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Elcetronically liled 10/U1/20l3 |1:08:27 ANI
RECEEVFD. 10/1/200 l J:l3:33. Thomm D 161]. (1erk. Suprcmc Court
BEFORE TI lE F1 ORlDA JUDlCIAI. QUAl lFlCATIONS COMMISSION STATE OF Fl.ORIDA
SCl3-1333 INQUIRY CONCERNING A JUDGE No. 12-613
1.AURA M. WATSON
MEMORANDUM OF LAW IN RESPONSE TO THE JOC's RESPONSE TO JUDGE WATSON'S MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JUDRISDICTION
Notwithstanding the fact that the allegations contained in the Notice of
Formal Charges are demonstrably false and occurred over ten years ago, a circuit
court judge is a constitutional officer with vested rights in the office, and
constitutional guarantees of substantive and procedural due process and equal
treatment under the law pursuant to the state and federal constitutions. This
prosecution not only violates Judge Watson's constitutionally guaranteed rights,
but is a transparent elfort by some to use the JQC to impact existing and ongoing
litigation on a pending motion for substantial attorney's fees and costs as well as a
pending Libel and Slander. Malicious Prosecution. and Abuse of Process civil
action.
The JQC's oflicial Statement of the Case and Statement of the Facts
adulterates the truth and reads as if the JOU has a stake in the outcome of pending
civil litigation. As to the cited case law, the Commission's advocates deceptively
omit critical facts of those cases which support Judge Watson's claim that the JQC
has only exercised jurisdiction over a judge for violations of the Florida Rules of
Professional Conduct when the judge committed at least one violation: (1) while in
judicial office, or (2) while running for judge or acting in a judicial capacity. If one
or two are satisfied, then the JQC will (3)"investigate[d] events occurring within
a reasonable time but not exceeding two years behind its origin where such
investigation and matters are germane to an alleged act of misconduct ...as a basis
for misconduct in a present office only when such investigation is in relation to a
charge of misconduct occurring in a present term of office." Turner v. Earle, 295
So.2d 609, 618 (Fla. 1974).
L The JQC's Misstatement of the Case and Facts
The JCQ's official Statement of the Case and the Facts, like the Notice of
Formal Charges, was ready-made from the Third Amended Complaint filed in the
case of Stewart Tilghman Fox & Bianchi, PA, William C. Hearon, PA, and
Todd S. Stewart, PA v. Kane & Kane, Laura M Watson, PA et. al Case No.:
502004CA006138XXXXMBAO filed in the Circuit Court in and for Palm Beach
County, Florida ("Attorney's Fees Litigation"). A comparison of these documents
2
highlights -- better than Judge Watson could have brought out - the appearance of
professional impropriety and unfortunate cronyism that permeates these
proceedings, and the monetary conflicts of interest which serve as the backdrop to
these formal charges. It is a stark admission that some members of the JQC seek to
remove a duly elected circuit court judge because of their alliances with various
insurance companies and the Stewart Lawyers, nothing more. The numerous
misstatements found in the JQC's Response to Judge Watson's Motion to Dismiss
for Lack of Subject Matter Jurisdiction are addressed below.
A. The JQC's First Factual Misstatement
The Statement of the Case and the Facts deceptively leaves the impression
that the issuance of Judge Crow's April 2008 order was the first time the matter
giving rise to The Florida Bar's inquiry was discovered or, with due diligence
should have been discovered, as required by Rule 3-7.16(a), Rules Regulating the
Florida Bar. Nothing could be further from the truth.
The allegations in the JQC's Notice ofFormal Charges -- which were raised
by the Stewart Lawyers in their Bar Complaint -- are the very same allegations
raised in the underlying Attorney 's Fees Litigation in 2004 by the Stewart Lawyers
against Judge Watson and others. In October 2005, the Stewart Lawyers filed their
Third Amended Complaint which alleged: "Defendants further acted to terminate
plaintiffs' services by making it a condition for the healthcare providers to obtain
the settlement proceeds and defendants then distributed the majority of the attorney
fees to themselves, notwithstanding The Florida Bar Rules governing trust
accounts and plaintiffs' claim to the attorney fees." (emphasis added). Exhibit
"A" par. 21. All of the allegations contained in the Notice of Formal Charges
duplicate in one form or the other the allegations in the underlying Attorney's Fees
Litigation id. par.10, 13-15, 17- 20, 21, 26, 30-32, 34-36, 38-42. The Notice of
Formal Charges is attached as Exhibit "B" for the Court's convenience.
B. The JQC's Second Factual Misstatement
Secondly, the JQC claim that Judge Crow did not vindicate Judge Watson is
meant to leave the Hearing Panel with the impression that the trial court found
Judge Watson violated the Rules Regulating The Florida Bar. JQC's Response to
Judge Watson's Motion to Dismiss for Lack of Subject Matter Jurisdiction, p. 4.
Though Judge Crow sent a copy of his order to The Florida Bar to determine if any
action should be taken, he also stated that "[w]hile there are serious and strong
concerns as to the conduct by some of the Defendant attorneys involved in this
litigation, those issues need to be resolved in a separate forum." (emphasis added).
4
Crow op. 2 ' Further, the trial court did clear Judge Watson of all allegations,
finding:
•042that she did not breach her fiduciary duties to the parties;
•042that she did not engage in constructive fraud;
•042that she did not fraudulently induce the Stewart Lawyers to represent
the health care providers who were the Plaintiffs in the Gold Coast
litigation;
•042that she was not responsible to the Stewart Lawyers in Quantum
Meriut/ Unjust Enrichment;
•042And importantly, the trial court ruled that neither Judge Watson nor
Watson, PA. was required to keep the attorney's fees and costs funds
received from the individual PIP cases in a constructive trust.
Importantly, the alleged violations outlined in Judge Crow's order did not
include allegations of trust account violations pursuant to Rule 5-1.l(f). He held
that in order to impose a constructive trust on the settlement funds, the Stewart
Lawyers were required to prove "the elements of constructive trust [which] are: (1)
Pursuant to the Bar Rules Judge Crow had the option to keep the discipline case if he were concerned with the alleged violations. Pursuant to Rule: "[t]he jurisdiction of the circuit court shall be concurrent with that of The Florida Bar under these Rules of Discipline. The forum first asserting jurisdiction in a disciplinary matter shall retain the same to the exclusion of the other until the final determination of the cause." Rule 3-3.5, Rules of Discipline.
5
a promise, express or implied; (2) a transfer of the property and reliance thereupon;
(3) a confidential relation; and (4) unjust enrichment." Crow op. p. 20. Crow found
that the requirements of constructive trust were not proven against Judge Watson
or Watson, P.A. Contrary to the JQC's assertions, all of the claims against Judge
Watson were flatly rejected by the trial court. In a civil case, a trial court
vindicates a defendant by entering judgment in their favor and issuing an order that
they go hence without day.
C. The JQC's Third Factual Misstatement
A third factual inaccuracy included in McGrane's response is that Judge
Watson and "the PIP lawyers individually and collectively appealed his[Crow's]
opinion to the Fourth District Court of Appeal..." JQC's Response to Judge
Watson's Motion to Dismiss for Lack of Subject Matter Jurisdiction, p. 4. Judge
Watson did not individually appeal the Final Judgment. Watson P.A. sought an
appeal on the Quantum Meriut/ Unjust Enrichment claim and Larry Stewart filed a
cross appeal against Judge Watson individually, which she successfully defended.
All of the appeals were consolidated by the Fourth District Court of Appeal -- there
was no individual and collective effort by the PIP lawyers to appeal the trial
court's judgment.
6
D. The JQC's Fourth Misstatement
The next misstatement by the Commission is that Judge Crow referred the
matter to The Florida Bar for its independent determination as to whether or not
Judge Watson had violated any Rules Governing Lawyers, and that "[t]he Florida
Bar concluded her actions did, serving her with notice of these complaints on June
26, 2008." JQC's Response to Judge Watson's Motion to Dismiss for Lack of
Subject Matter Jurisdiction, p. 4. To be clear, no action was taken by The Florida
Bar as a result of Judge Crow's order. When The Florida Bar failed to act on the
trial court's order, Larry Stewart filed a complaint against Judge Watson. The
Florida Bar, however, made no determination one way or the other as to whether or
not Judge Watson had violated any Rules Governing Lawyers. As is required by
rule, The Florida Bar advised Judge Watson of the complaint that was being
investigated. See Rule 3-7.4(h), Rules Regulating the Florida Bar. If the events
unfolded as the JQC suggested, that is, that The Florida Bar found probable cause
in June 2008 that Judge Watson violated Bar Rules, then bar counsel was required
to promptly prepare a record of its investigation and file a formal complaint. See
Rule 3-7.4(l), Rules Regulating the Florida Bar. The Florida Bar made no
probable cause or other findings related to this matter in 2008.
The matter remained with Bar Counsel and was not assigned to a grievance
7
committee until four years later when Watson decided to run for circuit court
judge. The Florida Bar issued its probable cause finding on or about October 22,
2012, during the early voting phase of the general election. When an inquiry is
raised or a complaint presented to the Bar, "The Florida Bar under these Rules
shall be commenced within six years from the time the matter giving rise to the
inquiry or complaint is discovered or, with due diligence, should have been
discovered." Rule 3-7.16(a), Rules Regulating the Florida Bar. The Florida Rules
of Civil Procedure are applicable to proceedings under the Rules Regulating the
Florida Bar. See Rule 1-3,8(d), Rules Regulating the Florida Bar. Thus, the
requirement that the Bar commence the proceedings within six years means that
"[e]very action of a civil nature shall be deemed commenced when the complaint
or petition is filed..." Rule 1.050, Fla. R. Civ. P. The Florida Bar never filed a
complaint against Judge Watson for these 2002-2004 alleged Bar Rule violations.
II. The Florida Bar and the JQC do not have Concurrent Jurisdiction
Notwithstanding the fact that the allegations contained in the Notice of
Formal Charges are demonstrably false and occurred over ten years ago, a circuit
court judge is a constitutional officer with a property right in the office, and
constitutional guarantees of substantive and procedural due process and equal
8
treatment under the law pursuant to the state and federal constitutions. This
prosecution not only violates Judge Watson's constitutionally guaranteed rights,
but is a transparent effort to use the JQC to impact existing and ongoing litigation
on a pending motion for substantial attorney's fees and costs as well as a pending
Libel and Slander, Malicious Prosecution, and Abuse of Process civil action.
Though Judge Watson maintains that the statute of limitations for The
Florida Bar expired because The Florida Bar did not file its complaint within six
years from the time the matter giving rise to the inquiry or complaint is discovered
or, with due diligence, should have been discovered for purposes of this motion
the Court need only consider that The Florida Bar and the JQC do not have
concurrent jurisdiction. Rule 3-3 addresses the Jurisdiction to Enforce the Rules
Regulating The Florida Bar:
The exclusive jurisdiction of the Supreme Court of Florida over the
discipline of persons admitted to practice law shall be administered in
the following manner subject to the supervision and review of the
court. The following entities are hereby designated as agencies of the Supreme Court of Florida for this purpose and with the following
2 A waiver of statute of limitations must be for a defmite period of time and must be waived by an express agreement. The elements of waiver are the existence of a right, the actual or constructive knowledge of the right; and the intent to relinquish the right. Progressive Express Insurance Company v. Camilo, 80 So.3d 394, 400(Fla. 4* DCA 2012). The JQC has neither plead nor argued these elements, and no waiver of the statute of limitations was ever contemplated, intended or executed by Watson.
responsibilities, jurisdiction and powers. The board of governors,
grievance committees, and referees shall have jurisdiction and
powers... Rule 3-3.1, Rules Regulating The Florida Bar.
Though the circuit court sometimes has concurrent jurisdiction with that of
The Florida Bar, (See Rule 3-3.5, Rules Regulating The Florida Bar), the JQC does
not. Even when the JQC files a formal complaint against a judge, The Florida Bar
has no jurisdiction over the respondent until "the respondent is no longer a judicial
officer, and the facts warrant imposing disciplinary sanctions." Rule 3-3.2(b)(6),
Rules Regulating The Florida Bar. When a lawyer seeks judicial office, The Rules
Regulating The Florida Bar require compliance with the Code of Judicial Conduct.
See Rule 4-8.2(b), Rules Regulating The Florida Bar. If a violation of the Code of
Judicial Conduct occurs during the candidacy and the attorney is not elected, The
Florida Bar has jurisdiction over the violations. If the lawyer is elected, then any
alleged violations fall within the jurisdiction of the JQC.
Pursuant to the JQC's own rules, the subject matter of the Investigative
Panel is limited to determining:
[it] a judge is guilty of [1] willful or persistent failure to perform judicial duties, [2] or conduct unbecoming a member
of the judiciary demonstrating a present unfitness to hold
office, [3] or that the judge has a disability seriously
interfering with the performance of the judge's duties, which is, or is likely to become, permanent in nature, may make an investigation to determine whether formal charges should be
10
instituted. (emphasis added). Rule 6(a) FJQCR.
The language quoted above mirrors that of the Florida Constitution. See:
Article V. section(c) (1). The clear and unambiguous language of both the
Florida Constitution, as amended, and the FJQCR restricts the jurisdiction of
the JQC to conduct of a person while a judge, a candidate for judicial office,
or someone performing a judicial function such as a child support hearing
officer or special magistrate. The nexus for the JQC which gives them
standing to investigate a judge is that the judge engaged in conduct (1) while
in judicial office, or (2) while running for judge or acting in a judicial
capacity. If one or two are satisfied, then the JQC may investigate events
occurring within a reasonable time, but not exceeding two years, behind its
origin where such investigation and matters are germane to an alleged act of
misconduct in a present office. In the case at bar, the JQC has no standing
and no jurisdiction over the alleged bar violations which occurred ten years
ago.
III. The JOC's Misstatement of the Law
As to the case law cited by the JQC, critical facts in the cases are deceptively
omitted which actually support Judge Watson's claim that the JQC has only
11
exercised jurisdiction over a judge for violations of the Florida Rules of
Professional Conduct when the judge committed at least one violation (1) while in
judicial office, or (2) while running for judge or acting in a judicial capacity. If one
or two are satisfied, then the JQC will (3) "investigate[d] events occurring within
a reasonable time but not exceeding two years behind its origin where such
investigation and matters are germane to an alleged act of misconduct ...as a basis
for misconduct in a present office only when such investigation is in relation to a
charge of misconduct occurring in a present term of office." Turner v. Earle, 295
So.2d 609, 618 (Fla. 1974).
The JQC has failed to cite to a single case wherein the JQC investigated a
judge who did not commit at least one act of misconduct after taking the bench
which gave them standing to investigate the allegations. The cases relied upon by
the JQC all fit within the criteria cited by Judge Watson as follows:
•042 (Fla. 1984) In this case, all of the charges filed by theIn re Sturgis, 529 So.2d 281 -
JQC related to conduct while Judge Sturgis was a judge. "Said notice was framed in
seventeen counts alleging violations while in service as a circuit court judge." id.
These charges included displaying a handgun while presiding over hearings, exparte
communications with litigants, practicing law while a sitting judge, and not handling
judicial matters appropriately. (Satisfies #1 above, all conduct occurred while in
12
judicial office).
�042 re Davey, 645 So.2d 398, 399-400, 409-10 (Fla. 1994) -- At the time of theIn
investigation, Davey was a sitting judge. Though it is true that the JQC investigated
events that occurred ten years before, all of the actions investigated by the JQC
occurred only after Davey filed to run for election to become a judge, and while he was
closing down his law practice before he assumed office. (Satisfies #2 above, all
conduct occurred while running for judge).
�042In re Speiser, 445 So.2d 343 (Fla. 1984) -- Prior to his ascent to the circuit court, Judge
Speiser had been an assistant state attorney handling drug related cases. He resigned
from that position on July 1, 1982 to qualify for election as a judge. On September 7,
1982 he was nominated to the position of circuit court judge. The next day he became
associated with a criminal defense firm and allegedly disclosed confidential
information related to weaknesses in drug related cases being handled by the State. On
November 2, 1982 Speiser was elected as a circuit court judge. In November of that
same year, Speiser allegedly secretly met with an assistant state attorney and disclosed
weaknesses in the drug related cases handled by the firm with which he was
associated. On January 4, 1983 he assumed office. The JQC and the Judge entered into
a stipulation regarding these matters. (Satisfies # 2, and #3 above, all conduct occurred
while either seeking nomination for judge, running for judge, or was recently elected
13
as judge).
•042In re Byrd, 511 So.2d 958 (Fla. 1987) -- Judge Byrd was a circuit court judge from
1982-1988. As the Supreme Court stated: "The evidence is not in dispute that Judge
Byrd, while practicing as an attorney at law and on one occasion while serving as a
Circuit Court Judge, violated the Code of Judicial Conduct." id. at 960. Between 1981
and 1983, Judge Byrd misappropriated funds that belonged to his clients and
improperly paid taxes. The JQC and the Judge entered into a stipulation regarding
these matters. (Satisfies #1, #2, and #3 above, all conduct occurred when Byrd was in
judicial office, was running for judge, or was conduct investigated within two years of
the election that was germane to the judicial violations).
•042 Berkowitz, 522 So.2d 843(Fla. 1988) the judge had participated in mailingIn re -
sample ballots suggesting partisan endorsements of candidates in a nonpartisan race,
had practiced law while sitting as a judge, misused clients trust account money, lied to
the JQC, failed to produce trust records and failed to file accurate tax returns. (Satisfies
#1, #2, above, all conduct occurred while in judicial office or running for the elected
position).
•042 So.2d 574 (Fla. 1990) In 1987, Capua took office in Miami-Dade.In re Capua, 561 -
In 1989 his son was arrested and Judge Capua ordered the shift commander to release
him without a bond. During the investigation the JQC investigated conduct from 1985
14
http:�042So.2d
1988 including some offenses when he was practicing law. The JQC and the Judge
entered into a stipulation regarding these matters. (Satisfies #1, #2, and #3 above, all
conduct occurred when Capua was in judicial office, was running for judge, or was
conduct investigated within two years of the election that was germane to the judicial
violations).
•042 Carnesoltas, 563 So.2d 83 (Fla. 1990) Judge Carnesoltas filed for election inIn re
1988. During her election she was representing the Outlaws motorcycle club in federal
court. On October 19, 1988 she used profane language in court during the proceeding.
In addition, after taking the bench while she was presiding in the traffic division, she
ridiculed, humiliated, and demeaned an attorney who appeared before her. The JQC
also investigated allegations that in 1987 while practicing law, she had an emotional
outburst towards opposing counsel during a deposition. (Satisfies #1, #2, above, all
conduct occurred while in judicial office or running for the elected position). The JQC
and the Judge entered into a stipulation regarding these matters.
•042 So.2d 581 (Fla. 1991) In 1984, Judge Meyerson was elected asIn re Meyerson, 581 -
a County Court Judge. He took that office in January 1985. While he was running for
office and after he took the bench, during the time he was closing his office, he failed
to timely pay trust funds to his clients. After he took the bench, he failed to comply
with the financial disclosures required by the constitution and failed to obtain written
15
http:�042So.2d
consent of his clients for the division of legal fees. (Satisfies #1, #2, above, all conduct
occurred while in judicial office or running for the elected position). The JQC and the
Judge entered into a stipulation regarding these matters.
�042In re Hapner, 718 So.2d 785 (Fla. 1998) -- Judge Hapner neglected her clients' cases
during the time she ran for judicial office. She also gave incomplete, inaccurate, and
misleading testimony during her domestic violence case against her husband during the
same time frame. Ultimately, in her divorce case she initially failed to comply with a
court order to produce the domestic violence tapes and then when she did, there were
no threats by her husband on the tapes. (Satisfies #1, #2, above, all conduct occurred
while in judicial office or running for the elected position).
�042In re Ford-Kaus, 730 So.2d 269 (Fla. 1999) -- The charges related to conduct that
occurred during the time she was running for judge. During that time she failed to
properly handle an appeal for a client and then knowingly misrepresented facts to her
client and the Hearing Panel after she took the bench related to this matter. (Satisfies
#1, #2, above, all conduct occurTed while in judicial office or running for the elected
position).
There is not a single reported case wherein the JQC has exercised jurisdiction
under facts similar to Judge Watson's case. The position claimed by the JQC that the
1974 constitutional amendment was intended to "confer such jurisdiction upon the
16
Commission to investigate and discipline a judge for conduct whenever it occurs, as
long as that conduct demonstrates a present unfitness to hold office"3 not only lacks
reason and justice, but threatens to create a chilling effect on all judges.
Taken to its logical extreme, the JQC's position of being able to go back over 10
years before someone ever thought of becoming a judge would allow the JQC to
investigate any judge, at any time, for any conduct during the course of his or her life.
It is the epitome of the slippery slope as judges would become sitting targets by anyone
with a motivation to go after that judge. Youthful indiscretions would not be off limits;
the exercise of free speech prior to becoming a judge would be fair game; the right to
privacy would not apply; and the will of the electorate could be eviscerated by political
motivations. Such an interpretation would permit abuses by the JQC to manipulate the
system to serve its appointees' own agenda.
Literally, no legitimate state interest could be served by such an interpretation. If
today, the JCQ can step into the proverbial "shoes" of The Florida Bar and prosecute a
lawyer for alleged wrongdoing that The Florida Bar never timely pursued, then
tomorrow, the JQC can turn over any stone and reexamine any circumstance in a
judge's life. Even if the panel genuinely seeks to protect against judicial unfitness,
allowing for an unlimited look-back period goes well beyond the JQC's
JQC's Response to Judge Watson's Motion to Dismissfor Lack ofSubject Matter
Jurisdiction, p. 5. I7
constitutionally mandated role of addressing the conduct of judges - not life-long
conduct of human beings or even lawyers for that matter.
The state constitution and statutes treat judges and lawyers differently.
Florida has a dual system of discipline. The disciplinary systems are completely
different based upon the role of a lawyer versus the role of a judge. The alleged
conduct of Judge Watson was highly scrutinized. First during the trial which
began in 2004, then when the Florida Bar investigated in 2008, and lastly during
the election of 2012 wherein the events were the subject of newspaper articles and
political blogs.
The JQC has violated and continues to violate Judge Watson's substantive
and procedural due process rights guaranteed by the Constitution of the State of
Florida and the Fourteenth Amendment of the United States Constitution, 42
US.C.A sec. 1983 by initiating this inquiry into allegations for which The Florida
Bar never filed and could never legally file a formal complaint because of the
expiration of the statute of limitations.
III. Conclusion
Notwithstanding the fact that the allegations contained in the Notice of
Formal Charges are demonstrably false and occurred over ten years ago, a circuit
18
court judge is a constitutional officer with a property right in the office, and
constitutional guarantees of substantive and procedural due process and equal
treatment under the law pursuant to the state and federal constitutions. This
prosecution not only violates Judge Watson's constitutionally guaranteed rights,
but is a transparent effort to use the JQC to impact existmg and ongoing litigation
on a pending motion for substantial attorney's fees and costs as well as a pending
Libel and Slander, Malicious Prosecution, and Abuse of Process civil action.
There is nothing in the Constitution which permits the JQC to investigate
conduct occurring ten years ago when the person was a practicing attorney and not
a judge, a candidate for judicial office, or performing judicial functions. These
allegations should be dismissed for lack of subject matter jurisdiction. The JQC
lacks standing to continue with this cause.
Respectfully submitted,
The Honorable Laura M. Watson Circuit Judge, 17* Judicial Circuit Room 1005B 201 SE 6* Street Fort Lauderdale, Florida 33301 Tel.: (954) 831-6907 jwatson@l 7th.flcourts.org
/s/ Laura M. Watson LAURA M. WATSON Florida Bar No.: 476330
19
http:7th.flcourts.org
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished by email to: Miles A. McGrane, 111, Esq. [email protected]
[email protected] McGrane Law Firm, Special Counsel, One Datran
Center, Ste. 1500, 9100 South Dadeland Boulevard, Miami, Florida 333156; Lauri
Waldman Ross, Esq. [email protected] Counsel to the Hearing Panel of
the JQC, Ste. 1612, 9100 South Dadeland Boulevard, Miami, Florida 333156;
Michael L. Schneider, Esq. [email protected] General Counsel, 1110
Thomasville Road, Tallahassee, Florida 32303, this 30th day of September 2013.
Pursuant to FJQCR Rule 10(b) a copy is furnished by email to: The
Honorable Kerry I. Evander, [email protected], Chair of the JQC, 300 S.
Beach Street, Daytona Beach, FL 32114.
/s/ Laura M. Watson LAURA M. WATSON
20
mailto:[email protected]:[email protected]:[email protected]:[email protected]