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IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA

ESCAMBIA COUNTY, Florida
Appellee

v.

Ward Dean and Kumja C. Dean
Appellants

Case No. 00-2027-CA, Division "A"

APPELLANTS’ COMBINED MOTION FOR RECONSIDERATION AND
SUPPORTING MEMORANDUM

COME NOW Appellants, Ward and Kumja Dean to respectfully move this Court to reconsider its Opinion of 7 June 2002. As grounds for the reconsideration Appellants state as follows:

I. THE SPECIAL MASTER WAS UNQUALIFIED AS A MATTER OF LAW

In the case of Treasure v. State Beverage Department Florida 238 So. 2d 580 (Fla 1970) The Supreme Court of Florida had occasion to determine whether a public official could exercise the authority of his office prior to having sworn the oath of office and the oath required by the Constitution of the State of Florida of 1885 in Article XVI, Section 2. The oath was as follows:
Section 2. Each and every officer of this State, including the members of the Legislature, shall before entering upon the discharge of his official duties take the following oath of office: I do solemnly swear [or affirm] that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the State, and that I will well and faithfully perform the duties of _____________ on which I am now about to enter. So help me God.

The oath is distinguishable from the current oath in the Constitution of 1968 at Article II, Section 5(b), only in that the current oath includes county officers, as follows:
(b) Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm: "I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of (title of office) on which I am about to enter. So help me God.", and thereafter shall devote personal attention to the duties of the office, and continue in office until his successor qualifies

Treasure is a ruling that is both on point, and controlling. The court, in framing the contention of Treasure, stated:

Treasure, Inc.'s position is that a state officer appointed to exercise sovereign state powers on a temporary basis pursuant to Florida Statutes Section 120.09(2), F.S.A. must have been formally commissioned and have taken an oath of office as required by Article IV, Section 14, and Article XVI, Section 2 [supra], of the 1885 Florida Constitution. We agree. (Emphasis added)

* * *
Our statutes require that all commissions be recorded in the office of the Secretary of State and that "the oath of office of the person named in said commission shall be endorsed on said commission * * *."*fn7

The Governor, being the appointing power for the position of Beverage Director, has, pursuant to Florida Statutes Section 120.09, F.S.A. attempted to appoint a Substitute Beverage Director by a letter which neither bears the Great Seal of the State of Florida nor is countersigned by the Secretary of State. It is not in any sense a commission, it is not recorded in the office of the Secretary of State, and it does not have endorsed thereon the oath of office required by the Florida Constitution. Never having received a duly executed and authenticated commission with the oath of office endorsed thereon, and never having taken the oath of office, the Substitute Director had no power or authority to act in place of the disqualified Beverage Director. (Emphasis added)

The formalities attendant upon assumption of a public office such as Beverage Director are not mere "technical niceties." They have a purpose. Appointment of officials to exercise the state's sovereign powers is not lightly regarded, as witnessed by the requirement that many of the Governor's appointees must be confirmed by the state Senate.*fn8 The responsibility and power residing in an official such as the Beverage Director is enormous, as evidenced by his power to suspend or completely revoke a liquor license which this Court judicially knows often has a high value. The exercise of sovereign power is constitutionally restricted to those who meet the constitutional requirements - and only to those. The taking of the oath and the issuing of the formal commission not only constitute the official conveyance to the recipient of a portion of the state's sovereign power, but serve to impress upon the appointee or elected official the great public trust and confidence which is placed in him by his appointment. (Emphasis added)

In the particular matter for which the Substitute is appointed to temporarily serve he necessarily exercises all powers and authority of the office that would ordinarily be exercised by the disqualified official. It is inconceivable that such an office holder should fill the office and exercise the sovereign powers of the State without having had such authority conferred upon him in the same manner as the permanent office holder. (Emphasis added)

There can be no doubt that the Special Master is an official of the county. His is not a position “incidental” to the functions of the county, as in the case of a janitor. No, he wields the power and authority of the sovereign. His position is such that he may order the removal of property from private property, he may invoke fines for penalties. These are badges, or indicia of the holding of an office. Referring to Black’s Law Dictionary, Fourth Edition, at page 1234 we find (in pertinent part):

OFFICE. Right to exercise public or private employment, and to take the fees and emoluments thereunto belonging, whether public, as those of magistrates, or private, as of bailiffs, receivers; or the like, 2 B1.Comm. 36, Blair v. Marye, 80 Va. 495; Worthy v. Barrett, 63 N.C. 202; Shelf. Mortm. 797; Cruise, Dig. Index; Corn. v. Sutherland, 3 S. & R., Pa., 149. A right, and correspondent duty, to exercise a public trust. Whitehead v. Clark, 146 Tenn. 660, 244 S.W. 479, 482: A public charge or employment; U. S. v. Maurice, 2 Brock. 102, Fed. Cas. No, 15,747, per Marshall, C. J.; Lamar v. Splain, 42 App.D.C. 300, 305. An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental. See Eason v. MaJors, 111 Neb. 288, 196 N.W. 133, 134, 30 A,L.R. 1419.
An “assigned duty” or “function.” Synonyms are “post’s, “appointment”, “situation” ‘place”, “position”, and “office” commonly suggests a position of (especially public) trust or authority, Also right to exercise a public function or employment, and to take the fees and emoluments belonging to lt, Frazier v. Elmore, 180 Tenn. 232, 173 S.W.2d : 565. A public charge or employment, and he who performs the duties of the office Is an officer, Although an office is an employment, it does not follow that every employment is an office. A man may be employed under a contract, express or implied, to do an act, or to perform a service, without becoming an officer. But, if the duty be a continuing one, which Is defined by rule prescribed by the government, which an Individual is appointed by the government to perform, who enters upon the duties appertaining to his status, without any contract defining them, It seems very difficult to distinguish such a charge or employment from an office, or the person who performs. the duty from an officer. Lacy v. State, 13 Ata, App. .‘: 68 So. 706, 710. In the constitutional sense, the term implies an authority to exercise some portion of the sovereign power, either in making, executing, or administering the laws. State v. Christmas, 126 Miss. 358, 88 So. 881, 882.

The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connection, “public office” is a usual and more discriminating expression. But a power and duty may exist without immediate grant from government, and may be properly called an “office;” as the office of executor, the office of steward. Here the individual acts towards legatees or towards tenants in performance of a duty, and in exercise of a power not derived from their consent, but devolved on him by an authority which quoad hoc is superior. Abbott. (Emphasis Added)

The record reflects that the Special Master had not taken his Constitutionally prescribed Oath (Exhibits 1 and 2). Appellants challenged this very issue early and often--prior to, during, and after the "Special Master" hearing. This is clearly a matter of subject matter jurisdiction. The Supreme Court minced no words on this issue. The Special Master was without the authority to hold a hearing, much less to rule in the instant case. He held no more authority to conduct a hearing than did the custodian of the courthouse. This goes to the heart of the Appellants’ allegations of violation of their right to due process. There can be no due process when a meaningless hearing is held by one who lacks the authority to hold a hearing (i.e., the courthouse custodian).

For this reason alone this Court should vacate its Opinion of 7 June, 2002, and grant Appellants' the relief requested above, or, at the very least, remand this case for a proper, lawful hearing.

II. APPELLANTS’ RIGHT TO PRIVACY VIOLATED BY THE COUNTY

Appellants’ right to privacy under the Florida Constitution has been violated by the county.
Florida Constitution Article I, Section 23, passed by the electorate November, 1980, and implemented January, 1981, provided the citizens of Florida an explicit right of privacy. Article I Section 23:
Right of privacy--Every natural person has the right to be let alone and be free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

Winfield v. Division of Pari-Mutuel Wagering 477 So.2d 544, 548 (Fla.1985). expresses the strong will the electorate espoused in crafting the wording of the amendment:

The citizens of Florida opted for more protection from governmental intrusion when they approved article 1, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23 was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only he concluded that the right is much broader in scope than that of’ the Federal Constitution.

Winfield at 547, established the standard of review and the state burden:

Heretofore, we have not enunciated the appropriate standard of review in assessing a claim of unconstitutional governmental intrusion into one’s privacy rights under article 1, section 23. Since the privacy section as adopted contains no textual standard of review, it is important for us to identify an explicit standard to he applied in order to give proper force and effect to the amendment. The right of privacy is a Fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means. (Emphasis added)

In the case at bar, the record is devoid of any inquiry into the “compelling interest” of Escambia County to control the height of fences. As such, the only purpose that comes to mind is that of aesthetics. The Special Master never queried the County as to the standards from which the county’s standard fence heights were derived. The Special Master never held inquiry into the purpose of the fence ordinance at all. The fence ordinance is presumably for aesthetic purposes. Under the guise of regulation, the county could theoretically dictate the colors we paint our homes. Its fence height limitations are arbitrary and capricious. The compelling interest test was never applied by the Special Master. The County was never called to task to defend the basis for its standards set in the fence regulation. This is in direct contravention of the rule of law set by the court in Winfield.

The Special Master never applied the legal standard mandated by the Supreme Court in Winfield.

CONCLUSION

The Special Master lacked authority to hold a hearing. Consequently, he lacked jurisdiction to issue a ruling. The Special Master failed to apply the legal standard specified for an inquiry as to whether the fence ordinance was violative of Appellants' Right to Privacy.
For the foregoing reasons alone this Court should vacate its Opinion of 7 June 2002, and grant Appellants the relief requested above. Alternatively, this court should, at the very least, remand this case to be heard by a lawfully appointed and sworn Special Master, with instructions to apply the compelling interest test to the application of the fence ordinance.

Respectfully submitted,

Ward Dean, M.D.
Kumja C. Dean

CERTIFICATE OF SERVICE

I hereby certify that I have on the day of June, 2002, placed a true and exact copy of the:

APPELLANTS’ COMBINED MOTION FOR RECONSIDERATION AND SUPPORTING MEMORANDUM

in the U. S. Mail, first class postage, prepaid, addressed to:

JAMES M. MESSER
Chief Litigation Attorney
Escambia County Attorney
14 W. Government Street,
Pensacola, FL 32501

The plaintiff fully understands that he has an unequivocal, lawful right to receive an on-point JUDICIAL REPLY to their formidable appeal which was solidly based upon the law and legal citations. The court appears to have totally ignored the powerfully simple merits of the plaintiff’s appeal.

—which were solidly based upon the law and legal citations. this formidable appeal disappear without due process consideration.

If the powerfully simple merits of the plaintiff’s appeal aren’t already crystal clear, this will draw everything into unmistakably sharp focus for the parties. At this juncture, Appellants are merely asking the Court to properly address the issues previously raise.

After having five months to formulate an argument responding to the Appellants, the best the Court could come up with is a a rubber-stamped attempt to vault over the entire jurisdiction challenge with a feeble, two sentence Opinion affirming the fraudulent Order of "Special Master Smith."

As a courtesy for the court and the defendant—both of whom are involved with numerous other cases—the plaintiff will now update and summarize the scenario now before the court for the instant case, and enumerate the court’s possible responses and their consequences for the parties:

totally ignored the plaintiff’s entire position and suite of arguments—which were solidly based upon the law and legal citations. In addition, "Special Master Smith and the circuit court wholly ignored the prima facie evidence filed by the plaintiff, proving beyond doubt that the defendant is openly violating the express provisions of the Florida Constitution, statues, and Escambia county ordinances.

Both orally and in writing, the plaintiff expressly (albeit naïvely) asserted his unalienable rights and constitutional protections before the blind eyes and deaf ears of the Code Enforcement Office, County Attorney, County Administrator, and Board of County Commissioners, innocently expecting these officers and employees to protect and defend the rights the plaintiff has been hearing about since grade school. After all, every one of these officers and employees (except "Special Master Smith") has presumably filed an Oath of Office documents swearing to “* * * support the Constitution of the United States and the Constitution of the State of Florida * * *”. Constitutions and U.S. Supreme Court wholly ignored
In their remarkable rulings, both "Special Master Smith" and the court wholly failed to acknowledge that the constitutions and the U.S. Supreme Court even exist. Both courts failed to acknowledge even one of the plaintiff’s rights or protections under the law—explicitly asserted by the plaintiff. To reach its initial decision on the plaintiff’s appeal, this Court relied entirely upon its [now indefensible] finding expressed by footnote, there is simply no way to overstate the far reaching gravity and severity of the absence of the Oath of Office of "Special Master Smith."