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

FL Appellate Case # 5D113036
    FL Circuit court Case # 48–2011–CF–8856–O

Filed 07/17/12

COMPLAINT FOR DECLARATORY JUDGMENT

Mark E. Schmidter and Julian P. Heicklen v. Belvin Perry, Jr.

    Note: The original document is not reproducible, so this is a transcribed copy.

    COMES NOW the Plaintiff(s), MARK E. SCHMIDTER and JULIAN HEICKLEN. by and through the undersigned attorney to bring complaint to the above-styled Court of actions committed by the Defendant(s) BELVIN PERRY, JR., that entitled them to legal or equitable relief. In furtherance therefore, the Plaintiff(s) state:

NATURE OF THE ACTION

    1. This is an action for declaratory judgment pursuant to 28 U. S. C. § 2201 (a).

THE PARTIES

    2. Plaintiff MARK E. SCHMIDTER (“SCHMIDTER” or collectively  “Plaintiff(s)”) is a natural person and Florida state citizen domiciled and residing within the State of Florida.

    3. Plaintiff JULIAN P. HEICKLEN (“HEICKLEN” or collectively “Plaintiff(s)”) is a natural person and New Jersey state citizen domiciled and residing in the State of New Jersey.

    4. Defendant BELVIN PERRY, JR. (“PERRY” or “Defendant(s)”) is a natural person and Florida state citizen domiciled and residing within the territorial jurisdiction of this Court, and who is duly elected or appointed as a circuit judge under he provision of Florida state law.  PERRY is and has at all times relevant to these proceedings exercised the office of Chief Judge of the Ninth Judicial Circuit Court of Florida.

JURISDICTION

    5. Subject matter jurisdiction is vested in the Circuit Court inasmuch as Plaintiff(s) have hereunder stated a cause of action for declaratory judgment pursuant to 28 U. S. C. § 2201 (a), invoking this Court’s jurisdiction to determine a question of federal constitutional or statutory law pursuant to 28 U.S. C. § 1331.

    6. Personal jurisdiction over PERRY is vested in Florida inasmuch as PERRY is domiciled within the State of Florida, holds public office in the State of Florida, and performs his official duties, including those specifically at issue herein, within the State of Florida.

    7. Venue is vested in and proper in the Middle District of Florida, specifically the Orlando Division, because the subject mater of this action involves official action taken by PERRY within the territorial jurisdiction of this Court, within Orange County, Florida.

BACKGROUND

    8. The defendant is a duly elected or appointed circuit judge exercising authority vested under the Florida state constitution, sitting in and for the Ninth Judicial Circuit Court of Florida.

    9.  At all times relevant hereto, PERRY was and is the Chief Judge of he Ninth Judicial Circuit Court of Florida, with authority to sign administrative orders or local rules of court, violations of which are punishable by contempt.

    10. On or about January 31, 2011, PERRY rendered Ninth Circuit Administrative Order 2011-0701, entitled “AMENDED ADMINISTRATIVE ORDER GOVERNING DESIGNATED PUBLIC SPEECH AREAS ON THE MAIN ORANGE COUNTY COURTHOUSE COMPLEX GROUNDS” (the “Expressive Conduct Order”), a conformed copy of which is attached hereto as “Exhibit A” and incorporated herein by reference as if fully set forth here and at length.

    11. On or about July 14, 2011, PERRY rendered Ninth Circuit Administrative Order 2011=07-01, entitled “AMENDED ADMINISTRATIVE ORDER GOVERNING DESIGNATED PUBLIC SPEECH AREAS ON THE MAIN ORANGE COUNTY COURTHOUSE COMPLEX GROUNDS” (“Public Speech Order”), a conformed copy of which is attached hereto as “Exhibit B” and incorporated herein by reference as if fully set forth here and at length.

    12. SCHMIDTER has an interest in this cause because he was arrested, prosecuted, and sentenced for contempt for violating thenExpressive Conduct Order, and because he was trespassing from the Orange County Courthouse based upon alleged violations of the same.

    13. HEICKLEN has an interest in this cause because he was arrested, prosecuted, and sentenced for contempt for violating both the Expressive Conduct Order as well as the Public Speech Order.

    14. The Plaintiffs further claim interest inasmuch as they do and have engaged in expressive activities on the Orange and Osceola County Courthouse grounds, and desire to engage in such activities without restriction in the future.

COUNT I

DECLARATORY JUDGMENT/EXPRESSIVE CONDUCT ORDER

    15. The Plaintiff re-avers, reiterates, and incorporates by reference the averments in paragraphs 1 through 14 with the same force and effect as if fully set forth here and at length and further pleads as follows:

    16. The Expressive Conduct Order is an unconstitutional  exercise of state power inasmuch as it unconstitutionally abridges or restricts the Plaintiffs’ free exercise of rights guaranteed by the First Amendment to the United States Constitution, facially and as applied.

    17. The Expressive Conduct Order is an unconstitutional exercise of state power inasmuch as it is unconstitutionally vague, overbroad, and otherwise violates the procedural or substantive due process rights of the Plaintiffs, facially and as applied.

    WHEREFORE, the Plaintiffs demand judgment declaring the Expressive Conduct Order void and without effect under the laws and Constitution of the United States, as well as any and all other issues legal and equitable relief deemed jusg and proper.

C0UNT II

DECLARATORY JUDGMENT/PUBLIC SPEECH

    18. The Plaintiff re-avers, reiterates, and incorporates by reference the averments in paragraphs 1 through 14 with the same force and effect as if fully set forth here and at length and further pleads as follow:

    19. The Public Speech Order is an unconstitutional exercise of state power inasmuch as it unconstitutionally abridges or restricts the Plaintiffs’ free exercixe of rights guaranteed by the First Amendment to the United States Constitution, facially and as applied.

    20.  The Public Speech order is an unconstitutional exercise of state power inasmuch as it is unconstitutionally vague, overbroad, and otherwise violates the procedural or substantial due process rights of the Plaintiffs, facially and as applied.

    WHEREFORE, the Plaintiffs demand judgment declaring the Public Speech Order void and without effect under the laws and Constitution of the United States, as well as any and all other legal and equitable relief deemed just and proper.

SUDBURY LAW, FL
ADAM H. SUDBURY
Florida Bar No. 783951