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) [email protected]
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
4
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.
8
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) [email protected]
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