SC13-1333 Watson's Memorandum of Law - Supreme Court · 2013. 10. 1. · include allegations of trust account violations pursuant to Rule 5-1.l(f). He held that in order to impose

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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

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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).

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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