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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Thursday, December 21, 2006

So Much For Basic Reasoning ...

1. Remember that evidence was not allowed to be presented at the hearing.
2. The petitions are limited to less than 200 words.
3. The law regarding recall petitions -
written in rudimentary language - allows for more than misdeeds.

Now read the opinion.


CASE NO. 06- 176 1 -CA


ROGER L. HALL, Chairperson,
Marco Island Recall Committee,

This cause came on to be heard by the Court on a Plaintiffs' Motion for
Temporary Injunction. At the hearing the parties agreed that the Court
should consider it as a Motion for Judgment on the Pleadings. The Court
having reviewed the pleadings in this case, the memoranda submitted by
counsel and heard argument, it is hereby ORDERED AND ADJUDGED as follows:

1. The Defendant is attempting to effectuate a recall election of the
Plaintiffs as elected members of the Marco Island City Council pursuant to
section 100.361, Florida Statutes. In the recall petition the Defendant
states that he believes that the Plaintiffs committed malfeasance,
misfeasance, neglect of duty, and/or incompetence.

2. A recall election is a special, extraordinary, and unusual proceeding. As
a result, a recall election is only valid when the petition contains legally
sufficient grounds as set forth in Section 100.361. The Defendant carries
the burden to assert a legally sufficient ground. This trial court has the
jurisdiction to consider the legal sufficiency of the recall petition.

3. A court reviewing the recall of an elected municipal official cannot rule
on the truth or falsity of charges against the official. Their truth or
sufficiency is for determination by the electors alone. However, the
validity of the proceedings for recall is a judicial question that must be
decided before the electors can vote.

4. A public officer has a property right in his tenure of office, and cannot
be deprived thereof without due process of law.

5. An elected official cannot be removed unless he has committed misdeeds
having some relationship to the duties of his office.

6. Errors in judgment cannot be sufficient grounds for recall; nor can
legitimate and authorized actions, no matter how unpopular they are.

7. A statement in the petition which is nothing more than a conclusion or
opinion without any tangible basis in fact is legally inadequate.

8. In reviewing the petition it is impossible to tell what duties of the
plaintiffs under the City Charter, or any other laws, related to the charge
that they "allowed a hazardous and unlawful handling of asbestos to go
unchallenged resulting in months of possible asbestos exposure to people of
Marco Island." This ground is clearly inadequate because it does not specify
what "unlawful handling" occurred and how Plaintiffs had a duty to
"challenge" it.

9. The acts complained of concerning the Septic Tank Replacement Program
appear on their face to be petitioner's disagreement with matters of policy
and do not amount to misfeasance, malfeasance, neglect of duty, andfor

10. The Court finds that the petition, even if its allegations are true, is
not legally sufficient to require a recall election and the Motion for
Judgment on the Pleadings is granted.

DONE AND ORDERED in Chambers in Naples, Collier County, Florida, this 8th
day of December, 2006.
Ted Brousseau
Circuit Judge


  • the opinion once again validates the conclusion of many - the legal system is infested with activist judges that are unable to apply reasoning or the law - a cancer buttressed by many lawyers with no ethical or moral standards.

    hoping for a victory in this mess is like hoping for a victory in a casino. but at least in the casino there are odds.

    ps. notice the date of the decision and notice the date that it was made public.

    By Blogger mario, at Thursday, December 21, 2006 9:19:00 PM  

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