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Disclaimer: I am not an attorney and am not giving legal advice. I "translated" legal mumbo jumbo into simpler "layman's" terms, as much as possible; in the process, there may be incorrect/incomplete information, but it was not done intentionally. And if so, I hope some legal eagles out there will rectify any errors and/or make clarifications where needed.
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[Governor Bush's] Motion to Dismiss Petition for Declaratory Judgment and Request for Temporary Injunction and Suggestion of Contemplated Error
Pg. 1
MS's Petition should be dismissed because:
1) proper service on the Governor was not had [this is critical], therefore, this Court lacks personal jurisdiction over Gov. Bush;
[note: proper service of someone varies in states, but generally, each Respondent must be personally served the Complaint/Petition. If a company/corporation, then it must be served on the designated legal representative, as on file with the Secretary of State. Sending it by fax may not be proper service depending upon the state in question (in NY, facsimile is unacceptable service if the law firm states on its letterhead that it doesn't accept service by facsimile). (Please note: these are very simplistic explanations...there are other requirements about proper service depending upon the state's rules.) 2) the Petition fails to state a cause of action for declaratory judgment and fails to comply with the requirements of Rules.....("fails to state a cause of action" is usually one of the "defenses" put in many legal documents....ask a lawyer about why they say this all the time! : )
Pg. 2
3) the Petition is relying upon "legal conclusions" and "facts" from a different case, one to which Gov. Bush was not a party (i.e., neither a defendant nor a plaintiff). Because Bush wasn't a party in the other case, he's never been given the opportunity to check out the "legal conclusions" or these "borrowed facts," which are before this Court.
4) MS's request for temporary injunction [to withhold food] is moot (no longer necessary/obsolete).
5) Pinellas County is not the right place to have filed the Petition because of Bush's position as an elected official, i.e., Governor.
The Petitioner has made a constitutional challenge to this law, and that challenge will be answered. However, there are certain rules that must be followed when someone files a lawsuit, and those rules were not properly followed in this Petition.
[The next 11 pages expound on the 5 preceding arguments.]
Pg. 3
I. This Court Lacks Personal Jurisdiction Over Respondent.
When MS filed his Petition in this case to challenge the constitutionality of Terri's Law, he was supposed to properly serve the Respondent [Gov. Bush] according to Florida Law and Florida Rules of Civil Procedure. He did not do this. Consequently, he has denied Gov. Bush his basic right to due process under the law.
Pg. 4
Additionally, since Governor Bush is named as a Respondent in litigation regarding the Florida Constitution and its Laws, due process is even more important because he is not defending himself, personally, rather, he is defending laws enacted by elected officials of the State of Florida and the constitutional authority to act.
Pg. 5
Since the Governor has not been properly served, then the Judge's recent order that the Governor "file written briefs within five days" is void.
II. Petitioner's Disregard of Service of Process Requirements Has the Effect of Rendering Useless Those Rules of Civil Procedure Which Relate to the "Timing" of Motions, Hearings, and Responsive Pleadings.
Until a Respondent is properly served, the timetables set (from personal jurisdiction, to calculating deadlines for actions to be taken, to legal documents to be filed) within the Rules cannot operate.
Pg. 6
Examples:
1. If the Gov. hasn't been properly served the Complaint/Petition (hence, no "service date"), from what date do you determine when he's to respond? (You can't.)
2. Without a response, then the action is not "at issue." Also, when an action is "at issue," that's how it is determined when to make notice for trial.
3. Without a response, no party can ask for judgment on the legal documents filed (pleadings).
4. Without a service date, you can't determine a timetable for when discovery (i.e., all the evidence you want to gather and witnesses you want to ask questions to help you defend your case) must be completed.
5. Without proper service, you can't set deadlines for the filing of motions (summary judgment). [summary judgment motions: a decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law.]
With the above deadlines in mind, MS is asking the Court to issue an Order that would be proper (and legal) only after: proper service has been effected, all pleadings have been filed, and discovery completed. Alternatively, one could say what MS is filing with the Court is a "motion for judgment on the pleadings," but, according to those slippery Rules again, you can't do that until "all the pleadings are closed." How can the pleadings be closed when Gov. Bush hasn't even filed a response? And how can he file a response until he's been properly served? Since the Governor hasn't been properly served, this Court has no personal jurisdiction over him and the Petition should be dismissed.
Pg. 7
III. The Temporary Injunction Motion is Moot, and that Portion of the Order Directing Respondent to Brief His Position on the Issues is a Nullity.
Gov. Bush has not been properly served. MS served Bush's Assistant General Counsel, Christa Calamas, by faxing a copy on 10/21/03, along with a Notice of Hearing to be held that same day. "SERVICE BY FACSIMILE OF A NOTICE OF HEARING ON A LAWYER IS NOT THE SAME AS SERVICE OF PROCESS ON A PARTY." [emphasis mine]
The Court, thereafter, entered an Order on 10/22/03, directing the parties to "submit legal memoranda on the issues." But because of defective service, the Court has no authority over the Governor that requires him to submit to this Court or reply to anything in this matter.
The Court also issued an Order that the "Governor, his officers, agents, servants, employees, attorneys," etc., are "enjoined" from "instituting or attempting or causing to be instituted, the resumption of [Terri's] feeding or hydration" . . .
However, that Order is moot in that Terri began being fed the day before this Court's Order; and because "this Court lacks authority to grant relief beyond that which was requested in the Petition," you can't pull out the tubes that are now feeding her.
Pg. 8
IV. The Petition Fails to Conform to the Procedural Requirements of the Florida Rules of Civil Procedure Regulating Pleadings and Injunctive Relief.
Circuit Courts must follow certain rules when issuing injunctive relief [a court-ordered act or prohibition against an act or condition which has been requested in a petition to the court] to a party. When a petitioner (here MS) seeks this kind of relief, the judge has to see if the petitioner has established the following things:
i) the likelihood of irreparable harm;
ii) the unavailability of an adequate remedy at law;
iii) the substantial likelihood of success on the merits;
iv) whether the threatened injury to petitioner outweighs any possible harm to the respondent; and
v) whether the granting of the relief will work in the interest of the public.
The Court had already decided there was no emergency, so Petitioner already can't establish numbers i) and ii) above.
Secondly, the petitioner is supposed to give proper notice to their adversary, who then has the right to object. But that didn't happen here. So, what the petitioner was really doing was "seeking an ex parte injunction" (going behind the back of the adversary [Bush] to get a ruling against him out of the judge) which is okay under Rule (1.610(a)(1)(A). But MS failed to follow the procedures of that Rule, and that was "fatal" to his motion. The Rule says you can get a "temporary injunction without notice to the adverse party" only if MS did the following things:
Pg. 9:
i) limit his evidentiary showing to affidavits or facts contained in a verified pleading (this is a document that would be sworn to under oath and signed by MS);
ii) include a verified statement (another document sworn to under oath) explaining why the injunction should be granted before the adverse party can be heard in opposition; and
iii) include a certification of MS's counsel explaining what efforts were made to give notice to the adverse party.
MS "failed to comply with each of the aforementioned requirements."
There are two ways MS could have sought a temporary injunction. The first is the ex parte method described above; the second is to serve the defendants the Petition and the Notice of Hearing. "Under this method, each party appears at the hearing and is permitted to introduce evidence. . . the Court conducts a mini-trial on the merits of the motion for injunctive relief." MS didn't follow either of these procedures. Instead, he made up his own procedure by filing an unverified petition and notifying the Governor only hours before the hearing. MS didn't give the Governor any opportunity to gather any evidence. This is contrary to the Rules and due process and should not be tolerated by this Court, especially under these circumstances....
Despite knowing these defects, the Court tried to help the Petitioner out by giving the parties an "opportunity to ‘brief' their positions." The proper thing to have done would have been to have the Petitioner, or the Court sua sponte (on its own accord), set this matter for evidentiary hearing.
Pg. 10:
Additionally, MS relied upon "legal conclusions rather than ‘ultimate facts' as required" by the Rules.
V. Suggestion of Contemplated Error: Neither the Court Nor Petitioner Can Bypass Respondents' Right to Take Discovery and to Have a Jury Resolve All Issues of Disputed Facts, Nor Can Petitioner Merely Rely on Former Testimony Given in Another Proceeding As a Substitute for Evidence in the Current Proceeding.
"It would appear that by the Court's directives to the parties to brief their respective position, the Court intends to treat the Petitioner's abated and moot injunction motion as a motion for summary judgment." Also, it is evident from MS's petition that he intends to claim that "facts" from proceedings that Gov. Bush was not a party should be treated as accepted "facts" rather than "hearsay facts" in this proceeding, all contrary to the Rules of Civil Procedure. The Rules require that MS show that "there is no genuine issue of any material fact." [This means, very basically, that there must not be any significant facts that can be disputed, i.e., chickens lay eggs, dogs have puppies--it's a plain and undisputed fact.] When there is no genuine issue of any material fact, then MS would be entitled to judgment in his favor.
"Perhaps even more troubling, is that it appears from the Court's recent orders that the Court is inclined to resolve the issues in the Petition without permitting [Gov. Bush] to engage in any discovery and without affording him the right to a jury trial or evidentiary hearing to resolve issues of fact. If the Court decides to proceed in this fashion summarily, the Governor suggests that such action would be error."
[IMHO, this is a very strong condemnation of what the Court appears to be setting in place--refusing to allow Gov. Bush to gather evidence, talk to witnesses, have a jury trial or an evidentiary hearing to resolve factual issues. Judges cannot decide issues of fact, that is for a jury to decide. Judges decide issues of law. IMO, Bush's attorney is telling the judge "you're setting yourself up for an appeal, and you'll lose".]
Pg. 11:
Although the Governor hasn't decided how he'll respond, especially since he hasn't been served, he is not waiving his rights, either.
As far as the "hearsay facts" that have been brought into the current proceedings, this is improper. Gov. Bush was not a party in the proceedings from which these "facts" were borrowed. "Mere naked allegations of fact are insufficient to support an "as applied" constitutional challenge." [When you are challenging the Constituion, you've got to do more than make statements and allege that those statements are facts.]
For argument's sake, assuming the Court even has personal jurisdiction over Gov. Bush, or that the injunction requested wasn't already moot, Gov. Bush still wouldn't be able to comply with this Court's order to file a brief because Gov. Bush has had no time to conduct any discovery. And unless Gov. Bush waives his rights, this Court must hold an evidentiary hearing so that factual disputes can be resolved.
Pg. 12:
Gov. Bush also objects to "what appears to be the Court's intention to preclude all forms of discovery and enter summary judgment in contravention of the Rules." Look Judge, you can't do what you're trying to do here. You are saying you "anticipate that, other than the pleadings filed by [MS and Gov. Bush]," you're only going to look at the legal briefs and that will be your sole basis in making your decisions. You can't do this--there's Rules to follow.
Gov. Bush is very concerned about this lack of due process you are affording him. Your recent Order denying Schindler's Motion to Intervene exacerbates his concerns, because you said the same thing about just looking at the pleadings and the briefs to make your decision/ruling.
After Gov. Bush is properly served, and the proper procedures have been followed, he will make a decision as to whether or not he should assert his right to gather evidence and have an evidentiary hearing. But until that happens and "the Court acquires jurisdiction, everything else is premature."