IN THE SUPREME COURT OF FLORIDA

3d H 23 oMATTIE LOMAX, CASE NO.

ConsolidatedPetitioner/ Appellant Lower Tribunal No.: 12-89616 CA 04

12-35VS.

CITY OF HIALEAH GARDENS,CITY OF HIALEAH GARDENS POLICE,DEPARTMENT, OFFICER CALOS FOJO,LAWRENCE POEREZ, WAL-MART STORESEAST L.P,

Respondent/ Appellee.

OFFICER REYNOLDS OF THE CIYTOF MIAMI POLICE DEPARTMENTAND WINN DIXIE CORPORATE

Respondent/ Appellee./

On Appeal from the Eleventh Judicial Circuit CourtIn and for Miami-Dade County, Florida, Mattie Lomax, Case No's to:

CONSOLIDATED Lower Tribunal No(s). 12-34616 CA 04/ 12-35304 CA04 and Invoke Discretionary Jurisdiction ofthe Supreme Court

PETITIONER JURISDICTIONAL BRIEF

MATTIE LOMAXIn ProperperP.O. BOX 310464MIAMI, FLORIDA 33231 0464Telephone: (305) 573-0702tamatwynette1950@bellsouth.net

TABLE OF CONTENTS

JURISDICTIONAL BRIEF_Pgge

TABLE OF AUTHORITIES........................................................ii

TABLE OF AUTHORITIES CONTINUE.......................................iii

PREFACE.............................................................................iv

STATEMENT OF FACTS AND THE CASE....................................1

SUMMARY OF THE ARGUMENT...............................................2

ARGUMENT ON JURISDICTION................................................7

I. JUDGE JACQUELINE HOGAN SCOLA HAVEA DUTY TO RECUSE HERSELF FROM BOTH OFTHE UNDERLYING CIVIL ACTION......................................4

II. DIRECT CONFLICT WITH DECISION OF OTHERSTATE COURTS.....................................................8

CONCLUSION........................................................................9

CERTIFICATE OF SERVICE.....................................................10

CERTIFICATE OF COMPLIANCE.............................................11

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TABLE OF AUTHORITIES

Cases Eag_e

Parker v. State, 3 So.3d 974, 981 (Fla.2009)......................................5

Lundstrom v. Lyon, 86 So.2d 771, 772 (Fla.1956)...............................6

Barnhill v. State, 834, 842 So.2d 836 (Fla. 2002).................................6

Brown v. St. George Island, Ltd., 561 So.2d 253 (Fla.1990)....................6

Suarez v. State, 115 So. 519, 524 (Fla. 1928),....................................7

Dickenson v. Parks, 140 So. 459, 462 (Fla. 1932).................................7

Escalona v. Wisotsky , 781 So.2d 1063 (Fla. 2000)..............................7

Breakstone v. MacKenzie, 561 So.2d 1164(Fla.App. 3 Dist. 1989) ..............................................................8

Doe Ex Rel. Doe v. Publix Super Markets814 So.2d 1249 (Fla.App. 2Dist. 2002)............................................8

Rogers v. State, 630 So.2d 513 (Fla. 1993).......................................8

Stimpson Computing Scale Co. v. Knuck,508 So.2d at 484.......................................................................9

Wishoff v. Polen In and For Broward County,468 So.2d 1035 (Fla.App. 4 Dist. 1985).............................................9

Dura-Stress, Inc. v. Law, 634 So.2d 769(Fla.App. 5 Dist. 1994)................................................................9

CH2M Hill Southeast, Inc. v. Pinellas County,598 So.2d 85 (Fla.App. 2 Dist. 1992)...............................................9

Townsend v. State, 564 So.2d 594 (Fla. 2d DCA 1990)..........................9

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Continue fage

Scussel v. Kelly, 152 So.2d 767 (Fla.App. 2 Dist. 1963)........................9

State v. G.P., 429 So. 2d 786, 788 n.6 (Fla. 3d DCA 1983),..................10

Arvida Corp. v. City of Sarasota, 213 So. 2d 756, 761(Fla. 2d DCA 1968)..................................................................10

Lundstrom v. Lyon, 86 So.2d771, 772 (Fla. 1956)..............................13

Other Authorities:

Florida Statutes 38.01.................................................................5Fla. R. Jud. Admin. 2. 160(e)(2004.................................................538.10, Florida Statutes (2011).......................................................5Article V of the Florida Constitution...............................................5Florida Rule ofJudicial Administration 2.330....................................5Florida Rule ofCivil Procedure 1.432..............................................9Fla. Const. art.V, §4(b)(2)..........................................................10Fla. R. App. P. 9.030................................................................11

IV

PREFACT

Respondents/Defendants is the Appellee's in the lower court and shall

be referred to in this Briefas RESPONDANTS.

Petitioner MATTIE LOMAX is the Petitioner/ Plaintiff in the lower

Court and shall be referred to in this Brief as LOMAX.

The Circuit /Court ofThe 11* Judicial Circuit in and For Dade County,

Florida Order's dated November 20, 2012, December 11, 2012 and

October 18, 2012 will be referred to as the "Order".

The Appendix will be referred to as "App."

V

STATEMENT OF FACTS AND THE CASE

LOMAX is a pro se litigant representing her self in two individual law

suits against the RESPONDENTS in which she was ejected from a Hostile

Public Accommodations Environment"/ Harassment Law by both

RESPONDANTS, on different days.

LOMAX complaint is governor under The Fourteenth Amendment,

Section 1, states:

All person born or naturalized in the United States and subject to theJurisdiction thereof, is citizens of the United States and of the statewherein they reside. No state shall make or enforce any law which shallabridge the privileges or immunities of citizens of the United States; norshall any state deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equalprotection of the laws.

The presenting Judge Jacqueline Hogan Scola, Circuit Court Judge, in

Consolidate cases; threaten to give LOMAX three days in jail for

Representation her self in two civil complaints. Appendix A- Florida

Statutes 38.01.

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SUMMARY OF THE ARGUMENT

All judges on a regular basis are asked to listen to evidence and make

decisions on the evidence presented. If a party doesn't like a court's

findings that doesn't mean they have the right to ask for a new judge.

A motion to disqualify shall be filed within a reasonable time not to

exceed 10 days after discover of the facts constituting the grounds for the

motion and shall be promptly presented to the court for an immediately

ruling. " Fla. R. Jud. Admin. 2. 160(e) (2004). Despite the fact that she now

claims to be in dire apprehension ofunfair treatment.

Indeed, the only matters contained in the Motion which occurred within

the relevant time frame, are the Court's Order November 20, 2012 and

December 11, 2012.

A motion to disqualify is governed by section 38.10, Florida Statutes

(2011), and Florida Rule ofJudicial Administration 2.330. See Parker v.

State, 3 So.3d 974, 981 (Fla.2009).

Florida Statute §38.10 Controls Rule 2.160's Scope, Rule 2.160, enacted

under the authority ofArticle V of the Florida Constitution cannot change the

substantive right of a party to an action as the Supreme Court's authority to

adopt rules is limited to practice and procedure only not the substantive

right to be free of a judge as guaranteed by §38.10 whose prejudice has been

raised by a filed affidavit. That right vests under §38.10 when a party "files an

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affidavit stating fear that he or she will not receive a fair trial". Clearly, the

Supreme Court does not have the authority under Article V to adopt a rule

which vitiates that substantive right. Accord: Lundstrom v. Lyon, 86 So.2d 771,

772 (Fla.1956)("Furthermore, it cannot be doubted that courts may not by rule

ofpractice either by statutory or inherent rule making authority, amend or

abrogate a right resting in either substantive or adjective law."); Barnhill v.

State, 834, 842 So.2d 836 (Fla. 2002), ("Section 38.10, Florida Statutes (2001),

gives litigants the substantive right to seek disqualification ofa judge. Rule

2.160, Florida Rules of Judicial Administration, sets forth the procedure to be

followed in the disqualification process." Emphasis added); Brown v. St.

George Island, Ltd., 561 So.2d 253 (Fla.1990).

Plainly then, a conflict between §38.10 and Rule 2.160 must be resolved in

§38.10's favor.

The proposed Rule 2.160 Improperly Abrogates §38.10/ Florida Statute

§38.10 "Disqualification ofjudge for prejudice; application; affidavits; etc."

states as to the first motion for disqualification:

Whenever a party to any action or proceeding makesand files an affidavit stating fear that he or she will notreceive a fair trial in the court where the suit is pending onaccount of the prejudice of the judge of that court againstthe applicant or in favor of the adverse party, the judgeshall proceed no further, but another judge shall bedesignated in the manner prescribed by the laws ofthis statefor the substitution ofjudges for the trial of causes in whichthe presiding judge is disqualified. (Emphasis added).

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Hence, all that §38.10 requires is (i)"a party to an action or proceeding", (ii)

"makes and files an affidavit", (iii)"stating fear that he or she will not receive a

fair trial", (iv)"on account ofthe prejudice of the judge of that court against the

applicant or in favor of the adverse party". This is the only burden upon a

litigant.

This proposition that the filing of the affidavit alone removes the

judge from jurisdiction over the matter is supported by a long line ofFlorida

cases. In Swepson v. Call, 13 Fla. 337 (1869), in interpreting a similar

statute this Court stated, "the jurisdiction of the judge over the cause ceases

whenever it appears, or whenever facts exist, that he or she is interested in it

and that he can "entertain no motion in the cause (other than to have it tried

by a competent tribunal) and the Legislature had declared that all orders,

degrees and judgment made or entered by such judge, except as stated, shall

be null and void." (Emphasis added). Hence, it is the very jurisdiction ofthe

court which ceases when an affidavit to disqualify is made and filed as

"proceed no further" is a revocation ofjurisdiction by the Florida legislature.

Accord: Suarez v. State, 115 So. 519, 524 (Fla. 1928), Dickenson v. Parks,

140 So. 459, 462 (Fla. 1932); Escalona v. Wisotsky , 781 So.2d 1063 (Fla.

2000) ("This Court holds that a motion to disqualify constitutes record

activity regarding a claim of failure to prosecute, and that the trial court's

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failure to act immediately on the motion to disqualify violated section 38.10

and rule 2.160, as did the trial court's ruling on the motion to dismiss

while the motion to disqualify was pending. Thus, the decision below is

quashed, the case is remanded, and we approve Lukowsky."); Breakstone v.

MacKenzie, 561 So.2d 1164 (Fla.App. 3 Dist. 1989) ("It is well settled that 'a

judge faced with a motion for recusal should first resolve that motion before

making additional rulings in a case. A recusal motion must be heard first.'

Stimpson Computing Scale Co. v. Knuck, 508 So.2d at 484 (1987). Not only is

the procedure well established, but the approach taken here creates, rather than

dissipates, a perception that the trial judge attempted to retain the case as an

accommodation to withdrawing counsel" Wishoff v. Polen In and For

Broward County, 468 So.2d 1035 (Fla.App. 4 Dist. 1985)("Since the final

judgment was entered after petitioner filed her motion for disqualification, it

must be vacated."); Doe Ex Rel. Doe v. Publix Super Markets 814 So.2d 1249

(Fla.App. 2Dist. 2002) ("The general rule is that once a party has filed a motion

to recuse, the trial judge may not proceed any further in the action, § 38.10, Fla.

Stat. (2000)"); Rogers v. State, 630 So.2d 513 (Fla. 1993) ("Once the motion

for recusal was made, the present judge, rather than limiting inquiry to a

determination of the motion's legal sufficiency, actively participated in, and

directed the outcome of, a mini-hearing to determine the truthfulness of the

Appellee's allegations against him. Regardless ofthe legal sufficiency of

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Rogers' motion, we conclude that he is entitled to a new evidentiary hearing

before a different judge because the appearance ofbias generated during this

mini-hearing was so pervasive it tainted the remainder of the proceeding, as

happened in Bundy."); Dura-Stress, Inc. v. Law, 634 So.2d 769 (Fla.App. 5

Dist. 1994)(Thompson, Judge, concurring in part; dissenting in part,"In this

case, the judge should not have entered any orders after the motion to

disqualify was filed. He should have ruled on the motion first, before

proceeding to any other matters. I would, therefore, quash the order entered on

the motion for net final judgment."); CH2M Hill Southeast, Inc. v. Pinellas

County, 598 So.2d 85 (Fla.App. 2 Dist. 1992) ("Section 38.10, Florida Statutes

(1989), and Florida Rule ofCivil Procedure 1.432 govern disqualification ofa

trial judge. Both the statute and the rule are clear that upon presentation to the

trial judge of a legally sufficient motion by a party to disqualify, the trial judge

shall proceed no further. The trial judge may not debate the allegations

contained in the motion, pass on the truth of its allegations, or adjudicate the

question ofdisqualification. See Townsend v. State, 564 So.2d 594 (Fla. 2d

DCA 1990). The trial judge's actions in this case exceeded the proper scope of

his inquiry. It was error for her to continue in the case and a new trial is

required."); Scussel v. Kelly, 152 So.2d 767 (Fla.App. 2 Dist. 1963) ("Thus,

upon filing ofthe suggestion ofdisqualification based on bias and prejudice

against an attorney in the cause relators brought themselves within the ambit of

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the aforementioned statute and the respondent judge was under an affirmative

duty to proceed only insofar as was permissive under the statute.").

ARGUMENT

The Florida Supreme Court was the sole court ofreview In 1957, the

Florida Constitution was amended to create the district courts of appeal, but

the Florida Supreme Court retained its discretionary authority to issue the

common law writ of certiorari to review district court decisions. The intent

of the 1957 amendment, however, was to curtail Florida Supreme Court

review. As one court explained, "the 1957 amendment was intended to

define and confine the powers and jurisdiction ofthe Supreme Court in order

to avoid the danger of the district courts ofappeal becoming way stations on

the road to the Supreme Court." State v. G.P., 429 So. 2d 786, 788 n.6 (Fla.

3d DCA 1983), approved, 476 So. 2d 1272 (Fla. 1985); Fla. Const. art.V,

§4(b) (2).

There exists a valid distinction between certiorari and appellate

jurisdiction and the distinction is more than a mere difference in form. Under

a writ of certiorari, the exercise ofjurisdiction is discretionary with the court

and is used to determine whether the essential requirements of law have

been complied with to the material injury of the petitioner. Arvida Corp. v.

City of Sarasota, 213 So. 2d 756, 761 (Fla. 2d DCA 1968).

Once the circuit court, sitting in its review capacity, issues a decision, a

district court has jurisdiction to review the circuit court's appellate decision

through certiorari. Fla. R. App. P. 9.030. District court review by certiorari

of a circuit appellate decision, however, is extremely limited. This "second-

tier" review, as it is often characterized, is not available as a matter of right,

but is governed by a much stricter standard.

The Florida Supreme Court recently addressed second-tier review and

emphasized that a district court, when reviewing an appellate decision

rendered by a circuit court, can only consider whether: 1) due process was

observed, and 2) there was a departure from the essential requirements of

law. The "substantial competent" evidence component applicable on first-

tier review to the circuit appellate division disappears. This maintains the

district court's jurisdiction to review a circuit court's appellate opinion,

while reinforcing the principle that a party is only entitled to one appeal.

Accordingly, certiorari review can actually vary within related proceedings -

serving first as a method ofguaranteed review in a circuit court for a quasi-

judicial decision for which no other review exists, and then as a limited

mechanism for further review ofthat circuit court's appellate conclusion.

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CONCLUSION

Rule 2.160 as proposed and as presently formulated improperly

impinges upon the substantive right contained in §38.10. As such, it cannot

be amended as proposed or even maintained in its present form without

trespassing upon the limitations ofthis Court's authority as recognized in

Lundstrom v. Lyon, 86 So.2d771, 772 (Fla. 1956): "Furthermore, it cannot

be doubted that courts may not by rule ofpractice either by statutory or

inherent rule making authority, amend or abrogate a right resting in either

substantive or adjective law."

As such, Rule 2.160 must be amended to conform to §38.10's plain

mandates.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy ofthe foregoing has

been furnished by U.S. Mail to the following Attorney's on Januar .

Scott D. Alexader, Esq.,2455 E. Sunrise Blvd., Suite 1000Fort Lauderdale, FL, 33304 (Respondents for Hialeah Gardens

And Wal-Mart)

Christopher A. Green and Attorney JonesAssistant City Attorney's forOfficer Reynolds of theCity ofMiami Police Department444 S.W. 2"d Avenue, Suit 945Miami, Florida 33130

Daniel J. KleinWinn-Dixie Stores, Inc.,9150 South Dade-Land BoulevardSuite 1400Miami, Florida 33256 (Respondents for Winn Dixie

MATTIE LOMAX,In ProperperP.O. Box 310464Miami, Florida 33236Telephone No: (305) 573-0702

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CERTIFICATE OF COMPLIANCE REGARDINGTYPE SIZE AND STYLE

The undersigned, (Pro Se) hereby certifies that she has complied with the

format requirements of the Rules ofAppellate Procedure. This Appendix to

Petitioner's Jurisdictional Briefwas prepared using Times New Roman 14

point font.

TTIE LOIn ProperperP.O. BOX 310464MIAMI, FLORIDA 33231 0464Telephone: (305) 573-0702tamatwynette1950@bellsouth.net

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