Regarding Lack of Qualification of Florida's Appointed Jurists.

Oaths Show Florida's Appointed Jurists Are Imposters

by Bob Hurt, 23. March 2011

To All Floridians and Florida Public Officers:

(Note:  in this document CUSA means Constitution for the United States of America, FCON means Florida Constitution, and FS means Florida Statute; referenced law appended below.)

In this message I soundly indict the Government of Florida for flouting the Constitutions and the laws with respect to loyalty oaths.  I ask that every Floridian write and call Legislators, and protest vehemently to every judge and justice about the abuse of power the Judiciary has undertaken with apparent approval of the Legislative and Executive Branches.   I take up one issue:  loyalty oaths.  But many other violations of the law, rules, and codes characterize rogue public officers in Florida's Government, and these violations must stop.

I make no threat when I declare, as did the Declaration of Independence, that judges and justices who block access to the court with contrived barriers and who refuse to give relief and remedy when deserved produce these effects on the public:

1. Create disrespect for government and law
2. Resort to violence to resolve their personal and business disputes
3. Refuse to learn the law
4. Create a desire to assassinate judges and justices.

Judges should remember always that they only exist to provide a reliable alternative to guns, knives, fists, broken bottles, and vendettas to resolve disputes.  When they fail in that mission, people resort to violence again, in lieu of going to court, and sooner or later they visit violence on judges out of frustration, despair, and hatred.

And of course, if it gets much worse, people gravitate to open, bloody rebellion.  Of Course our founding documents contemplate precisely that. Accordingly, I provide you with a provision from FCON of 1838 (the original), Article I (Declaration of Rights), Section 2, which as we can tell from its wording, remains in force and effect today:

...all political power is inherent in the people, and all free governments are founded on their authority, and established for their benefit; and, therefore, they have, at all times, an inalienable and indefeasible right to alter or abolish their form of government, in such manner as they may deem expedient.

A Florida judge must swear 6 oaths:

(This list shows where to get the oath documents (custodians))

1. Elector's oath - FCON Article VI, Sec 3 and FS 97.051 - elections supervisor in county of residence
2. Bar oath - bar examiner has it, costs $30, only the judge can get it
3. Candidate oath FS 105.031 - bureau of election records State Dept Div of Elections
4. Candidate loyalty oath FS 876.05-10 (before name goes on ballot) - bureau of election records
5. Public Officer Oath - FCON Article II Section 5(b) - bureau of election records
6. Public Employee Oath - FS 876.05-10 - Chief Judge, trial courts admin or office of state courts admin.

Relevant Facts:

• The Governor appoints jurists to fill judgeship vacancies (including Supreme Court Justices).
• The Supreme Court Justices appoint Senior Judges for 1 to 3-year terms.
• Judicial Nominating Commissions (1 for supreme court, 1 per district, 1 per circuit) nominate judges
• As far as I know, neither the Justices, the Governor, nor the Judicial Nominating Commissions require nomination candidates to swear oaths number 3 and 4 above.  Therefore, they never qualified for office.  See FS 876.07 and 876.08.
• State Dept counsel Gary Holland wrote me that nominees aren't candidates, referring to definitions in F.S. chapter 97, but those definitions apply to the election statutes, not to chapter 876 (876.05-10, candidate loyalty oath)
• candidate,n.[fr. Latin candidatus, “clothed in white”; fr. candidus, “white,” from the white
  toga worn by a candidate 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). Black's Law Dictionary 8th Edition p 616.
• The oath in #5 above contains the words "and Government" which the CUSA and 4 USC 101 do not contain.  This creates a conflict of interest making it impossible for judges to remain loyal to the Constitution.
• Every judge ought to lay hands on all his oaths and produce them along with other qualifying credentials in a Quo Warranto action.  It is unduly burdensome for every Floridian who wants to see the proof to file an array of awkward public information requests.
• The Florida Supremes in Bar v SIbley (2008) ruled to make it seem they may flout the statutes and adhere only to the FCON when they wish.  They ignored the reality that the De Facto Officer doctrine applies only to those who first became officers, and that failure to swear the requisite oaths #3 and #4 above disqualified them from candidacy, nomination, the ballot, and office.
• As a consequence of the above facts none of Florida's appointed judges and justices validly hold office.  Failure to produce sworn oaths #3 and #4 above in a Quo Warranto proceeding should suffice as proof.
• The Quince Supreme Court made reference in the Bar v Sibley opinion to the purpose of FS 876.05 to protect the state from "conspiratorial fanatics."  When public officers swear to support, protect, and defend the Governments of the US and Florida, they swear loyalty to the enemy of the Constitutions, the "good old boys" network of government aristocrats with their sycophants, lackeys, and minions.  This has, does, and shall lead to government by conspiratorial fanatics.  For crystal clear example, realize that:
  
  • Florida's rules and the behavior of judges block access to the courts by charging outrageous fees for filing cases and for transcripts,
  • judges whimsically throw people in prison for months on contempt charges,
  • Judges order or let bailiffs intimidate and abuse frightened litigants who try to stand up for their rights,
  • judges conduct rocket docket courts that provide no semblance of due process,
  • the Supreme Court Justices staff those rocket docket courts with rude, abusive senior judges who flout the law, constitution, and rules at whim, using them to abuse rather than to protect the rights of the hapless litigants who appear before them. 
  • And if that were not enough, we have this absurd ruling in the Sibley case, where the justices blatantly say they don't have to obey statutes intended to keep such megalomaniacal oligarchs out of government.
  • Judges give themselves "judicial immunity which the Constitution does not grant and the 9th and 10th amendments implicitly forbid. Thus they commit an endless stream of torts and crimes from the bench against the very people they swore to protect (we MUST assume judges have the primary duty of enforcing the structure of government and the guarantees of rights expressed in the constitutions), and nary a bailiff utters a word of protest or rebuke.
  • The Supreme Court created a judicial oligarchy with its 1949 integration of the bar as its official arm, and now, in violation of FCON Article III Section 2 separation of powers, their bar members, who remain subject to their discipline, infest and infect every branch of Government, like a plague.  35 Florida Legislators have bar membership.
  • The Supreme Court, by wrongly construing "practice of law" to mean virtually everything attorneys do, has made it a crime for citizens to help people with legal problems, a necessity when the legal services monopoly created by the UPL statute 454.23 has driven attorney fees sky high, making assistance of counsel impossible for most would-be litigants, and effectively chilling their willingness to learn law or use the courts to remedy disputes.
  • None of this would matter if judges obeyed their oaths in 876.05 which the Supremes believe judges don't need to swear.  But they don't, and no law or rule exists to make it possible to hold judges accountable for violating those oaths.

References

CUSA Article VI –

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

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.”

FCON Article II Section 5 (b).  Public officers.--

(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.

FCON Article VI. Suffrage and Elections. SECTION 3.  Oath.-

-Each eligible citizen upon registering shall subscribe the following: "I do solemnly swear (or affirm) that I will protect and defend the Constitution of the United States and the Constitution of the State of Florida, and that I am qualified to register as an elector under the Constitution and laws of the State of Florida."

Florida Statutes

Elector’s Oath FS 97.051  Oath upon registering.—

A person registering to vote must subscribe to the following oath: "I do solemnly swear (or affirm) that I will protect and defend the Constitution of the United States and the Constitution of the State of Florida, that I am qualified to register as an elector under the Constitution and laws of the State of Florida, and that all information provided in this application is true."

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, 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.

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.

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.

876.08  (Oath) 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.

876.09  (Oath) 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.

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.

105.031 Qualification; filing fee; candidate's oath; items required to be filed. -

(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.

Florida Supreme Court Ruling

SC06-1387 – The Florida Bar v. Montgomery Blair Sibley

A comparison of the language of the oath of office provided in article II, section 5(b) and as enrolled in section 876.05 reveals they are more similar than dissimilar. Indeed, the constitutional oath is more sweeping, as it requires the oath-taker to “support, protect, and defend” the federal and state Constitutions as opposed to merely supporting them, as is required by the statute. The only requirement of the statute that is not also required by the constitutional oath of office is that a written, notarized copy of the oath be preserved to memorialize the fact that the oath was taken. To the extent this portion of the statute is interpreted to enlarge the requirements of the oath of office set forth in the Constitution for the investiture of constitutional officers, it is unconstitutional and unenforceable. We need not and do not go so far. Rather, we hold that the dictates of section 876.05 are satisfied when a judicial officer duly takes the oath of office as set forth in the Constitution and limit our holding to only those judicial officers who take the oath of office as set forth in the Constitution. We do not address the validity or the requisites of the statute in any other context than the one extant here.

[Editor Comment] This proves the point above.  First, the Quince Court ignores the gross corruption of the Public Officer oath in the Florida Constitution, specifically the words "and Government" which effectively negates the word "Constitution."  Second, the Court blatantly admits that it has not addressed the use of the 876.05 oath to qualify for candidacy and get the would-be candidate's name on the ballot.

Further, even if the referee or any of the justices inadvertently failed tocomply with the technical requirements of section 876.05 by executing a loyalty oath in writing, and if we also had interpreted the effect of that failure to be that suggested by Sibley, the de facto officer doctrine, which has been long established in Florida, would nevertheless cure any defect. A de facto officer is “[o]ne who, while in actual possession of the office, is not holding such in a manner prescribed by law.” Black’s Law Dictionary 375 (5th ed. 1979). De facto officers exercise the functions of office under color of title, in full view of the public, and in such manner and under circumstances of reputation or acquiescence that would suggest no ineligibility. See State ex rel. Hawthorne v. Wiseheart, 28 So. 2d 589, 593 (1946). A de facto officer exercising the functions of office in consequence of a known and valid appointment or election may serve if the only defect in title is a failure to comply with some requirement or condition such as executing an oath or doing so in accordance with a prescribed form. See Gregory v. Woodbery, 43 So. 504, 507 (Fla. 1907) (holding the failure to file the oath of office did not invalidate the official’s public acts); State ex rel. Bisbee v. Bd. of County Canvassers, 17 Fla. 9, 16 (1878) (holding official’s return of the oath bearing an unsigned jurat did not invalidate the official’s public acts).

The de facto officer doctrine was “engrafted on the law for [reasons of] public policy and necessity, in order that the interest of the public and others dealing with the officer might be protected.” Hawthorne, 28 So. 2d at 593; see also Sawyer v. State, 113 So. 736, 744 (Fla. 1927). As a practical matter, the public is entitled to rely upon the official acts of a person who is exercising the duties of an office and should not be required to inquire regarding an officer’s qualifications. Consequently, “[t]he law validates the acts of de facto officers as to the public and third persons on the ground that, though not officers de jure, they are in fact officers whose acts public policy requires should be considered valid.”  Sawyer, 113 So. at 744. In other words, “[a] de facto officer’s acts are as valid and binding upon the public or upon third persons as those of an officer de jure.” Kane v. Robbins, 556 So. 2d 1381, 1385 (Fla. 1989) (on rehearing).

[Editor Comment]  Note that "De Facto Officer Doctrine" does not apply to a candidate.  It only applies to officers who actually qualified for the office BEFORE performing the duties of office.  A missing candidate oath disqualifies the applicant from candidacy and election or nomination.  A person must first become an officer.  Only then does the De Facto Officer Doctrine apply.

Bob Hurt • My Blog 2460 Persian Drive #70 Clearwater, FL 33763 Email • Call: (727) 669-5511 Law Studies: Donate • Subscribe Win your lawsuit: Jurisdictionary