motion to require compliance with the rules of procedure
DESCRIPTION
This is my Motion to Require Compliance with the Rules of Procedure which includes the Clerk’s letter admitting that portions of the record are kept separate from the case file. To learn why the crooks who run the banana republic of Floriduh wanted to shut me up, do a search for Justice in Florida's Supreme Court and don't miss the documents below this short video. By the way, this video includes a deputy clerk of the Florida Supreme Court admitting that the clerk enters orders without authorization by the justices which is a violation of the Constitution of the State of Florida and also a felony.TRANSCRIPT
IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant
Case No.: SC05-1149 L.T. Case No.: 2004-10,132(6A)
v.
MARK A. AIIAMS,
Respondent. 1
RESPONDENT'S RENEWED MOTION TO ENFORCE DUTIES OF CLERK AND TO REQUIRE
COMPLIANCE WITH THE RULES OF PROCEDURE APPLICABLE TO THIS DISCIPLINARY PROCEEDING
COMES NOW, the Respondent, MARK A. AIIAMS, Esquire and files the
Respondent's Renewed Motion to Enforce Duties of Clerk and to Require
Compliance with the Rules of Procedure Applicable to this Disciplinary
Proceeding showing:
Statement of Facts
1. On February 15,2006, the Report of Referee (hereinafter referred to as the
Report) was entered and served via U.S. Mail to the Respondent.
2. On April 21,2006, the Respondent filed the Respondent's Petition for
Review of Report of Referee (hereinafter referred to as the Respondent's
Petition for Review). This petition commenced the proceedings for review
of the disciplinary proceedings in this action pursuant to Rule 3-7.7(c)(l) of
the Rules Regulating the Florida Bar.
3. On May 1,2006, the Respondent served his Directions to the Clerk and sent
a letter to Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar,
requesting preparation of the index to the record of the proceedings before
the referee, requesting incorporation in the record and its index of the
documents requested in the Directions to the Clerk, requesting service of
copies of all documents which have been filed in this action by counsel for
the Florida Bar that have not been previously senred, and indicating that an
extension of time would be requested to allow thirty days to prepare the
Respondent's brief once the index was served. Please see the Respondent's
Directions to the Clerk in Appendix A and the Respondent's letter to Ms.
Thompson in Appendix B.
4. On May 15,2006, the Florida Bar filed the letter from Jodi A. Thompson,
Assistant Staff Counsel for the Florida Bar, to the Respondent as its response
to the Respondent's Directions to the Clerk. Please see Appendix C. Ms.
Thompson's letter states, "the Bar Rules do not require the record of
proceedings to be numbered." However, Ms. Thompson provides no
citation to authority to support this position. In addition, Ms. Thompson's
letter states that Judge Holder did not transmit the record to the Bar and that
the Respondent should contact the Clerk of this Court regarding the record.
5 . On May 15,2006, the Respondent's Motion to Enforce Duties of Clerk and
Motion to Enlarge Page Limits of Brief were filed with the Clerk of this
Court, and on May 16,2006, the Clerk of this Court issued an order denying
the same without any response to the same being filed by the Florida Bar.
6 . As a result of the unusual nature and rapidity of the foregoing decision and
the Respondent's previous experiences with the Clerk of the Second District
Court of Appeal of Florida issuing orders without the concurrence of two
judges as required by Article V, 5 4(a) of the Constitution of the State of
Florida and Florida Rule of Judicial Administration 2.040(a)(l),' the
Respondent visited the office of the Clerk of this Court to review this case
file on June 14,2006, and when the Clerk refused to allow the Respondent
to inspect the justices' notes in the red folder in this case file, the
Respondent filed a letter requesting that he be allowed to inspect the entire
case file.
7. On June 14,2006, the Respondent found that the case file provided for
review by the Clerk of this Court did not contain all of the documents
' The Clerk of the Second District Court of Appeal of Florida has also issued an order concerning the Respondent which was contrary to the judges' directions as shown by the exhibits filed in this action.
required to be included in it by Rule 3-7.6(n)(2) of the Rules Regulating the
Florida Bar. Specifically, the Respondent found that this case file did not
include the transcripts of the trial and the sentencing hearing, the motions
filed in the proceeding before the referee, orders relating to such motions,
and exhibits filed by the Respondent. As a result, the Respondent served the
Respondent's Motion to Require Compliance with Rule 3-7.6 on June 14,
2006 which was received for filing by the Clerk of this Court on June 19,
2006, and the Clerk of this Court issued an order denying the same on
August 23,2006.
8. On June 21,2006, an Amicus Motion to Inspect the Complete Case File was
filed by Gordon Wayne Watts, and the Clerk of this Court issued an order
denying the same on August 23,2006.
9. On or about July 7,2006, the Clerk of this Court sent a letter to the
Respondent denying the Respondent's request to inspect the justices' notes
in the red folder in this case file and explaining that some of the records
which were missing from this case file were stored in an exhibit room in the
sub-basement of this Court. Please see a copy of the Clerk's letter dated
July 7,2006 with the envelope transmitting the same to the Respondent
bearing a postmark of July 1 1,2006 in Appendix D.
Legal Argument
Due process requires preparation of the record
in compliance with Florida Rule of Appellate Procedure 9.200.
10. Rule 3-7.7 of the Rules Regulating the Florida Bar provides the procedure
for review of reports and judgments entered by a referee in disciplinary
proceedings, and Rule 3-7.6 provides the procedure for disciplinary
proceedings before a referee.
11. Pursuant to Rule 3-7.7(f) of the Rules Regulating the Florida Bar, the
Florida Rules of Appellate Procedure apply to petitions for review of
disciplinary proceedings before the Supreme Court of Florida.
12. The Respondent has not found and the Florida Bar has not cited any
provision of the Rules Regulating the Florida Bar that provides for any other
way in which to refer to the record in the Respondent's brief in support of
his petition for review other than by citation to the appropriate page numbers
in the record as required in Florida Rule of Appellate Procedure 9.210(b).
Of course, to do so, the record must be prepared as required by Florida Rule
of Appellate Procedure 9.200, and the Respondent has not found nor has the
Florida Bar cited any provision in the Rules Regulating the Florida Bar
which provides that the record is not required to be prepared in accordance
with Florida Rule of Appellate Procedure 9.200 or that this rule does not
apply to this Court's review of disciplinary proceedings.
13. Florida Rule of Appellate Procedure 9.200(f)(2) states, "If the court finds the
record is incomplete, it shall direct a party to supply the omitted parts of the
record. No proceeding shall be determined, because of an incomplete
record, until an opportunity to supplement the record has been given." The
comment concerning subdivision (f) states, "The new rule is intended to
ensure that appellate proceedings will be decided on their merits.. .. 3,
14. At the time that this proceeding was commenced and was tried, the pertinent
part of Rule 3-7.6(m)(2) stated, "The referee shall serve a copy of the record
on bar counsel with the report. Bar counsel will make a copy of the record,
as firmished, available to other parties on request and payment of the actual
costs of reproduction." Thereafter, Rule 3-7.6(m)(2) was amended to delete
the requirement that the referee serve a copy of the record on bar counsel,
but the Rules Regulating the Florida Bar have not been amended to exempt
these proceedings from compliance with Florida Rules of Appellate
Procedure 9.200 or 9.210. However, amendments to rules of procedure have
prospective effect only, absent an express statement to the contrary. State v.
Green, 473 So.2d 823,824 (Fla. 2d DCA 1985) citing Poynh v. Reynolds,
19 So. 649 (Fla. 1896). Therefore, the referee should have transmitted a
complete copy of the record to the Florida Bar; however, the referee failed to
do so as shown by the letter from Jodi A. Thompson, Assistant Staff
Counsel for the Florida Bar, to the Respondent dated May 2,2006 which
was filed with the Clerk of this Court on May 15,2006. Please see
Appendix C.
15. Rule 3-7.6(n)(2) of the Rules Regulating the Florida Bar states, "The record
shall include all items properly filed in the cause including pleadings,
recorded testimony, if transcribed, exhibits in evidence, and the report of the
referee."
16. Due process requires a complete record on appeal. See, e.g., ?'hornas v.
State, 828 So.2d 456,457 (Fla. 4th DCA 2002) and Berube v. State, 771
So.2d 1263 (Fla. 2d DCA 2000).
17. "An accurate and comprehensive record of the proceedings below is
absolutely essential to fair and efficient appellate review." Haist v. Scarp,
366 So.2d 402,404 (Fla. 1978). "This Court should provide every incentive
to parties to develop and preserve an adequate record." Id.
18. "All rules prescribed for court procedure are binding on the court and its
clerk as well as on litigants and their counsel." Esch v. Forster, 127 So. 336,
336 (Fla. 1930). "The burden of proving that observance of the rules of
practice has been waived is upon the party claiming the waiver." Id at 337.
19. "A duty evolves upon the attorneys for both appellant and appellee to see to
it that a record is sent here which can be used with a minimum of time loss."
Lithgow Funeral Centers v. LoJiin, 60 So.2d 745,746 (Fla. 1952).
20. The letter from the Clerk of this Court to the Respondent filed in this case
and included in Appendix D shows that some documents are in an exhibit
room rather than being included in the case file and that this was not brought
to the Respondent's attention until almost a month after he drove for over
ten hours in order to review this case file.
21. The Respondent's Directions to the Clerk lists the items that the Respondent
believes are necessary to address all of the issues raised in the Respondent's
Petition for Review. The letter from the Clerk of this Court does not state
whether each of the documents specified in the Directions to the Clerk
which are not in the case file are in the exhibit room. As a result, it is not
even clear whether the complete record has been transmitted to this Court.
22. If the referee had complied with the applicable version of Rule 3-7.6(m)(2)
by transmitting a complete copy of the record to the Florida Bar, the
Respondent could have reviewed the record in its Tampa office and the Bar
could have prepared an index to the record.
23. However, rather than comply with its duty to see that the record is complete
and indexed in a timely manner, the Florida Bar has opposed preparation of
the record without citation to any legal authority to support its position.
Instead, the Florida Bar has taken the position that the rules do not require
the record to be numbered without citation to any authority, and therefore, it
follows that the Florida Bar believes that the parties are not required to cite
to the pertinent pages of the record as required by Florida Rule of Appellate
Procedure 9.210(b). However, if this were correct, it would seem to make
this Court's consideration of this proceeding very difficult. See, Harford v.
Travelers, 531 So.2d 1049 (Fla. 1st DCA 1988). Of course, the parties
could just refer to the documents and their page numbers, but this method is
not authorized by Rule 3-7.7 either.
In addition, the Florida Bar has used the Respondent's requests to ensure
that the record is complete as a basis to repeatedly seek dismissal of the
Respondent's Petition for Review even though such review is required by
Rule 3-7.7(a)(2) which states, "The Supreme Court of Florida shall review
all reports and judgments of referees recommending probation, public
reprimand, suspension, disbarment, or resignation pending disciplinary
proceedings." Therefore, it seems that the Florida Bar may have taken this
unsupported position regarding preparation of the record in this action in
order to curtail the ability of the Respondent to defend himself in this action
and to deny the Respondent due process.2
25. In order to ensure that this Court's review of this case comports with the
dictates of due process, this Court should follow the aforementioned rules of
procedure and require its Clerk or the Florida Bar to prepare an index of the
record and require inclusion of the documents requested in the Respondent's
Directions to the Clerk in the record so that the parties and this Court can be
assured that the record is complete, and if the foregoing shows that the
record is not complete, this Court should allow the parties to supplement the
record to ensure that this proceeding is determined on its merits. In the
alternative, this Court could take advantage of this opportunity to provide
the Florida Bar with an incentive to comply with its duty to abide by the
rules of procedure applicable to disciplinary actions as required by the
dictates of due process by dismissing this disciplinary action, and such a
decision would go a long way towards restoring a standard of
2 The Florida Bar previously filed a Petition for Interim Suspension in this action without any legal basis and without even meeting the minimum requirements for a petition for an emergency suspension, and on May 16,2006, this Court denied the Florida Bar's Petition for Interim Suspension. Therefore, it appears that the Florida Bar has violated the procedures established for due process in disciplinary proceedings before this Court on at least one previous occasion in this action in order to make it more difficult for the Respondent to defend himself and to deny due process to the Respondent.
professionalism and integrity in those who run the Florida Bar which so
many of its members and the public find lacking.
WHEREFORE, the Respondent respectfully requests that this Court issue
an order requiring the Clerk of this Court or the Florida Bar to prepare the record
in compliance with rules of procedure established by this Court for disciplinary
proceedings and the Respondent's Directions to the Clerk, requiring the Florida
Bar to assist the Clerk in preparing the record, and allowing the Respondent to
supplement the record if the foregoing shows that it is incomplete before being
required to file his brief in support of his Petition for Review, or in the alternative,
give the Florida Bar an incentive to abide by the rules applicable to disciplinary
proceedings in the future by issuing an order dismissing this disciplinary action
due to the Florida Bar's repeated efforts to obstruct preparation of the record in this
action, the Florida Bar's repeated efforts to deny due process to the Respondent in
this action, the Florida Bar's repeated efforts to mislead this Court in this action,
and the referee's failure to comply with Rule 3-7.6(m)(2) of the Rules Regulating
the Florida Bar in this action.
Respectfully Submitted,
Mark A. Adams, Esquire Fla. Bar No. 0193178
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been served by U.S. Mail to
Jodi A. Thompson, Assistant Staff Counsel for the Florida Bar at 5521 W. Spruce
Street, Suite C49; Tampa, FL 33607, to Staff Counsel for the Florida Bar at 65 1 E.
Jefferson Street; Tallahassee, Florida 32399, and to Mr. Gordon W. Watts, pro se
4 4 % Amicus Curiae, at 821 Alicia Road; Lakeland, FL 33801 on this /4 - day of
September, 2006.
/
Mark A. Adams, Esquire Fla. Bar No. 0193 178
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this document complies with the requirements of
Florida Rule of Appellate Procedure 9.21 0(a)(2).
aark A. Adarns, Esquire Fla. BarNo. 0193178 P.O. Box 1078 Valrico, FL 33595 Telephone: 8 13-654-1235 Facsimile: 813-654-1390
IN THE SUPREME COURT OF FLORIDA
THE FLORIDA BAR,
Complainant
Case No.: SC05-1149 L.T. Case No.: 2004-10,132(6A)
MARK A. ADAMS,
Respondent. 1
RESPONDENT'S RENEWED MOTION TO ENFORCE DUTIES OF CLERK AND TO REQUIRE
COMPLIANCE WITH THE RULES OF PROCEDURE APPLICABLE TO THIS DISCIPLINARY PROCEEDING
APPENDIX
TABLE OF CONTENTS Document Tab
Respondent's Directions to the Clerk A
Respondent's Letter to Jodi A. Thompson, Assistant Staff Counsel B
Letter from Jodi A. Thompson, Assistant Staff Counsel, to the Respondent C
Letter kom the Clerk of this Court to Respondent D
Appendix A
TEE FLORIDA BAR,
Complainant
Case No.: 335-1149 L.T. Case No.: 2004-1 Q,132(6A)
V.
MARK A. ADAMS,
Respondent. /
DmCTIONS TO THE CLEW
Pu~suant to Rules 3-7.7(c)(2) and 40 and Florida Rule or Appellate
Procedure 9.200(a)(I), the Respondent directs the Clerk of the Florida Supreme
Court lo include the following docrrments and exhibits in the record on appeal in
tl~is case and to serve an index of the record to the Responde~le and Staff Counsel
for the Flwida War:
I . The Respondent directs the clerk to include all of the materials listed in Rule
9.20O(a)(l).
2. Additionally, the Respondent directs the clerk to include the folIswing
items:
A. All notices of taking deposition filed in this action.
B. A11 ccpmspondence msmiEed to the Referee by counsel for tile Florida
Bar and the Respondent.
C. All notices of hearing filed in this iachorm.
D. The transcripts of at! hearings held in tilis action.
E. A11 witness lists filed in this action.
F. All cxbibit Lists filed in this action.
3. Pursuant to Rule 3-7 6(h)(5)(B), after appointment of the Referee all
documents should have been filed with the Referee.
4. Pursuant to Rule 3-7.6(rn)(2), the Referee should have provided a conlplcte
copy of the entire record of the proceedings before the Referee to Bar
Counsel, and Bar Counsel is required to make the complete record available
to ihe Respondent upon request. However, Rule 3-7.6 does not claipr-ifS,
whether thc Referee or Bar Counsel is responsible for prepwing the record
pursuant to Florida Rule of Appellate Procedure 9.200(d).
5 . Pursuant to the Report oEReferee dated February 15,2006, it appears that
the Referee has transmitted the complete record to the Clerk of the Supreme
Court of Florida.
6. Florida Rule of Appellate Procedure 9.2 10(b) requires references to the
appropriate pages of the record.
7. Piirseant to Rule 3-7.7(f), the Florid-nda Rules of Appellate Procedure apply to
petitions for review of discipiinany proceedings before the Supreme Court of
Florida, and Rule 3-7.7 does not provide for any o h e ~ way in which to refer
to the record in the Respondent's brief in support of his petition for review
other than that specified in Rule 9.2 10(b).
8. The Respondent attempted to speak with Jodi A. Thompson, Assistant Staff
Counsel for thc Florida Bar, to find out whether the Referee or the Bar had
prepared the record as required by Florida Rule of Appellate P ~ Q c ~ ~ u F ~
9.200(d), and the Respoildent left a detailed message for Ms. Thompson
regarding this matter. However, the Respondent has not heard back -From
Ms. Thompson or anyone else fimn the Florida Bar, and therefot-e, out of an
abundance of caution, rhe Respondent is filing these Directions to the Clel-k.
9. These Directions to the Clerk have been timely served pursuant to Rule
9.2QO(b)(l) within I Q days of filing the Respondent's Petition for Review of
Report of Referee.
CERTBFECATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been served by U.S. Maii to
Jodi A. Thompson, Assistasd StaffCounsel for the Florida Bar ah 5521 W. Spruce
Street, Suite C49; Tampa, FL 33607 and to StaffCounsel for the FIorida Bar at 651
4- E. JeiTerson Street; Tallahassee, Florida 32339 on this J +--' day of May, 2006.
I 6 v
Mark A. Adarns, Esquire Fla. Bar No. 0 193 178
T HEREBY CERTIFY that this document complies with the ~e-equirenneilts of
Florida Rule of Appellate Procedure 9.210(&)(2).
/.;.:- ,&L-- Mark A. Adms, Esquire Fla. Bas 1-Jo. O 193 I 78 P.0. Box I078 Valrico, FL 33595 Telephone: 8 13-654-1235 Facsimile: 8 13-654- I390
Appendix B
Mailing Address P.O. Box 1078 Valrico, F1. 33595
May 1,2006
Attorney and MBA
Teiephooe (8 13) 654-1235 Harbor lsiland Bmee Facsimile (8 13) 654-1390 6 10 Garrison Cove Lane
Tampa, Fiorida
Jodi A. Thompson, Assistant Staff Counsel The Florida Bar, Tampa Office 5521 W. Spruce Street Suite C49 Tanlpa FL 33607
Re: The Florida Bar v. Adams Case No.: SC05- I 149 L.T. Case No.: 2004-10.132(6A)
Dear Ms. Thompson:
I have transmitted the Directions to the Clerk for preparation of the record to the Clerk of the Florida Supreme Court. A copy is enclosed. If either the Referee or the Florida Bar has prepared the record as required by Florida Rule of Appeilatc Procedure 9.200, please scrve the index to the record to nle. Also, please serve me with copies of all docunients which have heen filed in this action by counsel for the Florida Bar that have not been previously served to me. In addition, if any of the documents listed in the Directions to the Clerk have not previousiy been incorporated into the record and its index, please include these additional docunlents in the record and its index.
As it appears that the record has riot been prepared as required by 9.200 and as I have not received an index to the record, I will file a motion to direel the clerk, the Florida Bar, or the Referee to prepare and transmit the record pursuant to the Directions to the Clerk and seek service of the index and all documents filed with the Referee by the Florida Bar that were not served to me. I will seek a thirty day extension of the deadline to file my brief in support of my petition for review beginning from the date that the index to the record is served to me.
Please review this matter and let me know the status of the record and whether or llor the Florida Bar opposes the relief that I am requesting by 1 :00 PM on Friday, May 5,2006. Thank you for your pronlpt attention to this matter and your consideration.
Sincerely,
Mark A. Adams, Esquire
CC: Stnfrcounse! for the Florida Bar
Appendix C
May 2,2006
Mark A. Adalns Post Ofiice Box 1078 Valrico, Flotida 33595
Re: T!le Fiorida Bar 1,. Mark A. .4dams Case No.: SC05-1149
Dear Mr. Adarns:
This letter is in response to your voicemail message regarding the record of proceedings in the above referenced case.
Judge Holder did not transmit thc record of proceedings to The Flotida Bar. Rule 3-7.6 (1n)(2)(Filings.), as amended, no longer rcquires the referee to serve a wpy o r the record of proceedings on Bar counsel. Also, the Bar rules do not require the record of proceedings lo be numbered.
1 noted in your petition for review that you alleged that you were not provided with copies of all documen1s filed with the referee. I have reviewed ~ n y file w d it reflects that a copy of all pleadings, transcripts, and the affidavit of costs were provided to you. I did not file any receipts or supporting docurnentation of the costs reflected in the affidavit of costs, nor is it customary or a requirement to do so.
You should contact the Clerk of the Court regarding any questions you have regarding thc record of proceedings.
Finally, I will be handling your case on appeal. Please serve copies of all pleadings to me at the address above and to Tony Boggs in Tallahassee. You do not need to serve Lou Kwall.
Jo k' . I A Tl~onipson
Assistant Staff Coutisel
I ATlra Enclosures: Rulc 3-7.6 (Procedures Before a Referee)
Appendix D
ataprtme Eogtl a% $loir&Ba Office of the C!uk
500 South Duvai Street Tallahassee, Florida 323W-1925
Mark A. Adans, Elsrjuircs Post Office Box 10'78 Valrico. Florida 33595
Ke: Pnulslic Recc.rd,s Keq?x&st bated June 14,2006, Case No. SC::=OJ-! 149 iaspection Ff court 51es on h e 14,2005
Deer Mr. Adams:
In response to your request dated June 14,2806, please be advised that iktc . - rccorcts you are requesti~g are ee?reml>t from dlsciosurk-: as a public record pursuaiar to rt'itle 2.051(~];)(1) oC?he Rules of Judicial Administmfion, Your request i s denied.
Addi-'iorxlfy, please be advised that when yoia visited this Court 0x1 Jun: 14, 2006, you did not vie-w the enti~e contents of the record in the possession of tkis C:ourL. In addition to the c u e file which you viewed, we are afsa in possession isf a box of record which includes the foliowing: Hoiders ofpizadings filed before the referee which includes 1 volume transcfipt of the pre-trial hearing held 1 1/22/05; 5 faldess of exlribtts, I of which i s r ~ ~ ~ r k e d ''Defendant% exhibitsgq; 2 folders of final hearing traa:jc~pts which ii-rciudcs Volume h Final Heailng heId i2/iiQS, Volume I? Final B3earing held 32/li05, Voihime 191 Final Ibeakng held 122105, and i -volume transc~pt of final heafing on sanctions held 2!3/06. Please be advised that ail ofthe above Eisted t~znsclP;pts are originals and that this box is Iloused in the secure exbibit raonr in the sub-basemen? ofthe Court until the case is sent t.0 the Court for consideratlopl. Because oftbat the dep~ty clefl who was dealing with yotir request at the counkr insnclvex$entiy ailed to make those mate~atals availabii; ro
Mark A, Adms. Esquire Silly 7,2086 Page: 2
yoti. Shotlid yoii wish to persotrally inspect the contents oE this box, please cali tile C2er:rk9s Office the box will be retrieved for ya.~ baf~re yoilr anivai. If there is anything you know you specifica$ly wish to see, please let me know and Y wiii rsr~kice aRaangeinknts to have i t copied fbr; you.
PC' . Jodi Anderson Thompson. Esquire Kenneth L.awrence, Marvin, Esquire