IN THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA,
ORLANDO DIVISION

RE:
MARK E. SCHMIDTER and JULIAN HEICKLEN,
Plaintiff(s)

v.

STATE OF FLORIDA
Defendant

CASE #: 6:12-CV-1102-ORL-31-KRS

Heicklen and Schmidter v. State of Florida
Appellate Case # 5D113036
changed to 6:12-cv-01102-RBD-KRS

Re: Ninth Judicial Circuit Court of FL,
 in and for Orange and Osceola Counties
Case # 48–2011–CF–8856–O

NOTICE OF MOTION
MOTION TO DECLARE UNCONSTITUTIONAL
ADMINISTRATIVE ORDER 2011-03

_________________
Julian Heicklen
Plaintiff
Counsel Pro Se
36 Rachel Immenu #2
Jerusalem, Israel   93228
E-mail: jph13@psu.edu

March 19, 2013
                                          Date      

MEMORANDUM OF LAW

A. HISTORY

Arraignment Notice
1. Plaintiff Heicklen was served with Administrative OrderS 2011-03 and 2011-07-01.
2. He purposely violated them, because he claims the ORDERS are unconstitutional.
3. On August 22, 2011, he was arrested and imprisoned.
4. On September 1, 2011, he was tried and found guilty.
5. On September 12, 2011, he was released on $12,000 bond pending appeal.
6. The appeals Court of Florida overturned the conviction based on an improper trial and that ORDER 2011=07-01 is unconstitutional.
7.He was ordered to appear for arraignment again in the trial court on February 21, 2013, based on the violation of ORDER 2011-03.
8. The arraignment order is posted in Exhibit A at: http://www.personal.psu.edu/faculty/j/p/jph13/Arraignment_response_2-14-13.html
9. He did not appear, so a warrant for his arrest was issued.

B. ADMINISTRATIVE ORDER 2011-03

10. ADMINISTRATIVE ORDER 2011-03 is posted at: http://www.personal.psu.edu/faculty/j/p/jph13/ADMINISTRATIVE_ORDER_NO_2011-03.html
The pertinent parts are:

1. The dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question,cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, shall be prohibited on the Orange County Courthouse complex grounds.

    The term “courthouse complex” and any restrictions on expressive conduct contained herein shall apply to the Orange County Courthouse complex grounds, which includes the adjacent courthouse parking garage, the courthouse courtyard, and all other grounds surrounding the courthouse, from the intersection of Orange Avenue and Livingston Street, to the intersection of Livingston Street and Magnolia Avenue, to the intersection of Magnolia Avenue and Amelia Street, to the intersection of Amelia Street and Orange Avenue, to the intersection of Orange Avenue and Livingston Street. The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds.

2. The dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, shall be prohibited on the Osceola County Courthouse complex grounds.

    The term “courthouse complex” and any restrictions on expressive conduct contained herein shall apply to the Osceola County Courthouse complex grounds, which includes the adjacent courthouse parking lot, the courthouse courtyard, and all other grounds surrounding the courthouse, from the intersection of Bryan Street and Rose Avenue, to the intersection of Rose Avenue and Patrick Street, to the intersection of Patrick Street and Bryan Street, to the intersection of Bryan Street and Rose Avenue. The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds.

12. In essence, the ORDER prohibits distribution of printed material on the Orange County Courthouse complex grounds.

United States v. Grace
13. In United States v. Grace, 461 US 171 (1983), the U. S. Supreme Court declared U. S. Statute 40 U. S. C. § 13k, which permits banning pamphleteering on court plazas,   to be unconstitutional.
14. Furthermore the Court proclaimed that free speech on court plazas could not be banned by court order, but only “...that those sidewalks, like other sidewalks, are...subject to reasonable time, place, and manner restrictions, either by statute or by regulations issued pursuant to 40 U. S. C. § 13l.”

The court concluded:

“But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant's freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant's conviction for violating the statute as so applied and enforced must be reversed.”

“For the reasons discussed above the judgment of the Supreme Court of Louisiana is reversed.”

“Based on its provisions and legislative history, it is fair to say that the purpose of the Act was to provide for the protection of the building and grounds and of the persons and property therein, as well as the maintenance of proper order and decorum. Section 6, 40 U. S. C. § 13k, was one of the provisions apparently designed for these purposes. At least, no special reason was stated for its enactment.”

“We thus perceive insufficient justification for § 13k's prohibition of carrying signs, banners, or devices on the public sidewalks surrounding the building. We hold that under the First Amendment the section is unconstitutional as applied to those sidewalks. Of course, this is not to say that those sidewalks, like other sidewalks, are not subject to reasonable time, place, and manner restrictions, either by statute or by regulations issued pursuant to 40 U. S. C. § 13l.”

16.  JUSTICE MARSHALL, concurring in part and dissenting in part:

“I would hold 40 U. S. C. § 13k unconstitutional on its face. The statute in no way distinguishes the sidewalks from the rest of the premises, and excising the sidewalks from its purview does not bring it into conformity with the First Amendment. Visitors to this Court do not lose their First Amendment rights at the edge of the sidewalks any more than "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 506 (1969). Since the continuing existence of the statute will inevitably have a chilling effect on freedom of expression, there is no virtue in deciding its constitutionality on a piecemeal basis.”

Conclusion
17. Therefore ADMINISTRATIVE ORDER 2011-03 should be void, and there is no basis for a contempt trial.

C. MOTION TO DECLARE UNCONSTITUTIONAL
ADMINISTRATIVE ORDER 2011-03

18. Plaintiff Heicklen moves that the COURT declare ADMINISTRATIVE ORDER 2011-03 to be unconstitutional, because it conflicts with a decision of the U. S. Supreme Court.

AFFIDAVIT AND CERTIFICATE OF SERVICE

    Plaintiff Heicklen certifies under penalty of perjury, that PLAINTIFF’S NOTICE OF MOTION and MOTION are not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.  The sole purpose is to obtain supporting information, so that Plaintiff can prepare a compelling argument..

    Defendant further certifies that Plaintiff Heicklen’s NOTICE OF MOTION and MOTION were sent on March 11, 2013, to the following:

Office of the Attorney General, State of Florida, The Capitol, PL-01, 400 S. Monroe Street, Tallahassee, FL 32399-1050400
James Moses: jmoses@fisherlawfirm.com
John Edward Fisher: fisher@fisherlawfirm.com
Adam Sudbury: Adam.Sudbury@SudburyLaw.net
Mark Schmidter: Prisoner 13006447, Cell: G-DORMA, Orange County Corrections Department, 2450 33rd Street, Orlando, FL 32839, United States


______________________
Julian Heicklen
Plaintiff
Counsel Pro Se
36 Rachel Immenu, #2
Jerusalem, Israel 93228
jph13@psu.edu

March 19, 2013
Date