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Filing # 25536993 E-Filed 03/31/2015 03:30:58 PM
BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION
STATE OF FLORIDA
INQUIRY CONCERNING JUDGE
LINDA D. SCHOONOVER. S. Ct. Case No.: 14-1647
RESPONDENT'S RENEWED MOTION FOR STAY
cThe Respondent, Judge Linda D. Schoonover, through her undersigned
counsel, files this, her Renewed Motion for Stay, and in support would state:
1. The Respondent intends to file with the Supreme Court of Florida, in
the immediate future. a Petition for Writ of Mandamus or Constitutional Writ.
Therein, the Respondent will seek issuance by the Supreme Court of Florida of a
writ mandating that the JQC produce to the Respondent copies of all complaints
filed against her with the JQC and prohibiting the JQC from seeking any further
release of her private medical records. The Petition will specifically seek review
of the JQC's various orders denying the Respondent's discovery request for all
complaints filed against her with the JQC and compelling the Respondent to
execute a HIPAA release related to certain medical records in possession of
within 48 hours and permitting the JQC to subpoena certain medical
records in possession of
2
2. A final draft of the Petition is not yet completed. However, for
purposes of showing the Respondent’s commitment to the legal merits of her
positions and the likelihood of reversal or other relief on review, the Respondent
attaches hereto a present draft of the Petition as “Exhibit A.”
3. The Petition will be filed on the basis of Rule 21 of the Florida
Judicial Qualifications Commission Rules, which provides for immediate review
of non-final orders of the Hearing Panel by appropriate extraordinary writ directly
to the Supreme Court.
4. Rule 21 also provides: “In the absence of a stay the hearing shall
proceed to a conclusion.”
5. The Respondent submits that, in light of the facts that: (A) one order
to be reviewed imposes a 48 hour deadline and permits discovery into the
Respondent’s private medical records; (B) the other order to be reviewed regards
whether certain records are discoverable; (C) discovery of certain material or
information often leads to the need for further discovery requests; (D) the
discovery deadline in this proceeding is less than three weeks from now; and (E)
the final hearing in this proceeding is scheduled in just over a month from now, a
renewed request is justified, and a stay of these proceedings pending the Supreme
Court of Florida’s review of the non-final orders at issue is appropriate.
3
6. The usual function of a stay is to restore or maintain the status quo,
the purpose being to preserve the subject of the litigation so that the appellate
jurisdiction may be effective. See, e.g., Willey v. W.J. Hoggson Corp., 89 Fla. 446,
450, 105 So. 126, 128 (Fla. 1925).
7. In the absence of a stay of these proceedings, the medical records that
the Respondent seeks to protect via the Petition to the Supreme Court of Florida
will be disclosed to the JQC and, thereby, may be made public. That would defeat
the purpose of the Petition and render the Supreme Court of Florida’s jurisdiction
over this issue ineffective.
8. Similarly, in the absence of a stay of these proceedings, the discovery
deadline will pass and the Respondent will be forced to prepare for the final
hearing without the benefit of the complaints filed with the JQC. That would also
defeat the purpose of the Petition and render the Supreme Court of Florida’s
jurisdiction ineffective.
WHEREFORE, the Respondent, Judge Linda D. Schoonover, hereby
respectfully requests that the Hearing Panel stay this proceeding, or at a minimum,
stay the Order on Status Conference and any other pending orders requiring
disclosure of her medical records and continue the pre-hearing conference and final
hearing, until such time as the Supreme Court of Florida rules on the merits of her
Petition for Writ of Mandamus or Constitutional Writ.
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
furnished by email to Henry M. Coxe, III, [email protected]; Michael L.
Schneider, [email protected]; Lauri Waldman Ross,
[email protected]; and Ashley Greene, [email protected], on this 31day of
March, 2015.
/s/ Barry Rigby___________________
Barry Rigby
Florida Bar Number 613770
Law Offices of Barry Rigby, P.A.
924 N. Magnolia Avenue, Suite 350
Orlando, FL 32803
Phone (407) 999-2630
Facsimile (407) 999-2631
Primary Email: [email protected]
Secondary Email: [email protected]
Attorney for the Hon. Linda D. Schoonover
EXHIBIT “A” TO RENEWED MOTION FOR STAY
(Draft Petition for Writ of Mandamus or Constitutional Writ)
i
IN THE SUPREME COURT OF FLORIDA
JUDGE LINDA D. SCHOONOVER,
Petitioner,
v.
FLORIDA JUDICIAL
QUALIFICATIONS COMMISSION,
Respondent.
Case No. _____________
L.T. Case No. SC14-1647
_____________________________/
___________________________________________
PETITON FOR WRIT OF MANDAMUS OR CONSTITIONAL WRIT
RELATING TO A NON-FINAL ORDER OF THE
FLORIDA JUDICIAL QUALIFICATIONS COMMISSION
___________________________________________
Barry W. Rigby
Florida Bar No. 613770
Law Offices of Barry Rigby, P.A.
924 North Magnolia Ave., Suite 350
Orlando, Florida 32803
Phone: 407-601-5931
Fax: 407-386-6150
Email: [email protected]
Attorney for the Hon. Linda D. Schoonover
ii
TABLE OF CONTENTS
Cover Page ........................................................................................................ i
Table of Contents .............................................................................................. ii
Table of Authorities .......................................................................................... iii
Preliminary Statement ....................................................................................... v
Jurisdictional Statement .................................................................................... 1
Statement of Case and Facts ............................................................................. 4
Relief Sought ..................................................................................................... 12
Argument
Issue I: The JQC Order requiring Judge Schoonover to submit
to a psychological Evaluation was beyond the scope and in
violation of the Rules of the Judicial Qualifications Commission
and is in violation of Judge Schoonover’s due process and privacy
rights under the United States and Florida Constitution and its
conduct underlying such order violates the American Disabilities
and HIPPA. ............................................................................................. 13
Issue II: The JQC’s Refusal to Provide Discovery after the finding
of probable cause, under a cloak of “confidentiality,” violates the
Rules of Judicial Administration and Florida Judicial Qualifications
Commission Rules .................................................................................. 20
Conclusion ........................................................................................................ 26
Certificate of Compliance ................................................................................. 28
Certificate of Service ........................................................................................ 28
iii
TABLE OF AUTHORITIES
Constitution, Statutes, and Rules
Article I, Section 16, of the Florida Constitution ........................................ 26
Article I, Section 23, of the Florida Constitution ........................................ 19
Article I, Section 24, of the Florida Constitution ........................................ 22
Article I, Section 25, of the Florida Constitution ........................................ 23
Article V, Section 3, of the Florida Constitution ......................................... 1-2
Article V, Section 12, of the Florida Constitution ....................................... 1-3, 13
Rule 9.010, Florida Rules of Appellate Procedure ...................................... 1
Rule 2.420, Florida Rule of Judicial Administration ................................... 21-23
Rule 6, Florida Judicial Qualifications Committee Rules ........................... 4-5
Rule 13, Florida Judicial Qualifications Committee Rules ......................... 6-7, 14
Rule 21, Florida Judicial Qualifications Committee Rules ......................... 1-3
Rule 23, Florida Judicial Qualifications Committee Rules ......................... 25
Caselaw
Adlington v. Spooner, 743 So. 2d 1195 (Fla. 4th DCA 1999) ..................... 2
Florida Senate v. Graham, 412 So. 2d 360 (Fla. 1982) .............................. 3
Forbes v. Earle, 298 So. 2d 1 (Fla. 1974) ................................................... 2, 23-24
In re Amendments to Florida Rule of Judicial Administration 2.420
– Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007) .......... 22
iv
In re Amendments to the Rules of Judicial Administration,
915 So. 2d 157 (Fla. 2005) ........................................................................... 22
In re Eriksson, 36 So. 3d 580 (Fla. 2010) .................................................... 24
In re Graziano, 696 So. 2d 744 (Fla. 1997) ................................................. 24-25
In re Inquiry Concerning a Judge, 357 So. 2d 172, 181 (Fla. 1978) .......... 26
Media General Convergence v. Chief Judge of the Thirteenth
Judicial Circuit, 794 So. 2d 631 (Fla. 2001) ............................................... 25
State ex rel. Chiles v. Public Employees Relations Commission,
630 So. 2d 1093 (Fla. 1994) ......................................................................... 3
Williams v. State, 913 So. 2d 541 (Fla. 2005) ............................................. 3
v
PRELIMINARY STATEMENT
This Petition arises from a proceeding of the Florida Judicial Qualifications
Commission, which shall be referred to herein as the “JQC.”
Petitioner, Judge Linda D. Schoonover, is the Respondent in the JQC
proceeding and shall be referred to herein as “Judge Schoonover.”
The General Counsel to the JQC is Michael L. Schneider, who shall be
referred to herein as “General Counsel.”
The Special Counsel to the JQC relating to the charges against Judge
Schoonover is Henry M. Coxe, III, who shall be referred to herein as “Special
Counsel.”
The Hearing Panel of the JQC is comprised of five individuals, who shall be
referred to herein as “Hearing Panel.”
The Hearing Panel Chair is Judge Robert Morris, who shall be referred to
herein as “Hearing Panel Chair.”
Citations to the Appendix submitted herewith by Judge Schoonover shall be
in the following format: (Pet. App. __.)
1
JURISDICTIONAL STATEMENT
Article V, Section 12, of the Florida Constitution, establishes the JQC,
provides the JQC with authority to adopt rules regulating its proceedings, and
provides the Supreme Court of Florida with final authority to accept, reject, or
modify the findings, conclusions, and recommendations of the JQC.
Pursuant to that constitutional authority, the JQC adopted the Florida
Judicial Qualifications Committee Rules. Rule 21(a) thereof provides:
RULE 21. REVIEW OF PROCEEDINGS
(a) Non-Final. Non-final orders of the Hearing Panel are subject to
immediate review only where it can be demonstrated that an order
departs from the essential requirements of law, causing material injury
to the petitioner, and leaving no adequate remedy after issuance of the
Hearing Panel’s report and recommendations. Review of such orders
shall be by appropriate extraordinary writ, directly to the Supreme
Court. In the absence of a stay the hearing shall proceed to a
conclusion.
As will be addressed in the argument section of this Petition, it is submitted
herein that that the Hearing Panel orders at issue in this Petition depart from the
essential requirements of law, causing material injury to the petitioner, and leaving
no adequate remedy after issuance of the Hearing Panel’s report and
recommendations.
Pursuant to Article V, Section 3, of the Florida Constitution, and Rule
9.010(a)(3), of the Florida Rules of Appellate Procedure, the Supreme Court of
2
Florida may issue writs of mandamus to state officers and state agencies and all
writs necessary to the complete exercise of its jurisdiction.
One “appropriate extraordinary writ” for which a party may petition to
obtain review of non-final orders entered by a Hearing Panel, pursuant to Rule 21
of the Florida Judicial Qualifications Committee Rules, is a writ of mandamus to
state agencies. See Art. V, Sec. 3(b)(8), Fla. Const.; Forbes v. Earle, 298 So. 2d 1,
2 (Fla. 1974) (implicitly accepting jurisdiction over petition for writ of mandamus
filed for the purpose of compelling the JQC to comply with a subpoena duces
tecum for all files in its possession containing information of asserted judicial
misconduct that could lead to impeachment).
The JQC is a state agency because Article V, Section 12(a)(1), of the Florida
Constitution provides for its formation. See Adlington v. Spooner, 743 So. 2d
1195, 1196 (Fla. 4th DCA 1999) (holding the Florida Parole Commission is a state
agency for same reason).
Another “appropriate extraordinary writ” for which a party may petition to
obtain review of non-final orders entered by a Hearing Panel, pursuant to Rule 21
of the Florida Judicial Qualifications Committee Rules, is the “constitutional writ”
that this Court may grant under its authority to grant “all writs necessary to the
complete exercise of its jurisdiction.” See Art. V, Sec. 3(b)(7), Fla. Const.
3
Although the “all writs” provision does not constitute a separate source of
original or appellate jurisdiction, “it operates as an aid to the Court in exercising its
‘ultimate jurisdiction,’ conferred elsewhere in the constitution.” Williams v. State,
913 So. 2d 541, 543 (Fla. 2005). Article V, Section 12(c), of the Florida
Constitution confers this Court with jurisdiction related to JQC proceedings and, as
such, it may exercise its “all writs” jurisdiction to review non-final orders of the
JQC. This Court’s “all writs” jurisdiction is not limited to pending cases squarely
falling within another basis of jurisdiction, but may be used to protect the future
exercise of this Court’s jurisdiction. Florida Senate v. Graham, 412 So. 2d 360,
361 (Fla. 1982) (stating “because jurisdiction of the issue of apportionment will
vest in this Court with certainty in this year we have the jurisdiction conferred by
Article V, section 3(b)(7) to issue all writs necessary to the complete exercise and
in aid of [its] ultimate jurisdiction”); cf. State ex rel. Chiles v. Public Employees
Relations Commission, 630 So. 2d 1093, 1094-1095 (Fla. 1994) (stating “because
the regulation of attorneys falls within the Court's ultimate power of review, the all
writs clause could arguably be invoked as a basis for this Court's jurisdiction” over
a petition by the State Employees Attorneys Guild with the Public Employees
Relation Commission seeking certification of a bargaining unit).
4
STATEMENT OF CASE AND FACTS
This Petition arises from a proceeding initiated by the Florida Judicial
Qualifications Commission against Judge Linda D. Schoonover. Judge
Schoonover petitions this Court for a writ of mandamus or constitutional writ to
remedy (I) the Hearing Panel’s denial of her motion for protective order relating to
her private medical records and (II) the Hearing Panel’s denial of her motion to
compel the disclosure of the complaints filed against her with the JQC. The
procedural and factual background relevant to this Petition is as follows.
I. THE INVESTIGATIVE PANEL PROCEEDING
On August 28, 2013, General Counsel for the JQC executed a Notice of
Investigation against Judge Schoonover, which alleged violations of the Code of
Judicial Conduct. (Pet. App. 1.) The JQC held a hearing on such charges on
December 6, 2013. (Pet. App. 2.) The transcript of that hearing is included in
Petitioner’s Appendix. (Pet. App. 2).
At the hearing, General Counsel asked impromptu questions of Judge
Schoonover regarding medications she was taking and her mental health treatment,
in violation of her rights under the American with Disabilities Act (ADA) and Rule
6(b), of the Florida Judicial Qualifications Committee Rules. (Pet. App. 2, pg. __.)
Rule 6(b) provides that “before the Investigative Panel determines that there is
probable cause to initial formal charges, the Judge shall be notified of the
5
investigation, the general nature of the subject matter of the investigation, and shall
be afforded reasonable opportunity to make a statement before the Investigative
Panel, personally or by the judge’s attorney, verbally or in writing, sworn or
unsworn, explaining refuting or admitting the alleged misconduct or disability and
to respond to questions from the Panel.” (Emphasis added.) The Notice of
Investigation did not mention or advise Judge Schoonover that the JQC was
investigating her mental health. (Pet. App. 1.) Rather, the focus thereof related to
her alleged failure in managing her cases (Pet. App. 1.)
Judge Schoonover did not learn that the JQC was investigating her mental or
emotional health until she received an order from General Counsel requiring her to
undergo a psychological evaluation by
1 (Pet. App. 5). In an email correspondence from General Counsel to John
Frost (“Frost”), then counsel to Judge Schoonover, General Counsel advised Frost
that the JQC required Judge Schoonover to submit to a psychological examination.
(Pet. App. 6.) According to this email, this was “based upon the Commission’s
1 Pursuant to Rule 13, of the Florida Judicial Qualification Commission Rules:
“Upon receiving information that a judge is suffering from a possible physical or
mental disability which seriously interferes with the performance of a judge’s
duties, the Investigative Panel, upon a majority vote, may order the judge to submit
to a physical or mental examination and/or may give notice of formal charges
pursuant to Rule 6, infra. If the Judge fails to submit to such examination within
the time ordered, the Investigative Panel may recommend to the Supreme Court
that the judge is suspended without compensation until such time as the judge
complies with the Panel’s order.”
6
investigation, and the judge’s disclosure at the 6(b) hearing that she takes some
prescription medicine for anxiety.” (Pet. App. 6.) (Emphasis added.) While the
transcript from Judge Schoonover’s hearing before the JQC does include a series
of questions regarding medications she was taking and her mental health treatment,
(Pet. App. 7, p. 83), the transcript does not include any question directed to or
response from Judge Schoonover regarding medication for “anxiety.”
On January 10, 2013, General Counsel issued an order to Judge Schoonover
that provided, in part: “Should you fail to submit to the examination as ordered, the
Investigative Panel may recommend to the Supreme Court of Florida that you will
be suspended without compensation until such time as you comply with this
Order.” (Pet. App. 8.) Judge Schoonover, threatened with the loss of her
livelihood and desiring to cooperate with the JQC, after advice of counsel, attended
the examination. (Pet. App. __.)
The subsequent report did not find that Judge Schoonover has a mental
disability, or any condition that “seriously interferes with her ability to perform her
duties,”2 as is required by the Constitution of the State of Florida, as well as Rule
2 Pursuant to Rule 13, of the Florida Judicial Qualifications Committee Rules:
“Upon receiving information that a judge is suffering from a possible physical or
mental disability which seriously interferes with the performance of a judge’s
duties, the Investigative Panel, upon a majority vote, may order the judge to submit
to a physical or mental examination and/or may give notice of formal charges
pursuant to Rule 6, infra. If the Judge fails to submit to such examination within
the time ordered, the Investigative Panel may recommend to the Supreme Court
7
13, of the Florida Judicial Qualifications Committee Rules. (Pet. App. __.) Nor
did the JQC-appointed psychologist find that Judge Schoonover had a permanent,
serious or untreatable condition. (Pet. App. __.)
Significantly, the JQC provided to a copy of R. Butler’s July 17,
2013, investigative report and the transcript of the December 6, 2013, hearing,
(Pet. App. 9), neither of which had been provided to Judge Schoonover.
During the December 6, 2013, hearing, General Counsel alleged that he had
served Judge Schoonover with an Amended Notice of Investigation, (Pet. App.
10), with regard to Facebook-related issues, (Pet. App. 7, pg __.) However, neither
Judge Schoonover nor her counsel had received the Amended Notice of
Investigation. (Pet. App. 7, pg __.) Nonetheless, questions were asked of Judge
Schoonover regarding Facebook-related issues, without prior notice to Judge
Schoonover. (Pet. App. 7, pg __.)
General Counsel served a Second Amended Notice of Investigation after
Judge Schoonover had complied with the JQC ordered mental exam. (Pet. App.
11.) Like the initial Notice of Investigation, the Second Amended Notice of
Investigation did not allege that Judge Schoonover’s mental or emotional health
was at issue, other than inclusion of an allegation that Judge Schoonover’s children
that the judge is suspended without compensation until such time as the judge
complies with the Panel’s order.”
8
thought she suffered from a mental illness. (Pet. App. __.) In fact, the JQC
declined to ask any questions of Judge Schoonover related to her mental health
following such report by at the April 6, 2014, follow-up
6(b) hearing. (Pet. App. 12.)
In July 2014, Judge Schoonover received a Third Notice of Investigation.
(Pet. App. __.) This Notice was executed by Special Counsel, rather than General
Counsel. Pursuant to this Notice, another investigative hearing was set for August
1, 2010. (Pet. App. __.) Although the JQC did not subpoena Judge Schoonover,
Special Counsel directed Judge Schoonover to provide all records of medications
that she was then taking and the diagnostic basis for such medication; records of
mental health treatment since 2010; and a release of medical and psychological
records since January 10, 2010, to Special Counsel, which Special Counsel
directed should be provided not later than ten days before another hearing
scheduled in August. (Pet. App. 11). Judge Schoonover, under advice of counsel,
did not provide such documents, as the request fell outside the JQC’s authority.
(Pet. App. __.)
Subsequently, the JQC issued a Third Amended Notice of Investigation.
(Pet. App. __.) That Notice again did not allege that Judge Schoonover suffered
from a mental disability, but it did state that allegations had been raised as to Judge
Schoonover’s professional competency and ability to perform her duties as a
9
Circuit Court Judge. (Pet. App. __.) The Third Notice of Investigation also cited
the psychological report ordered by General Counsel, without providing under
what legal authority the information was disseminated to the JQC. (Pet. App. __.)
Judge Schoonover, under advice of counsel, did not attend the hearing. (Pet. App.
__.)
II. THE HEARING PANEL PROCEEDING
Following the August hearing, the JQC filed a Notice of Formal Charges
against Judge Schoonover. (Pet. App. 12.) That Notice, however, outlined
numerous allegations to which Judge Schoonover had not been given an
opportunity to respond, prior to the probable cause finding. (Pet. App. 12).
Although the Notice of Formal Charges, like the preceding notices of investigation,
did not allege that Judge Schoonover suffered from a serious or permanent mental
disability, the Notice of Formal Charges alleged Judge Schoonover had exhibited
“bizarre and inexplicable behavior.” (Pet. App. 12). In part, the “bizarre behavior”
was attributed to Judge Schoonover’s meeting with FDLE regarding matters of
concern she had with the administration of the court system. (Pet. App. 12). This
allegation, however, was never brought before Judge Schoonover in a notice of
investigation or a 6(b) hearing. Thus, Judge Schoonover moved to dismiss the
Notice. (Pet. App. 12). Special Counsel agreed that Judge Schoonover had not
been afforded the protections of a 6(b) hearing with regard to some of the
10
allegations in the Notice of Formal Charges. (Pet. App. __.) However, Special
Counsel did not send the case back to the investigative panel. Instead, Special
Counsel filed an Amended Notice of Formal Charges on September 19, 2014,
without the safeguards and due process afforded by the Florida Judicial
Qualifications Commission Rules. (Pet. App. 13).
Judge Schoonover issued to the JQC a Written Demand for Discovery on
August 28, 2014; a Demand Pursuant to Rule 32(C) on October 16, 2014; and a
First Request for Production on December 11, 2014. (Pet. App. at 14, 15, and 16.)
Therein, she sought, inter alia, production of copies of the complaints filed against
her with the JQC. (Id.)
On December 12, 2014, Special Counsel filed a Response to the First
Request for Production, in which the JQC objected to the discovery of the
complaints filed against Judge Schoonover. (Pet. App. at 17.) After counsel were
unable to resolve this discovery dispute, Judge Schoonover filed a Motion to
Compel on February 25, 2015. (Pet. App. at 18.) Special Counsel next filed a
Response to that Motion to Compel on March 3, 2015.3 (Pet. App. at 19.)
3 The crux of the dispute, as stated in those filings, is simple. The JQC took the
position that complaints and proceedings occurring before formal charges are, and
remain, confidential. The JQC cited Rule 23(a) of the Florida Judicial
Qualifications Committee Rules; Article V, Section 12(1)(4) of the Florida
Constitution; and In re Graziano, 696 So. 2d 744, (Fla. 1997). On the other hand,
Judge Schoonover contended that such matters lose their confidential nature once
formal charges are filed and made public. She also cited Rule 23(a), as well as
11
The Hearing Panel Chair issued an order on the Motion to Compel on March
23, 2015, denying Judge Schoonover’s motion and holding that the complaints
submitted against her were confidential. (Pet. App. at 20.) Judge Schoonover filed
a Motion for Rehearing on March 11, 2015. (Pet. App. __.) The Hearing Panel
Chair denied that Motion, but submitted the matter to fully Hearing Panel review.
(Pet. App. 21.) The Hearing Panel affirmed the Hearing Panel Chair’s decision on
March 19, 2015. (Pet. App. 22).
In addition to denying Judge Schoonover’s discovery request, the Hearing
Panel Chair entered an Order on Status Conference on March 27, 2015, requiring,
in part, that Judge Schoonover execute and return to Special Counsel, within 48
hours of its receipt, a sworn “release/HIPAA … authorizing release
of documents that the doctor reviewed as part of his evaluation (including other
treating physician’s records and raw data).” (Pet. App. 23). The Hearing Panel
Chair also ordered that Special Counsel serve a subpoena on another
“requiring production of documents on which he based his evaluation, or that he
reviewed (including raw data).” (Pet. App. 23).
Rule 2.420(c)(3)(A) of the Florida Rules of Judicial Administration; In re Leon,
440 So. 2d 1267 (Fla. 1983); and Media General Convergence v. Chief Judge of
the Thirteenth Judicial Circuit, 794 So. 2d 631 (Fla. 2003).
12
RELIEF SOUGHT
The nature of the relief sought by this petition is a writ of mandamus or
“constitutional writ” (a) prohibiting the JQC from seeking any further release of
Judge Schoonover’s psychological, psychiatric, and medical records, and (b)
compelling the release of any and all complaints and related information under the
investigative phase which the JQC has refused to provide under the auspices that
such information is confidential.
It is submitted that Judge Schoonover has no other remedy to prevent
damage to her privacy and violation of her due process rights in relation to the first
issue. As well, unless Judge Schoonover has an opportunity to receive and review
the complaints filed against her, which allegedly served as the basis for the JQC’s
order that she submit to a psychological evaluation by the JQC-appointed
psychologist, she is unable to fully defend against the charges or release of
protected information.
The actions taken by the JQC and Hearing Panel in the proceedings to-date
are unlawful not only under the JQC’s own rules and the Florida Constitution, but
also under the American Disabilities Act.
13
ARGUMENT
Issue I: The JQC Order requiring Judge Schoonover to submit to a
psychological Evaluation was beyond the scope and in violation of
the Rules of the Judicial Qualifications Commission and is in
violation of Judge Schoonover’s due process and privacy rights
under the United States and Florida Constitution and its conduct
underlying such order violates the American Disabilities and
HIPPA.
The Judicial Qualifications Commission Rules themselves and the Florida
Constitution provide protection for individuals from unwarranted intrusions into
their mental and physical health. The conduct of the JQC in ordering Judge
Schoonover to submit to a psychological evaluation based upon “information that
she was taking a small amount of antidepressant” was erroneous, as such does not
support the ordering of a psychological evaluation to determine Judge
Schoonover’s fitness to continue as a circuit court judge. It was never alleged in
any notice of investigation, or even the formal charges, that Judge Schoonover
suffered from any disability that seriously interfered with her performance of
judicial duties. Judge Schoonover did not place her mental health in issue and,
therefore, it is not in controversy by Judge Schoonover sufficient to allow
unfettered access to Judge Schoonover’s psychological records or information
related to her family. However the JQC continues to enter such orders without any
grounds or authority to do so.
Article V, Section 12, of the Florida Constitution, in paragraphs (b) and (c),
14
provides the authority for the JQC to consider issues relating to a judge’s disability
that seriously interferes with the performance of judicial duties. Art. V., s 12(b)
and s. 12(c)(1), Fla. Const. However, both of these sections make reference to a
judge’s permanent disability.
Rule 13 of the JQC Rules provides the authority for an order requiring that a
judge submit to an evaluation upon receiving information that a judge is suffering a
possible physical or mental disability “which seriously interferes with the
performance of the judge’s duties.” The reference to a permanent disability does
not appear in the current rule. However, it is apparent that the evaluation is
intended to assess whether such disability exists and whether it is permanent.
The Investigating Panel violated Judge Schoonover’s rights under the
American Disabilities Act by questioning her at length regarding medication she
was taking and any psychological and psychological treatment, without notice of
their intent to do so and reasonable justification for such questioning. Judge
Schoonover at no time has placed mental health issues into controversy.
The standards for determining whether or not to permit a mental health
examination are found in Florida Rule of Civil Procedure, which is patterned after
Rule 35 of the Federal Rules of Civil Procedure. That Rule provides that the court
may, for “good cause” shown, order a physical or mental exam of a party whose
physical or mental condition is “in controversy.” The U.S. Supreme Court in
15
Schlagenhauf v. Holder, 379 U.S. 104 (1964) found that the “good cause”
requirement and the “in controversy” requirement overlap some, but each is a
separate inquiry and both conditions must be satisfied. The Schlagenhauf court
held that the two requirements “are not met by mere conclusory allegations of the
pleadings nor by mere relevance to the case, but require an affirmative showing by
the movant that each condition as to which the examination is sought is really and
genuinely in controversy and that the good cause exists for ordering each particular
examination.” Id. at 118.
At the time of the JQC order for a mental health exam, Judge Schoonover
had no idea what the psychologist would be looking for or what condition if any
was to be examined. There can be no determination of “good cause” or “in
controversy” without specific identification of the condition or injury sought to be
examined.
The Schlagenhorf court went on to observe that “the ability of the movant to
obtain the desired information by other means is also relevant.” Id. at __. That
also underscores the importance of having something to look for in an examination
because the court must assess in advance what can be obtained by less intrusive
means.
It is also important to understand that the rule regarding the ordering of a
mental health exam has special requirements because examination of a person is
16
not the same as a defective step ladder. The testing itself can be traumatic and
injurious.
Moreover, the movant must exhaust all other means of discovering what
information is sought, before examination of a person. The alternatives must be
exhausted before seeking an examination. Florida Civil Rule of Procedure
1.360(1)(B) requires that any order compelling mental examination of a person
must specify not only the time, place, and examiner, but the “manner, conditions,
and scope” of the examination. The JQC order was deplete of these requirements.
Involuntary mental examinations of victims are what they are often intended
to be: a deposition of the plaintiff with none of the standard protections afforded
deponents. Without careful oversight from the court, hired-gun defense therapists
often seek to use the examination as a tool to extract privileged information and
irrelevant and embarrassing information on such matters as sexual history,
abortions, rape, incest, religious beliefs and other intimate matters of every sort.
Too often the purpose is not to discover relevant evidence, but to further humiliate,
punish, and intimate a victim and to disable her from competent prosecution of her
case. An involuntary mental examination confers the advantage of giving control
to one party to another. A key objective in many of these examinations is to
destroy the equality before the law of the parties so that one party may dominate
and control the other.
17
The conduct by the JQC is the same egregious conduct that has been
determined to have been engaged in by the Louisiana Bar Association in violation
of the American Disabilities Act. In fact, Justice LeBarga announced recently that
the Justice Department has been investigating the Florida Supreme Court over the
Florida Bar’s policy of evaluating applicants for mental health diagnosis or
treatment. See “Justice Department Investigates Florida Supreme Court on Bar
Mental Health Screening,” Daily Business Review, 26 March, 2014. (Pet. App.
24.) Such investigation found that the system discriminated against bar applicants
by (1) making discriminatory inquiries regarding bar applicants’ mental health
diagnosis and treatment; (2) subjecting bar applicants to burdensome supplemental
investigations triggered by their mental health status or treatment as revealed
during the character and screening process; and (3) implementing burdensome,
intrusive, and unnecessary conditions on admission that are improperly based on
individuals mental health diagnosis or treatment. See Letter from the U.S.
Department of Justice Civil Rights Division to the Honorable Bernette J. Johnson,
Chief Justice, Louisiana Supreme Court, regarding The United States Investigation
of the Louisiana Attorney Licensure System Pursuant to the American’s with
Disabilities Act, (DJ No. 204-32M-60, 204-32-88, and 204-32-89). (Pet. App. __.)
In the article referenced previously, Matthew Dietz, a Miami lawyer who
specializes in representing people with disabilities, applauded the investigation:
18
“The fact that the Florida Board of Bar Examiners has focused on disability as an
issue to exclude persons from membership in my profession is out of step with my
Florida Bar and is pure discrimination. To the extent that it needs to be done by
the U.S. Department of Justice and this discrimination could not be addressed by
its own membership, leadership and the bench is embarrassing.” Indeed, the
egregious conduct of the JQC in handling its investigation of Judge Schoonover is
embarrassing to the practice of law and the judiciary throughout Florida.
The JQC has implemented conduct unsupported by the Rules to intimidate
and bully Judge Schoonover to invade her medical records and intrude into her
personal life in violation of Judge Schoonover’s privacy and due process rights
guaranteed by the Florida and United States Constitutions, as well as HIPPA and
ADA statutes.
This Court may glean from the absence of any proceedings to immediately
remove Judge Schoonover from the bench that the psychological evaluation
revealed no indicia of a condition that seriously interferes with Judge Schoonover’s
performance of her duties. Not being content with that evaluation, the JQC has
embarked upon discovery of Judge Schoonover’s past psychological records,
thereby impacting her right to privacy as protected by ADA and HIPAA law.
Right of Privacy
The Florida Constitution expressly recognizes a right to privacy. It states, in
19
Article I, Section 23:
Right of privacy.—Every natural person has the right to be let alone
and free from governmental intrusion into the person’s private life
except as otherwise provided herein. This section shall not be
construed to limit the public’s right of access to public records and
meetings as provided by law.
Judge Schoonover cooperated with the order for an evaluation. As of the date of
this filing, Judge Schoonover has cooperated with the rulings of the Hearing Panel
by providing to the Hearing Panel Chair, for in camera review, requested records.
In this realm, the underlying initial complaints filed with the JQC are
necessary for any psychologist examining or testifying on Judge Schoonover’s
behalf to have a complete understanding of the behavior in question. They also are
essential for Judge Schoonover to be able to place in context the alleged “bizarre
behavior.” For example, the Amended Notice of Formal Charges, in paragraph 3,
asserts that Judge Schoonover’s behavior is “inexplicable” – yet Judge Schoonover
is not being afforded the actual complaints that alleged such behavior, thereby
being denied a fair opportunity to confront her accusers and explain the alleged
“inexplicable” behavior. The Amended Notice of Formal Charges, in paragraph
6.3., alleges that Judge Schoonover “repeatedly expressed paranoia about other
judges and how they would treat you.” Again, without seeing the actual
complaints, Judge Schoonover cannot adequately defend against these charges,
because she is left guessing as to what evidence and testimony to bring forth at trial
20
to support that her actions were reasonable and rational against the backdrop of her
post-election experiences in the Seminole County court system.
No discovery responses to date from the JQC contain any information that
would support the allegations of “bizarre behavior” or the directive that Judge
Schoonover submit to the psychological evaluation.
Judge Schoonover must have the complaints and other information relative
to the underlying JQC investigation in order to put any incidents in context,
debunk these allegations, and prevent additional gratuitous investigation and
discovery into her federally protected medical and mental health information.
Pursuant to the Hearing Panel Chair’s order on the March 27, 2015, the unfettered
discovery by the JQC is continuing.
Issue II: The JQC’s Refusal to Provide Discovery after the finding of
probable cause, under a cloak of “confidentiality,” violates the
Rules of Judicial Administration and Florida Judicial
Qualifications Commission Rules.
The JQC’s refusal to provide Judge Schoonover copies of complaints filed
with the JQC and information regarding the investigation phase violates the Rules
of Judicial Administration and the Florida Judicial Qualifications Commission
Rules and insulates the JQC from Judge Schoonover’s competent defense against
the charges.
The JQC’s actions of alleging that the JQC had a basis for requiring her to
submit to a mental health evaluation because of “information that she suffers from
21
a mental disability that seriously interferes with her ability to be a circuit court
judge,” not providing her with prior notice of such allegation, compelling her to
provide medical and psychological records without any justification, and hiding
behind a defense that they are protected by “confidentiality” is satirical and in
violation of Judge Schoonover’s constitutional and statutory rights to privacy and
due process.
Although Judge Schoonover concedes that complaints to the JQC are
confidential prior to the finding of probable cause, pursuant to the Rules of Judicial
Administration, once the probable cause finding is made, those documents become
public.
Rule 2.420 of the Rules of Judicial Administration was amended in 2010 “to
balance the public’s constitutional right to access to court records with the court’s
responsibility to protect from public access court records that are confidential.”
See In re Amendments to the Florida Rules of Judicial Administration 2.420 and
the Florida Rules of Appellate Procedure, 31 So. 3d 756 (Fla. 2010). Rule 2.420
governs public access to judicial branch records. “Records of the judicial branch”
are all records, regardless of physical form, characteristics, or means of
transmission, made or received in connection with the transaction of official
business, which consists of court records and administrative records which are all
other records made or received. The Judicial Branch includes The Florida Bar, the
22
Florida Board of Bar Examiners, the Judicial Qualifications Commission “and all
other entities established by or operating under the authority of the supreme court
or the chief justice.” Rule 2.420(b)(2), Fla. Jud. Admin.
The term “confidential” as applied to information contained within a judicial
branch record (including by definition those in possession of the JQC) means that
information is “exempt” or confidential under Article I, Section 24 (a), of the
Florida Constitution, and Rule 2.420(c), only until a finding of probable cause.
Moreover the degree, duration, and manner of confidentiality ordered by the
court shall be no broader than necessary to protect those interests. Rule
2.420(c)(9)(B), Fla. Jud. Admin.
In 2007, in order to address concerns about hidden cases and secret dockets,
the Florida Supreme Court amended the Florida Rules of Judicial Administration.
The Court noted that the Florida Constitution mandates that the public shall have
access to court records, subject only to certain enumerated limitations. See In re
Amendments to Florida Rule of Judicial Administration 2.420 – Sealing of court
Records and Dockets, 954 So. 2d 16 (Fla. 2007).
Formal charges were filed against Judge Schoonover by the Commission in
August 2014. The records in regard to these charges are no longer confidential and
are subject to Judge Schoonover’s demand. In addition, Rule 2.420 provides in
part that confidential records include (3)(A) complaints alleging misconduct
23
against judges until probable cause is established.
The Florida Constitution itself establishes a constitutional right of access to
any public record made or received in connection with official business, including
the judicial branches and any officers, boards or commissions created pursuant to
law or constitution. In 1992, the Florida Constitution was amended to guarantee
that documents produced by the legislative and judicial branches are open and
available to citizens. See Art. I, Sec. 25 (“Access to public records”), Fla. Const.
In fact the form for a JQC complaint itself advises those who file such
complaint that they will become public in the event that probable cause is found.
(Pet. App. __.)
Even prior to the change in Rule 2.420, the Florida Supreme Court held that
evidence which is gathered in the course of the JQC’s investigation of misconduct
loses its confidential nature once formal charges are filed and the charges are made
public. For example, In re Leon, 440 So. 2d 1267, 1269 (Fla. 1983), this Court
rejected an argument that evidence gathered in the course of the investigation of
alleged misconduct was confidential. This Court specifically stated: “The
argument ignores the fact that the reason for confidentiality no longer exists after
formal charges are filed and the charges become public.” Id. at 1269. That
reference to the “reason for confidentiality” harkened back to a prior decision of
this Court, Forbes v. Earle, 298 So. 2d 1, 4 (Fla. 1974), in which the Court noted:
24
“The purpose is to process complaints concerning the judiciary from any and all
sources, while requiring confidentiality as a means to protect both the complainant
from possible recriminations and the judicial officer from unsubstantiated
charges.” Once formal charges are issued, the complainants must surely be
revealed as witnesses and the judge is no longer protected from public disclosure
of the charges. Thus, as this Court stated in Leon, the reason for confidentiality no
longer exists after formal charges are filed.
This Court reiterated this logic more recently, in In re Eriksson, 36 So. 3d
580 (Fla. 2010). Therein, the Court again rejected an argument that evidence
presented to the Investigative Panel shall remain confidential and cannot be
considering by the Hearing Panel. Id. at 590. This Court cited the Forbes case in
stating that the “confidentiality of the 6(b) hearings is … aimed at protecting
judges from unsubstantiated claims” and noted that this Court had upheld
numerous cases in which findings from a hearing panel had relied on evidence
presented during the investigative phase. Id. at 591.
In response to Judge Schoonover’s requests for the complaints at issue, the
JQC and Hearing Panel have relied on this Court’s decision in In re Graziano, 696
So. 2d 744 (Fla. 1997). Therein, this Court did find that a JQC complaint itself
was not discoverable, but that the evidence upon which formal charges are based is
subject to discovery. Id. at 751. However, it is submitted that a JQC complaint
25
should not be treated any differently than other evidence gathered in the
investigative phase, once formal charges have been issued. As such, it is submitted
that In re Graziano was wrongly decided on that limited point.
In fact, since in In re Graziano, this Court has implicitly receded from that
portion of that decision. In Media General Convergence, Inc., et. al, v. Chief
Judge of the Thirteenth Judicial Circuit, 840 So. 2d1008 (Fla. 2003), this Court
expressly held that complaints made regarding a judge “remained confidential until
the JQC determined probable cause.” Id. at 1018. That case regarded complaints
made to a chief judge, rather than to a JQC, but concluded that both types of
complaints are to be treated the same under applicable law. Id. at 1018-1019. As
such, this Court held that, when received by the chief judge, “the complaints and
the related records became exempt from disclosure” and “remained exempt until
the JQC determined that probable cause existed. However, once the JQC found
probably cause… [the chief judge] was required to turn over the … records in his
possession to the petitioners,” who in this case were media representatives. Id. at
1019 (emphasis added).
That ruling is consistent with the Florida Judicial Qualifications
Commission Rules, which specifically provide for the release of information
following a probable cause determination. Rule 23(a) provides that until formal
charges against a judge are filed with the clerk of the Supreme Court by the
26
Investigatory Panel of the JQC, all proceedings by or before the JQC shall be
confidential. But, upon a finding of probable cause and the filing by the
Investigatory Panel of such formal charges against a judge, such charges and all
further proceedings shall be public.
In fact, General Counsel, in a seminar before Florida judges disseminated
outlines that state: “The [JQC] inquiry [of a judge] is confidential unless and until
probable cause is found by the Investigative Panel. (Pet. App. __.)
CONCLUSION
The fundamental due process rights of Judge Schoonover require that she be
provided adequate notice and the right to confront her accusers. Article I, Section
16 of The Florida Constitution provides:
(a) In all criminal prosecutions the accused shall, upon demand, be
informed of the nature and cause of the accusation, and shall be
furnished a copy of the charges, and shall have the right to have
compulsory process for witnesses, to confront at trial adverse
witnesses . . .
Though the current proceedings are not criminal, they are akin to a criminal case.
See In re Inquiry Concerning a Judge, 357 So. 2d 172, 181 (Fla. 1978) (“This
Court has explained that although judicial misconduct proceedings … are not
criminal in nature, accused judicial officers are to be accorded both substantive and
procedural due process of law.”) Special Counsel acts as a prosecutor. The
alleged misconduct is weighed against the Canons of the Florida Code of Judicial
27
Conduct. Misconduct of a judge is based on a determination of whether the
evidence supports violation of a judicial canon.
The combination of the JQC’s order to Judge Schoonover to subject herself
to a psychological evaluation prior to determination of probable cause and its
refusal to provide her with copies of the complaints lodged against her, upon which
probable cause is based, allows the JQC to interpret and enforce its own Rules
indiscriminately as it wishes and as both a shield and sword.
The order that Judge Schoonover submit to a psychological evaluation was
used to gather evidence by which the JQC could find probable cause without
having prior information upon which they could base the requirement that she
submit to a psychological evaluation. Furthermore, the diagnosis of a permanent
mental disability would require the examination by a psychiatrist not a
psychologist. Such order was an attempt to vilify and intimidate Judge
Schoonover. She complied under advice of counsel, a former Florida Bar
President, in an effort to cooperate with the JQC.
Such action has intentionally and recklessly intruded on her privacy, and in
an unwarranted invasion of medical and psychological records. Without this
Court’s review, Judge Schoonover is without recourse until subsequent to the JQC
final hearing. If the process is allowed to continue as it has, her right to privacy
will be foreclosed. At the time of her election, by way of being an attorney for
28
more than 25 years, and a Board certified attorney for more than 15 years, Judge
Schoonover was competent and fit to be a judicial officer. She did not become
unfit or incompetent by way of her election or the required, but unjustified and
unlawful, psychological evaluation by a JQC-appointed psychologist.
Judge Schoonover is substantially and irrevocably prejudiced and will suffer
irreparable harm if this court refuses to act to prevent a denial of her privacy and
due process rights.
WHEREFORE, Petitioner, Judge Linda D. Schoonover, seeks a writ from
this Court mandating that the JQC produce to Judge Schoonover copies of all
complaints filed against her with the JQC and prohibiting the JQC from seeking
any further release of her private medical records.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Petition for Writ of Mandamus or
Constitutional Writ has been typed using the Times New Roman 14-point font, and
is in compliance with the font requirements of Florida Rule of Appellate Procedure
9.100(l).
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
furnished by email to Henry M. Coxe, III, [email protected]; Michael L.
Schneider, [email protected]; Lauri Waldman Ross,
29
[email protected]; and Ashley Greene, [email protected], on this __ day of
March, 2015.
/s/ Barry Rigby___________________
Barry Rigby
Florida Bar Number 613770
Law Offices of Barry Rigby, P.A.
924 N. Magnolia Avenue, Suite 350
Orlando, FL 32803
Phone (407) 999-2630
Facsimile (407) 999-2631
Primary Email: [email protected]
Secondary Email: [email protected]
Attorney for the Hon. Linda D. Schoonover
