Sunday, March 27, 2011

Certification of Florida Statutes, Codes as "Constitutional"

Citizens can ask the AG to certify the law as constitutional.

I thought you might like to see this.  I found it while browsing the civil practice and procedure of Florida Statutes.  Read 86.091 at this link (see text below)

http://leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0086/0086.html

86.091 Parties.When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings. In any proceeding concerning the validity of a county or municipal charter, ordinance, or franchise, such county or municipality shall be made a party and shall be entitled to be heard. If the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.

While the AG / State Attorney need not render an opinion, it might constitute political suicide to fail to do so.

Maybe the complaint could state that the law violates the Constitution and state that failure of the AG to deny it estops a later dissent.

I have not looked for any case law on it.  I think UPL as a penalty deserves such a challenge.

Regarding Adverse Possession


I believe this provides a method of demanding that the court declare Adverse Possession (AP) does not constitute a crime and that the sheriff has no authority to accuse an APer of some crime like grand theft, scheme to defraud, burglary, criminal mischief, breaking and entering, or larceny when the APer merely follows the AP statute.

I would add the following to my request for Declaratory Judgment:

  1. The APer must not destroy or dismantle or alter any structures on, dig and leave uncovered holes in the ground of, remove, sell, or otherwise dispose of any appliances or equipment on, components of, vegetation on, chattels on, or minerals or elements in, the realty UNLESS they constitute what a reasonable person would consider a hazard to inhabitation or "working" the land, or refuse/junk/trash/garbage, or necessary to the maintenance of the realty and compliance with laws, rules, codes, or covenants.  Any such act would probably constitute a crime.

  2. The APer has the right to interpret abandonment of the realty as the abandonment of all chattels in or on the realty or its appurtenances, and that the APer may dispose of, claim as the AP's own, or use said chattels without penalty, the same as if the APer had found the chattels in a dumpster dive.

  3. The APer has the right to host guests to, or lease, rent, or sublet the realty or portions of it to other parties of the APer's choosing, but that the APer has the legal duty to safeguard and protect the property from such parties if they become malfeasors, and to eject such parties summarily for malfeasance in connection with the visit to or occupancy of the realty, and that a monthly inspection, inventory, and comparison of prior condition of the realty and its buildings and appurtenances shall suffice as "due diligence," provided the APer summarily ejects parties causing damage or peace disturbance problems at or on the realty, and bars/bans their return.

  4. The APer has the duty not only to treat the realty as the APer's own, but also to give it the extra care and protection that a good steward would.  I say this because some people behave irresponsibly with their own property, and they will probably do the same as APers or occupants of an AP realty.  The APer has the duty of stewardship to bar admittance of such irresponsible from the realty, and to remove them if they somehow gain access.  Thus, I see the APer as having responsibilities  and duties to the realty, the owner of record, the community, and the occupants, even more than the owner would have.

If a judge made such declarations of right, status, and duty as above, that would provide a common law solution to the negligence of the Legislature in treating this issue responsibly

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Title VI
CIVIL PRACTICE AND PROCEDURE

Chapter 86 
DECLARATORY JUDGMENTS

View Entire Chapter

CHAPTER 86
DECLARATORY JUDGMENTS
86.011 Jurisdiction of trial court.
86.021 Power to construe.
86.031 Before breach.
86.041 Actions by executors, administrators, trustees, etc.
86.051 Enumeration not exclusive.
86.061 Supplemental relief.
86.071 Jury trials.
86.081 Costs.
86.091 Parties.
86.101 Construction of law.
86.111 Existence of another adequate remedy; effect.
86.011 Jurisdiction of trial court.The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
(1) Of any immunity, power, privilege, or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.

History.s. 1, ch. 21820, 1943; s. 2, ch. 29737, 1955; s. 38, ch. 67-254; s. 3, ch. 90-269.
Note.Former s. 87.01.
86.021 Power to construe.Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.
History.s. 2, ch. 21820, 1943; s. 38, ch. 67-254; s. 458, ch. 95-147.
Note.Former s. 87.02.
86.031 Before breach.A contract may be construed either before or after there has been a breach of it.
History.s. 3, ch. 21820, 1943; s. 38, ch. 67-254.
Note.Former s. 87.03.
86.041 Actions by executors, administrators, trustees, etc.Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect thereto:
(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; or
(2) To direct the executor, administrator, or trustee to refrain from doing any particular act in his or her fiduciary capacity; or
(3) To determine any question arising in the administration of the guardianship, estate, or trust, including questions of construction of wills and other writings.
For the purpose of this section, a “mental incompetent” is one who, because of mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other mental incapacity, is incapable of either managing his or her property or caring for himself or herself, or both.

History.s. 4, ch. 21820, 1943; s. 38, ch. 67-254; s. 1, ch. 88-33; s. 459, ch. 95-147.
Note.Former s. 87.04.
86.051 Enumeration not exclusive.The enumeration in ss. 86.021, 86.031 and 86.041 does not limit or restrict the exercise of the general powers conferred in s. 86.011 in any action where declaratory relief is sought. Any declaratory judgment rendered pursuant to this chapter may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened, and in such case the judgment shall have the same binding effect with respect to that future act or event, and the rights or liability to arise therefrom, as if that act or event had already been done or had already happened before the judgment was rendered.
History.s. 5, ch. 21820, 1943; s. 38, ch. 67-254.
Note.Former s. 87.05.
86.061 Supplemental relief.Further relief based on a declaratory judgment may be granted when necessary or proper. The application therefor shall be by motion to the court having jurisdiction to grant relief. If the application is sufficient, the court shall require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause on reasonable notice, why further relief should not be granted forthwith.
History.s. 7, ch. 21820, 1943; s. 38, ch. 67-254.
Note.Former s. 87.07.
86.071 Jury trials.When an action under this chapter concerns the determination of an issue of fact, the issue may be tried as issues of fact are tried in other civil actions in the court in which the proceeding is pending. To settle questions of fact necessary to be determined before judgment can be rendered, the court may direct their submission to a jury. When a declaration of right or the granting of further relief based thereon concerns the determination of issues of fact triable by a jury, the issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict is required or not. Neither this section nor any other section of this chapter shall be construed as requiring a jury to determine issues of fact in chancery actions.
History.s. 8, ch. 21820, 1943; s. 38, ch. 67-254.
Note.Former s. 87.08.
86.081 Costs.The court may award costs as are equitable.
History.s. 9, ch. 21820, 1943; s. 38, ch. 67-254.
Note.Former s. 87.09.
86.091 Parties.When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings. In any proceeding concerning the validity of a county or municipal charter, ordinance, or franchise, such county or municipality shall be made a party and shall be entitled to be heard. If the statute, charter, ordinance, or franchise is alleged to be unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.
History.s. 10, ch. 21820, 1943; s. 1, ch. 59-440; s. 38, ch. 67-254.
Note.Former s. 87.10.
86.101 Construction of law.This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.
History.s. 11, ch. 21820, 1943; s. 38, ch. 67-254.
Note.Former s. 87.11.
86.111 Existence of another adequate remedy; effect.The existence of another adequate remedy does not preclude a judgment for declaratory relief. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. The court has power to give as full and complete equitable relief as it would have had if such proceeding had been instituted as an action in chancery.
History.s. 12, ch. 21820, 1943; s. 2, ch. 29737, 1955; s. 38, ch. 67-254.
Note.Former s. 87.12.

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