Jeb Bush, You signed an Unconscionable & Probably Unconstitutional
Florida's "5 Strikes You're Out " Law
Bars 8 million Florida Citizens from the Courts
by Colonel Donald I. Rehman, USA, Retired
Vexatious Litigant Bill
Comment and Bill ( 10-05-2000)
NOBODY REALLY LISTENING? - DOES ANYBODY REALLY CARE?
An E-mail saga - so far leading nowhere?
|The following is a copy of the e-mail to the Florida Legislators - dated 3/17/2000 - which started the saga.|
|DIVIDING BUT NOT CONQUERING:
For the purpose of respectfully illustrating a very important point, I would like to theoretically divide the entire voter eligible adult population in Florida, all your constituents, into two (2) groups of people:
Group I. All those persons who are eligible to vote in Florida State elections, who are attorneys that are eligible to practice law in any Florida State Court(s) at the trial and/or appellate levels. This Group is believed to number 66,482 Attorneys.
Group II. All those persons who are eligible to vote in Florida State elections, but they are not, and never have been, lawyers. This Group is believed to number 8,204,270 nonlawyers.
From the above, it can be seen that Group II, the nonlawyers, vastly outnumber Group I, the lawyers. Taken one step further, the following conclusions are unarguable truth:
SOMETIMES THERE CANNOT BE STRENGTH IN NUMBERS:
- The Group I lawyers, even if every one of them voted identically alike, without significant numbers of voters from Group II, the nonlawyers, the Lawyers in and of themselves could never elect any Florida State Senator or any Florida State Representative to office. Neither, even as a Group, could the lawyers ever "carry to victory" any measure ever put, or to be put, on any and all local and/or State Ballots in which Group II, the nonlawyers, would be eligible to vote.
CONSTITUTIONAL EQUALITY: It is a given that the Florida and the United States Constitutions guarantee "equality" under the law to both the lawyers and the nonlawyers Groups.
THE "FOUNDATION" HAS NOW BEEN CONSTRUCTED: With all the foregoing having been said, here is a principle which I hope you will agree with. The Florida Legislature should take no action, formulate no Bill, nor make into Florida law, any provision that will alienate Group I, the Lawyers, from Group II, the nonlawyers, and vice versa. Nor should the Florida Legislature statutorily "elevate" one Group over the other.
RETURN TO THE QUESTION POSED: In the subject of this E-mail, I respectfully asked all of you a question:
Would You Vote For Bills Which Ban All Attorneys From All Florida State Courts?
I can almost read your thoughts when you first saw that question: ("What is this guy, crazy! Who is this idiot clogging my E-mail inbox with this junk! This guy needs to be in a Mental Institution! Etc. Etc.").
Of course, and without hesitation, your answer is that you would never vote to ban all your Group I constituents, Florida Lawyers, from Florida State Courts, and you probably feel that any Legislator who thinks such nonsense should be "kicked" out of the Legislature and "banned" from the State Capitol.
Then why, (because you probably say you believe in having equality for Groups I & II), are you getting ready to vote in the Florida House and Senate on Bills that for a substantial number of your 8,204,270 nonlawyer constituents will, under certain circumstances, effectively ban them from all Florida State Courts. "Bring in the white coat medical people with straight jacket you say -- this guy has gone bananas."
THE CULPRIT: The following pending Legislative Bills are the "culprits," and if and when you add any "yea" vote to set them on the "road" to becoming Florida State Law, you will set in motion the "seeds of law abiding anger" among a substantial portion of your 8,204,270 nonlawyer Group II constituents, when they learn that the Group I interests have been "elevated" to a seemingly "holier than thou" place of honor, to the detriment of Group II fundamental rights of equality under the law:
House Bill 557 Florida Vexatious Litigant Law
sets forth the circumstances and conditions under which law abiding Florida Citizens, your Group II nonlawyer Constituents, will be effectively "kicked out" of certain Florida Civil Trial Courts (sort of psychologically "thrown down the courthouse steps") if they lack the thousands (in some cases one-quarter million dollars or more) money to give to Defendants in civil cases (as upfront bond money for your Group I constituents attorney's fees and costs), for an otherwise constitutionally guaranteed right to justice in trial by jury.
Thus, for the first time in the history of the State of Florida, it will become a "no money -- no civil court justice" abomination for those Group II nonlawyer constituents of yours, who are the "hard working" "common person class," law abiding, honorable citizens, who voted you into office.
SMOKE AND MIRRORS: There are those in Group I, the lawyers, supporters of H557 and S154, who will tell you that this law will correct a supposedly serious "vexatious litigant" problem that is clogging the Courts.
Did any Florida Supreme Court Justice ever ask you to Legislatively unconstitutionally take over the Florida Judicial System, a separate branch of Florida State Government, to solve any supposedly vexatious litigant problem! I think not. Nor would you want to do so.
If you will take a few minutes and carefully examine H557 and S154 you will find them to be telling Florida State Judges how to conduct judicial business in their courtrooms, what decisions to make, giving legal advice to defendants' attorneys, ordering by law the Florida Supreme Court to maintain a vexatious litigant register, etc..
How would you feel if the Florida Supreme Court Justices wrote case law that told you how and when to legislate, or prescribed how you were to vote on certain matters? One can only ask rhetorically whether what we are seeing by H557 and S154 is the "destruction" of common sense, reasonableness, and the "decay" of what is precious to our individual liberty and rights and to those of our beloved State of Florida.
SEE THE HARM:
Please notice carefully about H557 and S154 that they have no preamble and do not state any legislative purpose. See that there is an "undertone" in the proposed legislation that between the lines sort of warns your Group II constituents, 8,204,270 nonlawyers, that if they do not hire the 66,482 Group I lawyers, for court litigation (for other than small claims and domestic courts) and if they lose 5 times in court in five consecutive years, they will be declared the equivalent of "tyrants" known as "vexatious litigants," and banned from Florida Courts unless they are wealthy enough to afford to post Attorneys' Fees and Costs for the 66,482 Group I lawyers.
Just imagine, if any of the 66,482 Group I lawyers lose their clients' cases in court 5 times, or 50 times, or 500 times, or even 5,000 times, none of those 66,482 Group I lawyers will ever be declared a vexatious litigant, but your law abiding 8,204,270 Group II nonlawyer constituents get only 5 chances.
OPENING PANDORA'S BOX: H557 and S154 in and of themselves, if they become law, will result in more additional litigation/appeals over matters related to "informa pauperis" constitutional rights, controversy over computation of vexatious litigant bond, objections to interested/biased party (the civil case defendant) getting to hold the Bond money instead of the non-biased Court Registry, disputes about who "prevailed" and who did not in current and prior litigation, failure to return bond to a prevailing plaintiff, and on and on.
SEPARATE HORROR FROM REALITY: We have all heard about the horror stories of some prisoners filing frivolous lawsuits over some rather bizarre matters (toast too well done, guards who did not smile at them, and the like); but a few prisoners may have actually filed meaningful and consequential lawsuits that were beneficial to society. In any case, we should not let the sensationalized and exaggerated image of lawsuit frivolity by few, confuse our sensibilities in fair treatment of the thousands of Group II nonlawyer constituents who repeatedly try to get justice through the courts, but do not succeed for one reason or another.
SEARCHING ONE'S OWN CONSCIENCE: I respectfully ask each of you, with regard to H557 and S154 to make your Legislative vote a matter of conscience. I have read or heard recently that the Florida Legislature is sometimes accused of not caring whether Florida Legislation is constitutional or not, as long as it "feels good." I do not know the truth or falsity of such an accusation, but I do know that H557 and S154 will put you to the test of fundamental responsiveness to the attainment of fairness and justice for all the people of Florida, both Groups I & II.
THE LITMUS TEST: What follows is an adapted use here, of some words
in an ongoing lawsuit over some other existing Florida Law. Please look
at the following and read H557 and S154 in light of these words to see
if you really want to vote "yea" or "Nay" on those Bills:
1. The provisions of H557 & S154 constitute an unprecedented and constitutionally impermissible exercise of legislative power into the most essential aspects of the Court's process, procedure and jurisdiction in contravention of fundamental principles of separation of powers upon which Florida's democratic system of government is founded.
Taken together and in context, H557 & S154 demonstrate a lack of
constitutional respect for a separate and equal branch of government and
constitute a legislative abuse of power. Regardless of any unfoundedly
claimed merits of the purported
a. They legislatively dictate how and when the court should take certain
actions and the manner for conducting procedures in the courtroom and thereby
arrogates to the Legislature essential aspects of courtroom practice and
The Bills usurp the common law relationship of courts and litigants
in violation of the Fla. Const.; impair the inviolable right to
b. The Bills violate the rights guaranteed to the people in the Florida Constitution to equal protection (Art. I, §2, Fla. Const.), to petition for redress (Art. I, §5, Fla. Const.), to due process (Art. I, §9, Fla. Const.), to access to the courts (Art. I, §21, Fla. Const.), and to a jury trial (Art. I, §22, Fla. Const.); and said Bills unjustifiably create arbitrary classification of "vexatious litigant" to benefit particular represented litigants, in violation of Art. III, §§10 and 11, Fla. Const., and upset the carefully calibrated separation of powers established by Art. II, §3 and Art. V, §§1, 2, 9, and 10, Fla. Const.
c. §57.105, Fla. Stat. (1997), (frivolous lawsuit statute) sets forth policies that have long been articulated and enforced by the courts of the State of Florida, thereby negating the need for any so called vexatious litigant law.
d. H557 & S154 establish vague and detrimentally subjective standards
that will likely result in disparate treatment and enforcement, thereby
violating the constitutional guarantee of due process (Art. I, §9,
Fla. Const.). The Bills impair the ability of the courts to perform their
judicial functions assigned under the Florida Constitution by limiting
their abilities to decide arguments (such as why 5 prior court case losses
do not make a litigant vexatious); in violation of Art. II, §3, and
Art. V, §§1 and 2, Fla. Const.; inhibit citizens in the pursuit
of justice for perceived wrongs and by chilling their ability to advocate
freely in violation of Constitutional rights; and encroaches on the exclusive
authority of the courts to regulate
e. These Bills illegally invade the exclusive province of the judiciary
and create new rules of courtroom practice and procedure, in violation
of Art. II, §3, and Art. V, §§1 and 2, Fla. Const.
WHY THIS CRUSADE: At this point you are probably wondering why I have embarked upon this seeming "crusade" over H557 & S154.
It is because several years ago, as a whistleblower who refused to participate in a private sector employer's alleged defense contract fraud against the United States Government, who was retaliated against by the employer for my refusal to commit a felony, which resulted in my initiating civil court litigation and appeals (more than 5 cases) in which I was unjustly not successful, had H557 & S154 been law at the time, I would have been subsequently barred from the Florida courts as a "vexatious litigant" even though as a law abiding citizen
I spent the major portion of my working life in Service to my Country to safeguard and guarantee, as did millions of servicemen and women before me, the freedom and liberty for our Nation's democracy and that of the States comprising the United States of America.
It is through the daily "sweat and sacrifice" of the millions of honest and decent Florida citizens, whose work creates an environment for Democracy in Florida to flourish (the police who try to keep us safe, the teachers who try to educate our children, the medical personnel who try to maintain our health and that of our families, the people who enable us to have food on our tables, clothing on our backs, and shelter over our heads, etc., etc., etc.,), who are all part of your Group II nonlawyer constituents; not one of them deserves to be "tarred and feathered" by any Group I strategy that brings into play an unconstitutional so called vexatious litigant law.
Please do not pull down to the "gutter of vexatious litigant status" all those law abiding citizens in your 8,204,270 Group II nonlawyer constituents, who deserve the "thanks" and the protection of a grateful Florida Legislature, rather than any destructive labeling of any of them as the equivalent of "trash."
The 8,204,270 nonlawyers who comprise your Group II constituents, should not in effect be barred from the State Courts of Florida because any of them lose an arbitrarily Legislatively established number of civil cases.
The "rationing" of civil court justice to Florida citizens (5 strikes and you're "out"), and thereby making it available only to the wealthy who could afford civil case pretrial Bond, is surely "un-American" and destructive to our beloved Democracy.
CAN'T JUDGE A BOOK BY ITS COVER: Please do not assume that somehow I
am an anti-lawyer zealot. I was born in an era when almost every mother
in America wished their Son (unfortunately during the Depression Era it
was still then a time of
To be a Judge in that Era was probably like being "an honored Assistant to God." I am one of those who sincerely wishes we could turn back the clock (but eliminate the discrimination to women) to when lawyers, doctors and judges were universally revered and respected professions throughout America.
There are thousands of dedicated and honorable lawyers today throughout this nation, and it is surely wrong to "tar and feather" all lawyers with a public disdain that they all as a profession do not deserve. Likewise, there are Florida law abiding Citizens who do not deserve the "vexatious litigant" disdain from lawyers.
THE END: It is now time to entrust to you the Legislative decision in this matter. Have faith that the Judicial Branch of Florida Government is competent, well equipped, and already knowledgeable of how to judicially deal with any truly vexatious litigants.
Please do not become a party to the destruction of the principle of separation of powers/checks and balances system, that has kept this nation strong and free throughout its history. Do not set in motion the "destruction" of your Group II constituents, merely to earn favor with your Group I colleagues. Be for the people; all of them!
MAY GOD BLESS AND ETERNALLY PRESERVE OUR FLORIDA LEGISLATURE, AND MAY TRUTH, HONOR, AND A SENSE OF INNER "GOODNESS" GUIDE ALL WHOM ARE PRIVILEGED TO SERVE THERE.
Colonel Donald I. Rehman, USA, Ret.
Subject: You signed a Bill that is Unconscionable, Probably Unconstitutional & Unworthy
Date: 8/18/2000 12:54:59 AM Eastern Daylight Time
From: Don Rehman
To : Mr. Kamilah Prince:
No answer from Governor Bush in 23 days. Please forward this to someone in the Governor's office who would know when is my appointment scheduled with him or his aide?
Subj: You signed a Bill that is Unconscionable, Probably Unconstitutional & Unworthy
To: Governor Jeb Bush
I sent you an E-mail about a bad bill awaiting your signature (Florida Vexatious Litigant Law) and you sent me a reply instructing me not to be cynical (in other words -- keep an open mind you would do the right thing for the citizens of Florida). Both E-mails are quoted below.
Since the time that you wrote the below e-mail, exactly what transpired that caused you to become convinced that this was a bill worthy of your signature?
You stated that you "didn't know enough about this bill" at the time of your writing to me. Did you read some documentation that convinced you? If so, please share it with me so that I too may become enlightened.
This is the least you could do for your trusting voters. Teach us. I'm afraid many of us do not see any sanity in this bill.
Perhaps, rather than reading a document which enlightened you as to the desirability of this bill, you had discussions with various individuals.
Who were they? What are their names? What did they say? Please, teach us so that we may become smart and understand the need for this bill. Please tell us the new information which has been revealed to you since the day you wrote the e-mail below.
Can I come to your office and read the Staff Paper that persuaded you to sign into law the Florida Vexatious Litigant Law, so that I can perhaps see for myself why it was necessary for you to take an action seemingly so adverse to the nonlawyer Citizens of the State of Florida?
Colonel Donald I. Rehman, USA, Retired
Subject: RE: Maybe you are too busy to read this --So go ahead and sign a Bad Bill Into Law!
Date: 6/3/2000 4:43:31 PM Eastern Daylight Time
From: Governor Jeb Bush
To: Don Rehman
I am passing on this email to our policy team and appreciate your counsel. You should not be so cynical about your voice not being heard. It is. I may not agree with you (I don't know enough about this bill yet) but I do hear you.
Subj: Maybe you are too busy to read this --So go ahead and sign a Bad Bill Into Law!
Governor Bush; I know that you receive "tons" of mail, telephone calls, etc., all competing for your attention -- thus I realistically have no "faith" that you will even see this communication, let alone do the right thing by this situation.
No doubt you soon will use your pen to sign into law Senate Bill #154, Florida Vexatious Litigant Law, because its title is "catchy," because you may think its name means nice things, and because you might not be concerned about in effect closing Florida State Courts to those citizens who are not wealthy, maybe you're not concerned about creating Florida Law that is terribly and unfairly written, maybe you're not concerned about usurping the rule making for Courts authority of the Florida Supreme Court, and maybe you're not concerned by "rationing" the use of Florida Courts to its Citizens; especially to all those "common people" whose votes helped elect you Governor of this State.
The problems with Senate Bill #154 are summarized in the E-mail below, which I sent to all Florida State Senators and Representatives; a communication that apparently fell on "deaf ears" it would appear. So, when you sign Senate Bill #154 into law, you will be joining a select group of people, who seem to have little concern what a Florida Law like the Vexatious Litigant Law will do to create havoc in the Courts of Florida, and no doubt lead to a Constitutionality challenge reaching eventually all the way to the Supreme Court of Florida.
My "voice" in opposition to Senate Bill #154 may be no more than a "whisper into the wind" so to speak, and as a "Common Citizen" I am far from having any influence with the Governor I voted for. Perhaps you have "ascended" now to a place so "high," that the voice of the People, as a "cry and a plea" for not creating into Florida Law the abominable Vexatious Litigant Law, no longer reaches you; and you dutifully will sign into law that which harms the very essence of the most valuable "resource" of the State of Florida -- its People.
Colonel Donald I. Rehman, USA, Retired.