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1406JAIL4Judges Lawsuit in Federal Court Against Florida Bar Association

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  • JAIL4Judges
    May 8, 2008
    • 0 Attachment
       
      Sherree Lowe, Oregon JIC, writes;
       
      "[Attorney] Montgomery [representing JAILJudges] is very frustrated, and says he can use whatever exposure we can give him and Nancy, because the courts do not seem to be responding."  Sherree's email address is sherreelowe@....
       
      If any of you with legal minds can offer any legal input regarding the below "decision" of the Federal District Court, please feel free to do so. Montgomery may be reached at mbsibley@.... JAIL4Judges also requests that it be cc'ed at VictoryUSA@.... Thank you.
       
      - Ron Branson
       

       
       

      UNITED STATES DISTRICT COURT

      SOUTHERN DISTRICT OF FLORIDA

      MIAMI DIVISION

      CASE NO. 08-20533-CIV-ALTONAGA/Brown

      FLORIDA J.A.I.L. 4 JUDGES,

      etc.,

      Plaintiff,

      vs.

      THE FLORIDA BAR

      , et al.,

      Defendants.

      ________________________________/

      ORDER

      THIS CAUSE

      came before the Court upon three motions: (1) Plaintiff, Florida J.A.I.L. 4

      Judges’ (“J.A.I.L. 4 Judges[’]”) Motion for Temporary Injunction and Expedited Limited Discovery

      [D.E. 3], filed on February 29, 2008; (2) Defendant, The Florida Bar’s Motion to Dismiss [D.E. 13],

      filed on April 9, 2008; and (3) Defendants, The Florida Supreme Court, Chief Justice R. Fred Lewis,

      Justice Charles T. Wells, Justice Harry Lee Anstead, Justice Barbara J. Pariente, Justice Peggy A.

      Quince, Justice Raoul G. Cantero, and Justice Kenneth B. Bell’s (collectively the “Florida Supreme

      Court Defendants[’]”) Motion to Dismiss for Lack of Venue [D.E. 5], filed on filed on March 26,

      2008. The Court has carefully considered the parties’ written submissions, pertinent portions of the

      record, and applicable law.

      I. BACKGROUND

      J.A.I.L. 4 Judges is a political action committee “dedicated to re-instating the accountability

      of the Florida judiciary.” (Compl. [D.E. 1] at ¶ 3). The organization is currently advocating the

      amendment of Article V of the Florida Constitution with “provisions known as ‘The Judicial

      Accountability Law.’” (Id. at ¶ 7). The proposed amendments are aimed at creating new procedures

      to investigate complaints against judges through “special grand juries,” who “would have the power

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      to discipline judges by levying fines, removing [judges] from the bench, and where appropriate,

      subjecting [judges] to criminal proceedings before special trial juries.” (

      Id. at ¶ 8).

      The Florida Bar (“the Bar”) is the entity governing the legal profession in Florida. The Bar

      was created by the Florida Supreme Court pursuant to the Court’s constitutionally granted power “to

      regulate the admission of persons to the practice of law and the discipline of persons admitted.” Fla.

      Const. Art. V, § 15. The stated purposes of The Florida Bar are “to inculcate in its members the

      principles of duty and service to the public, to improve the administration of justice, and to advance

      the science of jurisprudence.”

      Rules Regulating The Florida Bar, 494 So. 2d 977, 979 (Fla. 1986).

      The Bar publishes

      The Florida Bar News and The Florida Bar Journal, which it regularly distributes

      to its members. (

      See Compl. at ¶ 9).

      Plaintiff alleges the Bar’s Judicial Independence Committee (the “Committee”) “has been

      working with and/or directing local and voluntary bar associations in Florida in an effort to oppose

      Plaintiff’s . . . Initiative to amend the Florida Constitution” and further alleges the Committee held

      a meeting in Miami on February 15, 2007 for the purpose of “covertly oppos[ing] Plaintiff’s political

      activities.” (

      Id. at ¶¶ 13, 16). J.A.I.L. 4 Judges also alleges the Bar’s activities in opposition to

      J.A.I.L. 4 Judges’ agenda have been reported in the Bar’s publications. In a July 15, 2006 article in

      the

      Florida Bar News, former Florida Supreme Court Justice Major Harding was quoted stating the

      Judicial Accountability Law “is an effort to undermine the very foundation of our country and places

      at risk freedoms and liberties we have been so blessed to have.” (

      See Compl. Exh. A). Another

      Florida Bar News

      article published the same day entitled “Independence panel concerned by threats,”

      discusses J.A.I.L. 4 Judges’ proposal, reports that the Judicial Independence Committee did not vote

      to take action on J.A.I.L. 4 Judges, and quotes the chairman of the Committee stating, “[l]et’s keep

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      our eyes open on this and be as informed as we can be.” (

      See Compl. Exh. B). On January 15, 2007,

      an article appeared in the

      Florida Bar News in which the executive director of the State Bar of South

      Dakota advised Florida lawyers to be “ready to lead a campaign to defeat” J.A.I.L. 4 Judges’

      proposed amendment to the Florida Constitution. (

      See Compl. Exh. C).

      On February 21, 2007, J.A.I.L. 4 Judges filed a petition in the Florida Supreme Court seeking

      to enjoin The Florida Bar from engaging in political activities related to the Judicial Accountability

      Law. (

      See Compl. at ¶ 14). J.A.I.L. 4 Judges moved for disqualification of the Justices of the Florida

      Supreme Court. (

      See id.). The Court dismissed the petition for lack of jurisdiction. (See id.).

      On February 27, 2008, J.A.I.L. 4 Judges filed its five-count Complaint alleging violations of

      Florida law and the Florida and United States Constitutions. The undersigned concludes Plaintiff has

      failed to state a claim against The Florida Bar and dismisses the claims as to the Bar pled in the

      Second, Third, and Fifth Claims of the Complaint. The undersigned further finds the Southern

      District of Florida is an improper venue for the remaining claims against the Florida Supreme Court

      Defendants.

      II. LEGAL STANDARD

      A motion to dismiss a complaint for failure to state a claim requires that a court accept the

      facts pleaded as true and construe them in the light most favorable to the plaintiff.

      See Quality Foods

      de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A.

      , 711 F.2d 989, 994-95

      (11th Cir. 1983). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement

      of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice

      of what the . . . claim is and the grounds upon which it rests . . . .’”

      Bell Atlantic Corp. v. Twombly,

      127 S. Ct. 1955, 1964 (2007) (quoting

      Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless,

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      “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

      allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief”’ requires

      more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

      not do . . . .”

      Id. at 1964-65 (citations omitted). “[A] complaint’s ‘[f]actual allegations must be

      enough to raise a right to relief above the speculative level.’”

      Davis v. Coca-Cola Bottling Co.

      Consol.

      , 516 F.3d 955, 974 (11th Cir. 2008) (quoting Twombly, 127 S. Ct. at 1965). “When the

      allegations contained in a complaint are wholly conclusory . . . and fail to set forth facts which, if

      proved, would warrant the relief sought, it is proper to dismiss for failure to state a claim.”

      Davidson

      v. Georgia

      , 622 F.2d 895, 897 (11th Cir. 1980) (citations omitted).

      III. ANALYSIS

      1. Claims against The Florida Bar

      A.

      “Usurping political power”

      The Second Claim of the Complaint alleges The Florida Bar and the Florida Supreme Court

      Defendants “have usurped political power from the Plaintiff” in violation of the Florida Constitution

      and the First and Fourteenth Amendments of the United States Constitution. (

      See Compl. at ¶¶ 22-

      23). Plaintiff alleges Art. I, § 1 of the Florida Constitution and the Ninth Amendment of the United

      States Constitution vest political power in the people, and the Florida Supreme Court Defendants

      “usurped the additional political power to create – as its ‘official arm’ – Defendant The Florida Bar

      whose purpose the Defendant Florida Supreme Court has greatly expanded beyond [its] limited grant

      [under the Florida Constitution] of regulating attorney admission and discipline . . . .” (

      Id. at ¶ 22).

      Plaintiff contends the Bar’s alleged political activities opposing Plaintiff’s agenda “are not germane

      to [the Bar’s] stated sole purpose,” and that “this radical and unauthorized expansion of the [Bar’s]

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      political and ideological role . . . function[s] as an usurpation of political power from the People . .

      . . ,” including Plaintiff. (

      Id. at ¶¶ 22-23). Plaintiff seeks a declaration that the Bar and Supreme

      Court Defendants have unconstitutionally usurped political power and a permanent injunction

      directing Defendants to abide by constitutional restraints. (

      See id. at ¶ 23).

      The constitutional claims alleged in the Second Claim are far from clear, as “usurping political

      power” is not a recognized constitutional violation, and Plaintiff does not specify how Defendants’

      conduct violated its First and Fourteenth Amendment rights or its rights under the Florida

      Constitution. Plaintiff appears to challenge The Florida Bar’s alleged political activity with respect

      to the Judicial Accountability Law as unconstitutionally exceeding the scope of the authority granted

      to it under the Florida Constitution. Even assuming the Bar’s activities are improper, Plaintiff has

      failed to show an injury in fact sufficient to establish standing to assert this claim.

      Article III, § 2 of the United States Constitution gives the federal courts jurisdiction to

      consider “cases” or “controversies.” The case or controversy requirement is satisfied only where the

      plaintiff has shown constitutional standing.

      See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

      (1992). Standing exists where the plaintiff has established:

      (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual

      or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

      challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,

      that the injury will be redressed by a favorable decision.

      Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.

      , 528 U.S. 167, 180-81 (2000).

      The plaintiff’s alleged injury must be more than abstract, as an abstract injury does “not

      provide the kind of particular, direct, and concrete injury that is necessary to confer standing to sue

      in the federal courts.”

      ASARCO, Inc. v. Kadish, 490 U.S. 605, 616 (1989). Furthermore, “‘the injury

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      in fact test requires more than an injury to a cognizable interest. It requires that the party seeking

      review be himself among the injured.’ The plaintiff must be ‘directly’ affected apart from her ‘special

      interest in the subject.’”

      Koziara v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004)

      (quoting

      Lujan, 504 U.S. at 563).

      The Second Claim of J.A.I.L. 4 Judges’ Complaint does not plead an injury in fact sufficient

      to satisfy the requirement of constitutional standing. The Complaint alleges that the “unauthorized

      expansion” of the Bar’s role has caused “the threat that the Plaintiff has and will continue to lose

      political power.” (

      Compl. at ¶ 23). The claim cites the First and Fourteenth Amendments and the

      Florida Constitution, but does not specify an actual injury suffered by Plaintiff under those authorities.

      Because the threat of losing political power is not a cognizable injury, Plaintiff has failed to allege

      injury sufficient to establish standing to challenge the Bar’s alleged political activity.

      Even if Plaintiff did have standing to challenge the underlying conduct, the Bar’s alleged

      lobbying activities do not appear to be improper. In its Motion, the Bar asserts that in

      Gibson v. The

      Florida Bar

      , the Eleventh Circuit found that the Bar is constitutionally permitted to engage in certain

      political activities. 798 F.2d 1564 (11th Cir. 1986). In

      Gibson, the plaintiff sued contending “the Bar

      violated his first amendment rights of free speech and association by spending compulsory bar dues

      to espouse political and ideological positions.”

      Id. at 1565. The court’s opinion, which only

      addressed “the use of compelled funds by the Bar,” pointed out specific examples of permissible

      lobbying and also stated, “the Bar may speak as a group on any issue as long as it does so without

      using the compulsory dues of dissenting members.”

      Id. at 1569-70. The Bar further cites the Florida

      Supreme Court’s decision in

      The Florida Bar re Schwarz to support its argument. 552 So. 2d 1094

      (Fla. 1989). In

      Schwarz, the Court considered the scope of the Bar’s permissible lobbying, approving

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      lobbying regarding “matters relating to the improvement of the functioning of the courts, judicial

      efficacy and efficiency” among other areas.

      Id. at 1095.

      The Second Claim does not allege impermissible use of bar dues to engage in lobbying

      activities, and indeed it cannot, as J.A.I.L. 4 Judges is not a member of the Bar and does not pay

      dues. J.A.I.L. 4 Judges contends that this fact distinguishes

      Gibson entirely. However, Gibson

      implicitly recognized the constitutionality of the Bar’s lobbying activities in noting that the Bar may

      speak “on any issue.” Moreover,

      Schwarz pointed to “improvement of the functioning of the courts”

      as a specific area on which the Bar could permissibly speak. Plaintiff’s proposed constitutional

      amendment would clearly affect the functioning of the courts, and it is therefore a subject on which

      the Bar may opine.

      Plaintiff has failed to allege cognizable injury in the Second Claim, and it is therefore

      dismissed.

      B.

      The right to petition for redress

      J.A.I.L. 4 Judges subtitles its Third Claim “Disparaging the Right to Petition for Redress,”

      and appears to allege that Defendants have infringed its right to petition the government under the

      Florida Constitution and the First Amendment of the United States Constitution. Plaintiff contends

      the Bar has denied it the use of public forums, “monopolized communications to lawyers,” and is

      “using compulsory dues to endorse or advance a political objective.” (

      Compl. at ¶¶ 26-28). While

      this claim conflates a number of potential theories, it is clear Plaintiff has not properly established any

      viable basis for relief.

      First, Plaintiff fails to allege The Florida Bar has actually inhibited its right to petition the

      government. The Supreme Court has observed, “[t]he First Amendment guarantees ‘the right of the

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      people . . . to petition the Government for a redress of grievances.’ . . . And James Madison made

      clear in the congressional debate on the proposed amendment that people ‘may communicate their

      will’ through direct petitions to the legislature and government officials.”

      McDonald v. Smith, 472

      U.S. 479, 482 (1985). Nowhere in the Complaint does J.A.I.L. 4 Judges allege The Florida Bar

      inhibited it from petitioning the government. Instead, J.A.I.L. 4 Judges alleges the Bar’s control over

      the publications it distributes to Bar members, and presumably, J.A.I.L. 4 Judges’ inability to

      communicate to Bar members through those publications somehow impacts J.A.I.L. 4 Judges’ right

      to petition. (

      See Compl. at ¶ 27). Members of the Bar, however, are not the government, and even

      if the Bar prevented J.A.I.L. 4 Judges access to its publications, it would not be inhibiting J.A.I.L.

      4 Judges’ right to petition the government.

      Plaintiff also appears to allege that the Bar’s publications are a public forum, and Plaintiff’s

      First Amendment rights have been infringed because Plaintiff has not been provided access to the

      publications. Again, nowhere in the Complaint does Plaintiff allege that it has attempted to obtain

      access to the Bar’s publications and has been denied. Therefore, Plaintiff fails to state a claim for

      violation of its First Amendment rights on the basis of denial of access to a public forum.

      Finally, Plaintiff mentions in this claim that the Bar is improperly using bar dues to advance

      political objectives. As stated, Plaintiff is not a member of the Bar and thus has no standing to object

      to the Bar’s allocation of monies obtained through bar dues. Furthermore, as stated, the Eleventh

      Circuit has found it constitutionally permissible to use the bar dues of non-dissenting members for

      certain political purposes.

      See Gibson, 798 F.2d at 1564. Plaintiff has failed to identify dissenting

      members whose fees are being used for supposedly improper political purposes.

      Accordingly, the Third Claim fails to state a claim, and it, too, is dismissed.

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      C.

      Florida Statute Section 106.03

      In the Fifth Claim, Plaintiff alleges The Florida Bar has violated Florida Statute § 106.03,

      because the Bar is a political committee and has not registered with the Florida Division of Elections.

      (

      See Compl. at ¶¶ 37-38). This section requires every political committee as defined by Section

      106.011 to “file a statement of organization” pursuant to the requirements laid out in the statute. The

      Bar cites an opinion of the agency charged with enforcing the statute, the Florida Division of

      Elections, which states the Bar “is excluded from the political committee registration requirement.”

      Florida Division of Elections Opinion 87-01

      . The Bar further notes“‘[t]he construction put on a

      statute by the agency charged with administering it is entitled to deference by the courts.’”

      National

      Ass’n of State Utility Consumer Advocates v. F.C.C.

      , 457 F.3d 1238, 1253 (11th Cir. 2006) (quoting

      S.E.C. v. Sloan

      , 436 U.S. 103, 118 (1978)).

      Irrespective of whether the Bar is required to register as a political committee under Florida

      law, Plaintiff has failed to cite authority that a private right of action exists to enforce the registration

      requirement of Section 106.03. Because no private right of action exists, Plaintiff fails to state a

      claim against The Florida Bar in the Fifth Claim, and it is therefore dismissed.

      2. Claims against the Florida Supreme Court Defendants

      In their Motion, the Florida Supreme Court Defendants argue that the Southern District of

      Florida is an improper venue for the claims against them. Title 28 of the United States Code, Section

      1391(b) governs venue and provides:

      A civil action wherein jurisdiction is not founded solely on diversity of citizenship may,

      except as otherwise provided by law, be brought only in (1) a judicial district where

      any defendant resides, if all defendants reside in the same State, (2) a judicial district

      in which a substantial part of the events or omissions giving rise to the claim occurred,

      or a substantial part of property that is the subject of the action is situated, or (3) a

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      Plaintiff does not seek leave to amend in the event the Motion

      1 to Dismiss is granted.

      10

      judicial district in which any defendant may be found, if there is no district in which the

      action may otherwise be brought.

      Plaintiff concedes the Florida Supreme Court Defendants reside in the Northern District of Florida

      for purposes of venue. (

      See Response to Florida Supreme Court Defendants’ Motion to Dismiss at

      2). Plaintiff argues venue is appropriate in this district because The Florida Bar has offices in this

      district and certain events alleged in the Complaint took place in this district. The claims against The

      Florida Bar having been dismissed, Plaintiff’s arguments with respect to the Bar are moot. Venue

      for the remaining claims against the Florida Supreme Court Defendants is proper in the Northern

      District of Florida.

      III. CONCLUSION

      In accordance with the foregoing, it is

      ORDERED AND ADJUDGED

      as follows:

      (1) The Florida Bar’s Motion to Dismiss

      [D.E. 13] is GRANTED and Plaintiff’s Motion

      for Temporary Injunction

      [D.E. 3] is DENIED as to The Florida Bar. All claims against The Florida

      Bar are dismissed without prejudice.

      1

      (2) The Florida Supreme Court Defendants’ Motion

      [D.E. 5] is GRANTED. The Clerk

      of Court is hereby directed to

      TRANSFER this case to the United States District Court for the

      Northern District of Florida. Any other motions are denied as moot.

      DONE AND ORDERED

      in Chambers at Miami, Florida, this 7th day of May, 2008.

      _________________________________

      CECILIA M. ALTONAGA

      UNITED STATES DISTRICT JUDGE

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      Copies provided to

      (1) Magistrate Judge Stephen T. Brown

      (2) Counsel of record

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