Petition for Writ of Certiorari — Sibley v. Sibley

Supreme Court. U.S

FILED —

041411 APR 19 2009

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IN THE SUPREME COURT OF THE UNITED STATES

MONTGOMERY BLAIR SIBLEY,

Petitioner,

vs.

BARBARA SIBLEY,

Respondent.

On Petition for Writ of Certiorari to

the Florida Third District Court of Appeal

Petition for Writ of Certiorari

Montgomery Blair Sibley

8511 Ziggy Lane

Gaithersburg, Maryland 20877

(202) 478-0371

Counsel for Petitioner

aks

QUESTIONS PRESENTED FOR REVIEW

The Florida Third District Court of Appeal — the highest

court of Florida in which a decision could be had in this matter

— has now held that (i) it can invoke a waiver argument to

determine an appeal which was not argued and from which

relevant record evidence was excluded by that court and (ii)

Petitioner can be barred from appearing pro se before that court.

Accordingly, presented for review are three questions:

WHETHER the due process requirements of “notice” and

“an opportunity to be heard” prohibit a state appellate court

from invoking a waiver argument to determine an appeal when

that argument was (i) not raised in the briefs or at oral

argument before the court and (ii) failed to consider relevant

record evidence excluded by the state appellate court?

WHETHER the Florida Third District Court of Appeal has

violated Petitioner’s fundamental right to access to court by its

opinion which fails to find any instance of Petitioner filing

frivolous, abusive or incomprehensible pleadings?

WHETHER, the Florida Third District Court of Appeal

has violated Petitioner’s fundamental right to access to federal

court by sanctioning him “for pursuing his right to federal-court

remedies” in violation of Donovan v. City of Dallas, 377 U.S.

408, 413 (1964)?

_ =

TABLE OF CONTENTS

Cuseations PresemGnd sion cod Ce ah eee es eeeeebens i

Table of AmOeMnes oo 6k ic dd eee awe eween iv

Opinions Below os oa. os aah ec eee eee 1

SACO. 6 oon ck aN On See ee eee eee ee 1

Constitutional Provisions, Statutes and Regulations Involved

a 06 4 6 Whi Sine TA dl oe oo a a 1

Statement of Ge Cast 6.6.6.4 SAGs abe a eue ew eeueaves 2

Reason for Granting the Writ ... 4.1... sc ccccsecuccscess 9

I. Petitioner Was Denied Notice and An

Opportunity to Be Heard on the Issue of Waiver

of the Seventh Motion to Disqualify ............. 9

II. The Right Of Access To The Courts To Seek Legal

Remedy Is A Fundamental Right Secured By The

Due Process Glent s4Ss oS ene oun eee 10

A. A Litigant Must Egregiously

Trespass Upon the Right To

Access Before That Right May Be

lin «<a. cab ebatewepeseaseeweks 14

B. The Florida Third District Court

of Appeal Did Not Make the

Requisite Findings of Fact That

Petitioner's Appellate Matters

Were Frivolous, Abusive or

ERCOMAOIITIIND cas. nc ccecnecdensten 18

- iii -

il. Petitioner May Not Be Sanctioned In State Court

for Asserting his Federal Rights ...............

Conclusion

eh e668 O28 e608 8406666660606 86.86068686868688006 86 6 86 68.6

-iv-

Table of Authorities

Cases

Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 76

LBs. BR AT7, BS. Ge: BOGE Cee kk c kaa cvaccedcca 13

Blake v. McClung, 172 U.S. 239, 249, 43 L. Ed. 432, 19 S. Ct.

SPs cc whens Waban enema tee been 13

Boddie v. Connecticut, 401 U.S. 371, 380-381 (1971) .... 14

California Motor Transport Co. v. Trucking Unlimited, 404 U.S.

508, 513, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972) ....... 13

Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985) 24

Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148, 52 L.

OG. ROR, BES. GE DOG 6b awk Sek eave de ee ecns 13

Donovan v. City of Dallas, 377 U.S. 408, 413 (1964) .... 23

Green v. Carlson, 649 F.2d 285, 287 (CA5 1981) ....... 16

In re Jessie McDonald, 489 U.S. 180, 181 (1989) ....... 14

In re Martin-Trigona, 737 F.2d 1254, 1261 (CA2 1984)

iednvkne nse sub eke ewan bsaereeeeea eer ekenee 16, 18

In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982) ......... 24

Ingraham v. Wright, 430 U.S. 651, 673 (1977) ......... 11

Judd v. United States Dist. Court for Western Dist. of Texas, 528

8 eT Bre rr a ety ra ary erie aes 14

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) .. 11

-V-

Martin v. Dist. of Columbia Ct. of Appeals, 506 U.S. 1 (1992)

obec naceonsen dvs eadsnbbastend haga dt ewe eee ees 15

su Sader awwki aids ee eal eee eae ae 11

Murray v. Giarratano, 492 U.S. 1, 11, 106 L. Ed. 2d 1, 109 S. Ct.

ri, eS LS). PPP eEeCT Terie eet sr tc 14

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) . 12

Pavilonis v. King, 626 F.2d 1075, 1079 (Ast Cir.), cert. denied,

449 TLS. SIDCIGOO) ak i va wawwnn ea Shae 6 Tete es 24

Pennsylvania v. Finley, 481 U.S. 551, 557, 95 L. Ed. 2d 539, 107

Se, 1000 CIS) oc cd's eck esg ie eter 14

Procup v. Strickland, 792 F.2d 1069 (1 1™ Cir. 1986) ..... 15

Ruderer v. United States, 462 F.2d 897, 899 (8th Cir.), cert.

denied, 409 U.S. 1031(1972) .......------e+eeeeeee 24

Safir v. United States Lines, Inc., 792 F 2d. 19 (2™ Cir. 1986)

. om wis'ah dod wa Gata ghalarea a aaah eee eee 16-18

Schooley v. Judd, 149 So.2d 587, 590 (Fla.App. 2 Dist. 1963)

ck cckance bbtnen ii 4 UE 20

S.E.C. v. Chenery Corp., 318 U.S. 80; 63 S.Ct. 454; 87 L.Ed. 626

ts.) PECL ee 10

Slaughter-House Cases, 16 Wall. 36, 79 tye Pewee ree 13

Walters v. National Assn. of Radiation Survivors, 473 U.S. 305,

335, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985) ......--- 14

Wolff v. McDonnell, 418 U.S. 539, 576, 41 L. Ed. 2d 935, 94 S.

Ce. FIG CIM «4 cascade dec kta eee 14

Other Authorities

RGrgG GMED 2c cccccocccccccesccceesesocscsses 10-12

Maghead SS. sos cccctectcccteciscsssate aye 12

Dick Howard, 7he Road from Runnymede 119-25 (1968) . 12

William Blackstone, Commentaries on the Laws of England, 141

th, ‘PPPVETerPrrrTerrrrrr re 12

David Schuman, 7he Right to a Remedy, 65 Temp. L. Rev.,

1107, 12018 a. 25 CISPR) oo secccidcdesdcenaesueuane 13

2B USS. GUAGE oo cicewssdesidcscasanneueaeene 23

Rules of Florida Appellate Procedure, Rule 9.410 ....... 20

=

PETITION FOR WRIT OF CERTIORARI TO THE FLORIDA

THIRD DISTRICT COURT OF APPEAL

Petitioner, Montgomery Blair Sibley, prays that a writ of

certiorari issue to review the judgment and opinion of the

Florida Third District Court of Appeal entered on November 3,

2004, which the Florida Supreme Court declined to review citing

lack of jurisdiction on April 5, 2005. Review is mandated as the

Florida Third District Court of Appeal has (i) far departed from

the requisite course of due process, thus denying Petitioner’s

rights, privileges and/or immunities under the United States

Constitution and (ii) denied to Petitioner his fundamental right

to access to court for redress of his grievances.

OPINIONS BELOW

The November 3, 2004, decision of the Florida Third

District Court of Appeal is reprinted in the appendix hereto,

Appendix-2. The December 8, 2004, panel decision of the Third

District Court of Appeal is reprinted in the appendix hereto,

Appendix-22. The December 8, 2004, En Banc decision of the

Third District Court of Appeal is reprinted in the appendix

hereto, Appendix-24. The April 5, 2005 decision of the Florida

Supreme Court declining to accept jurisdiction is reprinted in the

appendix hereto, Appendix-235.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257.

CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES,

ORDINANCES AND REGULATIONS INVOLVED

U.S. Constitution, Amendment XIV

Section 1. All persons born or naturalized in the United

2

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

The original action was upon a petition for dissolution of

marriage upon which a final judgment of dissolution was

granted on September 20, 1994.

The course of proceedings relevant to this petition

commenced on April 26, 2002, when Respondent made a motion

to have Florida Circuit Court Judge Lando quantify the attorney

fees ordered by the Third District Court of Appeal in cases

numbered 3D01-2173 and 3D02-102 and in the federal court

case styled Sibley v. Sibley, Case No.: 01-2770-CIV-Huck. ~—

Prior to any hearing on that motion, on August 20, 2002,

Petitioner filed his “Seventh Motion to Disqualify” Judge Lando.

Judge Lando has never ruled upon the “Seventh Motion to

Disqualify”. On August 27, 2002, Judge Lando commenced and

concluded an evidentiary hearing without benefit of a court

reporter on Respondent’s April 26, 2002, motion for attorney

fees without issuing a ruling. Significant for this petition, during

the hearing Petitioner orally advised Judge Lando of the pending

and unresolved “Seventh Motion to Disqualify” filed seven days

earlier. She refused to rule upon it but instead continued the

hearing. ;

When Petitioner attempted to raise the pending

“Seventh Motion to Disqualify” at a hearing before Judge Lando

held on November 22, 2002, Judge Lando herself precluded

Petitioner from raising the issue when she misrepresented on the

x. -

record that she was briefly adjourning the hearing so that

Petitioner could consult with his counsel to raise whatever issues

were unresolved. Instead, without resuming the hearing, she

incarcerated Petitioner without re-convening the hearing.

Some 191 days later, on March 6, 2003, Judge Lando

entered her “Order Granting Motion for Attorney Fees” from the

August 27, 2002, hearing — again without addressing the still-

pending “Seventh Motion to Disqualify” her. In the intervening

191 days, both Petitioner and the Florida Third District Court of

Appeal provided notice to Judge Lando that the “Seventh Motion

to Disqualify” was pending and unresolved before her.

On June 19, 2003, a hearing was held before Judge

Wilson — who had replaced Judge Lando on January 30, 2003,

as the assigned Judge to Division 19 to which the matter is

assigned — on Respondent’s motions to compel payment of

attorney fees and contempt. On July 1, 2003, Judge Wilson -

entered his order from the June 19, 2003, hearing entitled

“Order on Petitioner/Former Wife’s Motion to Compel Payment

of Attorney Fees” (i) holding Petitioner-here in contempt, and

(ii) directing that Petitioner-here pay the $33,119.70 ordered by

Judge Lando on March 6, 2003, within 60 days or Father would

be sanctioned, including being incarcerated.

On August 4, 2003, Petitioner filed his notice of appeal

of Judge Wilson’s July 1, 2003, order finding Petitioner in

contempt. That appeal was assigned Case Number: 3D03-2083

and it is from this case that this petition arises.

Importantly, in preparing the record on appeal for Case

Number: 3D03-2083, Petitioner moved to settle the record of the

hearing held before Judge Lando on August 27, 2002, at which

he raised the issue of the pending and unresolved “Seventh

Motion to Disqualify” Judge Lando. “The trial court declined to:

approve the statement of proceedings. [Petitioner] moved to

compel Judge Lando (who conducted the August 27, 2002

Ye

hearing) to settle the statement of proceedings. See Fla. R. App.

P. 9.200(b) (4). [The Florida Third District Court of Appeal]

treated the former husband's motion to compel as a petition for

writ of mandamus and, after receiving a response, denied it.”

Appendix-9, infra.

Ignoring that Judge Lande had been apprised of the

pending Seventh Motion to Disqualify her (i) on August 27,

2002, and (ii) four times during September 2002 by Petitioner

and the Florida Third District Court of Appeal and (iii) refused

to permit notice to her at the November 22, 2002 hearing before

her, the Florida Third District Court of Appeal materially

misrepresented the record on appeal and held:

The former husband argues that [Judge Lando]

should not have heard the motion because at that

time of the hearing the former husband's seventh

motion to disqualify the trial judge was pending.

We reject the former husband's argument, as the

point has been waived. The former husband

correctly argues that when a motion for

disqualification or recusal is pending, it is the

court's duty to rule on that motion before ruling

on anything else. See Fuster-Escalona Vv.

Wisotsky, 781 So.2d 1063 (Fla. 2000). Further,

it is not necessary for the movant to request a

hearing. See id. However, disqualification

motions cannot be used for "gotcha" litigation

tactics. See Salcedo v. Asociacion Cubana, Inc.,

368 So.2d 1337, 1339 (Fla. 3d DCA 1979). In

this case, the former husband and his counsel

personally attended the hearing on the

Emergency Motion. Nowhere in the transcript

did they object that the hearing could not

proceed until the court ruled on the pending

motion for disqualification. A party cannot go to

a hearing knowing that he has filed a motion for

=

disqualification, make no mention of the pending

motion, participate in the hearing, and then after

receiving an unfavorable ruling, argue that the

court must start over because there was a

pending motion for disqualification. Appendix-6.

Additionally, during the pendency of the 3D03-2083,

Respondent’s counsel moved for sanctions stating:

Undersigned counsel is no longer willing to sit by

and watch this Court’s limited resources be

consumed by frivolous litigation, allow

Respondent to pay funds to defend herself from

Appellant’s frivolous appeals and to allow his

calendar to be placed in shambles as a result of

the necessary filing of countless responses to

Appellants appellate filings. Sanctions must be

entered to limit Appellant’s frivolous, baseless

litigation pattern. Respondent requests that this

Court refuse to accept further appeals from

Appellant unless he is represented by counsel

licensed to practice law in the State of Florida”

(Respondent’s Motion for Sanctions, page 2).

In response, Petitioner filed his response to the motion

for sanctions on December 29, 2003. On March 9, 2004,

Petitioner appeared to orally argue case Number: 3D03-2083

before a three-judge panel of that court which panel included

Judges Juan Ramirez, Jr. and David L. Levy.' A subsequent oral

Judges Juan Ramirez, Jr. and David L. Levy

subsequently disqualified themselves from 3D03-2083 upon

Petitioner’s allegations of improper ex parte communications

with Respondent’s counsel. This matter pends before this Court

and is assigned Case Number: 04-1309. Additionally, the

propriety of Judges Juan Ramirez, Jr. and David L. Levy’s ex

ee

argument was held before a new panel of judges: Gerald B.

Cope, Jr., Melvia B. Green and David M. Gersten. In both his

written response and at both oral arguments, Petitioner raised

his fundamental and constitutional right to access court as

grounds prohibiting the relief sought by Respondent. Moreover,

the failure to make any finding of frivolousness and failure to

give proper notice were also raised by Petitioner.

In its November 3, 2004, decision granting the motion

for sanctions, the Third District stated in pertinent part:

The former wife contends that the husband's

appeals have repeatedly been shown to be

without merit and have constituted an abuse of

the legal process. Upon consideration of the

motion, the former husband's response filed

January 5, 2004, and after review of this court's

files, we agree. . . .The former husband has

served as an unending source of vexatious and

meritless litigation. This has caused needless

consumption of resources by the court system

and needless expense to the former wife. Awards

of attorney's fees have not served as a deterrent,

as the former husband has not paid them. We

conclude that the standards of Lussyare met. We

have considered the criteria set forth in the Safir

decision and conclude that those are met as well.

We therefore prohibit the former husband from

further self-representation in this court.

communications with Respondent’s counsel pends before the

Florida Supreme Court as Case No.: SC04-2129 as an ethics

complaint against Judges Juan Ramirez, Jr. and David L. Levy

made by Petitioner. These matters explain the motive of the

Third District Court of Appeal’s retaliatory opinion against

Petitioner in 3D03-2083.

Appendix-1 7.

On November 12, 2004, Petitioner made a motion for

rehearing challenging the panel in 3D03-2083 to cite even one

case brought before it in which Petitioner was deemed to have

filed -either by the Court or Respondent — a frivolous, abusive or

incomprehensible pleading. Notably, in denying the motion for

rehearing on December 8, 2004, the panel was unable to so do.

In the interim, on November 26, 2004, Petitioner filed an

action in the United States District Court for the Southern

District of Florida against the panel judges, Gerald B. Cope, Jr.,

Melvia B. Green and David M. Gersten in 3D03-2083 and the

Clerk of the Florida Third District Court. That case was assigned

Case Number: 04-22984-Civ-Jordan. Contemporaneously with

the filing of that suit, Petitioner moved for Emergency Injunctive

Relief to stop the Clerk of the Florida Third District Court of

Appeal from following the orders of the panel judges, Gerald B.

Cope, Jr., Melvia B. Green and David M. Gersten (i) barring

Petitioner from further filing in that court and (ii) dismissing the

pending matters in which Petitioner was the appellant,

petitioner or counsel to the appellant or petitioner.

On December 8, 2004, the Florida Third District Court of

Appeal granted in part Petitioners motion for rehearing

permitting only that Petitioner could file his “Notice to Invoke

Discretionary Jurisdiction of the Florida Supreme Court”. A copy

of that December 8, 2004, panel decision of the Third District

Court of Appeal is reprinted in the appendix hereto, Appendix-

22. Additionally, on December 8, 2004, the Florida Third

District Court of Appeal, sitting en banc denied Petitioner’s

motion for rehearing en banc. A copy of that opinion is

reprinted in the appendix hereto, Appendix-24.

On March 5, 2005, Plaintiff's appeals in (i) Case Number

3D04-294 (Second Son’s intervention appeal), (ii) Case Number

3D04-803 (Appeal of the March 27, 2004, Judge Wilson order

-8-

limited Father’s right to appeal) and Case Number 3D04-1266

(Appeal of order disbursing funds upon ex parte

communication) were dismissed by the Florida Third District

Court of Appeal based upon its order in Case No. 3D03-2083.

Hence, appellate review of those matters has terminated in the

Florida Courts as the Florida Supreme Court has no jurisdiction

to review dismissed appeals without written explanation.

Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)

Additionally, on April 5, 2005, the Florida Supreme

Court decline to review the Florida Third District Court of

Appeal’s holding in Case No. 3D03-2083. A copy of that

decision of the Florida Supreme Court declining to accept

jurisdiction is reprinted in the appendix hereto, Appendix-25.

On April 12, 2005, after oral argument but denying

Petitioner an evidentiary hearing, Judge Jordan issued his Order

Denying the Motion for Temporary Injunction. A copy of the

April 12, 2005 Order Denying Motion for Temporary Injunction

is reprinted in the appendix hereto, Appendix-26. Primarily,

Judge Jordan denied the motion finding that he lack jurisdiction

under the so-called Rooker-Feldman doctrine.

a.

REASONS FOR GRANTING THE WRIT

There are three compelling reasons for granting the writ

to review the decision of the Florida Third District Court of

Appeal in Case Number 3D03-2083.

First, due process considerations, bound upon Florida by

the Fourteenth Amendment, require notice and an opportunity

to be heard prior to a decision being rendered by a court. Here,

Petitioner was not afforded that opportunity as neither the

appellate briefs nor the oral arguments raised the issue of

“waiver” of the Seventh Motion to Disqualify, and accordingly,

the Third District Court of Appeal’s invocation of that doctrine

without affording Petitioner and opportunity to be heard cannot

stand.

Second, Petitioner’s fundamental right to access to court

_ for redress of his grievances cannot be curtailed — as the Florida

Third District Court of Appeal has done here — without a

showing of frivolous, abusive or incomprehensible behavior by

a litigant.

Third, the Florida Third District Court of Appeal may not

sanction Petitioner — as it has done here — “for pursuing his right

to federal-court remedies” in violation of Donovan v. City of

Dallas, 377 U.S. 408, 413 (1964).

I. Petitioner Was Denied Notice and An

Opportunity to Be Heard on the Issue of Waiver

of the Seventh Motion to Disqualify

This Court has recognized that an appellate court cannot

sit as a jury and determine matters not noticed or raised on

appeal. In S.E.C. v. Chenery Corp., 318 U.S. 80; 63 S.Ct. 454;

87 L.Ed. 626 (1943), this Court held:

In confining our review to a judgment upon the

2

validity of the grounds upon which the

Commission itself based its action, we do not

disturb the settled rule that, in reviewing the

decision of a lower court, it must be affirmed if

the result is correct ‘although the lower court

relied upon a wrong ground or gave a wrong

reason.' Helvering v. Gowran, 302 U.S. 238, 245,

58 S.Ct. 154, 158, 82 L.Ed. 224. The reason for

this rule is obvious. It would be wasteful to send

a case back to a lower court to reinstate a

decision which it had already made but which

the appellate court concluded should properly be

based on another ground within the power of the

appellate court to formulate. But it is also

familiar appellate procedure that where the

correctness of the lower court's decision

depends upon a determination of fact which

only a jury could make but which has not been

made, the appellate court cannot take the place

of the jury. (Emphasis added).

Here, this is exactly what the Third District Court of Appeal has

done by denying to Petitioner “an opportunity to be heard” on

whether there has been a “waiver” of the Seventh Motion to

Disqualify Judge Lando. Indeed, this failure to accord Petitioner

such an opportunity was further compounded when the Florida

Third District Court of Appeal refused to permit Petitioner to

introduce evidence in the record which would have factually

precluded the finding of a “waiver”.

II. The Right Of Access To The Courts To Seek

Legal Remedy Is A Fundamental Right Secured

By The Due Process Clause

The right of access to the courts to seek judicial remedy

is a fundamental bedrock principle of the English common law

rooted in the Magna Carta. It is among the most important of

the rights and liberties of the common law that Americans

guaranteed for themselves under the Due Process Clause as well

as the First Amendment.

As Justice Powell observed:

The Due Process Clause of the Fifth Amendment,

later incorporated into the Fourteenth, was

intended to give Americans at least the

protection against governmental power that they

had enjoyed as Englishmen against the power of

the Crown. The liberty preserved from

deprivation without due process included the

right “generally to enjoy those privileges long

recognized at common law as essential to the

orderly pursuit of happiness by free men.”

Ingraham v. Wright, 430 U.S. 651, 673 (1977), quoting Meyer

v. Nebraska, 262 U.S. 390, 399 (1923).

Among those essential privileges is the right to obtain

redress from the courts. Early in our nation's history, Chief

Justice Marshall declared:

{[T}he very essence of civil liberty certainly

consists in the right of every individual to claim

the protection of the laws, whenever he receives

an injury. One of the first duties of government

is to afford that protection.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). This

right of access to justice is so fundamental that the U.S. Supreme

Court has held that the Fourteenth Amendment includes “the

duty of every State to provide, in the administration of justice,

for the redress of private wrongs.” Missouri Pacific Ry. Co. v.

Humes, 115 U.S. 512, 521 (1885).

se.

The origins of that right, and its exercise free from

improper interference by the judiciary — as the Florida Third

District Court of Appeal has done to Petitioner here — are firmly

rooted in the Magna Carta of 1215. The barons at Runnymede,

determined to end the king's manipulation of the courts for his

own purposes, particularly through the sale of writs, compelled

King John to vow in Chapter 40: “To no one will we sell, to no

one will we refuse or delay, right or justice.” The re-issued

Magna Carta in 1225 combined this provision with the seminal

due process guarantee of Chapter 39 into Chapter 29. In the

words of Sir Edward Coke, Chapter 29 guaranteed that, “every

subject of this realme, for injury done to him...by any other

subject... without exception, may take his remedy by the course

of the law, and have justice, and right for the injury done to him,

freely without sale, fully without any deniall, and speedily

without delay.” Edward Coke, The Second Part of the Institutes

of the Laws of England 55 (London, E.&R. Brooke 1797).

Nearly everything the drafters of the United States

Constitution understood of this principle was learned from Coke.

His explication of the Magna Carta, first published in 1642, was

widely read by the Founding generation. See Pacific Mut. Life

Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring

in judgment) (“The American colonists were intimately familiar

with Coke”); Dick Howard, The Road from Runnymede 119-25

(1968).

Moreover, Lord Coke's explication of Chapter 29 was

restated with approval by William Blackstone, whose treatise

was also widely studied by 18th Century Americans. William

Blackstone, Commentaries on the Laws of England, 141 (1765).

Coke elevated the Magna Carta to its status as the source of all

the fundamental principles of the common law, in which all the

rules familiar to common law lawyers are grounded. Coke

vigorously asserted the primacy of these principles as a

limitation on the power of all government.

«i.

Intervention to close the courthouse doors — as the

Florida Third District Court of Appeal has done to Petitioner — to

prevent litigants from walking through them threatens the

ability of the judicial branch to perform its constitutional

function.

The degree to which this right is deemed fundamental to

the American system of justice is reflected in the fact that 38

states — Florida notably among them at Florida Constitution,

Article I, §2 — have incorporated in their state constitutions

provisions guaranteeing the right of access and remedy

patterned after Coke's language. See David Schuman, The Right

to a Remedy, 65 Temp. L. Rev., 1197, 1201 n. 25 (1992) (listing

state constitutional provisions).

Although the U.S. Constitution does not contain a similar

express guarantee, the adoption by the First Congress of the

Fifth Amendment’s guarantee of due process was an “affirmation

of Magna Charta according to Coke.” Haslip at 29 (Scalia, J.,

concurring). This Court has left no doubt that access to the

courts is a fundamental right guaranteed by the U.S.

Constitution:

(i) The Article IV Privileges and Immunities

Clause - Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142,

148, 52 L. Ed. 143, 28 S. Ct. 34 (1907); Blake v. McClung, 172

U.S. 239, 249, 43 L. Ed. 432, 19 S. Ct. 165 (1898); Slaughter-

House Cases, 16 Wall. 36, 79 (1873);

(ii) The First Amendment Petition Clause - Bi//

Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 76 L.

Ed. 2d 277, 103 S. Ct. 2161 (1983); California Motor Transport

Co. v. Trucking Unlimited, 404 U.S. 508, 513, 30 L. Ed. 2d 642,

92 S. Ct. 609 (1972);

(iii) | The Fifth Amendment Due Process Clause

- Murray v. Giarratano, 492 U.S. 1, 11, 106 L. Ed. 2d 1, 109 S.

. 44.

Ct. 2765, n. 6 (1989) (plurality opinion); Wa/ters v. National

Assn. of Radiation Survivors, 473 U.S. 305, 335, 87 L. Ed. 2d

220, 105 S. Ct. 3180 (1985);

(iv) The Fourteenth Amendment Equal

Protection Clause - Pennsylvania v. Finley, 481 U.S. 551, 557,95

L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and

(v) The Fourteenth Amendment Due Process

Clause - Wolff v. McDonnell, 418 U.S. 539, 576, 41 L. Ed. 2d

935, 94 S. Ct. 2963 (1974); Boddie v. Connecticut, 401 U.S.

371, 380-381 (1971).

A. A Litigant Must Egregiously

Trespass Upon the Right To

Access Before That Right May Be

impinged

Against this bedruck principal of fundamental right of

access to the courts for redress, a limited exception has evolved

in cases in which there is a showing of egregious abuse of the

judicial process by a litigant. Those limited exception spring

from instances when the litigant’s pleadings are either (i)

frivolous, (ii) abusive or (iii) incomprehensible.

At the federal level, that level of egregious abuse has

been recognized when a petitioner filed “4 appeals, 33 petitions

for certiorari, 99 petitions for extraordinary writs, 7 applications

for stays and other injunctive relief, and 10 petitions for

rehearing” all of which this Court recognized were “frivolous

requests.” /n re Jessie McDonald, 489 U.S. 180, 181 (1989).

Likewise, in Judd v. United States Dist. Court for Western Dist.

of Texas, 528 U.S. 5, 6 (1999) this Court entered sanctions when

“Judd had filed six petitions for certiorari, all of which were both

frivolous and had been denied without recorded dissent. Since

the Rule 39.8 denial, Judd has filed four petitions for certiorari,

all of which were also frivolous and denied without recorded

ce

dissent. The instant petition for certiorari thus brings Judd's

total number of frivolous filings to 12.” (Emphasis added).

indeed, a clear finding of “frivolousness” is at the heart of the

extreme sanction of limited access to court. Accord: Martin v.

Dist. of Columbia Ct. of Appeals, 506 U.S. 1 (1992)(“{A]ll of

Martin's filings, including those before us today, have been

demonstrably frivolous.”)

At the Circuit Court level, in Procup v. Strickland, 792

F.2d 1069 (11™ Cir. 1986), the Eleventh Circuit found that

Procup had “filed 176 cases in the Jacksonville Division of the

Middle District of Florida alone, not counting suits filed in other

federal and state courts. Most of Procup's suits have been pro se,

in forma pauperis civil rights actions under 42 U.S.C.A. Sec.

1983. None has reached the stage of trial on the merits; most

have been frivolous. Procup often has filed repeated claims and

failed to comply with court rules and procedures. His pleadings

are long and rambling. He has ignored repeated warnings and

admonitions from the district court.” /d. at 1070.

Nonetheless, the 11" Circuit, in vacating the injunction

identical to the injunction issued by the Florida Third District

Court of Appeal against Petitioner, recognized that the District

Court's injunction:

. that Procup file suits only through an

attorney may well foreclose him from filing any

suits at all. A private attorney, knowing Procup's

track record, might well be unwilling to devote

the time and effort necessary to sift through

Procup's generally frivolous claims to see if there

is one of sufficient merit to undertake legal

representation. A legitimate claim couid well go

undiscovered. Moreover, due to Procup's shotgun

litigation techniques, attorneys in the legal

services office already have found themselves as

defendants in Procup's rambling pleadings. This

ath.

not only would deter an attorney from

representing such a difficult client, but also raises

the possibility that, due to intra-office conflicts of

interest, the legal services attorneys would be

unavailable to represent Procup. With the

premise that Procup would simply be unable to

get any attorney to represent him, the

injunction then effectively enjoins Procup from

filing any suit. . . . An absolute bar against a

prisoner filing any suit in federal court would be

patently unconstitutional. We, therefore, vacate

the injunction and remand for consideration of

such modification as will, as much as possible,

achieve the desired purposes without

encroaching on Procup's constitutional right to

court access. (Emphasis added).

Id. at 1071. Accord: Green v. Carlson, 649 F.2d 285, 287 (CAS

1981)(“Flagrant abuse of the judicial process can enable one

person to preempt the use of judicial time that properly could be

used to consider the meritorious claims of other litigants. See

Camper, 477 F.Supp. at 770-71. The same pattern of malicious

and frivolous filings is now apparent in this Circuit. Recognizing

the need to curtail further frivolous and malicious filings, this

Court will invoke its general supervisory power to control its

docket.”); Jn re Martin-Trigona, 737 F.2d 1254, 1261 (CA2

1984) ("Federal courts have both the inherent power and

constitutional obligation to protect their jurisdiction from

conduct which impairs their ability to carry out Article III

functions. .. .”).

In Safir v. United States Lines, Inc., 792 F 2d. 19 (2™ Cir.

1986) the seminal holding of that case was that “Ultimately, the

question the court must answer is whether a litigant who has a

history of vexatious litigation is likely to continue to abuse the

judicial process and harass other parties.” /d. at 24. In Safir,

the court found that as a matter of fact that vexatious litigation

ey

included:

Safir's somewhat novel litigation tactics can only

be characterized as senseless and unduly

burdensome. He moved to dismiss one appeal on

the ground that the defendants had conspired to

bribe President Nixon to defeat his litigation. He

also sought to discover the “Nixon tapes” in the

belief that officials in the Nixon administration

conspired with the defendants to prevent him

from vindicating his rights. In another action, he

sought to have the judge disqualified because he

allegedly was a friend of President Nixon.

Similarly, Safir has sought collateral relief

pendente lite in many of his actions, including

this one, alleging that the defendants were

dissipating their assets to prevent him from

enforcing potential multi-million dollar

judgments. In this regard, he has sought to enjoin |

the sale of ships, shares of stock and other assets

and to have proceeds of such sales placed in

escrow; to enjoin a stockholder's meeting; and to

enjoin the government from paying subsidies to

the defendants and from approving the sale of

stock in which neither the buyer nor the seller

were defendants in Safir's actions. In light of the

patently meritless nature of these motions, they

can be viewed only as attempts by Safir to harass

the defendants. Another example of such

harassing and baseless litigation was more

recently displayed when Safir brought

involuntary bankruptcy proceedings against four

of the defendants. That action was predicated on

the untenable theory that because Safir was

about to win prodigious judgments from the

defendants, they would be unable to satisfy the

claims and be forced into bankruptcy. The

. F

bankruptcy court found Safir's petition to be a

clear abuse of the judicial process, and assessed

costs and attorneys' fees against Safir.

Id. at 25.

Plainly, before a court may step in and limit a litigants’s

fundamental right to access to court, egregious behavior must be

found to have existed and be expressly documented by the

sanctioning court. “Demonstrably frivolous” is the standard that

must be met. Martin at 2.

As shown below, no such behavior by Petitioner can be

found in any of his twenty-five appeals. As such, it is a violation

of Petitioner’s fundamental right to access court for the Third

District Court of Appeal to ex cathedra ban Petitioner from their

court.

B. The Florida Third District Court

of Appeal Did Not Make the

Requisite Findings of Fact That

Petitioners Appellate Matters

Were Frivolous, Abusive or

Incomprehensible.

Based upon the foregoing, it is plain that before a litigant

may be barred from court as Petitioner was barred here, the

court must make findings of fact — grounded in fact — that a

litigant’s pleadings were (i) frivolous, (ii) abusive or (iii)

incomprehensible. This, the Florida Third District Court of

Appeal neither did nor could do. As such, their order of

November 3, 2004, impermissibly trespassed upon Petitioner’s

fundamental right to access to court.

The sum total of facts recited by the panel to justify the

sanction imposed upon Plaintiff was grounded in three areas.

-19 -

hi Petitioner’s Motive - First, an un-cited,

undated, out of context quote attributed to Petitioner in a eight

year old letter to his former wife. Besides the lack of notice of

utilization of such quote as discussed infra, the ad hominem

attempt by the panel to impute an improper motive to Petitioner

is irrelevant to considerations here. Regardless of the subjective

intent of a litigant in pursuing litigation, it can only be the

objective consideration of the frivolousness of the pleadings that

must be utilized to determine whether sanctions should be

imposed. To hold otherwise opens the door for a court to

subjectively impute to a litigant ma/a fidesand, notwithstanding

objectively non-frivolous pleadings, make the determination that

such intent justifies barring the courthouse door to a litigant.

2. Lack of Merit - Second, after listing

Plaintiff's twenty-five matters filed in the Third District Court of

Appeal, the panel simply concludes — without citation to any of.

the decisions in those matters — that “the former husband's

subsequent pro se proceedings in this court have been found to

have no merit. As is shown by this appeal, the former husband

has repeatedly tried to re-litigate matters decided in earlier

proceedings, without any legitimate basis to do so.” Appendix-

12.

Notably, the panel judges, Gerald B. Cope, Jr., Melvia B.

Green and David M. Gersten do not state — as they could not —

that any of those twenty-five matters were (i) frivolous, (ii)

abusive or (iii) incomprehensible.

Instead, they make the conclusory statement that the

twenty-five matters “have not merit”. The “have not merit”

determination has never been a criteria for denying a litigant

access to the court. If it were, then every litigant who does not

prevail on an appeal would be subject to denial of access to the

court. Moreover and of note, none of the twenty-five matters

was dismissal for lack of jurisdiction or for frivolous filings.

2D «

Perforce, a review of those twenty-five matters reveals

that in all but three of them, the decision of the panels were per

curiam without written opinion. Hence for the panel judges

Gerald B. Cope, Jr., Melvia B. Green and David M. Gersten to

speculate upon the “merits” of those appeals is an ex post facto

exercise undertaken towards an apparently foregone conclusion.

Indeed, as one court has noted, “In rendering the decree

for the plaintiff, the chancellor stated that he relied on the per

curiam decision of Hoffman v. Drennen, Fla.1956, 88 So.2d 624.

This was a decision without opinion affirming a decree. We are

of the view that such a decision does not establish any point of

law; and there is no presumption that the affirmance was on the

merits.” Schooley v. Judd, 149 So.2d 587, 590 (Fla.App. 2 Dist.

1963). As such, even if lack of merit were a basis to deny access

to court, the panel judges Gerald B. Cope, Jr., Melvia B. Green

and David M. Gersten were simply speculating as to the merits

of the twenty-one cases decided per curiam without written

opinion, many of them issued by panels upon which they were

not sitting. Speculating by judges as to the reasons other

matters were determined is no basis for denying Petitioner his

fundamental right to access to court.

Moreover, the panel judges Gerald B. Cope, Jr., Melvia

B. Green and David M. Gersten in a blaring example of infidelity

to the impartial consideration of all the facts fail to note in their

opinion that in not one of Petitioner’s twenty-five appeals were

sanctions imposed upon Petitioner by the various panels under

Rules of Florida Appellate Procedure, Rule 9.410. That rule

authorizes the court to “impose sanctions for any violation of

these rules, or for the filing of any proceeding, motion, brief, or

other paper that is frivolous or in bad faith.”

As to the second statement — “As is shown by this appeal,

the former husband has repeatedly tried to re-litigate matters

decided in earlier proceedings, without any legitimate basis to

do so” the panel judges Gerald B. Cope, Jr., Melvia B. Green and

oT

«21.

David M. Gersten’s conclusory statement is simply wrong. In

fact, in their decision of November 3, 2004, there is only one

reference to an attempt by Petitioner to “re-litigate matters

decided in earlier proceedings”— the March 4, 2003, order of the

circuit court — calling into question the panel judges Gerald B.

Cope, Jr., Melvia B. Green and David M. Gersten’s reckless use

of the plural “matters” when accuracy demands that the singular

“matter” be utilized.

a. Petitioner’s Federal Actions - Finally, the

twelve actions in federal court cited by the panel judges Gerald

B. Cope, Jr., Melvia B. Green and David M. Gersten are of no

moment in their determination of the sanction imposed here.

First, noteworthy is that — with one exception — Federal

Rule of Civil Procedure, Rule 11 sanctions were not imposed on

Petitioner by the federal courts which heard these matters

resulting in the obvious conclusion that these matters were not

frivolous.

Indeed, in two of them Plaintiff made significant federal

law.? Moreover, as noted by the panel judges Gerald B. Cope,

’ In Sibley v. Schwartz, Case No.: 01-3746-Civ-King,

affirmed, No. 01-16571 (11™ Cir. 2001), contrary to Judge

King’s holding that Defendant Judge Lando enjoyed absolute

judicial immunity, the Eleventh Circuit held for the first time in

this circuit that “[a]lthough absolute judicial immunity shields

state court judges from suits seeking damages for acts taken in

their judicial capacity, ‘judicial immunity is not a bar to

prospective injunctive relief in 42 U.S.C. § 1983 suits against

judicial officers acting in their judicial capacity. Pulliam v. Allen,

466 U.S. 522, 541-42 (1984).”

Additionally, in Sibley v. Lando, Case No.: 03-21885-Civ-

Huck, rev. No. 03-14910 (11" Cir. 2004), the 11" Circuit,

i.

Jr., Melvia B. Green and David M. Gersten, all but one of the

remaining nine federal suits were dismissed as an act of

abstention discretion by the federal courts under Rooker-

Feldman and Younger doctrine principles.

Il. Petitioner May Not Be Sanctioned In State Court

for Asserting his Federal Rights

The Florida Third District Court of Appeal held

In addition, the former husband has filed at least

twelve actions in federal court against judges

who have been assigned to his cases, the court

system, and the former wife. . . . The former

husband has served as an unending source of

vexatious and meritless litigation. This has

caused needless consumption of resources by the

court system and needless expense to the former

wife. Awards of attorney's fees have not served as

a deterrent, as the former husband has not paid

them. We conclude that the standards of Lussy

are met. We have considered the criteria set forth

in the Safir decision and conclude that those are

met as well. We therefore prohibit the former

husband from further self-representation in this

court.” Appendix-13.

Such a holding clearly impinge on the right to access

reversed the dismissal of the lawsuit Plaintiff brought against

Judge Lando for her unlawful imprisonment of him and

reinstated the matter holding “For the foregoing reasons we find

that the district court (1) erred when it applied the

Rooker-Feldman doctrine as a jurisdictional bar to Sibley's

claims; (2) abused its discretion when it abstained from hearing

Sibley's claims under the Younger doctrine.”

4.

federal courts recognized in Donovan v. City of Dallas, 377 U.S.

408, 413 (1964), where this court unequivocally stated:

Petitioners being properly in the federal court

had a right granted by Congress to have the court

decide the issues they resented, and to appeal to

the Court of Appeals from the District Court's

dismissal. They have been punished both for

prosecuting their federal-court case and for

appealing it. They dismissed their appeal because

of threats to punish them more if they did not do

so. The legal effect of such a coerced dismissal on

their appeal is not now before us, but the

propriety of a state court's punishment of a

federal-court litigant for pursuing his right to

federal-court remedies is. That right was granted

by Congress and cannot be taken away by the

State. The Texas courts were without power to

take away this federal right by contempt

proceedings or otherwise. (Emphasis added).

Hence, the panel judges Gerald B. Cope, Jr., Melvia B. Green and

David M. Gersten have sanctioned Petitioner in state court

because he sought relief in federal court as was his right under

federal access to court guarantees. By doing so, panel judges

Gerald B. Cope, Jr., Melvia B. Green and David M. Gersten have

violated the proscription against such action by a state court

under Donovan.

In particular, as noted in footnote #2, supra, two of the

federal suits Petitioner filed were anything but frivolous.

Moreover, the Florida Third District Court of Appeal has

sanctioned Petitioner for exercising his right to remove a state

matter to federal court as guaranteed by 28 U.S.C. §1441. In

Sibley v. Sibley, United States District Court, Southern District

of Florida Case No. 01-1349, as a matter of discretion, Judge

x we

Gold returned the matter to the Florida Court under Younger

abstention principals, Petitioner’s right to seek such a removal

cannot be punished by the Florida Courts as done here without

doing violence to the holding of this Court in Donovan.

Indeed, what the Florida Third District Court of Appeal

has reserved unto itself — now without possibility of review save

by this Court — is the right to bar a litigant not because his

pleadings are frivolous, abusive or simply incomprehensible but

solely because a litigant is zealous to the point of litigiousness.

As repeatedly recognized by the Federal Circuit Courts,

litigiousness alone will not support an injunction restricting

filing activities. Accord: In re Oliver, 682 F.2d 443, 446 (3d Cir.

1982); Pavilonis v. King, 626 F.2d 1075, 1079 (Ast Cir.), cert.

denied, 449 U.S. 829(1980); Castro v. United States, 775 F.2d

399, 408 (1st Cir. 1985); Ruderer v. United States, 462 F.2d

897, 899 (8th Cir.), cert. denied, 409 U.S. 1031(1972).

CONCLUSION

Accordingly, this Court must review the decision of the

Florida Third District Court of Appeal in 3D03-2083 as (i)

Petitioner has no right to review in the United States District

Court under the Rooker-Feldman doctrine as applied by Judge

Jordan in his Order Denying the Motion for Temporary

Injunction and (ii) Petitioner’s right to access court will be

destroyed by the Florida Third District Court of Appeal’s

expanded authority to bar litigants from its court based only

upon a litigant’s “ litigiousness”.

Respectfully submitted,

Montgomery Blair Sibley

Counsel for Petitioner