Jerry Collette is a Birther from Pasco County Florida who filed a novel lawsuit against President Obama and the State Executive Committee of Florida Democratic Party earlier this year wherein he claims to have been “injured” because he has been told and believes that President Obama is not a natural-born citizen, is therefore, not eligible to hold office, and should not have his name placed on the Florida ballot in 2012. Mr. Collette was kind enough to appear on RC Radio a few weeks ago and has promised to appear again on July 24th to discuss the venue issue, which might have been decided once again by then.
Collette v Obama was submitted in Pasco County where Mr. Collette resides. Collette filed the initial complaint, then filed a first amended complaint, and a subsequent Plaintiff’s Supplemental Brief in Opposition to Motions to Dismiss. The defendants were represented by the same law firm who appeared for the Obama campaign in Leon County where Voeltz v Obama was filed by Larry Klayman on behalf of plaintiff Voeltz. That case was dismissed. The lead attorney, Mark Herron, also is lead attorney for the defendants in the Collette case. They filed opposition motions to dismiss both complaints. In their Motion to Dismiss the First Amended Complaint Attorney Herron also included a motion for a change of venue to Leon County where the state party headquarters is located and where the Governor will certify electors for the President and the Secretary of State will place his name on the ballot.
At a motion hearing on July 10th (attended by and reported on by RC Radio reporter Neonzx) Judge Mills ruled that Pasco County was not the correct venue and said he would sign an order prepared by the defendants to transfer the case to Leon County. Now Jerry Collette has filed a Motion to Reconsider and Set Aside of Change of Venue Ruling because he claims
This motion for reconsideration and setting aside the change of venue ruling is being brought to correct a clear error, of law, made by the court, caused by a gross misstatement, by defense counsel, of established Florida venue law for tort claims. In particular, Mr. Mark Herron, counsel for defendants, in replying to my citing of the venue holding in Tucker v. Fianson, 484 So. 2d 1370, 1372 (Fla. 3rd DCA 1986), a commanding precedent case on Florida venue law for tort claims, misstated to the court that the venue holding in Tucker was based upon the location of a certain piece of property which, according to Mr. Herron, was the underlying subject of the tort action.
Collette cites the Florida statute § 47.011:
Where actions may be begun.—Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.
So there are three criteria to determine where civil actions may be initiated. The first is the county where the defendant resides. Next is the county where the cause of action accrues (where the damages began), and finally where property in litigation is located. Collette references a Florida case, Tucker v. Fianson, 484 So. 2d 1370, 1372 (Fla. 3rd DCA 1986). This case was an appeal of a lower court decision to deny a request for a change in venue. The issue in the case was a claim that an attorney Allan Tucker from Broward County had rendered negligent legal services to a client, Chantal Fianson, who was converting a building to condominiums in Dade County. Fianson had filed in Dade county but Tucker requested the case be transferred to his home county of Broward. The court affirmed the lower court decision to deny the change in venue on grounds that while the malpractice may have been committed in Broward County the damages had been accrued in Dade County. Judge Schwartz concluded his opinion with a remark that Collette seems to love to repeat:
In sum, it is claimed that, while lawyer Tucker negligently shot his arrow into the air of Broward County, it did no harm and had no effect until it fell to earth in Dade. It is therefore here that he must answer for his asserted error.
In his current motion Collette alleges that the defendants mischaracterized the holding in Tucker by saying that it was based on the location of the property in question. Collete said:
Defendants’ Mischaracterized the Basis of the Tucker Holding
While it is true that previous dealings between the parties in Tucker were related to a piece of property transaction, neither the Tucker case nor its venue holding had anything, whatsoever, to do with property. The Tucker court would have come to the exact same result if the case had actually been about the defendant shooting an arrow from Broward County and injuring the plaintiff in Dade County, as the court so simply and clearly analogized. Accordingly, Mr. Herron’s analysis of the Tucker ruling, stating that venue therein was based upon the location of a piece of property, was clearly erroneous. Moments after Mr. Herron made said erroneous statement to the court, this court announced its venue ruling. In that there was no other reason why this court would ignore such a commanding precedent case as Tucker, it is, therefore, logical to conclude that the court’s error in its previous venue ruling was caused by Mr. Herron’s blatant misstatement of the basis of the Tucker venue holding.
I will leave it to the attorneys to comment on the formatting and professionalism displayed in the motion to reconsider. Collette as much as accuses Mr. Herron of lying to Judge Mills. In my opinion there are similar problems with all the plaintiffs filings in this case.
Collette cited the Tucker case for the first time in his Plaintiff’s Supplemental Brief in Opposition to Motions to Dismiss that he filed following the opposition by the defendants so the first chance Mr. Herron would have had to respond was at the hearing on July 10. If Tucker was so critical to determining venue it should have been raised earlier to allow the defendants a chance to reply rather than raise it for the first time in what amounted to a typically disfavored sur-reply. Apparently, the alleged mischaracterization would have occurred in oral argument at the hearing. We know the hearing was brief (Neonzx reported that it lasted around 10 minutes) so there would not have been time for much discussion on Tucker. Judge Mills had Mr. Collette’s motions including his arguments on venue and Tucker before him when he rendered his decision. While all we have are accounts of the oral arguments made by both parties it does not appear that Colette brings anything new that he could not have raised as an issue either in his briefs or at the hearing.
While I can see some support in Tucker for Collette’s argument, it is very weak. In Tucker and in the cases cited in Tucker there was property or something tangible to which damage could accrue in the county where venue was ruled to be proper. While the case was about malpractice it was the location of the accrual of damages to the property that was key to the courts reaching the decision to let the venue remain unchanged. In Tucker it was a building. In another case cited in Tucker it was actually a body in a medical malpractice suit where the court ruled that the proper venue was the county where the maltreatment occurred and the death in another. The ruling there was that the damage began to accrue at the time and place the treatment was performed. Even in breach of contract and insurance cases that are often allowed to proceed in the plaintiffs venue there is a unique act or individual contract that takes place at least part in the plaintiffs venue. There is nothing of the kind in the Collette case. All he is alleging is some apparently heretofore unknown and unstated right “to be governed by a legal president”.
Collette appears to be claiming that something was “damaged” in Pasco County. The “damage” apparently quite literally occurred in Collette’s [gifted legal] mind. I think the court will have trouble with the concept that an election of a president, which obviously has effect on the population at large but no particular and distinct effect on an individual would be considered an event worthy of establishing venue for a tort claim. If “damaged mind” is the action then it is hard to foresee a case where that could not be claimed as an action and venue would always be in the plaintiffs county. This is clearly not the intent of the statute – the cute remark by Judge Schwartz about an errant arrow not withstanding.
However, even ignoring the Tucker case there are two huge problems with his venue claim. The first was mentioned by Herron in his Motion to Dismiss the First Amended Complaint. This is not a simple tort case. Collette is also seeking declaratory relief and is asking the court to prevent the state of Florida from placing candidate Obama’s name on the 2012 presidential ballot. That action is in the future and will take place in Leon County. Herron cited SOOWAL v. MARDEN, 452 So.2d 625 (1984). In that case the same Third Appellate District said “Since a suit for declaratory relief does not of itself constitute a cause of action for the purpose of activating the venue statute, it is the underlying relief sought which determines venue.” The underlying relief lies not in Pasco County but in Leon County where President Obama’s name would be placed on the ballot and his electors nominated by the governor.
Finally, there is another reason for change in venue in the Florida code that I think will thwart any argument to avoid transfer. In the same section of the Florida code as the one Collette references we find:
§47.122 Change of venue; convenience of parties or witnesses or in the interest of justice.—For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.
Since the Democratic Executive Committee is one of the defendants and is located in Leon County the action could have been brought there. Also, there is the possibility that if the case survives dismissal any potential witness would more likely reside in Leon County. The defendants’ have a pending motion concerning indispensable parties to the case and they would also reside in Leon County. Judge Mills even went so far as to suggest to the plaintiff that he consider adding the Florida Secretary of State as a defendant. The judge certainly tipped his hand on how he might rule on that motion. This case clearly belongs in Leon County. It is an election law case disguised as a tort case. Judge Mills was not fooled by the legal trickery being used here. He ruled correctly to transfer the case for improper venue and we believe the Motion to Reconsider will be denied. The Collette case is the textbook example of where this rule should be applied. It would be an injustice to force the President and the Florida Democratic Party to answer to a clearly frivolous case in a county where none of the parties reside except for the plaintiff. The defendants have never committed any act in Pasco County for which Collette could claim any tort action could originate.
This article only discusses venue and does not address the merits of the case. However, this case has no merit. While Mr. Collette has read Florida code and the state constitution it is hard to believe that anyone would anticipate that the courts would allow a case with no merit to progress past summary judgment. The Florida constitution allows him to file such a case but does not require a judge to do more than terminate it at the very early stages.
I have invited Mr. Collette to review a draft of this article and I will post any comments he has. He has been kind enough to supply copies of both his filings and the opposition filings. These are not as easy to obtain in Florida as in other states we are grateful to have these. They are not posted one line because apparently Florida is behind other states in converting to electronic record systems.
[Updated July 26, 2012] We now know the answer and, as predicted, Jerry Collette’s motion for reconsideration on change in venue was denied this afternoon by Judge Stanley Mills. I was mildly surprised that Judge Mills even allowed a hearing on this motion but according to Jerry Collette the hearing was over quickly and Attorney Mark Herron appeared by phone. Judge Mills ruled that even if he had made an error in law the Motion for Reconsideration was not proper and besides that he made no such error. Where the case goes from here is unclear. Mr. Collette indicated on RC Radio this week that he would probably not pursue the case in Leon County. What is also not clear is who would pay the transfer fee. Jerry Collette has said the clerk told him that the defendant would be asked to pay but this doesn’t make sense where the ruling was that the venue was improper. We will have to wait to see Judge Mills order to figure it all out. It seems as though we may have seen the last of Collette v Obama and this case will be added to the yet unblemished record for law and justice on the Birther Scorecard.
Wikipedia: In France, a pays is an area whose inhabitants share common geographical, economic, cultural, or social interests, who have a right to enter into communal planning contracts under a law known as the Loi Pasqua or LOADT, which took effect on February 4, 1995. →