the florida bar, marie louise henry, … · the florida bar file nos. 2012-31,557 ... florida bar...
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IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant,
v.
MARIE LOUISE HENRY,
Respondent.
Supreme Court Case No. SC13-1127 The Florida Bar File Nos. 2012-31,557 (18A), 2013-30,074 (18A)
RESPONDENT’S INITIAL BRIEF IN SUPPORT OF PETITION FOR REVIEW
Kelli Biferie Hastings Florida Bar No. 588512
Law Office of Kelli Biferie Hastings, PLLC 4005 N. Orange Blossom Trail, 2nd Floor
Orlando, FL 32804
Attorney for Respondent. This is a review of a Report of Referee in the Supreme Court of Florida dated April 30, 2014.
Filing # 18738321 Electronically Filed 09/26/2014 05:55:02 PM
RECEIVED, 9/26/2014 17:58:46, John A. Tomasino, Clerk, Supreme Court
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TABLE OF CONTENTS Page
Table of Authorities………………………………………………………………..iii Preliminary Statement……………………………………………………………..iv Statement of the Case and Facts……………….…………………………………...1 Standard of Review……………………………………………………………….19 Summary of Argument…………………………………………………………....20 ARGUMENT……………………………………………………………………...22
I. THERE IS NO COMPETENT SUBSTANTIAL EVIDENCE IN THE
RECORD TO SUPPORT THE REFERREE’S FINDINGS OF
MISREPRESENTATION………………………………………………22
II. THE REFEREE ERRED IN ADMITTING PROTECTED JUVENILE
RECORDS INTO EVIDENCE; AND COMPETENT SUBSTANTIAL
EVIDENCE DOES NOT SUPPORT HIS FINDING OF
MISREPRESENTATION WITH REGARD TO RESPONDENT’S
ASSERTION THAT “THE LAW” SUPPORTS HER ARGUMENT
.................................................................................................................26
III. THE REFEREE ERRED IN HIS FINDINGS WITH RESPECT TO
RESPONDENT’S USE OF LANGUAGE CONVEYING HER BELIEF
THAT HER DAUGHTER WAS ILLEGALLY ARRESTED,
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UNFAIRLY TREATED, AND THAT HER CASE INVOLVED
RACIAL AND POLITICAL BIAS……………………………………30
Conclusion………………………………………………………………………...31 Certificate of Service……………………………………………………………...33 Certificate of Typeface Compliance………………………………………………33
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TABLE OF AUTHORITIES Page(s) CASES Fla. Bar v. Anderson, 538 So. 2d 852 (Fla. 1989)……………………………………………………….20 Fla. Bar v. Committe, 916 So. 2d 741 (Fla. 2005)……………………………………………………….19 Fla. Bar. v. Ray, 797 So.2d 556 (Fla. 2001)……………………………………………………21, 30 Fla. Bar v. Williams-Yulee, No. SC11-265, (May 1, 2014)……………………………………………20, 22, 24 Leftwich v. Dep’t of Corrections, No. SC12-2669, (Fla. September 18, 2014)…………………………………….28 STATUTES AND RULES §985.045(2), Fla. Stat…………………………………………………21, 26, 27, 28 §985.045(4), Fla. Stat……………………………………………………..21, 27, 28 Rule 2.330, Fla. R. Jud. Admin………………………………………………3, 25
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PRELIMINARY STATEMENT The Respondent, Marie Henry, may be referred to as “Respondent.”
The Complainant, The Florida Bar, may be referred to as “the Bar.”
The Referee, Honorable Thomas Michael Jaworksi, may be referred to as
“the Referee.”
References to the Record on Appeal shall be abbreviated by the letter “R”
followed by the tab number and page number(s), where applicable. (e.g. R, 38:
21).1
References to the transcripts on appeal shall be abbreviated by the letter “T”
followed by the transcript number (T1 = November 12, 2013, final hearing
transcript; T2 = November 13, 2013, final hearing transcript; T3 = March 17, 2014,
sanction hearing transcript) and page number(s). (e.g. T1, 55).
1 Note that the instant index to the record does not list page numbers. Thus, when referencing the record, Respondent will reference the tab number and the page numbers of the documents in that tab.
1
STATEMENT OF CASE AND FACTS
This action began when the Bar filed a Complaint on June 26, 2013, alleging
two counts against Respondent. (R, 1-23). In the first count, the bar alleged
misconduct relating to Respondent’s actions as her daughter’s attorney in the
course of juvenile court proceedings arising out of her daughter’s arrest on
Halloween in 2009 for resisting a police officer without violence. (R, 2-11).
The allegations in Count I are essentially as follows: 1. Respondent
misquoted a rule in connection with a speedy trial motion; 2. Respondent cited a
concurring opinion in a memo of law without making it clear to the court that it
was a concurring opinion; 3. Respondent made misrepresentations in court about
what she had said to her daughter’s probation officer after her daughter was
convicted; 4. Respondent made misrepresentations in a habeas corpus motion
regarding the Fifth District Court of Appeal; and 5. Respondent has continued to
maintain that her daughter’s arrest was illegal and unfair despite losing the trial and
appeal of her daughter’s case at the state level2. (R, 2-11).
Count II of the Bar’s complaint stems from motions to disqualify Judge
Takac that Respondent filed in a civil matter in which Respondent was a party and
represented herself. (R, 11-13). Judge Takac was also the judge in Respondent’s
2 There is still an ongoing federal case related to violations of her daughter’s constitutional rights under 42 USC §1983. See Marie L. Henry v. City of Mount Dora, Brett Livingston, and I. Severance, Case No. 5:13-cv-528-Oc-10PRL.
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daughter’s juvenile proceeding, and Respondent perceived that he could not be fair
in the civil manner based upon their interactions in the juvenile proceeding. (R, 11;
T2, 73). The Bar’s allegations in Count II can be summarized as follows: 1. That
Respondent made a misrepresentation to Judge Takac by omission by failing to
advise him that she had previously filed a defective motion to disqualify him two
months before her non-defective motion, and 2. That the language used by
Respondent in her motion was disparaging toward the Judge and the court system
because Respondent vehemently expressed her belief in the motion that her
daughter’s case was handled unfairly and that racial and political bias were
involved.
Judge Takac testified during the two-day hearing as a witness for the Bar in
its case against Respondent. He testified that he never sanctioned Respondent
during the juvenile proceeding for filing an improper speedy trial motion. (T1, 70).
Moreover, he offered no testimony that he was misled by Respondent with respect
to the speedy trial motion during the juvenile proceeding. (T1, 15-79). He further
offered no testimony that he was misled by Respondent’s citation to a concurring
opinion in a memorandum of law submitted by Respondent in the juvenile
proceeding. (T1, 15-79). He also offered no testimony that Respondent lied or
made misrepresentations with respect to conversations with her daughter’s
probation officer. (T1, 15-79). He offered no testimony that he sanctioned
3
Respondent or otherwise counseled her at any time during the juvenile proceeding
with respect to the Bar’s allegations of misconduct in Count I of the complaint.
(T1, 15-79).
Judge Takac testified that he filed a bar complaint against Respondent after
receiving Respondent’s motions to disqualify him in the context of her civil case
against her mortgage company. (T1, 58). He testified that he felt it was
inappropriate for Respondent to allege in the motion to disqualify that her daughter
was illegally convicted and sentenced and treated in an egregious manner in her
juvenile case. (T1, 62). He admitted that his order, which became the basis of the
Bar’s complaint against Respondent, served a “dual purpose” by both determining
Respondent’s motion to disqualify was legally insufficient3 and by specifically
addressing Respondent’s allegations in order to “save everybody the time and
energy” of filing a separate bar complaint. (T1, 57-59).
In so doing, Judge Takac’s order goes beyond the scope of Rule 2.330 of the
Rules of Judicial Administration, which provides, “The judge against whom an
initial motion to disqualify under subdivision (d)(1) is directed shall determine
only the legal sufficiency of the motion and shall not pass on the truth of the
facts alleged.” Rule 2.330, Fla. R. Jud. Admin. He not only passed on the truth of
3 After finding the motion to disqualify legally insufficient, Judge Takac went on to recuse himself from the case because of the Bar complaint he was filing against Respondent. (T1, 58).
4
the facts alleged, he made the order a public record and the basis of his bar
complaint against Respondent.
Judge Takac testified that he was not served with the original motion to
disqualify which was filed on March 8, 2012; but he did find it and read it when he
was looking through the file. (T1, 47). He offered no testimony that Respondent
made a misrepresentation to him by omission by failing to disclose her prior,
defective motion to disqualify him after filing a non-defective motion. (T1, 41-48).
He actually testified that he had already begun writing the order on Respondent’s
defective motion to disqualify when the second, non-defection motion to disqualify
came in. (T1, 46) (“I looked at the file to do the one order, and by the time I got
done with it, I had the second motion show up”). Thus, he was clearly aware of
both motions and was at no time unaware that two motions had been filed. (T1, 46-
7).
John Carnahan, Assistant State Attorney, also provided testimony as a
witness for the Bar. (T1, 80). He testified that Respondent made misrepresentations
to her daughter’s probation officer in the context of the prior juvenile proceedings.
(T1, 112). However, he provided that testimony directly from his own memory,
rather than looking at the trial transcript. (T1, 110).
Furthermore, the Bar did not provide testimony from the probation officer
herself. (T1, 1-205; T2, 1-178). Rather, it relied on Mr. Carnahan’s perception and
5
recollection of Respondent’s testimony during the juvenile proceeding (more than
three (3) years prior), notes from the probation officer’s report, and prior trial
testimony of Respondent. (T1, 113).
Mr. Carnahan suggested that Respondent misled Judge Takac with respect to
citing a concurring opinion in a memorandum of law submitted in the juvenile
proceeding. (T1, 151). He also suggested that Respondent was trying to mislead
the court with respect to a speedy trial motion. (T1, 199-200). Mr. Carnahan did
not move for sanctions or otherwise bring Respondent’s actions to the court’s
attention at the time these events occurred. (T1, 186). In fact, despite all of his
current accusations of egregious conduct in the context of the juvenile case, he
never moved for sanctions against Respondent at any time during that case. (T1,
186, 195-6). His first action was not until several years later, when he accused
Respondent of inappropriate behavior in response to a bar grievance that
Respondent had filed against him. (T2, 150).
Note that Respondent first consulted with William Wilhelm of the Florida
Bar before filing the bar complaint against Mr. Carnahan. (T2, 122, 129). Mr.
Wilhelm advised Respondent that she was required to file a bar complaint against
Mr. Carnahan because the allegations were grounds for discipline. (T2, 123).
Showing his bias, Mr. Carnahan testified that, at the time of Respondent’s
alleged offenses in the juvenile case he “put little sticky notes” on the documents
6
involved “in case he ever had to use them” at a later date, instead of acting at the
time the offenses occurred. (T1, 155-6). He passionately explained that his reason
for filing a complaint against Respondent was personal, in that he wanted to make
sure that he received “ultimate total, complete, absolute exoneration” from
Respondent’s claims in her grievance against Mr. Carnahan that there was racial
animus in the juvenile case against her daughter. (T1, 154-5). He referred to those
claims with fervor, describing them as “as so outrageous, so false, so truly from
some other universe.” (T1, 155). He also referred to Respondent as acting
“diabolically” (T1, 201-2) and showed his true feelings toward her at the
conclusion of his testimony:
I believe she’s half dishonest, yes. It’s half – half of what – in all candor, I think she probably does have some mental health problems with some of this stuff. Its half mental health and half dishonesty. It really is dishonest though, half of it is.
(T1, 198). Mr. Carnahan testified with respect to the speedy trial motion that
Respondent filed in the juvenile case that Respondent was intentionally trying to
mislead Judge Takac, despite Judge Takac’s twenty-five plus (25+) year legal
career and familiarity with the speedy trial rule. (T1, 176-7). However, Mr.
Carnahan admitted that the formatting of the speedy trial motion was off,
suggesting that the misquotation could have been due to a formatting error. (T1,
180).
7
Respondent also testified at the final hearing on the Bar’s complaint against
her. (T2, 4). She testified that, at the time she filed the speedy trial motion, she did
not comprehend that there were two distinct rules – one applicable to juvenile
proceedings and one to criminal, and that she confused the language of the two
rules. (T2, 9-10, 113-16)). Respondent testified that “there was no intent to deceive
any party” when she prepared her speedy trial motion. (T2, 13). She further had no
belief that her motion would be granted without a hearing; thus, she understood
that there would be hearing with argument of the parties before her motion was
granted. (T2, 116). She said that she had no idea that there was any issue with her
motion for speedy trial in the juvenile case until many years later when Mr.
Carnahan filed a bar complaint against her in response to her bar complaint against
him. (T2, 16, 20, 147-8, 150).
In hindsight, Respondent admitted with candor that her motion for speedy
trial contained language that did not belong in the motion. (T2, 116). Respondent
further acknowledged with the benefit of hindsight that her motion to disqualify
Judge Takac in the civil proceeding contained language that did not belong in the
motion. (T2, 118). At the time Respondent filed the motion to disqualify Judge
Takac, she had only been admitted to practice law for about a year. (T2, 118).
Respondent also testified that her first appearance in court as a litigator –
ever – was during the course of her daughter’s juvenile proceeding. (T2, 118).
8
Prior to going to law school, Respondent served her country in the Army and in the
Army Reserves. (T2, 5-6; T3, 20-1).
Respondent was asked about the alleged misrepresentations to her
daughter’s probation officer. (T2, 27). Respondent testified that she and the
probation officer may have misunderstood each other. (T2, 27). At no point did
Respondent testify that she made any misrepresentations to the probation officer.
(T2, 27-37). In fact, Respondent testified that she never misspoke, gave false
testimony or tried to trick or deceive the Court in any way in the juvenile case. (T2,
150-1).
The probation officer that Respondent allegedly made misrepresentations to
in the course of her daughter’s juvenile proceeding did not offer any testimony in
the instant case. (T1, 1-205; T2, 1-178). As such, the probation officer did not
substantiate the Bar’s allegations that Respondent misrepresented facts regarding
her daughter’s juvenile proceedings. Respondent likewise did not substantiate the
Bar’s allegations of misrepresentations to the probation officer. (T2, 27-169).
Respondent was the only witness to offer testimony regarding her habeas
corpus motion to the Supreme Court of Florida. (T1, 1-205; T2, 1-178). In fact,
Judge Takac testified that he had no independent recollection of the motion. (T1,
28). Respondent testified that when she stated in the motion that the Fifth District
did not review the supporting brief, she was referring to the fact that the order of
9
dismissal came back without comment. (T2, 39). She acknowledged that her
petition was not “artfully” crafted but that she was not trying to allege that the Fifth
District was not doing their job. (T2, 40). There was no evidence presented that she
was sanctioned or otherwise cautioned in any way with regard to the habeas corpus
motion at the time it was filed. Instead, like the rest of the Bar’s allegations of
misconduct, Respondent first learned of her alleged transgressions many years
after the fact. (T1, 1-205; T2, 1-178).
Respondent testified that she made no false statements to the Court at any
time. (T2, 148). Furthermore, Judge Takac never entered any sanctions orders or
orders to show cause against Respondent at any time during the juvenile case. (T2,
149).
Respondent holds a deep belief that her daughter was wrongfully charged
and convicted in the juvenile proceeding. This belief is based, in part, upon
objective evidence, including a letter from the historical society which indicated
that Respondent’s daughter was not part of the group that was throwing rocks
which is the event that led to her arrest. (T1, 159-60).
Respondent explained that she felt that her daughter was treated differently
by Judge Takac and Mr. Carnahan because of her race. Respondent testified at the
grievance hearing that Judge Takac referred to her daughter as “Miss Know-It-All”
during the juvenile proceedings and told her she should read a book by African-
10
American writer, Maya Angelou. (T2, 46). Subsequently, a portion of the juvenile
record was read into evidence in which Judge Takac clearly referred to
Respondent’s daughter as “Miss Know-it-All. (T2, 52).Further, Bar counsel
acknowledged that Judge Takac requested Respondent’s daughter read Maya
Angelous’ “I Know Why the Caged Bird Sings.” (T2, 55). Respondent believes
that Judge Takac only asked Respondent’s daughter to read the Maya Angelou
book because Respondent’s daughter is African American. (T2, 46).
Respondent believes to this day that her daughter was wrongfully arrested
for refusing to give her name to a law enforcement officer, the charge that started
the juvenile proceeding. (T2, 41-2, 139). Respondent testified that on the night her
daughter was arrested, Respondent asked for a reason for the arrest and was told by
the arresting officer simply, “she wouldn’t give me her name.” (T2, 90). Because of
this, Respondent filed a complaint against the Mount Dora Police Department. (T2,
89-97).
Respondent also explained that when her daughter was arrested that her
daughter’s top came off, exposing her bare chest to several witness, and that her
daughter’s hands were forced behind her back so that she was unable to pull her
shirt up herself. (T2, 91; T3, 28). Respondent’s daughter was only thirteen (13)
years old at the time of her arrest. (T2, 101). Respondent found this fact to be
deeply troubling, and it furthered her belief that her daughter was mistreated,
11
perhaps because of her race. (T2, 91). Respondent believes that the complaint she
filed against the Mount Dora Police Department shortly after her daughter’s arrest
may have resulted in political backlash against her and her daughter. (T2, 97). Her
daughter was arrested on Halloween night and a verbal complaint was filed that
same evening. (T2, 145). A sworn complaint was filed several months later. (T2,
145-6, 157).
With respect to the motion to disqualify Judge Takac filed in March 2012 in
the civil case, Respondent offered no testimony that she attempted to mislead the
Judge when she abandoned her original, defective motion and filed a new motion.
(T2, 4-168). Specifically, she explained that she found out later, after reading a bar
journal article on the issue, that her original motion was defective. (T2, 67).
However, she believed the issue was moot because the case was not being pursued
at that time. (T2, 67). She later filed a non-defective motion in May of the same
year when the case started to be litigated again, after defendant filed a new motion
in the case. (T2, 69).
At the time Respondent filed the motion to disqualify Judge Takac in the
civil case, the appeal of her daughter’s juvenile conviction was still ongoing. (T2,
84-5). The Florida Supreme Court subsequently denied discretionary review,
although one justice expressed a desire to exercise discretionary jurisdiction. (T2,
85-6).
12
Portions of the juvenile record were read into evidence, which show a heated
exchange between Respondent and Judge Takac in the juvenile case. (T2, 77-82).
In fact, at one point Judge Takac says to Respondent, “ma’am, you are rambling.
You can’t say on topic.” He later threatens Respondent with contempt of court and
that he will report her to the bar if she brings up misconduct by the Assistant State
Attorney (T2, 79-80) and states, “I am not going to listen to any more comments
about what you consider to be bad conduct by the State Attorney’s office.” (T2,
80).
After the Final Hearing was held on the Bar’s complaint against Respondent
the parties provided written closing arguments. (T2, 173). In Respondent’s closing
argument, Respondent, via counsel, argued that the Bar improperly relied on
protected juvenile case records and that the Bar’s case against Respondent must
fail as a result. (R, 16: 4). Respondent further argued that it was the Respondent
who first filed a complaint against Assistant State Attorney Carnahan, but that the
Bar did not pursue that complaint, instead pursuing Mr. Carnahan’s complaint
(filed in response to her complaint) against Respondent. (R, 16:4).
In response to Respondent’s written closing, Bar counsel wrote an intense
letter to Respondent’s attorney. (R, 16: 16-17). In the letter, Bar counsel accused
Respondent’s attorney of being “disingenuous” and “misleading” by arguing that
13
the juvenile records should be protected4 and for arguing that the Bar did not
pursue the initial complaint filed by Respondent against Mr. Carnahan.5 (R, 16: 16-
17). Bar counsel further requested that Respondent’s attorney “withdraw the
argument” made in the closing statement. (R, 16: 17). Because of the serious
accusations in Bar counsel’s letter, Respondent’s attorney filed a “Supplemental
Corrective Statement.” (R, 16: 12-15).
In the “Supplemental Corrective Statement” Respondent’s attorney
expressed concern stating:
That letter can only be construed as attempt of intimidation of Respondent’s counsel through a thinly veiled threat to open a disciplinary file against Respondent’s counsel for alleged dishonesty or false statements to a tribunal, rules that Respondent is charged with violating. Undersigned counsel considers this to be an overly heavy-handed tactic which can only exacerbate Respondent’s distrust of the Bar’s disciplinary system.
(R, 16: 15). Nonetheless, Respondent’s attorney clarified that the argument
that the juvenile records are protected is not an argument that the Bar
committed some error in obtaining them; still, that information should be
protected under the law. (R, 16:12-15). Respondent’s counsel noted that
Respondent was placed in a precarious situation because she has a duty to be
4 Bar counsel argued that since Respondent herself provided some of the juvenile records to the Bar, she should not be able to argue the records are protected. 5 Note that there is no factual dispute that Mr. Carnahan’s complaint against Respondent arose out of her complaint against him, and that the Bar did not pursue disciplinary action against Mr. Carnahan.
14
forthcoming with the Bar in their investigation of her pursuant to Factors
9.32(e) and 9.22(e) of the Standard for Imposing Lawyer Sanctions, while at
the same time she has an interest in having her daughter’s sensitive case
information kept confidential. (R, 16: 13-14).
Furthermore, Respondent’s attorney noted that it is an undisputed fact
that Respondent’s complaint against Mr. Carnahan was not pursued, while
Mr. Carnahan’s complaint against Respondent was pursued with gusto. (R,
16: 14).
Subsequently, a sanction hearing was held on March 17, 2014. (T3, 3).
During the sanction hearing, Respondent argued that the juvenile records were
improperly admitted as evidence against her. (T3, 9-10). Respondent argued that
one of the standards for imposing sanctions is based upon whether or not
Respondent is cooperative, which places respondents to Bar grievances in a
dilemma about when it is appropriate to object to the admission of records. (T3, 9).
Thus, the fact that Respondent herself submitted some of the juvenile records to
Bar counsel does not dispositively establish that those records are not inadmissible
and confidential.
Respondent testified that she did not know prior to the final hearing on the
Bar complaint that her daughter’s confidential juvenile records were to be used by
the Bar in its case-in-chief against her. (T3, 45-6).
15
During the sanction hearing Respondent intimated that there was law6 on
point with respect to confidentially of juvenile records. (T3, 46). After a short
recess, Respondent’s attorney advised the Referee that under Florida Statute
985.045, juvenile records are confidential and protected and that no specific
exception is carved out for Bar proceedings. (T3, 48). The issue was dropped at
that point of the hearing and Respondent was subsequently never asked to provide
a case in support of her position during the sanction hearing. (T3, 1-85).
Bar counsel acknowledged during the sanction hearing that, without the
confidential juvenile records, the Bar would be unable to prove its case against
Respondent. (T3, 12). Bar counsel also acknowledged that Respondent “believes to
the very essence of her being that her daughter was improperly treated” in the
juvenile case. (T3, 55-6).
Respondent testified during the sanction hearing that the juvenile
proceedings were “emotionally disturbing” to Respondent and that she was very
upset to see her daughter suffer immensely both emotional and psychologically, so
much so that Respondent had to take a leave of absence from her job. (T3, 27). She
explained that she was “outraged” by the way her daughter was treated, and
believes to this day that her daughter was charged and convicted of a crime that she
did not commit. (T3, 28). 6 Respondent never used the words “case law” and instead referred to “the law” against admission of juvenile records. (T3, 46).
16
Respondent testified that she now works as staff counsel doing compliance
work regarding Medicare and Medicaid. (T3, 24). Other than her daughter’s case
and her own case relating to her mortgage, she has no experience as a practicing
litigator. (T3, 23-4, 34).
Respondent offered character evidence by way of a letter from David Honig,
who is President and CEO of Minority Media and Telecommunications Council.
(T3, 40-1; R, 38:19). Mr. Honig spoke highly of Respondent and her service of her
country, commitment to the community, and conviction towards her daughter’s
case which she felt was an injustice. (T3, 40-1).
During the sanction hearing, the Referee acknowledged that Mr. Carnahan
used very strong language against Respondent during the bar grievance hearing,
even calling her diabolical. (T3, 35, 43).
The Referee entered a report on April 30, 2014. (R, 38, 1-29). In the report,
the Referee made findings of fact with regard to Respondent’s conduct that can be
summarized as follows: 1. Respondent misstated the speedy trial rule in the
juvenile proceeding, 2.Respondent made misrepresentations in the habeas corpus
motion that the Fifth District did not read her brief, 3. Respondent failed to divulge
she was citing to a concurring opinion in a memo of law in the juvenile
proceeding, 4. Respondent falsely testified under oath regarding conversations with
her daughter’s probation officer, 5. Respondent failed to disclose to Judge Takac in
17
the civil proceeding that she had previously filed a defective motion to disqualify,
and 6. Respondent used disparaging language against the court and prosecutor at
various times with respect to her daughter’s juvenile proceedings thereby acting
with “callous indifference” toward the prosecutor, judge and appellate court. (R,
38: 1-29).
As a result of the above conduct, the Referee recommended findings of guilt
against Respondent for violation of the following rules: 4-3.3(a)(1), “A lawyer
shall not knowingly make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to the tribunal by
the lawyer.”; 4-8.4(c) “A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation; and 4-8.4(d) “A lawyer shall not engage in
conduct in connection with the practice law that is prejudicial to the administration
of justice, including to knowingly or through callous indifference, disparage,
humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or
other lawyers on any basis including but not limited to, on account of race,
ethnicity, gender, religion, national origin, disability, marital status, sexual
orientation, age, socioeconomic status, employment, or physical characteristic.(R,
38: 16).
With respect to Respondent’s argument that the juvenile records were
protected and should not have been used as evidence against her by the Bar, the
18
Referee found that the records were admissible because Bar proceedings are not
governed by technical rules of evidence, and because the records were redacted
and can still be sealed subsequent to the hearing by either party. (R, 38: 13-15).
The Referee further accused Respondent of a “misrepresentation” during the
sanction hearing because Respondent allegedly said during that hearing that there
was a case on point showing inadmissibility of the juvenile records, but was unable
to provide such case when asked during live argument at the hearing (R, 38: 13).
On the other hand, the Referee acknowledged that Respondent relied on the case of
GG v. Florida Department of Law Enforcement, 97 So.3d 268 (Fla. 1st DCA 2012)
in her written closing argument as support for the proposition that the juvenile
records were inadmissible. (R, 38: 13).
The Referee acknowledged that Respondent had only been practicing law
for nine or ten months at the time the offenses occurred in the juvenile
proceedings. (R, 38: 9). The Referee further recognized the difficulty and “unusual
circumstances” involved with Respondent’s “duty as a parent juxtaposed against
her duty to the judicial system” and the toll that the Bar proceedings have taken on
respondent emotionally. (R, 38: 15, 24). He found as mitigating factors that the
Respondent had no prior disciplinary record; Respondent had personal or
emotional problems as “the mother of a child she believes was wrongfully arrested
and convicted” and that “the child and family have suffered both financially,
19
physically, and emotionally due to the child’s arrest”; Respondent’s inexperience in
the practice of law; and Respondent’s character or reputation as supported by a
character reference submitted by David Honig, President and CEO of Minority
Media and Telecommunications Council. (R, 38: 19).
Based on the foregoing, the Referee recommended Respondent be found
guilty of misconduct and the following disciplinary measures: 1. A ninety-one day
suspension until rehabilitation has been shown; 2. Prior to reinstatement, that
Respondent undergo an evaluation by a mental health professional, and 3.
Respondent pay the Bar’s costs of $5,595.45. (R, 38: 27).
Note that there was no medical evidence presented showing that Respondent
suffered from mental health issues. The only evidence in the record with regard to
Respondent’s mental state is the accusation by Mr. Carnahan that Respondent has
“some mental health problems” in addition to being “diabolical.” (T1, 197-8).
Respondent timely filed a petition for review asking this Court to review the
Referee’s recommendations.
STANDARD OF REVIEW
With regard to factual findings of the Referee, the standard of review is
whether competent substantial evidence supports those findings. Fla. Bar v.
Committe, 916 So. 2d 741, 746 (Fla. 2005). However, with regard to the
recommended disciplinary action, the Court’s scope of review is broader because it
20
is ultimately the Court’s responsibility to order the appropriate sanction. See Fla.
Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989).
SUMMARY OF ARGUMENT
I.
There is no competent substantial evidence in the record to support the
Referee’s findings of misrepresentation. Where there is an alleged
misrepresentation and the Bar does not present a first-party witness to said
misrepresentation, there is not competent substantial evidence to support a finding
of guilt. Fla. Bar v. Williams-Yulee, No. SC11-265, (May 1, 2014). Here, the Bar
presented no first-party testimony to contradict Respondent’s testimony that she
made no such misrepresentations. Instead, the Bar relied almost solely on Mr.
Carnahan’s third-party biased opinion against Respondent, rather than on first-
party testimony from Judge Takac or the probation officer. As such, the Referee’s
findings of guilt on these points should be reversed.
II.
The Referee erred in admitting protected juvenile records into evidence; and
competent substantial evidence does not support his finding of misrepresentation
with regard to Respondent’s assertion during the sanction hearing that “the law”
supports her position that the juvenile records are inadmissible.
21
Even assuming arguendo that the Bar had obtained the juvenile records in
compliance with §985.045(2), the court records and transcripts of the juvenile
proceedings would still be inadmissible in any type of civil proceeding.
§985.045(4), Fla. Stat. Thus, the Referee erred in admitting those records into
evidence and relying on them in his recommendation of guilt.
Additionally, there is no competent substantial evidence to support the
Referee’s finding that Respondent misrepresented that she had case law on point
with regard to the admissibility of the juvenile records during the sanction hearing.
Respondent never used the word “case” or “case law” but instead said “the law”
provides that juvenile records are inadmissible. (T3, 46). Further, the Referee’s
acknowledged Respondent’s citation to GG v. Florida Department of Law
Enforcement, 97 So.3d 268 (Fla. 1st DCA 2012), a case that supports her
argument.
III.
The Referee erred in his findings with respect to Respondent’s use of
language conveying her belief that her daughter was illegally arrested and was
unfairly treated, and that her case involved racial and political bias. The Referee
relied on Fla. Bar. v. Ray, 797 So.2d 556 (Fla. 2001) which holds that there must
be an objectively reasonable basis for statements against the court. Respondent has
22
an objectively reasonable basis for her belief that her daughter’s case was an
injustice, and thus did not engage in misconduct.
ARGUMENT
I. THERE IS NO COMPETENT SUBSTANTIAL EVIDENCE IN THE
RECORD TO SUPPORT THE REFERREE’S FINDINGS OF
MISREPRESENTATION
There is no competent substantial evidence in the record to support the
Referee’s findings of misrepresentation. The Referee found that Respondent made
misrepresentations with respect to 1. The speedy trial motion in her daughter’s
juvenile case, 2. A memorandum of law citing to a concurring opinion in the
juvenile case, 3. Conversations with her daughter’s probation officer in the juvenile
case, 4. The habeas corpus motion assertion that the Fifth District did not read her
brief, and 5. Failing to advise Judge Takac in the civil case that Respondent had
filed a defective motion to disqualify prior to filing a non-defective motion.
Where there is an alleged misrepresentation and the Bar does not present a
first-party witness to said misrepresentation, there is not competent substantial
evidence to support a finding of guilt. Fla. Bar v. Williams-Yulee, No. SC11-265,
(May 1, 2014). For example, in the case of Williams-Yulee, the Bar alleged that
the respondent had made a misrepresentation to a reporter in the context of her
23
election for judge; however, the Bar did not present the reporter’s testimony at the
hearing and instead relied solely on the reporter’s article. Id. This Court held that
competent substantial evidence did not support the referee’s recommendation of
guilt as to the alleged misrepresentation because the respondent testified that she
did not make a misrepresentation to the reporter and the reporter did not testify to
the contrary.
Similarly, in the instant case, the Bar alleged and the Referee found that
Respondent attempted to mislead Judge Takac with respect to the speedy trial
motion and citation to a concurring opinion in a memorandum of law. However,
Respondent herself testified that she did not intend to mislead the judge, and Judge
Takac offered no testimony that he was misled. In fact, Judge Takac never
sanctioned Respondent during the juvenile proceeding for any reason; nor did Mr.
Carnahan ever move for sanctions. At no time during the juvenile proceedings
were any of Respondent’s alleged violations brought to her or the court’s attention.
It was not until Respondent filed a bar complaint against Mr. Carnahan several
years later, that Mr. Carnahan raised issues with Respondent’s conduct in the
juvenile proceeding for the first time.
Without testimony from Judge Takac that Respondent made
misrepresentations to the court with regard to the speedy trial motion and
concurring opinion citation, there is no competent substantial evidence in the
24
record to support such a finding. All that was presented was the clearly personal
allegations from Mr. Carnahan - who put sticky notes on documents he saved in
anticipation of the day he would file a complaint against Respondent - and accused
her of acting “diabolically” and having mental health issues. More importantly,
Mr. Carnahan’s testimony is not competent evidence that Respondent acted with
intent to deceive the court in her juvenile case. Only Judge Takac can testify to
that, and he did not.
Furthermore, there is no competent substantial evidence to support that
Respondent made misrepresentations to her daughter’s probation officer in the
context of the juvenile proceeding. The Bar did not present the testimony of the
probation officer. Instead, much like the Williams-Yulee case, the bar relied on the
probation officer’s notes. Without first-party testimony from the probation officer,
the Referee’s finding of guilt cannot be upheld. Respondent testified that she made
no misrepresentations to the probation officer. Without contrary testimony from
the probation officer herself, there is no competent substantial evidence in the
record to support the Referee’s findings of guilt on this point.
Moreover, there is no competent substantial evidence in the record to
support that Respondent made misrepresentations in her motion for habeas corpus
by suggesting that the Fifth District did not review her brief. Respondent was the
only witness to testify on this point, and testified that she had no intent to deceive.
25
Furthermore, Judge Takac had no recollection of the motion, and at no time during
the juvenile proceedings was Respondent’s alleged transgression brought to her
attention, nor was she sanctioned or cautioned in any way.
Lastly, there is no competent substantial evidence to support that
Respondent made a misrepresentation to Judge Takac by omission in failing to
advise him of a prior, defective motion to disqualify him in her civil case at the
time she filed a subsequent, non-defective motion. Again, Judge Takac offered no
testimony that he was misled or that he felt that there was an intent to mislead him
by Respondent. Instead, he testified that he was aware of both motions the entire
time, and was actually preparing an order on the first motion to disqualify at the
time the second motion came in. Furthermore, Judge Takac’s order on the motion
was in clear violation of Rule 2.330 because he passed on the truth of the facts
alleged in the motion. Rule 2.330, Fla. R. Jud. Admin. That improper order was
used as the basis for Count II of the Bar’s complaint.
Altogether, the Referee’s findings as to misrepresentations by Respondent
are not supported by competent substantial evidence, because the Bar presented no
first-party testimony to contradict Respondent’s testimony that she made no such
misrepresentations. Instead, the Bar relied almost solely on Mr. Carnahan’s third-
party biased opinion against Respondent (who had filed a bar complaint against
Mr. Carnahan that Mr. Carnahan felt the need to vehemently defend), rather than
26
on first-party testimony from Judge Takac or the probation officer. As such, the
Referee’s findings of guilt on these points should be reversed.
II. THE REFEREE ERRED IN ADMITTING PROTECTED JUVENILE
RECORDS INTO EVIDENCE; AND COMPETENT
SUBSTANTIAL EVIDENCE DOES NOT SUPPORT HIS FINDING
OF MISREPRESENTATION WITH REGARD TO
RESPONDENT’S ASSERTION THAT “THE LAW” SUPPORTS
HER ARGUMENT
The Referee erred in admitting protected juvenile records into evidence; and
competent substantial evidence does not support his finding of misrepresentation
with regard to Respondent’s assertion during the sanction hearing that “the law”
supports her position that the juvenile records are inadmissible.
As discussed on the Statement of Case and Facts, supra, Respondent
objected to the admissibility of the records of her daughter’s juvenile court
proceedings under §985.045, Florida Statutes. Section 985.045 (2) states,
Except as provided in ss. 943.053 and 985.04(6)(b) and (7), official records required by this chapter are not open to inspection by the public, but may be inspected only upon order of the court by persons deemed by the court to have a proper interest therein, except that a child and the parents, guardians, or legal custodians of the child and their attorneys, law enforcement agencies, the Department of Juvenile Justice and its designees, the Florida Commission on Offender Review, the Department of Corrections, and the Justice Administrative Commission shall always have the right to inspect and copy any official record pertaining to the child.
27
§985.045(2), Fla. Stat. (emphasis added).
Thus, in order to obtain protected juvenile records, there must be an order of
the court deeming a “proper interest therein” or one of the enumerated exceptions
must be met. That is, “a child and the parents, guardians, or legal custodians of the
child and their attorneys, law enforcement agencies, the Department of Juvenile
Justice and its designees, the Florida Commission on Offender Review, the
Department of Corrections, and the Justice Administrative Commission” are the
exceptions to the court order requirement in that they “shall always have the right
to inspect and copy any official record pertaining to the child.” §985.045, Fla. Stat.
There is no evidence that the Florida Bar sought an order of the court deeming that
it had proper interest in the records before they were obtained. Furthermore, the
Bar does not meet any of the enumerated exceptions.
Moreover, §985.045(4) states:
A court record of proceedings under this chapter is not admissible in evidence in any other civil or criminal proceeding, except that: (a) Orders transferring a child for trial as an adult are admissible in evidence in the court in which he or she is tried, but create no presumption as to the guilt of the child; nor may such orders be read to, or commented upon in the presence of, the jury in any trial. (b) Orders binding an adult over for trial on a criminal charge, made by the committing trial court judge, are admissible in evidence in the court to which the adult is bound over.
28
(c) Records of proceedings under this chapter forming a part of the record on appeal must be used in the appellate court in the manner provided in s. 985.534. (d) Records are admissible in evidence in any case in which a person is being tried upon a charge of having committed perjury, to the extent such records are necessary to prove the charge. (e) Records of proceedings under this chapter may be used to prove disqualification under ss. 110.1127, 393.0655, 394.457, 397.451, 402.305, 402.313, 409.175, 409.176, and 985.644.
§985.045(4), Fla. Stat. (emphasis added). Therefore, even assuming arguendo that the Bar had obtained the records in
compliance with §985.045(2), the court records and transcripts of the juvenile
proceedings would still be inadmissible in any type of civil proceeding.
§985.045(4), Fla. Stat. There is no exception enumerated in the rule for Bar
proceedings. Under the oft-cited principle of statutory construction, expressio
unius est exclusio alterius, the express mention of one thing in a statute necessarily
implies the exclusion of the things not mentioned. See ex. Leftwich v. Dep’t of
Corrections, No. SC12-2669, (Fla. September 18, 2014). Under the maxim, the fact
that certain exceptions to the rule against admissibility are expressly mentioned
means that all other possible exceptions are excluded, including Bar grievance
procedures. Id. Thus, the Referee erred in admitting those records into evidence
and relying on them in his recommendation of guilt, where the Bar had no right to
obtain or use those records.
29
Further, Respondent testified that she was shocked when the transcripts of
the juvenile proceedings were presented against her at the final hearing. (T3, 46).
There is no evidence in the record that witness or exhibit lists were exchanged or
that Respondent was ever provided a copy of the juvenile transcripts prior to the
final hearing. (R, 1-39).
The Bar suggested during the sanction hearing that because Respondent
herself had provided the Bar some of the juvenile records during discovery, she
should not be able to argue that the records are inadmissible. This argument fails
because Respondent has a duty to cooperate with the Bar during their investigation.
Furthermore, the law is well-established that just because evidence is discoverable,
does not mean it is admissible.
Without these records, Bar counsel acknowledged its case against
Respondent must fail.
Additionally, there is no competent substantial evidence to support the
Referee’s finding that Respondent misrepresented that she had case law on point
with regard to the admissibility of the juvenile records during the sanction hearing.
A thorough reading of the transcript reveals Respondent never used the word
“case” or “case law” but instead said “the law” provides that juvenile records are
inadmissible. (T3, 46). Further, the Referee’s order states that Respondent’s
closing argument contained a case citation to GG v. Florida Department of Law
30
Enforcement, 97 So.3d 268 (Fla. 1st DCA 2012), case law that supports her
argument, though the Referee did not find it dispositive. Thus, competent
substantial evidence does not support the Referee’s determination that Respondent
made a misrepresentation on this point.
III. THE REFEREE ERRED IN HIS FINDINGS WITH RESPECT TO
RESPONDENT’S USE OF LANGUAGE CONVEYING HER
BELIEF THAT HER DAUGHTER WAS ILLEGALLY ARRESTED,
UNFAIRLY TREATED, AND THAT HER CASE INVOLVED
RACIAL AND POLITICAL BIAS
The Referee erred in his findings with respect to Respondent’s use of
language conveying her belief that her daughter was illegally arrested and was
unfairly treated, and that her case involved racial and political bias. In addition to
making findings regarding misrepresentations by Respondent as discussed above,
the Referee also found that Respondent’s made “disparaging remarks” about the
prosecution of her daughter’s case and that there was no objective evidence to
support those complaints.
The Referee relied on Fla. Bar. v. Ray, 797 So.2d 556 (Fla. 2001). In that
case, this Court clarified that where there is a objectively reasonable basis for
statements against the court, there is no misconduct. Id.
31
Contrary to the Referee’s findings, there is objective evidence in the record
that substantiates why Respondent may have a reasonable basis for her statements,
including, inter alia:
1. The letter from the City of Mount Dora suggesting Respondent’s
daughter was not one of the rock throwers on the night she was arrested;
2. Comments made by Mr. Carnahan during his testimony attacking
Respondent, even calling her “diabolical”;
3. Heated comments made by Judge Takac that were read into the record
from the juvenile proceeding, including when he referred to
Respondent’s daughter as “Miss Know-It-All”; and,
4. The fact that one of the Florida Supreme Court justices felt her appeal to
the Supreme Court was compelling enough to grant discretionary review.
Thus, there is no competent substantial evidence in the record to support the
Referee’s holding that there was no objective basis by which Respondent could
make statements against the court.
CONCLUSION
To this day, Respondent believes that her daughter’s arrest and the
circumstances surrounding her juvenile court proceedings were unfair, and racially
or politically motivated. In fact, all parties and the Referee agree: Respondent is
sincere in her belief that her daughter’s juvenile case was an injustice.
32
Therefore, there can be no intent, no mens rea with respect to Respondent’s
conduct. Respondent passionately believes that the legal system failed her and her
daughter. Now, it seems, things keep getting worse: the Referee recommended she
be suspended from the practice of law for ninety-one days, assessed over $5,000.00
in costs, and ordered to undergo a mental health evaluation7 before returning to the
practice of law.
Altogether, the Referee’s findings regarding misrepresentations by
Respondent are not supported by competent substantial evidence. There is no first-
party testimony showing an intent to mislead as to any of the alleged misconduct.
The Bar’s star witness against Respondent, Assistant State Attorney Carnahan was
clearly biased and motivated by a personal need to feel vindicated from
Respondent’s accusations against him.
In addition, because Respondent has an objective basis for her belief that her
daughter’s juvenile case was an injustice, and because there is ongoing litigation in
Federal Court in that regard,8 the Referee’s findings with respect to the
“disparaging language” used by Respondent were also error.
7 Note that no medical evidence, like a psychiatric evaluation, was submitted to support this recommendation. 8 See f.n. 2, supra.
33
Therefore, the Referee’s findings of guild should be disapproved and his
recommended sanctions should likewise be disapproved as unduly harsh given the
totality of circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the Initial Brief has been furnished
via electronic mail on this 26 day of September, 2014, to JoAnn Marie Stalcup,
The Florida Bar, 1000 Legion Place, Suite 1625, Orlando, FL 32801-1050,
[email protected], [email protected], Attorney for Complainant.
/s/__________________________________ Kelli Biferie Hastings, Esquire Florida Bar No. 588512 Law Office of Kelli Biferie Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 T: (407) 539-3032 F: (407) 667-8900 [email protected] Attorney for Respondent
CERTIFICATE OF TYPE FACE COMPLIANCE I HEREBY CERTIFY that this Initial Brief of Appellant was computer-
generated using Times New Roman fourteen point font on Microsoft Word, and
thereby complies with the font standards as required by Fla. R. App. P. 9.210 for
computer-generated briefs.
/s/ Kelli Biferie Hastings, Esquire