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MOTION TO DISMISS COUNT 1 FOR LACK OF SUBJECT MATTER JURISDICTION

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MOTION TO DISMISS COUNT 1 FOR LACK OF SUBJECT MATTER JURISDICTION Powered By Docstoc
					      BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION
                     STATE OF FLORIDA


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


    RESPONSE TO THE JUDICIAL QUALIFICATION’S REPLY
              TO THE MOTION TO DISMISS
    THE SECOND AMENDED NOTICE OF FORMAL CHARGES

      The Honorable Terri-Ann Miller, by and through undersigned

counsel, hereby files with this Honorable Hearing Panel her Response to the

Judicial Qualification Commission’s (hereinafter referred to as “JQC”),

Reply to the Motion to Dismiss the Second Amended Notice of Formal

Charges and states:

      The Florida Supreme Court has held that “all judges subject to

discipline must be afforded both substantive and procedural due process.”

In re Diaz, 908 So.2d 334 (Fla. 2005), (Cantero, J. dissenting) (citing In

re Inquiry Concerning a Judge, 357 So.2d 172, 181 (Fla. 1978)).

      In his dissent in In re: Diaz, supra, J. Cantero also quoted Rule 6(g)

and analogized that, just as a criminal charge must allege both specific

conduct and a law that the conduct violates, the JQC’s formal charge

“should allege conduct that violates a specific canon of judicial conduct.”



                                       1
In re: Diaz, supra,(emphasis added). We would maintain in this realm

that canons of judicial conduct, are akin to laws, as their violation subjects

a judge to discipline, and the JQC in its most recent reply, agrees.

      The JQC herein thus has failed to correctly interpret Florida Rule of

Civil Procedure 1.110(b) or Judicial Qualifications Commission Rule 6(g)

because it does not specify either essential, ultimate and necessary facts

and conduct which are sufficient to facially support the violation of

Canons 7A(3)(a) and 7(A)(3)(d)(ii) as the JQC fails to allege any knowing

factual misrepresentation by Judge Miller within the materials cited by

them. In order to maintain an action under a statute one must plead

sufficient facts to bring the allegations of a complaint within the statute.

Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1369

(Fla.App. 4 Dist., 1981). If the insufficiency relates to the failure of the

complaint to allege necessary facts to state a cause of action, the complaint

should be dismissed. Drady v. Hillsborough County Aviation Authority, 193

So.2d 201, 205 (Fla. App. 2 Dist., 1966).

      Even if this Honorable Hearing Panel accepts the allegations of the

Second Amended Notice of Formal Charges as true and considers them in a

light most favorable to the non-moving party, the allegations still are not

sufficient to allege a violation of the aforesaid Canons as no knowing



                                        2
misrepresentation of facts, has been alleged. In fact, nowhere in the Second

Amended Notice of Formal Charges has the JQC maintained that materials

as depicted in their exhibits contains any knowing factual

misrepresentations.

          The JQC asserts in their Reply regarding Count 1 that In re: Kinsey,

842 So.2d 77 (Fla. 2003) stands for the proposition that disproportionately

small disclaimers have been found to be a knowing misrepresentation as

envisioned by the Canons. It is suggested that although that was true in In

re: Kinsey, supra, this reliance as it relates to Judge Miller’s case, is

misplaced for many reasons, not the least of which is that the fact is Judge

Miller had been a judge, and that fact, thereby in and of itself was not a

knowing misrepresentation. Additionally, she used signs employing the

word “for” between her name and the position she was running for so as to

not statutorily imply incumbency and as such, did not misrepresent her

status.

          In In re:Kinsey, supra, a campaign flyer contained a knowing

misrepresentation of Kinsey’s opponent’s judicial ruling. It was presented in

bold and large letters. The truthful representation in the same flyer, besides

being in very small print, was printed on the flyer in such a manner that the

Court concluded that the voters were not meant to read each of the articles



                                         3
as the reprinted articles were stacked on top of each other so portions of the

article could not be read.

      To distinguish the facts further from Judge Miller, her use of stickers

with the word “FORMER” were placed next to the word judge on a

campaign sign, and there has been no recitation of facts to suggest that

this qualifier was not meant to be read, or that the sum total of the

use of the word “FORMER” with the word judge as a whole is a knowing

misrepresentation either. Judge Miller’s campaign signs were not an

example where the voters were required to read fine print elsewhere

on the item of campaign material to correct an alleged knowing

misrepresentation. Indeed, the Florida Supreme Court in 2006 in In re:

Renke, 933 So.2d 483 (Fla. 2006), the court refined and interpreted their

ruling in In re: Kinsey, supra, and held that,

             smaller or other text elsewhere
             in a brochure does not serve to rectify bold
             misstatements made in the same document.
             (Emphasis supplied). 933 So.2d at 488

      Given the facts alleged as they relate to Judge Miller, even if

taken as true for purposes of the motion to dismiss, they still are not

sufficient to bring the allegations of the Second Amended Notice of

Formal Charges within the purview of a violation of Canon 7A(3)(a) and

7(A)(3)(d)(ii), in light of the Court’s decision in In re: Renke, supra,

                                       4
on this specific issue since her sticker stating “FORMER” was adjacent to

the word judge on her campaign sign to make an accurate representation

of her (then) present status thereby disavowing incumbency.

      The JQC opines that the factual allegations concerning campaign

materials found in In re:Renke, supra, are very similar to those against

Judge Miller. A careful reading of that case shows much to the contrary.

Candidate Renke, knowingly misrepresented that he was a judge when he

was not, by failing to use the word “for” between his name and the

position he was running for in a brochure, (“John Renke, a Judge with

Our Values,” In re: Renke, supra at page 485). In In re: Renke, supra,

it was the use of this phrase combined with other text from the brochure

stating Renke had “real judicial experience as a hearing officer and in

hearing appeals from administrative law judges,” In re: Renke at page

487, which led ultimately to the Florida Supreme Court’s determination

that Judge Renke “knowingly and purposefully created the impression

that he was running as an incumbent judge when he was not,” In re:

Renke at page 487. The JQC has failed to allege any combination of acts

or conduct on the part of Judge Miller which would thereby give rise to a

supposedly sufficient allegation that she misrepresented her status as an

incumbent. As can be seen on the exhibits which are part of the Second

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Amended Notice of Formal Charges, on the aforesaid campaign signs, that

had the sticker stating the word “FORMER” next to word “Judge” no

mention was made of any judicial experience. Similarly, on the signs and

other campaign materials that describe her judicial experience, there was

no use of the word Judge as a title. What is to be garnered then from In re:

Renke, supra, is, that the implication of incumbency in campaign

materials requires at least two acts performed together, one of which must

be a knowing factual misrepresentation 1 . Clearly, the factual allegations

against Judge Miller in the Second Amended Notice of Formal Charges,

when measured against those in In re: Renke, supra, are thereby insufficient

to improperly imply incumbency.

       Hence, the JQC misapprehends in this matter as to what the essential

facts are which need to be plead in the Second Amended Notice of Formal

Charges for those allegations of a violation of the aforesaid Canons to be

deemed sufficient to survive a motion to dismiss. It is suggested that the

   1
    It should be noted that Renke was found not guilty by the JQC in Count
   4, of knowingly and purposefully representing his experience when he
   described himself as having “real judicial experience as a hearing officer
   in hearing appeals from administrative law judges,” when his actual
   participation was limited to one instant where he acted as a hearing
   officer and to other instances where he was sitting as a board member of
   an administrative agency in the same brochure where, among other
   things, he described himself as “John Renke, a Judge With Our Values.”
   933 So.2d at 485,486.

                                       6
JQC needs at least to allege a knowing factual misrepresentation

of the type listed in Canon 7(A)(3)(d)(ii) to craft a valid complaint. But,

neither the Second Amended Notice of Formal Charges nor the Reply to

the motion to dismiss thereto specifically address this issue or state that any

of the campaign materials as shown the by the JQC’s exhibits contain any

facts or representations which were untrue.

      The JQC maintains initially in its Reply that Judge Miller failed to

disclose her status as a practicing attorney at the time the materials were

circulated. Yet the Reply of the JQC then concedes that the exhibits only

“emphasize” her judicial standing and experience. The Florida Supreme

Court has clearly ruled that a candidate is free to discuss his or her

background and qualifications for the position. In re Kinsey, 842

So.2d 77, 89. (Fla. 2003) The JQC has yet to reconcile anywhere, factually

how Judge Miller’s emphasis of her actual judicial experience furnishes

sufficient or essential facts, that being a knowing misrepresentation of a

candidates’s experience and qualifications for judicial office, to support the

allegations that Canons 7A(3)(a) or 7(A)(3)(d)(ii) have been violated.

      Instead, the JQC has attempted to create a cause of action for

violation of the Canons for knowingly omitting the identity, qualifications,

present position or other fact concerning the candidate or an opponent where

                                        7
none exists. The JQC suggests that the Florida Supreme Court, by virtue of

its ruling in Johnson v. Davis, 480 So.2d 625, (Fla. 1985), holds that there

is no meaningful distinction between misrepresentations and non-disclosure

of material facts. But a closer reading of this case shows only that this is

hardly the case. Johnson v. Davis, supra, stands only for the proposition that

there is now established a duty on the part of sellers of real estate to disclose

material, latent defects known by them, to a buyer. One cannot easily jump

from that holding and the reasoning behind it to propose that a candidate’s

failure to disclose their present status, (though it is arguable as to what

precisely this means here as Judge Miller’s present status at that time was

that she was a former judge), in light of the present proscriptive Canon

7(A)(3)(d)(ii) and the freedom directly expressed by the Florida Supreme

Court in In re: Kinsey, supra, for a candidate to discuss their qualifications

and background, to thereby serve as a sufficient factual allegation to support

a violation of the aforesaid Canons.

      The JQC cannot create a duty that the Canon 7(A)(3)(d)(ii) does not

provide for. If one wanted to impose such a duty on judicial candidates,

the Canons would need to state precisely what each judicial candidate must

say. The Canons do not. Rather, and more specifically, Canon

7(A)(3)(d)(ii) provides guidance by proscribing what a candidate may not



                                        8
do. Such an expansion of these Canons by JQC fiat would invade the

very province of Florida Supreme Court and violate the spirit of the

Preamble to the Code of Judicial Conduct. The Preamble to the Code of

Judicial Conduct states that it is designed to provide guidance to candidates

for judicial office and to provide a structure for regulating conduct through

disciplinary agencies.

      The JQC is correct when it maintains that it is not necessary for the

for the Hearing Panel to decide through a motion to dismiss the ultimate

issue of whether Judge Miller’s campaign materials constitute a knowing

representation of Judge Miller’s lack of incumbency. But, even if the Panel

were to accept as true at this point that her campaign materials failed to

adequately disclose her lack of incumbency status, what the Panel must

consider and determine at this stage is whether such campaign materials

which have been attached as exhibits to the Second Amended Notice of

Formal Charges actually demonstrate this alleged failure to disclose her

lack of incumbency status by containing any knowing misrepresentations

of fact which would affirmatively violate her duties as stated under

Canons 7A(3)(a) or 7(A)(3)(d)(ii) to sufficiently give rise to a cause of

action for a violation of either one. Therefore, Judge Miller would again,

respectfully request that the Hearing Panel dismiss the Second Amended



                                       9
Notice of Formal Charges.


      Dated this 14th day of May, 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

And

Michael L. Schneider
Associate General Counsel

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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: MillerResponsetoReply.doc




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