Considering that the Florida Legislature is still in session, and will be until March 11, 2016, I was surprised to learn on Monday that a hearing was held in the Michael Joseph v. Phyllis Smith case.  As I reported, Judge Samantha Ruiz Cohen ruled in favor of Michael Joseph by denying Phyllis Smith’s Motion to Dismiss.

Despite the fact that this lawsuit was filed on June 2, 2015 on an expedited basis, Smith’s lawyer, Joseph S. Geller, has been inordinately delaying the case by filing four Notices of Mandatory Continuances since then.  Amazingly, the Judge finally agreed to schedule a hearing.  On January 21, 2016, she signed an Order Granting Telephonic Appearance at Calendar Hearing in response to a Motion to Appeal Telephonically at Hearing filed by the City of North Miami Beach’s Canvassing Board Members.

Judge Cohen’s decision to finally move this case forward might have something to do with the fact that a precedent has already been set for a judge to vacate a mandatory continuance (or “automatic stay”), an all too common tactic employed by lawyer/politician types in an attempt to delay justice.

This gambit was brought to the forefront in a 2009 lawsuit filed by a group of sixteen local governments against the Governor, the Secretary of State and the representatives of both chambers of the Florida Legislature.

On July 8, 2009, the City of Weston, Village of Key Biscayne, Town of Cutler Bay, Lee County, City of Deerfield Beach, City of Miami Gardens, City of Fruitland Park, and the City of Parkland, Florida, which were joined a month later by the City of Homestead, Cooper City, City of Pompano Beach, City of North Miami, Village of Palmetto Bay, City of Coral Gables, City of Pembroke Pines, and Broward County, Florida, (collectively referred to as the “Local Governments”), filed a lawsuit against then Governor Charlie Crist, Secretary of State Kurt S. Browning, Senate President Jeff Atwater and House Speaker Larry Cretul (herein referred to as “the Politicians”).

This lawsuit is a fascinating case study in the constitutionality of Senate Bill 360 (SB 360), known as “An Act Relating to Growth Management,” as well as the State’s imposition of unfunded mandates.  What I found particularly interesting, however, is the issue of the Defendants’ filing for a mandatory continuance per Florida Statute 11.111.  The matter was brought before the 2nd District Court of Appeals, which ruled in favor of the Plaintiff’s Motion to Vacate Automatic Stay.

In the motion brought before the Appellate Court, the Plaintiff “Local Governments” accused the Defendant “Politicians” of filing a mandatory continuance for the purpose of delaying the case beyond the deadline by which the Local Governments had to comply with SB 360’s unfunded mandate to the tune of approximately $3,690,000.00.

The Plaintiffs/Local Governments asked the Court to consider the balance of equities, which would be overwhelmingly tilted against them if they were forced to comply with SB 360’s “unconstitutional provisions.”  Plaintiffs claimed they would “suffer definite, irreparable and irremediable harm” if the continuance were to remain in force, and furthermore, this damage was “incapable of being remedied after the fact.”  The Plaintiff’s Motion to Vacate also noted that “on the flip side, the harm to Senate President Atwater and Speaker Cretul is virtually non-existent.”

In its consideration of equitable relief in this case, the Appellate Court determined that if the Defendants/Politicians were permitted to exercise their mandatory continuance privileges, greater harm would be done to the public interest than to the Florida Legislature.

Equally as (and perhaps even more) important, is the fact that the Defendants appeared to be “seeking review in bad faith solely as a delaying tactic,” which the Appellate Court deemed an appropriate reason to vacate a mandatory continuance.

Interestingly, in an even earlier case, A.B.C. Business Forms, Inc. v. Spaet, 201 So. 2nd 890 (Fla. 1967), the Florida Supreme Court ruled that, based on a previously heard case (Brooks v. Pan American Loan Co., 173 So.2d 135 (Fla. 1965)), Florida Statute 11.111 “is not only reasonable but necessary to the proper functioning of the Legislature” and that “we accept the constitutionality of the [Statute] insofar as it relates to non-emergency litigation.”

However, the Court also acknowledged that when the Brooks case was written, the “demands of the Florida Legislature” were merely “a short 60-day period every two years.”  Yet, two years later during the A.B.C. v. Spaet case, the Court took “judicial notice that the Florida Legislature is now sitting in its third session this year.”

Most importantly, however, the Florida Supreme Court noted that it “relied somewhat upon construction of a similar Act by the Supreme Court of Illinois,” in which that Court “denied a motion for continuance by a Legislator-attorney” due to the fact that ” the application of a statute to a particular case is a judicial function, and the determination of what order shall be entered in such a case is the exercise of judicial power which does not belong to the Legislature.”

In A.B.C. vs. Spaet, the Florida Supreme Court finally ruled that “as to litigation involving emergency relief and irreparable damage, we find the statute an invasion of the judicial field and violative of constitutional prohibition.”  In essence, the enforcement of a mandatory stay in an emergent, or expedited, judicial proceeding is a legislative over-reach by definition.

In the present day absentee ballot fraud lawsuit of Joseph v. Smith, this case was filed on an expedited basis in the hopes of emergency relief.  As long Phyllis Smith occupies an office to which she may not be legally entitled there is irreparable damage being done to the public interest.

But most importantly, as long as this case is allowed to languish in the court system, the integrity of our right to a free and fair election hangs in the balance.  Absentee ballot fraud is an even greater threat to the public interest at large.

On the contrary, as in the case in Weston, et al, v. Governor Crist, et al, the potential harm to the Florida Legislature would have been “virtually non-existent” if Joseph S. Geller had been absent from any one of the three Special Sessions since the lawsuit was filed.

As a matter of fact, despite his filing a Notice of Mandatory Continuance for the second of those Special Sessions held from August 10 to August 21, 2015, STATE REPRESENTATIVE JOSEPH S. GELLER NEVER EVEN BOTHERED TO SHOW UP IN TALLAHASSEE! 

Miraculously, the Florida Legislature managed to carry on without Joe Geller’s presence.

Hopefully, Joe’s constituents will remember that the next time he runs for office again.

In any event, despite Joe Geller’s filing of his FOURTH Notice of Mandatory Continuance in this case (and his oh-so-important attendance in the Florida Legislature’s Session), Circuit Court Judge Samantha Ruiz Cohen finally scheduled a hearing, albeit telephonically.

As such, Judge Cohen’s denial of Phyllis Smith’s Motion to Dismiss is a Very Big Deal.

The equities in this case are finally balanced against Phyllis Smith’s personal and political interests and rightfully in favor of the public interest.

Stephanie Kienzle
“Spreading the Wealth”