IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT
IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
JOHN B. THOMPSON,
Petitioner,
v.
CHIEF JUDGE JOSEPH P. FARINA,
JR.
DAVA J. TUNIS,
Respondent.
PETITION FOR WRIT OF QUO
WARRANTO
COMES NOW petitioner, John B. Thompson (Thompson), and files
this petition for a writ of quo warranto against respondent, Dava J.
Tunis (Tunis), stating:
THE PARTIES
Thompson is a citizen of the United States, a resident of
Miami-Dade County, Florida, more than eighteen years of age, and a lawyer in
continuous good standing with The Florida Bar for thirty-one years.
Tunis claims to be a citizen of the United States, claims to
be a resident of Miami-Dade-County, Florida, most assuredly is more than
eighteen years of age, has been admitted to practice law since 1986, has
Bar Number 559271, and is currently occupying, illegally, the office of Circuit Court
Judge in the Eleventh Circuit Court of Florida.
Tunis is also illegally ensconced in the office of "referee"
in certain disciplinary matters brought before her by The Florida Bar against
petitioner. She was appointed to that formal office by Eleventh Circuit
Court Chief Judge Joseph P. Farina, Jr.
JURISDICTION
Florida Rule of Civil Procedure 1.630 gives this court
subject matter jurisdiction over this quo warranto petition. Judge Farina is the jurist who should and
must preside over this matter because he is a) the Chief Judge of this Circuit,
and b) he appointed Tunis, improperly, to this formal office of referee.
Also, as Chief Judge, he has a supervisory duty to assure that any person
sitting as a judge, at any level, or as a referee, in this Circuit is legally
authorized to do so. Tunis, who is under his supervision in these
regards, is not legally authorized to sit as a judge, as well as thus not being
authorized, by law, to serve as a referee. Judge Farina put this person,
improperly, in this office as referee. He is the one who should remove
her, now that it is known that she has no authority to act under color of state
law in any capacity.
There is no "Clerk's Office" for Bar disciplinary
matters, and thus the only way to file such a quo warranto petition
pertaining to a matter such as this is by providing it to the Chief Judge who
appointed the referee. Petitioner now does so and certifies that he has
done so on March 26, 2008.
VENUE
This is the appropriate venue, as the Chief Judge and both
parties reside in this judicial circuit.
FACTS
Florida Statute 876.05, et sequitur, held
constitutional by the United States Supreme Court in Connell v. Higginbotham,
403 U.S. 207 (1971), mandates that in Florida all state, county, and
municipal public employees, including judges, must timely execute a valid "loyalty
oath" as defined precisely by the statute and then file it.
Otherwise, the noncomplying public employee or public official must be
terminated as improper and illegal holders of that office.
Florida's loyalty oath laws are not quirky or peculiar to
this state. Article 6 of the United States Constitution requires such oaths
of all state officials, including judges, and thus Florida's laws in this
regard are in response to this federal mandate.
Numerous formal opinions issued by Florida's Attorney
General explain fully Florida Statute 876.05 and why and how it must be adhered
to. See, for example, Attorney General Opinion 96-41.
Dava J. Tunis, who purported first to be a county court
judge and then a circuit court judge and who holds others accountable for their
violations of the law, has NEVER complied with Florida
Statute 876.05, et sequitur, in that she has never executed and filed a
valid State Loyalty Oath. Those
who apply the law to others should by it.
Upon purportedly assuming the office of county court judge,
the only loyalty oath filed with her name on it was forged.
This is so clearly the case that Chief Judge Farina has initiated a criminal
investigation of this forgery brought to his attention by petitioner
Thompson. Since Tunis' judicial career began with a forgery, all that has
flowed since is legitimately suspect, and now it is known that it should be
suspect for reasons other than just the forgery.
Tunis, who was elevated to the Circuit Court bench by
Governor Bush, then appears to have executed two subsequent loyalty oaths
neither of which complies with the mandate of the statute in that a) the
language of the oaths executed does not track the statute, as required, and b)
the oaths were not executed before an officer authorized to administer an
oath. Both breaches of the law are fatal to her continuing to "hold"
office, and they are consequential in other regards beyond the effect of this
sloppiness to the career of this "judge."
Any student of our system of law knows that deterioration of
the significance and efficacy of oaths, generally, leads to a breakdown of our
entire system of jurisprudence.
For example, if a witness can testify without swearing under
oath that he will tell the truth, then there is no remedy for his or her
telling of falsehoods. Similarly, constitutional officers who do not
bother to properly swear loyalty to uphold our constitutions and our laws a)
cannot be counted upon to do so, and b) obliterate the enforcement mechanisms
for breach of their oaths. An oath not taken is not an oath that can be
enforced.
Any lawyer, let alone any judge, who does not know all this
and in this instance a judge who was demonstrably receiving taxpayer funds in
the form of a salary from the State of Florida first on the basis of a forged
loyalty oath and then on the basis of unsworn and defective oaths is not
someone who ought to be presiding in a system of justice that rests
inextricably upon oaths. This is a "judge" who sees oaths
administered every day in her courtroom, yet she has somehow missed the
important of oaths.
Indeed, the conduct of Tunis while discharging her duties as
referee serves to corroborate the fact that this is a "judge" who has
little if any understanding of the law, of the constitution, and of the
requirements of judicial office. This
is a judge, as a referee, who has repeatedly displayed an utter disregard for
our laws and constitutions. She has, for example, refused to discharge
the purely ministerial function of issuing subpoenas in the Bar proceedings,
apparently because she feels she is not bound by the law. Apparently failing
to swear loyalty to our laws and constitutions has a liberating effect.
This is a "judge" who obviously has loyalty to The Florida Bar but
none to our Constitution. It makes perfect sense that she has not
effectually sworn loyalty to the latter.
It is not surprising, then, that Tunis does not appreciate
the importance of complying with the indispensable, core obligation to swear
loyalty, under oath, to the laws and constitutions that bind her. Indeed,
having never effectually sworn such loyalty, she is not bound by these
constraints—and acts like it.
Further, Florida Bar Rule 3-7.6 authorizes the Chief Judge
to appoint as a Bar referee only a county or circuit court judge, although the
Supreme Court's Chief Justice can appoint a retired judge as a referee.
Tunis has never, in any legal sense, been a county or a
circuit court judge, which facts gives rise to this cause of action. A
person who has not complied with the State Loyalty Oath Laws and nevertheless
acts as if she were a judge is in effect acting ultra vires and without
any legal authority to act. She cannot exercise any official duties or
powers as a county court judge, as a circuit court judge, or as a referee, as
she has failed to comply with state laws, and upon such failure she has no
authority to act under color of state law.
Dava J. Tunis is, in every sense of the phrase,
impersonating a judge, as she has no legal authority to act in that
capacity. Indeed, there are certain criminal remedies available to the
state because of a) her gross breach of the state loyalty oath laws, and b) her
unauthorized procurement and receipt of state monies with no legal authority to
do so. Petitioner leaves those remedies to others.
However, none of Tunis' orders has any force and effect, as
she has no authority to enter them anymore than any other private citizen has
authority to enter and apply judicial orders.
This is not a small matter to criminal defendants who have appeared
before and been sentenced by her. Coincidentally,
Tunis also is subject, and necessarily so, to a Florida False Claims (Qui
Tam) action for return of all salaries she has received without authority
to do so.
This, however, is not a qui tam action. This is
a quo warranto action for the purpose of securing an order from this
court that Dava J. Tunis, by virtue of her utter failure to comply with our
State Loyalty Oath Statute, a) has no authority to act as a judge, b) has no
authority to act as a Bar referee, and c) must be removed from the office she
does not validly hold, and d) all orders and other official acts entered into
by her are legal nullities and of no force and effect and must therefore be
vacated.
WHEREFORE, petitioner Thompson seeks the aforementioned
relief and any other relief this court deems appropriate. Petitioner asks
for the Chief Judge to issue a summons and to proceed with all haste to a full
determination of this matter.
DEMAND FOR JURY TRIAL
Petitioner demands a jury trial of any and all issues so
triable herein.
I HEREBY CERTIFY that I have provided a copy of this petition, as a
courtesy, to The Florida Bar, to all Bar Governors, to Dava J. Tunis, and to
the Florida Supreme Court.
John B. Thompson, Attorney,
Florida Bar #231665
1172 S Dixie Hwy Ste 111
Coral Gables FL 33146
Phone: 305-666-4366