Tri ianon Park Con ndominiums, F Florida

Petit Trianon Palac France ce,

SOVER REIGN IM MMUNIT AND JUDICIA DENIAL TY D AL OF O THE RIGHT T EFFEC R TO CTIVE P PETITION IN FLO N ORIDA
BY DAVID AR RTHUR WA ALTERS

If men within themselves would be go f n overned by r reason, and not generall give up ly th heir underst tanding to a double ty yranny, of c custom from without, a m and blind af ffections wit thin, they would discern better, what it is to fa n avour and up phold the ty yrant of a na ation. But b being slaves within door no wond that they strive so rs, der y much to have the public s m e state conform mably gover rned to the in nward vitiou rule, by us which they go w overn themse elves. John M Milton, The Tenure of K Kings and M Magistrates (1 1650)

Jose Smi city atto ith, orney for th City of M he Miami Beac tried to make a prin ch, nciple of Fl lorida common law crystal clear to this author: “Th city NEVE has liabi he ER ility on a private constru uction job,” he stated in a 2012 email. Again, “T city has NO LIABIL The LITY for ne egligent bui ilding ons. o mark Florida Supreme C a Court case of Trianon Par Condomi f rk inium inspectio Check out the landm Associati ion, Inc. v. City of Hi ialeah, 468 So. 2nd. 9 ( Fla. 1 912 1985). The City’s sove ereign immunity in the Buil y lding Depart tment contex is so well established that nobody has ever ha the xt y ad audacity to challeng it.” He noted that, “I the tort c ge In context, the city has fr rom time to time defended personal in d njury cases on the basis of soverei immunit We are m s ign ty. making the same defense o some of our pending p on o police shoot ting cases.” The Flori Supreme Court over ida e rturned a dist trict court de ecision holdi the City of Hialeah l ing liable to condo ominium owners for dam mage to con ndominium u units caused by severe r d roof leakage and e other bu uilding defec on the b cts basis that th city build he ding inspect tors were n negligent in their inspectio during th construction of the con ons he ndominiums s. “The gov vernment cle early has no responsibilit to protect personal pr ty t roperty intere or ensur the ests re quality o buildings that individu erect or purchase,” ruled the C of uals r Court. The pr roper remed for dy
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faulty construction lies in an action against the contractor, developer, or seller…. This decision addresses only the narrow issue of exercising basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county, or municipal governmental entity.” Police power is the power of government to regulate behavior to promote the general welfare in the interest of the safety, health, and morality of the people by restraining and regulating the use of liberty and property. How can that be accomplished when the regulators and their entities are themselves unregulated? So-called sovereign immunity would cultivate negligence and even tyranny, all under the guise of “discretion.” But the courts above all are expected to curb the abuse of discretion, and not condone and perpetuate the abuse of power through their own discrete abuse of their self-proclaimed “inherent power.” Justice Leander J. Shaw, who in the Trianon case and elsewhere dissented at length from the majority’s affection for the abstract doctrine of sovereign immunity, took up the nebulous notion of “discretion” in another case decided in 1985, Everton v. Willard (468 So.2d 936), reminding the Court that: “We recognized our difficulties would be accented if we fell into the trap of falling back on semantic labels for ease of application and seeming certainty; more specifically, the temptation to attempt to define "discretion" and to apply the definition to the challenged act to determine if the act involved an exercise of governmental discretion. The Johnson court anticipated and warned against this mind-set when it pointed out that it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail. (Johnson, 447 P.2d at 357, citations omitted) The Johnson court recognized that to fall into this trap was to bring back sovereign immunity in another guise and to nullify the statutory waiver of sovereign immunity. The court went on to cite approvingly the applicability of the basic teaching that ‘when there is negligence, the rule is liability, immunity is the exception.’” The democratically inclined people of the United States did not cotton to the revival of the elitist notion of sovereign immunity. Congress passed a tort claims act in 1946 ridding the nation of the sovereign immunity imagined but with certain exceptions, one being the infinitesimally controversial notion of “discretion.” States have controversial rights themselves, being somehow sovereign before they ratify the U.S. Constitution, so they were left to coin their own tort claims acts. Florida’s tort claims act, Sec. 768.28, does not mention discretion, but state judges, while exercising the state’s rights in declaring common law sovereign immunity for their state, are inclined to keep the notion embodied in the federal statute in the corner of their eyes since it can support the sovereign immunity they prefer. However that may be, the waiver of immunity was not good enough for the majority of the Court in Trianon, therefore they had to put a perverse spin on the statute that would have held the municipality accountable, legislating from the bench that the city retained the immunity that it never had even prior to the statute that prohibited it—municipal governments, unlike the state and its political subdivisions, could be sued in tort prior to the legislation waiving sovereign immunity. A clever court can wiggle out of statutes and violate constitutions to no end, bringing to mind Capt. Gulliver’s observation during his Travels: “There was a society of men among us,
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bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves.” In this case, the court self-justified its unconstitutional ruling by “evincing the intent” or reading the mind of the legislature without reference to legislative reports, holding that the building code was written not to protect individuals from harm but to protect the public; therefore, the public entity was not responsible to individuals harmed by its negligence. The district court from which the appeal to the state supreme court was taken had certified the following question to the Florida Supreme Court: “Whether under section 768.28, Florida Statutes (1975), as construed in Commercial Carrier Corp. v. Indian River County 371 So.2d 1010 (Fla. 1979), a municipality retains its sovereign immunity from a suit predicating liability solely upon the allegedly negligent inspection of a building, where that municipality played no part in the actual construction of the building. We restate the certified question as follows: Whether a governmental entity may be liable in tort to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity.” The Court, after reading the legislature’s mind to know its “intent,” stated in its negative answer that, “We find that no statutory duty for the benefit of individual citizens was created by the city's adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code.” The absurdity is compounded by the highest court of Florida to justify absolute sovereign immunity: “Nothing contained in chapter 553 evinces an intent to give individual citizens a statutory right of recovery for the government's negligent inspection of their property. The act itself states that its purpose and intent is to ‘allow reasonable protection for public safety, health, and general welfare for all the people of Florida at the most reasonable cost to the consumer." Sec. 553.72, Fla. Stat. (1983) (emphases added). This law is no different than other acts of the legislature which seek to protect by regulation the welfare of society.” In other words, since the government is responsible for regulating the welfare of society, it is responsible to nobody in particular, particularly to the owners and purchasers of structures that the city is mandated to inspect to ensure their safety and quality. The Court leads us to believe that the assurance of building safety and quality is really a fiction, that the building department is voluntarily doing the public a favor, perhaps simply collecting fees to promote the appearance of protecting the public welfare, in hopes that owners, developers, and contractors will do the right thing, so never mind the selective, random, and negligent enforcement of the law. However that might be, the Court’s reasoning is not even specious in the sense of being prettily fallacious: It is absurd and results in manifest injustice. The golden rule of statutory interpretation is to give all the words of a statue their plain and ordinary meaning unless such a construction leads to absurdity or injustice. So the Trianon landmark case forged by the Supreme Court of Florida would deny persons an effective redress of their grievances against governments, however resident, for their negligent exercise of the police power, endowing inspectors, for example, with “discretion” to ignore
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building codes expressly promulgated for the public safety. What more could be done by Florida’s high court to negligently cultivate the very negligence that offends so many people? In effect, the Florida Supreme Court in Trianon denied one of the most important of all human rights, the right of people to effectively petition their government for effective redress of grievances short of rebellion and revolution. Non-lawyers may naturally be surprised to hear that Alan Becker, co-counsel for Trianon Condominiums, did not raise federal questions and appeal to the federal courts. “I didn't and still don't see a federal issue,” he said in response to our December 2012 inquiry. We might be blind to the federal issue to if we were looking through a lawyer’s glasses. We did notice that someone tried to make a federal due process case out of building department negligence up north, but the panel tossed it because they found no previous federal common law on the subject. It used to be the case that previous cases were referred to for the wisdom expressed by judges therein. If such wisdom were unfound, there was plenty available in other sources, in oral and written history, to ponder upon. In any case, justice according to equity had to be done for equity was the ground of common law, and common law was the foundation of statutory law when enough problems arose that it become necessary to write it down and amend it from time to time as circumstances warranted. To say that someone is not entitled to due process in a case simply because there is no record of due process being had in a prior case along similar lines is the epitome of judicial negligence. This is precisely where the wise are called upon to legislate on principles of equity. Of course the judiciary should be respected on the whole so that disputants may walk away and keep their peace. And it is foolish to insult judges and set them against your cause. Alan Becker said that when Chief Justice Boyd offered to have himself recused from judging the Trianon case because he had been the City Attorney of Hialeah, and a County Commissioner who had represented the area that included Hialeah, he did not accept his offer because, “I felt he could be objective and did not want to suggest in open court with all the other Justices present, that he could not be fair. Had I suggested that he step down from the panel, the opinion would have been 3-3 and that would result in affirmance instead of reversal.” However, it is our right and duty as lay citizens to deride at length judicial decisions contrary to the public welfare in terms of health and safety, and the morality upon which health and safety depends, without being held in contempt of court. We do not have to fear losing our cases because judges may feel insulted even if we are polite. We may even return insult for insult according to the talion principle of justice, for our native sense of justice, the law written in the heart, is insulted by the immoral, “scientific” jurisprudence that divorces law from morality, and makes of the practice of law, if not a roll of the dice, then a mere device to win no matter what, and yet still claim that “whatever is legal is moral.” The abuse of discretion or lack of moral discernment has caused the lay public to despise all too many professionals whose licentious practice demoralizes the nation for fees that the unprivileged cannot afford to pay, leaving the unprivileged with the hope that the evil is somehow necessary for the time being, so that justice

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may be done in the final hour, upon appeal to a transcendental court beyond which no greater good can be found than the greatest good of the greatest number. Nonetheless, we expect the tables to be overturned on Earth and in our lifetime, and by the necessary evil that confronts authority effectively, that our right to remedies against its abuses be restored, even here in Florida, for example, with the judicial repudiation of Trianon. We shall not envy the lawyers their fees then although we as taxpayers will be paying them as well as the judgments against our government, for we shall be spreading the risk of bad government amongst ourselves, and the pain in the pocket will motivate us to improve it by holding it accountable to reduce the number of bad apples in the bushel, and installing best practices instead of officially cultivating negligence under the iniquitous doctrine of sovereign immunity.

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