Appendix — Sibley v. Lando

oy

\ Supreme Court, U.S.

(2) ; FILED

No. 031544 11 2004

IN THE SUPREME COURT OF THE UNITED STATES

ALEXANDER BLAIR SIBLEY, a minor,

by and through

MONTGOMERY BLAIR SIBLEY, his Father,

Petitioner,

VS.

MAXINE COHEN LANDO, in her capacity

as a Judge of the Circuit Court of the 11th Judicial Circuit

in and for Miami- Dade County, Florida,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

Appendix to Petition for Writ of Certiorari

Montgomery Blair Sibley

560 Longhorn Crescent

Rockville, Maryland 20850

(202) 478-0371

Counsel for Petitioner

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CONTENTS OF APPENDIX

Complaint for De ‘aratory Relief .................. A-3

The August 27, 2003, hearing transcript ........... A-14

The May 19, 2003, order of the United States District Court

for the Southern District of Florida dismissing the complaint

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The January 5, 2004, Order Denying Motion to Intervene by

Petitioner, Alexander Blair Sibley in the Circuit Court of the

11™ Judicial Circuit in and for Dade County, Florida, Family

Division, Case No.: 94-18177 FC 19 .............. A-30

The February 20, 2004, opinion of the United States Court of

Appeals for the Eleventh Circuit affirming the dismissal of the

NN ta ee ek re er eee CT, A-32

The March 31, 2004, order denying Petitioner’s motion to

publish of the United State Court of Appeals for the Eleventh

ME S sv eas eae saat hee de A-35

Constitutional Provisions, Treaties, Statutes,

Ordinances and Regulations Involved

U.S. Constitution, 14" Amendment, Section] ....... A-36

U.S. Constitution, 14" Amendment, SectionS ....... A-36

ae A-36

ra ee A-36

A-2

Federal Rules of Civil Procedure, Rule 15(a) ........

Eleventh Circuit Rule 36-2

Florida Statute §61.30(12)

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UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Case. No.03-21885-CV-PCH

ALEXANDER BLAIR SIBLEY, a minor,

by and through MONTGOMERY BLAIR SIBLEY,

his Father,

Plaintiff,

vs.

MAXINE COHEN LANDO, in her capacity

as a Judge of the Circuit Court of the 11

Judicial Circuit in And For Miami- Dade

County, Florida,

Defendant.

/

COMPLAINT FOR DECLARATORY RELIEF

Introduction

l. By this lawsuit, Plaintiff seeks a declaratory judgment

that his rights secured by the Fifth Amendment Due Process

Clause, the Fourteenth Amendment Equal Protection Clause,

Article I, § 2, of the Florida Constitution and Florida law as

enunciated by the Florida Supreme Court in St. Mary's

Hospital, Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000) and

Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249,

251 (Fla.2000) were violated by:

a. the Defendant's orders on child support of July

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13, 200land August 5, 2002 int’ e Eleventh Judicial Circuit

in and for Miami-Dade County, .‘lorida, Case No.: 94-18177

FC 19;

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b. the Defendant’s application of Florida Statute

§61.30(12) and Florida case law interpreting that statute in

her orders of July 13, 200land August 5, 2002 in Eleventh

Judicial Circuit in and for Miami-Dade County, Florida, Case

No.: 94-18177 FC 19; and

C the Defendani’s position that Florida law

permits children born of a second marriage to be treated :

differently than children born of a first marriage in

determining child support payments.

Jurisdiction And Venue

2. Jurisdiction of this Court is invoked pursuant to the

provisions of 28 U.S.C. §1331, §1343(3) and (4), §2Z01 and

§2202 and 42 U.S.C. §1983.

3. Venue in this district is proper under 28 U.S.C.

§1391(a)(1) and (2).

Parties

4. Plaintiff, Alexander Blair Sibley is a resident of the |

State of Maryland, a minor and the fourth child of |

Montgomery Blair Sibley (“Father”).

5. Defendant, Maxine Cohen Lando, is a resident of

Miami-Dade County, Florida and is sued at present only in her

capacity as a Judge of the Circuit Court of the 11" Judicial

Circuit in and for Miami-Dade County, Florida.

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General Allegations

6. In the summer of 1994, a petition for dissolution of

marriage was filed in Florida circuit court by Barbara Sibley

against Father. A final judgment of dissolution was granted on

September 20, 1994, between Father and Barbara Sibley in

the Eleventh Judicial Circuit in and for Miami-Dade County,

Florida, Case No.: 94-18177 FC 19.

7. Of that marriage, three children were born: Margaret

Sibley, Elizabeth Sibley and Montgomery Sibley, Jr.

8. On July 16, 1994, Father’s mother, Beatrice Blair, died.

Pursuant to her last will and testament, three pour-overs trust

were created for three of her grandchildren, Margaret Sibley,

Elizabeth Sibley and Montgomery Sibley, Jr. (“the Children’s

Trusts”). Father was appointed Trustee of the Children’s Trusts

pursuant to a Letter of Trusteeship issued by the a Surrogate

Judge of the County of New York on August 24, 1995.

9. On December 30, 1997, Plaintiff was born of the

marriage of Father and his wife, Svetlana Sibley.

10. On January 29, 2001, the Defendant entered an order

appointing Dirk Lorenzen as attorney ad litem for the first

three children of Father. On May 4, 2001, Lorenzen filed

“Children’s Motion to Compel Immediate Payment of Child

Support and Education Expenses Pendente Lite”, representing

to this Court that he was the “Attorney for the Children”.

11. On July 4, 2001, Lorenzen noticed this motion for July

13, 2001, before the Defendant. At the hearing on July 13,

2001, the Defendant heard and ruled upon the “Children’s

Motion to Compel Immediate Payment of Child Support and

Education Expenses Pendente Lite”. On that day, the

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Defendant issued an order. Subsequently, the Defendant

entered an order of July 24, 2001, granting the May 4, 2001,

motion as to the Margaret Harper Sibley. Both orders required

Father to pay $15,600.00 in educational expenses of his first

born child without reference to Father’s other children.

iz. This amount represented close to half of Father's

yearly income at the time.

Norra

13. Significantly, at the hearing held July 13, 2001, the

Defendant stated her understanding of her constitutional

obligation to children born of a second marriage when she

stated:

I find that his argument that he now has a

fourth child so he can’t pay his daughter’s

tuition to be something that the Court is

rejecting. Seven years ago he signed an

agreement, he seems to be somebody who

understands what agreements are about, and

I do still consider, well, God bless all persons

coming to this world, the conception of a child

to be a volunteer act and a knowing act in

somebody of Mr. Sibley’s intelligence. So I

assume somebody of intelligence such as Mr.

Sibley wouldn’t have another child unless he

could afford to, and unless he did so w

understanding completely his responsibilities

to his other children, who he says he love just

as much as this new one. so I have to reject

that argument as being illogical in light of the

court’s knowledge of the parties, their

education and their station in life. . . . For all

of those reasons the Court certainly will

compel that Mr. Sibley comply and pay this

——___xo“u—u—

tuition.

14. Father on August 7, 2001, appealed to the Florida

Third District Court of Appeals Defendant’s orders of July 13

and 24, 2001, specifically raising the issue of the equal

protection violation of Plaintiffs rights as articulated by the

dissent in Pohlmann v. Pohlmann, 703 So. 2d 1121 (Sth DCA

1997). That appeal was assigned Case Number 3D01-2173.

Some 232 days later, on March 27, 2002, the Florida Third

District Court of Appeals affirmed the trial court in Case

Number 3D01-2173 with a brief slip opinion which affirmed

per curiam without opinion and which ignored completely the

substance of Father’s equal protection arguments. Father’s

motion for reconsideration, rehearing and clarification in Case

Number 3D01-2173 was subsequently denied per curiam

without opinion on May 29, 2002.

15. On August 4, 2001, Father filed his Supplemental

Petition for Modification of Child Support in Eleventh Judicial

Circuit in and for Miami-Dade County, Florida, Case No.: 94-

18177 FC 19. That supplemental petition sought relief from

the terms of the Marital Settlement Agreement between the

Father and Barbara Sibley that (i) Father pay $4000/month in

support for his first three children and (ii) Plaintiffs Father

pay all the educational expenses of his first three children.

The basis for the Supplemental Petition was that due to

Father’s inability to secure employment as an attorney and the

birth of Plaintiff by a subsequent marriage, there had been a

sufficient, material, involuntary and permanent in nature

change in his financial circumstances warranting a

modification.

16. In January, 2002, Barbara Sibley filed two motions for

contempt against Father relating to enforcement of the Marital

Settlement Agreement between them for child support. The

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first sought payment of $4,000/month in child support from

July 2000 until the present pursuant to the terms of the

Martial Setthkement Agreement between them. The second

motion for contempt sought enforcement of the terms of the

Marital Settlement Agreement between them which required

that Father to pay 100% of his first three children’s

educational expenses.

17. On June 4, 5, 6, 7 and July 1, 2002, the Defendant

held a trial on these motions related to child support and

modification of Plaintiffs Father’s obligations under the

Marital Settlement Agreement.

18. On-August 5, 2002, the Defendant signed orders

granting Barbara Sibley’s motions for contempt. As to the

order on child support, the Defendant adopted Barbara

Sibley’s counsel’s findings verbatim and ordered Father (i) to

pay $100,000 for past due child support and (ii) remain

current on his child support of $4,000 per month thereafter.

Next, the Defendant found that the Father “at all times from

May 2000 had the present financial ability to pay but willfully

or intentionally failed and refused to do so and wilfully

violated the Order of this Court.” The Court then sentenced

Father to Ninety (90) days in the Dade County Jail beginning

January 1, 2003, unless he paid the specified amounts by

December 1, 2002. In the child support order, the Defendant

adopted Barbara Sibley’s counsel’s findings verbatim and

based her conclusion of Father’s “ability to pay” upon “her”

findings that: Father’s 1994 financial affidavit showed a net

income of $3,460/month; his 1998 financial affidavit showed

a net income of -$1,435 and a net negative net worth of -

$57,400; his 1999 financial affidavit showed a net income of

$2,918/month and a negative net worth of -$121,900; his

present gross income was $37,500 annually from his

employment and his Plaintiff's mother’s income was in excess

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of $30,000/ year.

19. As to the order on the children’s educational expenses,

the Defendant again adopted verbatim Barbara Sibley’s

counsel’s findings and (i) sentenced Father to be incarcerated

for Ninety (90) days in the Dade County Jail beginning

November 1, 2002, (ii) provided that Father may purge the

incarceration order by paying $174,866.31 within sixty (60)

days of the date of the order and (iii) allowing Father to make

a motion to the Defendant to have the Children’s Trusts pay

for the past, present and future educational expenses of the

children in order to discharge Father’s obligations.

20. On August 27, 2002, Father filed his notice of appeal

of the above orders of August 5, 2002. That appeal has been

assigned Case No.:3D02-2308 the Florida Third Circuit Court

of Appeals.

21. In case No.:3D02-2308, the Florida Third Circuit Court

of Appeals has refused to Father the ability to file a brief

which allows him to competently raise the equal protection

arguments herein by refusing to him an additional 25 pages

for the initial brief on appeal.

22. The so-called “Younger” doctrine is not applicable to

this matter. In Middlesex County Ethics Comm. v. Garden State

Bar Assoc., 102 S. Ct. 2515, 2522-23 (1982), the Supreme

Court set out three benchmarks to guide the application of

Younger abstention: "first, do state bar disciplinary hearings

within the constitutionally prescribed jurisdiction of the State

Supreme Court constitute an ongoing state judicial

proceeding; second, do the proceedings implicate important

state interests; and third, is there an adequate opportunity in

the state proceedings to raise constitutional challenges." Id. at

2521 (emphasis in original). Here, neither the first or third

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benchmarks are present and as such Younger abstention is not

warranted. First, there are no on-going state proceedings

involving this Plaintiff as he is not a party to any court

proceeding in Florida, nor could he be under the Florida rules

of procedure. Second, the constitutional challenge to the

support orders has been raised previously by Father and the

Third District Court of Appeals ignored it and now practically

precludes him from raising this issue competently by limited

the size of his brief on appeal in that matter. Most

importantly, the statutory scheme of Florida Statute

§61.30(12) expressly prevents Defendant from cons‘dering

Plaintiff when determining Father’s obligation to pay child

support and indeed, every Florida court to address the issue

has concurred that Florida Statute §61.30(12) is

constitutional. See: Robinson v. Robinson, 657 So.2d 958, 20

Fla. L. Weekly D1675,, (Fla.App. 1 Dist. 1995); Pohlmann v.

Pohlmann, 703 So. 2d 1121 (Sth DCA 1997); State, Dept. of

Revenue on Behalf of Powell v. Feeney, 689 So.2d 350, 22 Fla.

L. Weekly D453,, (Fla.App. 2 Dist. 1997); Miller-Bent v.

Miller-Bent, 680 So.2d 1119, 21 Fla. L. Weekly D2252,,

(Fla.App. 1 Dist. 1996); Hice v. Pace, 675 So.2d 952, 21 Fla. L.

Weekly D866,, (Fla.App. 1 Dist. 1996). As such, Plaintiff has

no opportunity to raise this issue in the state court so the

Younger «loctrine is inapplicable here.

First Claim for Relief

23. Plaintiff re-alleges paragraphs 1 through 22 and

incorporates hem herein by reference.

24. Defendant violated Plaintiffs rights by issuing the |

above-referenced orders regarding child support in violation

of the Fifth Amendment Due Process Clause, the Fourteenth

Amendment Equal Protection Clause and Article I, § 2, of the |

Florida Constitution without considering Plaintiffs rights to

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support from Father and ordering that Father pay over 100%

of his annual income to support the first three children of

Father thereby leaving nothing from Father for Plaintiff's

support.

25. Plaintiff has been damaged thereby as the ability to

support to which he is entitled from his Father has been

eliminated.

WHEREFORE, Plaintiff requests that this Court:

A. Assume jurisdiction of this action;

B. Declare that the Defendant has violated

Plaintiffs rights under the Fifth Amendment Due Process

Clause, the Fourteenth Amendment Equal Protection Clause

and Article I, § 2, of the Florida Constitution by the actions

described above;

‘. Retain jurisdiction of this matter to enforce this

declaratory degree if subsequently violated;

D. Awarding reasonable costs, disbursements and

attorney fees pursuant to 42 U.S.C. §2088; and

E. Enter such other and further relief as the Court

deems just and proper.

Second Claim for Relief

26. Plaintiff re-alleges paragraphs 1 through 22 and

incorporates them herein by reference.

27. Florida Statute §61.30(12) violates Plaintiffs rights as

secured by the Fifth Amendment Due Process Clause, the

Fourteenth Amendment Equal Protection Clause and Article

I, § 2, of the Florida Constitution.

28. Plaintiff has been damaged thereby as the ability to

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support to which he is entitled from his Father has been

seriously hampered by the application of this statute to his

Father’s child support obligation to his first three children.

WHEREFORE, Plaintiff requests that this Court:

A. Assume jurisdiction of this action;

B. Declare that the Defendant has violated

Plaintiffs rights under the Fifth Amendment Due Process

Clause, the Fourteenth Amendmen: Equal Protection Clause

and Article I, § 2, of the ticvida Constitution by the

application of Florida Statute §61.30(12);

=. Retain jurisdiction of this matter to enforce this

declaratory degree if subsequently violated;

D. Awarding reasonable costs, disbursements and

attorne; fees pursuant to 42 U.S.C. §2088; and

E. Enter such other and further relief as the Court

deems just and proper.

Third Claim for Relief

29. Plaintiff re-alleges paragraphs 1 through 22 and

incorporates them herein by reference.

30. Defendant’s statements made at the hearing held on

July 13, 200, violated Plaintiffs rights as secured by the Fifth

Amendment Due Process Clause, the Fourteenth Amendment

Equal Protection Clause, Article I, § 2, of the Florida

Constitution and the law as enunciated by the Florida

Supreme Court in St. Mary's Hospital, Inc. v. Phillipe, 769 So.

2d 961, 971 (Fla. 2000) and Palm Harbor Special Fire Control

Dist. v. Kelly, 516 So. 2d 249, 251 (Fla.1987) and the Supreme

Court, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d

1010; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86

L.Ed. 1655; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct.

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571, 69 L.Ed. 1070, Griswold v. Connecticut 381 U.S. 479, 484,

85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965), by treating

Plaintiff differently than others similarly children with no

rational basis for the difference in treatment when she ordered

a level of support for children of Father’s first marriage in

gross disproportionality to the support she left for Plaintiff

from Father’s income.

ai. Plaintiff has been damaged thereby as the ability to

Support to which he is entitled from his Father has veell

seriously hampered by the application of this statute to his

Father’s child support obligation to his first three children.

WHEREFORE, Plaintiff requests that this Court:

A. Assume jurisdiction of this action:

B. Declaze that the Defendant has violated

Plaintiffs rights under the Fifth Amendment Due Process

Clause, the Fourteenth Amendment Equal Protection Clause

and Article I, § 2, of the Florida Constitution;

i. Retain jurisdiction of this matter to enforce this

declaratory degree if subsequently violated:

D. Awarding reasonable costs, disbursements and

attorney fees pursuant to 42 U.S.C. §2088; and

E. Enter such other and further relief as the Court

deems just and proper.

MONTGOMERY BLAIR SIBLEY

Attorney for Plaintiff

56U Longhorn Crescent

Rockville, MD 20850-5700

Voice/Fax: (202) 478-0371

By:

Montgomery Blair Sibley

Fla. Bar No.: 725730

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 03-21885

ALEXANDER BLAIR SIBLEY,

Plaintiff

vs.

MAXINE COHEN LANDO,

Defendant

HEARING HELD 8-27-03

BEFORE THE HONORABLE PAUL HUCK

APPEARANCES:

FOR THE PLAINTIFF:

MONTGOMERY BLAIR SIBLEY,

Counselor at Law

FOR THE DEFENDANT:

STEPHANIE STAPLES CURD,

Assistant Attorney General

THE COURT: Be seated everyone. We're here in the matter of

Sibley versus Lando. Case No. 03-21885. May I have your

appearances, please.

MR. BLAIR SIBLEY: Good afternoon. Montgomery Blair

Sibley on behalf of the plaintiff Alexander Sibley.

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MS. STAPLES CURD: Stephanie Staples Curd from the

Attorney General's Office on behalf of Judge Lando.

THE COURT: We're here on two matters. We're here on the

defendant Lando's motion to dismiss and also a motion to

restrict further filing by the piaintiff in this case.

Let me do this, let me ask Mr. Sibley, with regard to the

motion to dismiss how is this case different from the prior

case | had? This is the third case I have had. I know tiis case.

You are aprecring as the father, next of friend of Alexander

Blair Sidley. It appears you are essentially asking this Court

to act as a super Appellate Court with regard to any orders

entered in the ongoing domestic reiaticns matter before the

State Court Judge.

MR. BLAIR SIBLEY: If that were so Your Honor then the

Rooker Feldman doctrine would compel vou to dismiss this

casc as well. [ believe there is a distinction in this case. There

isa general attack of the constitutionality of Florida Statute

6130, subdivision 12 that sets up a dual standard of support

for children of -- in these states from children of a first

marriage and children of a second marriage. This case is

distinct from the preceding cases that dealt with specific

orders. And not to admit but not to argue the super appellate

conclusions this Court made in determining the absence of

jurisdiction under Rooker Feidman, that is not the case here.

This case is on four squares with Feldman itself where the

Supreme Court recognized that an attack on the factual

findings of a Judicial Court were not a proper basis for

jurisdiction in a U.S. District Court.

However the attack by Feldman on the general

constitutionality of the District of Colombia's Bar admission

proceedings was appropriate jurisdiction for the District Court

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and the matter was remanded for that very purpose. That is

the same posture this case sits before Your Honor today.

Florida has a statute -- Florida discriminates between children

depending upon their order of birth and their parentage which

is not permissible. So this case is different because they're

different in the nature of the allegations.

THE COURT: Would you like to respond to that limited

argument?

MS. STAPLES CURD: The claim he's making reference to is

the second claim for relief on page 8 and 9 of the complaint.

He has not pled a Constitutional attack in the second claim for

relief. [t's not within the four corners of the relief. He makes

that argument in —

THE COURT: That's what I am trying to find out. I thought

you could help if he did identify that. He does refer to Florida

Statue 61.3012.

MS. STAPLES CURD: He's asking they declare what tne

defendant did violated the plaintiff's rights. He doesn't ask the

Court to declare it unconstitutional. So this is not a general

attack on the constitutionality of the statute, at least as it's

pled.

THE COURT: I don't think it is either.

MS. STAPLES CURD: He has not complied with the Florida

Statute that requires notice to the Attorney General and

various other things that need to be filed that would allow the

Attorney General to intervene as the Attorney General and to

defend the constitutionality of this statute.

THE COURT: That's the first I have heard of this argument. I

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did not view this complaint as a general attack on the -- on

section 61.3012. Appears when you look at the overall

allegations of the complaint this is really an attack on Judge

Lando's orders. |

MS. STAPLES CURD: That's the way I read it too, Your

Honor.

MR. BLAIR SIBLEY: May I respond.

THE COURT: Yes, sir.

MR. BLAIR SIBLEY: To the extent the Court is leaning that

way I would ask under the liberal pleading rules that I have

leave to be more specific in that this is a general attack on this

particular statute and its Constitutionality.

THe COURT: [| am not inclined to do that. I cannot ignore

your history in this Court and in the State Courts. Frankly,

while I do not think it's appropriate to enter an order

restricting your ability to file lawsuits I think it's within my

c.scretion to allow you to amend the complaint, and I'm going

to deny that. I think these -- by the way this is the first

lawsuit brought by Alexander Blair Sibley. So the mere fact

that Montgomery Blair Sibley has filed these lawsuits does not

necessarily mean it needs <o be visited on Alexander. Plus, |

am not sure it's appropriate to restrict the filing of lawsuits, at

least at this stage. Does not mean it will pass Rule Eleven

muster, but there's been no Rule Eleven request. So I don't

have that before me. However, I don't think it's appropriate

to restrict Mr. Sibley from filing lawsuits, at least at this stage.

Mr. Sibley, Montgomery Blair Sibley, has filed a number of

lawsuits but they've been different kinds of lawsuits. I have

had two cases where personally he sued his former wife,

trying to get this Court involved in the domestic relations

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dispute. I declined to get involved in that. This would be the

second lawsuit that I was involved with against Judge Lando.

And | think both the younger -- I felt it was inappropriate to

get involved in that case. This is another case. Actually it's a

different plaintiff. While I sympathize with the defendant in

a sense, it's not fun to be sued in these matters, probably don't

have much of a basis to begin with and very little likelihood

of prevailing on it, lam not sure you can keep somebody from

filing lawsuits, at least at this stage. What is the requirement

if you are going to challenge the constitutionality?

MS. STAPLES CURD: There's a requirement that you file a

notice with the Court. It's actually -- there's a local rule in the

Southern District of Florida that requires you comply with the

Florida statute, which I can't remember the statute right

offhand. It's in the first volume of the statutes. It requires you

file a notice. You actually have to file a formal notice on the

Attorney General in Tallahassee. I am not sure Judge Lando

is the proper party.

THE COURT: She would not be the proper party. All right.

Seenis to me the Rooker Feldman doctrine does apply here.

I am inclined to dismiss this case, Mr. Sibley, and I guess you

can keep filing lawsuits if you want. I am not sure you are

doing yourself or your son any good in doing that. I don't

know what is going on in the State Court proceedings but it

seems that is where the battle should be fought. I think you

are picking the wrong place for battle. You have a Trial Court,

you have an Appellate Court, you have a Supreme Court to

appeal to just as does any other litigant. I don't this is

appropriate litigation. Unless you can tell me there is

<omething not in your brief that you wish to add.

MR. BLAIR SIBLEY: I appreciate the opportunity but I have

not put -- there's nothing in my brief I can add to. If it's not in

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my brief | have nothing more to add.

THE COURT: All right. I am going to deny the motion for

order restricting future filing because there's no Rule Eleven

motion. Unless somebody has something to add to the briefs

I'll go ahead and consider it on the briefs then. If there's

nothing else, | appreciate you all coming in today. Thank you.

MATTER CONCLUDED

CERTIFICATE

I hereby certify that the foregoing is an accurate transcription

of proceedings in the above-entitled matter.

PATRICIA SANDERS, RPR

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 03-21885-CN-HUCK/TURNOFF

ALEXANDER BLAIR SIBLEY, a minor,

by and through MONTGOMERY BLAIR SIBLEY,

his Father,

Plaintiff,

Vs.

MAXINE COHEN LANDO, in her capacity as a

Judge of the Circuit Court of the 11" Judicial

Circuit in and for Miami-Dade County, Florida,

Defendant.

/

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

AND DENYING DEFENDANT'S MOTION FOR ORDER

RESTRICTING FUTURE FILINGS AGAINST JUDGE LANDO

THIS MATTER is before the Court on August 27, 2003

for oral argument on the Motion to Dismiss and Motion for

Order Restricting Future Filings of Defendant, Maxine Cohen

Lando, in her capacity as a Judge of the Circuit Court of the

11" Judicial Circuit in and for Miami-Dade County, Florida

("Judge Lando"). The Court has reviewed the Complaint, the ,

Motion, the parties' respective legal memoranda and oral |

argument and is fully advised in the premises. For the reasons

discussed below, the Motion to Dismiss is GRANTED.

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Background

Plaintiff, Alexander Blair Sibley, is the son of

Montgomery Blair Sibley ("Father"), an attorney certified to

practice in Florida. Plaintiff alleges that Judge Lando, who

presides over the Father's divorce case, has, by one of her

orders in that proceeding, violated his constitutional right

of equal protection under the law and due process. The

Plaintiffs divorce case, Sibley v. Sibley, case number

1994-18177-FC-04, in the Circuit Court in and for Miami-Dade

County, Florida, has been ongoing since 1994. The case has

apparently been acrimonious, as evidenced by the Father's

numerous filings of separate actions related to issues in the

divorce proceeding, including:

l. Sibley v. Judge Maxine Cohen Lando

United States District Court, Southern District

of Florida Case

No. 01-2940-CIV-UNGARO-BENAGES

Summary: allegations of constitutional

violations by presiding state judge

Outcome: dismissed on basis of Younger

abstention.

2. Sibley v. Judges David Gersten, Juan Ramirez,

and Joseph Nesbitt

United States District Court, Southern District

of Florida

Case No, 00-3665-CIV-MORENO

Summary: allegations of constitutional

violations by judges

Outcome: dismissed on basis of judicial

immunity, lack of subject-matter jurisdiction.

> Sibley v. Mark Martinez

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United States District Court, Southern District

of Florida

Case No. 02-2293 1-CIV-HIGHSMITH

Summary: allegations of constitutional

violations by Clerk's filing process

Outcome: Pending.

Sibley v. Judges Alan Schwartz, David Gersten,

Mario Goderich, Gerald Cope, Robert Shevin,

Maxine Cohen Lando, Victoria Platter, and

Barbara Sibley

United States District Court, Southern District

of Florida

Case No. 01-3746-CIV-KING

Summary: allegations of constitutional

violations by judges

Outcome: dismissed on basis of Younger

abstention, lack of subject matter jurisdiction.

Rule I I Sanctions were imposed against

Plaintiff.

Sibley v. Sibley

United States District Court, Southern District

of Florida

Case No. 01-1349-CIV-GOLD

Summary: removal of divorce action from

Judge Lando's court

Outcome: remanded on basis of lack of subject

matter jurisdiction.

Sibley v. Florida Supreme Court, Harry

LeeAnstead, Third District Court ofAppeal, and

Eleventh Judicial Circuit Court of Dade County

United States District Court, Southern District

of Florida

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Case No. 03-21199-CIV-LENARD

‘Summary: allegations of equal protection

violations in decisions rendered by Florida

courts.

Outcome: dismissed sua sponte for lack of

subject-matter jurisdiction.

Fi Sibley v. Maxine Cohen Lando

United States District Court, Southern District

of Florida

Case No. 03-21728-CIV-JORDAN

Summary: allegations of false imprisonment

due to Writ of Bodily Attachment entered by

Judge Lando in divorce proceedings.

Outcome: Motion to Dismiss pending.

The Father has also filed a lawsuit against his wife in federal

court in Delaware, which was dismissed for lack of jurisdiction

(Case No. 8:00-CV-02997-JFM), and has filed a number of

appeals and/or petitions in Florida state courts. Indeed, the

Plaintiffs Father is no stranger to this Court. See Sibley v.

Sibley, Case No. 01-2770-CIV-HIJCK and Sibley v. Lando, Case

No. 0320942-CIV-HUCK. In those cases, the Father alleged,

respectively, that his former wife interfered with his

parent-child relationship, and that Judge Lando violated his

constitutional rights by her orders in the divorce case. The

Court dismissed those cases, respectively, because of the lack

of subject matter jurisdiction and because of the Rooker

-Feldman and the Younger abstention doctrines.

The Complaint in this case attacks a recent court order

entered by Judge Lando in the divorce proceedings and seeks

a declaratory judgment, declaring that Judge Lando's child

support orders violate Plaintiffs United States Constitution

rights and Florida Constitution rights.

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Judge Lando seeks dismissal of the Complaint on

several grounds;

a) Judge Lando has judicial immunity from the

instant action because she was acting in her judicial capacity

when she issued the order in question;

b) the court lacks jurisdiction under the

Rooker-Feldman doctrine because granting the Plaintiff's

requested relief would nullify a decision rendered in an

ongoing state court proceeding;

c) the court should abstain from determining this

matter under the Younger abstention doctrine.

1. Motion to Dismiss

Standard on Motion to Dismiss

To warrant dismissal of a complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure, it must be

“clear that no relief could be granted under any set of facts

that could be proved consistent with the allegations."

Blackston v. Alabama, 30 F.3d 117, 120 (11' Cir. 1994)

(quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).

Determining the propriety of granting a motion to dismiss

requires a court to accept all the factual allegations in the

complaint as true and to evaluate all inferences derived from

those facts in the light most favorable to the plaintiff, See

Hummings v. Texaco, Inc., 29 F.3d 1480, 1483 (11" Cir. 1994).

The threshold of sufficiency that a complaint must meet to

survive a motion to dismiss is exceedingly low. See Ancata v.

Prison Health Sys., Inc., 769 F.2d 700, 703 (11" Cir. 1985)

(citations omitted); Jackam v. Hosp. Corp. of America Mideast.

Ltd., 800 F.2d 1577, 1579 (11" Or. 1983). "[Ulnless it appears

beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief," the

complaint should not be dismissed on grounds that it fails to

state a claim upon which relief can be granted. Sea Ycssel, Inc,

v. Reves, 23 F.3d 345, 347 (11" Cir. 1994) (citations omitted).

Nevertheless, to survive a motion to dismiss, plaintiff must do

more than merely "label" his claims. Blumel v. MS,Iander, 919

F.Supp. 423, 425 (M.D.Fla. 1996). Moreover, when on the

basis of a dispositive issue of law no construction of the

factual allegations will support the cause of action, dismissal

of the complaint is appropriate. Marshall County Bd. of Educ.

v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11 © Cir.

1993).

Analysis

1. Rooker-Feldman Doctrine Bars

Plaintiffs Suit

It is well-settled that federal district courts do not have

jurisdiction to review decisions of state courts. See District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86

(1983); Staley v. Ledbetter, 837 F.2d 1016, 1017-18 (11" Cir.

1988); Wood v. Orange County, 715 F, 2d 1543, 1546 (11"

Cir. 1983). This rule, commonly referred to as the

Rooker-Feldman doctrine, provides that:

[I]jower federal courts possess no power

whatsoever to sit in direct review of state court

decisions. If the constitutional claims -

presented to a United States district court are

inextricably intertwined with the state court's

[ruling] in a judicial proceeding . . . then the

district court is in essence being called on to

review the state-court decision. This the

district court may not do.

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Feldman, 460 U.S. at 482 n.16. Such a review rests solely in

the United States Supreme Court, Id.; Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923). The Rooker-Feldman doctrine

ensures that the district courts do not "trench on the exclusive

authority of the Supreme Court [of the United States] to

review state court decisions for errors of federal law." Wood,

715 F.2d at 1547. Where the federal clain asserted is

"inextricably intertwined" with a judicial decision of the state

court, the plaintiffs remedy lies in a direct appeal to the

Supreme Court, not with the district court. ht at 1546

(citations omitted). "[The Rooker[-Feldman] bar also operates

where the plaintiff fails to raise his federal claims in state

court." Id.

Here, the complaint alleges that Judge Lando's orders

violated Plaintiffs federal constitutional rights. As such,

Plaintiffs asserted federal claim is "inextricably intertwined"

with the judicial decision of the state court, and cannot be

adjudicated by this Court.

2. Younger Doctrine Justifies Abstention

Defendant also argues that this Court should abstain

from deciding Plaintiffs claims for declaratory relief under the

doctrine of Younger v. Harris, 401 U. S. 37 (1971), and its

progeny. The Younger abstention doctrine provides that

federal courts should, based on inierests of comity and

federalism, abstain from assuming jurisdiction whenever

federal claims have been or could be presented in ongoing

state judicial proceedings that concern important state

interests. Hawati Housing Auth. v. Midkiff, 467 U.S. 229, 237

(1984). Although Younger was a state criminal proceeding, its

principles are fully applicable to civil cases when important

state interests are involved. 31 Foster Children v. Bush, 329

F.3D 1255 (11" Cir. 2003). The Younger abstention doctrine

oe See

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embodies “a strong federal policy against federal-court

interference with pending state judicial proceedings, absent

extraordinary circumstances." Beltran v. California, 871 F.2d

777, 781 (9" Cir. 1988), Middlesex County Ethics Committee v.

Garden State BarAss'n, 457 U.S. 423, 431 (1982). Where, as

here, assumption of jurisdiction by a federal court would

interfere with pending state proceedings, whether criminal or

civil, abstention under Younger is generally appropriate. Word

of Faith Outreach Or. Church. Inc., v. Morales, 986 F. 2d 962

(5'h Cir. 1993). The fact that Plaintiff's action is filed pursuant

to 42 U.S.C. § 1983 is no bar to Younger abstention. Trainor

v. Hernandez, 431 U.S. 434, 450 (1977). The Younger doctrine

represents an independent barrier even to § 1983 suits that

seek injunctive relief. In re Fussell, 928 F.2d 712, 715 (5" Cir.

1991).

The Supreme Court has established a three prong test

for application of the Younger abstention doctrine: (1) the

state proceedings are ongoing; (2) the proceedings implicate

an important state interest; and (3) the state proceedings

provide an adequate opportunity to raise federal questions.

Middlesex, 457 U.S. at 423. Each of the three prongs is clearly

present here. The State of Florida has an important interest in

guaranteeing the ability of its courts to protect the rights of its

citizens who invoke the state court process, including

domestic relations and child support matters. All that is

required under the Younger abstention doctrine is "the

opportunity to present their federal claims in the state

proceedings." Juidice v. Vail, 430 U.S. 327, 337 (1977); Fresh

Intern. Corp. v. Agricultural Labor Relations Bd., 805 F.2d

1353, 1362 (9" Cir. 1986). Florida circuit courts have the

power in all circumstances to consider constitutional issues

and even to decide § 1983 claims. Key Haven Associated Enters,

Inc. v. Board of Trustees of the Internal Imp. Trust Fund, 427

So.2d 153 (Fla. 1982); Lloyd v. Page, 474 So.2d 865 (Fla. 1“

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DCA 1985). It is appropriate for the federal courts to indulge

the presumption that state courts are willing and able to

vindicate federal constitutional rights. Cinema Blue of

Charlotte, Inc. v. Gilchrist, 887 F.2d 49, 54 (4" Cir. 1989).

The state court, which has heard, and can continue to

resolve, the issues Plaintiff attempts to raise in this lawsuit, is

the proper forum for Plaintiffs complaints. Because Plaintiff,

through his Father, has an opportunity to fully participate in

the Father's state court proceedings and to seek all appropriate

remedies, legal and equitable, it is appropriate for this Court

to abstain from hearing this case.

2. Motion For Order Restricting Future Filings

Because of the numerous and unsuccessful (frivolous,

according to the Defendant,) cases which Plaintiff's Father has

filed challenging Defendant's rulings in the domestic relations

proceedings, Defendant asks that the Court place restrictions

on the Father with regard to filing any new cases against

Defendant. While the Court sympathizes with the Defendant,

and generally concurs with her that the Father's previous

federal cases were, at least, borderline-frivolous, for the

reasons discussed at oral argument of the Motion for Order

Restricting Future Filings Against Judge Lando, this Court

determines that the requested relief is not appropriate at this

time. However, if Judge Lando believes she has a basis for

seeking sanctions pursuant to Rule 11 of the Federal Rules of

Civil Procedure, she may file an appropriate motion within 15

days of this Order. Of course, Defendant has the protection

provided by Rule 11 with respect to any new federal cases the

Father may file in the future.

—

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Conclusion

The Court concludes, under both the Rooker-Feldman

and the Younger abstention doctrines, that it would be

inappropriate to exercise any subject matter jurisdiction that

it may have over Plaintiff's federal claims asserted in this

case.' Accordingly, the Motion to Dismiss is GRANTED. The

Motion for Order Restricting Future Filings Against Judge

Lando is DENIED. All other pending motions are DENIED as

moot and this matter is CLOSED.

DONE AND ORDERED in Chambers, Miami, Florida this 3™ of

September, 2003.

en ee

Paul C. Huck mr

United States District Judge

Copy furnished to:

Montgomery Blair Sibley, Esq.

Stephanie S. Curd, Esq.

Because the Court has determined that this case should be

dismissed under both the Rooker-Feldman and the Younger

abstention doctrines, the Court need not, and therefore does

not, discuss the other arguments supporting the Motion.

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IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR DADE

COUNTY, FLORIDA

FAMILY DIVISION

IN RE: The Marriage of

CASE NO.: 94-18177 FC 19

Barbara Sibley,

Petitioner,

and

Montgomery Blair Sibley,

Respondent.

/

ORDER DENYING MOTION TO INTERVENE BY

ALEXANDER BLAIR SIBLEY

THIS CAUSE came on before the Court on December

15, 2003 upon the Motion to Intervene filed by Alexander

Blair Sibley upon the motion of his attorney/father

Montgomery Blair Sibley, the Respondent/Fortner Husband in

this cause, and the Court having heard argument of counsel

and being otherwise fully advised in the premises, it is

ORDERED and ADJUDGED as follows:

i Montgomery Blair Sibley has an inherent

conflict in representing Alexander Blair Sibley with regard to

the Motion to Intervene.

4 This motion has been previously made in

another form by Montgomery Blair Sibley,

Respondent/Former Husband when he argued that Alexander

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Blair Sibley was being denied equal protection of the law by

the rulings of this Court with regard to child support due and

owing to the three (3) children of Respondent/Former

Husband's marriage to Petitioner/Former Wife.

Respondent/Former Husband's issue was rejected by this

Court's predecessor, which ruling was affirmed on appeal.

a. The Motion to Intervene on behalf of Alexander

Blair Sibley be and the same is hereby DENIED.

DONE and ORDERED in Chambers, at Miami,

Miami-Dade County, Florida, this day January 5, 2004.

Circuit Court Judge

oe: Jay M. Levy, Esquire

Montgomery Blair Sibley, pro se

Bette E. Quiat, Esquire

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14915

Non-Argument Calendar

D.C. Docket No. 03-21885-CV-PC

MONTGOMERY BLAIR SIBLEY,

a father representing a minor,

Alexander Blair Sibley,

Plaintiff-Appellant,

versus

MAXINE COHEN LANDO, in her

capacity as a Judge of the Circuit

Court of the 11°" Judicial District in

and for Miami-Dade County, Florida,

Defendant-Appellee.

/

Appeal from the United States District Court for

the Southern District of Florida

(February 20, 2004)

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

PER CURIAM:

Montgomery Blair Sibley ("Plaintiff"), on behalf of his

ii ee ee —__ — —

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son Alexander Sibley ("Sibley"), filed a civil suit against the

Hon. Maxine Cohen Lando, Judge of the Circuit Court of the

11 Judicial Circuit in and for Miami-Dade County, Florida

("Defendant"). Plaintiff argued that Defendant's child support

orders against him, and her application of Fla. Stat. §

61.30(12),’ violated his rights under the Fifth Amendment's

due process clause, the Fourteenth Amendment's equal

protection clause, provisions of the Florida Constitution, and

Florida laws. In particular, Plaintiff argued that Defendant's

orders illegally required him to pay more than his annual

income in child support to the children of his previous

marriage, which left him without funds to support Sibley, the

offspring of his second marriage. During a hearing on

Defendant's motion to dismiss the complaint, Plaintiff

requested permission to amend his complaint in order to more

specifically allege an overall constitutional challenge against

Fla. Stat. § 61.30(12).

Ina comprehensive order entered September 23, 2003,

Record, Vol. 1 at 9, the district court concluded that, “under

both the Rooker-Feldman and Younger abstention doctrines ...

it would be inappropriate to exercise any subject matter

jurisdiction that it may have over Plaintiff's federal claims

)

Section 61.30(12) of the Florida Statutes provides that a

court may consider the existence of other children who were

born after a child support obligation arose when determining

whether to grant an upward modification of a child support

award. Fla. Stat. § 61.30(12)(a). However, the existence of

subsequent children “may only be raised in a proceeding for

an upward modification of an existing award and may not be

applied to justify a decrease in an existing award." Id. at §

61.30(12)(c).

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asserted in this case." The court therefore granted Defendant's

motion to dismiss and denied Plaintiff leave to amend.

Plaintiff now appeals.

We conclude that the Younger doctrine required the

district court to abstain for the reasons the court expressed in

its September 23 order. Plaintiff contends that the court

abused its discretion in denying him leave to amend his

complaint. We find no abuse of discretion; an amendment

would be futile.

AFFIRMED.

Ee ES

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14915

MONTGOMERY BLAIR SIBLEY,

a father representing a minor,

Alexander Blair Sibley,

Plaintiff-Appellant,

versus

MAXINE COHEN LANDO, in her

capacity as a Judge of the Circuit

Court of the 11°" Judicial District in

and for Miami-Dade County, Florida,

Defendant-Appellee.

/

Appeal from the United States District Court for

the Southern District of Florida

(March 31, 2004)

Appellant's motion to publish this Court's opinion ts

DENIED.

Appellant's request that this Court declare Eleventh

Circuit Rule 36-02 unconstitutional is DENIED.

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CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED

U.S. Constitution, Fourteenth Amendment, Section

.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

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

make or enforce any law which shall abridge the privileges or

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

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

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

the equal protection of the laws.

U.S. Constitution, Fourteenth Amendment, Section

S:

The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.

28 U.S.C. §1653:

Defective allegations of jurisdiction may be amended, upon

terms, in the trial or appellate courts.

28 U.S.C §2072(b):

Such rules shall not abridge, enlarge or modify any

substantive right. All laws in conflict with such rules shall be

of no further force or effect after such rules have taken effect.

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42 U.S.C. §1983:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action

brought against a judicial officer for an act or omission taken

in such officer's judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

Federal Rules of Civil Procedure, Rule 15(a):

Amendments - A party may amend the party's pleading once

as a matter of course at any time before a responsive pleading

is served or, if the pleading is one to which no responsive

pleading is permitted and the action has not been placed upon

the trial calendar, the party may so amend it at any time

within 20 days after it is served. Otherwise a party may amend

the party's pleading only by leave of court or by written

consent of the adverse party; and leave shall be freely given

when justice so requires. A party shall plead in response to an

amended pleading within the time remaining for response to

the original pleading or within 10 days after service of the

amended pleading, whichever period may be the longer,

unless the court otherwise orders,

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Eleventh Circuit Rule 36-2:

An opinion shall be unpublished unless a majority of the panel

decides to publish it. Unpublished opinions are not

considered binding precedent. They may be cited as

persuasive authority, provided that a copy of the unpublished

opinion is attached to or incorporated within the brief,

petition, motion or response in which such a citation is made.

Florida Statute §61.30(12)(c):

The issue of subsequent children under paragraph (a) or

paragraph (b) may only be raised in a proceeding for an

upward modification of an existing award and may not be

applied to justify a decrease in an existing award.

De en)

SON ast SO Lee Oa wer aeons