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MOTION TO DISMISS COUNT 1 FOR LACK OF SUBJECT by vev19514

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									      BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION
                     STATE OF FLORIDA


INQUIRY CONCERNING A JUDGE,
NO. 06-432, TERRI-ANN MILLER
                                                       CASE NO. SC07-1985
_________________________________/


      The Honorable Terri-Ann Miller, by and through undersigned

counsel, hereby files her Motion to Dismiss the Second Amended Notice of

Formal Charges of the Judicial Qualifications Commission (hereinafter

referred to as “JQC”) with the Honorable Hearing Panel, and states:



          COUNT 1 SHOULD BE DISMISSED FOR
FAILURE TO STATE A CAUSE OF ACTION FOR VIOLATION OF
         CANON 7A(3)(a) AND CANON 7A(3)(d)(ii)

      Canon 7A(3)(d)(ii) of the Code of Judicial Conduct provides in

pertinent part, that a candidate for judicial office shall not:

             (ii) knowingly misrepresent the identity, qualifications, present
             position or other fact concerning the candidate or an opponent;
             (emphasis added).

      BLACK'S LAW DICTIONARY 521 (6TH ED. 1990) defines

“misrepresentation” as an untrue statement of fact, or an incorrect or false

representation.




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      The JQC fails to state a cause of action when it asserts, pertaining to its

Exhibits “A” and “F”, that they “depicted” a misrepresentation of Judge Miller’s

status as an incumbent judge. Yet, immediately thereafter in as Count 1 continues,

the JQC admits in Exhibit “B”, that the word “FORMER”, was applied next to

the word “Judge”, thereby establishing that the use of the word “Judge” was

actually qualified so as to not be a misrepresentation. Therefore, it cannot

be said to state a cause of action for violation of the aforesaid canon.

      Thereafter, the JQC alleges that the use of the word “FORMER” on a

sticker was so disproportionately small that it could hardly be said to be a

“meaningful disclaimer”. There is no Florida statute that mandates any particular

size, style or font type for printing on campaign signs. Inasmuch, the JQC

has thereby failed to state the standard of conduct, statute, or rule which was

specifically violated and what precisely a “meaningful disclaimer” is, according

to law. That thereby renders it a conclusion rather than an allegation of fact

supporting the charge under the canons stated therein and thus also fails to state a

cause of action.

      There are also no other facts stated specifically to support a violation

of Canon 7A(3)(a).

      For the aforesaid reasons, pursuant to Fla R. Civ. P. 1.140(b)(6),

Count 1 should be dismissed for failure to state a claim upon which relief



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may be granted.


          COUNT 2 SHOULD BE DISMISSED FOR
FAILURE TO STATE A CAUSE OF ACTION FOR VIOLATION OF
         CANON 7A(3)(a) AND CANON 7A(3)(d)(ii)

      A knowing misrepresentation is the gravamen of a violation of Canon

7A(3)(d)(ii). This count fails to state any well pled facts to which a response

could be fashioned that there was a knowing misrepresentation by Judge

Miller in her campaign. There are also no facts stated specifically to support

a violation of Canon 7A(3)(a).

      Count 2, in its allegations and referenced JQC exhibits, fails to allege any

knowing or otherwise, factual misrepresentation.

      Count 2 fails to state any incorrect or false representations or untrue

statement of fact in her campaign materials as listed by the JQC in their Exhibits

“C”, “D”, “E”, “G”, “H” and “I”.

      What is actually contained in this part of Count 2 are conclusions, with no

supporting facts or exhibits to show what the “calculated” acts were, purportedly

done by Judge Miller, which Judge Miller could admit or deny, which led to

these campaign materials being prepared, circulated or exhibited to attain the

advantage of incumbency. Additionally, there is no alleged factual violation of

any legal standard of conduct that was violated while allegedly doing so. A

candidate is free to discuss his or her background and qualifications for the

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position. In re Kinsey, 842 So.2d 77, 89. (Fla. 2003). Since Judge Miller was in

fact a Miami-Dade County Court Judge for 8 years, she had a right to discuss her

experience and doing so is not a violation of any standard of conduct or canon.

      This Count 2 also alleges that the statements are regarding Judge Miller’s

eight years of experience and acting circuit judge experience are in the campaign

materials were “buttressed” by a photograph showing Judge Miller wearing her

judicial robe. Again, this Count fails to allege any facts how using this picture,

with the caption stating eight years of judicial experience presents any knowing or

otherwise, factual misrepresentation when Judge Miller was simply explaining her

judicial experience and was not stating anything that was not in fact true.

      Further, no claim contrary to the following foundational principles set

forth in the Preamble to the Code of Judicial Conduct has been alleged. The

Preamble states that the Code “should be applied consistent with

Constitutional requirements, statutes, other court rules and decisional law

(Emphasis added.)

      By definition, the campaign materials alluded to in Count 1 are

considered political advertisements, as defined by Florida Statute

106.011(17).

      Florida Statute 106.143(5) states what language is required in political

advertisements so as not to falsely imply incumbency. It states:



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      No political advertisement of a candidate who is not an
      incumbent of the office for which the candidate is running
      shall use the word "re-elect." Additionally, such advertisement
      must include the word "for" between the candidate's name and
      the office for which the candidate is running, in order that
      incumbency is not implied. (Emphasis added.)

      Count 2 contains no facts which suggest that Judge Miller failed to

follow this statutory scheme in any of her campaign materials. Therefore, if

the Code is to be applied consistent with this statute, then this Count should

be dismissed for failure to state a cause of action pursuant to Fla. R. Civ. P.

1.140(b)(6).

      Additionally, it was well known to the Investigatory Panel that

the Florida Elections Commission concluded, after two complaints alleging

violations of this statute, that there was no probable cause to charge Judge

Miller with violations of this statute and hence, dismissed same.

      Although the Code of Judicial Conduct does not define the term

“decisional law,” it is suggested that this determination by a quasi-judicial

administrative body such as the Florida Elections Commission, which was

required to investigate or ascertain the existence of facts, hold hearings,

weigh evidence and draw conclusions, should be regarded as decisional law

within the context of this term as contained in the Preamble to the Code of

Judicial Conduct. As such, if the Code of Judicial Conduct is to be applied

consistent with this decisional law as to whether Judge Miller implied


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incumbency in her campaign materials, it can be said that Count 2 fails to

state a cause of action, for a determination has already been made on this

issue by the decisions of the Florida Elections Commission with its findings

of no probable cause and dismissing the complaints alleging she violated the

statute which determines how incumbency is implied in political

advertisements.

      The final part of Count 2 alleges Judge Miller did not disclose her “true

status” as an attorney in private practice since 2001 who had formerly been a Dade

County judge.” It is alleged at this point that this omission constitutes a

misrepresentation of the qualifications, present position, or other fact concerning

Judge Miller as a candidate.

      BLACK'S LAW DICTIONARY 521 (6TH ED. 1990) defines

“omission” as the neglect to perform what the law requires.

      Yet nowhere in Count 2 does it state what law, standard of conduct, or

canon affirmatively required her to disclose what her present status was at that

moment in time. A candidate is free to discuss his or her background and

qualifications for the position. In re Kinsey, supra. There was no law or rule that

required Judge Miller to make any such disclosure, therefore, there can not be a

unlawful “omission.”




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       Canon 7A(3)(d)(ii) only requires that what is affirmatively stated does not

“knowingly misrepresent the identity, qualifications, present position or other fact

concerning the candidate or opponent.” Most succinctly, what is represented has

to be true. There are no factual allegations contained in Count 2 regarding Judge

Miller which alleged that she said or did anything in her campaign that was not in

fact true.


       Additionally, and more pointedly, Canon 7A(3)(d)(ii) does not define

knowing misrepresentation to include misrepresentation by omission. To hold

Judge Miller to this un-codified standard of conduct would be both in violation of

the express words and explicitness of this Canon and inherently unfair, and

possibly in violation of her right to due process.


       Canon 7A(3)(d)(ii) is the codified embodiment of limitation or proscription

of what a judicial candidate shall not do. To expand this to include

misrepresentation by omission is contrary both to the manner and language in

which this negative precept is written.



    COUNT 3 SHOULD ALSO BE DISMISSED FOR FAILURE TO
       STATE A CAUSE OF ACTION FOR VIOLATION OF
            CANON 7A(3)(a) AND CANON 7A(3)(d)(ii)

       Count 3 should fail and be dismissed, given the fact, again, as alleged



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in this motion to dismiss with reference to Counts 1 and 2, supra, there have

been no facts alleged how there was a continuing deliberate effort to

misrepresent, on Judge Miller’s part, her qualifications for office. Inasmuch

as there has been no factual allegation of an untrue statement of fact, or an

incorrect or false representation as to any of her qualifications, there cannot

have been any resulting knowing misrepresentation.

      Neither have there been any facts alleged as to how Judge Miller

failed during the campaign, to maintain the dignity appropriate to judicial

office and act in a manner consistent with the integrity and independence of

the judiciary, nor have there been any facts pled either in this Count 1 and 2

which would constitute misconduct on the part of Judge Miller. Thereby

there has also been no pattern and practice unbecoming a candidate, with the

effect of bringing the judiciary into disrepute.

      By failing to state therein any well pled facts, should cause this Count

3 to be dismissed, pursuant to Fla R. Civ. P. 1.140(b)(6).


      WHEREFORE, Judge Miller respectfully requests that the Hearing

Panel of the Judicial Qualifications Commission dismiss the Second

Amended Notice of Formal Charges filed in this proceeding. In the

alternative, Judge Miller respectfully requests this Hearing Panel to enter an

order requiring the JQC to amend the Second Amended Notice of Formal

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Charges to comply with Florida Rules of Civil Procedure and Judicial

Qualifications Commission Rule 6(g).

      Dated this 25th of April, 2008.


                                        Respectfully submitted:


                                        /s/____________________________
                                        Michael A. Catalano, Esq.
                                        Fla. Bar No.: 371221
                                        Michael A. Catalano, P.A.
                                        Attorney for Judge Miller
                                        1531 N.W. 13th Court
                                        Miami, Florida 33125
                                        Telephone: (305) 325-9818
                                        Fax:         (305) 325 8759



                      CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the above and

foregoing has been furnished as listed below this 24th day of April,

2008, to the following:


Marvin E. Barkin
Interim General Counsel
101 E. Kennedy Blvd., Suite 2700
P.O. Box 1102
Tampa, FL 33601-1102
813/227-7459
FAX: 813/227-0459



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And

Michael L. Schneider
Associate General Counsel
Judicial Qualifications Commission
Florida Bar No. 525049
1110 Thomasville Road
Tallahassee, FL 32303
(850) 488-1581
Counsel for the Judicial Qualifications Commission, by US Mail.

John Beranek, Esq.
227 South Calhoun Street
Tallahassee, FL 32301
Counsel for the Hearing panel, by US Mail.

Also, per Rules 9, and 10 of the Florida Judicial Qualifications Commission,
all of our pleadings are being filed as follows:

Original and one copy to the Clerk of the Florida Supreme Court by US
Mail. An electronic copy will be sent to the Clerk of the Court per Supreme
Court Rule: AOSC04-84. Email to: e-file@flcourts.org

A copy will be sent directly to the Chair of the Hearing Panel, Judge Jesse
Preston Silvernail, 2825 Judge Fran Jamieson Way, Viera, FL 32940 by US
Mail.

An additional 5 copies will be sent to the JQC c/o Mr. Schneider to be
distributed to the full hearing panel.


                                By: ________________________
                                    Michael A. Catalano, Esq.

Note: Saved as: miller2ndMotinDismiss.doc




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