Judicial Dodgery
People have asked, how did Jerry Collette’s ballot challenge case get transferred from Pasco County to Leon County? Collette says it was a clear case of “judicial dodgery,” something which has been rampant in eligibility cases. While most eligibility cases have been resolved on more esoteric issues, such as standing, Collette’s case was transferred on a very simple issue, venue.
Since venue is much easier to analyse for the average person than standing, let’s examine the relevant portion of Florida Statutes § 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.
Since, in Collette’s case, no property was involved, this leaves only two venue options, the county where:
- A defendant resides, or
- Where the cause of action accrued.
Collette chose the second for his complaint.
Where does a cause of action accrue? Collette brought his case as a tort action (not an election law action like many other ballot challenges have done). Under Florida law, a tort action accrues where the plaintiff is first alleged to be injured, not where the defendant allegedly committed the action that caused the alleged injury.
The holding Florida case for this concept is Tucker v. Fianson, 484 So. 2d 1370, 1372 (Fla. 3rd DCA 1986). In that case, the plaintiff, Fianson, claimed that attorney Tucker committed malpractice against him, in Broward County, but Fianson suffered his damages in Dade County. Fianson brought his case in Dade County, and Tucker moved for a change of venue. The Florida Court of Appeals stated:
… 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 [in
Dade County] that he must answer for his asserted error.
Collette used this same simple logic to claim that, because his alleged injuries were suffered in Pasco County, that Pasco County was the proper venue.
Is this a difficult concept to understand? The Tucker court used a very simple analogy, one that even a child could understand. So, why did the judge disregard this clear venue standard for tort cases in Florida? Was the logic of it beyond the judge’s ability to comprehend?
Collette said, “The judge didn’t want this politically sensitive, hot potato case. To get it off of his plate, he simply ignored clearly established Florida law on venue. This was a blatant example of judicial dodgery.”
Sam Sewell, Director of Florida Ballot Challenge, said, “We still need more plaintiffs to file similar cases. Some judge, somewhere, is waiting for somebody to show up with one of these ballot challenge cases. We can count on getting more judicial dodgery, but the more cases people file, the more likely we are to find that one courageous judge that we have been seeking.”
Strategy Update for Florida Ballot
Challenge
By Sam Sewell, Project Director
Choose Your Weapon
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