IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, STATE OF FLORIDA Civil Division

Collette, v. Obama, et al Case Number: 512012CA 2041WS Hearing Date: July 10, 2012 Time: 3:30 pm Room: J2

Plaintiffs Supplemental Brief in Opposition to Motions to Dismiss I, Jerry Collette, plaintiff, hereby supplement my opposition to dismiss, filed on June 18, 2012, as follows: With respect to my right to bring my claim: I Have a Right to Bring My Causes of Action The Florida Appeals court said, in GBB Investments, Inc. v. Hinterkopf, 343 So. 2d 899, 900-901 (1977): Article I, Section 21, Florida Constitution (1968), expressly provides: "Access to courts. The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." This constitutional right has roots deep in Anglo-American legal history dating back to the Magna Charta. Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928). It first appeared in Florida in the 1838 Florida Constitution and has been retained in every constitutional revision since then. It guarantees to every person the right to free access to the courts on claims of redress of injury free of unreasonable burdens and restrictions. Any restrictions on such access to the courts must be liberally construed in favor of the constitutional right. Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974). [footnotes omitted] In Swain v. Curry, 595 So. 2d 168, 174 (Fla. App. 1992), the court said: This provision, dating from our 1838 constitution, was intended to give life and vitality to the maxim: "For every wrong there is a remedy." Holland v. Mayes, 155 Fla. 129, 19 So.2d 709 (1944).

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See also, Doyle v. City of Coral Gables, 33 So.2d 41, 42 (Fla. 1948). In DR Lakes, Inc. v. Brandsmart USA, 819 So. 2d 971 (Fla. App. 2002), the court said: After all, the "right to go to court to resolve our disputes is one of our fundamental rights." [citation omitted] In Psychiatric Associates v. Siegel, 610 So. 2d 419, 424 (1992), the Florida Supreme Court said: The history of the provision shows the courts' intention to construe the right liberally in order to guarantee broad accessibility to the courts for resolving disputes. [footnotes omitted] That my causes of action are novel should not be a bar to my being able to proceed with them. 55 Fla. Jur 2d Torts 5 (2012) makes the point very clearly: In fact, it has been stated that the law guarantees every person a remedy when he or she has been wronged. ... it is generally recognized that if the plaintiff is shown to have suffered a wrong, the mere paucity of cases or absence of any precedent does not constitute sufficient reason for refusing relief if a sound principle of law can be found which governs, or which by analogy ought to govern. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy. That a tort action does not fit into a nicely defined or established cubbyhole of the law does not warrant, in itself, the denial of relief to the one who is injured. [footnotes omitted] As stated in 86 C.J.S. Torts 13 (2012): ... the fact that there is no direct precedent involving the protection of a precisely similar right, or the recognition of an identical duty, is not conclusive against the existence of a tort. [footnote omitted] Should the court not recognize my right to proceed in this matter, it will establish, as a consequence, a privilege or immunity to the defendants and others that they can place unqualified candidates onto Florida ballots, and even into elected office, with virtual impunity. E.g., Clark v. Associated Retail Credit Men, 105 F. 2d 62, 64 (D.C. Cir 1939). Courts need to be alert to adjust their views about torts so as to be able grant relief where necessary. E.g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388 (1971). Applying the foregoing to my case, I have properly brought actionable claims before this court and am entitled to proceed.

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With respect to the implied right that I claim: Implied Rights Are Regularly Recognized by Courts Courts routinely recognize and protect rights that are not specifically enumerated, but implied. For example, in discussing the federal privacy right, the Florida Supreme Court stated, in Stall v. State 570 So.2d 257, 264 (1990): privacy is an implied right arising not from any written source, but from the penumbras or "shadows" of the Constitution. Nowhere in the entire text of the federal Constitution does the word "privacy" appear. [citations omitted] Courts now recognize a right to be free from bad faith prosecutions. E.g., Shaw v. Garrison, 467 F.2d 113, 120 (5th Cir. 1972). The U.S. Supreme Court, in Faretta v. California, 422 U.S. 806, 819 (1975), discussing the implied constitutional right of self representation, stated: Although not stated in the [Sixth] Amendment in so many words, the right to selfrepresentationto make one's own defense personallyis thus necessarily implied by the structure of the Amendment. [footnote omitted] No strain of the logical mind is required to reason that the eligibility requirements set forth in the federal constitution give all citizens, by implication, the right to not be governed by anyone who does not meet them. Accordingly, my claim of an implied right is not a bar to my causes of action proceeding on the merits. With respect to my implied cause of action: Courts Regularly Recognize Implied Causes of Action Implied causes of action have long been recognized in this country. In Marbury v. Madison, 5 U.S. 137, 162-163 (1803) the court said: If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

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In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law. In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded." And afterwards, p. 109. of the same vol. he says, "I am next to consider such injuries as are cognisable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognisance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognisance of the common law courts of justice; for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress." The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. Implied causes of action are now sometimes called Bivens claims, named after Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388 (1971). As stated in Moore v. Vadler, 65 F.3d 189, 195-196 (D.C. Cir. 1995), many courts now use, as a standard for whether or not to recognize a Bivens claim: ...whether the conduct of which the plaintiff complains violated clearly established law.'" Kartseva v. Department of State, 37 F.3d 1524, 1530 (D.C.Cir.1994) (quoting Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). The eligibility requirements for federal office are certainly established. Thus, this court should recognize my claim. The U.S. Supreme Court stated, in Allen v. State Board of Elections, 393 U.S. 544, 557 (1969): a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. The federal eligibility requirements were clearly passed to protect the citizens who are not part of a usurpation from anyone taking office who does not meet them. As stated by Chief Justice Holt, in his famous dissent in Ashby v. White 92 ER 126, 139 (1703), the decision of which was reversed (and, accordingly, Justice Holts dissent was upheld) by the House of Lords:

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To allow this action will make publick [sic] officers more careful to observe the constitution . Therefore, my case should be allowed to proceed, on the merits. With respect to my cause of action for negligence per se: My Complaint Contains All of the Required Elements of Negligence Per Se The Florida Supreme Court stated, in DeJesus v. Seaboard Coast Line Railroad Company, 281 So. 2d 198, 200 (1973): The law of the State of Florida on violations of statutes as negligence per se is hardly crystal-clear. To avoid any further confusion, we must clarify the question certified to us in this case. The DeJesus court went on to say, at 201: negligence per se is a violation of any other statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury. See 65 C.J.S. Negligence 19(3). Applying this to my case, I stated, in paragraphs 65 and 66 of my complaint:
65. Defendants owed a duty to plaintiff to ascertain that defendant Obama

meets the Eligibility Requirements.

66. Defendants owed and owe a duty to plaintiff to not advance the candidacy

of defendant Obama for President of the United States when he does not meet the Eligibility Requirements. The DeJesus court went on to say, also at 201: It must also be established by a plaintiff that he is of the class the statute was intended to protect, that he suffered injury of the type the statute was designed to prevent, and that the violation of the statute was the proximate cause of his injury. Applying this to my case, I stated, in paragraphs 73 and 74 of my complaint:
73. Plaintiff is in the class of persons that the Eligibility Requirements were

designed to protect.

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74. Plaintiff is informed and believes that the actions of defendants which

were and are violative of the Eligibility Requirements are the cause of injuries to plaintiff. Accordingly, I have properly pled the required elements of negligence per se. With respect to monetary damages: I Am Entitled to Monetary Damages At the very least, I am entitled to monetary damages in a nominal amount. As stated in 22 Am. Jur. 2d Damages 15 (2012): Nominal damages are recoverable whenever there is a breach of a legal duty or the invasion of a legal right, and no actual damage results or is proved. [footnotes omitted] Applying this rule to my case, I am entitled to recover monetary damages. With respect to venue: Pasco County Is a Proper Venue In my opposition to dismissal, I cited McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 509 (Fla. 4th DCA 2010), which referred to and quoted from a ruling in Tucker v. Fianson, 484 So. 2d 1370 (Fla. 3rd DCA 1986). At 1371, the Tucker court said: ... a claim for tort arose where the harmful force first took effect, or where the plaintiff suffered injury. The Tucker court, at 1372, went on to draw a simple illustrative analogy (which was quoted by the McDaniel court at 509): while lawyer Tucker negligently shot his arrow into the air of Broward County, it did no harm and had no effect until it fell to earth in Dade. It is therefore here [in Dade County] that he must answer for his asserted error. Applying this same reasoning to my case, Pasco County is a proper venue.

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Respectfully Submitted, June 26, 2012

Jerry Collette Plaintiff Pro Se PO Box 3664 Holiday FL 34692 727-457-0300

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, STATE OF FLORIDA Civil Division Collette, v. Obama, et al Case Number: 512012CA 2041WS

(Proposed) ORDER Defendants motions for dismissal and change of venue are DENIED. July 10, 2012

________________________________ Stanley R. Mills Judge of the Circuit Court

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Proof of Service I certify that copies of the Plaintiffs Supplemental Brief in Opposition to Motions to Dismiss and Proposed Order have been furnished to defendants by email delivery to Mark Herron, counsel for defendants on June 26, 2012. Jerry Collette, Plaintiff Pro Se

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