Appendix — Gibson v. Firestone

Sthice -Supr: me Court, US.

FILED

ALEXANDO? L STEYAS,

| CLERK

CASE NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

ROBERT E. GIBSON, et al,

Petitioner,

vs.

GEORGE FIRESTONE,

Respondent.

ON WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

APPENDIX

James G. Mahorner

Attorney for Petitioner

1020 East Lafayette Street

Tallahassee, Florida 32301

Phone: (904) 656-3591

, 4 A

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ny

es ee

CASE NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

ROBERT E. GIBSON, et al,

Petitioner,

vs.

GEORGE FIRESTONE,

Respondent.

ON WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

APPENDIX

James G. Mahorner

Attorney for Petitioner

1020 East Lafayette Street

Tallahassee, Florida 32301

Phone: (904) 656-3591

penta ah oe

APPENDIX INDEX

PAGE NO.

Reference

Ue Ss. District es ee a eee

Complaint (1 C 4)..........Count & Paragraph

U. S. District Court

Intervenor Complaint and Motion...........48

U. S. District Court Opinion........+++++-+67

U. S. Circuit Court Opinion..ccccccccccceeld®

- 26 «

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UNITED STATES DISTRICT COURT COMPLAINT

- 99 -

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT E. GIBSON,

Plaintiff

vs. : CASE NO. TCA 84-

7168-WS

GEORGE FIRESTONE, :

individually and as :

Secretary of State of :

the State of Florida :

and MARTIN FINE, :

Defendants.

COMPLAINT

COUNT I

The Complaint of Robert E. Gibson

respectfully represents:

1. This is an action for injunctive

- 30 -

ii

relief and this Court has jurisdiction under

42 U.S.C. 1331(a), 2343(3), 1983, and the

provisions of Art. I, Section 10 and the

First and Fourteenth Amendments of the United

States Constitution.

2. Plaintiff, Robert E. Gibson, signed

the Petition which caused the Defendant,

George Firestone, Secretary of State of the

State of Florida to certify that the proposed

amendment to the Florida Constitution,

designated Proposition 1, as having met the

State Constitutional requirement for

placement on the November ballot for the 1984

Florida General Election. A copy of said

certification is attached hereto as Exhibit

ra 4 Plaintiff has expended substantial

funds and labor as a strong supporter of the

proposed amendment and the limits it places

on the government's ability to extract from

its citizens the harvest of their labors as

- 31-

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is evidenced by his instituting this Court's

case number TCA 84-7109 MMP and as extensive

participant in the minor non-party roll

ofamicus curiae in the State courts.

3. Defendant, Martin Fine, brought suit

against the Defendant, George Firestone, in

the First District Court of Appeal of Florida

seeking to have the proposed amendment struck

from the ballot. Defendant, George

Firestone, then publicly acclaimed’ the

virtues of the suit brought by Defendant,

Martin Fine and further assisted Martin Fine

in his quest by consenting to the issuance of

the Order to Show Cause, declining to defend

on the merits, neither filing briefs or

participating in oral argument nor in any

other manner opposing the legal attack made

by Defendant Fine. Attached as Exhibit "2"

is the complete response made by Defendant,

Firestone.

- 32 -

4. Plaintiff and others who supported

Proposition 1 sought to intervene so as to

obtain party status in the case and were

summarily denied the same in this case which

was to decide their rights to vote on

constitutional initiative proposals even

though there was no party who supported such

rights. (Plaintiff was permitted the status

of amicus curiae.)

5. The District Court, by the attached

Opinion, Exhibit "3", found the proposal to

meet the State Constitutional requirements

against the announced position of both

parties to the case.

6. The Petition for Review by Defendant

Martin Fine was filed in the Florida Supreme

Court by his attorney who was a recent member

of such body and who persuaded his former

colleagues to enter the Opinion granting

Mandamus (attached as Exhibit "4") and

- 33 -

depriving Plaintiff all rights to vote on the

candidacy of Propositon 1. (Plaintiff

acknowledges that the many laws in the

Federal and State's jurisprudence which

prohibit early appearance before an agency by

one previously having status with such agency

have no direct application to the courts of

Florida).

7. Plaintiff had no party status and

since both Defendants, who opposed

Proposition 1, were the sole parties in the

cause, there was no possibility for the

filing of a petition for rehearing, for the

taking of an appeal, nor for the filing of

motions attacking jurisdiction and other

issues which could have been raised by a

party to the case.

8. Plaintiff had, upon the certification

by the Defendant, Firestone, the Federally

protected voting right to cast his vote for

- 34 -

the candidacy of Proposition 1 and to have

its limitation upon government's

expropriation of his labor's harvest to

become law if the majority of the citizens

agreed with him. Plaintiff and others

responsible for placing the amendment on the

ballot are the only candidates. Plaintiff's

right to be a candidate is protected by the

due process and equal protection clauses of

the Fourteenth Amendment to the United States

Constitution. Said rights were summarily

terminated without procedural due process and

are presently being denied.

Plaintiff was deprived of said rights

without procedural due process in a judicial

proceeding in which his rights were opposed

by all parties to that proceeding.

The Defendant, Firestone, is now

directed under color of State law to strike

the proposed amendment from the ballot

- 35 -

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invalidating his previously valid

certification under the authority of a

nonadversary court action, which he refused

to defend, thereby assuring his’ future

emoluments of office without threat of

limitation on the power to extract from

Plaintiff the support of such benefits.

9. The above-described circumstances

disenfranchised Plaintiff of the right to

vote for and promote his’ candidacy of

Proposition i in violation of the freedom of

speech and assembly provisions of the First

Amendment and the equal protection and

Sustantive due process provisions of the

Fourteenth Amendment of the United States

Constitution. Such disenfranchisement

without affording Plaintiff party status

violated the procedural due process

guaranteed by the Fourteenth Amendment.

10Ihe Florida Supreme Court gave to

- 36 -

Plaintiff a property right in its prior

decisions interpreting the initiative

provision of the Florida Constitution subject

to the condition precedent that he take

action in reliance on them stating to him in

Florida Forest and Park Service Vv.

Strickland, 18 So.2d. 251, 253 (1944), that

it was well recognized that ". . . where a

statute has received a given construction by

a court of supreme jurisdiction and property

or contract rights have been acquired under

and in accordance with such construction,

such rights should not be destroyed by giving

to a subsequent overruling decision a

retrospective operation.” (Citing Douglass

v. Pike County, 101 U.S. 677, 25 L.Ed. 968)

Plaintiff has been deprived without’ the

procedural due process guaranteed by the

Fourteenth Amendment of the Federal

Constitutions of the property right to have

- 37 -

the amendment constitutional under the prior

decisions submitted to the electorate.

Plaintiff's opportunity for success are

sufficient to justify a preliminary

injunction, the United States Supreme Court

and the Fifth Circuit Court of Appeals having

held in Aerojet General Corporation v. Askew,

514 F.2d. 1072, appeal dismissed and

certiorari denied, 46 L.Ed. 187, rehearing

denied, 423 U.S. 1026, that straw man

litigation between two parties who favor a

single position cannot deprive non-parties of

their rights.

11Plaintiff has no adequate remendy at

law and injunction and declaratory relief by

this Court are the only methods whereby

Plaintiff can avoid irreparable injury.

COUNT II

IMPAIRMENT OF CONTRACT

The Complaint of Robert E. Gibson

- 38 -

ot Aah ek er ee Bal

respectfully represents:

1. Plaintiff restates the assertions of

the preceeding Count.

2. This is an action for impairment of

rights of contract protected by Art. I,

Section 10 of the United States Constitution.

3. The Florida Supreme Court in its

Opinion in Humphrey v. State, 145 S. 858

(1933), citing the Federal cases of Douglas

Vv. Pike, 25 L.Ed. 968, Louisiana Vv.

Pillsbury, 26 L.Ed. 109, and Gelpcke vy.

Dubugue, 17 L.Ed. 520, asserts to Plaintiff

and others who take action in reliance on its

Opinions that it wiil not apply recission of

such opinions to them retrospecively.

4. The Plaintiff and others in reliance

on such clear pronouncement through great

labor and expenditure of funds promoted the

proposed constitutional amendment and

gathered over 600,000 petitions, paid to the

- 39 -

—_—

State of Florida the sum of $37,000 for

checking the names on the petitions and

further relied on the fact that it met the

State Constitutional requirements as laid

down by the Florida Supreme Court in its

recent but prior opinions in Floridians

Against Casino Take Over vy. Let's Help

Florida, 363 So.2d. 337 (Fla. 1978) and Weber

Where in his concurring opinion, Mr. Justice

England said:

". « « Appellants view it narrowly

(the one subject limitation). .. .

Appellees view it broadly. .. .

Neither offers us any precise

historical data as to why this

limiting phraseology was_ selected

when it was adopted by the

Legislature and submitted to the

people for their approval in 1972.

- 40 -

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In the absence of guidance from the

framers of the phrase, it becomes our

responsibility to select one or the

other interpretation not only looking

back on its development as best we

can and with ae view to its

applicability in this case but as

well with a concern for future cases

where the right of initiative may be

exercised. ° ° . (Emphasis

prior

supplied).

5. The Secretary of State, Defendant

Firestone, approved the form of Proposition 1

signature and no legal attack was made during

such circulation though such is permitted by

Floridians, supra.

6. The approval for circulation by the

- 41 -

to circulation of the petition for

2 Path hnate Ost,

Defendant, Firestone, of the form constitutes

an offer in the classical form of a

unilateral contract to certify Proposition 1

for the ballot and permit the candidacy

thereof to receive the vote of the electorate

in return for the enormous effort of

successfully obtaining sufficient signatures.

7. The unilateral contract with the

Defendant and the Court was then impaired in

violation of Art. I, Section 10 of the

Federal and State Constitutions by the

subsequent invalidating of the Weber and

Floridians Opinions (which were the

guidelines used for Proposition 1 subject

limitation) and its retrospective application

to the subject of Proposition 1, the subject

matter of which resulted from a reliance on

the court's representation in Humphrey v.

State that it would not retrospectively apply

recission of existing established holdings to

- 42 -

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those whose rights would be _ = adversely

affected because of reliance on the prior

court holders before the court invalidated

them.

8. The court recognized that the single

subject standards required by it had been

complied with in Amendment 1 and found that

to strike down the proposed amendment it was

necessary to recede from its opinions in

Weber and Floridians.

9. By its Opinion, the Florida Supreme

Court further provided the unprecedented

requirement that future amendments’ must

designate each part of the Florida

Constitution affected, a requirement not

previously found or discernable in the

existing Florida Constitution and not

followed as to amending the Federal or any

other State Constitution, and the Court

thereby clearly intends to nullify the

- 43 -

present power of the people and of Plaintiff

to amend the Constitution by requiring

further amendments to specify the

constitutional sections affected, which

specification under the standards of the

Opinion constitute a second subject rendering

future amenments invalid. Thus, the Court

has undertaken to prevent Plaintiff from

mitigating damage from the impairment of

contract by preventing successful submission

of a modified amendment.

WHEREFORE, Plaintiff prays as follows:

a. That the Court advance this cause on

the docket and hold an early final hearing

granting an injunction against the Secretary

decertifying Proposition 1 or directing its

recertification.

b. That the Court declare that

Plaintiff's right to vote on Proposition 1

cannot be affected by the straw- man

- 44 -

litigation.

c. That the Court grant an_—- early

preliminary injunction consistent with the

final injunction requested.

d. That the Court allow Plaintiff his

cost herein including reasonable attorney

fees.

e. The arbitrary actions described

herein has been prior restraint preempted

Plaintiff's right to promote the November

candidacy of Proposition 1 causing delay in

Federal relief to become denial of Federal

relief necessitating the immediate injunctive

doctrine of National Socialist Party of

America v. Village of Skokie, 432 U.S. 43 and

reinstatement until decision which creates no

harm if the proposition is later stricken.

- 45 -

f. That the Court grant all other relief

to which Plaintiff appears entitled.

a JAMES G. MAHORNER

AMES G. MAHORNER

206 South Monroe Street

Tallahassee, Florida 32302

(994) 222-7735

Attorney for Plaintiff

- 46 -

UNITED STATES DISTRICT COURT

INTERVENOR COMPLAINT AND MOTION

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASE NO. TCA 84-

7168-WS

ROBERT E. GIBSON,

Plaintiff,

vs.

George Firestone, individually

and as Secretary of State

of the State of Florida, and

Martin Fine,

Defendants,

and

Ed Havill, Y. Y. Phillips, Jr.

George Schulte,

Floridians for Tax Relief and

Limit Government Committee,

Intervening Plaintiffs,

vs.

George Firestone, Individually and

as Secretary of State of the State

of Florida, and Martin Fine,

Defendants.

INTERVENING COMPLAINT

Intervening Plaintiffs Ed Havill, Y. Y.

- 48 -

Phillips, Jr., George Schulte, Floridians for

Tax Relief, and Limit Government Committee,

respectfully represent and allege:

COUNT 1

1. The Complaint in this action, Count

1, paragraphs 1 through 11 is incorporated

herein as if fully set forth.

2. Ed Havill, Y. Y. Phillips, Jr., and

George Schulte, are citizens, taxpayers and

electors of Florida.

3. Ed Havill, Y. Y. Phillips, Jr., and

George Shulte, have expended funds and labor

in support of the "“Citizens' Choice on

Government Revenue" proposed Florida

Constitutional Amendment 1 which was

certified as to ballot position for the

November, 1984 general election ballot.

4. Floridians for Tax Relief's an

association of Florida citizens, including Ed

Havill and others, authorized and required by

- 49 -

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Florida law, Section 100.371(3), Fla. Stat.,

to register as a political committee. It has

expended in excess of $ 200,000 and labor in

efforts to promote and sponsor Amendment 1.

5. Limit Government Committee is also an

association of Florida citizens, including

George Schulte and others, which has expended

funds and labor to promote and sponsor the

adoption of Amendment 1. It is also

registered pursuant to Section 100.371(3),

Fla. Stat. As the first political committee

to file the "Citizens’' Choice on Government

Revenue" initiative petition with the

Secretary of State of Florida, it was

designated pursuant to Fla. Admin. Code

Section 1C-7.09, as the sponsoring

organization of Amendment 1.

6. Pursuant to Florida Constitution,

Art. Xl, sec. 5, and law, Section 100.371

Fla. Stat. and Section 1C-7.10, Fla. Admin.

- 50 -

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Code., the proposed Amendment 1 was placed on

November, 1984 general election ballot in

Florida, and can be placed on no _ other

ballot.

7. In the state court’ proceeding

initiated by Defendant Martin Fine’ the

Respondent therein, George Firestone,

Defendant herein, stipulated jurisdiction by

filing a “Consent to Entry of Show Cause

Order" concurrently with Fine's' original

petition, even though Defendant Firestone had

determined not to defend that suit. When

Defendant Firestone then filed his response

indicating he would not defend, the

Intervening Plaintiffs moved to substitute

parties in whole or in part, or to add the

Intervening Plaintiffs as parties respondent,

where upon Defendant Fine opposed the motion

to substitute parties.

8. Intervening Plaintiffs’ rights to due

- 51 -

process under the Fourteenth Amendment to the

United States Constitution were denied

because of the non-adversary and sollusary

proceeding in th state courts. Motions and

demands they expressed an intention to make

(motion to dismiss, demand for a jury trial)

were made unavailable to them, without even

any ruling of denial thereon.

9. Intervening Plaintiffs‘ rights to

equal protection under the Fourteenth

Amendment to the United States Constitution

were denied them, by the granting of

Defendant Fine party status in the _ state

courts (when he alleged he was a "citizen and

taxpayer"), while they were denied party

status in the same case after allegation they

were "citizens, taxpayers and electors" and

that they were among the’ sponsors of

Amendment 1. Procedural rights cannot be

granted to some litigants and arbitrarily and

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capriciously denied to others.

10. The decision of the Florida Supreme

Court in Fine v. Firestone on March 27, 1984,

was contrary to numerous precedents of that

Court, amounted to “issue exclusion” from the

ballot, and was content-based discrimination

based on the Florida Supreme Court's reading

of Amendment 1 to individually classify and

restrict Amendment 1 in the pre-election

prior restraint stage as to speech and

assembly and associational and voting rights

(fundamental rights) of the intervening

Plaintiffs.

COUNT II

1. The Complaint in this action, Count

II, paragraphs 1 through 9, is incorporated

herein as if fully set forth.

2. The allegations of the foregoing

paragraphs hereinabove are incorporated

herein as if fully set forth.

- §3 -

3. Intervening Plaintiffs relied not

only on the Weber v. Smathers, 338 So. 2nd

819 (Pla. 1976) and Floridians Against Casino

Takeover v. Let's Help Florida, 363 So. 2nd

337 (Fla. 1976) cases, but also on numerous

decisions of the Florida Supreme Court that

that court is bound to follow the established

law. Gilliam vy. Stewart, 291 So. 2nd 593,

594 (Fla. 1974); Hoffman v. Jones, 280 2nd

431, 433-434 (Fla. 1973); and Dozier v. Wood,

431 So. 2nd 184, 187 (Fla. 1983).

Wherefore, Intervening Plaintiffs

incorporate herein and adopt the Complaint

prayer, paragraphs a through f, as if fully

set forth herein.

Dennis M. O*Connor

Dennis M. O'Connor

University of Miami

Coral Gables, Florida 33124

(305) 665-3934

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the

foregoing intervening Complaint was mailed

this 15th day of May, 1984, to:

Jim Smith, Attorney General of

Florida

Attorney for Defendant Secretary of

State George Firestone

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32301

(904) 488-1573

Arthur J. England, Jr., Esquire

Attorney for Defendant Martin Fine

Steel, Hector and Davis

1400 Southeast Bank Building

Miami, Florida 33131

(305) 577-2987

- 65 -

Stuart L. Simon, Irwin Block

and Burt Hellman, Esquires

Attorneys for Defendant Martin Fine

Fine, Jacobson, Block, Klein,Colan,

and Simon P.A.

2401 Douglas Road

Miami, Florida 33134

(305) 446-2200

James C. Mahorner, Esquire

Attorney for Plaintiff

206 South Monroe Street

Tallahassee, Florida 32302

(904) 222-7735

Dennis M. O'Connor, Attorney

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UNITED STATES DISTRICT COURT OPINION

- &7 -

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

Robert E. Gibson, CASE NO. TCA 84-7168-

ws

Plaintiff,

vs.

George Firestone, Individually and as

Secretary of State of the State of Florida,

and Martin Fine,

Defendants

P and

Ed Havill, .Y.Phillips, Jr., and George

Schulte,

Floridians for Tax Relief, and Limit

Government

Committee,

Intervening Plaintiffs,

vs.

George Fireston, Individually and as

Secretary of State of the State of Florida,

and Martin Fine,

Defendants,

/

INTERVENING COMPLAINT

Intervening Plaintiffs Ed Havill, Y. Y.

Phillips, Jr., George Schulte, Floridians for

Tax Relief, and Limit Government Committee,

respectfully represent and allege:

COUNT 1

1. The Complaint in this action, Count

1, paragraphs 1 through 11 is incorporated

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herein as if fully set forth.

2. Ed Havill, Y. Y. Phillips, Jr., and

George Schulte are citizens, taxpayers and

electors of Florida.

3. Ed Havill, Y. Y. Phillips, Jr., and

George Schulte, have expended funds and labor

in support of the "Citizens' Choice on

Government Revenue" proposed Florida

Constitutional Amendment 1 which was

certified as tc ballot position for the

November, 1984 general election ballot.

4. Floridians for tax relief is an

association of Florida citizens, including Ed

Havill and others, authorized and required by

Florida law, Section 100.371(3), Fla. Stat.,

to register as a political committee, It has

expended in excess of $200,000 and labor in

efforts to promote and sponsor Amendment 1.

5. Limit Government Committee is also an

association of Florida citizens, including

- 59 -

George Schulte and others, which has expended

funds and labor to promote and sponsor the

adoption of Amendment 1. It is also

registered pursuant to Section 100.371(3),

Fla. Stat. As the first political committee

to file the "Citizens’' Choice on Government

Revenue” initiative petition with the

Secretary of State of Florida, it was

designated pursuant to Fla. Admin. Code

Section 1C-709, as the sponsoring

organization of Amendment 1.

6. Pursuant to Florida Constitution,

Art. XI, sec. 5, and law, Section 100.371

Fla. Stat. and Section 1C-7.10, Fla. Admin.

Code., the proposed Amendment 1 was placed on

no other ballot.

7. In the state court proceeding

initiated by Defendant Martin Fine the

Respondent therein, George Firestone,

Defendant herein, stipulated jurisdiction by

- 60 -

filing a "Consent to Entry of Show Cause

Order" concurrently with Fine's original

petition, even though Pefendant Firestone had

determined not to defend that suit. When

Defendant Firestone then filed his response

indicating he would not defend, the

Intervening Plaintiffs moved to substitute

parties in whole or in part, or to add the

Intervening Plaintiffs as parties respondent,

Whereupon Defendant Fine opposed the motion

to substitute parties.

8. Intervening Plaintiffs’ rights to due

proess under the Fourteenth Amendment to the

United States Constitution were denied

because of the non-adversary and collusary

proceeding in the state courts. Motions and

demands they expressed an intention to make

(motion to dismiss, demand for a jury trial)

were made unavailable to them, without even

any ruling of denial thereon.

- 61 -

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9. Intervening Plaintiffs' rights to

equal protection under the Fourteenth

Amendment to the United States Constitution

were denied them, by the granting of Defendnt

Fine party status in the state courts (when

he alleged he was a "citizen and taxpayer"),

While they were denied party status in the

same case after allegation they’ were

"citizens, taxpayers, and electors” and that

they were among the sponsors of Amendment

1. Procedural rights cannot be granted to

some litigants and arbitrarily and

capriciously denied to others.

10. The decision of the Florida Supreme

Court in Fine v. Firestone on March 27, 1984

was contrary to numerous precedents of that

Court, amounted to “issue exclusion” from the

ballot, and was content-based discrimination

based on the Florida Supreme Court's reading

of Amendment 1 to invidously classify and

- 62 -

restrict Amendment 1 in the pre-election

prior restraint stage as the speech and

assembly and associational and voting rights

(fundamental rights) of the Intervening

Plaintiffs.

COUNT II

1. The Complaint is this action, Count

II, paragraphs 1 through 9 is incorporated

herein as if fully set forth.

2. The allegations of the foregoing

paragraphs hereinabove are incorporated

herein as if fully set forth.

3. Intervening Plaintiffs relied not

only on the Weber v. Smathers, 338 So. 2d 819

(Fla. 1976) and Floridians Against Casino

Takeover v. Let's Help Florida, 363 So. 24d

337 (Fla. 1976) cases, but also numerous

decisions of the Florida Supreme Court that

that court is bound to follow the established

law. Gilliam v. Stewart, 291 So. 2d 593, 594

- 63 -

:

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(Fla. 1974); Hoffman v. Jones, 280 So.2d 431,

433-434 (Fla. 1973): and Dozier v. Wood, 431

So.2d 184, 187 (Fla 1983).

WHEREFORE, Intervening Plaintiffs

incorporate herein and adopt the Complaint

prayer, paragraphs a through f, as if fully

set forth herein.

Dennis M. O'Connor

Dennis M. O'Connor P.A.

c/o School of Law-Box 8087

University of Miami

Coral Gables, Florida 33124

(305) 665-3934

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of

this Intervening Complaint was mailed by

Express Mail May 12, 1984 to :

Jim Smith, Attorney General of

Florida

Attorney for Defendant Secretary of

- 64 -

os inobnsted we

ad)

State George Firestone

Mitchell D. Franks, Chief Trial

Counsel

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32301

(904) 488-1573

and by U. S. first class mail to:

Arthur J. England, Jr., Esquire

Attorney for Defendant Martin Fine

Steel, Hector & Davis

1400 Southeast Bank Building

Miami, Florida 33131

(305) 577-2987

Stuart L. Simon, Irwin Block, and

Burt Hellman, Esquires

Attorneys for Defendant Martin Fine

Fine, Jacobson, Block, Klein, Colan,

- 65 -

and

Simon P.A.

2401 Douglas Road

Miami; Florida 33134

(305) 446-2200

Dennis M. O'Connor, Attorney

o

OPINION

UNITED STATES DISTRICT COURT

FOR NORTHERN DISTRICT OF FLORIDA

- 67 -

Now whether or not that's desirable

as a condition or proviso for -initiative

amendments is not something I'm addressing.

I simply say the Florida Constitution doesn't

contain that proviso. It is a proviso issued

by the Florida Supreme court in the March

27th opinion. And that peg, we think, does

give grounds for appeal for a party in that

case. We can assure you that George

Firestone won't appeal, Martin Fine won't

appeal. And so the denial of whatever Federal

rights our Plaintiffs have esentially is left

in limbo by the March 27th Florida Supreme

Court opinion. The only way their rights

could be vindicated, Your Honor, is by a

Federal Court recognizing that there are

Pederal rights.

THE COURT: And do what?

MR. O*CONNOR: Simply declare that

the Fine versus Firestone proceeding is a

- 68 -

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nullity and, therefore, Amendment 1 remains

on the ballot.

(Discussion off the record)

THE COURT: Okay. Is that it, sir?

MR. O'CONNOR: Direct the Secretary

of State, that is George Firestone, to leave

it on the ballot is essentially what I was

saying. That's all.

THE COURT: All right.

(Discussion off the record)

THE COURT: Under Rule 52 (a) of the

Federal Rules of Civil Procedure, this will

constitute the Court's decision in this case,

reserving to the Court the right to modify

this by subsequent written order either on my

own initiative or as a result of a motion for

reconsideration. But I announce the decision

today because the original Plaintiff in this

case, Rohert E. Gibson, filed this action in

this court on April 27th and asked that this

- 69 -

Court move this case along by advancing it on

the docket and holding an early final

hearing.

So, as I previously told you in this

hearing, that order of mine, April 30th, set

this case for final hearing. And the

Intervening Plaintiffs, of course, came into

the case with full knowledge of the

schedule. I realize, Mr. O'Connor, that the

Attorney General has filed a recent Motion to

Dismiss, Motion for Summary Judgment, and you

have asked for some time to be heard on

that. I would give you a short period of

time to respond, and I would treat that in

this regard, as a motion for reconsideration,

in view of the ruling that I think I must

announce in this case.

Now, this matter is before me

asserting some denial of a party status in

the Florida courts and alleges consequent

- 70 -

denial of several Federally-protected

rights. And so I'm called upon to determine

Whether the Plaintiffs have stated a case

under the situation that would give them

right to be heard in this court.

What this court is not called upon to

determine is whether the proposition 1 is

good or bad. I merely decide the issues that

have been presented before me.

Now this case, then, came on today

for final hearing and I have heard the

evidence that the parties have to present.

The file in this case is already

substantially thick. The parties, I believe,

have set forth their legal positions, I

think, rather clearly and sometimes,

repetitively, so I think I know the legal

position taken by each of you in this case,

Subject, of course, Mr. O'Connor, to your

right to respond to the Defendant's Motion to

- Fi «

Dismiss and Motion for Summary Judgment. But

my view of the evidence and the law as I must

apply it is that the Plaintiffs have not

suffered the denial of any Federally-

protected right. I say that because there is

no property right in hving the amendment

declared constitutional. There is no right

to vote on the amendment. There is no

violation of equal protection of the First

Amendment or substantive due process.

Now, even if this Court were to find

that the Plaintiffs had stated a cause of

action for denial of a Federally-protected

right, which I suggest would be stretching

legal reasoning, the Court is unable to

conclude how the actions of the Defendant

Firestone could have operated to deny these

rights.

Now, any supposed rignt of the

Plaintiffs to participate in the judicial

- 72 «

process was denied by the Florida courts ond

not the Defendant Firestone before this Court

today. Firestone did not oppose Gibson's

intervention as a party in the First District

Court of Appeals. And no claim can lie

against him, that is Firestone, for the DCA

as failure to allow Gibson party status.

Plaintiff Gibson did not even request

party status before the Florida Supreme

Court, nor did he attempt to appeal the

denial of party status to the Florida Supreme

Court.

Now, what the Plaintiff Gibson now

seeks in this court is an appeal of the First

District's denial of party status. And also

the Intervening Plaintiffs have made the same

contention. Plaintiff Gibson has not stated

a causal connection between the actions of

Firestone and the denial of his party

status. I, therefore, feel that this count

= 93 -

could be dismissed for failure to state a

claim.

What is in reality an attempted

appeal of a decision of the highest court of

a sovereign state is brought before me in

this court in the guise of an alleged

infringement by the Florida Supreme Court of

an implied contract between the Defendant

Firestone and the Plaintiff. I think the

simple answer to this is that no such

contract existed. To hold that the Defendant

Firestone, by certifying the form of a

proposed constitutional amendment thereby

entered into a contract to place the

amendment on the ballot, would be hold the

Plorida Supreme Court lacks the power to

review the content of the proposed amendment

for compliance with the State Constitution.

In my judgment, this is an_ untenable

position. There being no contract between

}

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the Plaintiffs and the Defendant Firestone,

there is no set of facts under which

Plaintiff could prevaill, not even a

conceivable set of facts under which the

Plaintiff could prevail.

Even assuming that such a contract

existed, Defendant Firestone, the only

Defendant in this court, is not accountable

for the Florida Supreme Court's supposed

interference with this alleged contract. In

my judgment, Count II should be dismised for

failure to state a claim upon which relief

may be granted.

Now Counsel, I know all of you are

interested in a quick resolution of this

matter. I think you have presented to me

your positions. I have announced to you what

my ruling will be, and that is that the

Plaintiff in this case, both the Plaintiff

Robert Gibson and the Intervening Plaintiffs,

- 7§ -

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Ed Havill, Y. Y¥. Phillips, Jr. George

Schulte, Floridians for Tax Relief, and Limit

Government Committee will take nothing by

this action, and judgment in this case will

be for the Defendant George Firestone. That

will be the Court's ruling.

As I have previously announced, I may

modify this by a written order either

expanding upon or modifying those findings as

announced in the record. But I give it to

you now because whatever action you are going

to ake, I think you need to make your plans,

and I think you are entitled to a quick

ruling by this Court, and I have given it to

you.

I will wait until -- Mr. O'Connor,

When do you suppose you will have that

response in, sir?

MR. O' CONNOR: I can have it in by

Wednesday, Your Honor. Due to the holiday,

- 76 -

it's a little difficult to --.

THE COURT: If you can get it in by

Wednesday or Thursday of next week, that will

be fine.

MR. O'CONNOR: All right.

THE COURT: As I say, I will treat

it, because of the shortness or the late time

in which you were -- Mr. Franks moved on this

thing, I would --.

MR. O'CONNOR: As a motion to

reconsider?

THE COURT: Yes, sir.

Now, does anybody have any questions?

MR. FRANKS: Your Honor, as part of

our motion, we have asked for costs and fees

in this action, and would ask that after Mr.

O'Connor has had an opportunity to respond to

our motion, that you also consider awarding

the Defendants costs and fees to include

attorney fees.

» 7 @

THE COURT: Well, you submit whatever

documentation you have, request and

itemization of those, and I will consider it.

MR. FRANKS: Thank you, sir.

THE - COURT: Anybody have any

questions over here?

MR. MAHORNER: No, sir.

THE COURT: Being nothing further,

this hearing is concluded. Court is

adjourned.

MR. MAHORNER: Judge, we would like

to thank you for hearing this case _ so

quickly. Thank you.

THE COURT: Sure. You are welcome.

(Hearing concluded at 6:06 p.m.)

x kk

= 98 «

UNITED STATES DISTRICT COURT OPINION

- 79 «

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 84-3422

ROBERT E. GIBSON,

Plaintiff - Appellant,

and

ED HAVILL, et al.,

Intervening Plaintiffs-Appellants,

Ve

GEORGE FIRESTONE, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the

Northern District of Florida

(August 28, 1984)

Before: HILL and HENDERSON, Circuit Judges,

and WISDOM*, Senior Circuit Judge.

HILL, Circuit Judge:

*Honorable John Minor Wisdom, U. S. Circuit

Judge for the Fifth Circuit, sitting by

designation.

- 80 -

This appeal touches upon a wide variety

of complex and important issues, one of which

proves to be dispositive of the dispute: did

the district court abuse its discretion in

refusing to enjoin the Florida Secretary of

State from complying with the Florida Supreme

Court's mandate to remove from the upcoming

general ballet a proposed constitutional

amendment that the Florida Supreme Court

fould violative of the state constitution.

We are unable to conclude that the district

court abused its discretion in denying

appellants’ injunctive relief. Hence, we

affirn.

An elucidation of the facts illustrates

the difficult position in which appellants

find themselves and the reasons why the

federal courts are not empowered to remedy

their plight. Appellants expended

substantial sums in organizing support for a

- 81 -

proposed amendment to the Florida

1 After acquiring the necessary

Constitution.

signatures of 600,000 state electors,

appellants submitted their citizens

initiative petition to the Florida Department

of State for verification. The Secretary of

State, finding that the petition satisfied

the format requirements of state law, issued

a Certificate of Ballot Position to the

proposed amendment, certifying it for

placement on the November 1984 general

election ballot.

Shortly after the Secretary of State

certified the amendment, an action was filed

in the Florida District Court of APpeals

seeking its removal. The suit named

lthe proposed amendment is set out and

discussed more fully by the Florida Supreme

Court in its decision holding the amendment

unconstitutional. See Fine v. Firestone, 448

So.2d. 984 (Fla. 1984).

2Martin Fine instituted the action in

- 82 -

Secretary Firestone as the defendant in

interest and requested the Florida appellate

court to issue a writ directing Secretary

Firestone to remove the proposed amendment,

primarily on the grounds that the proposal

violated the state constitution's single-

subject requirement for constitutional

amendments. See Fine v. Firestone, 443

So.2d. 253, 256-57 (Fla. Dist. Ct. App.

1983).

Appellants then sought to intervene in

the proceedings before the Florida District

Court of Appeal. Arguing that Secretary

Firestone has publicly voiced opposition to

the Florida appellate court. Although

appellants named Fine as a defendent in their

federal court suit, the district court

dismissed Fine shortly before the final

hearing on Secretary Firestone's motions to

dismiss and for summary judgment. Appellants

have not challenged that ruling; the record

does not otherwise disclose the nature of

Fine's interest in the outcome of this

litigation.

- 83 -

the proposed amendment and had filed a

response disclaiming any intention of

Supporting the merits of the_ proposal,

appellants asserted their right to intervene

as the real parties in interest. Although

Secretary Firestone did not oppose

appellants’ motions to intervene, the state

appellate court denied them party status but

granted them lave to appear as amici curiae.

The Florida District Court of Appeal

ultimately ruled that extraordinary relief

was not available to direct the Secretary to

remove the proposed amendment. Fine _ v.

Firestone, 443 So.2d. at 255-56. However,

the appellate court elected to certify the

case to the Florida Supreme Court because

questions of great public importance were

presented.?

3The appellate court opined that the

proposed amendment was sound under Florida

law. In particular, the court reasoned that

- 84 -

The Florida Supreme Court accepted

jurisdiction and ordered the proposed

amendment removed from the general ballot.

Fine v. Firestone, 448 So.2d 984, 993 (Fla.

1984). The court held that mandamus was an

appropriate means for testing the

constitutionality of the proposal, id. at

987, and that the amendment violated the

state constitution’s prohibition against

multiple-subject constitutional amendments,

id. at 987-93. Significantly, the court

addressed only the state constitutional

4

issue* and rested its decision entirely on

its reading of article XI, section 3 of the

the proposal was not subject to attack under

the single-subject provisions of the state

constitution, see Fla. Const. art. XI,

section 3, because the Florida Supreme Court

had indicated that the provision was to be

read broadly and with a pragmatic approach.

See 443 So.2d at 256-57.

Court did not consider whether the proposal

ran afoul of federal due process standards. See Id. at

986 n.l. a amre-ss

- 85 -

worn |e La Na AIOE Ty en 1 es Sa

Florida Constitution. Id. at 987.°

Appellants then filed the present suit

in the United States District Court for the

Northern District of Florida claiming that

the state proceedings in which they were

refused leave to intervene deprived them of

their right to vote, violated their rights to

due process and equal protection and impaired

their contract rights under art. I, section

10 of the U.S. Constitution. The complaint

alleged jurisdiction under 28 U.S.C. section

1331(a) and 1343(3), 42 U.S.C. section 1983

and art. I, section 10 and the First and

Fourteenth Amendments of the U. S.

Constitution, and in its prayer for relief,

requested the district court to grant an

>While appellants did not seek leave to

appear before the Florida Supreme Court,

perhaps because the appellate court upheld

the proposal, they did proceed as amici at

the behest of the court. Thus, the state

courts had the benefit of appellants’

arguments throughout the state proceedings.

- 86 -

"injunction against the Secretary('s)

decertifying Proposition 1 or directing its

recertification." The district court granted

appellants’ request for an advanced final

hearing on their motior for injunctive relief

and, after conducting such hearing, held that

appellants had failed to state a claim on

which relief could be granted. Appellants

now appeal.

Our task is two-fcid. First, we must

consider whether the allegations stated in

the complaint are sufficient to invoke the

limited jurisdiction of the federal courts.

Second, we must decide whethe appellants have

stated a claim on which relief can be granted

such that the district court abused its

discretion by denying injunctive relief on

that ground. To summarize our conclusions,

we hold that the complaint properly invoked

the subject matter jurisdiction of the

- 67 -

federal courts; however, appellants have not

stated a claim on which relief could be

granted. Thus, the denial of injunctive

relief does not constitute an abuse of

discretion.

I. JURISDICTION

Appellee questions whether the federal

courts have jurisdiction to consider the

claim stated by appellants’ complaint.

Federal subject matter jurisdiction is

determined by the face of the well-pleaded

complaint. Phillips Petroleum Co. yv. Texaco,

Inc., 415 U.S. 125, 127-28 (1974); Gully v.

First National Bank in Meridian, 299 U.S.

109, 112-13 (1936). Further, all well-

pleaded allegations must be taken as true for

purposes of determining the existence of

federal jurisdiction. See Goosby v. Osser,

409 U.S. 512, 521 n.7 (1973) (citing

authorities).

- 88 -

Here, appellants have alleged a

deprivation of their first amendment right to

vote as well as their fourteenth amendment

rights to due process and equal protection.

See Record on Appeal at 6 and 80. # These

allegations, whether sufficient to state a

claim for relief, are adequate to invoke

federal subject matter jurisdiction. See

Goosby v. Osser, 409 U.S. at 521-22. Thus,

we find that appellants have stated a claim

that is cognizable under 28 U.S.C. section

1343 (3), the jurisdictional counterpart of

42 U.S.C. section 1983.®

II. INJUNCTIVE RELIEF

The relief requested of the district

court was an order "granting an injunction

®Because both parties have impressed

upon this court the need for an early

disposition of this appeal, we abbreviate our

discussion of the jurisdictional issue and

proceed to consider the merits of appellants'

claims.

= 89 -

against the Secretary('s) decertifying

Proposition 1 or directing its

recertification.” Record on Appeal at ‘i*

7 Appellants also asked the district

court to “declare that (their) right to vote

on Proposition 1 cannot be affected by straw

man litigation." Record on Appeal at 11. In

essence, appellants claimed that the state

proceedings were non-adversarial, because

Secretary Firestone declined to defend the

merits of the proposed amendment, and,

therefore, that the Florida Supreme Court

decision should be declared void. See Record

on Appeal at 152-54.

In a quite different context, this court

has recognized that principle that a judgment

produced by nonadversarial proceedings is a

mere form and not binding on other courts.

See Aerojet-General Corp. v. Askew, 511 F.2d

710, 720-21 (5th Cir. 1975) (analyzing

precedents). Aerojet-General, however,

involved state proceedings instituted to

avoid the effect of a federal court decision

adjudicating title to land in Florida.

Noting that the Deputy Attorney General for

the state had admitted the nonadversarial

nature of the state court proceedings, the

Fifth Circuit held that it was not obligated

to follow the state court ruling in favor of

the federal court defendant. Id. at 7821.

The present case, unlike Aerojet-General does

not turn on whether the prior state court

decision is entitled to res judicate

effect. Appellants were not parties to the

proceedings in state court and cannot be

bound by any judgment rendered there.

- 90 ~

The Griffin Court analogized to Briscoe

v. Kusper, 435 F.2d. 1046 (7th Cir. 1970).

In Briscoe candidate nominating papers for

city alderman elections were invalidated by

the Chicago Board of Election Commissioners

on the day before the scheduled election.

The commissioners struck certain nominations

on the ground that they contained improper

duplicate signatures and failed to include

middle initials for signatures on_- the

accompanying petitions. In doing so, the

commissioners announced a sharp break from

Absent an argument that the district

court was bound by the Florida Supreme Court

decision, appellants had no_ grounds for

requesting the court to declare tha decision

void. Federal courts have no appellate

review authority over judgments of state

courts. See, e.g., Chicago, R. I. & P. R. R.

v. Stude, 346 U.S. 574, 580-81 (1954);

Reynolds v. Georgia, 640 F.2d. 702, 703 (5th

Cir.), cert. denied, 454 U.S. 865 (1981).

For this reason, appellants could only

request injunctive relief; no declaration

that the Florida Supreme Court's decision was

void was available.

- 9] -

prior policy and effectively precluded the

candidacies of those who had relied on

earlier Board interpretations. Under these

circumstances, the Seventh Circuit held that

candidates and voters had been

unconstitutionally denied the right’ to

participate in aldermanic elections by the

last minute policy shift. The court declared

those practices violative of the first and

fourteenth amendments and enjoined the future

use of such procedures. Id. at 1048, 1058.

Appellants argue that Griffin and

Briscoe are indistinguishable from the

present case, but we find two important

distinctions. First, the federal rights

vindicated by the First

- 92 -