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VOTE NO ON #2!
It's Overkill! |
Transcript of Judge Sauls' Order
1 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
2 AND FOR LEON COUNTY, FLORIDA
3 CASE NO. 98-5826
4 THE REV. DR. JAMES ARMSTRONG,
et al.,
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Plaintiffs,
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vs.
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SANDRA MORTHAM, in her
8 official capacity as
Secretary of State,
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Defendant.
10 _______________________/
11 PROCEEDINGS: Hearing
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BEFORE: N. SANDERS SAULS
13 Circuit Judge
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DATE: Friday, October 23, 1998
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16 TIME: Commenced at 9:30 a.m.
Concluded at 11:30 a.m.
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18 LOCATION: Leon County Courthouse
Courtroom Number 3D
19 Tallahassee, Florida
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REPORTED BY: NANCY P. VETTERICK, R.P.R.
21 Certified Court Reporter
Notary Public in and for the
22 State of Florida at Large
23 ACCURATE STENOTYPE REPORTERS, INC.
100 Salem Court
24 Tallahassee, Florida 32301
(850) 878-2221
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ACCURATE STENOTYPE REPORTERS, INC.
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1 APPEARANCES:
2 REPRESENTING THE PLAINTIFFS:
3 RANDALL C. BERG, JR., ESQUIRE
Florida Justice Institute, Inc.
4 2870 First Union Financial Center
200 South Biscayne Boulevard
5 Miami, Florida 33131-2310
(305)358-2081
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REPRESENTING THE DEFENDANT:
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JAMES PETERS, ESQUIRE
8 Office of the Attorney General
PL-01, The Capitol
9 Tallahassee, Florida 32399-1050
(850)414-3300
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-and-
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RICHARD B. MARTELL, ESQUIRE
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-and-
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LOUIS F. HUBENER, ESQUIRE
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ACCURATE STENOTYPE REPORTERS, INC.
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1 INDEX
2 ITEM
3 HEARING COMMENCED 4
4 HEARING CONCLUDED 9
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6 CERTIFICATE OF REPORTER 10
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ACCURATE STENOTYPE REPORTERS, INC.
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1 P R O C E E D I N G S.
2 THE COURT: At this time, the Court is going
3 to grant the opposition that's been filed to the
4 motion for a preliminary injunction as well as to
5 consolidate any further consideration of an
6 injunction or a mandamus with the trial on the
7 merits and to advance the cause.
8 It appears that the count relating to a
9 petition for mandamus should be denied as much as
10 mandamus would not be an appropriate remedy for
11 cause in this particular case. The acts sought to
12 be compelled by the defendant/respondent is not
13 purely a ministerial duty where a clear legal right
14 to the performance of such ministerial duty has
15 been established, and it appears that mandamus is
16 not properly grantable or an alternative writ under
17 the old procedure or the issuance of a show cause
18 order under the new rule where the respondent
19 cannot comply with such a writ physically or
20 practically at this time.
21 It appears that the Fine (phonetic) case and
22 the Hess case -- this Court reads further
23 decisions, Fine, in particular, held that mandamus
24 might properly lie under the particular facts in
25 that case because the Court concluded that the
ACCURATE STENOTYPE REPORTERS, INC.
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1 violation had been clearly and conclusively
2 demonstrated from the face of the proposed
3 amendment.
4 In this case, this Court cannot find at this
5 time that there has been a demonstration that this
6 particular proposed constitutional amendment is
7 clearly and conclusively defective. For those
8 reasons, it appears that mandamus will not properly
9 line, and that count should be dismissed.
10 With respect to the count for the declaratory
11 relief and an ancillary preliminary injunction in
12 connection with this amendment, again it has not
13 been demonstrated that the proposed amendment is
14 clearly conclusively defective, and as indicated by
15 Justice Drew in the case of Golden which the
16 Court -- actually it was a case not dealing with
17 mandamus, but apparently it was grounded in a
18 request for a declaration as well as for an
19 injunction.
20 The injunction was denied by the trial court,
21 and the scenario appears practically the same as in
22 that case as in this case where the election in the
23 Golden case -- of course, at that time, it was a
24 little more than a month away. Here apparently
25 it's 10-days-or-so days away from an election, and
ACCURATE STENOTYPE REPORTERS, INC.
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1 an injunction at this time would be highly
2 extraordinary under these facts.
3 To grant such an injunction would create great
4 confusion and disorder which would produce an
5 injury to the public which would far outweigh the
6 rights of the complainants here to gain any relief
7 it may be appropriate from.
8 The Court is going to deny the complaint or
9 the motion for the preliminary injunction as all
10 the prerequisites for the issuance of an injunction
11 are not present, and those grounds have been
12 adequately covered in the filed opposition to the
13 motion.
14 Accordingly, at this time, the Court cannot
15 find that the valid title in the summary are
16 legally sufficient. It may remain for another day,
17 but it does appear that at this time the ballot
18 should be retained for the people's consideration.
19 With respect to the assertion of laches, it
20 does not appear at this time that it would be
21 appropriate to grant any dismissal on the basis of
22 laches either to the mandamus aspect which the
23 Court has already found and indicated that it
24 appears that it would not be appropriate in this
25 case, nor at this time should there be any
ACCURATE STENOTYPE REPORTERS, INC.
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1 dismissal of the request for declaratory relief or
2 injunction on that basis.
3 Reading the cases, it just appears that
4 perhaps the language in the concurrence -- in the
5 Gross case -- perhaps it wasn't a concurring
6 opinion -- overlooked the distinction of a
7 dismissal of an action as opposed to perhaps
8 dismissal on a pleading.
9 This one does not appear to be an appropriate
10 case to dismiss at this stage, there not being any
11 clear and irrevocable demonstration of laches that
12 would arise to conclusive ultimate defense in this
13 case, and it appears that if the defense of laches
14 is maintained, it may remain as a viable defense in
15 this case, and it may be the subject of discovery
16 if that is appropriate if it is to be asserted as
17 an additional defense to the complaint for
18 declaratory relief and any ultimate permanent
19 injunction in this case.
20 This Court is not going to dismiss on the
21 basis of laches nor hold that laches is
22 inappropriate as a defense at this time. In
23 summary, at this time, the Court is going to deny
24 the preliminary relief that's been requested at
25 this time, and the case will remain pending for
ACCURATE STENOTYPE REPORTERS, INC.
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1 further proceedings in due course.
2 All right. I suppose Mr. Peters, you or Mr.
3 Martell, would you please submit a proposed order
4 if counsel can settle on form and content, then
5 please do so. If not, then perhaps you may each
6 wish to submit a proposal.
7 All right? Anything further?
8 (No response.)
9 THE COURT: If not, that will conclude the
10 hearing.
11 MR. BERG: I think for purposes of appeal, I
12 would like to request if the Court is going to deny
13 the preliminary relief as well as the writ of
14 mandamus, that we just go ahead and deny the
15 declaratory judgment action so we can go ahead and
16 seek relief in the District Court of Appeals or the
17 Supreme Court.
18 THE COURT: I don't know whether your
19 complaint for declaratory judgment or relief is so
20 lacking in merit at this time that it should be
21 denied, but if you want to voluntarily dismiss it,
22 then certainly you can do that.
23 MR. BERG: Can I have just a minute?
24 THE COURT: All right. Counsel for both sides
25 wish to jointly move for the Court to deny the
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1 second count at this time?
2 MR. HUBENER: Judge, we think it's improper to
3 rule on the merits at this time for most of the
4 reasons you have said. It's going to create
5 confusion and disorder in the minds of the voters.
6 Some are going to go in there thinking, well, the
7 Court said it's okay, I don't need to vote on it.
8 THE COURT: Well, a joint stipulation. The
9 Court's ruling stands. Thank you.
10 (Hearing concluded at 11:30 a.m.)
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ACCURATE STENOTYPE REPORTERS, INC.
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1 CERTIFICATE OF REPORTER
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3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5 I, NANCY P. VETTERICK, do hereby certify that
6 the foregoing proceedings were taken before me at the
7 time and place therein designated; that my shorthand
8 notes were thereafter translated under my supervision;
9 and the foregoing pages numbered 1 through 9 are a true
10 and correct record of the aforesaid proceedings.
11 I FURTHER CERTIFY that I am not a relative,
12 employee, attorney or counsel of any of the parties, nor
13 relative or employee of such attorney or counsel, or
14 financially interested in the foregoing action.
15 DATED THIS 23RD DAY OF OCTOBER, 1998.
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18 ___________________________
NANCY P. VETTERICK
19 100 SALEM COURT
TALLAHASSEE, FL 32301
20 (850) 878-2221
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ACCURATE STENOTYPE REPORTERS, INC.
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