws 1s directly imp;.ued or curtailed. This IS so, because the public and press have a right to know what goes on in a courtroom whether the proceecl1ng be cr!lTllnal or civil. A member of the press or ne • .,spapcr corporat1or. may be properly conSidered as ~ representat1ve of th~ pubhc 1nsofar as enforci!ment of putJI!C m;;ht of access to the court 15 conr.crned; and the publtc and press have a fundam,;nta nght of access to ~!I JUdiCial proceedings. In detcrm:nmg rcstnct,ons to be placed upon access to Juclic•~l proceed1ngs, the court must balaDce the nght!· ancl1nterest of the parlte; to ht•gat;on witr those of the public and press. !d. a~ 908.

r;,e coc;rl found that even the temp0rary \\·thnoldmg of •nformat1on frcm the press could not be )ustJ(u::d:

The 1ncorwen1ence sufferer:! bv jurors who arc seq;Jest".J ed to prevent exposure f,o excluded ev1dencG •·thlch may be publishco in tt\e prcs1 is a small pnce to pay for the public's ngilt lo timely knowledge of trtal proceedings guaranteed by freedom of tnho:d.ng of news from the pubftc may a.:J tn assur.ng a Ia If tnal and that if the StutQ and defendant agree to muzzlmg the press no one elsa ha:; a nght to ubjecl. We fnm !' reJeCt any suppre"o,lon of news tn a cnmlnal trial except 1n those rare mstances such us national reclmty and wh~re a nt.ws report wr Jld obv,ously ,Qny a falf tr .:.1 as stated above 111 federal cases.

freedom of the press IS not, .1nd has nev!:!r bc·:n a prlv~te property nght granted to those who own the new; media, It IS .t chenshed and almost sacred ng 11t or each C1t1.le'l to be mrormttd about currcnl" events on a tl1nc;y bas1s so each can ext:!rCJSe h1s- drscretron m delcrmin1ng the dest1ny ard secunty of hl!nsclf, other pecple, and the ~'at1on. News delayed ts news den1cd. To be useful to the public, news events must be reported when ti'~Y occur. W!1Maver hapne11s "' any rourtrcom d~rectly or mdwecllv affects all the public. To prcvMt stor chamber InJuStiCe tl1e pubilC should gener1llly h?.ve unre tnc:tcd access to a!! procnedmgs, Jd. at 910.

But the court made clear the rtQht of acce was not absolut2, Thus, Wh• e ''the publiC a no prCS5 ha' e a fundamental nght of access to all JUdiCial proceEdings, •.• [1]~ d~tcrmmtnJ restr,ct10ns te> be placed upon access to JUd' conslitutwn~l nghts.'" WPTV-TV et al. v. State, 61 So. 3d 1191, J !93 (Fla. Sth DCA 2011) (quoltnQ State ex. rei. t>11arm Herald ?ut 'g v. f>lc(litosh, 340 So. 2d 904. 909 (fia. 1977)).

After f>lcfntosh, the Flonda Supreme Court aclo;;~ea a ~·mple threc·part test for tnal courts. Jn Miam1 Ht!rald Pub!lshm9 Co, v. Lewis, '12.6 So. 2d l (Fla. 1982). the Fiend Supreme Court held trar those scek,ng ck :ure or u prctnal heanng •n a cnmtnal case must milke the (oliowm;;

cv:dent•ary showing: Eorl•cr deCJS1ons by th~ d;st: ct courts or oppeal had held pno:· not1ce of hearmg on a closure r~quc't was reqUired,

Sen[lnel Star Co. Y. Booth. J72 So. 2d 100 (Fla. 2d DCA 1979);Tin1:>5 PubilShinq Co. v, Hall, 357 So. 2d 736 {Fla. 2d OCt, 1978).

t. C!ost.rc,, neces!lary to preve:t'. a sat.JU!:i and ,mrnlf"l~f1t thrc:tJt l::> the adrrunistration of justrce:

2. No alt~rnwvcs are ava1labia, other thit11 change of venue, l•,h•ch would protect n defer.dJnt's nght to a f~lf tnal; ami

3. Clo~l

http://www.floridabar.org/DIVCOM/PI/RHandbookOl.nsf/1119bd38ae090a748525676fDO... 10/112014

~~porter's Hundbook- Judiciul Access: The Reporter's Right of Access To The Judicial S... Page 3 of 8

for "'''•ch access rs sougnt.At f·,ast one tnul court in•:· ac~-r-"ed the 15SllC er;::rc;;$ly. Roberts 'J. R.obc"s, 23 ~led. L. Rptr. 1285 (Fla. 15th C1r. 1994).

With respect to JUdiCial ;·ecorcls, m 1992. the Flar,;J~ Supreme Court adcpted a new rule!, Rule 2.051 of the Florida Rules of Jud•c•~l

Adnw11strat1Dn, r

was amended In 2007 to requ,re tha: court orders sealmg coul't records satisfy a tco.t 'tmilar to t'lat required for closure of court procaedtngs. Any "order scaling cau:t record•; mu .t ~\ole, 1nlc" iJiia, the P"rticular grounds for makmg the court records confidential, that

the cfosuro IS no Drnadcr t.h~n ncccss:ary, and there arc no IC'SS rr;stnrt1ve measure-s ava1.able," Carter ot a!. v. Conde Nast Pubrns et. a!.,

983 So. 2d 23, 25-G (!Ia. Str• DCA 2003).

Although Rulo 2.420 contemp'alcs grantmg the publ.' unles,; the rPcord hes b~en ewrnpted from f''lblrc t).,;clo by stiltute or a a other constllUt.cnai prOVISIOn." ld. at 219, 220·21 (quot.ng Art. J, § 24(a), Fla. Const.).

Although former Rule 2..051 said the public mu't be gnQ

arc•tat•;d by a compelhng governmental Interest, and 15 narrawty tatiored to serve that

•nle:·e;;t. Globe r-Je·.•,:;paper Co. v. Supcnor Coull, 457 U.S. 596, 605·07 (1982). See iiiSo Newman v. Gradu1ck, 696 F.2d 796 (lllh C~r.

1983j.

The presumptton or openness rnay be overcome only b't an J :err.d1ng in\ crest based an f111d1rgs that do$ure IS essent1a' to prc>crve hrgher

valu8S ~nd., nnrrowly ta. oreel to serve that 1ntcres~. Pre,.s-Enterpr -e Co. v. Supenor Cvurt, 464 U.S. SOl, 510 (1962.) ("Prcss·Enterpn::;e

!"); Press·Enterprisc Co. v. S\lpanor Court, 478 U.S. 1 (1986) ("Pr~ss-Entcrpnsa 1!").

Agarn, as m Flonda couns, the per:;c.n sct:;..ng to deny access must produce ev•dence rneetrng each part of the lest. The Court amcul~t~d a

Four f~ctar te!it that mu" b" •at.,fo,,,o t·fare the publrc m~y be excluded from an~· stage of a cqmrnallnal: (l) the part\' seeld•1g closure

"musl :dvancc an ovt!momo inlet est tltat I kcly t·" be DfQJUGICed," (2) "trc clo;,ure mu:: be no brr3dcr Ll1an necessary to protect that rnterest," (3) "the tn~l court must con. dcr re

~cporter's I-Iundbook- Judir.:iul Access: The Reporter's Right of Access To The Judicial S... Page 4 of 8

A. If A Judicial Proceeding Is Closed Or About To Be Closed

An ~ttorney ot JUdge propose' l JStng a hca•·.ng or other juGICIJI proccer 1g JUSt a,; il1•. to bcgtn, or a JUdge te!!s the press not to pr;nt what it JUSt heard or oo t·3 )a •. for contemr,r. In an ccr.erger>cy, there'' ttl" ttrne lor reading books or research. The Flonda First Amendment Hathr.c "'available ~t 1·800-337-3516, but there may not be nme cven fc·· that. Here ~re •ome pract1cal t

1. If there IS time to do so. nobly pur cd1tor or nC\'Io t: rector and. thee ugh 1-cr, your law; er. Ev 1 15 or 30 minutes ma1• be c'nough for your lawyer to get liWolvcd and prcv(;nt cia:· Jri! or ~t least assart your nghts

2. If there IS no t:me, as, fer exiiJmple, WhNe tho )Ud')e liten1lly IS about to rwle on a clo;urc rer~est, do notlc~ve tha cotirtroOir. Instead nave someone else make the c~ll to your ed;tor (for cxumple, 1f there 1s more than one reporter present, one can make tha cal! and the rest stay), and take the tollow.ng r.teps;

a. On JerJif of yourself, your PJP!l' or $ta,;on, ant! the pubhc, olJ,dge's court reporter) and ask for tile nght to lle heard through C.'unsel before the closed procec

2. Nv alter:1al1vt!~ to cla·~,lf e a~rc avaflab!i:, ot:1er t~l~n a c!1._r gc of venui':!, wh1-::h would pr·otc::t the .atJm!ntstrution of JLStlce; and

3. Closun~ would be eflecttve \'llthout be ng broaJcr than nece:;sary lo accon1plish tt11s purpose.

c. in federal court-· If you have the t1me, opportun:ty, and presei\ce of mmd, you might advtse lne court that the Urnted States Court of Ap;>eals for lhe Elcvcllth Crcu1t, !ollaw•ng an unbroi

~~poner's Handbook- Judicial Access: The Reponer's Right of Access To The Judicial S... Page 5 of 8

If closed prnceedmgs alr~ady l1av~ bo.gun!

1. Notify your ee11tor, ne'A'S du·.::.:tor, ~nd/or lwycr ,mmcdlat~ly. Send the Jlidge a wntt~11 obj~cl10n and request for access to the proceedings. (Any rcod•bl~ llanch·mttc" note mil do, preferably Including thtat.:ment suggested above). You snould ask a bail1fr, tl1c Judge's sPcretary, or oth~r court employee to deliver Lhe wntten Ob)cclion and requ~st to tt;e Judge Immediately. You should also request that U1e proceedings be stop;Jed untll e1ther a heann(J IS held or an appllcat10n for rev1ew of the court's closure order can bC! made to a h1gher court. fi possible, keep a copy of your note for your l11wy~r. •\s w1th the "about to t'u closed" .,,tuation, you may need to use the F~rst Amcndme11t Hotlme.

Z. Ju~t as you Sllotdd not refuse to leave a c~u·~room \•;hen ordt:r•cd to do so, do nat attempt to force y:>ur w~y nto a closed courtroom, a!though there 15 f'1o harm In ask1t1g.

0. If You Are Denied Access To Court Records

As w1th court proceedings, lf•.,,re IS a presumptive ~nd fundamental nght or accc~~ to court records. Here arc some t1ps on what to do 1f access 15 den,cd;

1. ir you ere p•evenled frc.m ·nspc :tmg and copymg documents of any court. whether ;tate or federal, and there"' an 1mmed1ate need far accc>s (wh1ch :;!1owld be unusual', r.)llfy your cd1tor and cons1dcr us1ng the fl(st Amendment Hotiinl!, In any event you should consult with your et:l;tor.

2. If there 15 no lmmed,Jt~ need, you srould doth

Reporter's Handbook - Judicial Access: The Reporter's Right of Access To The Judicial S... Page 6 of 8

court.

3. l•lakc your request for a ccpy of the order on the record. ff r:o co~rt reporter os avatlablc or of the Judoe refuses to do so "en the 1ecord," dclrvQI a le~ter to tr1e judge and \h~ clerk ci the court settmg forth your requesrs. Keep~ copy.

4. Object to the order and ask for the oppNtunll'l to be heard immed•atelv through counsel.

5. Advise the JUdge on tl1e record that it rs your understandmg that no such order .s ever valid.

6. Do not enter 1nt:> an a~rccment \lith tile Judge r,Jl to pul:1rs!1 mattcr5 rl'.ltrng to t~c ptoce:d,,yr;, even 1f your access to the proceedin~ is cond1t1oned or: such an agrecm ~nt. lf the judge sec~s such an ogrcement, state that you have no ~uthonty to make such agreements and hav!! bcl!n instructed 11ot t.J do 3o b l your· edltor the most e•traord.nar)' c~rcum>tances.

2. You h!Jvc a. coonmon !uw nQl'it to att!!nd prctnal bearmg5 and ot.:i)t·r hl!~rmgs :lr proccedmgs whteh nre conducted as part of a lt:~wsu1t, except 111 ccrtam narn_ wly pre.scribC!d on:t.!msta.ncc . '

3. NcvQr agree not to pCJblr~h a rep~rt of th" proceeding m rctum for the Judge's agreem!!nt to let you atccnd.

r.. You (preferab'y throug11 your 11ew:; orgJnr;:~t ~n·.s lawyer) nhist be Q'VC, not1ce ~nd an opportunity to be heard before you may be l!>:clud~d fl'orn a heari11g Ot tttal, C.1' der:1e:d .>eeL :; to r:aur'l!'ccorjs.

5. lf you learn from a ·.ource what tran:;p~red at a closed proceeding or whJt rs m ~sealed record, you are free to publish.

6. You are not reqUired to e B.A. (rom Colgate Vni,err.•ly •n 1970, and his J.D. from Columb1e UniverSity 111 1973. HIS cl:cnts rncl\.lde The Miami Heruld, New Tim, T/Je A .soc:ul!ed Press, \VPEJF·ChiJnlld 25 tn 1'/C,·l Palm Ocach and D.1ily ausme.-;s RCVJCI? ·In f·liami. He established the Flonda F!Cst Arncmdment Hothnc.

K

Reporter's Handbook- Judicial Access: The Reporter's Right of Access To The Judicial S... Page 7 of 8

after gradual• •g ~umma cum '.wde from Nova Sc.,theastem Umverstty, Shepard Bread Law Center. She receiveo her B.A. from Pepperdine Umvers!l;y 1n 2000. Ounng law .chool, -;t•e •:.es a Sen tor Staff 1·1ember of Nova Law Rev•ew and comp.;ted i:IS ac Advocate m the Jessup lr>tcrnatlOral Hoot Court compet•t.on.

s~ck t~ Tcp

FOOTNOTES

Article l, Sect1on 24 or the Flor

STATE OF FLORIDA

RICA.ROO "RICK'' MORALES, Ill CHAIR

.JUDICIAL QUALIFICATIONS COMMISSION

HON. KrnRY I. E\I'~OER \I'IC£ ·CHAtR

MJCHAE:L L. SCHNEJO!:R GENERAL COUNSEL

ALEXA.NOER J_ WU..UAMS AS~H.5TANT GENERAL. COUHSEL

POST OFFICE SOX I 4 I 06

TALLAHASSEE. FLORIDA 323 I 7

(650) 466-1 58 I

January 14, 2015

Robert A. Sweetapple, Esq. Sweetapple, Brockert & Varkas, P.L. 20 S.E. 3rd St. Boca Raton, FL 33432-4914

Re: Public Records Request dated October 9, 2014

Dear Mr. Sweetapple:

This letter will respond to your letter to the Judicial Qualifications Commission ("JQC") dated January 9, 2015, and received by the JQC after-hours on that same date.

As you know, the JQC is a state constitutional body created by art. v, section 12 of the Florida Constitution. Despite any language in Florida Rule of Judicial Administration 2.420 relied upon by you, the public's right to access records of the JQC is not enlarged by Ru1e 2.420. Rather, art. v., section 12(a){4) of the Constitution specifically provides that "[u]ntil formal charges against a justice or judge are filed by the investigative panel with the clerk of the supreme court of Floridat all proceedings by or before the commission shall be confidential .... " That provision has not been overridden by Rule 2.420 nor any court precedent.

Nothing contained herein should be construed as waiving any evidentiary privilege or work product belonging to the JQC.

Yours truly,

·tl J ·,...-·) c.,_"-..... -*.-" A: ... ~.J?,~..A__/

Michael L. Schneider Executive Director and General Counsel

l:XHlBIT