Thompson v. The Florida Bar

Filing 389

Plaintiff's MOTION to Set Aside 347 Order Dismissing Case by John B. Thompson. (Attachments: # 1 Exhibit Letter from Florida Supreme Court, # 2 Exhibit Stay Motion Refused Filing by Florida Supreme Court)(Thompson, John)

Thompson v. The Florida Bar

Doc. 389

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA JOHN B. THOMPSON, Plaintiff, v. THE FLORIDA BAR, et alia, Defendants. PLAINTIFF'S VERIFIED MOTION TO VACATE/SET ASIDE ORDER OF DISMISSAL COMES NOW plaintiff and moves this court to vacate its dismissal of this cause without prejudice herein, pursuant to Rule 60(b), Federal Rules of Civil Procedure, stating: FRAUD BY DEFENDANT The court will recall that the defendant Florida Bar assured this court that plaintiff Thompson has an "adequate state remedy" by which to challenge the constitutionality of its attempted "discipline" of him. The Bar remarkably cited the Mason v. Florida Bar case, which is Document #69 filed in this case, to assure this court that all of Thompson's constitutional concerns would be addressed by the state, which included his right, according to the federal court in Mason, to have these constitutional issues, including Thompson's First Amendment rights to engage in petition speech, heard by the Bar's Board of Governors prior to Thompson's Bar trial. Once The Bar secured a dismissal in this cause by abstention and upon citing Mason toward that end to this federal court, Thompson asked for his guaranteed audience with the Governors that The Bar told this court he had a right to have. Bar President Frank Angones refused it, claiming in writing Case No. 07-21256 (Judge Adalberto Jordan)

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that no such right exists, despite what Mason says.

The Bar's lead counsel, Barry Mr.

Richard, informed Thompson, remarkably, that "Mason is wrong about that."

Richard was encouraged by Thompson to share that with this court, and he refused. It was the old "bait and switch" and it is fraud. But at least, this court reassured itself, Thompson would have the opportunity to share his constitutional concerns with the Florida Supreme Court eventualy, right? Wrong. Attached hereto as an exhibit is a July 3, 2008, letter from the Florida Supreme Court's Clerk Thomas Hall, who literally acts as if he were the High Court's eighth Justice, who informs Thompson that the court will not entertain even a stay of these disciplinary proceedings pending a consideration by the High Court as to whether The Bar is out of control in seeking to infringe upon the First Amendment rights of lawyers. It will not, in fact, even file the motion for stay. It has threatened Thompson with criminal contempt if he files anything with the state Supreme Court. Thompson's also attached motion to stay sets forth why there should be a stay in light of the Supreme Court's own show cause order giving The Bar until July 14 to explain itself in light of the First Amendment, as to its attempted discipline of Broward Attorney Sean Conway. A review of the attached motion to stay makes it abundantly clear that if Mr. Conway has First Amendment rights to call a state judge a mental case and a witch, then Thompson occupies an even higher rung on the constitutional ladder of First Amendment protection for all the reasons stated therein. Nevertheless, the Supreme Court, by Mr. Hall's letter, informs Thompson that whereas Mr. Conway may have First Amendment rights, Mr. Thompson's are of no concern to it. Any rational and fair court would say, "Let us see what The Bar is about in

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these regards and lay down some rules for all." But no, the High Court has entered what amounts to a Bill of Attainder as to Thompson: Others may have constitutional rights, but not Mr. Thompson. He cannot even assert them. He cannot even file them. And as an aside, the Florida Supreme Court itself directly engages in fraud when it says there is a legal basis for it to deny a Bar respondent the opportunity to defend himself in the disciplinary matters before it. There is no such legal authority for that, and the court's citing of its own cases shows they are wildly inapposite. The carving out of this Thompson/Constitution exception, particularly in light of the grandly fraudulent citing of Mason, constitutes fraud upon this federal court by the Florida Supreme Court through its "official arm," The Florida Bar. Neither The Bar nor its parent, the Supreme Court, has any intention whatsoever of affording Thompson an adequate state remedy in any regard, not even as to what the US Constitution may or may not protect. It matters not to the Florida Supreme Court that Thompson, unlike Conway, did not ridicule any judge's "integrity" or "qualifications." Thompson simply criticized, for example, Miami-Dade Judge Ron Friedman, for announcing his decision in a case he had yet to hear. The Third DCA reversed Friedman twice for doing that to other litigants. So, if Thompson has no plausible First

Amendment right to say that, then surely the judges on the Third DCA must be punished by the Florida Supreme Court as well. This is the absurd place we have been taken by a Bar and a state Supreme Court that utterly refuse to entertain even the possibility that the US Constitution might apply to Thompson. This is in furtherance of a vendetta that began 20 years ago by this Bar. It has been covered up by the fact that The Bar, contrary to another lie by Barry Richard, has in

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fact brought multiple complaints against Thompson as the initiating complainant itself and not as the "honest broker" which simply processes the complaints of third parties against Thompson. This court rightly inquired about that, and The Bar lied to the court. Thompson can prove that at an evidentiary hearing that he was denied as a result of this court's premature dismissal order. But all of this "relief to Conway but no relief to Thompson" fraud has transpired after this court entered its dismissal without prejudice order. It must be set aside in light of the fact that this fraud is having an improper "prospective" impact, inequitably, upon Thompson's constitutional rights, as envisioned and prohibited by Rule 60(b)(5), Federal Rules of Civil Procedure. Is this "bad faith" and "selective prosecution" by The Bar, which this federal court addressed without seeing yet this kind of bait and switch behavior? If it is not bad faith and selective prosecution, rooted in fraud, then there is no such thing anywhere. BRIBERY AND REFUSAL TO RECUSE It is also inequitable for this court`s dismissal order to be allowed to have a continuing, prospective effect (See Rule 60(b)(5)) in light of what has amounted to bribery of the Bar's referee, Dava Tunis, a defendant herein, which has come to light after this federal court's dismissal order. A recap: Tunis' behavior was so odd at the late November/early December 2007 trial of Thompson as to raise grave questions about her fairness. After the trial, it came to light that Tunis, after she was assigned the case, a) had no valid state loyalty oath, and b) had received campaign cash contributions in the same amount on the same day from The Bar's prosecutor and from the indicted Bar Governor, Ben Kuehne, whom this court

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would not allow Thompson to talk about in an open hearing before this court. It then transpired that Tunis received yet another influence-peddling contribution, this one from Thompson's new designated reviewer who replaced Mr. Kuehne, Steve Chaykin. Thompson moved for recusal of Tunis on the basis of these timed contributions on two grounds: a) fear of fairness and b) a pecuniary interest in the outcome of the proceedings, in light of the fact that Tunis is now a personal defendant in a qui tam action arising out of her loyalty oath problems and her cover-up thereof. Tunis refuses to recuse. Contrast this with the conduct of Miami-Dade Judge Jeri B. Cohen, who now has Norman Braman's anti-megaplan suit before her. She has given back Braman his contribution, as reported yesterday in the Miami Herald. Braman gave Cohen the money before she even got the case, yet she understands the appearances problem. Tunis, on the other hand, got the above three contributions after she got the Thompson case from the three men most interested in an outcome unfavorable to Thompson. What more improper thing could Tunis have done? This federal court was asked to consider previously whether this particular referee could possibly give Thompson a fair trial. How can this court answer that question in the affirmative now? This is why relief must now be given. As if that were not proof enough that Thompson is being denied an adequate state remedy for deprivations of his federal constitutional rights, including the right to a fair tribunal as the most basic of constitutional rights, this federal court must now take notice of the fact that Tunis, despite specific prohibitions in our Florida Bar Rules, leaked to the news media "Findings" of guilt for Thompson with absolutely no findings of fact to support those findings. This is strictly prohibited by Bar Rules. She did it to maximize

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harm to Thompson without having to explain her findings of guilt. This is so clearly violative of Bar Rules that no one has ever heard of such a stunt. She then had a "sanctions hearing" at which Thompson, who was entitled to be there on his own behalf, was prohibited by Tunis from speaking. Thus, "hearing" takes on a whole new meaning when it comes to Jack Thompson and The Florida Bar. RELIEF SOUGHT WHEREFORE, Thompson seeks relief from this court in one of two forms: This court is asked to vacate and set aside its dismissal order. It is clear that Thompson has no opportunity whatsoever to raise and assert his constitutional rights and defenses to the Florida Supreme Court. There is bad faith here, selective prosecution, and what amounts to the wrongful entry of, in essence, a Bill of Attainder. This court, with all respect, improperly denied Thompson an evidentiary hearing, to which he was entitled, to prove bad faith, selective prosecution, and other egregious denials to Thompson of his constitutional rights. In a way, Thompson is glad he was denied by this court that right to an evidentiary hearing, because the smoking guns that prove just how bad this process has been are newly warmed. They tried to get away with this because they thought they were clear of this court's safeguarding of the US Constitution under 42 USC 1983. They thought their fraud would suffice. Their fraud has exposed them. Thus, the dismissal order should be vacated so that the evidentiary hearing can occur on the issue of whether Thompson is getting a fair shake from this disciplinary leviathan. Abstention was obtained by fraud, and the fraud is now patent.

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In the alternative, this federal court has the power to tell this renegade state Supreme Court that, guess what, Mr. Thompson just might be covered by the same federal Constitution that protects a wiseguy Broward attorney who called a sitting judge nuts and a witch. This solution gets around any possible abstention problem, as it would entail this federal court saying to these Justices in Tallahassee, all but one of whom, by the way, do not have a federally mandated loyalty oath on file: "You say Mr. Thompson has an adequate state remedy through which his constitutional concerns can be addressed. Prove it. Prove it by saying to Mr. Thompson that he is no less and no more than Mr. Conway. Prove it to him by giving him, at least now, the constitutional rights airing that Barry Richard of Greenberg Traurig--the same man who helped stop the 2000 recount in Florida--says Thompson had and but was denied before the Governors. Stay your march on him, at least until you figure out what the meaning and reach of the First Amendment in disciplinary matters is." If this court does not enter such an order, then Thompson will gladly deconstruct the entire Bar. In other words, with all respect for this federal court, Thompson predicted this would happen, and now it is happening, in large part because The Bar slipped the due process noose in this very same federal court through a lie. Now that The Bar and its parent have been caught shredding Thompson's constitutional rights and laughing about it, it is time for this federal court to remind the Justices in Tallahassee that even though they can't bring themselves to execute a valid oath to the US Constitution, that same Constitution still binds them, whether they like Jack Thompson or not.

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I SOLEMNLY SWEAR, UNDER PENALTY OF PERJURY, THAT THE FOREGOING FACTS ARE TRUE CORRECT AND COMPLETE, SO HELP ME GOD. I HEREBY CERTIFY that the foregoing has been sent electronically this July 7, 2008, to record counsel herein.

_____________________________ JOHN B. THOMPSON, Plaintiff Attorney, Florida Bar #231665 5721 Riviera Drive Coral Gables, Florida 33146 Phone: [phone] [e-mail]

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