I write in consternation over the following:
- Flouting of loyalty oath laws by the Governor, Justices, and appointed jurists of Florida,
- Confusion associated with custodianship of loyalty oaths,
- Failure of the State Board of Payroll to verify judges' credentials before issuing them compensation for performing the duties of office, and
- Refusal of anyone and every in Florida's government to punish judicial officers and their "employers" for failure to
- Excise from government judges who fail to swear and have on file the requisite oaths, and
- File criminal complaints and charges against employers who fail to do number 4.1 above.
- I reported this "old" issue through channels to Chief Justice Lewis in 2006, and received assurance that the Justices would have appointment nominees swear the requisite oaths. I have attached the latest version of my report "Loyalty Oaths in Florida." If you lose it, just Google the title with my name Bob Hurt.
http://bobhurt.com/articles/law%20-%20Loyalty%20Oaths%20in%20Florida.pdf
- The State Board of Payroll used to, before the state computerized payroll for state employees, require a certification from the Trial Courts Administrators that the judges had fully qualified for office, specifically through swearing their public employee oaths. The SBOP required this declaration on file every payday, I believe, before issuing paychecks to the judges. They did this because of the mandate in 876.05(2). They no longer do it, and they should resume the practice. The SBOP must adopt a Buck Stops Here policy regarding all credentials for office. A judge or justice who failed to qualify by failing to swear the candidate's oath and candidate's loyalty oath should NEVER hold office, perform the duties of office, or receive pay for that office.
- Judges and Justices must ultimately realize that they get brand new employment every term, and that means they must swear ALL oaths anew and prove qualifications anew as though for initial employment.
- In Sept 2008 the Quince Court issued the infamous Sibley opinion (SC06-1387 – The Florida Bar v. Montgomery Blair Sibley) that judges have sworn sufficient loyalty oaths, Florida Constitution's (FCon's) Article II Section 5(b) Public Officer's oath (appended below for reference) has even more rigorous oath requirements than the statutory oath, and that judges don't have to swear statutory oaths because they have complied with statute by swearing the FCon's oath.
- The Quince Court failed to note the salient reality that the FCon's oath requires swearing to support, protect, and defend the GOVERNMENT as well as the Constitution. This constitutes a philosophic and mental impossibility because the Government is the "good old boy's network" ENEMY of the Constitution and the main reason We The People demand that judges swear no less than SIX (6) oaths before we will let them rule.
- Elector's oath
- Bar oath
- Candidate's oath
- Candidate's loyalty oath
- Public Officer's oath
- Public Employee's oath
- The Quince Court neglected to point out that the Public Officer's oath language VIOLATES the mandates of both Article VI Clause 3 of the Constitution for the United States of America (CUSA) and 4 USC 101 (appended below for reference) which require swearing to support the Constitution, NOT THE GOVERNMENT. The additive words "and Government" in the Public Officer's oath VIOLATE the CUSA. The Quince Court failed to state that when they had the perfect opportunity to do so, in the Sibley opinion.
- The Quince Court complained of too many oaths to swear, as though too much of a chore. They forgot to note the Solemn Declaration of Kol Nidre, the pre-emptive unswearing and denunciation of all personal oaths for the coming year. Talmudic Jews make this oath-like Yom Kippur declaration at the end of September every year. Nothing keeps non-Jews from making similar declarations. In effect these potentially undo all loyalty oaths. So, bottom line, judges cannot swear too many loyalty oaths, and do not swear them often enough. The law should require them annually and by implication in concert with every official act. The Supreme Court should gladly embrace the practice and stop treating it like a terrible burden.
- The Quince Court's Sibley opinion did not address the issue of appointment nominees' failure to swear the requisite candidate's oath of F.S. 105.031 and candidate's loyalty oath of F.S. 876.05-876.10, and the Court admitted as much. Had they addressed it, they would have found themselves disqualified from even de facto public officer status because they never qualified for nomination to begin with. Note that I have appended the statutes below for your reference; also see oath form DSDE26.pdf, attached. (http://election.dos.state.fl.us/forms/pdf/DSDE26.pdf)
- State Department Counsel Gary Holland told me that the definition of candidate in F.S. 97.021 (see below) excludes nominees for appointment to judicial office. In fact, the definitions in chapter 97 seem to apply to Title IX, Elections, but they include nominees petitioning for office, and all nominees petition (seek) office one way or another. However, the operative statute, F.S. 876.05 exists in Title XLVI, Crimes. The definitions of Title IX do not extend to Title XLVI. Instead, the definitions in Black's Law Dictionary apply. That refers to nominees as candidates, and both as anyone seeking office. Thus, Gary Holland opined wrongly, and appointment nominee candidates must swear the oaths in F.S. 105.031 and F.S. 876.05-10 prior to and as a condition of placement of their names on the ballot.
- In point of fact, the Judicial Nominating Commissions have a mandate from F.S. 876.05-10 to require judicial nominees to swear the candidate's loyalty oath before putting their names on the ballot. From what I have learned, they universally fail to obey that mandate, and they have NEVER obeyed it throughout the history of Florida. Please correct me if you can.
- The Governor and Justices have the same mandate to require the appointment nominees to swear the candidate's oath before accepting them as candidates for the position of Judge, Justice, or Senior Judge. From what I have discovered so far, they have NEVER obeyed it throughout the history of Florida. Please correct me if I you can.
- I requested the oaths from OSCA Counsel Laura Rush for Senior Judges Starnes and Thompson of the 20th Circuit. She supplied one, dated 1978 (I love her responsiveness and graciousness - Please give her a pay raise). The public has no clue where to find the senior judges' oaths, which any number of people might possess. The public ought not to have to run hither and thither to obtain the oaths for judges. Judges should carry their credentials on their persons or their clerks or OSCA should have them. They are NOT judicial records that the Chief Judge should have. They belong with OSCA or the State Department's Bureau of Election Records, in my opinion.
- I only presume, perhaps wrongly, that Starnes and Thompson did not swear candidate oath and candidate loyalty oath prior to their names appearing on the Justices' nominee ballots. I presume this because I cannot get the Trial Courts Administrator for the 20th circuit on the phone, or even find an email address or email form on the 20th circuit's web site, an INEXCUSABLE impediment to communication.
- ACTION REQUIRED. So, consider this an official public records request for their candidate oaths and candidate loyalty oaths by return email.
- ACTION REQUIRED. I also request that you do what you must to fix this problem so that the people can view and download judges' and justices' full complement of qualifying documents from a central web site, like OSCA or the Bureau of Election Records. Surely the Supreme Court of Florida can manage the delegation of this relatively simple administrative task to someone competent. At the very least you can write a sensible policy directive and distribute it to all the trial courts administrators and marshals.
- Florida Statutes 876.05-10 impose oath-related burdens on every public employee and manager, particularly upon the Governor and Justices with respect to appointments. In 2007 two events happened in the wake of my complaining to the Supreme Court, OSCA, and the State Department about the jurat unlawfully missing from election forms and judges utterly failing to swear the public employee oath which the Quince Court believes judges may ignore with impunity.
- The State Department restored the jurat to election forms.
- Chief Justice Lewis (Hear, Hear!) told the OSCA Personnel Director to tell the Trial Courts Administrators and Marshals to encourage judges throughout the state to swear the 876.05 public employee oath becauue it was a crime not to do it. I find it odd that the Quince court, almost a year later, opined that the judges may ignore 876.05 with impunity. Will the REAL LAW please stand up!? Can we PLEASE have some CONSISTENCY from the Court?! Fortunately most of the judges went our and swore their public employee oaths, some for the very first time after decades in office. Anyway, figuratively speaking,
"Christians 2, Lions 0."
- ACTION REQUIRED. Now I seek to chalk one more up for the figurative Christians, whom the lions nearly always eat. I want the Governor, under leadership of and in concert with the Supreme Court, and the Judicial Nominating Commissions, henceforth to tell every nominee for judicial appointment that their names will not go on the ballot until they swear the candidate oath (105.031) and the candidate loyalty oath (876.05). IS IT TOO MUCH TO ASK FOR YOU JUSTICES TO OBEY THE LAW? I don't think so. PLEASE DO IT, so I don't have to make an outrageous stink about it in the media and on YouTube and to every bar member in the state, many of whom feel an irresistible itch already to file Quo Warranto petitions against high-handed despots like Starnes and Thompson of the 20th Circuit Rocket Docket courts.
- Take note that I might not have brought this muddy issue up again had not Senior Judges Thompson and Starnes not behaved so terribly, demonstrating insufferable arrogance, churlish manners, high-handed flouting of law and rules, and incessant stomping on litigants' Constitutional Rights to due process, access to the courts, and justice without sale, denial, or delay. These dastards have no business hiding behind judges' skirts, without which litigants would surely and deservedly have run them out on a rail by now. They enjoy such impunity for their meanness that they don't seem to care how judges invite visitation of disasters upon themselves by refusing justly to give relief, remedy, and opportunity to be heard. In a recent public meeting, Starnes repeatedly referred to foreclosure defendants as "borrowers" instead of "defendants," showing foregone judgment of their status without any investigation of the facts of the case. He doesn't seem to have a clue that the vast majority of foreclosure plaintiffs committed a mountain of frauds against the defendants and the court, drawing into question the validity of the loans they allege. Eary in the meeting Starnes stood and ordered a complainer out of the room, typical of his belligerent method of disturbing the peace through abuse and intimidation. And he allowed only 7 minutes out of 2 hours for the public to address him with comments and questions. I shall make certain that counsel, administrators, and justices receive a tape of his outrageous behavior. How could this man POSSIBLY hold office validly? His kind of behavior makes me want to search frantically for every possible means to challenge his authority.
- Please forward this message to Starnes and Thompson. Had I known their email addresses I'd have put them in the cc list.
- Please note also that I loathe having to give horrid reports like this one against those two rogue senior judges who ought to know better than to behave like sophomoric buliies toward hapless litigants in fear of losing the biggest investment of their lives to utter criminals posing as foreclosure mill attorneys and their incessantly lying clients. I realize that I put myself in grave danger of reprisal by these two targets of my scorn. But I have to let the justices who appointed them know the misery those appointees have heaped upon the foreclosure victims of the 20th Circuit. You well know that NOTHING the citizenry can do aside from a lynching will work to stop them from tormenting and rushing their victims to an unjust fate. I can only hope that you will see fit NEVER to appoint them or people like them again, not EVER.
REFERENCES
Black's Law Dictionary, 8th Edition
CANDIDATE,n.[fr. Latin candidatus, “clothed in white”; fr. candidus, “white,” from the white
toga worn by a can-didate for public office in ancient Rome as a symbol of clean government] An
individual seeking nomination, election, or appointment to an office, membership, award, or like
title or status. • A candidate for election becomes a “nominee” after being formally nominated. Cf.
NOMINEE(1).
U.S. Constitution Article VI Clause 3
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
4 USC § 101. Oath by members of legislatures and officers
Every member of a State legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an oath in the following form, to wit: “I, A B, do solemnly swear that I will support the Constitution of the United States.
Florida Constitution Article II Section 5(b)
(b) Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm:
“I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am now about to enter. So help me God.”,
and thereafter shall devote personal attention to the duties of the office, and continue in office until a successor qualifies.
Florida Statutes
876.05 Public employees; oath.—
(1) All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning, and all candidates for public office, except candidates for federal office, are required to take an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form:
I, ____, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of ____ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.
(2) Said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation.
History.—s. 1, ch. 25046, 1949; s. 22, ch. 83-214; s. 55, ch. 2007-30.
876.06 Discharge for refusal to execute.—If any person required by ss. 876.05-876.10 to take the oath herein provided for fails to execute the same, the governing authority under which such person is employed shall cause said person to be immediately discharged, and his or her name removed from the payroll, and such person shall not be permitted to receive any payment as an employee or as an officer where he or she was serving.
History.—s. 2, ch. 25046, 1949; s. 1414, ch. 97-102.
876.07 Oath as prerequisite to qualification for public office.—Any person seeking to qualify for public office who fails or refuses to file the oath required by this act shall be held to have failed to qualify as a candidate for public office, and the name of such person shall not be printed on the ballot as a qualified candidate.
History.—s. 3, ch. 25046, 1949; s. 23, ch. 83-214.
876.08 Penalty for not discharging.—Any governing authority or person, under whom any employee is serving or by whom employed who shall knowingly or carelessly permit any such employee to continue in employment after failing to comply with the provisions of ss. 876.05-876.10, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 4, ch. 25046, 1949; s. 1140, ch. 71-136.
876.09 Scope of law.—
(1) The provisions of ss. 876.05-876.10 shall apply to all employees and elected officers of the state, including the Governor and constitutional officers and all employees and elected officers of all cities, towns, counties, and political subdivisions, including the educational system.
(2) This act shall take precedence over all laws relating to merit, and of civil service law.
History.—ss. 5, 7, ch. 25046, 1949.
876.10 False oath; penalty.—If any person required by the provisions of ss. 876.05-876.10 to execute the oath herein required executes such oath, and it is subsequently proven that at the time of the execution of said oath said individual was guilty of making a false statement in said oath, he or she shall be guilty of perjury.
History.—s. 6, ch. 25046, 1949; s. 1141, ch. 71-136; s. 1415, ch. 97-102.
97.021 Definitions.—For the purposes of this code, except where the context clearly indicates otherwise, the term:
(5) “Candidate” means any person to whom any one or more of the following applies:
(a) Any person who seeks to qualify for nomination or election by means of the petitioning process.
(b) Any person who seeks to qualify for election as a write-in candidate.
(c) Any person who receives contributions or makes expenditures, or gives his or her consent for any other person to receive contributions or make expenditures, with a view to bringing about his or her nomination or election to, or retention in, public office.
(d) Any person who appoints a treasurer and designates a primary depository.
(e) Any person who files qualification papers and subscribes to a candidate’s oath as required by law.
However, this definition does not include any candidate for a political party executive committee.
105.031 Qualification; filing fee; candidate’s oath; items required to be filed.—
(1) TIME OF QUALIFYING.—Except for candidates for judicial office, nonpartisan candidates for multicounty office shall qualify with the Division of Elections of the Department of State and nonpartisan candidates for countywide or less than countywide office shall qualify with the supervisor of elections. Candidates for judicial office other than the office of county court judge shall qualify with the Division of Elections of the Department of State, and candidates for the office of county court judge shall qualify with the supervisor of elections of the county. Candidates for judicial office shall qualify no earlier than noon of the 120th day, and no later than noon of the 116th day, before the primary election. Candidates for the office of school board member shall qualify no earlier than noon of the 71st day, and no later than noon of the 67th day, before the primary election. Filing shall be on forms provided for that purpose by the Division of Elections and furnished by the appropriate qualifying officer. Any person other than a write-in candidate who qualifies within the time prescribed in this subsection shall be entitled to have his or her name printed on the ballot.
(2) FILING IN GROUPS OR DISTRICTS.—Candidates shall qualify in groups or districts where multiple offices are to be filled.
(3) QUALIFYING FEE.—Each candidate qualifying for election to a judicial office or the office of school board member, except write-in judicial or school board candidates, shall, during the time for qualifying, pay to the officer with whom he or she qualifies a qualifying fee, which shall consist of a filing fee and an election assessment, or qualify by the petition process. The amount of the filing fee is 3 percent of the annual salary of the office sought. The amount of the election assessment is 1 percent of the annual salary of the office sought. The Department of State shall transfer all filing fees to the Department of Legal Affairs for deposit in the Elections Commission Trust Fund. The supervisor of elections shall forward all filing fees to the Elections Commission Trust Fund. The election assessment shall be deposited into the Elections Commission Trust Fund. The annual salary of the office for purposes of computing the qualifying fee shall be computed by multiplying 12 times the monthly salary authorized for such office as of July 1 immediately preceding the first day of qualifying. This subsection does not apply to candidates qualifying for retention to judicial office.
(4) CANDIDATE’S OATH.—
(a) All candidates for the office of school board member shall subscribe to the oath as prescribed in s. 99.021.
(b) All candidates for judicial office shall subscribe to an oath or affirmation in writing to be filed with the appropriate qualifying officer upon qualifying. A printed copy of the oath or affirmation shall be furnished to the candidate by the qualifying officer and shall be in substantially the following form:
State of Florida
County of ____
Before me, an officer authorized to administer oaths, personally appeared (please print name as you wish it to appear on the ballot) , to me well known, who, being sworn, says he or she: is a candidate for the judicial office of ____; that his or her legal residence is ____ County, Florida; that he or she is a qualified elector of the state and of the territorial jurisdiction of the court to which he or she seeks election; that he or she is qualified under the constitution and laws of Florida to hold the judicial office to which he or she desires to be elected or in which he or she desires to be retained; that he or she has taken the oath required by ss. 876.05-876.10, Florida Statutes; that he or she has qualified for no other public office in the state, the term of which office or any part thereof runs concurrent to the office he or she seeks; and that he or she has resigned from any office which he or she is required to resign pursuant to s. 99.012, Florida Statutes.
(Signature of candidate)
(Address)
Sworn to and subscribed before me this ____ day of ____, (year) , at ____ County, Florida.
(Signature and title of officer administering oath)
(5) ITEMS REQUIRED TO BE FILED.—
(a) In order for a candidate for judicial office or the office of school board member to be qualified, the following items must be received by the filing officer by the end of the qualifying period:
1. Except for candidates for retention to judicial office, a properly executed check drawn upon the candidate’s campaign account in an amount not less than the fee required by subsection (3) or, in lieu thereof, the copy of the notice of obtaining ballot position pursuant to s. 105.035. If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall, the end of qualifying notwithstanding, have 48 hours from the time such notification is received, excluding Saturdays, Sundays, and legal holidays, to pay the fee with a cashier’s check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.
2. The candidate’s oath required by subsection (4), which must contain the name of the candidate as it is to appear on the ballot; the office sought, including the district or group number if applicable; and the signature of the candidate, duly acknowledged.
3. The loyalty oath required by s. 876.05, signed by the candidate and duly acknowledged.
4. The completed form for the appointment of campaign treasurer and designation of campaign depository, as required by s. 106.021. In addition, each candidate for judicial office, including an incumbent judge, shall file a statement with the qualifying officer, within 10 days after filing the appointment of campaign treasurer and designation of campaign depository, stating that the candidate has read and understands the requirements of the Florida Code of Judicial Conduct. Such statement shall be in substantially the following form:
Statement of Candidate for Judicial Office
I, (name of candidate) , a judicial candidate, have received, read, and understand the requirements of the Florida Code of Judicial Conduct.
(Signature of candidate)
(Date)
5. The full and public disclosure of financial interests required by s. 8, Art. II of the State Constitution or the statement of financial interests required by s. 112.3145, whichever is applicable. A public officer who has filed the full and public disclosure or statement of financial interests with the Commission on Ethics or the supervisor of elections prior to qualifying for office may file a copy of that disclosure at the time of qualifying.
(b) If the filing officer receives qualifying papers that do not include all items as required by paragraph (a) prior to the last day of qualifying, the filing officer shall make a reasonable effort to notify the candidate of the missing or incomplete items and shall inform the candidate that all required items must be received by the close of qualifying. A candidate’s name as it is to appear on the ballot may not be changed after the end of qualifying.
(6) Notwithstanding the qualifying period prescribed in this section, a filing officer may accept and hold qualifying papers submitted not earlier than 14 days prior to the beginning of the qualifying period, to be processed and filed during the qualifying period.
History.—s. 3, ch. 71-49; s. 36, ch. 77-175; s. 1, ch. 78-260; s. 5, ch. 79-365; s. 54, ch. 79-400; s. 17, ch. 81-105; s. 10, ch. 83-251; s. 1, ch. 89-152; s. 34, ch. 89-338; s. 5, ch. 91-107; s. 630, ch. 95-147; s. 2, ch. 95-156; s. 13, ch. 97-13; s. 13, ch. 99-6; s. 2, ch. 99-326; s. 2, ch. 99-355; s. 23, ch. 2002-17; s. 65, ch. 2005-277; s. 21, ch. 2005-286; s. 40, ch. 2007-30; s. 4, ch. 2010-16
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