Six-Figure SLAPP Suits Against Ethics Complainants Prosecuted by Florida Attorney General Ashley Moody

The Florida Attorney General is in court, seeking to force three Flagler County citizens to pay more than $311,666 because they filed Ethics Commission complaints against public officials.

Strategic Lawsuits Against Public Participation (SLAPP suits) violate Florida Statute 786.295.

I have reported what appears, to me, to be a blatantly lawbreaking SLAPP suit filed by Florida Attorney General Ashley Moody's staff to General Moody and to Inspector General Steven Rumph:

As Thomas Jefferson said, "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind" of humankind.

Footnote: yes, the citation to the pioneering treatise on SLAPP lawsuits is to a book co-written by Dr. Penelope Canan, Ph.D., who happens to be the sister of prominent St. Johns County trial lawyer and School Board member Patrick Canan.   [George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996).]. Dr. Canan's bio at the University of Central Florida states in pertinent part that the emeritus professor:

 also chaired the board of directors of the SLAPP Resource Center (2002-2009).  The latter affiliation stemmed from her 20-year collaboration with law professor George Pring on the use of civil lawsuits to silence speech protected by the First Amendment’s Right to Petition.  They named this threat to democracy “SLAPPs” (Strategic Lawsuits against Public Participation”), today an entry in the Encyclopedia of American Law.  This collaboration was also sponsored by the National Science Foundation and is summarized in their 1996 book SLAPPs: Getting Sued for Speaking Out (Temple University Press).  Today more than 25 American states and several nations have adopted anti-SLAPP laws.

-----Original Message-----
From: Ed Slavin
To: pat.gleason ; nicholas.weilhammer ; ashley.moody ; anita.patel ; steve.rumph ; Catherine.Sullivan
Sent: Tue, Mar 10, 2020 4:01 pm
Subject: Six-Figure SLAPP Suits Against Ethics Complainants Prosecuted by Florida Attorney General Ashley Moody

To: 

Florida Attorney General Inspector General Steve Rumph, AGOIG Investigations Director Catherine Sullivan and Florida Attorney General Ashley Moody

Dear Inspector General Rumph, Investigations Director Sullivan, and Florida Attorney General and Assistant AGs Moody, Gleason, Weilhammer and Patel:

1. Would you please disclose all pertinent records and investigate whether Florida's  Attorney General is prosecuting SLAPP lawsuits against three (3) citizens, seeking in excess of $311,666 in retaliation for their filing ethics complaints against Flagler County officials?
2. The Florida AG has sued Messrs Dennis McDonald and Mark Richter, Jr. and the former Flagler County Supervisor of Elections Kimberle B. Weeks, demanding they pay $311,666 for legal fees allegedly incurred on behalf of the County Attorney, Albert Hadeed, County Commissioners Charles Erickson, Jr., Frank Meeker, Nathan (Nate) McLaughlin and George Hanns.  
3. Effective July 1, 2015, Florida has strong anti-SLAPP laws. Florida Statute 786.295, which forbids SLAPP suits.
4. As The Florida Bar Journal reported:   "The 2015 Florida Legislature’s passage of C.S./S.B. 13121 expands the state’s anti-SLAPP provisions giving courts procedural tools to throw out lawsuits early if primarily used to attack comment on public matters. Prior to the bill’s passage, Florida’s SLAPP protections were sharply limited to a narrow class of plaintiffs and activities. The 2015 law (“expanded” or “new law”) extends SLAPP protections to cover private plaintiff suits and specified speech activities. ...                                   Background.                SLAPPs (strategic lawsuits against public participation)3 are legal actions brought against concerned citizens, bloggers, journalists, businesses, and other entities involved in speaking out on issues of concern to the public. In these suits, a plaintiff sues a speaker alleging defamation or other civil wrong not for the purpose of pursuing a case for damages but, rather, with the primary motivation to intimidate the target into silence by the sheer burden and expense of having to defend the suit.4If the target or others are silenced because of the lawsuit, the plaintiff “wins” in attacking defendant’s First Amendment rights and the consequence is a limited or warped debate on an issue of public concern.5 .... The bill’s language piggybacks on the general existing law but broadens the scope of SLAPP suits to include those brought by “persons” (not just governmental entities) and extends protected activities to public-issue free speech (not just petitioning activities). .... Importantly, the term “free speech in connection with public issues” referenced above is defined in paragraph (2)(a) to “mean”:  “any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.”  ....  The operative part of the new law found in paragraph (3) prohibits any “lawsuit, cause of action, [or] claim” brought because a defendant has exercised his or her “right of free speech in connection with a public issue.” ..... Once defendant shows the activity falls with the scope of the anti-SLAPP law, the burden is placed squarely on plaintiff’s shoulders to demonstrate some level of merit or “probability of success” to avoid dismissal. This makes sense because the only way a court can determine whether the suit is meritless is through an examination of whether the plaintiff has demonstrated a probability of success on the merits.45Florida’s framework, of course, lacks any special motion to strike and burden shifting. It does, however, provide for expeditious motions to dismiss and/or for summary judgment. Thus, Florida courts and parties will look to these tools to resolve which lawsuits lack merit and are subject to early disposal.                                                                                Motion to Dismiss — In reviewing motions to dismiss, the court must accept the factual allegations in the “four corners” of the complaint as true and draw all reasonable inferences in favor of the plaintiff.46 A plaintiff can overcome a motion to dismiss by simply alleging facts sufficient to state a claim plausible on its face. Despite the motion’s narrow focus, in some cases where speech is attacked, a motion to dismiss may be the best way to raise the anti-SLAPP defense.                                                The reasons are due to court decisions clarifying that dismissal based only on the pleadings is appropriate when plaintiff fails to allege enough facts to state a claim that actually is plausible on its face and that conclusory allegations or legal conclusions masquerading as facts are not entitled to an assumption of truth. 47 Also, court-developed constitutional limits impose special burdens and standards of proof on speech-related claims in defamation actions involving public figures or issues of public interest.48 Finally, some forms of speech are not actionable at law, such as, for example, statements of pure opinion; privileged statements made in the context of public proceedings and/or fair reporting; and substantially true speech or that not capable of defamatory effect. Some or all of these court-developed doctrines may support such a motion. Charles J. Morley, "Florida's Expanded Anti-SLAPP Law: More Protection for Targeted Speakers, 16 Florida Bar Journal No. 9, p. 16 (November 2016).
5. Flagler County Board of County Commissioners'  incantations of "malice" or material false statements are not proved in the record, and were the means of one political faction to intimidate another in Flagler County,  
6. Flagler County Board of County Commissioners has demonstrated animus and malice toward the three citizens being sued.  As the Eighth Circuit said in United States v. City of Black Jack, 467 F.2d 1208, 1211 (8th Cir. 1974), the law looks at "effects and not intent because clever people may easily hide their motivations."  But in this case, intent is proved by the pejoratives heaped on Ms. Weeks and others engaged in First Amendment protected activity in filing ethics complaints, including excluding her from the photo of elected constitutional officers because she was not a "team player," branding her a "bitch" they intended to "piss off" and branding three unrelated individuals as e "group" as "troublemakers," consolidating their cases in DOAH for punishment for reporting lawbreaking, e.g., to the Ethics Commission, et al.  
7. "Team player" was President Richard Milhous Nixon's damming phrase, that indicates someone who will coverup wrongdoing.  "Not a team player" denotes someone who will not commit crimes. In Abrams v. Baylor College of Medicine, 581 F.Supp. 1570, 1574 (S.D. Texas 1984), affirmed in relevant part, 805 F.2d 528 (5th Cir. 1986), the Court rejected pretexts for discrimination in refusing to send Jewish physicians to a program in Saudi Arabia, including a "team player" requirement. A "team player" does not blow the whistle or criticize management.  "Team player" is freighted with the speech-chilling implication that one is willing to "go along to get along," say what management wants to hear, and do what one is told by managers, no matter what the ethics or legality of the situation. In the political corruption case of United States v. Salvatti, 451 F.Supp. 195, 197-98 (E.D. Pa. 1978), one witness testified that "when she complained to the Mayor about Mr. Carroll's pressure, and advised him that the proposed payment to the Sylks would be totally improper and probably illegal, the Mayor chided her for not being a team player." See also Fitzgerald v. Seamans, 384 F.Supp. 688,697n7 (D.D.C. 1974), affirmed, 553 F.2d 220, 224 (D.C. Cir. 1977), reversed, Harlow v. Fitzgerald, 457 U.S. 800 (1982); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (remarks of President Nixon et al. on need to fire heroic Department of Defense whistleblower A. Ernest Fitzgerald after he testified truthfully before Congress on C-5A transport cost overruns, with Nixon saying Mr. Fitzgerald was "not a team player"); Broderick v. Ruder, 685 F.Supp. 1269 (D.D.C. 1988)(sexual harassment at Securities and Exchange Commission); Tomsic v. State Farm Mutual Automobile Insurance Co, 85 F.3d 1472, 1474 (10th Cir. 1996); Geddes v. Benefits Review Board, 735 F.2d 1412, 1416, 1420 (D.C. Cir. 1984) (Washington Metropolitan Transportation Authority considered workers' compensation claimant not a "team player"); Davis v. California, 1996 WL 271001 (E.D.Cal.1996); Schloesser v. Kansas Dept. of Health & Environment, 766 F.Supp. 984 (D. Kansas 1991); Stradford v. Rockwell International, 48 Fair Empl.Prac.Cas. (BNA) 697, 49 Empl. Prac. Dec. P 38,828,1988 WL 159939 (S.D.Ohio); Seymour M. Hersh, "Annals of National Security: The Intelligence Gap -- How the digital age left our spies out in the cold," The New Yorker, December 6, 1999 at 58, 62.
8. Here, Ms. Weeks, elected Supervisor of Elections, reported law violations, including: (a) whispered conversation about sabotaging elections by prematurely revealing votes cast before Election Day; (b) efforts to reduce the number of precincts in possible violations of the Voting Rights Act and Fifteenth Amendments.  
9. Ms. Weeks was discriminated against, subjected to retaliatory complaints and excluded from the group photo of Flagler County constitutional officers: the only elected countywide Democrat and then only one excluded from the website photos. 
10. The Attorney General's SLAPP suits are the direct and proximate result of political influence by the controlling faction in Flagler County.  
11. Our American Founders warned of factions in The Federalist No. 10; here one faction in an allegedly corrupt county has resorted to the courts and representation by the Florida Attorney General in an attempt to violate First Amendment rights.
12. Our First Amendment deserves "breathing space."  NAACP v. Button, 371 U.S. 415, 433 (1963) New York Times. v. Sullivan, 3766 U.S. 254 (1974); Gasparinetti v. Kerr, 568 F.2d 311, 314-17 (3d Cir. 1977)(illegal restrictions on policemen’s First Amendment rights); Philadelphia Newspapers, Inc. v. Hepps, 479 767, 772, 777 (1986)(O’Connor, J.)(newspaper entitled to breathing space in defamation case); Hustler Magazine v. Falwell, 485 U.S. 46, 52, 56 (1988) (Rehnquist, J.) (magazine parody of TV preacher entitled to breathing space); Keefe v. Ganeakos, 418 F.2d 359, 362 (1st Cir. 1969)(Aldrich, C.J.)(chilling effect on First Amendment illegal suspension of teacher over Atlantic Monthly article on Vietnam War); Parducci v. Rutland, 316 F.Supp. 352, 355, 357 (M.D. Ala 1970)(Johnson, C.J.)(chilling effect in illegal firing of English teacher over Kurt Vonnegut’s Welcome to the Monkey House.
13. Despite constitutional law demanding that the First Amendment deserves "breathing space," is the Flagler County Commission is abusing Florida's administrative law to punish what its lawyers derisively term "a small group of people?" 
14. As Justice Robert Houghwot Jackson wrote for the Supreme Court, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
15. Are the underlying Florida Ethics Commission petitions for fees redolent with actual malice and willful disregard of the truth toward the complainants?  See  https://drive.google.com/open?id=1Wlk7225mwFBAwpF-K6xU1zoerSTeRN6-. and links below from Florida Elections Commission; I am still awaiting documents requested last month from Flagler County Commission.  
16. Were the Florida Elections Commission's SLAPP orders contaminated by denial of a right to be heard before petitions were dismissed?   Please review the record, including denial of a right to appear by telephone to distant citizens haled into the unfair forum of Tallahassee administrative law.  
17. Were fees inflated by Flagler County's conflicted in-house and outside counsel, or withheld or backdated, and then summarily approved by the Ethics Commission and the Florida Division of Administrative Hearings (DOAH)?   
18. Please initiate a legal audit on possible overbilling. See Charles F. Fax, "When Overbilling Leads to Disciplinary Sanctions," ABA Litigation (March 31, 2017) https://www.americanbar.org/groups/litigation/publications/litigation-news/civil-procedure/when-overbilling-leads-to-disciplinary-sanctions/
19. Requested records from the Flagler County Board of County Commissioner and its lawyers and insurance firms under F.S. 786.295 have been concealed since I requested them last month.  
20. It appears that there may be no record for pertinent putative Flagler County Board of County Commissioners decisions.   
21. Judge Learned Hand wrote five decades ago, "When a party is once found to be fabricating or suppressing documents, the natural, indeed the inevitable, conclusion is that [it] has some- thing to conceal, and is conscious of guilt." Warner Barnes & Co. v. Kokosai Kisen Kubushiki Kaisa, 102 F.2d 452, 453 (2nd Cir. 1939). As the First Circuit has held, it is only fair to "plac[e] the risk of an erroneous judgment on the party that wrongfully created the risk." Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982).... "[S]poliation evidence ... is admissible to show consciousness of guilt." United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986), interpreting F.R.Ev. Rule 404(b). 22 Wright & Graham, Federal Practice and Procedure: Evidence §§5178, 5240.See also Maguire & Vincent, Admissions Implied from Spoliation or Related Conduct, 45 Yale L. J. 226 (1935); II Wigmore on Evidence §§278(2), 291 (Chadboum Rev. 1979); 31A C.J.S. Evidence, §§ 152-3, 155, 156(1).  
22. Were citizens denied a fair adjudicatory hearing and without allowing respondents to appear by telephone?  
23. Were the FEC SLAPP orders contaminated by ex parte contacts with Tallahassee lawyer Mark Herron, formerly Chair of the Ethics Commission, who specializes in defending public officials against ethics and elections complaints, in hundreds of cases at the Florida Ethics  Commission and Florida Elections Commission? 
24. Did the Florida Ethics Commission's SLAPP orders violate citizens' First and Ninth Amendment rights and rights secured by the Florida anti-SLAPP statute are violated by the complaints filed by the AG?
25. Is The Florida AG aiding and abetting unconstitutional civil rights violations and contract violation of public policy involving Flagler County elected officials hiring Tallahassee lawyer Mark Herron to procure a precedent that would eviscerate the anti-SLAPP law and strip protection from persons filing ethics and elections complaints?  See George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996).
26. "Democracy dies in darkness."  (Washington Post motto, coined by Pulitzer Prize winning reporter Bob Woodward).
27.  "[J]ustice may not be done in a corner nor in any covert manner,' 1676 Fundamental Laws of West New Jersey, Chapter XXIII,  cited in State ex rel. Herald Mail Co. v. Hamilton, 267 S.E.2d 544 (W.Va. 1980), citing 5 F. Thorpe, American Charters, Constitutions and Organic Laws, 1492-1908 (7 Vols. 1909), at 2551.  See also Jonathan Manes, "Secret Law," 106 Georgetown Law J. 803 (2018), at https://georgetownlawjournal.org/articles/260/secret-law/pdf
28. As John Adams said, in his closing argument to the jury in defense of the British soldiers accused of murders in the Boston Massacre, "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” (John Adams, Argument in Defense of the British Soldiers in the Boston Massacre Trials, December 4, 1770).
29. Please investigate.   As a person who may wish to file ethics complaints in the future, my free speech rights are chilled by what the State of Florida is doing to Messrs. Richter McDonald, Ms. Weeks. 
30. I believe that you will agree: these unconstitutional SLAPP suits are beneath the dignity of the State of Florida, violate public policy, contrary to the genius of a free people.

Thank you.

With kindest regards, I am,

Sincerely yours,

Ed Slavin

904-377-4998

www.cleanupcityofstaugustine.blogspot.com

www.edslavin.com

-----

-----Original Message-----
From: Stillman, Kerrie
To: 'easlavin@aol.com'
Cc: Stillman, Kerrie
Sent: Thu, Feb 27, 2020 7:47 am
Subject: Response to records requests

Due to the volume of the response to your request, the records were placed in a Google Drive for easy access. The drive is accessible via this link until March 17, 2020: https://drive.google.com/open?id=1Wlk7225mwFBAwpF-K6xU1zoerSTeRN6-. Please save these records or print them prior to March 17, 2020. After that date, the records will be removed from the drive.

The drive contains responsive records for all three of your latest requests.

In addition to the records in the Google drive, there are responsive complaint records from the public hearing on fees at the Division of Administrative Hearings, which are available online. Those records are available via this link:https://www.doah.state.fl.us/ALJ/searchDOAH/docket.asp?T=2/25/2020%203:08:56%20PM.

For Ms. Weeks’ complaint against Hadeed, where Mr. Hadeed sought fees, type "16-5247" in the quick search field, found in the beige website heading. Then, click the quick search button or press enter on your keyboard. Once the case page appears, click "docket" which appears above the case information. Then, you can click on the Adobe icon to view/print documents.

For her complaint against Ericksen, where Mr. Ericksen sought fees, follow the same instructions as noted for Hadeed, except type the case number as "16-5246".