SC13-1333 Watson Request for Judicial Notice of JEAC · PDF file · 2013-11-19campaign contributions and public support from any person or corporation authorized by law. A candidate

Electronically Filed 11182013 042045 PM ET

RECEIVED 11182013 162346 John A Tomasino Clerk Supreme Court

BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA

SC13-1333 INQUIRY CONCERNING A JUDGE No 12-613

LAURA M WATSON

JUDGE WATSONS REQUEST FOR JUDICIAL NOTICE OF REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING

CODE OF JUDICIAL CONDUCT OF OCTOBER 27 2003

Pursuant to Rule 12(a) and Florida Evidence Code sect 90202(6) Judge

Laura M Watson moves this court to take Judicial Notice of In re Report of the

Judicial Ethics Advisory Committee Regarding Code of Judicial Conduct of

October 27 2003 submitted in accordance with the Supreme Courts opinion in

Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So2d 77 (Fla

2003)

Respectfully submitted

The Honorable Laura M Watson Circuit Judge 17th JudiCial CirCuit Room 1005B 201 SE 6th Street Fort Lauderdale Florida 33301 Tel (954) 831-6907 jwatsonl 7thficourtsorg

s Laura M Watson

LAURA M WATSON Florida Bar No 476330

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished by email to Miles A McGrane III Esq milesa meuranelawcom

lisara meuranelawcom The McGrane Law Firm Special Counsel One Datran

Center Ste 1500 9100 South Dadeland Boulevard Miami Florida 333156 Lauri

Waldman Ross Esq RossGirteniacutea Laurilawcom Counsel to the Hearing Panel of

the JQC Ste 1612 9100 South Dadeland Boulevard Miami Florida 333156

Michael L Schneider Esq mschneidern floridaiaccom General Counsel 1110

Thomasville Road Tallahassee Florida 32303 Robert A Sweetapple

Pleadinusrcisweetapplelawcom Co-counsel for Judge Watson 165 East Boca

Raton Road Boca Raton Florida 33432-3911 this 18th day of November 2013

Pursuant to FJQCR Rule 10(b) a copy is furnished by email to The

Honorable Kerry I Evander evanderk uuml ilcourtsoru Chair of the JQC 300 S

Beach Street Daytona Beach FL 32114

s Laura M Watson LAURA M WATSON

IN THE SUPREME COURT OF FLORIDA

Case No

IN RE REPORT OF THE JUDICIAL ETHICS ADVISORY COMMITTEE REGARDING CODE OF JUDICIAL CONDUCT

The Judicial Ethics Advisory Committee (Committee) submits this report in

accordance with this Courts opinion in Inquirv Concerning a Judge No 99-09

re Patricia Kinsey 842 So 2d 77 (Fla 2003) certiorari denied --- SCt ---

2003 WL 2148992 72 USLW 3007 72 USLW 3222 72 USLW 3236 (US Fla

Oct 6 2003)(No 02-1855) The Committee has studied that decision and

concludes that an amendment to Canon 7A(3)(d) is warranted Accordingly the

Committee respectfully requests consideration of certain amendments to the Florida

Code of Judicial Conduct See In re Code offudicial Conduct 643 So 2d 1037

(Fla 1994)(adopting the new Code of Judicial Conduct) In Petition of the

Committee On Standards ofConduct Governing Judges 698 So 2d 834 (Fla

1997) this Court authorized the Committee to submit formal proposals and

recommendations relating to the Code of Judicial Conduct This report is submitted

pursuant to that opinion and the enabling authority conferred on the Committee

The requested changes to the Code of Judicial Conduct and the rationale for these

changes are set out below

L Canon 7A (3)(d)

In Inquiry Concerning a Judge No 99-09 re Patricia Kinsey 842 So

2d 77 (Fla 2003) certiorari denied --- SCt --- 2003 WL 2148992 72 USLW

3007 72 USLW 3222 72 USLW 3236 (US Fla Oct 6 2003)(No 02-1855) the

Florida Supreme Court asked this Committee to study whether it is appropriate for

a judicial candidate to make public comments on pending cases where such

comments could affect the future outcomes of those pending cases

In Kinsey the Judicial Qualifications Commission found that Judge Kinsey

engaged in a pattern of improper conduct during the course of her 1998 election

campaign for the Office of County Court Judge for Escambia County In charge

10 the Judicial Qualifications Commission found that the judge violated Canons 1

2A 3 (B)(5) and (9) and Canon 7A (3)(d)(ii) by making comments that could have

affected the future outcome of three criminal cases two of which were still

pending

Because Canons I 2 and 3 are not applicable to judicial candidates who are

not yet judges the Supreme Court reviewed this charge against Judge Kinsey in

light of Canon 7A (3)(d)(ii) and concluded that there was not clear and competent

evidence to show that Judge Kinsey violated Canon 7A (3)(d)(ii) The court said

Although Judge Kinsey commented on two cases still pending these cases were not likely to come before her if she was elected to the office of county court judge-the two pending cases involved serious felonies which would be heard in circuit court We are concerned however as to whether it is

appropriatefor a judicial candidate to make public

comments on pending cases where such comments could

affect theirfuture outcomes and accordingly refer this

matter to the Judicial Ethics Advisory Committeefor study

[emphasis supplied]

The Committee has studied this request and unanimously recommends that

Canon 7A (3)(d) be amended by adding a new subsection that specifically

incorporates the substance of the first and last sentences of Canon 3B(9) which

provides in pertinent part

(9) A judge shall not while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing

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This Section does not apply to proceedings in which the judge is a litigant in a personal capacity

This should be done because Canon 3B(9) does not apply to judicial candidates

who are not yet judges The Committee also suggests modification of the

Commentary on Canon 7A (3)(d) to delete the following reference to Section 3B

(9)

See also Section 3B(9) the general rule on public comment by judges

The proposed amendment would create 7A (3)(d)(iv) and provide as follows

(3) A candidate for judicial office

(d) shall not

(iv) while a proceeding is pending or impending in any court make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing This section does not apply to proceedings in which the judicial candidate is a litigant in a personal capacity

The proposed amendments to Canon 7 and its commentary are included in the

appendix attached to this report at pages A l-7 8-12

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II Canon 7C(1)

This Committee further recommends that a study be undertaken and

comments be solicited by the court regarding whether Canon 7C(l) should be

amended in light of the decision in Weaver v Bonner 309 F3d 1312 (11 Cir

2002)

In Weaver the Eleventh Circuit held that Georgias canon 7(B)(2) which

prohibits judicial candidates from personally soliciting campaign contributions and

publicly stated support is unconstitutional Georgias canon like Florida Canon

7C(l) allows the candidates election committee to engage in these activities

Floridas Canon 7C(l) contains a prohibition like Georgias canon that precludes

personal solicitation by judicial candidates of campaign contributions and publicly

stated support The Weaver decision may render unenforceable the provisions of

Floridas Canon 7C(l) that prohibit a candidate for judicial office including an

incumbent judge from personally soliciting campaign funds or soliciting attorneys

for publicly stated support Neither party to Weaver sought review by the United

States Supreme Court

There are three possible courses of action in response to the Weaver

decision

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tamend canon 7C(l) to delete the prohibition 2do nothing 1do not amend the canon pending further development of the law

It should be noted that the ABAs recent revisions of the Model Code of

Judicial Conduct made no change in corollary canon 5(B)(1) which precludes

candidates for judicial office or judges from personally soliciting funds to support

the judges candidacy See pages 13-16 of the appendix accompanying this report

Georgia has now proposed amendments to its Code of Judicial Conduct that delete

the prohibition against judicial candidates personally soliciting campaign funds See

pages 17-21 of the appendix attached to this report

The Committee makes no recommendation except to suggest that the court

solicit comment regarding Weaver v Bonner and possible amendment of Canon

7C(l) to provide as follows

C Judges and Candidates Subject to Public Election

(1) A candidate including an incumbent judge for

a judicial office that is filled by public election between competing candidates 3hall not puounally 3ulich canipaign

fundo ui solicit attuinop fui publicly 3tated 3uppuu but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidates campaign and to obtain public statements of support for his or her candidacy Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law A candidate shall not use or permit the use of campaign contributions for the private benefit

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of the candidate or members of the candidates family

III Revision of Canon 7 in view of the Republican Partv decision

The committee also considered whether additional changes to Canon 7

should be made in view of the decision of the United States Supreme Court in

Republican Party ofMinnesota v White 536 US 765 122 SCt 2528 153 L

Ed 2d 694 (2002) There the United States Supreme Court held that the

announce clause of the Minnesota Code of Judicial Conduct was unconstitutional

because it violated the First Amendment

In discussing Canon 7 and the decision in Republican Party ofMinnesota v

White this Court in Kinsey stated as follows

In contrast to White Florida does not have an announce clause but instead adopted a more narrow canon which

provides as follows

A candidate for judicial office shall not

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] (ii) make statements that commit or appear to commit the candidate with respect to cases controversies or issues that are likely to come before the court

Fla Code Jud Conduct Canon 7A (3)(d)(i)-(ii) The commentary to the canon stresses the concept that a candidate

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should emphasize in any public statement the candidates duty to uphold the law regardless of his or her personal views

[FN6]

It is beyond dispute that Canon 7A (3)(d)(i)-(ii) serves a compelling state interest in preserving the integrity of our judiciary and maintaining the publics confidence in an impartial judiciary [FN7] A judicial candidate should not be encouraged to believe that the candidate can be elected to office by promising to act in a partisan manner by favoring a discrete group or class of citizens Likewise it would be inconsistent with our system of government if a judicial candidate could campaign on a platform that he or she would automatically give

more credence to the testimony of certain witnesses or rule in a predetermined manner in a case which is headed to court

In reviewing the narrowly tailored prong of the test we

conclude that the restraints are narrowly tailored to protect the states compelling interests without unnecessarily prohibiting protected speech As is clear from the canons and related commentary a candidate may state his or her personal views even on disputed issues However to ensure that the voters understand a judges duty to uphold the constitution and laws of the state where the law differs from his or her personal belief the commentary encourages candidates to stress that as judges they will uphold the law

The Committee is aware that the ABA has just approved revisions to the Model

Code of Judicial Conduct See pages 13-16 of the appendix attached to this report

The Committee has not had the opportunity to study those changes in depth and

makes no recommendation at this time regarding additional changes to the Code of

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Judicial Conduct

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WHEREFORE the Judicial Ethics Advisory Committee respectfully requests

this Court to consider and adopt the amendments proposed in this report

DATED this 27th day of October 2003

Respectfully submitted

Phyllis Kotey Chair Florida Supreme Court Judicial Ethics Advisory Committee Eighth Judicial Circuit Alachua County Courthouse 201 E University Ave Room 205 Gainesville FL 32601 Florida Bar No 525545

-and-

Marjorie Gadarian Graham Marjorie Gadarian Graham PA Oakpark-Suite D129 11211 Prosperity Farms Road Palm Beach Gardens FL 33410 Member Florida Supreme Court Judicial Ethics Advisory Committee (561) 775-1204

By

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Marjorie Gadarian Graham Florida Bar No 142053

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