Opposition Brief — Donner v. Appalachian Insurance

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No.: 91-1227 | se |

IN THE SUPREME COURT OF THELUNTTED srarhik

OCTOBER TERM, 1991

MIRIAM DONNER,

Petitioner,

vs.

APPALACHIAN INSURANCE COMPANY, a Rhode

Island Corporation, CITY OF MIAMI, VERNON

HETHERINGTON, FOWLER, WHITE, BURNETT,

HURLEY, BANICK & KNIGHT, P.A. a/k/a FOWLER

WHITE, BURNETT, HURLEY, BANICK &

STRICKROOT, P.A., a Florida professional

association, PHILLIP W. KNIGHT, and

MICHAEL J. MURPHY,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

DISTRICT COURT OF APPEAL OF FLORIDA,

THIRD DISTRICT

RESPONDENTS’, CITY OF MIAMI’S AND VERNON

HETHERINGTON’S, BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

David Kleinberg, Esquire

Attorney for City of Miami

and Vernon Hetherington

GAEBE, MURPHY, MULLEN,

ANTONELLI & GERLIN

420 South Dixie Highway

Third Floor

Coral Gables, FL 33146

Telephone: (305) 667-0223

(Florida Bar No. 765260)

ioe

No.: 91-1227

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

MIRIAM DONNER,

Petitioner,

vs.

APPALACHIAN INSURANCE COMPANY, a Rhode

Island Corporation, CITY OF MIAMI, VERNON

HETHERINGTON, FOWLER, WHITE, BURNETT,

HURLEY, BANICK & KNIGHT, P.A. a/k/a FOWLER

WHITE, BURNETT, HURLEY, BANICK &

STRICKROOT, P.A., a Florida professional

association, PHILLIP W. KNIGHT, and

MICHAEL J. MURPHY,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

DISTRICT COURT OF APPEAL OF FLORIDA,

THIRD DISTRICT

RESPONDENTS’, CITY OF MIAMI’S AND VERNON

HETHERINGTON’S, BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

David Kleinberg, Esquire

Attorney for City of Miami

and Vernon Hetherington

GAEBE, MURPHY, MULLEN,

ANTONELLI & GERLIN

420 South Dixie Highway

Third Floor

Coral Gables, FL 33146

Telephone: (305) 667-0223

(Florida Bar No. 765260)

QUESTIONS PRESENTED FOR REVIEW

i. Whether this Court is vested with

Certiorari jurisdiction under 28 U.S.c.

$1257(a) to review a state court decision

which is not final, does not draw into

question the validity of either a treaty

or statute of the United States or statute

of any state, and further does not pass on

any questions of federal law?

oe If so, whether this court should

exercise its discretion, in favor of

declining jurisdiction?

3. Assuming this Court exercises its

discretion in favor of accepting Certiorari

Jurisdiction, whether the Petitioner has,

in the four corners of the complaint, set

forth a federal cause of action sounding

under 42 U.S.C. §1983 and or under 18

U.S.C. §1964?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...

TABLE OF AUTHORITIES.

CONCISE JURISDICTIONAL STATEMENT

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED .

CONCISE STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT. .

I. THE CERTIORARI JURISDICTION

OF THIS COURT PURSUANT TO

28 U.S.C §1257 HAS NOT BEEN

SRVOREG 6° Se ewe oe ee

A. CERTIORARI JURISDICTION

OF THIS COURT

B. THE JUDGMENT IS NOT

FINAL WITHIN MEANING

OF 28 U.S.C. §1257 (a)

C. THE COMPLAINT DOES NOT

RAISE A FEDERAL ISSUE

D. THE STATE DECISION

DOES NOT TURN ON A

FEDERAL ISSUE

II. THIS COURT SHOULD EXERCISE

ITS DISCRETION IN FAVOR OF

DECLINING CERTIORARI

JURISDICTION

A. ACCESS TO THE COURT? .. . 38

B. Wee 68 ke ere ~*~ are a

Cc. PETITIONER HAS MADE

A MOCKERY OF THE

JUDICIAL SYSTEM ...... 42

III. THE PETITIONER'S COMPLAINT

BELOW DOES NOT SET FORTH A

FEDERAL CAUSE OF ACTION

SOUNDING UNDER 42 U.S.C §1983

FOR DENIAL OF ACCESS TO THE

oo) Ae a a ee a oe ee a ee

IV. PETITIONER'S COMPLAINT DOES

NOT SET FORTH A FEDERAL

CAUSE OF ACTION SOUNDING

UNDER 18 U.S.C. §1964 FOR

A FEDERAL RICO VIOLATION

IN THAT IT FAILS TO ALLEGE

SUFFICIENT CRIMINAL PREDICATE

ACTS, AND FAILS TO ALLEGE AN

INJURY RECOGNIZED BY RICO

EmAWEEe 6 6 & 4 6 «ce te x. eo BS

GCUNGIAIGEOMN «6 5s s+ + +e 6 th whl ltl lw tl le SR

CERTIFICATE OF SERVICE ........ 64

SPONGE 8 6 6 es st ee te tl eS

COMPLAINT

(Case No. 89-37625 CA 17) eo « « « » AL

PLAINTIFF'S MOTION

FOR REHEARING (Dated April 5,

Sy) Ok eee Se ee ke

ADDENDUM TO MOTION

FOR REHEARING sarerh sete April 6,

1990) ° 2 s «6 i * &+ = *&* «© © «= & moe

iii

TABLE OF AUTHORITIES

American Construction Company

v. Jacksonville T & KWR Company,

143 U.S. 372, 37 L.Ed. 486,

as BeGcs Foe (209) «2 « ts ee el tle RP

Auters-Price Oil Company v. Texas,

212 U.8. 86, 53 L.E4. 417,

>) ee Fo eee ES eee ee ee ea |

Bowe v. Scott,

233 U.S. 658, 58 L.Ed. 1141,

oe Bveesl Vee eee) 6 eee ek we 6 oe

Briscoe v. LaHue,

SG Mss See Aeeee)> aw ae eS. ww ws SS

Brown v. Atwell,

92 U.S. 327, 23 L.Ed. 511 (1876) . « Be

Buchanan v. Miami Herald

Publishing Company,

230 So.2d 9 (Fla. fn

Burns v. Reed,

eae GeOC. 2934 (1991) . «§ « « » 36, 50,52

Caldwell v. Texas,

137. U.S. 692, 34 L.Ed. 816,

am MeGes Bae (3001) «2 « we ee 25

Construction and General

Laborers’ Union v. Curry,

371 U.S. 542, 9 L. BA. 20 514,

Oe Bees Soe C2069) 6 « os se ew et ee ce

Crowell v. Randell,

35 U.S. 368, 9 L.Ed. 458 (1836) .. . 32

Delmar Jockey Club v. Missouri,

210 U.S. 324, 52 L.Ed. 1080,

See @sGee Fea C2908) « « s es wo we ow ow os Be

DeSaussure v. Gaillard,

427 U.S. 216, 32 L.Ed. 125,

oe ee er.

Doe v. Schneider,

443 F.Supp. 780 (D.C. Kansas 1978) . 43

Donner v. Hetherington,

370 So.2d 1225 (Fla. 3d DCA 1979) .. 6

Donner v. Hetherington,

376 So.2da 404 (Fla. 3d DCA 1979) . 7

Donner v. Hetherington,

399 So.2d 1011 (Fla. 3d DCA 1981) .. 8

Flye v. Jeffords,

106 So.2d 228 (Fla. 1st DCA 1958) .. 52

Gotthilf v. Sills,

375 U.S. 79, 11 L.Ed. 2a 159,

Oe ues eee tees ck a ae ek ee be

Grogan v. Platt,

1835 F.2d 844 (llth Cir. 1988) .. . 62

Harrison v. Springdale

Water and Sewer Commission,

780 F.2d 1422 (8th Cir. 1986) . . 45,46

Heike v. United States,

217 U.S. 423, 54 L.Ed. 821,

ae @awes Baw Ceeaer +h 6 & bs we kh oe 7 ee

Honeyman v. Hanan,

300 U.S. 14, 81 L.Ed. 476,

57 S.Ct. 350 (1937)

Howlett v. Rose,

537 So.2d 706 (Fla.

Howlett v. Rose,

2d DCA 1989) ~ « 49

110 S.Ct. 2430 (1990)

Jacobi v. Alabama,

187 U.S. 133, 47 L.Ed. 106,

23 S.Ct. 48 (1902)

Kleiner v. First National Bank,

526 F. Supp. 1019 (M.D. Ga.

Mabson v. Christ,

96 Fla. 756, 759,

4i9 So. 131, 132,

Market S.R. Company

(1928)

Railroad Com. of California,

324 U.S. 548, 89 L.Ed. 1171,

65 S.Ct. 770 (1945) a

Martinez v. California,

444 U.S. 277, 62 L.Ed.

100 S.Ct. 553 (1980)

McMurtry v. Brasfield,

654 F. Supp. 1222 (Ed. Va. 1987) 58,59

Meyers v. Hodges,

44 So. 357 (Fla. 1907)

New Orleans Waterworks Company v.

Louisiana Sugar Refining Co.,

185 U.S. 336, 46 L.Ed. 936,

22 S.Ct. 691 (1902) :

2d 481,

oeei) .. 57

27,28

New Orleans v. New Orleans

Waterworks Company,

142 U.S. 79, 35 L.Ed. 943,

Be MeGee FOG TAORAD 6 ka we ek ee

North Dakota State Board of

Pharmacy v. Snyder’s Drug

Stores, Inc.,

414 U.S. 156, 38 L.Ed. 379,

OS BsGur. 407 £2979) « «a tw tt lt lt

Parker v. McLain,

237 U.S. 469, 59 L.Ed. a0Di,

35 &.Ct. 632 (1915) . . ... ss 28,30

Perl v. Omni Internationa]

Of Miami, Ltd.,

439 So.2d 316 (Fla. 3d DCA 1983) >

Ponzoli and Wassenberg v. Zuckerman,

945 So.2d 309 (Fla. 3d DCA 1989) 32,53

Regal Marble, Inc. v. Drexel

Investments, Inc.,

515 So.2d 1015 (Fla. 4th DCA 1987) . 52

Reich v. Freeport,

388 F.Supp. 953 (ND. Ill. prs) «2s + 25

Republic Natural Gas Company

V. Oklahoma,

334 U.S. 62, 92 L.Ed. agid,

668 S.Ct. 972 (1948) .- .. 2... 2. ee 22

Robertson v. Industrial

Insurance Company,

75 So.2d 198 (Fla. 1954) » « «= « 92,83

Ryland v. Shapiro,

708 F. 2d. 967 (5th Cir. 1983) 43,44,45

Sailboat Key, Inc. v. Gardner,

378 So.2d 47 (Fla. 3d DCA 1979) ... 52

Sedima, S.P.R.L. v. Imrex Co., Inc.,

B@e @.Ct. 3275 (1985) ...... 87,62

Splegel v. Continental Illinois

National Bank,

609 F. Supp. 1083 (D.C. Ill. 1985) - 58

Tripati v. Bemanan,

878 F. 2d 351 (10th Cir. 1989) e « « 48

U.S. v. Leyden,

842 F.2d 1026 (8th Cir. 1988) .... 61

U.S. v. Peters,

732 F.2d 1004, (1st Cir. 1984) . 59,60

U.S. Vaughn,

797 F.2d 1485 (9th Cir. 1986) .. 60,61

Union Mutual Life Insurance

Company v. Kirchoff,

169 U.S. 103, 42 L.Ed. 677,

emus. mee CAUPE) . « « ss 6 6 ew so cw 2D

Wright v. Yurko,

446 So.2d 1162

ieee memo OOM 2984) . . 1. ss ss) 82,88

U. S. Const., Art. III s 2 » « « AG, 49,28

U. S. Const., Art. IV, §II were’ 68 eee

U. S. Const., amend. I Oe on oe er ae ee eee

Ms @s GCOMBt., OWGnd. V....s+s-ss 43

Ms @e COMNSt., amend. XIV ....4+.e.e 43

OME P TOM EOGE ¢ « 56 6 «0 6 6 6 @ 6 26,57

viii

1 U.8.6. §3068 6 td a SV ee eee

LO U.8.C. §1962 . «5 5 8 ws ss Bee

ae OvOsG.. G2PGs. s 2 0 © & *@ 2 oe ee eee

SS VUsGs0s GEOG6 « « = 11,16,37,55,56,62

26 U.S.C. §1257(@) ..:s «s « » « « PAROS

28 U.S.C. §1257 (1970) 2 oe ee oe ee ee

42 U.S.C. §1983 . «. « » « « «© «© « « PASSIN

sup. Ct. R. i0 > © 6) =e ee) *) 8: eee eee

Sup. Ct. R. 15.3 ee oe ee ee ee ee 49,55

wap. Gls Re 25ek BV alee ew eee

Sop. Ct. BR. BEE oe Se ee eee

pup. Ct. KR. 24:52. «wee es se eee

Sup. Ct. R. 29.2 ‘+e * « eo: & “eo eee

sup. Ce. Rs 33 x elec ee «wa ee ee eee

Freedom of Information Act

ee ts re ee rer a

Section 1 of Organized

Crime Control Act of 1970 ....... 40

CONCISE JURISDICTIONAL STATEMENT

Petitioner seeks to invoke’ the

certiorari jurisdiction of this Court under

28 U.S.C. §1257(a).

In 1988, 28 U.S.C. §1257 was amended

and the jurisdiction of this Court

thereunder limited. Congress did away with

the appeal of right and left. only

certiorari, which is not a matter of right,

but of judicial discretion. Certiorari

shall only be granted where there are

special and important reasons therefore.

Rules of the Supreme Court of the United

States, Rule 10.

The Petitioner has failed to invoke

said certiorari jurisdiction, as the state

court judgment: (1) does not challenge the

validity of the Constitution, treaties,

laws or statutes of the United States, (2)

does not draw into question a state statute

as repugnant to the Constitution; (3) is

not final within the meaning of 28 U.S.C.

§1257(a); (4) does not turn on federal law;

as (5) no federal question was presented in

an appropriate forum, time and manner; and

thus, (6) turns solely on state law,

specifically state procedural law, as to

the appropriate forum, time and manner.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

The Respondents herein assert that

there are no United States Constitutional

provisions or federal statutes involved, as

Same have not been properly brought forth

in the Complaint or throughout the judicial

proceedings below, and are mere frivolous

averment. Nonetheless, the constitutional

provisions and statutes set forth by the

Petitioner in the Petition for Writ of

Certiorari are fully set forth therein, and

pursuant to Rules of the Supreme Court of

the United States, Rule 24.1(f), need not

be set forth herein.

The only federal statute involved as a

practical matter is 28 U.S.C. §1257(a)

which states:

"Final judgments or decrees

rendered by the highest court of

a State in which a decision could

be had, may be reviewed by the

Supreme Court by writ of

certiorari where the validity of

a treaty or statute of the United

States is drawn in question or

where the validity of a statute

of any State is drawn in question

on the ground of its’ being

repugnant to the Constitution,

treaties, or laws of the United

States, or where any title,

right, privilege, or immunity is

specially set up or claimed under

the Constitution or the treaties

or statutes of, or any commission

held or authority exercised

under, the United States."

CONCISE STATEMENT OF THE CASE

To fully understand the posture of

this case, one must return to the

Metropolitan Justice Building (the criminal

courthouse) in Miami, Dade County, Florida,

in 1975. There, Petitioner, dressed in hot

pants, a halter top, high heeled shoes and

wearing a wig, was picketing and presenting

petitions to pedestrians. She was claiming

that a then State of Florida Circuit Court

Judge had denied her a fair trial ina

Civil lawsuit unrelated to the instant

actions, and that there was a conspiracy

against her.

As the crowd grew larger, VERNON

HETHERINGTON, then a City of Miami police

officer, requested that the Petitioner move

from the area in front of the front doors

and steps of the building to another area

in front of the building. The Petitioner

not only refused to move but instructed

Hetherington to arrest her. After several

requests, Officer Hetherington arrested the

Petitioner and charged her with breach of

the peace. Petitioner was then turned over

to the Metropolitan Dade County

Correctional Department, by whom she was

incarcerated.

In 1976, Petitioner filed the first of

several civil lawsuits. The complaint

filed therein, against the City of Miami,

Vernon Hetherington, Appalachian Insurance

Company’, Metropolitan Dade County? and

other Dade County Correctional Officers

arose out of the 1975 arrest and

incarceration.

In this 1976 civil litigation, Fowler,

White, Burnett, Hurley, Banick and Knight,

P.A., a/K/a Fowler, White, Burnett, Hurley,

Banick & Strickroot, P.A., a Florida

professional association, and attorneys

Phillip W. Knight® and Michael J. Murphy

(hereinafter collectively "THE ATTORNEYS")

were attorneys of record representing the

. Appalachian Insurance Company, a

Rhode Island corporation, was a liability

insurer for the City of Miami and police

officer Vernon Hetherington.

. Metropolitan Dade County

Department of Corrections and its officers

while not parties to this Petition for Writ

of Certiorari, nor to the state proceedings

below, were a party to the initial 1976

litigation filed by Petitioner.

. Now Honorable Judge Phillip wW.

Knight of the Eleventh Judicial Circuit in

and for Dade County, Florida.

City of Miami, police officer Vernon

Hetherington, and Appalachian Insurance

Company (hereafter collectively "INITIAL

DEFENDANTS") .

During the course of the 1976 lawsuit,

the INITIAL DEFENDANTS through THE

ATTORNEYS responded to various discovery,

including interrogatories, sent a letter to

the Petitioner, filed responses to three

separate Requests for Production which had

been propounded by the Petitioner, and

filed a response to the Petitioner's Motion

for Sanctions. All these actions were

taken in and relevant to the 1976

litigation.

In April, 1980, the action came to be

heard for jury trial‘ °. The trial court

‘ The case had previously been

disposed of by way of Summary Judgment,

however, it was appealed to the Third

District Court of Appeal of the State of

Florida, which reversed the Summary

Judgment and remanded for trial. Donner v.

Hetherington, 370 So.2d 1225 (Fla. 3rd DCA

1979).

directed a verdict in favor of the Initial

Defendants and allowed the jury to reach a

verdict against the remaining defendants,

Metropolitan Dade County and the Dade

County Correctional Officers. The jury

returned a verdict in favor of the

Petitioner, Miriam Donner, in the amount of

$15,000 against those defendants. °®

The Petitioner exercised her right to

appeal the directed verdict, and the

judgment entered thereon. Again, the Third

District Court of Appeals of the State of

. The action had also come to trial

once before, however, it was terminated and

dismissed by the judge due to the

obstreperous conduct of the petitioner

herein, Miriam Donner. That too was the

subject of an appeal. Donner v.

Hetherington, 376 So.2d 404 (Fla. 3d DCA

1979).

. The claim against the county

defendants was for post-arrest conduct

involving her confinement and treatment in

jail. The City of Miami, police officer

Vernon Hetherington, Appalachian Insurance

Company and THE ATTORNEYS, are not, either

in the 1976 litigation or in the instant

litigation, charged or chargeable for that

post-arrest conduct.

Florida reversed the directed verdict and

remanded the cause for a new jury trial

wherein the Petitioner could re-present all

of her evidence, to a jury, on the issues

of liability and damages against the

INITIAL DEFENDANTS.’

It must be pointed out that despite

the passage of nearly eleven (11) years

from the final remand for trial, the re-

trial of this 1976 litigation has not yet

occurred. Petitioner would have this court

believe that this is due to the

Respondent's conduct. However, it is due,

inter alia, to the Petitioner's multiple

Motions for Recusal of many different

Circuit Court Judges, and, Motions for

Continuance.

Instead, in 1981 the Petitioner filed

another lawsuit (hereinafter lawsuit No.

2), this time against: The City of Miami,

’ Donner v. Hetherington, 399 So.2d

1011 (Fla. 3d DCA 1981).

the Assistant City of Miami Attorney, Steve

Edelstein; and, Michael J. Murphy (one of

THE ATTORNEYS). She sought access to all

of the personal litigation files of THE

ATTORNEYS, which were created in connection

with defending the Petitioner's claims in

lawsuit No. 1. THE ATTORNEYS objected to

the request and refused to produce the

documents. The Petitioner asserted that

since the documents were created by THE

ATTORNEYS while acting on behalf of the

City, they were susceptible to discovery

under the Freedom of Information Act

(government in the sunshine).

This 1981 action proceeded to the

Florida Supreme Court, and, the documents

were ordered to be produced. Eventually,

on August 19, 1985, the requested records

were produced pursuant Court Order. The

Petitioner now has all of the records and

information which she has sought.®

Thereafter, on August 21, 1989, the

Petitioner filed yet another action, the

instant action, (hereinafter lawsuit No. 3)

naming as defendants not only the parties

to lawsuit No. 1, but also THE ATTORNEYS.

The Petitioner in the Complaint in lawsuit

No. 3, unartfully, unsuccessfully, and with

the delicate precision of a jackhammer

operator, attempts to state a cause of

action for fraud, based upon the conduct of

the INITIAL DEFENDANTS and THE ATTORNEYS in

the judicial proceedings related to lawsuit

No. 1 and lawsuit No. 2.

The City of Miami, and police officer

Vernon Hetherington, filed their Motion to

Dismiss, as did the other defendants,

’ The Freedom of Information Act,

F.S. §119 has subsequently been amended,

and the work product and attorney-client

privilege objection and defense asserted by

THE ATTORNEYS in the aforementioned action

was codified as an exception to the Freedom

Of Information Act. :

setting forth, inter alia, that the

Complaint failed to state a cause of action

upon which relief can be granted. The

motions, of the various parties, to dismiss

Petitioner's complaint, were heard before

the Court, having been duly noticed, and

the Court granted all motions to dismiss

the complaint with prejudice.

Petitioner moved for rehearing, which

was denied. In her motion, she raised for

the first time, albeit on a cryptic and

colorless basis, the notion that her

Complaint somehow involved, inter alia, 42

U.S.C. §1983 civil rights violations and,

18 U.S.C. §1964 RICO.

The Petitioner filed her appeal with

the Third District Court of Appeal for the

State of Florida. The issues asserted on

appeal by the Petitioner were briefed by

the parties and oral argument received by

the court.

It must be pointed out that in the

rt CCC

— i

instant case, before the trial court, the

Petitioner herein was’ represented by

counsel, and certainly, at the Third

District Court of Appeal, she was

represented by counsel not only for the

purposes of authoring a brief, but also for

the purposes of presenting oral argument.

The Third District Court of Appeal

affirmed the Order dismissing the cause of

action, setting forth that the litigation

conduct complained of was afforded common

law immunity, and, inviting the Petitioner

to amend her complaint in the original 1976

litigation to seek’ redress for her

grievances in connection with the discovery

and other litigation conduct which took

place in that 1976 proceeding. ’°

The Petitioner filed a Motion for

Rehearing, Certification or Clarification

. The opinion of the Third District

Court of Appeals in this case is reproduced

in the Petitioner's Petition for Writ of

Certiorari as an Appendix on Page A-l.

and Rehearing En Banc, which was denied by

the Third District Court of Appeal.

(Petitioner's Petition for Writ of

Certiorari at Page A-1l).

Thereafter Petitioner sought’~ the

discretionary jurisdiction of the Florida

Supreme Court by petitioning for Writ of

Certiorari, which was, on October 29th,

1991, denied by the Florida Supreme Court.

(Petitioner's Petition for Writ of

Certiorari at A-10).

Thereafter, on January 24, 1992, the

Petitioner filed the Petition for Writ of

Certiorari in this Supreme Court of the

United States. Pursuant to United States

Supreme Court Rules, Rules 15.2, 24.2,

29.2, and Rule 33, this Brief in Opposition

to the Petition for Writ of Certiorari is

filed.’°

” Your undersigned counsel is not

an admitted member of the United States

Supreme Court Bar, however, has, on January

29, 1992, filed a Motion for Admission to

SUMMARY OF THE ARGUMENT

The discretionary jurisdiction of this

Court pursuant to 28 U.S.C. §1257(a) has

not been properly invoked. The state

court judgment does not challenge the

validity of a State statute or challenge

the validity of any provision of the

Constitution or ptatutes of the United

States of America.

The state judgment is not final within

the meaning of 28 U.S.C. §1257(a). There

has not been an effective termination of

the litigation, as more remains to be done

and decided. Review would be advisory and

create piecemeal litigation.

The federal claims, if any, of the

Petitioner herein, though not’ timely

addressed or raised, are not foreclosed by

the judgment and accordingly this matter is

the Bar, Oath of Admission, and supporting

application and affidavits, which Motion

remains pending at the time of filing this

Brief.

not ripe for adjudication by this Court.

The state court judgment decides only

issues of state law. It did not, has not,

and need not address any federal issues, as

same were not properly presented.

The procedural path chosen by the

Petitioner for the redress of her

grievances was improper. The state court

correctly dismissed the action and directed

the Petitioner to the appropriate

procedural course.

The Petitioner's complaint fails to

set forth a cause of action for denial of

access to courts. The complaint does not

allege conduct by the Respondents which

prevented the Petitioner from _ seeking

redress, otherwise punished her for doing

so, or had a chilling effect on her.

The Complaint fails to set forth that

Or any other federal cause of action

sounding under 42 U.S.C. §1983. However,

on the face of the complaint, the

Respondents are protected by the common law

immunity afforded in judicial proceedings.

42 U.S.C. §1983 does not abrogate the

absolute immunity existing at common law.

The complaint fails to set forth a

cause of action under 18 U.S.C. §1964. The

conduct complained of does not set forth a

Single act, much less a sufficient pattern

of racketeering activity, which is itself

subject to criminal sanctions or

traditionally criminal in nature sufficient

to constitute a predicate act under 18

U.S.C. §1964. Further, Petitioner fails to

allege an injury contemplated by the

statute.

ARGUMENT

I. THE CERTIORARI JURISDICTION OF THIS

COURT PURSUANT TO 28 U.S.C §1257 HAS NOT

BEEN INVOKED.

A. CERTIORARI JURISDICTION OF

THIS COURT.

The Supreme Court of the United

States, a creation of Article III of the

Constitution of the United States, is a

court of limited jurisdiction. The Supreme

Court can exercise no appellate

jurisdiction except in cases, and in the

manner and form defined and prescribed by

Congress. American Construction Company v.

Jacksonville T & KWR Company, 143 U.S. 372

(1893), 37 L.Ed. 486, 13 S.Ct. 758 (1893).

The appellate jurisdiction in the federal

system is purely statutory. Heike v.

United States, 217 U.S. 423, 54 L.Ed. 821,

30 S.Ct. 539 (1910).

United States Supreme Court Rule No.

10 states:

"A review on writ of certiorari

is not a matter of right, but of

judicial discretion. A petition

for a writ of certiorari will be

granted only when there are

special and important reasons

therefor."

The Petitioner herein has attempted to

invoke the jurisdiction of this court under

Statute 28 U.S.C. §1257(a), which statute

allows that the Supreme Court of the United

States “may” review “”final” judgments or

decrees rendered by the highest court of a

state in conformity with 28 U.S.C.

§1257(a).

Such jurisdiction of this Court is

improper in the instant action, in that the

state court judgment sought to be reviewed

is not final; does not challenge the

validity of a statute of the United States

of America; does not challenge the validity

of a statute of the State of Florida as

being repugnant to the Constitution; and

does not deny a federal right specially

claimed.

Rather, as will be set forth below,

the judgment of the state court is grounded

solely upon independent state grounds;

dismisses the Petitioner's cause as being

in the improper procedural posture under

State law, and in no way is decided upon

‘+ See page three above for full text.

federal grounds, as a federal cause of

action was not properly presented.

B. THE JUDGMENT IS NOT FINAL

WITHIN MEANING OF 28 U.S.C.

§1257 (a).

The first word in the jurisdictional

entitlement of 28 U.S.C. §1257(a) is the

word final. A plethora of decisions by

this Court turn on the issue of the

finality of a particular judgment in a

state court. The finality requirement of

28 U.S.C. §1257, limits the United States

Supreme Court's review of state court

judgments to "final judgments". It serves

to: (1) avoid piecemeal review by federal

courts of state court decisions, (2) avoid

giving of advisory opinions in cases where

there may be no real case or controversy in

the sense of Article III of the

Constitution and, (3) limit federal review

of state court determinations of federal

constitutional issues to leave at a minimum

federal intrusions in state affairs. North

Dakota State Board of Pharmacy v. Snyder’s

wEug Stores, Inc., 414 U.S. 156, 38 L.Ed.

373, 94 S.Ct. 407 (1973).

While recognizing that the

determination of finality under 28 U.S.C.

§1257 is a question of purely federal law

to be resolved by this United States

Supreme Court, said determination is to be

made by examination to the entire or whole

record. Gotthilf v. Sills, 375 U.S. 79, 11

L.Ed. 2d 159, 84

op)

.Ct. 187 (1963);

Construction and General Laborers’ Union v.

Curry, 371 U.S. 542, 9 L.Ed. 2d 514, 83

BeGes BIL (1963).

A state court judgment in order to be

final for the purposes of review by this

Supreme Court of the United States must be

the final word of the final court in the

sense that: (1) it must be subject to no

further review or correction in any state

tribunal and, (2) it must be effective

determination of litigation and not merely

interlocutory or intermediate steps

therein. Market S.R. Company v. Railroad

Com. Of California, 324 U.S. 548, 89 L.Ed.

1171, 65 S.Ct. 770 (1945).

The possibility that matters left open

by the state court's judgment may generate

additional constitutional questions

requires a finding that the finality

essential to the review of such judgment by

the Supreme Court of the United States does

not exist. Republic Natural Gas Company v.

Oklahoma, 334 U.S. 62, 92 L.Ed. i2izd, GF

S.Ct. 972 (1948).

The Third District Court of Appeal of

the State of Florida affirmed the trial

court's dismissal of the Petitioner's

complaint. The District Court also

directed the Petitioner to seek to amend

her complaint in the initial 1976 lawsuit

to attempt to include whatever claims she

may have. This is not a final order within

the purview of 28 U.S.C. §1257, and

accordingly the jurisdiction of this Court

is improper.

What remains to be done is for the

Petitioner to amend her complaint in the

1976 action, to attempt to state causes of

action under either state or federal law,

and allow the court in which the alleged

improper conduct took place to make a full

and final determination of the issues

presented therein. Until such amendment is

sought and/or made, there is no "case or

controversy" under Article III.

Even if this Court were to accept

jurisdiction in this case and render a

decision on whether Petitioner did, could,

or would state a federal cause of action,

nonetheless, the very same issues can and

will be presented by the Petitioner in the

initial 1976 litigation. Hence this Court

runs the very serious and practical risk of

condoning and participating in piecemeal

litigation. This court would be giving an

advisory opinion where the real "case or

controversy" is not properly before this

Court, but rather is awaiting the

Petitioner's amended complaint in the 1976

action. This would constitute more than a

minimum federal intrusion into the State of

Florida's procedural affairs in terms of

dictating when and where the cause of

action is properly brought under state

procedural law. ”

There is more than the mere

possibility that there are matters left

open by the state court's judgment which

may and will generate additional

constitutional questions, and that there is

something more of substance which remains

to be decided at the trial court level of

the Florida state courts.

Indeed, the District Court recognized

that the litigation was not over, when it

said:

"It has been well said that there

must be some point in every court

proceeding when the cause is

finally disposed of, its thread

cut, and parties out of

court...The public welfare

demands that there shall be some

definite end to litigation--a

point sometime, somewhere, when

every case is terminated. We

cannot afford to return to the

interminable and outrageous

practice similar to that depicted

in Dickens' case of Jarndyce v.

Jarndyce." Mabson v. Christ, 96

Fla. 756, 759, 119 So. 131, 132,

(1928). We trust that trial of

this cause will occur before the

litigation assumes such

Dickensian proportions."

Accordingly, the finality requirement

of 28 U.S.C. §1257 has not been met and the

jurisdiction of this Court thereunder does

not lie.

C. THE COMPLAINT DOES NOT RAISE

A_FEDERAL ISSUE.

Jurisdiction of the Supreme Court to

review proceedings of the state courts is

not that of a general reviewing court in

error, but is limited to specific instances

of denials of federal rights, specially set

up in state court and denied by the rulings

and judgment of that court. Auters-Price

Oil Company v. Texas, 212 U.S. 86, 53 L.Ed.

417, 29 S.Ct. 220 (1909).

Such jurisdiction turns upon whether

the federal right was specially set up or

claimed in that court and denied by its

decision. 28 U.S.C. §1257(a); Parker v.

McLain, 237 U.S. 469, 59 L.Ed. avea, 35

S.Ct. 632 (1915).

Indeed, federal courts have no power

to review judgment of a state court except

where a substantial federal question is

involved. Reich v. Freeport, 388 F.Supp.

953 (N.D. Ill. 1974). Moreover, a real,

and not a fictitious federal question is

essential to the jurisdiction of the

Supreme Court of the United States to

review a judgment of a state court.

Caldwell v. Texas, 137 U.S. 692, 34 L.Ed.

816, 11 S.Ct. 224 (1891).

Thus, the next issue with respect to

this Court's jurisdiction is whether the

Petitioner has raised a real and

substantial federal question.

It is recognized that the

determination of whether a federal question

is presented is itself a federal question.

Honeyman v. Hanan, 300 U.S. 14, 81 L.Ed.

476, 57 S.Ct. 350 (1937).

A plain reading of the complaint”’

fails to disclose the presentment of a

claim for the denial of the federal right

of access to the courts; fails to disclose

a cause of action for Racketeer Influenced

and Corrupt Organization violation (RICO);

and fails to disclose any other cause of

action for denial of the privileges and

immunities afforded under the Constitution

or its amendments. What one sees when

reviewing the complaint is merely an

attempted cause of action for fraud based

12 The complaint is reproduced in full

in the Appendix to this Brief in

Opposition.

upon alleged discovery violations in the

1976 lawsuit.

Although the words "under color of

state law" appears several times throughout

the complaint, they are primarily addressed

to the conduct which gave rise to the

initial litigation. When these words are

used to refer to the conduct which gives

rise to the alleged cause of action in the

instant case, they are insufficient to

properly set forth a real and substantial

federal question. Delmar Jockey Club v.

Missouri, 210 U.S. 324, 52 L.Ed. 1080, 28

S.Ct. 732 (1908). No real and substantial

federal right was specially set up.

The assertions by the Petitioner in

her motion rehearing’’ at the trial court

level are untimely and insufficient. New

Orleans Waterworks Company v. Louisiana

1S The motion for rehearing, and the

addendum to motion for rehearing are

reproduced in the Appendix to this Brief in

Opposition.

Sugar Refining Co., 185 U.S. 336, 46 L.Ed.

936, 22 S.Ct. 691 (1902). They lack all

color or merit, and have no substance or

foundation. The mere fact that the words

are raised is not sufficient to invoke the

Supreme Court jurisdiction. Louisiana

Sugar Refining Co., supra.

The manner of raising the federal

question is a significant consideration in

determining whether jurisdiction will lie.

A federal question must have been set up at

the proper time and in the proper way.

Jacobi v. Alabama, 187 U.S. 133, 47 L.Ed.

106, 23 S.Ct. 48 (1902).

The jurisdiction of the United States

Supreme Court to review a judgment of the

state court cannot be invoked on the ground

of denial of a title or right claimed under

the Constitution or statute of the United

States, unless it is specially set up or

Claimed at a proper time and in a proper

way; and such claim cannot be a matter of

——————— ———

mere inference, but requires averment so

distinct and positive as to place it beyond

the doubt that it was intended to assert a

federal right. Union Mutual Life Insurance

Company v. Kirchoff, 169 U.S. 103, 42 L.Ed.

677, 18 S.Ct. 260 (1898).

The mere averment of a _ possible

federal guestion in the motion for

rehearing and in the Petitioner's briefs,

without color or grounds therefore, is

insufficient to sustain the jurisdiction of

the Supreme Court. Bowe v. Scott, 233 U.S.

658, 58 L.Ed. 1141, 34 S.Ct. 769 (1914).

In the instant case, the first mention

of any indication that a federal right was

possibly being raised was in the

Petitioner's motion for rehearing of the

Respondent's motion to dismiss. Even

there, it was a hollow one line averment

that the complaint set forth a cause of

action under the RICO statutes. Shortly

thereafter, a supplement to the motion for

rehearing was filed containing a mere

averment, colorless and unsubstantial, that

the complaint set forth a cause of action

under 42 U.S.C. §1983. These untimely,

meritless, colorless, frivolous and

unsubstantial mere averments of a federal

question are insufficient to present a

federal issue.

D. THE STATE DECISION DOES NOT

TURN ON A FEDERAL ISSUE.

A federal right must be both specially

set forth and denied. Parker, supra.

Where a state court bases its judgment on

grounds other than law arising under a

federal question, the United States Supreme

Court will not take jurisdiction.

DeSaussure v. Gaillard, 127 U.S. 2i6, 32

L.Ed. 125, 8 S.Ct. 1053 (1888). The

jurisdiction by ia United States Supreme

Court cannot be sustained where’ the

decision of the state court appealed from

was made upon rules of general

jurisprudence, or other grounds, broad

enough in themselves to sustain’ the

judgment without considering the federal

question appearing in the case but not

necessarily involved. New Orleans v. New

Orleans Waterworks Company, 142 U.S. 79, 35

L.Ed. 943, 12 S.Ct. 142 (1891).

Assuming, arguendo, that a federal

right was specially set up, it certainly

was not denied by the decision to be

appealed herein. The state court judgment

does not deny any federal rights

whatsoever.

Rather, it makes a determination,

under state law and applicable to state law

claims** that: (1) the complaint fails to

state a cause of action upon which relief

can be granted; (2) an immunity exists;

and, (3) if, the Petitioner does or may

Only state law claims are alleged

in the complaint. See I. C., supra, and

III and IV, infra.

have a cause of action, state or federal,

that it is properly brought in the initial

1976 litigation where the alleged

misconduct occurred.

It is not sufficient to give the

Supreme Court jurisdiction that a federal

question might have been raised or might

have been decided and involved in the case.

It must appear, either in direct terms, or

by necessary intendment, that it was in

fact brought to the notice of the court and

decided by it. Crowell v. Randell, 35 U.S.

368, 9 L.Ed. 458 (1836). It must also

appear that the decision of a federal

question was necessary to the determination

of the cause and that it was actually

decided or that the judgment as rendered

could not have been given without deciding

it. Brown v. Atwell, 92 U.S. 327, 23 L.Ed.

911 (1876).

The Third District Court of Appeal of

the State of Florida did not decide federal

questions, nor was it necessary for any

federal question to have been decided.

Rather, the District Court must have

determined that any federal question, if

one existed, was not properly brought

procedurally. Said causes of action, if

any, must be brought in the 1976 litigation

by way of an amended complaint.

In the instant case, the District

Court rendered its ruling on state law

common law immunity and on the improper

procedural posture of the case before the

court. Indeed the District Court rendered

its judgment on grounds of general

jurisprudence and other grounds relating to

the abuses of the judicial process which

have resulted at the hands of the

Petitioner throughout the course of this

seventeen (17) year morass.

In conclusion, the jurisdiction of

this Court under 28 U.S.C. §1257(a) does

not lie in the instant action as a federal

issue was not timely presented herein in a

procedural posture so as to allow the state

courts to decide it, was not decided by the

state court, and the judgment rendered by

“the state court, lacks the requisite

finality.

II. THIS COURT SHOULD EXERCISE ITS

DISCRETION IN FAVOR OF DECLINING

CERTIORARI JURISDICTION.

Assuming, arguendo, that the

jurisdiction of this court is’ properly

invoked under 28 U.S.C. §1257(a), such

jurisdiction is merely discretionary; it is

not as of right. The presence of the

phrase "may be reviewed" clearly sets forth

the discretionary, as opposed to mandatory

nature of the jurisdiction. Congress has

limited this Court to discretionary

jurisdiction through its 1988 amendment of

this statute, which disposed of the appeal

of right found in subparagraphs 1 and 2 of

former 28 U.S.C. §1257 (1970).

Indeed Rule 10 of the United States

ell

Supreme Court Rules_ sets forth the

proposition that certiorari is not a matter

right but of judicial discretion. It goes

on to set forth some general considerations

governing the court's exercise of its

discretion.

Subparagraph (a) of Rule 10 dealing

with actions of Federal Circuit Courts is

unquestionably inapplicable to the instant

case. Subparagraph (b) deals with a state

court’s decision which is in conflict with

the decision of another state court or of

United States Court of Appeal.

The instant decision is in no way in

conflict with decisions of another state

court or United States Circuit Court of

Appeal on any Sedarni question. Rather, no

federal question was decided, and the court

invited the Petitioner to seek to raise the

federal question in the appropriate

procedural forum.

Petitioner attempts to convince this

court that the decision sought to be

reviewed is in conflict by alleging certain

federal cases which discuss the existence

or non-existence of common law immunities

under federal causes of action. Without

fully addressing same herein?it is clear

that Congress' enactment of 42 U.S.C. §1983

did not intend to abrogate or eliminate

traditional common law immunities. Burns

v. Reed, 111 S.Ct. 1934 (1991).

Subparagraph (c) of the United States

Supreme Court Rule 10 discusses the

consideration given in an instance where a

state court has decided an important

question of federal law which has not been

decided by the Supreme Court, but should

be. This is simply not the case in the

instant action as again the state court did

not decide a federal question, much less an

important federal question. Additionally,

° This will be done in Section III

below.

this Court has rendered its opinions on the

existence or non-existence of immunities

and on the elements of a cause of action

sounding under 42 U.S.C. 1983 and 18 U.S.C.

1964.

However looking beyond the technical

statutes of jurisdictional entitlement, and

rules of judicial discretion, one must

merely resort to common sense to determine

whether or not this Court should exercise

its discretion in favor of declining

jurisdiction.

Notwithstanding the discussions of the

appropriate elements of a RICO action, or

§1983 action*®, it seems incredulous that

the Congress of these United States of

America intended for’ these federally

created causes of action to apply to cases

such as the instant one.

II(a). ACCESS TO THE COURT?

and IV.

Discussed, infra, at Sections III

——

Our Founding Fathers' creation of the

Constitution and the Bill of Rights

certainly could not have intended to

include the facts in this case _ when

creating the undeniable right of access to

the courts. The Petitioner has not been

denied access to the courts in any way,

shape, or form as was contemplated by the

creation of either the Constitution, its

amendments, or 42 U.S.C. §1983.

Ms. Donner has been involved in the

initial lawsuit which gave rise to the

picketing occurrence; picketed on the steps

of the courthouse; filed a lawsuit against

the city, the police officer, and her

jailors; sought and received access of the

courts in the writ of mandamus proceedings,

seeking access to the personal litigation

files of the city and city attorneys; filed

yet another action in state court suing the

INITIAL DEFENDANTS together with THE

ATTORNEYS; and in each one of these cases

exercised her right of appeal, and rights

to seek discretionary review of every layer

of court in the State of Florida (eight (8)

times); and, now seeks access to this

United States Supreme Court.

It is not possible that the Founding

Fathers in the creation of the

Constitution, nor Congress, through its

enactment of the statutes and amendments,

nor this Court, in its formulation of

federal remedies for federal wrongs, could

have possibly intended to create a federal

cause of action for denial of access to the

courts in favor of a loosing party in a

lawsuit who alleges that the other party

lied or was untruthful in some way and that

that was a possible reason for the loss.

II(b). RICO?

Congress created the Racketeer

Influenced and Corrupt Organizations

Statutes (RICO) for the purposes of doing

away with organized crime, the mob. One

must look no further than Section 1 of

Organized Crime Control Act of 1970 which

sets

forth the purpose of said act

follows:

"The Congress finds that (1)

organized crime in the United

States is a highly sophisticated

common and diversified and

widespread activity that annually

drains billions of dollars from

America's economy for unlawful

conduct in illegal use of force,

fraud and corruption; (2)

organized crime derives a major

portion of its power through

money obtained from such illegal

endeavors as syndicated gambling,

loansharking, theft and fencing

of property, imploration and

distribution of narcotics and

other dangerous drugs and other

forms of social exploitation; (3)

this money and power are

increasingly used to infiltrate

and corrupt legitimate business

and labor unions and to subvert

and corrupt our democratic

process; (4) Organized crime

activities in the United States

weaken the stability of the

nation's economic system, harm

innocent investors and competing

organizations, interfere with

free competition, seriously

burden interstate and foreign

commerce, threaten the domestic

security and undermine the

general welfare of the nation and

its citizens; and (5) organized

crime continues to grow because

of defects in the’ evidence

gathering process of the law

inhibiting the development of the

legally admissible evidence

necessary to bring criminal and

other sanctions or remedies to

bear on the unlawful activities

to those engaged in organized

crime and because of the

Sanctions or remedies available

to the government are

unnecessarily limited in scope

and impact.

It is the purpose of this act to

seek the eradication of organized

crime in the United States by

strengthening the legal tools in

the evidence gathering process by

establishing new penal

prohibitions and by providing

enhanced sanctions and new

remedies to deal with the

unlawful activities of those

engaged in organized crime."

There is a no set of facts alleged in

the Complaint, various briefs on appeal, or

in the Petition for Writ of Certiorari

filed in this Court which do, or could

possibly, allege conduct which Congress

intended to eradicate, control and/or

penalize under the Racketeer Influenced and

Corrupt Organizations Statutes.

II(c). PETITIONER HAS MADE A

MOCKERY OF THE JUDICIAL SYSTEM

The Petitioner has attempted to (a)

prolong the costly nuisance of these

various interminable and harassing lawsuits

arising out of a 1975 arrest, and, (b)

burden this Court with frivolously asserted

non-existent federal issues.

This Court should not lend credence

to, or in any way justify these efforts.

Accordingly, this court should exercise its

discretion in favor of declining

Jurisdiction over this frivolous’ and

vexatious lawsuit.

IItl. THE PETITIONER’S COMPLAINT DOES NOT

SET FORTH A FEDERAL CAUSE OF ACTION

SOUNDING UNDER 42 U.S.C. §1983 FOR DENIAL

OF ACCESS TO THE COURTS.

Petitioner argues that she stated a

cause of action under 42 U.S.C. §1983 for

denial of her rights of access to the

courts. The complaint, however, fails to

set forth such a cause of action. Rather,

the record demonstrates a colorful, yet

disturbing history of Petitioner's abuse of

the court system over some seventeen eke

years.

Certainly, the Constitution, and its

amendments, provide a right of access to

the Courts. United States Constitution

Article IV Section II; Amendments zs WV

XIV. However, the Constitutional right of

access to the Court refers only to the

right to petition the court for redress of

grievances; it does not encompass any right

to obtain information to substantiate such

a claim. Doe v. Schneider, 443 F.Supp. 780

(D.C. Kansas 1978). The cases cited by the

litigant are inapplicable to the instant

case and fail to set forth the denial of

her right to access to the courts, as does

her complaint fail to set forth a cause of

action for same.

In Ryland v. Shapiro, 708 F. 2d. 967

(Sth Cir. 1983), the conduct complained of

is the destruction of, and/or lack of

effort to investigate, evidence prior to

any litigation. In that case, the

plaintiff was prevented, through’ such

destruction or lack of effort from even

knowing that a cause of action existed.

Due to the information dispersed by the

police department, the plaintiff in Ryland

believed that her daughter had committed

suicide. She did not know that her

daughter was murdered, due to the failure

of the police department to. properly

investigate, and due to their withholding

of information with respect to the shooting

incident.

Believing that her daughter's death

was the result of a suicide rather than

murder, the plaintiff in Ryland did not

bring any cause of action for wrongful

death whatsoever and such a cause of action

would have been available to her had the

state actors properly investigated and

delivered evidence. Thus, she was

prevented from filing an action, and the

court determined that such was a

impingement upon her federal right of

access to the courts. Ryland, supra.

In Harrison v. Springdale Water and

Sewer Commission, 780 F.2d 1422 (8th Cir.

1986), a land owner sufficiently stated a

cause of action under §1983 for

infringement of their constitutional rights

of access to the courts. The plaintiffs,

Harrisons, filed a cause of action against

the city for an alleged pollution of their

property by the city. The city filed a

frivolous condemnation counterclaim "as a

tactical move to put pressure on the

Harrisons to settle their damages claim

against the city". The allegations in the

complaint were such that the city had no

Plan for using the property, that the

conduct was purely vexatious and harassing

and was totally without legal basis. This

conduct, (much like denying certain basic

privileges to prisoners who file habeas

corpus actions) constitutes a denial of

access to the courts.

The court reasoned that the conduct

has a chilling effect on the particular

litigant in question, as weli as other

litigants who may choose to file an action.

Harrison essentially is a federal cause of

action for malicious prosecution, and/or

for what happens to habeas corpus prisoners

(i.e. penalizing, chilling, and otherwise

preventing persons from seeking redress of

grievances in the court systen.)

The instant case is factually

distinguishable from tthe Harrison v.

Springdale Water and Sewer Comaission,

Supra, case as well. Here, the actions by

the INITIAL DEFENDANTS could not possibly

constitute an affirmative claim or

frivolous or vexatious claim against the

Petitioner. The conduct of the INITIAL

DEFENDANTS cannot constitute conduct

designed to, or having the effect of,

punishing the Petitioner for her attempt to

access the courts for redress of grievances

or having a chilling effect on her or other

persons similarly situated such that they

could not or would not access the courts.

Further, the complaint does not allege

that the conduct was taken in retaliation

for the Petitioner having exercised her

constitutional rights to seek judicial

relief. Nor did the complaint allege that

the actions have had such a chilling

effect. Rather, the only thing that the

complaint alleges is that the INITIAL

DEFENDANTS and THE ATTORNEYS ' answered

interrogatories and requests for production

SRA, Seer the Petitioner alleges were

untrue, and hindered her ability to win her

case.

It is somewhat surprising that Ms.

Donner could be possibly be heard to

complain that her federally guaranteed

right of access to the courts has been

hampered. She has now filed three (3)

lawsuits and in each has exercised her

right to appeal (eight (8)) at all levels

of the state courts. Indeed she now seeks

and has access to this Court to redress her

grievances.?’

It must be pointed out that though

there is a constitutional right to access

the courts:

"The right of access to the

courts is neither absolute nor

unconditional, and there is no

constitutional right of access to

the courts to prosecute an action

that is frivolous or malicious.

No one, rich or poor, is entitled

to abuse the judicial process.

Tripati v. Bemanan, 878 F. 2d 351

(10th Cir. 1989)." (Citations

omitted. ) os

Based upon her complaint, briefs and

Petition, no federal rights, privileges or

immunities were deprived by the alleged

’ Of course, the Respondents assert

that this Court either lacks jurisdiction,

or should not accept it.

conduct, other than the Petitioner's

federal right of access to the courts.

One need not look at the immunity

issue presented by the Petitioner as she

has failed to state a cause of action for

denial of access to the courts

notwithstanding any potential defenses.

However, in that the Petitioner does,

at great length, discuss the issue of

immunity in her Petition, same will be

addressed herein under United States

Supreme Court Rule 15.1.

The Petitioner's reliance on Howlett

v. Rose, 537 So.2d 706 (Fla. 2d DCA 1989),

is most inapplicable. In Howlett, the

state court determined that a arm of the

state, a county school board, was entitled

to an absolute sovereign immunity in an

action brought by a minor under 42 U.S.C.

§1983. The state court determined that the

question of whether sovereign immunity

exists is a question of state law and not

federal law.

This Court in Howlett v. Rose, 110

S.Ct. 2430 (1990) correctly ruled that the

state court as a court of general

jurisdiction was compelled to hear federal

based causes of action, and that the state

statutory assertion of sovereign immunity

waS not applicable to federally based

causes of action. This Court reaffirmed

its holding in Martinez v. California, 444

U.S. 277 (100 S.Ct. 553), 62 L.Ed. 2d 481

(1980). There, it was held that a state

Cannot immunize an official from liability

for injuries compensable under federal law.

That point is not argued herein.

Rather, the position of the

Respondents is that there are long standing

common law immunities which apply to cases

brought under 42 U.S.c. $1983, as they do

to other actions. Burns, supra; Briscoe v.

LaHue, 460 U.S. 325 (1983). Those common

law immunities which existed prior to the

enactment of 42 U.S.c. §1983 have not been

abrogated by its creation. Burns, supra.

There has long since been an immunity

afforded to litigants for litigation

related conduct. Such common law is well

established in the various Florida cases

cited by these Respondents in their

previous briefs, and indeed by the Third

District Court of Appeal decision. These

common law immunities have long since stood

and are not abrogated by the creation of

the federal cause of action. Burns, supra.

The Petitioner's complaint fails to

set forth a cause of action for denial of

access to the courts and further, assuming

arguendo that the complaint does set forth

denial of that or some other federal right,

the absolute immunity afforded to the

litigants bars such an action. Robertson

Vv. Industrial Insurance Company, 75 So.2a

198 (Fla. 1954); Meyers v. Hodges, 44 So.

357 (Fla. 1907); Ponzolji and Wassenberg v.

Zuckerman, 545 So.24 309 (Fla. 3d pca

1989); Perl v. Omni International of Miami,

Ltd., 439 So.2da 316 (Fla. 3d DCA 1983);

Sailboat Key, Inc. v. Gardner, 378 So.2qa 47

(Fla. 3d DCA 1979); Regal Marble, Inc. y.

Drexel Investments, Inc., 515 S0.2a4 1015

(Fla. 4th DCA 1987); Wright v. Yurko, 446

SO.2d 1162 (Fla. 5th DCA 1984). Those

privileges anda immunities appear on the

face of the complaint anda accordingly the

complaint fails to set forth a cause of

action upon which relief can be granted.

Flye v. Jeffords, 106 So.2q 228 (Fla. lst

DCA 1958).

The reasoning of these rules of law

are both sound and well established. The

courts have stated:

"The policy reasons for the

privilege have often been

repeated:

'In fulfilling their

obligations to the

clients and to the

court, it is essential

that lawyers, Subject

only to the control by

the trial court and

the bar, should be

free to act on their

own best judgment in

prosecuting or

defending a lawsuit

without fear of later

having to defend a

civil action for

defamation for

something said or

written during the

ewes t.on. * *

Ponzoli, supra at 310.

(Citations omitted. )

The common law of immunity extends to

actions sounding not only in defamation but

in fraud and as stated in Perl, citing

Robertson, by reasoning:

"The grounds upon which the rule

of absolute privilege is

sustained as to judicial

proceedings is that all persons

connected with the proceedings

should be free from fear of being

called upon to defend suits

arising as a result of derogatory

disclosures and that to permit

such suits would result in a

circuitry of actions by which the

same issues tried in the judicial

proceedings could be retried."

Perl, supra, at 318. (Citations

omitted. )

That is exactly was is going on here.

The Petitioner believes that She has been

wronged during the 1976 litigation

discovery process. Any wrongs, and their

remedies, be they under state, or federal

law, should be addressed in the original

1976 litigation to avoid Circuitousness

and, a multiplicity of Suits, and to ensure

the correct procedural forum.

The repercussions of the conduct of

THE ATTORNEYS and the INITIAL DEFENDANTS

Should be left to the discretion of that

court wherein the alleged conduct has

occurred; be that either by a state or

federal cause of action Or remedy; through

contempt proceedings; sanctions; and/or

through admonishment by the state bar.

Buchanan Vv. Miami Herald Publishing

Company, 237 So.2da 9 (Fla. 1969); Wright,

Supra, at 1164.

Iv. PETITIONER’S COMPLAINT DOES NOT SET

FORTH A FEDERAL CAUSE OF ACTION SOUNDING

UNDER 18 U.S.C. 1964 FOR A FEDERAL RICO

VIOLATION IN THAT IT FAILS TO ALLEGE

SUFFICIENT CRIMINAL PREDICATE ACTS, AND

FAILS TO ALLEGE AN INJURY RECOGNIZED BY

RICO STATUTES.

The RICO statutes were not designed to

encompass this case’® even assuming each

and every allegation of the Petitioner as

being true and taking each and every

inference therefrom in favor of the

Petitioner. This simply isn't what RICO

stands for.

However, to the extent that RICO is

thoroughly discussed by Petitioner, counter

argument shall be presented herein pursuant

to United States Supreme Court Rule 15.1.

The complaint fails to state a cause

of action for a civil remedy under the

Federal RICO Statutes, 18 U.S.C. §1961-1964

and was appropriately dismissed. The

Petitioner's complaint does not allege any

criminal predicate acts to qualify for

RICO. The Petitioner attempts to allege a

18 See II(b).

pattern of mail fraud by claiming the

INITIAL DEFENDANTS, through THE ATTORNEYS

made written misrepresentations to her,

during litigation, which were sent through

the United States mail. [See Appendix A-1

through A-21, Subparagraphs 8(a) through

(h), 22, 23, 24, and 29.}] The issue is not

whether there were misrepresentations in

the discovery. The issue is solely whether

the mailing of such discovery is mail fraud

as defined in 18 U.S.c. §1341. The answer

is no. As there was no mail fraud the

complaint fails to allege predicate acts

and, therefore, the complaint was

appropriately dismissed.

The act of sending even false answers

to interrogatories and responses to request

for production through the mail does not

violate the Federal Mail Fraud Statute. 18

U.S.C. §1964 allows a civil] remedy for any

person injured in his business or property

by reason of a violation of 18 U.S.C. §1962

(RICO). 18 U.S.C. §1962 prohibits, among

other things, "patterns of racketeering

activity" as ",..any act which is

indictable under...18 Psu, §1341

(relating to mail fraud)". Pursuant to 18

U.S.C. §1961, the predicate act complained

of (mail fraud) must be indictable under

the appropriate statute (18 U.S.C. §1341,

mail fraud). The "racketeering activity"

must be an act in itself subject to

criminal sanctions. It must be an act or

practice which is treated, traditionally,

as criminal in nature. Sedima, S.P.R.L. vy.

Imrex Co., Inc., 105 S.Ct. 3275 (1985);

Kleiner v. First National Bank, 526 F.

Supp. 1019 (M.D. Ga. 1981). Sending

responses to discovery, whether false or

not, through the mail, is an action which

is not indictable, not Subject to criminal

Sanctions and has not been treated

traditionally as Criminal in nature.

Courts have Specifically held an

~¥

attorney's (or party's) action of sending

even false statements through the mail

during litigation is not punishable under

the Mail Fraud Statute. To allow such

action would chill the ability of attorneys

(Or parties) to adequately and zealously

represent their clients interests in

litigation, McMurtry v. Brasfield, 654 F.,

Supp. 1222 (E.D. Ba. 1987). In Spiegel v.

Continental Illinois National Bank, 609 F.

Supp. 1083 (D.c. I1l. 1985) where the RICO

Claim involved a predicate act of an

attorney sending a false statement to

another attorney through the mail during

litigation, the court stated:

"In the view of the court, false

Statements made between attorneys

in the context Of pending

litigation are outside the scope

of the Mail Fraud Statute. No

fiduciary duty exists and the

parties are dealing at arms

length. The appropriate remedy

in such a case would be to lodge

@ Complaint with the appropriate

disciplinary body or apply to the

court for assistance. A RICO

action for treble damages is

hardly an appropriate solution."

McMurtry, at supra.

In discussing the same issue, the

Court in McMurtry stated that subjecting

such correspondence to a Mail Fraud Statute

would chill an attorney's effort and duty

to represent his client during the course

of pending litigation, and, as in the case

at bar, give birth to collateral suits.

Therefore, as the predicate acts alleged in

the complaint are not indictable under the

Mail Fraud Statute, the complaint failed to

state a claim for civil RICO and was

appropriately dismissed.

Petitioner cites U.S. v. Peters, 732

F.2d 1004, (lst Cir. 1984), in support of

her position that mailing of interrogatory

answers gives rise to a RICO violation.

That case involves two defendants who were

charged with the criminal RICO violations

for committing arson of their warehouse and

attempting to collect on the insurance

policies. They mailed sworn statements of

loss in furtherance of their

arson/insurance fraud conspiracy. The

defendants therein, the Court held, knew

that as a furtherance of their initial

criminal conspiracy, "their attorneys would

send the insurance claims forms and

interrogatory answers through the mail or

that the Defendants knew these mailings

would follow in the ordinary course of

business." Arson and insurance fraud are

acts traditionally considered criminal in

nature. Peters is inapplicable to the

instant case.

Petitioner also cites U.S. v. Vaughn,

797 F.2d 1485 (9th Cir. 1986) as supporting

her contention that an attorney is

susceptible to a mail fraud conviction for

a petition and follow up letters he knew to

be false. There, the attorney was charged

with conspiracy to import marijuana, aiding

and abetting importation of marijuana and

making a false statement to a government

agency together with the four counts of

mail fraud. The attorney was involved with

the conspiracy to import marijuana and in

furtherance of the conspiracy to import

marijuana (traditionally a criminal act)

the attorney submitted petitions and false

documents to federal agencies to obtain the

aircraft used to smuggle the drugs. Vaughn

is inapplicable to the instant case.

Finally, Petitioner sets forth the

case of U.S. v. Leyden, 842 F.2d 1026 (8th

Cir. 1988). Leyden does not hold that

mailing of a pleading can serve as the

basis for a mail fraud prosecution.

Rather, in Leyden, the mailing of the

insurer's responsive pleading was held not

to serve as a basis for a mail fraud

prosecution.

Even still, Leyden also dealt

with a criminal prosecution arising under a

predicate act of arson for the purposes of

insurance fraud.

The Petitioner's complaint also fails

to state a cause of action as the injury

claimed is not one recognized under the

RICO Statutes. 18 U.S.C. §1964(c) provides

that a person may sue who is injured in his

"business or property" by reason of a

violation _of §1962. Congress did not

intend for victims of predicate acts to

recover for all types of injuries suffered.

Therefore, the limitation. Sedima, supra;

Grogan v. Platt, 1835 F.2d 844 (11th Cir.

1988). Personal injury claims are not

injuries to business or property and are

precluded. Sedima, supra; Grogan, supra.

The Petitioner's complaint alleges

damages in the 1976 civil complaint, out of

which this action arises, solely for

personal injuries. The complaint alleges

that damages for the personal injury claim

would have been more had it not been for

the alleged misrepresentations. Therefore,

the damages are claimed for _ personal

injuries. As the complaint fails to state

a cause of action for civil RICO, it was

appropriately dismissed.

CONCLUSION

The Petitioner has failed to, and

cannot properly invoke the jurisdiction of

this Court under 28 U.S.C. 6§1257(a).

Indeed, even if said jurisdiction could be

invoked, this Court should exercise its

discretion in favor of declining

Jurisdiction over this frivolous,

vexatious, colorless and meritless lawsuit.

Nothing presented by the Petitioner in any

way sets forth a real federal cause of

action, much less one which is substantial

Or important. The Founding Fathers and

Congress in no way intended the federal

Constitution, statutes and remedies to

apply to this Petitioner or to the conduct

complained of in this case.

Wherefore, the Respondents herein

respectfully request that this Court

dismiss the petition for want of

jurisdiction, and/or in the alternative

exercise its discretion and decline its

jurisdiction over this matter.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and

correct copy of the foregoing was mailed

this 24th day of February, 1992, to: E.s.

CORLETT, e > eS ESQUIRE, 116 West Flagler

Street, Miami, FL 33130; and to MIRIAM

DONNER, Post Office Box 1232, Hallandale,

FL 33008-1232.

Respectfully Submitted,

David Kleinberg, Esquire

GAEBE, MURPHY, MULLEN

ANTONELLI & GERLIN

420 South Dixie Highway

Third Floor |

Coral Gables, FL 33146

Tel.: (305) 667-9223

IN THE CIRCUIT COURT OF

THE 11TH JUDICIAL

CIRCUIT IN AND FOR DADE

COUNTY FLORIDA

GENERAL JURISDICTION

DIVISION

CASE NO.: 89-37625 CA 17

MIRIAM DONNER,

Plaintiff,

Vv. COMPLAINT

APPALACHIAN INSURANCE

COMPANY, a Rhode

Island corporation,

CITY OF MIAMI, VERNON

HETHERINGTON, FOWLER,

WHITE, BURNETT, HURLEY,

BANICK & KNIGHT, P.A.,

a/k/a FOWLER, WHITE,

BURNETT, HURLEY, BANICK

& STRICKROOT, P.A., a

Florida professional

association, PHILLIP

W. KNIGHT, and MICHAEL

J. MURPHY,

Defendants.

Plaintiff Miriam Donner sues Defendants

Appalachian Insurance Company, a Rhode

Island corporation (hereinafter referred to

as Appalachian), City of Miami (hereinafter

referred to as the City), Vernon

A-1

Hetherington (hereinafter referred to as

Hetherington) Fowler, White Burnett, Hurley,

Banick & Knight, P.A. a/k/a Fowler, White,

Hurley, Banick & Strickroot, P.A., a Florida

professional association (hereinafter

referred to as the P.A.), Phillip W. Knight

(hereinafter referred to as Knight) and

Michael J. Murphy (hereinafter referred to

as Murphy) and alleges:

- (a) This is an action for damages

in excess of $5,000, exclusive of interest,

attorney's fees and costs.

(b) Appalachian is an insurance

company authorized to do business in the

state of Florida.

2. In Case No. 76-8301 filed in the

above-styled Court, Plaintiff Miriam Donner

sued Defendants City of Miami Police Officer

Hetherington, the City, Appalachian,

Metropolitan Dade County (hereinafter

referred to as Dade County), certain Dade

County correctional officers, et al.

A-2

3. In that suit, plaintiff alleged

inter alia that

(a) While she was exercising her First

Amendment rights to picket and gather

Signatures upon a petition, she was falsely

arrested on a criminal charge of breach of

peace, imprisoned by Hetherington, acting

within the course’ and scope of his

employment as a City Police Officer, and

deprived of her civil rights under color of

state law;

(b) as a result of that arrest, she was

imprisoned in the Dade County Women's Annex

as a pretrial detainee for five days;

(Cc) while so imprisoned, the personnel

of. that Annex, acting within the course and

Scope of their employment as employees of

Dade County and under color of state law,

Physically assaulted her, stripped her

naked, and left her penned in a cold

solitary cell (all in full view of male

prison personnel) without Clothing,

A-3

blankets, towels, linen, medical attention,

exercise facilities, soap, toilet paper,

running water, other elements or personal

hygiene or operable toilet for about four

days;

(d) after hearing the testimony of

arresting Officer Hetherington, the court

granted Donner's motion to dismiss the

criminal charges lodged by Hetherington

against her and dismissed those charges;

(e) as a result of the foregoing, she

suffered mental anguish, humiliation,

disgrace, physical pain and embarrassment,

for which she sought damages, (compensatory

damages against all defendants and

additional punitive damages against the

individual defendants).

3. Since Appalachian had issued a

liability insurance policy to the City and

its police officers for the policy period

including the dates of the incidents alleged

in the complaint, Appalachian was joined as

A-4

a defendant in that suit in its capacity as

liability insurer of the city and of

Hetherington in regard to the Claims

asserted,

4. Knight, Murphy, Fred Ober, and Greg

Gaebe respectively were attorneys employed

by the P.A., a professional association

engaged in the practice of law. Knight was

at all relevant times a partner in the P.A.

until his separation from the P.A. in 1979.

Murphy became a partner in the P.A. before

his separation in 1985 but the date of

inception of his partnership position is

unknown.

5. Appalachian retained, maintained,

and supervised the legal services of the

P.A. to represent Appalachian, the City and

Hetherington in regard to the claims

asserted in Case No 76-8301.

6. (a) In particular, the P.A. did

appear in that case in behalf of those

defendants through attorneys Knight, Murphy,

A=-5

Fred Ober, and Greg Gaebe.

(b) Moreover, Knight and the P.a~.

appeared in that case in behalf Of Dade

County and the Dade County correctional

officers.

7+ The City, Hetherington, and

Appalachian asserted in their answers

various defenses.

8. In the course of pretrial discovery

proceedings in that case and under color of

state law, the City, Hetherington,

Appalachian, the a and Knight,in

conspiracy with one another, engaged in a

scheme and pattern of fraudulent

misrepresentation to plaintiff and to the

Court through service by mail of papers

through the U. S. Postal Service, including

inter alia the following:

(a) the City's April 12, 1976 answers

to interrogatories nos. 4,6, and 7 (served

with the complaint) served upon plaintiff by

P.A. through Knight (representing that

A-6

witnesses to the arrest incident were

"unknown" and that insurance coverage is

"unknown" ) ;

(b) Hetherington's May 25, 1977 answers

to interrogatories nos. 5, 5c, and 7 served

upon the plaintiff by the P.A, through

Knight (representing as the only insurer

Appalachian and representing that the only

statement given by Hetherington concerning

the incident was a July 1, 1975 statement to

Officer P.F. Kumalae) ;

and the P.A. in behalf of the City to the

Court (representing that the City had only

two statements of its officers with regard

to that incident _ anda that all such

statements were being supplied to the Court

pursuant to its discovery order) ;

(d) service upon Plaintiff of the March

21, 1978 response of the City through its

attorneys, the P.A., and Knight, to

Plaintiff's request for production nos. 3

A-7

and 9 (representing that al] records

requested in those requests and ordered to

be produced in the aforementioned discovery

Order had been produced) ;

(e) their March 31, 1978 reservice upon

plaintiff and refiling of the said March re

1978 response;

(f) service upon plaintiff of the May

8, 1978 response of the City through its

attorneys, the Pes and Knight, to

Plaintiff's request for production (again

representing that all of the records ordered

to be produced in that discovery order had

been produced) ;

(g) service upon plaintiff of

Hetherington's and the City's 1978 response

to plaintiff's motion for Sanctions (again

repeating the aforementioned

representation) ;

(h) service upon plaintiff of

Hetherington's and the City's July 21, 1978

response to plaintiff's request for

A-8

production (representing the limits of

insurance coverage).

9. Those representations were false.

Among the false aspects of those

representations were the following:

(a) (i) the names ana addresses of

witnesses to the arrest incident (i. e. John

McBride and Bill Urbiza) were known to the

defendants, to the P.A., and to Knight ever

Since 1975;

(ii) those witnesses were no longer

available to provide testimony when finally

Plaintiff was able through other means to

learn their names;

(b) (i) in addition to the Single July

1, 1975 statement of Hetherington and Single

June 23, 1975 statement of Officer Parker

that were produced and disclosed, other

Statements were at all relevant times known

to, and in the custody and control of, the

defendants; included inter alia among those

concealed statenents were the following:

A-9

Hetherington and Officer Parker, on May 6

and May 7, 1975 respectively, executed

written statements to Sargeant Chapek abcut

the arrest incident, supplied to the P.A.,

to Knight, to Appalachian, and to the City,

that were concealed in Hetherington's

aforementioned answers to interrogatories

and in the City's and Hetherington's

aforementioned responses;

(ii) while the June 23, 1975 and

July 1, 1975 statements that were produced

both contained an allegation that plaintiff

Stated she wanted to be arrested, the

earlier statements that were withheld

omitted any such allegation; moreover, the

withheld May 6, 1975 Statement served to

confirm the time of arrival of Hetherington

on the scene of the arrest;

(iii) Hetherington stated under

oath that the June 23, 1975 and July 1, 1975

Statements that the City produced were not

authentic;

(Cc) two liability policies issued by

Columbia and California Union Insurance

Company affording $1,000,000 limits and a

$5,000,000 limit policy issued by Houston

General Insurance Company to the City and to

its police officers covering the period

during which the arrest of Plaintiff took

place and covering the claim was concealed;

10. Those representations were known by

the respective defendants to be false when

made or alternatively were made without

knowledge of whether they were true or

false.

11. Those representations- were made

with the intention that Plaintiff should

rely upon them as true.

12. Those representations were material

to the preparation and presentation of

plaintiff's case for trial, not only against

these defendants, but also against Dade

County and the Dade County correctional

officers joined as defendants.

A~ii

13. Plaintiff relied upon the truth of

those representations in preparing and

presenting their case for trial to her

detriment.

14. If defendants would have truthfully

disclosed the that aforementioned withheld

statements existed and were in the custody

and control of the City, Appalachian,

Hetherington, the P.A. and Knight, plaintiff

could have effectively argued to the Court

that discovery sanctions, including the

entry of default, should be imposed upon the

City and Hetherington for their violation of

the prior discovery order requiring the

production of those statements.

15. At the April, 1980 trial of that

case, the P.A., Ober, and Murphy (and the

office of the Dade County Attorney) appeared

in behalf of the defendants.

16. (1) At that trial, Hetherington

testified that plaintiff told him at the

time of arrest that she wanted to be

A-12

arrested and sought to cast doubt upon

Plaintiff's evidence of his time of arrival

on the scene of the arrest.

(ii) A central element in

Plaintiff's proofs was that Hetherington's

time of arrival was at "1420", the same time

as the arrest.

(iii) Hetherington haa testified

that in his mind Plaintiff's conduct when he

first observed her was in a gray area, not

enough to form the basis for an arrest but

contrary to the notations on the arrest

report and on his worksheet he variously

testified at trial that he did not then

arrest her or that he arrived earlier on the

scene.

(iv) Plaintiff alone was able to

testify on the other hand that Hetherington

arrested her immediately without any

probable cause and that She did not state

that she wanted to be arrested;

(v) If plaintiff would have had

access to the records withheld as a result

of the foregoing misrepresentations and if

defendants would not have falsely

represented under oath that the remaining

Statements were not cuthentic, plaintiff

could have conducted further pretrial

discovery to uncover evidence that plaintiff

could have introduced at trial to impeach

and contradict Hetherington's testimony and

plaintiff could have produced evidence

impeaching and contradicting that testimony.

(vi) Although the P.A., Ober and

Murphy were fully cognizant of the prior

scheme or pattern of fraudulent

misrepresentations, in furtherance of that

scheme, under color of State law, and in

conspiracy with one another and with the

other defendants, they continued to conceal

from plaintiff the truth and to avail their

clients at trial of the advantage thereby

gained.

17. (a) At that trial, the Court

directed a verdict in favor of the City,

Hetherington and Appalachian and entered

judgment on that verdict in favor of those

defendants.

(b) If defendants would not have

committed the aforementioned fraudulent

misrepresentations, plaintiff could have

presented additional evidence at trial that

would have avoided the entry of that

directed verdict and the necessity, expense,

and mental anguish of the appeal that was

thereby necessitated.

18. That verdict and the ensuing

judgment in favor of those defendants was

reversed on appeal.

19. At that trial, after the verdict

was directed, plaintiff's claims against

Dade County and the Dade County correctional

officers were submitted to the jury.

20. In closing argument to the jury,

the Dade County Attorney generally attacked

A=-15

Plaintiff's credibility and specifically

pointed out to the jury Hetherington's

testimony that plaintiff allegedly stated

she wanted to be arrested and he argued to

the jury that since she wanted to be

arrested she was not entitled to any

Substantial damages for the conditions of

her incarceration.

21. The jury returned a verdict in

favor of plaintiff and against the remaining

defendants but, as a result of those

fraudulent misrepresentations, only in the

sum of Fifteen Thousand Dollars.

22. (a) In furtherance of the

aforementioned scheme or pattern of

fraudulent misrepresentations, with

knowledge of the fraudulent character of

those representations, and in conspiracy

with one another and with the other

defendants, Murphy and the P.A., acting in

behalf of Hetherington, Appalachian and the

City, under color of State law, falsely

A-16

represented to plaintiff and to the Court at

an October 23, 1981 hearing that defendants

are not trying to hide anything and are not

Claiming any privilege that plaintiff can

have any records she wants So long as the

request is channeled through Murphy.

(b) On October 28, 1981, plaintiff

made a public records demand upon the City

of Miami Attorney and upon the P. A. and

Murphy to produce their respective case

files relating to the claims asserted in

Case No. 76-8301.

23. Included in those case files were

all of the aforementioned statements,

records referring to those statements,

records confirming defendants' knowledge at

all relevant times of the existence of those

records and of the existence of the

aforementioned withheld names and addresses

of witnesses and of the existence of the

aforementioned withheld liability insurance

policies.

24. In response to that request, in

order to conceal that scheme or pattern of

fraudulent misrepresentations, and in order

to deprive plaintiff of her claims asserted

in Case No. 76-8301, the City and the P. A.

and Murphy, acting in conspiracy with one

another and with the other defendants and

acting in behalf of and in concert with the

City and under color of state law, responded

that the demanded records would be produced

only when donkeys fly.

25. As a result, plaintiff as Relator

was forced in 1981 to initiate a mandamus

proceeding (Case No. 81-369 EX later

renumbered as Case No. 83-9287 CA 26)

against Respondents Assistant City Attorney

Steve Edelstein, Murphy, the P. A., and the

City to gain access to those records.

26. That proceeding was litigated at

all levels of the Florida court system over

a period of four years and finally resulted

in the issuance of a writ of mandamus

requiring those Respondents to produce the

demanded public records.

27. For the first time, on August 19,

1985, plaintiff received notice of the entry

of that writ and on that date Respondents

produced to plaintiff for inspection certain

of the demanded records.

28. During the pendency of the public

records mandamus preceeding, Case No. 76-

8301 was stayed.

29. In furtherance of that scheme or

pattern of fraudulent misrepresentations and

of the said conspiracy, Appalachian financed

the P. A.'s and Murphy's defense of the

mandamus proceeding.

30. As a further result of that scheme

or pattern of fraudulent misrepresentation,

the said conspiracy and the aforementioned

efforts to conceal them and the resulting

delays and litigation,

(a) plaintiff has incurred

emotional stress, mental anguish, and

aggravation of a prior physical condition,

to-wit, headaches;

(b) relevant evidence useful to

plaintiff in the prosecution of her claims

(including claims for violations of her

Civil rights) has been lost;

(Cc) the memories of material

witnesses useful to Plaintiff in the

prosecution of ner claims (including claims

for violations of her civil rights) have

prejudicially faded;

(d) plaintiff devoted substantial

time to the prosecution of the said

discovery efforts and to the public records

proceeding.

Wherefore, plaintiff demands judgment

against defendants for triple compensatory

damages, for punitive damages, for any

attorney's fees that may be incurred in the

prosecution of this action, and for her

costs.

MIRIAM DONNER, Plaintiff

P. O. Box 1232

Hallandale, Florida 33009

IN THE CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT OF FLORIDA IN AND FOR

DADE COUNTY FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 89-37625 CA 17

Miriam Donner,

Plaintiff,

vs.

APPALACHIAN INSURANCE

COMPANY, a Rhode

Island corporation,

CITY OF MIAMI, VERNON

HETHERINGTON, FOWLER,

WHITE, BURNETT, HURLEY,

BANICK & KNIGHT, P.A.,

a/k/a FOWLER, WHITE,

BURNETT, HURLEY, BANICK

& STRICKROOT, P.A., a

Florida professional

association, PHILLIP

W. KNIGHT, and MICHAEL

J. MURPHY,

Defendants.

ee eee EEE EEE EEE ED DD

PLAINTIFF'S MOTION FOR REHEARING

Plaintiff Miriam Donner moves the Court

to rehear its order entered March 27, 1990

and upon rehearing to set. aside or

alternatively amend that order in accordance

with the following grounds.

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PLAINTIFF'S OBJECTION TO PURPORTED

VERIFICATION OF MOTION

In entering that order, the Court may

have overlooked Plaintiff's March 5, 1990

"Objection" to defense counsel's purported

"verification" of Defendants City of Miami's

and Hetherington's motion to dismiss. That

verification was not stated to be on

personal knowledge and no facts were alleged

that showed it to be on personal knowledge.

Moreover, that motion contains merely legal

conclusions and no factual assertions. Nor

was that motion Supported by any

documentation.

In entering that order, the Court may

also have overlooked that, in any event, one

may not look beyond the four corners of the

allegations of the complaint to determine

whether the complaint states a cause of

action. Any alleged res judicata, collateral

estoppel, limitations, or waiver is a matter

in avoidance that must be pleaded as an

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affirmative defense; such an affirmative

defense may sate be interposed in a motion to

dismiss unless’ the allegations of the

complaint are alone sufficient to

affirmatively establish that defense. The

allegations of the instant complaint do not

establish any such defenses.

In entering that order, the Court may

have overlooked that, with regard to the

statute of limitations, paragraph 17 of the

complaint clearly sets out that the date

when certain allegedly concealed records

were made available to plaintiff anda

therefore the date when first the alleged

fraud could have been discovered was not

before August 19, 1985, just four years

before the date of commencement of suit

(Monday August 21, 1989). A plaintiff is

under no obligation to anticipate the

defense of the statute of limitations by

alleging the "date of discovery" in the

complaint.

In entering the order, the Court may

have overlooked that, with regard to the

claim of res judicata or collateral

estoppel, the only judgments alleged in the

complaint are (a) plaintiff's money judgment

against Dade County in Case No. 76-8301 and

(b) the writ of mandamus issued against the

City of Miami, Murphy, Fowler, White, and

Assistant City of Miami Attorney Edelstein

in the public records proceeding, Case No.

83-9287. The allegations of the complaint do

not affirmatively demonstrate that there is

any "privity" between Dade County and the

City, City of Miami Police officer

Hetherington, the C2tr"s insurer

Appalachian, Fowler, White, Knight, or

Murphy that would in any manner entitle

defendants to set that judgment up as

collateral estoppel or res judicata in the

case at bar. Moreover, any collateral

estoppel effect of the peremptory writ of

mandamus in Case No. 83-9287 would

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necessarily reinforce plaintiff's claims in

the case at bar that she was entitled to

access to the records held to be public

records that were allegedly concealed from

her in Case No. 76-8301. No aspect of that

writ in any way detracts from plaintiff's

instant cause of action. The complaint does

not disclose that the instant claims for

damages could have been joined in that

mandamus proceeding, first because of the

nature of that proceeding and second because

defendants' alleged conduct complained of in

the complaint is not alleged to have been

discovered when that proceeding was

commenced. No evidence outside the four

corners of the complaint can be considered

on a motion to dismiss in support of

defendants' claim that the action is barred

by res judicata or estoppel by judgment.

In entering that order, the Court may

have overlooked that, in Wilson v. Wahl, 383

So. 2d 311 (Fla. 2d DCA 1980), the Second

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District reversed an order of dismissal,

aptly holding:

It appears that the order of

dismissal was entered because

there was another action pending

between the parties in another

division of the same court

involving questions of law and

fact common to those raised by the

complaint in the case at bar.

Under these circumstances, we

think that administration of

justice is best served by an order

which averts the piece-meal

handling of the claims between the

parties. An order which

consolidates the actions, rather

than the order which dismissed the

instant action will effect that

desired result.

..-Fla.R.Civ.P. 1.270. (Emphasis

added)

That decision recognizes the

inappropriateness of dismissal just because

it is alleged that another already-pending

action involves common or overlapping

questions of law or fact.

In entering their order, the Court may

have overlooked that the allegations of the

instant complaint clearly state claims upon

which relief may be granted. Among the

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causes of action stated are

(a) common-law fraud; all the elements

of such an action are fully alleged [see

allegation in paragraphs 8(a)-(h), 9(a)-(c),

a0, 22, 28, S23, 29) 20, 26, B27, 26, 39c 20%

21, and 30 of complaint];

(b) common-law conspiracy (see

paragraphs 4, 5, 6, 8, 16(vi), 24, and 29 of

complaint) ;

action against Cedars of Lebanon Hospital

approved in Bondu _v. Gurvich, 473 So.2d

1307, 1312-1313 (Fla. 3d DCA 1984), rev.

denied, 484 So.2d 7 (Fla. 1986) (patient may

sue hospital for hospital's loss of records

statutorily required to be maintained by the

hospital where that loss allegedly resulted

in the summary judgment in favor of doctor

in patient's medical malpractice suit

against that doctor); all of the elements of

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a Bondu-type? Suit are alleged {see

Paragraphs 8(c), (d), and (f), 9(b) (i) ana

fear «. S86, 16(v), and 17(b), and 26 of

complaint; Sec. 119.01, 119.041, and 119.07,

Pia. Stat. (1975). See also Sec. 119.01,

119.041, 119.07, Fla. Stat. (1975); and

Edelstein v. Donner, 471 So.2d 26 (Fla.

1985) );

(d) an action under 18 U.S.C. Sec.

1964(c) (Civil RICO), based upon defendants!

alleged use of the mails in furtherance of

their alleged pattern of conduct, Tafflin v.

Levitt, wv. Ss. ____ (Case No. 88-1650,

Opinion filed January 22, 1990) (state

courts have jurisdiction over federal civil

RICO actions; "many RICO cases involve

asserted violations of state law, such as

state fraud Claims") (see paragraphs 8,

8(a)-(h), 22, 23, 24, and 29 of complaint).

In entering its order, the Court may

1 Bondu_v. Gurvich, 473 So.2d 1307.

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also have overlooked that, contrary to the

arguments advanced in paragraphs 9 and 10 of

the City's motion to dismiss, the doctrine

of sovereign immunity does not insulate the

City from a federal civil RICO action and

therefore Sec. 768.28, and its limitations

have no bearing upon the City's liability.

The Supremacy Clause of the U. S.

Constitution gives priority to the federal,

not the state, statute. See Felder v. Casey,

108 S. Ct. 2302 (1988).

If the order was’ based upon a

determination that the complaint was somehow

deficient in setting out a cause of action,

the Court may have also overlooked the fact

that plaintiff was entitled to at least one

opportunity to amend and that the said order

erroneously failed to grant leave to amend.

Finally, the said order, as worded, is

inconsistent.

For all of the foregoing reasons,

rehearing should be granted and on rehearing

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the said order should be set aside or

modified to comport with the foregoing

Principles of law.

I HEREBY CERTIFY that true copies of

the foregoing were mailed to David

Kleinberg, Gaebe, Murphy, Mullen &

Antonelli, 4601 Ponce de Leon Blvd. Ste. 100

Coral Gables, Fla 33146 and to E. S. Corlett

III 116 W. Flagler St. Miami, Fla 33130 this

Sth day of April, 1990.

P. O. Box 1232

Hallandale, Florida

33008-1232

IN THE CIRCUIT COURT OF

THE 11TH JUDICIAL

CIRCUIT OF FLORIDA IN

AND FOR DADE COUNTY

FLORIDA

GENERAL JURISDICTION

DIVISION

CASE NO.: 89-37625 CA 17

MIRIAM DONNER,

Plaintiff,

Vv. ADDENDUM TO MOTION

FOR _ REHEARING

APPALACHIAN INS.

CO., et al.

Defendants

Plaintiff Miriam Donner files as an

amendatory addendum to her motion for

rehearing the additional grounds that the

complaint also states a cause of action

under 42 U. S. C. Sec. 1983.

I HEREBY CERTIFY that true copies of

the foregoing were mailed to David Kleinberg

4601 Ponce de Leon Boulevard Suite 100 Coral

Gables, Florida 33146 and to FE. S. Corlett

III 116 W. Flagler Street Miami, Florida

33130 this 6th day of April, 1990.

P. O. Box 1232

Hallandale, Florida

33008-1232

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.