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FL - COLLETTE - Supplemental Brief in Opposition to Motions to Dismiss

FL - COLLETTE - Supplemental Brief in Opposition to Motions to Dismiss

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Published by Jack Ryan

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Published by: Jack Ryan on Jun 26, 2012
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Civil Division
et alCase Number:
512012CA 2041WS
Hearing Date:
July 10, 2012
3:30 pm
J2Plaintiff’s Supplemental Brief in Opposition to Motions to Dismiss
Jerry Collette,
plaintiff, hereby supplement my opposition to dismiss, filed on June 18, 2012,as follows:With respect to my right to bring my claim:
I Have a Right to Bring My Causes of Action
The Florida Appeals court said, in
GBB Investments, Inc. v. Hinterkopf,
343 So. 2d 899, 900-901(1977):
 Article I, Section 21, Florida Constitution (1968), expressly provides:"
 Access to courts.
— The courts shall be open to every person for redress of anyinjury, and justice shall be administered without sale, denial or delay."This constitutional right has roots deep in Anglo-American legal history datingback to the Magna Charta.
Flood v. State ex rel. Homeland Co.,
95 Fla. 1003,117 So. 385 (1928). It first appeared in Florida in the 1838 Florida Constitutionand has been retained in every constitutional revision since then. It guarantees toevery person the right to free access to the courts on claims of redress of injuryfree of unreasonable burdens and restrictions. Any restrictions on such access tothe courts must be liberally construed in favor of the constitutional right.
Lehmann v. Cloniger,
294 So. 2d 344 (Fla. 1st DCA 1974).
[footnotes omitted]In
Swain v. Curry,
595 So. 2d 168, 174 (Fla. App. 1992), the court said:
This provision, dating from our 1838 constitution, was intended to give life andvitality to the maxim: "For every wrong there is a remedy."
Holland v. Mayes,
155Fla. 129, 19 So.2d 709 (1944).
Page 1 of 9
See also,
 Doyle v. City of Coral Gables,
33 So.2d 41, 42 (Fla. 1948). In
 DR Lakes, Inc. v. Brandsmart USA,
819 So. 2d 971 (Fla. App. 2002), the court said:
 After all, the "right to go to court to resolve our disputes is one of our fundamentalrights."
[citation omitted]In
 Psychiatric Associates v. Siegel,
610 So. 2d 419, 424 (1992), the Florida Supreme Court said:
The history of the provision shows the courts' intention to construe the rightliberally in order to guarantee broad accessibility to the courts for resolvingdisputes.
[footnotes omitted]That my causes of action are novel should not be a bar to my being able to proceed with them. 55Fla. Jur 2d Torts § 5 (2012) makes the point very clearly:
In fact, it has been stated that the law “guarantees” every person a remedy whenhe or she has been wronged....… it is generally recognized that if the plaintiff is shown to have suffered a wrong,the mere paucity of cases or absence of any precedent does not constitutesufficient reason for refusing relief if a sound principle of law can be found whichgoverns, or which by analogy ought to govern. The law of torts is anything butstatic, and the limits of its development are never set. When it becomes clear thatthe plaintiff's interests are entitled to legal protection against the conduct of thedefendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy. That a tort action does not fit into a nicely defined or established“cubbyhole” of the law does not warrant, in itself, the denial of relief to the onewho is injured.
[footnotes omitted]
As stated in 86 C.J.S. Torts § 13 (2012):
... the fact that there is no direct precedent involving the protection of a preciselysimilar right, or the recognition of an identical duty, is not conclusive against theexistence of a tort.
[footnote omitted]
Should the court not recognize my right to proceed in this matter, it will establish, as aconsequence, a privilege or immunity to the defendants and others that they can placeunqualified candidates onto Florida ballots, and even into elected office, with virtual impunity.
Clark v. Associated Retail Credit Men,
105 F. 2d 62, 64 (D.C. Cir 1939).Courts need to be alert to adjust their views about torts so as to be able grant relief wherenecessary.
 Bivens v. Six Unknown Fed. Narcotics Agents,
403 US 388 (1971).Applying the foregoing to my case, I have properly brought actionable claims before this courtand am entitled to proceed.
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With respect to the implied right that I claim:
Implied Rights Are Regularly Recognized by Courts
Courts routinely recognize and protect rights that are not specifically enumerated, but implied.For example, in discussing the federal privacy right, the Florida Supreme Court stated, in Stall v.State570 So.2d 257, 264 (1990):
… privacy is an
right arising not from any written source, but from thepenumbras or "shadows" of the Constitution. Nowhere in the entire text of thefederal Constitution does the word "privacy" appear.
[citations omitted]Courts now recognize a
right to be free from bad faith prosecutions.”
 E.g., Shaw v.Garrison,
467 F.2d 113, 120 (5th Cir. 1972).The U.S. Supreme Court, in
 Faretta v. California,
422 U.S. 806, 819 (1975), discussing theimplied constitutional right of self representation, stated:
 Although not stated in the
Amendment in so many words, the right to self-representation—to make one's own defense personally—is thus necessarilyimplied by the structure of the Amendment.
[footnote omitted] No strain of the logical mind is required to reason that the eligibility requirements set forth in thefederal constitution give all citizens, by implication, the right to not be governed by anyone whodoes not meet them.Accordingly, my claim of an implied right is not a bar to my causes of action proceeding on themerits.With respect to my implied cause of action:
Courts Regularly Recognize Implied Causes of Action
Implied causes of action have long been recognized in this country. In
 Marbury v. Madison,
5U.S. 137, 162-163 (1803) the court said:
If he has a right, and that right has been violated, do the laws of his countryafford him a remedy?The very essence of civil liberty certainly consists in the right of every individualto claim the protection of the laws, whenever he receives an injury. One of thefirst duties of government is to afford that protection. In Great Britain the kinghimself is sued in the respectful form of a petition, and he never fails to complywith the judgment of his court.
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