Depending on exactly when I hit the Publish button, this article will appear just before or just after the scheduled time for Jerry Collette’s second hearing in his case against Barack Obama and the Florida Democratic Party.
Previously, the case of Collette v. Obama was ordered transferred from Pasco County to Leon County by Judge Mills because of improper venue. Collette is asking the judge today to reverse that decision and allow the case to stay in Pasco County. Collette argues that a district court of appeals in Florida ruled in a case analogous to his (Tucker v. Fianson 484 So.2d 1370 (1986)) that venue in Pasco County is proper because the injury underlying his tort action, the denial of his right “not to be governed by an ineligible President,” was suffered in Pasco County.
Section 47.011, Florida Statutes (1983), states:
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.
While a cursory reading of Tucker suggests that an action in one county can cause an injury in another, the injury Mr. Collette alleges is a very tenuous one, and the only thing tying the injury to Pasco County is that Jerry Collette lives there. However, he would suffer the same alleged injury wherever he goes and the fact that he happens to be in Pasco County seems irrelevant to the injury.
The Florida Third District Court of appeals in Sowell v. Marden 452 So.2d 625 (1984) 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 Florida Companies v. BFA Corp.,424 So.2d 48 (Fla. 3d DCA 1982); Windsor v. Migliaccio,399 So.2d 65 (Fla. 5th DCA 1981). For venue purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises, Inc. v. Brumlik,430 So.2d 13 (Fla. 5th DCA 1983); Vital Industries, Inc. v. Burch,423 So.2d 1023 (Fla. 4th DCA 1982); Windsor v. Migliaccio, supra, 399 So.2d at 66. For venue purposes in a tort action, a cause of action is deemed to accrue where the act creating the right to bring an action occurred. E.J. Sales & Service, Inc. v. Southeast First National Bank of Miami,415 So.2d 906 (Fla. 3d DCA 1982); Gaboury v. Flagler Hospital, Inc.,316 So.2d 642 (Fla. 4th DCA 1975).
Mr. Collette’s suit is both a tort action and request for declaratory relief.
I am not a lawyer, and I don’t fully understand what Mr. Collette is trying to argue. However I believe, and others had said this before me, his interpretation of the Tucker case is much too broad. My opinion is that Judge Mills will affirm his decision to transfer the case to Leon County, which may impose a hardship on Mr. Collette in pursuing the litigation.
Some have suggested the Judge Mills might accept the venue argument from Jerry Collette and then sua sponte dismiss the case. I find that highly unlikely without a hearing on the motions to dismiss and opposition. However, the Judge could dismiss the case, deciding that as a matter of law, Barack Obama is eligible to be President on the grounds that the only authority to make that decision is the Congress of the United States, who certified the 2008 election.
My motion to reconsider was denied.
Thanks for the update Jerry.
Was the judge corrupt or is it just within the realm of the possible that a Gifted Legal Mind is spectacularly wrong?
A general question: I can’t recalll a birther case in which the losing birther did not ask for a reconsideration. In ordinary cases, how often does the losing side move for reconsideration? I will guess rarely. How often does the judge actually reconsider? I will guess almost never. So why should a judge who just said your case is totally without merit change his mmind?
DENINED? Shocked, I is.
Just a WAG… the judge is still wrong and he just didn’t want to handle this “hot potato” case. 😉
The case also appears to be DEAD. Jerry is probably not going to pursue in Leon County. I am not sure of the logistics. I suppose that Mark Herron could pay the transfer fee then file for dismissal and costs.
It’s 469 miles from Hollywood, FL to Tallahassee, and Jerry says on his website that travel is an issue for him. It’s unlikely that he can find an attorney in Leon County to take on his case, but I hear that Larry Klayman may soon be free to take it.
…but he is hoping people will still use his ballot challenge kit, which as demonstrated in this case was a slam dunk.
I haz a confuzzled. Why the heck would Herron pay the transfer fee? If the case is not transferred, there’s no case, nothing to worry about being dismissed.
I was just engaging in wishful thinking for a minute. I am sure the final order will direct plaintiff to pay for the transfer and Collette will let it die. It would be neat if Herron would go for costs and fees but he has a win so best to let it die quickly.
You misspelled DOOMED.
Did he offer anything by way of an explanation?
Oh wow, this is sooooooooooooooooo surprising.
Jerry, will you finally agree that perhaps the people on this side of the argument might have a bit of understanding of the situation? You were warned this was going to happen. You insisted on pushing the envelope and creating arguments that were way beyond the pale (and several here told you so). Perhaps you should have listened?
Come down from the edge, it’s really not that bad down here.
Gee, what a surprise. Now go away.
To be fair, it’s hard to travel in a clown car.
Especially when the wheels keep coming off!
Touché!
The transcript of the hearing has been posted. Jerry didn’t put up much of a fight.
http://www.scribd.com/doc/100841743/FL-COLLETTE-2012-07-10-Hearing-Transcript
I hope he kept his receipt for that Gifted Legal Mind™.