Dec 162016
 

judge_helms

by Naja Girard…….

Circuit Judge Bonnie Helms disqualified herself last Friday, without explanation, from a case she had ordered dismissed just 2 days earlier.

The case, a petition for declaratory judgment, was brought by Louise Delaney and Gail Kulikowsky, two Big Pine Key area property owners who are challenging Monroe County and FKAA over the agencies’ insistence that they sign over an easement for a portion of their yards and provide an expensive high-powered electrical connection so an onsite grinder sewage pump system can be installed on their properties.

They say they want to hook up to the Cudjoe Regional Wastewater System [CRWS] and they understand they are required to do so by law, but they want to hook-up to a gravity connection supplied by the county in the right-of-way, at the property line in front of their homes – just like the majority of homeowners in the county – and just like it says in the county code.

In their Complaint they are asking a Judge to determine the meaning of several sections of the code of ordinances that they say give them the absolute right to a connection that can be accessed via a gravity system and that they can tie into at a location on public land adjacent to their property line.

Here’s some of the County Code they are asking the Judge to interpret:

Section 20-105(e)(1) that states:

“The utility shall provide a means of connection within the public right-of-way, whether by vacuum pit or other, that abuts the property and can be accessed via a gravity system;”

Section 20-105(a) (Residential and Commercial Users) that states:

“Utility facility availability. Every user, either residential or commercial, shall have utility facilities made available to him for connection of his system in the public right-of-way, abutting his property.”

Delaney and Kulikowsky claim the county and FKAA are demanding that they give up their property rights as a condition to being connected to the CRWS system and that they are being coerced into doing that under the threat of code enforcement proceedings including $100 a day fines and liens being placed on their property.

They also argue the county can only use someone’s private property, instead of the right-of-way, when the property owner requests it.  Delaney and Kulikowsky say they did not make such a request and any requirement for an easement amounts to a government taking of their property that must be compensated for under constitutional law.

Their lawsuit, which is a declaratory judgment action, is a special type of proceeding meant to determine the rights of parties that are involved in a controversy before anyone’s rights are actually violated.

Judge Helms’ Order came after the county and FKAA asked for dismissal, stating the complaint violated a procedural rule that requires “short and plain” allegations.

In her Order of Dismissal Judge Helms refers to the facts being “too well hidden by and irretrievably intertwined with surplusage.” (irrelevant to the cause of action) and said the Complaint was written more in the form of a legal brief than a Complaint and was not plain and simple enough to be in conformity with the rule.

Delaney and Kulikowsky’s attorney, Kevin Michael Hoyes, filed a Motion for Rehearing on Wednesday arguing that Judge Helms was mistaken. He says declaratory judgment actions are unlike other forms of litigation and require very precise elements and allegations in the Complaint. He says the Complaint as drafted contains precisely the type of allegations that are required by the rules of procedure and by Florida Supreme Court jurisprudence for declaratory judgment actions.

He asks that Judge Helm’s Order be vacated and that the county and FKAA be required to file their Answer within 10 days.

In the alternative, he asks that the new Judge, yet to be assigned to the case, amend the Order of Dismissal.  He argues that Judge Helm’s Order lacks specific criteria and should be amended to include information on exactly what rule has been offended and what element has been omitted so that an amended Complaint can be successfully drafted.

Here is the complaint that was dismissed by Judge Helms:

Download (PDF, 2.2MB)

 

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Naja Girard
 December 16, 2016  Posted by at 12:52 am Naja and Arnaud Girard, News  Add comments

  8 Responses to “Judge Disqualifies Herself From Grinder Pump Case After Entering Order of Dismissal”

  1. I was at that hearing and IN MY OPINION I felt that at times the Judge (No Disrespect) ?seemed? Somewhat puzzled with what was being attempted to explain. While I have no legal training, and I’m also impacted by the County’s attempts at stealing my property, I totally understood that the two ladies were ONLY asking for Monroe County to tell their Contractor to follow the County’s ordnance. Now while the plaintiffs attorney?Possibly? Could have arranged his presentation differently I had no problem understanding that those two ladies were ONLY demanding that Monroe County Follow its own ordinces.
    OK now here I go. We all have just whitnessed practicly a year of Political shenanigans and after all the politics and my realization of the D tactics–Distort, Distract, Deceive, I’m beginning to wonder ???IF the Judges decision (NO DISRESPECT) wasn’t Politically Motivated?? I mean this wouldn’t be the first time a Local judge depending on the local electorate to keep them in office facing a totally Hot Button issue makes the Political decision and Bails out. Notice I DID NOT say she did-only wondering.
    Stay tuned.

  2. If I wanted to help with a legal donation to the two people who are standing up to these bullies at FKAA and the County ‘s mismanagement could you please provide an address or contact? Thanks

  3. I attended the hearing. The anti-pump side made clear that a declaratory judgment requires answering six questions, and thus by law cannot be simple and succinct. The County and Judge seemed to recognize this in the courtroom, and said that guidance would be given on how to tighten up the arguments a bit. I thought it no more than a procedural delay, which is bad enough–the County can do all of the “free” law it wants (at taxpayer expense) while the plaintiffs pay their own way.

    I fear that the County is intimidating our justice system. I remember how they railroaded Audlin into making the terrible injunction that ruined SUFA and ended up costing us taxpayers a million dollars over 5 years. I feel bad that the good Judge Bonnie Helms had to essentially flee this just case after making the best ruling for the anti-pumpers she could safely make.

  4. The lesson to be learned here is that it takes two days for a check to clear.

  5. The Judge woke up one night and figured out that if she used Gobblety Goop words in her decision that everybody involved in the case would be impressed with how smart she is. Sorry. It did not work. Now she has joined the Legal Idiot club. Maybe she’ll get an Emmy .

    • Don’t think that Bonny is a Political Idiot, Her action clearly indicates that she’s Just Another Political Animal. I don’t expect much out of a lot of people, cause more than likely I’ll be disappointed. I try to aim for the middle, that way there’s a lotta Cannon Fodder above and below before they get to me. Lessons well learned after 3 marriages, & 30years in the US Military. What I’m wondering is what’s Monroe County is going to do with ALL THE MONEY they’re collecting from all those LOOSERS that are being charged for processing sewage when they aren’t even connected to The Counties sewer system. I’m only 1 person that’s being impacted by this fraudulent money grab. There MUST be Thousands of Taxpayers that will be paying while Not even being connected. IF this Might be Fraud on an individual basis, what might it be IF this is impacting?Thousands? of taxpayers ? How do you spell RICO?? Am I the only one that is being impacted?? Where’s the RAGE?? It appears that The Shepple are just bending over. I know how to Hunt

  6. From a Legal standpoint, after reading the *Honestly* poorly written ?”motion” and or ? “complaint” … yes it truly is written more like a Brief as opposed to a motion. It does Not CLEARLY state the demands but instead uses a very vague use of large words trying to seem impressive when in reality, only acquired a dismissal to what Should be a Very important situation. It’s not about politics, it’s about properly addressing the matter at hand in the proper format. The judge is hands tied in improperly formatted requests. Unfortunately the defendants likely spent a Lot of money to get such a vaguely drafted brief, which should have been a motion, and from the looks of it, it probably should have been separated into more than one to better specify the demands in Each motion.
    Note to the attorney… It’s Your job to properly write a motion, it’s Not the judges responsibility to tell you how to draft a proper motion, in fact, it is illegal for a judge to do so, and removing herself from a case she is Not 100% impartial to after her First decision is not uncommon and is actually required. You need to tighten your motion up. Your motion should be Specific, can include Facts without the abundance of partial theory. And it would be appropriate if you respectfully write the improved version free of charge… Furthurmore, get to it, these things are time sensitive.