# Appendix — Sibley v. Lando

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1668%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 921

## Text

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

+ rename

A- |
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
ee ER eee OT eee ee LOR a Oe mags A-20

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

A-4

13, 200land August 5, 2002 int’ e Eleventh Judicial Circuit
in and for Miami-Dade County, .‘lorida, Case No.: 94-18177
FC 19;

ee ad

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.

ata nee ear

A- 5

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

A-8

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

A- Il

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 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

A- 25

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“

A- 28

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

A- 31

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

A- 32
[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 —__ — —

A- 33

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).

A- 34

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

A- 35

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.

A- 36

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.

A- 37
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,

A- 38
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1668%3A2. Public record. Not legal advice.