by Irwin Ironstone & Bob Vinick-
IN THE SUPREME COURT OF FLORIDA ________________________________________________________________________________.
THE FLORIDA BOARD OF BAR EXAMINERS
RE: I.R.E. Case Number:SC13-899
Lower Tribunal Case Number(s): TFB FILE NO. 21610
BRIEF IN RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE TO SANCTION THE PETITIONER
Irwin Petitioner ,
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
STATEMENT OF THE CASE 4
A REVIEW OF THE DOCKETS OF THE CASES AT ISSUE 7
A Review Of The Docket For SC13-449 8
A Review Of The Docket For SC13-899 9
SUMMARY OF THE ARGUMENT 10
I. A Summary Of Cases Derived From The Court’s Order Suggests That The Penalty Proposed By The Court Is Excessive. 13
II. Cases Cited In Sibley And Jackson 17
III. The FBBE Order To Show Cause Is Not Reasonable 25
STATEMENT OF RELIEF SOUGHT 30
CERTIFICATE OF SERVICE 33
CERTIFICATE OF TYPE SIZE AND STYLE 33
TABLE OF AUTHORITIES
Armstead, v. State 817 So.2d 841 (2002) passim
Attwood v. Singletary, 661 So.2d 1216 (Fla.1995) 17
Butterworth v. Smith, 494 U.S. 624 (1990) 29
Chambers v. NASCO, Inc., 501 U.S. 32 (1991), 11, 21
Coleman v. Watts, 81 So. 2d 650, 655 (Fla. 1955) 4
Gentile v. State Bar of Nevada, 501 U.S.1030 (1991) 28
In re McDonald, 489 U.S. 180 (1989) passim
In re Sindram, 498 U.S. 177 (1991) 15
Jackson, v. Florida Department of Corrections, 790 So.2d 398 (2001) 3, 11, 17, 21
Lane v. Franks, No.13-483 Decided June 19, 2014. __ U.S. __ (2014) 13
Martin v. District of Columbia Court of Appeals, 506 U.S. 1(1992) 16, 21
Peterson, v. State, 817 So.2d 838 (Fla.2002) 17, 19
Rivera, v. State, 728 So.2d 1165 (Fla.2002) 17, 24
Sibley, v. Florida Judicial Qualifications Comm’n, 973 So. 2d 425 (Fla. 2006) passim
The Florida Bar, v. Charles Behm, 41 So.3d 136 (2010) 29
The Florida Bar, v. Kandekore, 932 So.2d 1005 (2006) 11, 27
Bar Rule 3-7.17 Vexatious Conduct And Limitation On Filings 28, 29
FBBE Rule 1-63.3 – Confidentiality 32
FBBE Rule 1-63.4 – Confidentiality 32
FBBE Rule 1-65 – Disclosure of Information 13, 14
FBBE Rule 3-30 Reconsideration 5
FBBE Rule 3-40.1 – Dissatisfied with Board’s Recommendation 1
RPC Rule 4-3.3 (Candor Toward the Tribunal 6
RPC Rule 4-6.1 Pro Bono Public Service 13
First Amendment 1, 13, 31
This Court has jurisdiction under Article V, Section 15 of the Florida Constitution and FBBE Rule 3-40.1.
The Petitioner will use the following designations:
The Florida Board of Bar Examiners will be referred to as FBBE;
The General Counsel of the FBBE will be referred to as GC; and
I.R.E. will be referred to as Petitioner, or Eisenstein.
The Petitioner admits that he does not have much experience in the Florida court system and that he does not have years of experience in this Court. This was the first time that he appeared in this Court. He may have filed some extra papers but there was no intent to burden this Court or its staff. The Petitioner does not intend to be either legally frivolous or abusive. He has a very high regard for this Court, the Constitution, the First Amendment and due process.
This Court’s June 13, 2014 order to show cause raised several issues. The Court is requesting the Petitioner to submit a brief in response to this Court’s order to show cause based on the following issues:
1. First, the Court is considering sanctions against the Petitioner. It strongly suggested that the Petitioner had filed “numerous pleadings…in a relentless and frivolous pursuit of vindication on his claim that he is being victimized by the Board.” The Court negatively depicts the “pro se” Petitioner as one who is relentless and abusive.
The Petitioner is very persistent. He believes his actions are not frivolous because there are authorities that support his positions. He does not know how the Board has acted with other applicants. The FBBE has lost submissions including cases he submitted and letters of recommendation (They then charged the Petitioner with submitting a flawed application.). The Board’s discovery requests were excessive and at times very questionable. T230-235.
Not knowing how the Board functions, he could assume that they are not victimizing anyone. The Petitioner never said that he was victimized. The treatment that the Petitioner received may be based on the Board’s normal operating procedures. This may be the normal course of how the Board functions when they have large case files or older applicants. Some states discount and do not require the reporting of an applicant’s divorce action. This is probably because divorce actions may be very contentious.
2. Second, this Court justified using inherent powers to sanction and limit parties who file papers when the Court believes that the party is abusing the system. Sanctions may be appropriate when parties abuse the system because it may deny or delay the right of access to courts for “legitimate claims filed by others.” See In re McDonald, 489 U.S. 180, 184 (1989). In Jackson, v. Florida Department of Corrections, 790 So.2d 398,401 (2001), this Court noted that “this Court has the inherent authority to limit that right when pro se litigation becomes so disruptive that it threatens to deny other litigants their rights.” See also Chambers, v. Nasco, Inc., 501 U.S. 32 (1991) (The Court allowed sanctions using inherent powers.)
The Court order also said that sanctions may be in order to “devote its finite resources to the consideration of legitimate claims filed by others.” Jackson at 401. However, the Petitioner is not filing frivolous claims in bad faith. To the best of his knowledge, the Petitioner’s claims are legitimate. Justice Canady dissented in one of the actions in favor of the Petitioner.
Unlike the FBBE, the Petitioner had no experience at the Florida Supreme Court level prior to the two actions he filed. He is sometimes repetitious but that was frequently necessary to refute errors, omissions and misstatements that have been used repeatedly by the FBBE General Counsel. Part of the Petitioner’s repetition is based upon papers submitted by the General Counsel first to the Florida Board and now in this Court.
First, this Brief includes the “STATEMENT OF THE CASE.” Next, the brief will examine the dockets of the two cases filed by the Petitioner. This is followed by a summary of the argument and the argument.
STATEMENT OF THE CASE
The Petitioner’s Brief is a response to this Courts order to show cause “why this Court should not find that [he has] abused the legal system process and impose ….sanctions.…” In Coleman v. Watts, 81 So. 2d 650, 655 (Fla. 1955), the Court said that the entire record should be used in an appeal to the reviewing Court. Similarly, before this Court applies sanctions the entire record produced below should be used. Currently, using just the hearing record would not reflect the many errors and omissions made during the hearing before the Formal Board Panel. In addition, compared to other actions where sanctions were imposed, the parties being sanctioned filed many more cases and continued that pattern over a period of years. Petitioner has only filed two cases in a year and one-half.
On January 24, 2014, in the FBBE’s “RESPONSE TO MOTION IN OPPOSITION TO THE FLORIDA BOARD’S MOTION TO STRIKE THE PETITIONER’S INITIAL BRIEF” the motion contained the following statements:
[U]nder rule 3-30 of the Rules [-] Under this rule, to meet the standard for board reconsideration, the petition “must contain new and material evidence that by due diligence could not have been produced at the formal hearing.” Id. at 5.
Petitioner alleges that the information that he presented to the Board in his Request for Reconsideration contained new and material evidence that by due diligence could not have been produced at the formal hearing. He used the transcript from the formal hearing to identify and present discrepancies in facts and statements made by the GC during the presentation to the Board. These discrepancies (errors) and omissions were prejudicial to the Petitioner. The GC erroneously claimed that the Petitioner submitted information late and submitted information that was not relevant in his Request for Reconsideration. However, the entire record maintained by the Board was available to the GC. Even though the GC had access to the Petitioner’s entire file he knowingly failed to use items in the file that contradicted his statements during the Formal hearing, or afterward as required by Rule 4-3.3 (Candor toward the Tribunal.).
The Petitioner submitted some of these errors and omissions by the GC not only in his Request for Reconsideration to the Board but also in one document that was submitted as an appendix to his initial brief that this Court struck.
The Petitioner submitted his request for sanctions on March 24, 2014 based upon the many errors and omissions in the FBBE’s prior submissions. At the same time, on March 24, 2014 the FBBE submitted their Answer Brief that also contained errors and omissions .
Then, on April 3, 2014 the FBBE submitted a motion to strike the Petitioner’s motion for sanctions and submitted a motion for sanctions against the Petitioner. The FBBE’s “PETITION FOR ORDER TO SHOW GOOD CAUSE” (Hereinafter OSC) was submitted after the FBBE Answer Brief (March 24, 2014) but before the Petitioner’s Reply Brief (April 16, 2014). After reading the FBBE’s Answer Brief, the Petitioner’s Reply Brief should have reinforced the issues that the Petitioner raised in his request for sanctions (There were new errors and omissions.).
The Petitioner did not respond to the FBBE “PETITION FOR ORDER TO SHOW GOOD CAUSE” even though it misstated several issues and facts (dated April 3, 2014). One example of a questionable fact in the argument section on page 2 is when the GC cites to the Petitioner’s initial brief that was filed on July 18, 2013, and was then stricken by this Court. Then, later in the argument, the GC cites to the Petitioner’s resubmission of the initial brief dated November 16, 2013, that included many of the same arguments that appeared on the same pages of both papers. In his argument, the GC accuses the Petitioner of being repetitious even though the Petitioner merely eliminated parts of the initial brief that were stricken and resubmitted it.
The Petitioner responded to the FBBE Answer Brief with his Reply Brief on April 16, 2014. The Petitioner again listed as many errors as he could in the fifteen pages allowed in his Reply Brief. Additionally, he requested that this Court allow him to expand his request for sanctions and did not file another motion. He showed reasonable restraint considering the many errors in the FBBE’s Answer Brief.
This Court issued its first order to show cause on June 13, 2014 and the Petitioner received it on June 20, 2014 and then called the Clerk of the Court as instructed. She informed him that his response was due on June 30, 2014. On June 25, 2014, the Petitioner submitted an unopposed motion for an extension of time to file a response.
A REVIEW OF THE DOCKETS OF THE CASES AT ISSUE
In order to respond to the Court’s order to show cause, the Petitioner wrote to the Clerk of the Court to retrieve the dockets for the two actions he filed. The dockets are marked confidential and are not available online. There were seventy-six entries listed for case SC13-899. Petitioner noticed that on page five through six, entries fifty-four through seventy-one were submitted by the FBBE. They appear to include the record below.
Based upon the docket entries, the Petitioner cannot identify what was included in the record submitted to this Court. The Petitioner received no notice about these eighteen entries or which entries have been included from the record below. He would not have been aware of these entries if he had not sent for the dockets.
A Review Of The Docket For SC13-449
The Petitioner filed two cases that were based upon his interactions with the FBBE. The first action was filed on February 14, 2013. This case questioned the confidentiality rules of the FBBE. It was filed prior to the FBBE’s final determination denying his Request for Reconsideration (dated 3/4/13). The justification for each set of papers is briefly described and explained in the footnote below. The number of papers filed in this action was not excessive. There are twenty-one entries and the Petitioner is responsible for eleven. Some of the entries include cover letters and requests for a continuance based upon surgery.
A Review Of The Docket For SC13-899
This action’s docket has seventy-six entries. On page five and six, entries fifty-four through seventy-one appear to include the record below. Based upon the docket entries, the Petitioner cannot identify what was included in the record. Twenty-one entries were move over from case SC13-449. About thirteen docket entries were made by the court
Together, the entries from case SC13-449 (twenty-one), the unidentified records below (eighteen) and the Court’s entries (thirteen) account for fifty-two entries. The remainder (twenty-four) were used by the Petitioner and the Respondent. The twenty-four entries remaining are most likely split fairly evenly or the Petitioner may have filed fewer requests than the GC.
SUMMARY OF THE ARGUMENT
The Petitioner only filed two cases. The number of motions included in these cases was not excessive. In contrast, every Petitioner in the cases cited by this Court and by the FBBE had more cases filed. They also were active in the court for a much longer time than the Petitioner in this action. Petitioner reviewed the four cases in the Court’s order to show cause and in the FBBE request for sanctions. These cases refer to other cases and some will also be reviewed in this brief. After reviewing the cases referenced by those in the order to show cause and the GC’s request for sanctions, the Petitioner’s action is distinguishable.
The following review will account for the actions where parties were sanctioned and where the inherent powers of courts have been used to justify limiting parties. In In re McDonald, 489 U.S. 180 (1989), the Court limited the right to file actions. However, this case was decided by a five-four vote.
This Court cited two cases that referred to Chambers v. NASCO, Inc., 501 U.S.2 (1991). In this case, the Court determined that courts can use inherent power to sanction parties who have overburdened courts. In Chambers, his lawyers participated in guiding him and in submitting false and fraudulent papers to delay and impede specific performance of a contract. This action was also decided by a five-four decision.
In both McDonald and in Chambers, the dissenting opinions were concerned with courts going beyond their limits both in sanctioning parties and in closing the court house doors. The dissent in both of these cases was concerned that these initial determinations would be expanded and would result in an abuse of rights by courts.
In contrast to the cases cited by this Court and other cases from those cases, the Court should recognize that Petitioner filed only two actions. In each of those actions he believes he filed no more than eleven substantial motions or fewer. In one action, Justice Canady dissented and the Petitioner then submitted an appeal to the U.S. Supreme Court (The odds of having a case accepted is about .004.). The Petitioner understands that many who file actions do not have the same costs associated with an action. Many of those who have been sanctioned by courts usually are not charged filing fees. This Court noted that “Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources.” In re McDonald at 184.
Although the Court is suggesting limiting the Petitioner’s future filings by requiring a Florida lawyer to sign off on his papers that may place a financial burden on him because he is on a fixed income. It is not unheard of for Appellate lawyers to charge $400 or more per hour. When the Court acts to require a party to hire a lawyer for an action, it may preclude individuals from being able to bring a valid action to court. In re McDonald at 187 (See Justice Brenan’s dissenting opinion where this issue is reviewed.).
I. A Summary Of Cases Derived From The Court’s Order Suggests That The Penalty Proposed By The Court Is Excessive.
In the First Amendment action filed by the Petitioner (SC13-449), he did so to insure that he could use most of the information that ordinarily is available to a bar applicant. The GC in several papers submitted to this Court said that rule 1-65 allows an applicant to use almost all papers except those that the FBBE holds confidential based upon its own investigation. See Rule 1-65. The Court appears to disagree with the General Counsel’s opinion.
Over the years in First Amendment cases, the U.S. Supreme Court has frequently found in favor of individuals and groups over government agencies who try to restrict First Amendment Rights. See Lane v. Franks, No. 13-483 Decided June 19, 2014 -__ U.S. __ (2014) (In this case from the Eleventh Circuit, the Court determined “Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Pp.6-13.)”.
Similarly, the Petitioner wanted to supply information to The Florida Bar for an investigation. He questioned the extent of Rule 1-65, because there appeared to be a conflict in the Florida Supreme Court’s rules, The Florida Bar’s authority and the First Amendment. Rather than release information to The Florida Bar, he requested permission as required by Rule 1-65.
In reviewing the cases in this Court’s order the Petitioner has determined that the number of actions that he has filed (two) is lower than any of the other parties who were sanctioned. Additionally, it is very difficult to determine the types of papers submitted in many of these cases. Without knowing the other papers filed in cases where the parties were sanctioned, the Petitioner cannot make a comparison.
In In re McDonald, 489 U.S. 180 (1989), the Court limited McDonald’s access to the Court. McDonald was filing his papers in forma pauperis. The Court enumerated the types and number of papers that McDonald had filed. Although the court sanctioned him, it only required that he pay for bringing actions. McDonald was prevented from filing additional extraordinary writs unless he paid the docketing fees.
The court said that since 1971 McDonald had filed 73 separate filings (Since it was 1989, that would amount to 4 per year. The court did not count the current petition. ). Id. at 180. He had filed eight so far in 1989. The petitions included 4 appeals, 33 petitions for certiorari, 99 petitions for extraordinary writs, 7 applications for stays and other injunctive relief, and 10 petitions for rehearing. (The total is 4 + 33 + 99 + 7 + 10 is 153 papers in all. This is about 8 per year.) Id. at 181-82. The Court did not enumerate whether there were additional papers filed with each of the actions or those papers filed in state courts. McDonald put forward the same argument— unsuccessfully—in at least four prior filings with the Court.
In McDonald four Justices dissented (It was a 5-4 decision.). Justice Brennan wrote the dissenting opinion. One of the issues raised was that the Court has made a presumption that all future actions will be frivolous. Justice Brennan continued to note that even though a party files frivolous actions one cannot insure that a future action will not be meritorious. Id. at 187.
In In re Sindram, 498 U.S. 177 (1991), the Court noted that he had filed forty-three separate petitions and additional motions before the court in three years. This included twenty-one petitions for certiorari (seven writs of Certiorari per year, and in three years more than fourteen per year). Justices Marshall, Blackmun and Stevens joined dissenting. Justice Marshall pointed out that “clever attorneys manage to package these filings so their lack of merit is not immediately apparent” and the court “expends more time wading through frivolous paid filings than through frivolous in forma pauperis filings.” Id.at 181. In conclusion, Justice Marshall said that “[b]y closing our door today to a litigant like Michael Sindram , we run the unacceptable risk of impeding a future Clarence Earl Gideon.” Id. at 181. (Gideon’s appeals were denied by the Florida courts at all levels.)
In Sibley, v. Florida Judicial Qualifications Comm’n, 973 So. 2d 425 (Fla.2006), the petitioner was an attorney licensed in Florida. This Court issued a show cause why the Court should not limit his filings or otherwise impose sanctions upon him for filing frivolous proceedings in this Court. From 2002 through 2006, Sibley had filed ten actions in fewer than five years. (At least two a year). In order to reach this Court, the cases had to be heard by lower courts. The Court sanctioned Sibley by preventing him from filing any actions related to his divorce unless signed by a member in good standing of the Florida Bar. Id. 427. However, he was not prevented from filing other cases before this Court.
In Sibley, the Court cited to several other cases. Each of those cases cites to additional cases. Sibley cited to In re McDonald, 489 U.S. 180 (1989), and In re Sindram, 498 U.S. 177 (1991), supra. The Sibley Court also cited to Martin, v. District of Columbia Court of Appeals, 506 U.S. 1(1992), infra.
In Martin v. District of Columbia Court of Appeals, 506 U.S. 1(1992) the Court notes that he filed forty-five petitions in the past ten years (four and one-half a year) and fifteen in the last two years (seven and one-half a year). In the year where the court sanctioned Martin, he had filed eleven petitions. Two of the Justices dissented suggesting that it was more efficient to dismiss his actions than to hear his cases and place a burden on the Court’s Clerks. The first sanction placed on Martin was to require him to pay to file his actions. The Court ordered that Martin could no longer file petitioners of certiorari in civil actions. It still allowed him to file papers in any criminal actions. Justices Stevens and Blackmun dissented because it closed open access to the Court.
II. Cases Cited In Sibley And Jackson
The next cases cited in Sibley include: Armstead v. State, 817 So.2d 841 (Fla.2002); Peterson v. State, 817 So.2d 838 (Fla.2002); Jackson v. Fla. Dep’t of Corr., 790 So.2d 398 (Fla. 2001); Rivera v. State, 728 So.2d 1165 (Fla.1998); and
Attwood v. Singletary, 661 So.2d 1216 (Fla.1995). Each is reviewed in turn.
In Armstead, v. State 817 So.2d 841 (2002), the Court dismissed the petition and sanctioned Brenda Armstead for abuse of the judicial system. Id. at 841. The petition contained “various rambling letters, newspaper clippings,” and other pleadings that were either incomprehensible or sought “relief that this Court was unable to provide.” “Since June of 2000 Armstead has filed twenty petitions.” Id. at 842. Some of Armstead’s filings never became petitions because they were incomprehensible. The Court said that it appeared that she abused the judicial system and they had to do something so that the Court’s time would not be monopolized. Id. at 842.
Not only did Armstead not file a formal response to the Court’s order to show cause, but she continued to file numerous incomprehensible pleadings. The Court notes that courts have an inherent power to sanction parties who abuse the court system. This includes litigants who file in bad faith without any specific statutory or rule authority. Id. at 842. The Court then cites to other actions where courts have restrained pro se petitioners who abused the system. As a remedy, the Court dismissed Armstead’s habeas corpus as facially insufficient to be placed in an inactive file without any additional response to Armstead. Id. The final solution for the Court was to limit Armstead’s filings so that she would not hamper this Court’s ability to timely review the many other petitions filed by those who have not abused the system. Id. at 843. It appears that Armstead filed at least ten writs a year and also submitted other papers that were so incomprehensible that they were not understood by the Court.
The next case cited in Sibley is Peterson v. State 817 So.2d 838 (2002). The Court allowed Peterson to proceed in forma pauperis but then denied his petition and sanctioned him. The Court said that the majority of his petitions were conclusory and facially insufficient. Id. at 839. The Court issued an order to show cause, but Peterson’s response was incomprehensible. The Court said that his filings were “frivolous, incomprehensible [and] facially insufficient.” Id. at 840. His writs “generally consist of a one-page document making conclusory statements that his constitutional rights have been violated…”….and “they generally have been deemed insufficient.” Id. at 840.
Peterson has already been sanctioned by a DCA and his many petitions required significant time from the Court’s staff. Id. at 840-41. In May of 1991, the Court issued an order to show cause why Peterson should not be sanctioned. The sanction included dismissing all of his frivolous petitions and placing newly filed petitions that were “facially insufficient or frivolous filings and place them in an inactive file with no further action taken.” Based on an incomplete record, Peterson had filed the following petitions over the years. Id. There was an unknown number after May 2001 when the Court issued its order. The following is a partial list of dismissed petitions: 1999(6), 1998 (3), 1997 (4), 1996 (11), 1995 (11), and eight between the years of 1994 and 1988. Between the years of 1995 and 1999 thirty-five petitions were filed (The average was seven per year.).
In Peterson, 817 So.2d at 840 the Court said:
This Court has a responsibility to ensure every citizen’s right of access to the courts … A limitation on [the petitioner’s] ability to file would further the constitutional right to access for other litigants because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others.
In Armstead v. State, 817 So.2d 841 (Fla.2002), the Court dismissed the petition and sanctioned Brenda Armstead for abuse of the judicial system. Id. at 841. The petition contained “various rambling letters, newspaper clippings,” and other pleadings that were either incomprehensible or sought “relief that this Court was unable to provide.” “Since June of 2000 Armstead has filed twenty petitions.” Id. at 842. Some of Armstead’s filings never became petitions because they were incomprehensible. The Court said that it appeared that she abused the judicial system and they had to do something so that the Court’s time would not be monopolized. Id. at 842.
Not only did Armstead not file a formal response to the Court’s order to show cause, but she continued to file numerous incomprehensible pleadings. The Court notes that courts have an inherent power to sanction parties who abuse the court system. This includes litigants who file in bad faith without any specific statutory or rule authority. Id. The Court then cites to other actions where courts have restrained and sanctioned pro se petitioners by using a court’s inherent power. Id. This power can be employed “to sanction a litigant who employs bad faith in filing frivolous pleadings despite any lack of specific statutory or rule authority[.]” Id. at 843. As a remedy, the Court dismissed Armstead’s habeas corpus as facially insufficient to be placed in an inactive file without any additional response to Armstead. Id. The final solution for this Court was to limit Armstead’s filings so that she would not hamper this Court’s ability to timely review the many other petitions filed by those who have not abused the system. Id. at 843.
Armstead filed at least ten writs a year and also submitted other papers that were so incomprehensible that they were not understood by the Court. One justification for such a sanction lies in the protection of the rights of others to timely reviews of their legitimate filings. See Martin, 506 U.S. at 3 (imposing sanction where petitioner’s filings for certiorari review had a deleterious effect on the Court’s fair allocation of judicial resources). Id.
The next case cited in Sibley was Jackson, v. Florida Department of Corrections, 790 So.2d 398 (2001). The Court determined that Jackson’s response was not adequate and it imposed sanctions. Id. at 398. First the Court granted in forma pauperis status, and then dismissed the action as frivolous and denied it. The Court determined that Jackson had abused the judicial system and issued an order to show cause as to why he should not be sanctioned. Jackson argued that the inmate grievance process did not work and that he was not a vexatious litigator but a victim of the system. Id. at 400. Jackson set forth several questionable theories of law including: he has a right to self-representation (even if the action is not criminal); a sanction is not appropriate because he has not done anything wrong; and that the court has violated the separation of powers by making law (a legislative duty). On analysis, this Court dismissed each of his claims and asserted its inherent power to regulate and sanction litigants who disrupt its proceedings. See Chambers v. NASCO, Inc., 501 U.S. 32 (1991). Judicial sanctions are not criminal or civil but are used to enforce judicial authority. This type of sanction is rarely used except when a party is very litigious and pleadings are frivolous. Jackson at 401. The Court said that Jackson filed an excessive number of petitions and has also filed numerous papers during each case (Sometimes, papers were submitted daily.). Not only did the Court have to respond to dozens of papers before a decision but dozens afterward before the case became final. Id. The Court said that without sanctioning him, it would be handicapped and would not be able to review petitions filed by others. Citing to a U.S. Supreme Court case that limited a petitioner, the court is just following precedence. See In re McDonald at 184 (However, four justices dissented in McDonald.). This Court was concerned with inmates becoming “litigating engines.” See Lewis v. Casey, 518 U.S. 343, 355 (1996). Jackson was required as part of his sanction to have his pleadings dismissed “unless a notice of appearance signed by a member in good standing of The Florida Bar is filed in each case.”
. One Justice, ANSTEAD, J., concurred in part and dissented in part with an opinion. He said that he would exclude “The Great Writ….” Saying that “silence … is unimaginable in a free society.”
In summary, the Court also noted that Jackson had also filed excessively in lower courts. The decision lists twenty-four cases that have been filed by Jackson and dismissed within a seven year period (24 / 7 = 3.4 per year.). However, he had filed eleven cases from April 20, 1998 through March 15, 2001. Including the case filed on April 20, 1998 he had filed twelve cases in three years or four cases each year.
As noted by the United States Supreme Court, “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. at 184.
Rivera v. State of Florida, 728 So.2d 1165 (1998), was cited in Sibley. The Court sanctioned an inmate when he was found to have filed frivolous filings. Rivera is serving a life sentence for two murders committed in 1990. He filed a Writ of Habeas Corpus. The Court said “A petition for extraordinary relief is not a second appeal and cannot be used to litigate or relitigate issues which could have been or were raised on direct appeal or in prior post-conviction proceedings.” Prior to this petitioner, Rivera had filed at least twenty petitions in this Court. Rivera also filed actions in several of the District Court of Appeals (The Court only include reported decisions.). He had also appealed five decisions to the United States Supreme Court (All were denied Certiorari). The actions in this Court were filed from 1997 through 1998 (This is at least ten petitions each year.)
Yet another case cited in Sibley is Attwood v. Singletary, 661 So.2d 1216 (Fla.1995). Attwood submitted a writ of habeas corpus “challenging the sentence he [was]… serving … and gain time lost.” He had at least “fourteen petitions pending before this Court.” The Court said that all of these petitions were without merit. Attwood has burdened this Court and other state courts with frivolous petitions and appeals. He filed more than one hundred frivolous petitions and appeals in the state in the past year. The Court issued an Order to Show Cause why he should not be barred from filing any more civil petitions and appeals in this Court unless signed by a member of the Florida Bar. Attwood insisted that his petitions and appeals had merit and he was not abusing the judicial system. Id. at 1216. Two DCAs had already placed restrictions on filing civil actions requiring Attwood to pay filing fees and have an attorney sign his papers. Id. at 1217. This Court then cited eight actions where a mix of courts had issued similar restrictions. Attwood had filed at least forty-five cases with the Court in the past year and sent incomprehensible correspondence to the Court Clerk. The Court determined that Attwood’s activities “…interfered with the orderly process of judicial administration…” and directed the Court Clerks to reject civil petitions and appeals unless signed by a member of the Florida Bar. Id. 1217.
III. The FBBE Order To Show Cause Is Not Reasonable
The Petitioner did not respond to the GC’s order to show cause (dated April 3, 2014). However, he did request leave of the Court to expand his motion to sanction the General Counsel in his Reply Brief. He waited patiently for about three and one-half years for the Florida Board to grant a formal hearing. The Petitioner’s actions do not reflect the actions of a vexatious litigant whose intent is to burden this Court.
At this time, the Petitioner has filed a Reply Brief and does not know what other papers may be required. Requiring him to hire a lawyer would place another financial burden on him. The FBBE has already placed a financial burden upon the Petitioner by taking about four years to reach a determination. Most students or law school graduates could not wait four years for a decision by the FBBE. Many are no longer in Florida but are practicing in other jurisdictions. There are law school loans and debts associated with law school that have to be paid.
If the Court intends to dismiss the Petitioner’s action, then there is no justification for requiring him to hire a Florida Lawyer for all other actions. In Sibley, the Court limited sanctions by preventing him from filing any actions related to his divorce unless signed by a member in good standing of the Florida Bar. Id. 427. Just as this Court limited Sibley, the Court can limit the Petitioner so that he would only be required to pay a Florida lawyer in actions related to his current Bar Application. However, based upon the past history of this Court’s sanctions, they may be questionable and are not in order.
Contrary to the FBBE position, the Petitioner has noted just some of the many errors in the FBBE Answer Brief in his Reply Brief. Each time that he reviews the FBBE Answer Brief, he discovers additional issues. On P.41 of the Answer Brief, the GC refers to a page in the formal hearing (T45) that is supposed to contain a reference to his children’s transcript. The Petitioner only referred to the transcript to indicate it existed. On the same page (T45) the Petitioner reflected that the divorce was 22 years ago. The GC may have used this transcript page to say that the divorce took more than 20 years? See FBBE Answer Brief P.6. The Divorce started in April of 1990. In August of 2004, the Petitioner moved to Florida to go to law school. At that time, he hired a lawyer in New Jersey to respond to the papers that were being generated by his ex-wife’s attorney. There are many statements in the FBBE Answer Brief that are in error or incomplete.
In the GC’s request for sanctions, he makes reference to The Florida Bar, v. Kandekore, 932 So.2d 1005 (2006). This is one of two cases that are included in the comments of Rule 3-7.17. In Kandekore, the petitioner made repetitive challenges to his disbarment and permanent disbarment. He had at least six actions and also motions related to these actions. In order to stop him from continuing to submit papers to this Court related to his suspension and permanent disbarment, he was sanctioned. Additionally, the Court added that if Kandekore violates this order “he shall be directed to show cause why he should not be prohibited from submitting any filings with this Court unless they are signed by an active member of The Florida Bar.” Id. at 1007.
The GC suggests that Rule 3-7.17 of the Bar Rules is applicable in this action. At this time, however, it does not apply to non-attorneys. It applies during a Bar disciplinary hearing and not an admissions hearing. The rule itself appears to allow no avenue of redress except to this Court after or during a formal Bar hearing.
The Comment to this rule says “[t]his rule is enacted to address circumstances involving repetitive conduct of the type that goes beyond conduct that is merely contentious and unsuccessful.” In re McDonald,489 U.S. at 184. The Petitioner has not crossed any bright line. At this time, he has been unsuccessful and contentious. The record below, that this court has determined is not admissible, supports the Petitioner’s position that the FBBE has procedural problems.
The Petitioner did not file his actions in bad faith “and” file frivolous pleadings. The conjunctive “and” requires both conditions to apply. Even if this Court finds that some of the Petitioner’s pleadings are frivolous they have not been filed in bad faith. Rule 3-7.17 requires both conditions to exist before it can be applied.
Additionally, it appears that the rules of confidentially are not clear and may be in conflict with other rules or law. That would suggest that an action to request an explanation or interpretation of these rules is not frivolous. Realize that this Court, the Florida Bar, The General Counsel, and the Petitioner have interpreted these rules differently.
This Court in explaining when inherent powers to sanction can be applied says “to sanction a litigant who employs bad faith in filing frivolous pleadings despite any lack of specific statutory or rule authority[.]” Armstead at 842. In this action, the Petitioner has cited to both rules, statutes and court determinations.
In Gentile v. State Bar of Nevada, 501 U.S.1030 (1991), several issues that are parallel to the instant case exist. At 501 U.S. 1033, the Court said:
Following a hearing, the …Disciplinary Board of the State Bar found that Gentile had ….violated Rule 177. The board recommended a private reprimand. Petitioner appealed to the Nevada Supreme Court, waiving …. confidentiality and the Nevada court affirmed the decision….
At 501 U.S. 1034, the Court then said:
Nevada’s application of Rule 177 in this case violates the First Amendment. Petitioner spoke at a time and in a manner that neither in law nor in fact created any threat of real prejudice to his client’s right to a fair trial or to the State’s interest in the enforcement of its criminal laws.
At 501 U.S. 1034-5, the court said that political speech is at the heart of First Amendment rights. It said:
There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment. Nevada seeks to punish the dissemination of information relating to alleged governmental misconduct, which only last Term we described as “speech which has traditionally been recognized as lying at the core of the First Amendment.” Butterworth v. Smith, 494 U.S. 624, 632 (1990).
Similarly, the Petitioner is being denied the right to question government activities and has already said that he would wave his rights to confidentiality.
In The Florida Bar, v. Charles Behm, 41 So.3d 136,146-7 (2010), the Court said it did not want “to stifle innovative claims by attorneys.” These claims require “a good-faith argument for the extension, modification, or reversal of existing law, is broad enough to encompass those cases where the claims are the result of innovative theories.” In Behm, the Court said:
A lawyer has an ethical obligation to assist in improving the legal system. Thus, a lawyer has not only a right, but a duty to advocate and advance arguments of law that are unique or unconventional so long as there is a reasonable basis for the argument. Id. 150.
Many of the Petitioner’s previous actions, including those before this Court, were brought in good faith to improve the legal system. The Petitioner’s actions were based upon law and facts that had a reasonable basis for changing the law. These were not frivolous actions. The Petitioner has tried to raise issues that would assist in improving the legal system.
As an example, he suggested that all FBBE hearings be recorded. This would allow parties to verify and correct the transcripts. This has been done at off-site congressional hearings for at least 15 years. Many steno-typists use machines that have recording devices attached. The operators may use the electronic recording to correct their transcripts. The only additional cost would be that copies of the electronic recording would have to be made so that parties can listen to the recording and can verify what is on the transcript. This type of device should be used for all FBBE hearings where a transcriber is required.
STATEMENT OF RELIEF SOUGHT
The Petitioner at seventy may not retake the Florida Bar. However, he has a moral obligation to other applicants to insure that they are not faced with similar problems that he has been exposed to by the rules of the Florida Board of Bar Examiners. Based upon the way that sanctions have been applied in other actions, no sanctions are justified in this action.
He understands that the Court, like many other Courts do not write opinions. Perhaps, he should not have requested an opinion, but the Court’s First Amendment decision in this case appeared to be in conflict with a higher authority. In fact, there was a dissent by Justice Canady.
He filed some of his motions because The Florida Bar refused to investigate his complaint as long as the record in this case was confidential. The Florida Bar has the authority to investigate complaints against attorneys but would not do so in the instant case. The decisions of the Florida Bar and of this court allow no remedy to the Petitioner even though the issue raised is that related to a fundamental right.
For the Foregoing reasons, the Court should not sanction the Petitioner. He has filed fewer writs than any of the cases cited by this Court. The Petitioner filed only two actions and some of the issues raised in those actions are not frivolous. These were the first actions that he filed in this Court. He did not know the rules as well as an attorney who has been before this court for thirty or more years. There were questions related to the First Amendment and there was a dissent by a Justice. It also appears that the GC believed that the Petitioner could use all the records in his possession, except those records being retained by the Board as secured records. The GC’s opinion is in conflict with this Court’s opinion. How could this Court expect the Petitioner to understand the rules when it appears that an attorney who has been practicing before this Court for many years stated a position that was different from that of the Court.
Dated: July 7, 2014 Respectfully Submitted,
/s Irwin Eisenstein, Pro Se
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion and Brief in response to the Courts order to show cause has been served this 7th day of July, 2014 by U.S. Mail, to Robert G. Blythe General Counsel, Florida Board of Bar Examiners and Michele A. Gavagni, Office of the Executive Director, 1891 Eider Court, Tallahassee, FL 32399-1750 (850) 487-1292