Sunday, June 22, 2014

Adverse Possession Issues




Adverse Possession issues

Contents

The Nan Diamond Story. 1

Putative Legal Aspects of Adverse Possession. 2

Lines of Attack Against Persecutors. 3

Perjury by Sheriff, Police, State Attorney Personnel 5

About paying property tax under Florida Statute 95.18. 8

Compensation for Maintenance and Improvements in event Owner Takes House Back. 8

Property Taxes. 9

Florida Common Law Jurisprudence. 10

Tami Robinson Declaratory Judgment and Injunction Lawsuit. 19

COMPLAINT FOR DECLARATORY JUDGMENT & INJUNCTION.. 20

(a)   Applicability of statutory and common law.. 22

COUNT I: CONSTITUTIONAL DECLARATORY JUDGMENT THE FEDERAL RULES OF CIVIL PROCEDURE MUST NOT BE CONSTRUED SO AS TO DENY THE FIRST AMENDMENT RIGHT TO PETITION.. 25

COUNT II: CONSTITUTIONAL DECLARATORY JUDGMENT THE RIGHT TO COLLATERAL ATTACK PROTECTED BY THE FIRST, NINTH, & FOURTEENTH AMENDMENTS. 32

COUNT III: RULE 27--- DISCOVERY PRIOR TO COLLATERAL ATTACK. 35

COUNT IV:  IMPOSITION OF LIS PENDENS. 39

COUNT V: FIRST & NINTH AMENDMENT FREEDOMS TO USE and OCCUPY ABANDONED PROPERTY BENEFICIALLY. 42

PRAYER FOR RELIEF. 44

VERIFICATION.. 49

VERIFICATION.. 50

VERIFICATION.. 51

 

 

The Nan Diamond Story

 There ought to be a law against persecution of adverse possessors of realty abandoned in foreclosure.  This commentary overviews one case in point

One of my friends, Nan Diamond (real name Ethyl Ellis), got arrested 10 April 2014 for grand theft for taking adverse possession of a house and living in it for 3 years.  The sheriff served her with a writ of possession that gave her 24 hours to vacate.  The sheriff arrested her 8 hours early, thereby preventing her from moving out.  FBI agent Ron Monaco had some kind of federal investigation going against her because of "sovereign citizen" association, I imagine.  I demanded all the documents from the Pasco county sheriff, and the personnel there told me they did not have the Probable Cause Affidavit supporting the arrest warrant.  I presume the State Attorney has it..  Two days ago Nan got released from Pasco Jail under plea probation on a plea bargain conviction after 70 days of relatively inhuman incarceration.

Nan says someone stole her car, which Sheriff deputy should have secured in the garage, and the sheriff had impounded $9600 in cash (now claiming it was only $9200) and two pistols which sheriff claimed was worth only $50 and one, a Browning Hi Power, had a value of at least $700.

I know two 2 whites and 3 blacks in Florida who have accepted plea bargain convictions for Grand Theft in connection with Adverse Possession, and one black who committed suicide rather than face another jail term. I believe many more such victims exist.  But I know of NOBODY whom any court has found guilty of Grand Theft in connection with adverse possession of a foreclosure-abandoned house. 

Thus, I believe Grand Theft charges amount to generalized persecution of Citizens for exercising a 600-year-old common law and statutory right inherited from England and made part of Florida Law.  I believe the legislature has unduly interfered with exercise of that right through onerous requirements in 95.18.  In Kluger v White, the Florida Supremes opined that the Legislature cannot remove a common law right without providing a statutory substitute.  That's what makes the most recent changes to 95.18 wrong and essentially void.  For insights, see the Florida Bar article on Common Law Jurisprudence appended below.

Adverse Possession arrestee Tami Robinson filed a Federal Declaratory Judgment lawsuit.  See Florida MD USDC 8:12-cv-02275.  The Complaint does not appear through Pacer.  So I appended it below.  In it she sought a writ of amparo to curb the general persecution of adverse possessors.  She will probably supply you with a copy of her pleading. 

Putative Legal Aspects of Adverse Possession

I see the legal aspects this way. 

First of all, a SQUATTER is anyone living in someone else's house without permission.  An ADVERSE POSSESSOR is a squatter who has fulfilled the requirements of the adverse possession laws (hostile, notorious, continuous possession, improvement, and payment of taxes and assessments for the statutory period (7 years in Florida), and thereafter holds the property ADVERSELY and whom the owner of record cannot lawfully dispossess.  The adverse possessor may obtain title and become the lawful owner through a quiet title action.

The law seems to imply that squatting in abandoned property is completely legal while attempting to fulfill adverse possession within statutory limits.  If the owner of abandoned property does not tell the squatter to move out, the squatter can squat.  If the owner does, the owner must use written trespass warning to the sheriff, or orally tell the squatter to leave. If the squatter does not comply within some reasonable time sufficient to allow the squatter to take possessions with him, then the sheriff/police can arrest the squatter for trespass.  If the squatter has resided there for more than 30 days, the owner must use standard eviction procedures in chapter 83.  As a practical matter, the owner has no right to capture the adverse possessor's chattel by refusing to grant sufficient time to remove and secure them.  The owner cannot lawfully, within that reasonable or legal time period, set them on the street or steal them, and neither can the sheriff or a property preservation company enter occupied premises and steal or remove property whatsoever.  Likewise, the adverse possessor must preserve any belongings remaining behind from the previous occupant, whether or not that occupant was the owner, unless the belongings constitute trash and garbage in containers or strewn about the place.  A file cabinet and its contents do not constitute trash, and the squatter must preserve it or stand up to accusation for theft or destruction of owner's chattel.

But, bottom line, one cannot steal use of abandoned property. And if it appears abandoned because it is empty except for trash and unkempt, even if taxes and utilities bills are current, then it IS abandoned.  Any owner who leaves property unattended has a responsibility to the community to preserve it, such as by shutting off the water and draining pipes, but leaving the AC operational to prevent mold infestation, and leaving electricity turned on, and posting no trespassing signs and "this property is occupied" notices on the outside of the buildings and fences sufficient to give notice to the public of the status of the property.

Otherwise local ordinances might justify code enforcers taking over the property and maintaining it at owner expense.

Thus, prosecutors and law enforcers have no call to get involved UNLESS an owner swears a trespass warning in advance in writing, or orally orders the person off the property and the person refuses to leave timely.

If our laws don't clarify this, they should.

I believe laws should also penalize owners who let the property go to ruin because it lowers property value, injures the mortgagee, and lowers the value of the community to prospective inhabitants.  Neighbors should have the right to expect others to keep their property up to some standards.  And laws should penalize counties for not proactively preserving properties and putting occupants in them as necessary to protect them.  If the law managed that properly, we would not need adverse possession concerns, and sheriffs and prosecutors would stop harassing adverse possessors with grand theft charges.

Lines of Attack Against Persecutors

I believe we have 4 lines of attack for abuse of adverse possessors with theft of their assets and trumped up phony charges of grand theft:

1.  Writ of Amparo - available under ALL WRITS powers of the Circuit Courts of the state, as well as the state's Supreme and District appellate courts.  This should issue to warn cops, sheriffs, and prosecutors and AG and FDLE against persecuting adverse possessors with trumped up grand theft charges and theft of their chattel.

2.  Writ of Habeas Corpus - with phony PCA containing lies supporting a warrant, the warrant becomes phony, and if it does not name the computers, but law enforcers steal that too, the Habeas should also operate to obtain a return of the computers, firearms, cash, and other possessions to the arrest victim.  Sheriffs and cops violate Article I Section 12 of the FC and the 4th Amendment of the CUSA, not to mention due process rights under AI S9 of the FC, and 5Amendment to CUSA , and privacy rights under AI S23 of the FC.

3.  Anti-SLAPP - beyond question, the state's officials have criminalized exercise of a centuries-old common law right, and anti-SLAPP litigation should punish it.  Right now AntiSLAPP law seems to pertain only to exercise fo 1st Amendment rights, but it should extend to exercise of all constitutionally guaranteed rights, as well as common law rights.

4.  760.51  Get the AG to file suit

760.51  Violations of constitutional rights, civil action by the Attorney General; civil penalty.—

(1)  Whenever any person, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any other person of rights secured by the State Constitution or laws of this state, the Attorney General may bring a civil or administrative action for damages, and for injunctive or other appropriate relief for violations of the rights secured. Any damages recovered under this section shall accrue to the injured person. The civil action shall be brought in the name of the state and may be brought on behalf of the injured person. The Attorney General is entitled to an award of reasonable attorney’s fees and costs if the Department of Legal Affairs prevails in an action brought under this section.

(2) Any person who interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any other person of rights secured by the State Constitution or laws of this state is liable for a civil penalty of not more than $10,000 for each violation. This penalty may be recovered in any action brought under this section by the Attorney General. A civil penalty so collected shall accrue to the state and shall be deposited as received into the General Revenue Fund unallocated.

History.—s. 4, ch. 91-74.

 Perjury by Sheriff, Police, State Attorney Personnel

On top of that, we have the opportunity to attack the State Attorney for bar regulation violations and the investigators for perjury under 837.012, .05, .055, and .06.  All circuit judges are conservators of the peace (law enforcers), so a lie in a PCA constitutes perjury as above.

837.012   Perjury when not in an official proceeding.—

(1)  Whoever makes a false statement, which he or she does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his or her statement was not material is not a defense.

History.—s. 2, ch. 1637, 1868; RS 2560; GS 3472; RGS 5341; CGL 7474; s. 997, ch. 71-136; s. 54, ch. 74-383; s. 32, ch. 75-298; s. 205, ch. 91-224; s. 1310, ch. 97-102.

Note.—Former s. 837.01.

837.02  Perjury in official proceedings.—

(1)  Except as provided in subsection (2), whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Whoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding that relates to the prosecution of a capital felony, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)  Knowledge of the materiality of the statement is not an element of the crime of perjury under subsection (1) or subsection (2), and the defendant’s mistaken belief that the statement was not material is not a defense.

History.—s. 1, sub-ch. 6, ch. 1637, 1868; RS 2561; GS 3473; RGS 5343; CGL 7477; s. 998, ch. 71-136; s. 55, ch. 74-383; s. 33, ch. 75-298; s. 3, ch. 97-90; s. 1311, ch. 97-102.

837.021   Perjury by contradictory statements.—

(1)  Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)  Whoever, in one or more official proceedings that relate to the prosecution of a capital felony, willfully makes two or more material statements under oath which contradict each other, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) In any prosecution for perjury under this section:

(a) The prosecution may proceed in a single count by setting forth the willful making of contradictory statements under oath and alleging in the alternative that one or more of them are false.

(b) The question of whether a statement was material is a question of law to be determined by the court.

(c) It is not necessary to prove which, if any, of the contradictory statements is not true.

(d) It is a defense that the accused believed each statement to be true at the time the statement was made.

(4) A person may not be prosecuted under this section for making contradictory statements in separate proceedings if the contradictory statement made in the most recent proceeding was made under a grant of immunity under s. 914.04; but such person may be prosecuted under s. 837.02 for any false statement made in that most recent proceeding, and the contradictory statements may be received against him or her upon any criminal investigation or proceeding for such perjury.

History.—s. 1, ch. 72-314; s. 56, ch. 74-383; s. 34, ch. 75-298; s. 2, ch. 85-41; s. 4, ch. 97-90; s. 1312, ch. 97-102.

837.05  False reports to law enforcement authorities.—

(1)(a)  Except as provided in paragraph (b) or subsection (2), a person who knowingly gives false information to a law enforcement officer concerning the alleged commission of any crime, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) A person who commits a violation of paragraph (a) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the person has previously been convicted of a violation of paragraph (a) and subparagraph 1. or subparagraph 2. applies:

1. The information the person gave to the law enforcement officer was communicated orally and the officer’s account of that information is corroborated by:

a. An audio recording or audio recording in a video of that information;

b. A written or recorded statement made by the person who gave that information; or

c.  Another person who was present when that person gave that information to the officer and heard that information.

2. The information the person gave to the law enforcement officer was communicated in writing.

(2) A person who knowingly gives false information to a law enforcement officer concerning the alleged commission of a capital felony, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—s. 57, ch. 74-383; s. 34, ch. 75-298; s. 206, ch. 91-224; s. 5, ch. 97-90; s. 1, ch. 2013-117.

837.055   False information to law enforcement during investigation.—

(1)  Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation or a felony criminal investigation with the intent to mislead the officer or impede the investigation commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  Whoever knowingly and willfully gives false information to a law enforcement officer who is conducting a missing person investigation involving a child 16 years of age or younger with the intent to mislead the officer or impede the investigation, and the child who is the subject of the investigation suffers great bodily harm, permanent disability, permanent disfigurement, or death, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—s. 1, ch. 2006-142; s. 1, ch. 2012-53.

837.06  False official statements.—Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.—s. 58, ch. 74-383; s. 34, ch. 75-298; s. 207, ch. 91-224; s. 1313, ch. 97-102.

837.07  Recantation as a defense.—Recantation shall be a defense to any prosecution for perjury or false statement only if the person making the false statement admits such statement to be false in the same continuous proceeding or matter, and:

(1) The false statement has not substantially affected the proceeding; or

(2)  Such admission is made before it has become manifest that such false statement has been or will be exposed.

History.—s. 1, ch. 90-126.

I invite you to interact with me on the above subject.  I do not practice law or give legal advice, but I do discuss legal issues academically, as above, and I do write those discussions in articles or on my blog.  I realize time is money.  I have no personal issue for which I wish to pay anyone, and of course I don't ask anyone to pay me for writing the above considerations.  However, I might refer numerous people to a qualified practitioner and advocate as they face persecution for adverse possession IFF I know the practitioner will aggressively advocate their cause.  I will only know that IF the practitioner communicates with me about your perspectives on the issues I have raised.

About paying property tax under Florida Statute 95.18

Last year a man called me from South Florida for help with a house he had adversely possessed.  He took possession of an abandoned house in terrible shape, missing AC, vandalism, etc.  He replaced the AC, fixed it up, got rid of the mold, repainted, etc.  Then the court issued the final judgment.  The plaintiff asked the court to set aside the judgment because the plaintiff knew the house had been in bad shape, did not know the adverse possessor had fixed it up, and did not want to take the house because the costs would have exceeded the benefit.  The court set aside the final judgment and notified the owner who had run off to Puerto Rico a couple of years earlier.  The owner returned to take his house back, to the chagrin of the adverse possessor.

When people ask me what to do in an AP opportunity for a foreclosure-abandoned property, I tell them to get  a quitclaim deed or contract for occupancy and preservation INSTEAD of adverse possession.  The man I discussed above did not ask my opinion before taking AP of the house.  HAD he followed my business advice, he would have had an easier time dealing with the defendant because he, not the defendant, would have owned the house.

Perhaps the owner could have sued him for unjust enrichment.  I don't think a jury would have felt sympathetic to the owner who had run off and let the property go to ruin out of spite.  Maybe you know better.

Compensation for Maintenance and Improvements in event Owner Takes House Back

But this brings up an important question:

If an adverse possessor squats in a property abandoned in foreclosure and the owner  (whether the defendant, OR the person who bought the property at foreclosure auction) comes  to take possession within the AP time limit, how can the squatter get compensated for all the work and expense of improving the property?

Should the squatter place liens on the property for all expenses incurred in its maintenance and improvement?

Should the squatter sue the new owner or the plaintiff for unjust enrichment in an effort to recover expenses?

What value would a court assign to the care of the property (to keep vandals away and prevent mold infestation, etc., from neglect)? 

What value would a court assign to the appropriate rent for the property?

What adjustment would a court make for the squatter's mental anguish from constant knowledge that the owner could come and evict at any time, and that the squatter would thereby lose enjoyment of all the improvements made to the property (which could include livestock, fruit trees, vegetable garden?

 

Property Taxes

Note that squatters often cannot pay taxes because mortgage servicers pay them, EVEN THOUGH the servicer is not a signatory to the mortgage security instrument or note, and has no ownership or possession rights.

 

F.S. 697.02 Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.

The onerous Adverse Possession statute requires payment of taxes by the adverse possessor.  Why should courts construe that payment by the servicer as inuring to the benefit of the owner who has abandoned the property?  Why not construe it as inuring to the benefit of the squatter – the person who actually cares for the property and intends to consummate the adverse possession, an obvious benefit to the community, government, owner, and mortgagee?

Feel free to indulge these questions and answer to heart’s content.

I have attached the article about Tami Robinson's Arrest and Lawsuit, and the Declaratory Judgment and Injunction complaint she filed in Federal Court.  I looked on Pacer today for the complaint and discovered that Pacer no longer makes it available.  Maybe the judge decided it gave to many bright ideas to people who want to file something similar.


Florida Common Law Jurisprudence

For insights about Common Law Jurisprudence, see the below 2007 article from the Florida Bar:

https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/E9732A870D22810185257250007C9B0B


Florida Common Law Jurisprudence

by Michael Cavendish and Blake J. Hood

Page 8

Not far from the bank of the Thames, up a gentle slope from the Blackfriars tube station, stands the United Kingdom’s High Court of Justice. An austere stone-grey edifice, it exudes legal tradition. Close by are Lincoln’s Inn and Grey’s Inn, and further afield the Inner Temple and Middle Temple; the four Inns of Court with their cloistered, windowed chambers that admit filtered sunlight into space that has long hosted the world’s most celebrated tradition of legal advocacy. 

These institutions are remarkable for their longevity. They continue to function today as they ever have. Yet they are not museums of a dead time. Although their roots are deep in the past, at present they undertake the heavy work of finding justice. The barristers and judges peopling them today grasp an unbroken cord of tradition and precedent spanning many centuries; a record of proceeding, argument, and opinion revealing both accreted wisdom and discarded errancy — The common law.

Overview
In the autumn of 1829, the territory1 of Florida adopted the general common and statute laws of England existing on July 4, 1776, as its own.2 Florida’s territorial legislature had in one stroke given the future state a complete legal system that would soon grow into a new, never-before-seen system of jurisprudence. This system, under which Florida citizens live today, consists of all of the judge-made law ever written in Floridaand all of the judge-made law ever written in England until July 4, 1776. We call this Florida common law.

This article asks the existential question, “What is Florida common law?” It also asks the doctrinal question, “How is the English half of Florida common law identified, understood, and applied or rejected in Florida courts?” In answer to both questions, we will find a jurisprudence that marries the ancient forms with Florida’s modern statutes and the Florida Supreme Court’s evolving discernment of its own role.

Florida’s Receiving Statute: The Rise of Florida Common Law Jurisprudence
For ease of reference, this article refers to that part of the English common law made until July 4, 1776, as the “English half” or “English common law.” In practical terms, the key to the application of English common law in Florida is F.S. §2.01, which provides:
The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the [l]egislature of this state.

In 1973, the Florida Supreme Court issued two watershed opinions that would affect the vitality of the English law annexed to Florida and the position of the Florida Supreme Court as the interpreter, arbiter, and protector of Florida common law, both the Florida and English halves. One restrained the Florida Legislature’s authority over Florida common law. The second asserted the Supreme Court’s own ultimate authority over established aspects of Florida common law. 

Kluger v. White: The Stewardship of Judicial Review
The first of these key opinions was Kluger v. White, 281 So. 2d 1 (Fla. 1973). In Kluger, the Florida Supreme Court tackled the broad, yet novel question of “whether or not the constitutional guarantee of a ‘redress of any injury’ bars the statutory abolition of an existing remedy.”3 Kluger involved a challenge to the constitutionality of a legislative act, F.S. §627.738, that set a minimum claim threshold for civil lawsuits seeking to recover for property damage. This statute effectively barred claims for property damage from automobile accidents unless plaintiffs had declined property damage coverage with their auto insurer and the plaintiffs’ damages exceeded $550.4 

The Kluger court struck down the statute as inconsistent with the “access to the courts” clause at Fla. Const. art. I, §21. In the process, the court transformed the adopted rights and remedies of the English common law from something that was not to conflict with acts of the Florida Legislature into something that was to be left intact by the Florida Legislature, absent the creation of an equivalent remedy or a demonstration of great public necessity.5 The Kluger court struck the statute and held: 
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such a right has become part of the common law of the [s]tate pursuant to Fla. Stat. §2.01, the [l]egislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the [s]tate to redress for injuries, unless the [l]egislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.6

With this statement, the Florida Supreme Court formally reannounced7 and re-reserved for itself one-half of a power of judicial review,8 the power to strike legislation contradicting the Florida Constitution or Florida common law. The Kluger majority infuses its opinion with a tone of institutional superiority when it justifies the majority holding by refusing to “allow the [l]egislature to destroy a traditional and long-standing cause of action upon mere legislative whim.”9 

Kluger conceived of a separation of powers in Florida wherein the legislature may alter and even abolish common law rights, but only under the aegis of the Florida Supreme Court. Kluger does this by imposing on the legislature a burden to demonstrate, before abolishing common law rights, that legislation striking such rights either meets a great public need or provides a reasonable alternative. Within the worldview ushered in by Kluger, it is the Florida Supreme Court’s role to determine when and whether this new legislative burden is met. Thus, under Kluger, English common law rights are formally protected, and the Florida Supreme Court is their protector.

Kluger also raises the profile of the English half of Florida common law. After Kluger, the English part is affirmed as not merely a symbolic nod to Florida’s heritage, or quaint cyclopedia of principles that lawmakers only recall from school books. Kluger makes clear that those centuries-old common law rights and causes of action from England incorporated into Florida common law by the receiving statute are on equal footing with rights and actions found in Florida writ opinions.10 

Kluger Refined and Applied
In 1987, the Florida Supreme Court revisited the Kluger holding in Smith v. Dept. of Insurance, 507 So. 2d 1080 (Fla. 1987). Smith involved a constitutional challenge to the Tort Reform and Insurance Act of 1986, legislation that placed a cap of $450,000 on noneconomic damages in tort claims.11 

Following Kluger, the Smith court weighed the effect of the new statute against the right of access to the courts provided by the Florida Constitution. In affirming the holding in Kluger and describing it as “seminal,”12 the Smith court, en route to striking down the damages cap, further refined the Kluger holding into a two-part alternative test. 

Under the Smith court’s reading of Kluger, individual rights and remedies13 expressed as causes of action in court, including causes of action arising at English common law, may not be restricted by the legislature unless one of the following two conditions exists: 1) the legislature has provided a reasonable alternative remedy or a substitute benefit commensurate with the restricted right of recovery; or 2) the legislature has demonstrated a) an overpowering public necessity for the abolishment of the right, and b) there is no alternative method of meeting such a public necessity.14 This article labels this holding and the alternative two-prong test it sets forth as the Kluger-Smith doctrine.

A Nod to Statutory Construction 
Arrival at the Kluger-Smith doctrine presupposes that a legislative act appears to conflict with, for our purposes, an English common law principle existing on July 4, 1776. Satisfying this prerequisite requires statutory construction. The Florida Supreme Court provided detailed guidance on how to go about this type of statutory construction in two 1990s era opinions, Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990), and State v. Ashley, 701 So. 2d 338 (Fla. 1997). Thornber presents the following instructions to Florida courts construing statutes when deciding whether a cognizable common law principle is arguably altered or superseded by statute: 1) presume that no change in the common law principle is intended unless the statute under review is expedient and clear in terms of legislative intent to do so; 2) unless the statute under review unequivocally announces a change to the common law principle or is so repugnant that the statute and the principle cannot coexist, decide that no change was intended; and 3) do not favor the statutory abrogation of a common law right, particularly a long-established common law right.15 Ashleyparaphrased these instructions as follows: Even where the legislature acts in a particular area, the common law remains in effect unless the statute specifically states otherwise.16 Thus, a condition precedent to theKluger-Smith doctrine is a clear alteration of the common law. Ashley and Thornber stand for the proposition that courts must not find such an alteration by implication.

Hoffman v. Jones: The Florida Supreme Court’s Judicial Fiat
One day before Kluger was issued, the Florida Supreme Court handed down Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). Hoffman is best known as the case in which the Supreme Court discarded the doctrine of contributory negligence in favor of comparative negligence.17 In Hoffman the Supreme Court decreed that it would, as a product of its constitutional authority, acting alone, now change Florida common law when society changed.

The problem facing the Hoffman court was the widespread belief that the doctrine of contributory negligence allowed for unjust outcomes in auto accident suits.18 For policy reasons, the Hoffman court aimed for the end result of replacing the older rule with the newer, more flexible standard. To arrive at that result, the Supreme Court cut a path that would keep the debate outside of the province of other branches of state government. 

Hoffman begins with a statement challenging the notion that changes to the common law are the exclusive province of the legislature.19 According to the Hoffman court, contributory negligence was a judge-made rule, albeit one existing in Florida only as of 1886.20 And according to the court’s view of earlier foundational principles of Florida jurisprudence, judge-made rules can be judicially unmade.21 Accepting this helpful premise, the Hoffman court would write the Florida Legislature out of the constitutional equation of the problem at hand. 

Marshaling support from the past for its rationale, the Hoffman court cited the following earlier instances where the common law had been changed according to judicial discretion: Randolph v. Randolph, 1 So. 2d 480 (Fla. 1941), where the common law preference in parental custody previously enjoyed by fathers was withdrawn; Waller v. First Savings & Trust Co., 138 So. 780 (Fla. 1931), which departed from the common law bar against suits for personal injuries against a deceased tortfeasor; and Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957), which first allowed municipalities to be held liable for the torts of police officers under a respondeat superior theory. 

Against this backdrop, the Hoffman court, while replacing contributory negligence with comparative negligence,22 set out the following policy statement, which we label as the Hoffman doctrine: “All rules of common law are designed for application to new conditions and circumstances as they may be developed by enlightened commercial and business intercourse and are intended to be vitalized by practical application in advanced society.”23 

At the heart of Hoffman is the Supreme Court’s implied suggestion that the courts serve as the final safeguard against injustice when the other branches of government have failed to act. The Hoffman court notes that the legislature had unsuccessfully attempted to abolish contributory negligence.24 In one instance, the statute in question was held unconstitutional by the court itself for failure to be of general application, not for the substance of the law.25 In the second instance, the Florida governor vetoed the bill,26 inspiring the Hoffman court to comment: “One man thus prevented this [s]tate from now operating under a much more equitable system of recovery for negligent personal injuries and property damage.”27 

In any event, in Hoffman, the Supreme Court stepped in to do what Florida’s other two branches of state government had not done, replace an 80-plus-year-old rule of common law with a new rule that theHoffman court described as “simply a more equitable system.”28 The scope and dynamism of the Hoffmandoctrine was not lost on Hoffman’s dissenting justices, led by Justice Roberts, who railed against the majority opinion as “judicial fiat.”29 The real question Hoffman raised, according to Justice Roberts, was “who [as between the courts and the legislature] should do the changing.”30 

Hoffman says that the Supreme Court may change even clearly established principles of common law “where great social upheaval dictates,”31 and so becomes the obvious complement to Kluger. Where Kluger checks the legislature, Hoffman allows the Supreme Court to remain unchecked (outside of any legislative purview over the common law).

Modern Jurisprudence and Doctrine 
The Florida Supreme Court’s enthusiasm for the English half of Florida common law flowered in three marquee opinions in the 1990s. In two of these opinions, the Supreme Court recognized English common law causes of action not previously found in Florida case law. In these decisions, the Supreme Court reaffirmed its omnipotence over issues of common law. In the third decision, however, the Supreme Court constrained its own authority in contrast to that of the Florida Legislature by limiting the application of the Kluger-Smithdoctrine.

U.S. v. Dempsey, 635 So. 2d 961 (Fla. 1994), and Stone v. Wall, 734 So. 2d 1038 (Fla. 1999), were separated by four years, but present a shared jurisprudence due perhaps to the striking commonality of their facts and circumstances. 

Both were plurality opinions.32 Both were conceived as answers to certified questions issued by the U.S. Court of Appeals for the 11th Circuit.33 Both concerned the law of children.34 Each featured concurrences or dissents expressing reservation against judicial conceptions of new legal remedies.35 Both reached back to the Supreme Court’s self-minted license to change the common law en route to keeping pace with societal evolution.36 Both involved perceived deprivations cast as pleas that, to the objective observer, would be considered just.

Stone turned on the putatively altruistic kidnapping of a minor by her maternal grandparents and her father’s right to recover the expenses sustained in her lawful recovery.37 Dempsey concerned whether in the medical malpractice context there existed a cognizable right of recovery for loss of a parent’s future companionship with their handicapped child.38 

The similarities continue. Both Stone and Dempsey analyzed not yet recognized causes of action emanating from so-called “natural parental rights” rooted in English common law — a father’s property interest in his offspring and heirs.39 The holdings in each recognize “new” claims facilitated by the adoption of English common law in §2.01.40

Beyond the furtherance of new forms of relief in the seemingly mature areas of tort and family law, Stoneand Dempsey are significant for infusing the Hoffman jurisprudence they rely upon — the remarkable currency of judicial review — with the equally precious substance displayed in Kluger and Smith, thesuperintendency of Florida common law. This potent recombination of Hoffman’s jurisprudence by Dempseyand Stone might be construed as follows: Florida common law must evolve to keep pace with the society it serves and binds together, principles of common law may be altered judicially when necessary, and it is the Supreme Court, as fount and repository of common law rights, new and old, that has the idiosyncratic authority to write the change.41

Following in the footsteps of Justice Roberts’ dissent in Hoffman, the Stone and Dempsey dissenters offered a cautionary corollary to the large-writ powers of law giving their majority opinions found in Hoffman, which we can paraphrase as: Quite often, restraint from sounding the depths of this remarkable reservoir of authority is the preferred course, in the maintenance of comity with the legislature, the maintenance of the Supreme Court’s own polity, and the observance of the receiving statute itself.42 

The third 1990s-era opinion, Agency for Healthcare Administration (AHCA) v. Associated Indus. of Fla., Inc.,678 So. 2d 1239 (Fla. 1996), asked whether the same constitutional right of access to the courts thatKluger and Smith defended was infringed upon by a 1978 Medicare subrogation statute that was expanded by legislative amendment in 1990 and 1994. This was a long-unnoticed law that later experienced a volcanic rise in significance with the advent of the Lawton Chiles-era tobacco wars.43 During the publicized tobacco litigation, the 1994 amendment effectively withheld from defendant cigarette manufacturers the classic common law affirmative defenses to subrogation, and the question of the amendment’s validity prompted the AHCA appeal.44 

Writing for the AHCA majority, Justice Overton first revisited the now famous “sea change” in tort liability ushered in by Hoffman’s abolition of comparative negligence.45 There followed a recitation of Kluger, then a twist. In a shift of the doctrinal direction the Supreme Court had pursued in and since Kluger and Hoffman, the AHCA majority seemed to, in the face of a challenge to legislative removal of a common law right, leave the Kluger-Smith test behind. Rather than test an apparent legislative preemption of common law principles under the Kluger-Smith doctrine, which the appellee had urged, the AHCA majority instead construed Klugerwith Hoffman in a new way to conclude, again by fiat, that Kluger does not apply to affirmative defenses.46To the appellee and its corporate clients, it may have seemed as if the AHCA majority rewrote the receiving statute itself to provide that the laws of England of a general and not a local nature down to July 4, 1776, are hereby declared of force in this state — except for affirmative defenses. 

But in the event, this shift in doctrine was probably jurisprudentially defensible. Recall that in Hoffman, the Supreme Court reserved to itself a swath of judicial review over Florida common law in the interstitial spaces between valid legislative acts wherein its own writ runs. If that sphere of authority is legitimate, then the Supreme Court has the discretion to change the analysis for legislative preemption of affirmative defenses; There is no statute setting forth what methodology the court must employ in exercising its power of judicial review. So as a technical matter of following its own jurisprudence, the Supreme Court was free to limitKluger-Smith as not applying to defenses. In so doing, however, the Supreme Court allowed the legislature a claim of plenary authority over defenses that would otherwise be considered part of Florida common law and encompassed by Kluger-Smith.47 

AHCA was not unprecedented against the long sweep of the Florida Supreme Court’s common law jurisprudence. The Supreme Court had, in another era, sometimes refused to venture into the realm of legislative action when considering statutory changes to the common law. For example, in Ex Parte Beville, 50 So. 685 (Fla. 1909), a case concerning the effect of an 1891 statute on the English common law disqualification of spouses as adverse witnesses, the Supreme Court constrained itself to merely noting an instance where English common law rights and privileges were inconsistent with postreception (post-1829) statutes, declaring without proscription or advice that “the [l]egislature determined to change this common law rule.”48 In doctrinal terms, AHCA definitely limited the application of the Kluger-Smith doctrine. Klugerremains the seminal opinion on judicial review of legislative acts proscribing common law rights and remedies, now excepting the area of affirmative defenses.49 

A Present Day Method of Application 
The foregoing seminal cases and authorities defining the controlling jurisprudence of Florida common law as it concerns the existence and appropriate usage of the English half can be combined into the following majority-view method of application for English common law principles in present day lawsuits. 

If a common law question, meaning a legal question not of the sort answered by statute, but rather a question falling within the lex non scripta tradition of Florida common law, cannot be answered with resort to controlling Florida case law, and a party or the court itself suspects that the missing answer may be supplied by the English common law, the court, ideally with the aid of the parties, engages in the following analysis.

Step 1 — Is there an English common law authority on point? If a principle of English common law is not plain, it is considered unobservable.50 Acceptable authorities as to what legal principles form a part of English common law include English cases reported prior to July 4, 1776, (widely available on commercial computer research sources) and secondary materials, including without limitation the treatises and reports of Blackstone and Coke, restating the law of the era (which remain in print and are sold by booksellers).51 

Step 2 — Has the English common law authority been abrogated by statute? Answering this question calls for an analysis of any presumed conflicting Florida Statutes under the rules of statutory construction given in Thornber.52

Step 3 — If a statute is in conflict with the English common law rule, and the old rule provides a party with a right or remedy, does the statute survive the two-pronged alternative test laid out in Kluger and Smith?53

Step 3a — If a statute is in conflict with the English common law rule, and the old rule is not of the sort providing a party with a remedy, assume the legislative action is valid and the old rule abrogated, unless and until an empowered judicial authority resuscitates or distinguishes the rule from the effect of the statute, under the authority reserved in Hoffman

Step 4 — If the English common law rule does not implicate a Florida statute, but conditions invoking theHoffman doctrine nevertheless persist, assume that the old rule is valid but remains subject to change by an empowered judicial authority under appropriate circumstances. 

Conclusion 
A peculiar feature of Florida common law is that it consists of many thousands of cases and is not contained in any one case, or 10, or even 100. There are defenses, exceptions, inapposite facts, temporal problems, and other elements that so often prevent one opinion from providing a complete solution to a legal question. Sometimes there are no cases providing an answer. One could arrange every Florida case ever written into a great literal blanket of authority and there would still be holes in the common law’s coverage where there are no comforting rules. 

Enter the significance of the English half of Florida common law. The English half is an oft-forgotten treasure, a heritage that we might look thoughtfully back upon and learn from. It is through consideration of the receiving statute and the key cases that mediate Florida’s adoption and continuance of the English half as a part of Florida common law that we renew our understanding of how and when it applies. 

1 The territory of Florida was ceded to the U.S. by Spain by a treaty ratified in 1821. Walter W. Manley II, ed., The Florida Supreme Court and its Predecessor Courts, 1821-1917 4 (1997 Univ. Press of Florida); Michael Gannon, ed., The New History of Florida 207 (1996 Univ. Press of Florida).
2 Manleysee note 1 at 23; James W. Day, Extent to Which the English Common Law and Statutes are in Effect, 3U. Fla. L. Rev. 303 (1950). This enactment would become Fla. Stat. §2.01, originally enacted in the Florida Territorial Acts 1829 at page 8. 
3 Kluger v. White, 281 So. 2d 1, 3 (Fla. 1973).
4 Id. at 2.
5 See id. at 4. 
6 Id. at 4 (emphasis added).
7 In its antebellum period, the Florida Supreme Court issued several opinions that can be fairly described as the exercise of judicial review power. See, e.g., Ponder v. Graham, 4 Fla. 23 (Fla. 1851); and Flint River Steamboat Co. v. Allen, 1 Fla. 102 (Fla. 1848). 
8 Douglas Edlin of Dickinson College has recently suggested that judicial review — an ultimate judicial authority over fundamental rights and values embedded in society and law for the protection of the populace against government or private encroachment — is a signature aspect of the English common law tradition. Douglas E. Edlin, From Ambiguity to Legality: The Future of English Judicial Review, 52 Am. J. Comp. L. 383, 395 (2004). 
9 Kluger, 281 So. 2d at 4.
10 At the same time, however, the Kluger holding that discusses the common law in the same breath with the Florida Constitution is obiter dicta. Clearly, the applicability of the English common law was not at issue in the case; the invalidity of the collision statute turned on a perceived conflict with the state constitution. Irrespective of the dicta problem, the force and lucidity of the Kluger holding as it relates to the English common law persisted as written and would become a relative icon in Florida jurisprudence.
11 Smith v. Dept. of Insurance, 507 So. 2d 1080, 1083 (Fla. 1987).
12 This would not be the last time the Florida Supreme Court gave Kluger this honorific. See University of Miami v. Echarte, 618 So. 2d 189, 193 (Fla. 1993), cert. den., 510 U.S. 915 (1993).
13 Like KlugerSmith did not turn on any issue of the applicability of English common law. However, theSmith opinion’s reaffirmance and illustration of the Kluger holding combined with its specific inclusion of common law adopted via the receiving statute, effectively immunized English common law causes of action co-equally with state constitutional rights against legislative action. 
14 Smith, 507 So. 2d at 1088.
15 Thornber, 568 So. 2d at 918-19. 
16 Ashley, 701 So. 2d at 341. 
17 The case had come up from the Fourth District Court of Appeal, where the intermediate court had itself thrown out the doctrine of contributory negligence in favor of comparative negligence. See Hoffman v. Jones, 280 So. 2d 431, 433 (Fla. 1973). The Hoffman opinion almost instantly notes that the intermediate court exceeded its authority in reversing the then-existing common law precedent of the Supreme Court.See id.
18 Id. at 436. On this point the court cited its own prior opinions describing contributory negligence as primitive, unjust, and inequitable. Id. at 437. 
19 See id. at 434. 
20 See id.
21 See id. at 436, citing Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 131 (Fla. 1957)(“We can see no necessity for insisting on legislative action in a matter which the courts themselves originated.”); Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971)(“Legislative action could, of course, be taken, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.”).
22 Hoffman, 280 So. 2d at 436. 
23 Id
24 Id. at 437-438.
25 Id. at 437.
26 Id. at 437-438.
27 Id. at 438. This was strong language; the “one man” the Hoffman majority was implicitly criticizing was the state’s chief executive who was vested with a veto power. In this sense, an intellectually honest appraisal of Hoffman, whether that appraisal is cast as an exploration of the common law and constitutional concept of judicial review, or otherwise, must raise the question of whether the Hoffman doctrine is essentially an unwritten super-veto, and the further question of where does such a power fit within the existing common law and constitutional frameworks that gird Florida. 
28 Id. at 437.
29 Hoffman, 280 So. 2d at 431.
30 See id. at 441. 
31 Id. at 435.
32 Id. at 1047 (3-3-1); Dempsey, 635 So. 2d at 965 (1-5-1). 
33 Stone, 734 So. 2d at 1039; Dempsey, 635 So. 2d at 962.
34 See id. 
35 Stone, 734 So. 2d at 1038 (Overton, S.J., dissenting); Dempsey, 635 So. 2d at 965-968 (Grimes, J., concurring and McDonald, J., dissenting). 
36 Stone, 734 So. 2d at 1043-44; Dempsey, 635 So. 2d at 964. 
37 Stone, 734 So. 2d at 1039-40. 
38 Dempsey, 635 So. 2d at 962. 
39 Stone, 734 So. 2d at 1041, citing W. Page Keeton et al., Prosser and Keeton on Torts §124; Dempsey, 635 So. 2d at 963, citing Ripley v. Ewell, 61 So. 2d 420, 421-22 (Fla. 1952). 
40 Stone, 734 So. 2d at 1043, 1047 (citing Fla. Stat. §2.01 and State ex relClayton v. Board of Regents, 635 So. 2d 937, 937 (Fla. 1994), and describing English common law as the source of authority, recognizing a new variant of common law remedy as valid cause of action); Dempsey, 635 So. 2d at 962-63 (citing English common law source of authority for ruling and consistent earlier decisions of the court adopting and expanding common law source, and adopting English common law source of authority in the form of newly adopted, updated remedy). 
41 See Stone, 734 So. 2d at 1043-44, citing Hoffman, 280 So. 2d at 435-36; Dempsey, 635 So. 2d at 964,citing Hoffman, 280 So. 2d at 435, and Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985), and Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1973). 
42 See Stone, 734 So. 2d at 1047-48 (Overton, S.J., dissenting); Dempsey, 635 So. 2d at 966-68 (Grimes, J., concurring in result with opinion, McDonald, J., dissenting in part with opinion); see also State v. Ashley, 701 So. 2d at 343 (“as we have said time and again, the making of social policy is a matter within the purview of the [l]egislature — not this [c]ourt.”). 
43 See id. at 1248-50. 
44 See id. at 1249-51. 
45 See id. at 1251.
46 See id. at 1253. 
47 An interesting question: What are the doctrinal and jurisprudential implications of the Supreme Court’s deferment to the legislature in the matter of defenses insofar as the concept of tort reform is in no small part concerned with defenses and defensive measures against common law claims?
48 Ex Parte Beville, 50 So. 685, 688 (Fla. 1909).
49 The Florida Supreme Court most recently revisited Kluger in Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090 (Fla. 2005); and State Farm Mut. Auto Ins. Co. v. Nicholas, 932 So. 2d 1067 (Fla. 2006), both of which concerned access-to-the-courts challenges to facets of Florida’s personal injury protection (PIP) statute. 
50 See Duval, 114 So. 2d at 795 (“it is…only when the common law is plain that we must observe it.”).
51 See Beville, 50 So. at 687.
52 Thornber, 568 So. 2d at 918-19. For a sample analysis on how modern statutes can infringe on timeless rights or privileges, see the discussion concerning hunting provided in Bartlett v. State, 929 So. 2d 1125 (Fla. 4th D.C.A. 2006). 
53 Smith, 507 So. 2d at 1088.

Michael Cavendish and Blake J. Hood practice in the Jacksonville office of Boyd & Jenerette, P.A. Mr. Cavendish received his J.D. and M.A. from the University of Florida and his bachelor’s degree from Florida State University. Mr. Hood received his J.D. from Florida State University and his bachelor’s degree from Emory University. The authors try cases before state, federal, and administrative trial and appellate courts in Florida and other U.S. jurisdictions. 




Tami Robinson Declaratory Judgment and Injunction Lawsuit






UNITED STATES DISTRICT COURT MDDLE DISTRICT OF FLORIDA TAMPA DIVISION

 

Samantha and Shakoya Gavin, and Tami Robinson,

Plaintiffs,                                                                    Civil Action Number:

 

v.

 

DAVID GEE,

SHERIFF OF HILLSBOROUGH COUNTY

MAJOR HARTLEY,                                                               42 U.S.C. §1981

SARGENT BALABAN,                                                         42 U.S.C. §1982

Deputy J. VAN PELT,                                                             42 U.S.C. §1983

NELLY QUEZADA, her husband                                        42 U.S.C. §1988(a) and John or Jane Does 1-10.

Defendants.

                                                            /

 

COMPLAINT FOR DECLARATORY JUDGMENT & INJUNCTION

1.                  The undersigned Plaintiffs Samantha and Shakoya Gavin (occupants) and Tami Robinson (their Pastor and Claimant for Adverse Possession), now come before this Court with this their Original Complaint in the above entitled and numbered cause.

2.                  This Court has Federal Question Jurisdiction under the Civil Rights Laws and Constitution of the United States of America providing for equal protection in all matters of property, contract and access to the courts and for protection by law enforcement authorities. Venue is proper in the Middle District of Florida, Tampa Division, because the real  estate  all  the transactions and occurrences giving rise to this lawsuit took place in Hillsborough County, Florida.


3.                  This case frames a key question of public policy: in a housing crisis where millions of Americans have lost their homes, should the Courts construe the law to favor the power of the credit originating, extending, and servicing banks to accumulate vast inventories of unused housing as some kind of collateral for their own activities or should the courts fashion remedies for the population at large to take care of themselves and thereby avoid the risks of homelessness and the attendant social costs of welfare and prison for victimless crimes?

4.                    On August 27, 2012, Plaintiffs took adverse possession (according to the formalities of Florida law) of that certain real property located at 11404 Laurel Brook Court, Riverview Florida, 33569, and filed a claim for adverse possession with Rob Turner, the Hillsborough County Property Appraiser, in full compliance with all relevant provisions of Florida Statutory law.

5.                  Starting on September 26, 2012, and continuing on October 1 and 2, 2012, without any sworn complaint having been filed against them for Trespassing, without any Court Order for Writ of Possession, the Hillsborough County Sheriff’s Department has mercilessly and relentlessly threatened the Plaintiffs with false arrest and ordered them to vacate the premises.

6.                  Plaintiffs are all African-American women and they allege that they have been singled out on account of their race, their social status, and their sex (and resultant perceived weakness) pursuant to a custom, practice, or policy of either the State of Florida and/or the Hillsborough County Sheriff’s office or both to differentially define and enforce the laws regarding adverse possession, trespass, and so to deprive African-Americans, especially economically disadvantaged women, of their equal rights under the law to


utilize legal processes such as adverse possession and otherwise to the equal protection of the law, to make and enforce contracts for the acquisition of and maintenance of interest in real property, and to be free from any laws or legal regulations (including freedom from all penalties and exclusions from the exercise of rights) except those which apply to White Citizens and all citizens Equally.

7.                  Specifically, Plaintiffs claim that their rights have been violated pursuant to 42 U.S.C. §1981 and 1982, and they file this their complaint pursuant to 42 U.S.C. §1983 for Declaratory Judgment and Injunctive Relief against the Sheriff of Hillsborough County, his officers and deputies, and all other persons acting under color of law under his authority.

8.                  To the degree that existing law provides insufficient remedy, Plaintiffs ask this Court to extend, modify, or reverse existing law and/or to establish new law, including the provision of a civil equivalent of  Habeas  Corpus against the violation of civil rights which can be borrowed from the law of Mexico, Latin America, and parts of Europe and Asia known as the Petition for Writ of Amparo.

9.                  Title 42 U.S.C. §1988(a) provides:

(a)   Applicability of statutory and common law

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of


the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

10.             Plaintiffs Samantha Gavin, Shakoya Gavin, & Tami Robinson submit that the laws for the protection of all persons in the United States in their civil rights, with regard to property ownership, and for their vindication, are not adapted to the object of protecting adverse possessors (and in fact tend towards persecuting African-American Adverse possessors) from wrongful police action.

11.             Examples of wrongful police action include but are not limited  to lawless and malicious threats from Hillsborough County Sheriff’s Office accompanied by intimidation, assertions of power to falsely arrest without warrant for non-existent crimes (such as burglary) and malicious prosecution under circumstances where it is clear that no crime has been committed in the State of Florida in the years since this housing crisis began in or about 2005-2007.  Within the meaning of both 42 U.S.C. §1988(a) and Rule 11(b) of the Federal Rules of Civil Procedure, Plaintiffs submit that the laws of the State of Florida are deficient in the provisions necessary to furnish further remedies and adequately to punish offenses against the laws protecting private property and the integrity of legal processes for the acquisition of such property, including but not limited to adverse possession under the laws of the United States and the State of Florida.

12.             Accordingly, pursuant to 42 U.S.C. §1988(a) and Rule 11(b), Plaintiffs Samantha Gavin & Tami Robinson submit that the laws of the State of


Florida as applied by the Hillsborough County Sheriff’s Office, as well as the Federal Rules of Civil Procedure, and federal common law should be extended, modified, reversed, and/or new law established to govern the proceedings in this court in the trial and disposition of the present cause to invalidate the unconstitutional and illegal customs, practices, and policies having the force and effect of law in the State of Florida regarding threats of false arrest and malicious prosecution under color of law resulting in takings or seizures of private property without due process of law when such (factually abandoned) properties are properly held in adverse possession by law abiding individuals such as the Plaintiffs.

13.             This Court has jurisdiction pursuant to 28 U.S.C. §1331 (Federal Question), and §1343 (Civil Rights Jurisdiction), as well as 42 U.S.C. §§1981, 1982, 1983, and 1988.

14.             Venue is proper because the real estate, subject of this litigation, is located in the Middle District of Florida, Fort Myers Division, and many or most of the transactions and occurrences giving rise to this litigation occurred within the territorial boundaries of the Middle District of Florida, including the malicious threats against the three female African-American Plaintiffs who bring this present complaint.


COUNT I: CONSTITUTIONAL DECLARATORY JUDGMENT THE FEDERAL RULES OF CIVIL PROCEDURE MUST NOT BE CONSTRUED SO AS TO DENY THE FIRST AMENDMENT RIGHT TO PETITION

15.             Plaintiffs reallege ¶¶1-14 and fully incorporate the same by reference.

16.             The Federal Rules of Civil Procedure were not designed intended to abridge, enlarge, or modify the substantive rights of any litigant.   28 U.S.C.

§2072: “(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” But the statute says nothing about what happens when the rules themselves DO operate to violate substantive, especially “Footnote 4” enumerated rights. U.S. v.  Carolene  Products, 304 U.S. 144, 152, n.4, 58 S.Ct. 778, 783, n.4 (April 24, 1938).

17.             Plaintiffs Samantha Gavin & Tami Robinson submit here, and ask this Court to allow briefing, hear argument, and allow presentation of evidence, that the combined effect of the Rooker-Feldman Doctrine, Bell Atlantic v. Twombly, and Ashcroft v. Iqbal has led to an abridgment of the First Amendment Right to Petition in that the Federal Courts can assert a kind of learnedly acquired judicial incompetence or “jurisdictional helplessness” to address serious concerns of state court judicial abridgment of and infringements upon civil rights, in particular the Fifth and Fourteenth Amendment rights to due process of law, but also the First, Seventh, and Ninth Amendment rights of the people to petition, to trial by jury, and to the reservation of all un-enumerated rights and powers in the people.

18.             Congress has imbued the Federal Rules of Civil Procedure with the force of Statutory Authority1, but the First Amendment specifically limits the

 

1                John R. Alley & Co. v. Federal Nat. Bank of Shawnee, Shawnee


power of Congress to abridge the right of the people to petition for redress of grievances.

19.             As the United States Supreme Court has recently confirmed in Borough of Duryea, Pa. v. Guarnieri,  131  S.Ct.  2488,  2494  (2011), the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.”” (Citations Omitted).

20.             In the present case, original  Plaintiffs  Samantha  &  Shakoya  Gavin, and Tami Robinson, wish to allege a conspiracy between the Banks and the Hillsborough County Sherriff’s Department and other similar law enforcement entities in the Middle District of Florida, together with Florida State Circuit & District Court Bench and Bar to fix the outcome of civil adverse possession claims and procedures on the one hand, and the Hillsborough Sheriff’s consistent patter of harassment and intimidation by “color of law” threats of false arrest and malicious prosecution for trespass and burglary by adverse possessors on the other, all in favor of the Banks.

21.             The Hillsborough  County Sheriff’s  threats  of arrest  for  burglary or trespassing are unlawful and represent only “color of law” where the Sheriff cannot show support for such complaints by any lawful or beneficially using human occupant(s) or inhabitant(s) or user(s) of the homes or structures held adversely, with notice filed as required by law.

22.    Corporate banking entities which have effectively abandoned hundreds of thousands, by some estimates two million homes, in the state of


Florida, are NOT beneficial users who occupy, inhabit, or conduct business in their vast inventory of real property and related structures.

23.             Corporate financial and banking entities which have not made any attempt to market homes until they are adversely possessed are unworthy to be called “beneficial owners” or usufructuaries of the property they have taken by questionable means from previous beneficial owners or usufructs.

24.             All these things having been said and stated, however, without utilizing some judicial tools of discovery, the Plaintiffs lack the resources to gather a “plausible” set of facts necessary to support allegations of a civil conspiracy between the Banks, the Hillsborough County Sheriff’s Office, and the State Bar & Bench, at least under the comprehensive factual completeness and “plausibility” requirements of Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (May 27, 2007), as affirmed and extended by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (May 18, 2009).

25.             Amid a flood of criticism of these standards, the Ninth Circuit in particular has held that the policy justifications for Bell Atlantic and Iqbal do not extend to all types of cases, particularly not to civil rights cases. Starr v. Baca, 652 F.3d 1202 (9th Circuit 2011)(cert. den., 11-834, April 30, 2012 2012 WL 1468577).

26.             Plaintiffs herein submit that the standards for Rule 8(a) should  be relaxed to permit investigation of widely suspected conspiracies involving public corruption, where the unequal power and access to information of the Banks, and Florida State Circuit & District Court Bench  and  Bar  quite simply precludes ready extra-judicial “discovery” of the ways and means by which the Judicial system of Florida has been bent to the will and private


needs of the U.S. government supported banks since 2008 (as of the bailout status in 2009, 25-36% of the ownership of several large banking entities was vested in the United States Treasury);

27.             Plaintiffs such as Samantha & Shakoya Gavin and Tami Robinson are crippled in the face of such inequality, but neither can they wait to file suit to protect their rights---they need both the protection of the courts and the opportunity to engage in meaningful investigation by the use of the discovery procedures allowed by Federal Rules 26-35.

28.             This case does not involve or invoke either the Rooker-Feldman

doctrine, or Younger v. Harris abstention because NO STATE CIVIL OR  CRIMINAL  PROCEEDINGS  HAVE  BEEN  INITIATED  (only

threatened by the Hillsborough County Sheriff and his officers and deputies). Accordingly, Plaintiffs have the same standing to file suit as did the Plaintiffs in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Dombrowski was the 1965 precursor and predecessor to Younger v. Harris, 401 U.S. 37, 91 U.S. 746, 27 L.Ed.2d 669 (1971).

29.             Both the Younger v. Harris and Rooker-Feldman doctrines can be circumvented by proof of an extrinsic civil conspiracy to commit fraud within the judicial system. Plaintiffs herein thus ask this Court to grant the Discovery Pursuant to Rule 27 prior to the initiation of any state court actions, indeed prior to the full commencement of fully and properly framed pleadings under Rules 8 and 9, and subsequent litigation on the merits in this case, and that this Court will additionally issue such other injunctions and mandates as may effectively operate as and effect a road block to the initiation of State Judicial Action against the Plaintiffs.


30.             Without the tools of discovery the Plaintiffs cannot allege with precise detail the what, when, where, and how required to allege a conspiracy to defraud pursuant to Rule 9(b) unless they are allowed pre-filing discovery. Once state civil litigation or criminal prosecutions have been instituted, the Younger v. Harris abstention and Rooker-Feldman jurisdictional doctrines have effectively become a carte blanche for State Court judicial infringements upon civil rights.

31.             These doctrines limit Federal injunctions against state court proceedings (see also 28 U.S.C. §2283 and Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)) EXCEPT where a conspiracy to fix cases can effectively be alleged and proven, and all other violations by state courts, no matter how egregious, must play the lottery of petitions for writ of certiorari to the United States Supreme Court, to which the average citizen in every ordinary, typical case, since the time of Chief Justice Taft has no right of appeal nor any access whatsoever to file original proceedings.

32.             Accordingly, Plaintiffs pray for a Federal Injunction AGAINST state court litigation and criminal prosecution against them until their complaint in this case has been first fully developed by Rule 27 and related pre-filing, pre-framing discovery, and second by a resolution on the merits of such claims as may be filed.

33.             Otherwise, the Plaintiffs’ only hopes for justice will be caste into the national “petition for writ of certiorari” lottery, a judicial variant of the Hunger Games is played out, in which the existence of the petition for writ of certiorari offers hope, but that hope is illusory to 99.999% of all Americans, so that the wish “may the odds (of obtaining justice) be ever in your favor” ring as hollow and meaningless as they do in the setting Roman-


style gladiatorial combats predicted in Suzanne Collins’ three best-selling guidebooks to the post-Constitutional North American Union of the future.

34.             At least one Circuit Court has held that the trial court must specifically find that the application of the rules of Civil Procedure (such as the application of Rules 8 and 9 in Bell Atlantic v. Twombly) would be unjust in order for one complaining of their application to raise the question on appeal. John R. Alley & Co. v. Federal Nat. Bank of Shawnee, Shawnee County, Okl., 124 F.2d at 999 (10th Cir. 1942). Plaintiffs submit that the converse must also hold, that this Court must rule on the Plaintiffs’ objections here presented to both Rules 8(a) and 9(b), as construed and applied by Bell Atlantic and Iqbal, whether positively or negatively.

35.             WHEREFORE and ACCORDINGLY, Plaintiffs Samantha & Shakoya Gavin and Tami Robinson pray that this Court, upon final trial, will declare and adjudge that the holdings of the United Supreme Court including those upholding or construing the Younger v. Harris and Rooker-Feldman doctrine and Rule 8(a) and 9(b) of the Federal Rules of Civil Procedure must be construed in favor of those who claim that their rights have been infringed by official oppression, in the spirit of the 1st, 5th, 9th, 10th, and 14th Amendments.

36.             Federal Rules of Civil Procedure 8 and 9, in particular, must never be so construed as to absolutely insulate State Courts and Prosecutorial (Executive) functions and proceedings (such as the malicious threats of false arrest and groundless prosecution by the Hillsborough County Sheriff’s Office) giving rise to this case. All state organs, in a free society, should be completely transparent and readily open to citizens’ investigations through


the courts on charges of agreements and conspiracies to subvert the civil rights of individuals by civil (or criminal) corruption.

37.             In the State of Florida, especially Hillsborough County, Plaintiffs allege that the corruption has lead to systematic, systemic, abridgment and infringement of rights, including the rights to equal access to the Courts and to the use of non-judicial legal processes such as adverse possession against all citizens, but with especially virulent discrimination against African- Americans, and especially against economically disadvantaged African- American women.

38.             Further Plaintiffs allege that the Florida Courts and Hillsborough County Sheriff’s Department have agreed and conspired to defeat and denigrate the integrity of obligations (and rights) of contract, in the acquisition and maintenance of interests in real property, as ostensibly guaranteed to all citizens by 42 U.S.C. §§1981 & 1982, but again, with especial discrimination against the protected classes to which Plaintiffs belong, namely economically disadvantaged African American women.

39.             Wherefore, Plaintiffs pray for prospective declaratory and injunctive relief to protect themselves from unconstitutional and unlawful prosecution or suit for the exercise of their rights to adversely possess abandoned property such as but not limited to 11404 Laurel Brook Court, Riverview, Florida 33569, and Plaintiffs further pray for a modification of the Rules of Civil Procedure to enable them to engage in discovery pursuant to Rule 27 prior to preparing and fully alleging a corrupt conspiracy within the governmental branches of the State of Florida, together with the Banks and Financial Holding & Serving companies, relating to the application and enforcement of adverse possession laws in this state of Florida.


COUNT II: CONSTITUTIONAL DECLARATORY JUDGMENT THE RIGHT TO COLLATERAL ATTACK PROTECTED BY THE FIRST, NINTH, & FOURTEENTH AMENDMENTS

40.             Plaintiffs reallege paragraphs 1-39 of this their Original Complaint for Declaratory Judgment and Injunction and incorporate the same by reference as if fully copied and restated herein.

41.             The right to Petition for Habeas Corpus is enshrined by the Constitution as a fundamental right to file collateral attacks alleging injustice and unfairness in criminal proceedings, which cannot be abolished as a protection against unlawful deprivation of Americans’ life and liberty interests in violation of the Fifth Amendment.

42.             There is no corresponding right acknowledged in  federal constitutional law to date to file collateral attacks alleging injustice and unfairness in civil proceedings, including the state-assisted deprivation of private homestead or other real property by means of the quasi-state action procedures known as judicial foreclosures (quasi-state in that enforcement is dependent upon state action via the power of County Sheriffs or local police) to evict “tenants” or “trespassers”, even when these individuals were formerly homeowners.

43.             One hour by air from the American State of Florida lies the Mexican State of Yucatán, where in 1840 a creole Hispanic jurist by the name of Manuel Crescencio García Rejón y Alcalá drafted a constitutional provision for a newly independent separatist Republic of Yucatán allied with the Republic of Texas known as the juicio de amparo;

44.             this   constitutional   process   (which   spread   from   Yucatán   first

throughout Mexico, then through Latin America, back to the Mother Country of Spain, and from there to Constitutional Courts created in the


20th century in Italy, Germany, the Netherlands, Scandinavia, South Africa, and Japan) affords a right of action to, and protects every private person or individual from abridgement or infringement of constitutional rights by challenging either the constitutionality of an act itself, or the law upon which the act is based---it is a right to be free from official oppression outside of the realm of physical confinement in chains---a constitutional writ of civil liberties in the fullest sense of the combined phrase: “life, liberty, property, and the pursuit of happiness.”

45.             The  constitutional  process  or  writ  of  amparo”  spread  throughout

the Spanish speaking world from Yucatán throughout Mexico and Latin America back to Spain and influenced the 19th century evolution of civil constitutional law in Europe, and has effectively been adopted even in the special constitutional courts of the former “axis” nations of Germany, Italy and Japan, almost everywhere in the world, in short, except in the United States and Great Britain, whose proceedings in Habeas Corpus were the original inspiration for the “amparo” law developed.

46.             Pursuant to the provisions of judicially evolving law to protect civil rights under 42 U.S.C. §1988(a) and Rule 11(b), Plaintiffs ask this Court to fashion or  adopt a  constitutional writ of amparo, pursuant to  the Ninth Amendment.

47.             The clearest historical antecedent to amparo with regard to real property and adverse possession was the Roman Civil Law action of vindicatio to protect and secure and protect the private ownership of all res mancipi including homes and land (real property).


48.             The First, Fourth, Fifth, Seventh, Ninth, and Fourteenth Amendments to the Constitution are all consistently violated in Florida Judicial Proceedings,

49.             Plaintiffs submit that this court should order and authorize the Plaintiffs to conduct or else the court should (under its special powers pursuant to 42 U.S.C. §1988(a)-(c)) commission a survey of adverse possession claimants and eviction victims in Florida to collect their experiences regarding Florida judicial process, to consider the evidence provided by this survey when completed.

50.             But even beyond this, Plaintiffs submit that under 42 U.S.C. §1988(a) and Rule 11(b), this Court is empowered to authorize, fashion, and recognize, as a matter of federal common law, an American version of the juicio de  amparo  or vindicatio  as the civil equivalent of Habeas Corpus by which a collateral attack to defend the rights to acquire and maintain ownership of property by adverse possession against all but true legal and beneficial owners of such property, and to enforce all rights and obligations of contract, by guaranteeing equal access both to non-judicial processes such as adverse possession and ultimately to the Courts, and to maintain equal rights to offer and present evidence in those courts, may be protected from wrongful, unconstitutional, infringement, abrogation, and/or abridgement.

51.             WHEREFORE, Plaintiffs move and pray that this Court recognize, and declare and adjudge the validity and viability, under the First, Fifth, and Ninth, Tenth, and Fourteenth Amendments in particular, a constitutional right to collateral attack fashioned after Habeas Corpus, the juicio de amparo, or the vindicatio on all state forms of action and judicial procedure which operate, whether by express statutory scheme or by judicial


“bench & bar” custom, practice, or procedure having the force or effect of law in the state courts, to diminish the “Footnote 4” constitutional rights to property ownership and defense of contractual rights and obligations.

COUNT III: RULE 27--- DISCOVERY PRIOR TO COLLATERAL ATTACK

52.             Plaintiffs reallege paragraphs 1-51 of this their Original Complaint as if fully copied and restated herein below.

53.             Plaintiffs submit that they have probable cause to suspect Police (including the Hillsborough County Sheriff’s  Office),  Judicial  Corruption and Bank-favored “color of law” policy shaping and civil and criminal case fixing in the Florida Courts, even if they lack the ability to allege in full plausible detail (as required by Twombly) the ways and means of such the exact agreements and conspiracies to fix cases at the present time.

54.             Plaintiffs allege the following four grounds in support of their assertion of probable cause to suspect corruption in the Florida Courts and expressly agreed collusion between banking interests and the mortgage-foreclosure “bench & bar” in Florida:

55.             Defendant Sheriff’s Deputy J. Van Pelt (on September 26, 2012) and Sargent Balaban (on October 1-2, 2012) physically approached and accosted the Plaintiffs. These agents or employees of Defendant  David  Gee,  the Sheriff of Hillsborough County, whom Plaintiffs allege has been either “bought” or coerced by the banks and financial holding companies into suppressing the rights of adverse possessors to any of the vast inventory of unoccupied, foreclosed upon, homes and real property in Florida, threatened them with arrest for trespassing and/or burglary.


56.             Sargent Balaban in particular named (on October 2, 2012) a certain “Major Hartley” as their commanding officer in charge of interpreting and explaining both the law and the Hillsborough County Sheriff David Gee’s Policy in regard to the warrantless arrest and imprisonment of persons claiming adverse possession under the statutory law of Florida. Sargent Balaban insisted that the Sheriff Department had for the 35 years of his employment consistently treated adverse possessors as “burglary suspects” who may be arrested on sight without warrant, even if they have filed public notice of their adverse claims and no private legal or beneficial owner has filed a sworn complaint giving rise to due process.

57.             Although expressed strictly in terms of allowing “pre-filing” depositions and discovery “pending appeal”, Rule 27(a)-(b) Motions or “Petitions”) have been expressly approved and upheld as tools for the collateral attack of Habeas Corpus (against state criminal proceedings) in this Circuit (actually in the “Old Fifth”, In Re Sims, 389 F.2d 148 (5th Circuit 1967), and Plaintiffs submit that their Rule 27(a)-(b) Petition should now be granted prior to formalizing the “probable cause” of their suspicions into a formal “indictment” or complaint of judicial corruption.

58.             The threats of prosecution against the Plaintiffs here are in some ways quite similar, although less “fatal” than the threats against the African- Americans convicted of rape In Re Sims. The threats to arrest and prosecute the Plaintiffs for trespassing and/or burglary would not lead to the Plaintiffs’ execution, merely to  their  further  degradation  and impoverishment and to the denial of their most basic human right to shelter themselves in property abandoned and unused by others.


59.             The Plaintiffs would lose their liberty to the short run in prison, but in the long run to their right to acquire property by the legally approved but fundamentally non-commercial and non-judicial process of adverse possession, and thus their right to the pursuit of happiness and the enjoyment of life, while the properties involved might further decay and ultimately be condemned, as have so many abandoned homes in Florida and elsewhere already.

60.             Accordingly, pursuant to Rule 27(a)-(b), and In Re Sims, Plaintiffs

Gavin, Gavin, & Robinson submit that, after taking the depositions of Hillsborough County officers or employees:

a.      Sargent Balaban,

b.     Deputy Sheriff J. van Pelt

c.      Major Hartley and

d.     David Gee.

61.             After taking these four depositions and perhaps two or three others the Plaintiffs fully expect to be able to file their completed complaint describing the customary, practical, and political but consistent and systematic discriminatory treatment of African Americans in particular, among those who assert adverse possession to property according to Florida common and statutory law.

62.             Plaintiffs submit that after taking these depositions, and possibly several others of “derivative” witnesses, they will be able to prove that such customs, practices came about only recently as a result of a conspiracy in violation of civil rights, between the Banks and Law Enforcement authorities Bell Atlantic v. Twombly “plausibility” requirements for pleading a civil conspiracy.


63.             But plainly, the Plaintiffs will only be able to make such full allegations of conspiracy if they are allowed to conduct the In Re Sims”-style pre- judgment discovery prior to framing their full civil rights complaint as suggested herein.

64.             Plaintiffs expect that all the parties named above-and-in-the-masthead to this Complaint will be defendants in the suit originally to be filed, along with many others involved in Florida law enforcement, Florida banking, and Florida legal and judicial processes, including members of the state bar and bench.

65.             Plaintiffs expect to obtain evidence from these defendants that will show both lack of direct or indirect legal or equitable ownership or standing of any kind on the part of any of the parties on whose behalf the Sheriff of Hillsborough County purports to act in harassing, intimidating, and threatening the Plaintiffs with false arrest and malicious prosecution.

66.             In particular, but without limitation, Plaintiffs need to take depositions from the above named individuals, all located in Hillsborough County, in exactly the manner authorized by the Fifth Circuit in In Re Sims.

67.             Prior to a final hearing on this Rule 27 motion, Plaintiffs will amend or supplement this Petition by motion or notice to provide any further information they may acquire in  the  interim  concerning  the  current addresses of each witness named herein and the city and state of their residence.

68.             WHEREFORE, Petitioners & Plaintiffs Gavin, Gavin, & Robinson will move this Court on such date and at such time  as  the  Court  may appoint  for  an  order  authorizing  them  to  take  the  deposition  by  oral


examination (with requests for production duces tecum, according to Rule 27 of the Federal Rules of Civil Procedure).

COUNT IV:  IMPOSITION OF LIS PENDENS

69.             Plaintiffs reallege paragraphs 1-68 of this their Original Complaint and incorporate the same by reference as if fully copied and restated herein.

70.             Florida Statutes §48.23 provides as follows:

 

(1)(a) An action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby only if a notice of lis pendens is recorded in the official records of the county where the property is located and such notice has not expired pursuant to subsection (2) or been withdrawn or discharged.

71.             (b) 1. An action that is filed for specific performance or that is not based on a duly recorded instrument has no effect, except as between the parties to the proceeding, on the title to, or on any lien upon, the real or personal property unless a notice of lis pendens has been recorded and has not expired or been withdrawn or discharged.

72.             As alleged above, Plaintiffs allege that the Florida and Hillsborough county custom, practice, or policy formulated illegally and unconstitutionally and enforced only under color of law violates the First, Fourth, Fifth, Seventh, Ninth, Tenth and Fourteenth Amendments to the Constitution of the United States, and that the construction of Rules 8(a) and 9(b) of the Federal Rules of Civil Procedure, taken together, further violate their First, Fifth, Ninth, Tenth, and Fourteenth Amendment rights (and powers) to petition, to demand and enforce due process, to the assertion and demand all of their reserved common law rights and powers, and to equal access to the courts and equal opportunity to employ non-judicial processes including but


not limited to adverse possession and then to offer and present evidence in court to enforce contractual, commercial, and other processes to acquire and maintain ownership or other interests in real property, and ultimately to ripen or perfect adverse possession into adverse title.

73.             Plaintiffs further allege that the existing rules against collateral attacks in civil matters (on their face or as applied) should be extended, modified, reversed, and supplanted with new federal common law as authorized by 42

U.S.C. §1988(a) and Rule 11(b).

74.             The changes in existing law requested in Plaintiff’s Original Complaint here include but are not limited to (1) a modification or relaxation of the Bell Atlantic v. Twombly/Ashcroft v. Iqbal standard of pleading in the context of private litigation between grossly unequal parties, to provide a “level playing field”, (2) to expand and enhance the scope of pre-filing discovery provided by Rule 27(a) of the Federal Rules of Civil Procedure, and (3) to allow the Plaintiffs to impose and maintain a lis pendens on the real property, subject of this litigation, at 11404 Laurel Brook Court, Riverview, Florida 33569, until not only this United States District Court Court but the 11th Circuit Court of Appeals has ruled on Plaintiffs’ Complaint (assuming that, even if Plaintiffs win, Defendants will appeal).

75.             With this his Original Complaint the Plaintiffs ask that the Court to allow them to proceed in its place with a Complaint alleging grounds, as allowed by Rule 11(b)(2), for a nonfrivolous argument for [changing] existing law or the establishment of new law.”


76.             This United States District Court has the jurisdiction, power, and discretion to allow and impose the protection for the Plaintiffs’ rights and claims of interest provided by a notice of lis pendens:

(2)    A notice of lis pendens is not effectual for any purpose

beyond 1 year from the commencement of the action and will expire at that time, unless the relief sought is disclosed by the pending pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time of expiration on reasonable notice and for good cause. The court may impose such terms for the extension of time  as  justice  requires.

(3)   When the pending pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 or when the action no longer affects the subject property, the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions.

(4)   This section applies to all actions now or hereafter pending in any state or federal courts in this state, but the period of time specified in subsection (2) does not include the period of pendency of any action in an appellate court.

77.             Plaintiffs submit that this Original Complaint clearly affects both legal title to and equitable ownership and beneficial use of the subject property, 11404 Laurel Brook Court, Riverview, Florida 33569, and that the non- frivolous arguments herein presented for the extension, modification, or reversal of existing law, and for establishing new law, albeit by a complaint which can only be framed and filed after conducting the discovery allowed by Rule 27(a)-(b), constitutes good cause for the allowance and imposition of a lis pendens throughout the pendency (and, if necessary, the appeal) of this action, or at least for the full year allowed by law (until October 2013).


78.             Wherefore, Plaintiffs move and request that this court exercise its power, pursuant Florida Statutes 48.23, to allow and impose a lis pendens in this case until at least through October 3, 2013.

COUNT V: FIRST & NINTH AMENDMENT FREEDOMS TO USE and OCCUPY ABANDONED PROPERTY BENEFICIALLY

79.             Plaintiffs reallege paragraphs 1-78 and incorporate the same by reference as if fully recopied and restated herein below.

80.             Plaintiff Tami Robinson is a Pastor and President of Tampa’s Well Pavilion Empowerment Center.

81.             Plaintiffs ask this Court to declare and adjudge, pursuant to 42 U.S.C.

§§1981, 1982, and 1983, that it is a reserved common law right of the people under the Ninth Amendment adversely to possess property, and that African-Americans should have the same right as White citizens to acquire and maintain beneficial use and ownership of property, and eventually to perfect or ripen adverse possession into adverse title, pursuant to the Anglo- American common law as preserved in Florida up until the present  day without meaningful alteration except that public notice must be filed as of record with the property recorder or tax appraiser in each county to ensure that adverse possession is maintained “openly and notoriously.”

82.             Plaintiffs are Christians who believe that God favors those who make beneficial and positive use of the resources of the earth, including the resources converted into housing or other structures by the hand and labor of man.

83.             Plaintiffs believe that it is a sin to leave property unused or to force others to suffer for the avarice and hoarding gluttony of others, including the


anonymous and soulless banks and financial holding companies in this country who have caused not less than a million and (according to some reports) as many as two million formerly usable homes to stand vacant in the State of Florida, rotting and decaying.

84.             Wherefore and accordingly, Plaintiffs ask this Court to find, adjudge and declare that it is the right and duty of all God-fearing people to use and beneficially occupy abandoned property, and that the rights of those in need of shelter should be afforded greater protection by the laws than the rights of banks and financial credit originating, extending, and servicing “holding companies” to accumulate vast inventories of property for use as  mere “paper collateral” neither marketed nor marketable for the prices originally stated or imagined for such properties, as in rental or sales markets.

85.             Plaintiffs further ask this Court to find, adjudge, and  declare  as  a matter of First Amendment Free Exercise as well as Ninth Amendment reserved rights to beneficially occupy and wholesomely use abandoned property, and that whatever injury or loss is suffered by the banks  and financial credit and holding companies is and will always be more than compensated by the increased prosperity and security of the people who will be able to support themselves through adverse possession rather than to become wards or otherwise dependent upon the social services of the state or federal welfare authorities.

86.             Wherefore and accordingly, Plaintiffs move and request that this court construe the Plaintiffs rights under Florida Common and Statutory rights to 11404 Laurel Brook Court, Riverview, Florida 33589, and that the Court will declare and adjudge that the Plaintiffs have acted properly in taking adverse possession of 11404 Laurel Brook Court in Riverview, and that


Sheriff David Gee and all other police and law enforcement authorities in this state should be permanently enjoined from disturbing the Plaintiffs beneficial and wholesome use of the subject property until  and  unless  a sworn complaint is filed by some prior flesh-and-blood  human, a natural person, who formerly and continuously beneficially used any particular property as his or her or their home or place of business, and has thus been wrongfully evicted not by the banks but only by Plaintiffs’ use and occupation of the premises.

87.             Plaintiffs submit that they are doing the same work as Jesus did in clearing the money changers from God’s first house, namely the Temple of King David in Jerusalem, when they beneficially occupy and wholesomely use abandoned property as a dwelling place for themselves and their family, and that their First and Ninth Amendment rights under God’s Law of Nature, consistent with the common and statutory law of Florida, should forever be preserved from police harassment, intimidation, or threats, except by full and proper due process of law.

PRAYER FOR RELIEF

Wherefore, premises considered, Plaintiffs Samantha Gavin, Shakoya Gavin, and Tami Robinson move and pray that this Court now allow discovery and argument concerning the matters of constitutional declaratory judgment outlined in their Counts I and II, and that upon final trial, will declare and adjudge in Plaintiffs’ favor for the extensions, modifications, and/or reversals of existing law and for the establishment of new law as specified.

Plaintiffs further pray that this Court grant their Motion for Leave to file their Original Complaint to allow for depositions under Rule 27(a) of the


Federal Rules of Civil Procedure to prevent a failure of justice and to perpetuate testimony which (especially in this digitized computer age) might well be destroyed by the time Plaintiffs could (without Rule 27(a)) pierce the many veils of secrecy inherent in the modern financial industry and actually have a chance to discover the real nature of the transactions or occurrences between the banks, financial holding companies and servicing institutions on the one hand and Florida law enforcement and judicial officials on the other giving rise to the impression of “case fixing” agreements by members of the Florida Mortgage Finance affiliated Bench & Bar.

Finally, Plaintiffs pray that this Court will allow the plaintiffs to impose and maintain, at least through October 3, 2013, a normal notice of lis pendens in order to preserve the status quo and avoid inextricably intertwining other and further parties in the situation created by the Defendants’ conduct in this case.

After Rule 27 Depositions and related discovery, Plaintiffs pray that this Court will allow further amendment of this Complaint so as to allege and prove a conspiracy as alleged above, but hat throughout this time this

U.S. District Court will maintain an injunction against the Hillsborough County Sheriff’s Office, and all its employees and agents, and all other state or municipal police forces or prosecutors in Hillsborough County, from harassing, intimidating, or threatening to initiate any other civil suit or criminal prosecutions in any Florida County or Circuit Trial Court or other court in this state against the plaintiffs arising from Plaintiffs’ activities in the acquisition or lawful maintenance of adverse possession and beneficial use and occupancy of their property against all parties except a party who can prove both prior legal title and beneficial use and occupancy in the course of


ownership of the property, subject of this litigation, at 11404 Laurel Brook Court, Riverview, Florida 33569.

Respectfully submitted,

 

 

 


Wednesday October 3, 2012