Case No: 1D20-2049 in the DISTRICT COURT OF
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Filing # 110959238 E-Filed 07/29/2020 11:17:21 AM Case No: 1D20-2049 1 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA Gary L. Koniz Petitioner/Appellant, Supreme Court Case No: SC2020-763 Vs. Circuit Court Case No: 2020 CA 1083 Appeals Court Case No: 1D20-2049 LAUREL M. LEE, et al., Respondent/Appellee. ____________________/ SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA INITIAL BRIEF OF APPELLANT GARY L. KONIZ _______________________________________________________________________________________ Gary L. Koniz 9489 Princeton Square Blvd., #815 Jacksonville, FL 32256 [email protected] (904) 730-2055 __________________________________________________________________ TABLE OF CONTENTS TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 STATEMENT OF CASE AND FACTS 2 Fla. R. Civ. P. 1.540 4 BACKGROUND – STANDARD OF REVIEW 5 ORDER DISMISSING MANDAMUS RELIEF 16 RECEIVED, 07/29/202011:18:32 AM,Clerk,First DistrictCourtofAppeal PETITION FOR WRIT OF MANDAMUS 30 CONCLUSION 43 CERTIFICATE OF SERVICE 44 CERTIFICATE OF COMPLIANCE 45 Case No: 1D20-2049 2 __________________________________________________________________ TABLE OF AUTHORITIES Fla. R. Civ. P. 1.540 Motion for Relief seeking Judicial Review of the decision of the lower Second Judicial Circuit Court’s Decision. SCOTUS Rulings: Bullock v. Carter, 405 US 134 – 1972 and Lubin v. Panish, 415 U.S. 709 in 1974, as Federal Ballot Access Election Discrimination Cases. Florida Rules of Appellate Procedure(e)(g)(h) Petitions for Writs of Mandamus and Prohibition Directed to a Judge or Lower Tribunal. Florida Statute 99.061(4)(b) Discriminating Write-In Candidate Legislation. __________________________________________________________________ STATEMENT OF CASE AND FACTS __________________________________________________________ Appellant is filing this Appeal for Abuse Of Discretion (on grounds of Clearly Erroneous Harmful Material Errors), regarding the June 8, 2020 Final Order “Dismissed With Prejudice” of his Petition For Writ Of Mandamus to cure the discriminatingly defective FS 99.061(4)(b) Election Law, by the Second Judicial Circuit Court Judge Angela C. Dempsey; (as was Transferred to her by The Florida Supreme Court on June 2nd, 2020; and subsequently erroneously misquoted and inappropriately mis-handled,) citing Clerical Transfer Errors Excluding Evidence connected with the Judicial Transfer, and other obvious Misleading Pro Se Judicial Bias Errors; for what a Judicial Misconduct Complaint was filed with The Judicial Qualifications Commission, for deliberately violating the fundamentals of fairness. And for what grievance that the Appellant is seeking a Relief of the Final Order to. Case No: 1D20-2049 3 Appellant’s point of order being in all respects, that as he paid his Filing Fees both to The Florida Supreme Court and to The Second Judicial Circuit Court, he deserves at least A Fair Hearing on The Merits of his Petition; complete with Subpoena Power for; Cross Examinations, Interrogatories, Depositions, and Affirmatives, to support and prove his case that was Dismissed With Prejudice. If errors have been committed by The Court, (as they have in this Case for Fair Identification of the Write-In Candidates,) as was indicated for by the omissions and mistakes in Judge Dempsey's Order: (1.) That arrived on the same day as the Transfer Notice, with mention of my not having paid my Filing Fee, or having issued any Summonses): "As Grounds For Dismissal With Prejudice;" that not all, if any, of my Appendices, termed Exhibits by the Circuit Court, of Explanations and Supporting Evidence to the Case; were available, or ever reviewed by, Judge Dempsey, for Just Consideration. (2.) And to point out, that Judge Dempsey denied both my Motions for Rehearing and Reconsideration, to correct each of her mistakes; and as well denied my Motion for An Alternate Judge to Recuse herself. The Court Standing On Ethical Grounds of Justice Is Obligated To Correct Itself. Wherefore: the Appellant is requesting: an Appeals Court Summary Judgment in favor of the Appellant granting Relief of the Final Order Denying his Petition for a Writ of Mandamus, and to be remanded to a different Circuit Court Judge to hear and review this Case on the Sound Basis Of Its Merits if Justice Is To Prevail. Case No: 1D20-2049 4 Fla. R. Civ. P. 1.540 - As amended through August 29, 2019 Rule 1.540 - Relief from Judgment, Decrees, or Orders (a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action. Fla. R. Civ. P. 1.540 - Committee Notes 1992 Amendment. Subdivision (b) is amended to remove the 1-year limitation for a motion under this rule based on fraudulent financial affidavits in marital cases. 2003 Amendment. Subdivision (b) is amended to clarify that motions must be filed. Case No: 1D20-2049 5 BACKGROUND ARGUMENT ______________________________________________ IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA Gary L. Koniz Petitioner, Supreme Court Case No: SC2020-763 Circuit Court Case No: 2020 CA 1083 Vs. CIRCUIT JUDGE ANGELA C. DEMPSEY CHIEF JUDGE JONATHAN SJOSTROM LAUREL M. LEE, et al., Respondent. Fla. R. Civ. P. 1.540 Appeal for Relief seeking Remand Judicial Review of the decision of the lower Second Judicial Circuit Court’s Decision The Standard of De Novo Review here is based on the Incompetent Handling of Law and Facts and for Relief of Final Order and Remand to hear and to review my Case # CA-1038; with Interrogatories, Depositions, and Subpoena Power to Summon and Cross Examine Witnesses on the most important matter of Legally Curing The Constitutional Defects involved with FS 99.061 (4)(b) to Identify The Write-In Candidates to the Voters, and as well to Educate Voters on what a Qualified Write-In Candidate is (all of what was denied me); by the arbitrary judgement of Judge Angela C. Dempsey, of my Case that was transferred to her from the Florida Supreme Court, and who rendered her decision before I even had my transfer paper work in to process and without a complete transfer of my filed Supreme Court Exhibits, (or otherwise Not Referred To). And to what that I have Case No: 1D20-2049 6 filed a Complaint about with the Judicial Qualifications Commission for Relief. The Complaint here is for Abuse of Discretion; citing Judge Dempsey’s errors in judgment, (as the Plaintiff was never provided the opportunity to correct;) citing erroneous and made-up statements not justified by the facts, and the issuance of a Ruling that was clearly unreasonable based upon the content of her dialogue; that lists numerous mis-read, mis-quoted, non-factual statement, and facetious remarks such as: (3.) “suggesting that petitioner is requesting that the Court should Order the legislature to immediately convene to change policy and establish legal right.” To what that the petitioner made No Such Claim; but only for the Court to Issue an Order of Mandamus to Compel The Florida Division of Elections (in its legal discretionary authority,) To Identify The Write-In Candidates pending a Resolution Order for the Legislature to Undertake Election Reform Policy in its 2021 Session. My request is for a Fair and Unbiased Ruling to hear and to review my Case # CA-1038; on the Basis of its Merits of Ethically Curing The Constitutional Defects involved with FS 99.061 (4)(b): as matter of Law To Resolve. And what was not being Resolved, even though rendered Unconstitutional, by The U.S. Supreme Court, and after exhaustive attempts to persuade The Florida Legislature. That I am now being forced to file a formal Fla. R. Civ. P. 1.540 Appeal Over To Vacate the Complaint of Harmful Material Errors regarding Judge Dempsey’s June 8, 2020 Dismissal With Prejudice of my Petition For Writ Of Mandamus.