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Kluger v. White and the English Law of Florida

Kluger v. White and the English Law of Florida

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Published by Bob Hurt
In this article Bob Hurt reveals a glaring flaw in Florida (and other state) law - no definition exists of the English Law of Florida, even though Florida Statute makes that law binding to protect the people.
In this article Bob Hurt reveals a glaring flaw in Florida (and other state) law - no definition exists of the English Law of Florida, even though Florida Statute makes that law binding to protect the people.

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Published by: Bob Hurt on Feb 24, 2010
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02/15/2013

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The English Law of Florida
By Bob Hurt,27 November 2009  My friend and fellow law researcher Joyce Rosenwald recently
dug into the question of “What
 constitutes the English Law of Florida
?”
To that end she found the below article from the Florida Barweb site http://floridabar.org 
 
Cavendish and Hood (2007),
Florida Common Law Jurisprudence
, The Florida Bar Journal Vol. 81No. 1I have appended the article below in full. I write to address several issues in the context of the article,and to propound the above question to my legislators, justices, and fellow citizens.
The Basis of Florida Law
Florida Statute 2.01 states the basis of Florida law as of 6 November 1829.
Florida Statute 2.01 Common law and certain statutes declared in force.--Thecommon and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July,1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
History.--s. 1, Nov. 6, 1829; RS 59; GS 59; RGS 71; CGL 87.
 
California has a similar law:
CALIFORNIA CODES - CIVIL CODE SECTION 22-22.2. The common law of England,so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all thecourts of this State.
That leaves students of the law with the question of what constitutes the
English Law of Florida
Howshall the people know those laws without a written collection? I have no clue where anyone can find in asingle collection the English Law of Florida.
Supreme Excesses
Sometimes Good, Not Always
While we can still wonder precisely what constitutes the English portion of Florida Law, we should notethat the Florida Supreme Court can (and sometimes does) sweep all that away with a stroke of the pen.
 
The below article makes this clear. In its discussion of the 1973 Kluger v. White ruling, it shows that theSupremes opined that the Florida Legislature had no authority to make a statute conflicting with long-established common law rights. They ruled in direct opposition to the crystal clear language of FloridaStatute 2.01. And in its 1973 Hoffman v. Jones ruling, the Supremes said they could change Floridacommon law when a change in society warrants it. Thus, the Supremes pretty much seem to have giventhemselves the power to overturn all law on the basis of its whim.
I don’t see a grant of such power to
them in the Constitutions of the USA or Florida.
We must appreciate the Supremes’ diligence in protecting Floridians from the Legislat
ure, but theyought to abide by the law itself in the process, and not rule that it means precisely the opposite of whatit says. Else, why should they not simply declare Florida Statute 2.01 unconstitutional? This otherwisegood ruling represents legislating from the bench at its worst because the Supremes, in spite of alleginga noble motive, seem to have concluded that the Legislature did not have possession of their faculties.How cheeky of the Florida Supremes to think they and only they may change established principles of common law. Floridians should realize that they live under the rule of a judicial oligarchy, sometimesbenignly as in Kluger, and sometimes not, as in Florida Bar v Sibley, SC06-1387.There the Quince Court opined
that the justices don’t have to obey Florida Statutes regarding loyalty oaths.
They held that byswearing the unconstitutional public officer
s oath from Article II Section 5 of the Florida Constitution, inwhich they swear loyalty to the Government as well as the Constitution, they complied with statutoryoath requirements. The oaths in question:
From Florida Constitution Article II …
 
Section 5. Public officers.--(a) No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of aconstitution revision commission, taxation and budget reform commission,constitutional convention, or statutory body having only advisory powers.(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 theConstitution 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 now 
 
about to enter. So help me God.", and thereafter shall devote personal attentionto the duties of the office, and continue in office until a successor qualifies.
From Florida Statutes …
876.05 Public employees; oath.--(1) All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies,subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning, and all candidates for public office, except candidates for federal office, are required totake an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form:
 
I, _____, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of _____ and a recipient of public funds as suchemployee or officer, do hereby solemnly swear or affirm that I will support theConstitution of the United States and of the State of Florida.
 
(2) Said oath shall be filed with the records of the governing official or employinggovernmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation.
History.--s. 1, ch. 25046, 1949; s. 22, ch. 83-214; s. 55, ch. 2007-30.
 
From US Constitution Article VI Clause 3…
 
The Senators and Representatives before mentioned, and the Members of theseveral State Legislatures, and all executive and judicial Officers, both of theUnited States and of the several States, shall be bound by Oath or Affirmation, tosupport this Constitution; but no religious Test shall ever be required as aQualification to any Office or public Trust under the United States.
From United States Code Title 4…
 
101. Every member of a State legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an
oath in the following form, to wit: “I, A B, do solemnly swear that I will support the Constitution of the United States.” 
 

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