Feb 032017
 
Boettger

Rick Boettger

by Rick Boettger…….

Judge Koenig Supports Self-Recused Judge Helms, Requiring a 3rd Amendment of Plaintiffs’ Case

The installation of grinder pumps up the Keys in many homes that should have gravity systems has gotten a dedicated group of citizens to the barricades. In my mind, there is no doubt this was a foolish and illegal decision made by FKAA and the County. The Dump the Pumps group simply wants a judge to look at the same statutes that I’m looking at and agree that gravity, not grinder pumps are required. The folly of installing pumps dependent on electricity on private landowners’ property, which are useless when the power dies and wear out regularly, is prima facie evident, and wise statutes enforce the proper use of gravity systems. I believe any judge who actually gets to the stage of reading the statutes will agree.

I’m sure FKAA and the County know this as well. Thus, they are using the power of their “free” government legal team to drag the case out as long, and as expensively for the Citizens (both in opposition and us Monroe taxpayers), as they can. They moved to dismiss the anti-grinder suit on a number of grounds: not simple enough, not specifying who is the worse guy (FKAA or County), arguments too confusing, and no harm done yet.

The prior judge, Bonnie Helms, ruled for the government and promptly, without explanation, recused herself from the case (I doubt we’ll ever know why). The anti-grinder plaintiffs brought their case before the new Judge, Timothy Koenig, hoping for a different ruling in their favor. Judge Koenig is a legal heavyweight. I strongly believe he will rule against FKAA and the County once he can address the merits of the case.

But he ruled in favor of his fellow judge in Court yesterday morning. Basically, he said that Judge Helms’ ruling was a middle-of-the-road decision, not dismissing the plaintiffs with prejudice (which would have ended the case, pending appeal), nor moving the case forward to judgment on the merits. Instead, the plaintiffs have to re-amend their case and try again. He said Judge Helms’ interpretation of the central precedent case, Barrett v. City of Margate (Margate), was reasonable enough that her judgment had to prevail. The only cause for his over-ruling her would have been clear error, and, I have to agree, that high bar was not met.

What I have my differences on in regard to this precedent is that both judges referred to the “surplusage” problem in Margate, which they said applied to this case. I looked up Margate and see what they mean by “surplusage, though that term is not actually used in the ruling. The cases have one vast difference: Mr. Barrett was filing pro se, without an attorney, and had filed three complaints “manuscript in size” and “convoluted, verbose, narrative-style pleading, coupled with their refusal to comply with . . . the trial court’s directives . . “

This is nothing like the case presented by Attorney Kevin Hoyes, a capable local professional. His points are precise and to the point. By law he has to establish six elements, and I feel he did so with an economy of style. There is no way the government lawyers have any trouble understanding any of his non-existent “surplusage.”

Honestly, their case is simpler than my own pro se case against the City of Key West to re-open the cemetery gates. I wrote twice as much on a much simpler case, counting my supporting briefs (indeed “manuscript” sized).

Fortunately, when the Court got to ruling on my own objection to the government’s violating its own statutes, justice prevailed and I won, taking 8 months and four appearances before Judge Jones. I have every confidence justice will prevail in this case as well. Frankly, the Courts are the only part of the American governmental system I have any faith in at all. Let us beseech the heavens . .

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Rick Boettger
Rick Boettger had a Top Secret security clearance in the Army and studied nuclear chemistry at MIT and law at Yale before getting a PhD in business at Berkeley. He earned tenure as a business professor at TCU in Fort Worth before going to Moscow as a Fulbright Professor, writing a book on the economy, hosting a semi-national talk radio show, and retiring to Key West in 1996 at the age of 48. Since then he has worked part-time as a tax and financial advisor, and has been doing investigative journalism since he began at the Blue Paper in 2007​. He is very happily married to his superb copy-editor Cynthia Edwards, the former long-time PIO for the Key West Police Department.
 February 3, 2017  Posted by at 1:10 am Issue #204, Rick Boettger  Add comments

  5 Responses to “Anti-Grinder Pumps Face More Legal Hurdles”

  1. Dear Rick, I’m one of those people who are Fighting the County over THEIR sewer system, the Infamous CRWS. There are way to many Misconceptions about this project and Kurt Zeulch’s position Or LACK OF with regards to the CRWS. I’m a Retired SENIOR CONTACT FIELD REPRESENTATIVE with the FKAA. The public has been Misled by Monroe County into believing that every time Kurt Zeulch speaks about the CRWS, Kurt is speaking as the Executive Director of The FKAA, NOT as a GENERAL CONTRACTOR. All correspondence coming to you on FKAA Letterhead is because Monroe County has directed their General Contractor Kurt Zeulch to send the County’s directions to y and the county is paying Kurt to do this. The county ordinance MANDATES that I be connected to THEIR sewer system by 12December2017. Those same County Ordinances MANDATES that the COUNTY PROVIDE me with A GRAVITY CONNECTION AT THE PROPERTY LINE/ROW. As of this moment Monroe County has NOT directed or paid their Contractor(Kurt Zeulch) to follow Monroe County’s own ORDINANCES and provide me with a gravity connection.
    Because of Monroe County’s Inaction in following their own ordinances they have made me a LAW BREAKER.

  2. It is important to note that Dump the Pumps, Inc. is NOT a party to this legal action! A class action suit by DTPI may occur in Federal court, claiming illegal takings in violation of the 5th and 14th Amendments to the US Constitution, but the interested national law firm wishes to avoid what might be seen as a parallel action, so that class action is on hold.

    The legal expenses to date have been fully provided by the plaintiffs, except that three attorneys have provided pro bono research and draft document preparation. The litigating attorney Kevin Hoyes bills for his time and the plaintiffs have been footing the entire invoice, already totaling several thousand dollars.

    Their personal property rights have that much value to them that the plaintiffs have been fighting the extortion of those rights with their own cash assets.
    One of the two plaintiffs has sold the property and will be living at the far corner of the 48 states. She has had enough of Conch Republic “law”. That leaves Louise with the full burden of cost of fighting the bottomless barrel of County legal defense funds. Many would like to contribute, but so far the means has not been established to do so without having the donation taxed as income. Mr. Hoyes indicates that he cannot directly accept contributions to the legal costs on behalf of the plaintiff. If someone knows how contributions to Louise’s legal costs can be made and not counted as taxable income, I am sure she would appreciate help.

    Since the entire Declaratory Judgement simply asks that the County/FKAA abide by their own laws/rules (and incidentally the Constitutional Rights of all Americans), it seems to me that the State Attorney should rightfully be investigating this. However, the State Attorney General’s website stresses that their office exists to defend the State against anybody, and individuals only against private entities (not State entities like FKAA)

    • Thank you for your knowledgeable comment, JW. Especially the distinction between this private action and ensuing suits by the organization as a class.

      When Catherine Vogel was SA, she would have investigated the County Clerk and Administrator for the misdemeanor crime of releasing the preliminary audit of SUFA, except I missed the statute of limitations by two months. Normally, the police file a request of some sort with the SA for them to initiate action. Linda Gottwald had mentioned the crime of early release of the audit, but then-SA Dennis Ward took no action. This may have been an error on his part, or it actually was necessary for me (or Linda) to have lodged the formal request. However, I suspect that willful misprision of statutes is NOT a crime.

      Two cases I was involved with were the height violations at old Watermark and the aforementioned cemetery. Both cases relied upon the government’s being held to follow the law. They have discretion in interpretation, but cannot simply disregard the plain meaning of the law, as my cases as well as this one.

      The only way to avoid taxation I can think of would be to add a number of plaintiffs with low reportable income to the suit. They can collect the contributions, pay little or 10% tax on them, and pay Kevin (run this by him–it may cost more to add more plaintiffs). Also, you know attorney’s fees are deductible on Schedule A as miscellaneous above 2% of income. This would eliminate the tax for anyone with a mortgage, thus using Sch A, itemized deductions.