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

RESPONSE TO SUDBURY REMOVAL MOTION



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

______________
Date   

RESPONSE TO ATTORNEY SUDBURY
RENEWED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
AND TO DROP CO-PLAINTIFF HEICKLEN AS A PARTY WITH
SUPPORTING MEMORANDUM


History
1. On Jan 30, 2013, at 8:54 AM, Adam H. Sudbury wrote:

“Jamie/Julian:”
 
“We request your respective positions on our “Motion to Drop Julian P. Heicklen as Party Plaintiff” to be filed January 31, 2013 on grounds that Plaintiff Heicklen’s attempt to amend the pleadings to include Section 1983 civil rights claims for damages should be filed as a separate suit.”
 
“Please respond as soon as possible, if I do not receive a response by close of business on January 31, 2013 I will assume that you object.”

2. There were no attachments.
3. On January 31, 2013 3:11:39 PM GMT+02:00 Plaintiff Heicklen responded: “I object. What is the reason to separate?—Julian”
4. A copy of the E-mail by Sudbury and response by Heicklen is Exhibit 1.
5. Soon thereafter this was confirmed by an E-mail from the court (Exhibit 2).
6. On February 1, 2013 7:27:33 PM GMT+02:00, Plaintiff Heicklen received an E-mail from Attorney Sudbury with 2 attachments.  These were:
 1) CERTIFICATE OF SERVICE
2) RENEWED MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT AND TO DROP CO-PLAINTIFF HEICKLEN AS A
PARTY WITH SUPPORTING MEMORANDUM OF LAW


7. They are included as Exhibits 3 and 4.

Comments of “RENEWED MOTION....” (Exhibit 3)
8. In Item 7, Counsel Sudbury states: “HEICKLEN refuses to cooperate and insists that he will do whatever he wants.  It is impossible to maintain a joint action.”
9. So does Sudbury do whatever he wants.  Since we did not agree, he was removed as my counsel.
10. However I believe that it is possible to maintain a joint action.
11. He pursues an approach to get a reversal of the conviction based on procedural matters.
12. That was partially successful in the Florida State appeals court.
13. One of the court orders was declared unconstitutional, and Plaintiff Heicklen’s conviction was reversed.
14. However the other court order was not declared unconstitutional, and Plaintiff Schmidter’s conviction was allowed to stand.
15. This decision is puzzling to Plaintiff Heicklen, because, if one of the ORDERS is unconstityional, the remaing order reverts to civil rather than criminal contempt.
16. The punishment for civil contempt in Florida is explained in:

GREGORY v. RICE, 727 So.2d 251 (Fla. 1999) ANTHONY GREGORY, Petitioner, v. EVERETT RICE, Sheriff of Pinellas County, Florida, Respondent. No. 92,471 Supreme Court of Florida. February 11, 1999
Appealed from the Supreme Court, Overton, Senior Justice.

“On the other hand, the primary purpose of a civil contempt proceeding is to compel future compliance with a court order. International Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994). A civil contempt sanction is coercive in nature and is avoidable through obedience. Id. at 827.”

“In Bowen, we noted that a present ability to purge the contempt sanction is an essential prerequisite to incarceration for civil contempt. In Johnson v. Bednar, 573 So.2d 822 (Fla. 1991), we further concluded that the necessity of a purge provision in imposing a civil contempt sanction is only required where incarceration is ordered. However, after we issued Bednar, the United States Supreme Court concluded that any coercive sanction ordered in a civil contempt proceeding must afford the contemnor an opportunity to purge; otherwise, the contempt is criminal in nature and requires that all of the constitutional due process requirements inherent in criminal cases be provided to the contemnor, including, in some cases, the right to counsel and to a jury trial. See Bagwell, 512 U.S. at 829. Only if the fine is compensatory is it appropriate to dispense with a purge provision. Id. Thus, Bagwell effectively overruled our conclusion in Bednar that a purge provision is required only when incarceration is ordered.”

17. It seems to Heicklen that, since only one of the ORDERS  stands, criminal contempt against Schmidter should be modified to civil contempt, and the prison sentence nullified.
18. In this federal court, Attorney Sudbury basically is still following a procedural defense.
19. Plaintiff Heicklen approves and would like Sudbury and Schmidter to stay and pursue that course.
20. However Plaintiff Heicklen believes that a much more important issue has arisen: perjury by the four judges for declaring the courthouse plaza a non-public forum based on court decisions in Huminski v. Corsones, 396 F. 3d 53 (2004) and United States v. Grace, 461 US 171 (1983).
21. In fact both of those court decisions upheld courthouse plazas as public forums.
22. The judges were aware that they were lying, because Plaintiff Heicklen had previously notified them of their errors.
23. The notifications were Heicklen’s letter to Judge Perry of May 17, 2011 (http://www.personal.psu.edu/faculty/j/p/jph13/Perry_5_17_11.html) and submission to the appeals court of December 2, 2012 (http://www.personal.psu.edu/faculty/j/p/jph13/Punish_Judge_Perry_12-2-12.html).
24. Plaintiff Heicklen has spent much of his adult life trying to uphold the Bill of Rights and reduce government corruption.
25. This case is of the utmost importance to him, because it holds the possibility of advancing two such goals.
26. Plaintiff Heicklen believes that the two approaches by Sudbury-Schmidter and himself are complimentary.
27. He hopes they can continue to pursue the same goals by different, but complimentary, approaches.
28. In item 8, Sudbury states: “Schmidter should not be punished for Heicklen’s actions...”
29. Because of his 67 appearances at courthouses and abolishment of Regulation 41 CFR Sec 102–74.415(c) against distributing literature on federal property without a permit, Heicklen has the evidence to confirm that courthouse plazas are public forums.
30. If Schmidter separates, he may lose the possibility of introducing this evidence.
31. That might be fatal for him.
29. In Item 8, Sudbury further states that Schmidter should not be: “required to commence a new proceeding, file a new case, pay a new filing fee (for the original filing fee was paid for by SCHMIDTER), and be required to re-serve process. SCHMIDTER’s day in court would be greatly delayed.”
30. If Heicklen is dropped, he would have the same problems.
31. Since Sudbury is making the request for Schmidter, it should be he who is inconvenienced if the case is severed.
32. Regarding payment of the filing fee, it is Heicklen’s understanding that the fee was split.
33. Heicklen paid Sudbury $5000 as an initial fee for legal services.
34. He last received a financial accounting from Sudbury in May, 2012.
35. Since Sudbury withdrew as Heicklen’s counsel on December 6, 2012, he has not sent Heicklen a financial statement, a bill, nor a refund.
36. Heicklen is rather surprised about this, but had not yet raised the issue.
37. In Item 9, Sudbury states: “In addition, HEICKLEN intends to remain in Israel and refuses to return to the United States, or to appear for re- trial before the Ninth Circuit Court.”
38. Heicklen has made no such decision, since this trial is not scheduled to occur until at least February 3, 2014, and probably later, if at all.
39. Heicklen has been arrested 35 times, but only on 2 occasions has he been tried.  One of these is this case.
40. In the other case in Centre County, PA, Heicklen was found guilty, but the judge did not sign the court order, so no punishment resulted.
41. Instead the Judge issued an order to the police that Heicklen was never to be arrested again and brought to court.
42. The reason Plaintiff Heicklen has left the United States and now resides in Jerusalem, Israel has nothing at all to do with this case.
43. On New Years eve, 2012, President Obama signed the National Defense Authorization Act (NDAA) of 2012, which gave him the authority to arrest anyone anywhere and incarcerate him or her indefinitely without charges or a trial.
44. On January 9, 2012, Heicklen landed in Israel and initiated citizenship at customs. That was the earliest flight available.
45. Heicklen is old enough to have lived during the NAZI era in Germany.  He has no intention of being a victim in NAZI America.
46. The NDAA was renewed for 2013 with some modification. We do not know what will happen in 2014.
47. Plaintiff Heicklen does have family and a residence in the United States and hopes to return, at least for short intervals.

REQUESTED ACTION

48. Plaintiff Heicklen objects to a severance and requests that no severance occurs.
49. However, if the case is severed, it should be Plaintiff Schmidter who is removed, since it is he who desires the severance.




CERTIFICATE OF SERVICE
   
Plaintiff Heicklen certifies that RESPONSE TO SUDBURY REMOVAL MOTION was sent on February 6, 2013, to the following:

James Moses: jmoses@fisherlawfirm.com
John Edward Fisher: fisher@fisherlawfirm.com
Adam Sudbury: Adam.Sudbury@SudburyLaw.net
Mark Schmidter: mschmidter@gmail.com


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

_____________________
Date       

EXHIBITS

Exhibit 1: Sudbury initial submission to defense counsels and
 Heicklen’s question, January 30, 2013_________________________________11

Exhibit 2: Automatic e-mail message generated by the CM/ECF system of the
S. District Court. Filed February 1, 2013_____________________________12

Exhibit 3: Sudbury New Motion for Relief, February 1, 2013_______________14


Exhibit 4: Certifications, February 3, 2013______________________________16


Exhibit 1: Sudbury initial submission to defense counsels and Heicklen’s quetion
    On January 31, 2013 3:11:39 PM GMT+02:00
I object.  What is the reason to separate?—Julian
____________________________________
On Jan 30, 2013, at 8:54 AM, Adam H. Sudbury wrote:
(no attachments)

Jamie/Julian:
 
We request your respective positions on our “Motion to Drop Julian P. Heicklen as Party Plaintiff” to be filed January 31, 2013 on grounds that Plaintiff Heicklen’s attempt to amend the pleadings to include Section 1983 civil rights claims for damages should be filed as a separate suit.
 
Please respond as soon as possible, if I do not receive a response by close of business on January 31, 2013 I will assume that you object.
 
Sudbury Law, PL
424 E Central Blvd # 307
Orlando, FL 32801-1923
P: (407) 395-4111
F: (407) 395-4023
E: adam@sudburylaw.net

Exhibit 2: Automatic E-mail response
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

Middle District of Florida
Notice of Electronic Filing

The following transaction was entered by Sudbury, Adam on 1/31/2013 at 9:05 PM EST and filed on 1/31/2013

Case Name: Schmidter et al v. Perry
Case Number: 6:12-cv-01102-RBD-KRS
Filer: Mark E. Schmidter
Document Number: 34

Docket Text:
Second MOTION for leave to file AMENDED COMPLAINT OR ALTERNATIVE RELIEF by Mark E. Schmidter. (Attachments: # (1) Main Document CERTIFICATE OF SERVICE)(Sudbury, Adam)

6:12-cv-01102-RBD-KRS Notice has been electronically mailed to:

Adam Harold Sudbury     adam@sudburylaw.net, inbox@sudburylaw.net

Jamie Billotte Moses     jmoses@fisherlawfirm.com, choward@fisherlawfirm.com

John Edwin Fisher     jfisher@fisherlawfirm.com, msheets@fisherlawfirm.com

Julian P. Heicklen     jph13@psu.edu

6:12-cv-01102-RBD-KRS Notice has been delivered by other means to:
The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1069447731 [Date=1/31/2013] [FileNumber=10865050-
0] [a1d21385a455b5b0c7bfddb69d2931e1f101d79765598205042ae168923dad3b28
5789b2f6b37233fafa1a450736394a24fdb73e80590bf0d641ad4cc8fd4c19]]
Document description:Main Document CERTIFICATE OF SERVICE
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1069447731 [Date=1/31/2013] [FileNumber=10865050-
1] [a4770ca0f69f330a02e0e20bfeb3f450d6c33836c44cf631c123c6707fa75d7fe7
 
 
Exhibit 3: Sudbury New Motion for Relief, February 1, 2013
IN THE UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF FLORIDA, ORLANDO DIVISION

MARK E. SCHMIDTER, et al., Plaintiff(s),
v. BELVIN PERRY, JR.,
Defendant(s).
CASE #: 6:12-CV-1102-ORL-31-KRS

RENEWED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND TO DROP CO-PLAINTIFF HEICKLEN AS A PARTY WITH SUPPORTING MEMORANDUM

COMES NOW the Plaintiff, MARK E. SCHMIDTER, by and through the undersigned attorney, and pursuant to Fed. R. Civ. P. 15(a)(2), the Amended Case Management and Scheduling Order (Doc. 27), Order dated January 22, 2013 (Doc. 22), and Local Rule 4.01, to move for leave to file an amended complaint in the above-captioned matter. As grounds therefor, the Plaintiff states:

I MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1. This case is a declaratory judgment action which involves the question of the constitutionality of certain administrative actions taken by the Chief Judge of the Ninth Judicial Circuit, sitting in and for Orange County, Florida.
2. Since the filing of the complaint, significant developments in the case have arisen such that an amended complaint is warranted, to-wit:
3. The state court appeal of the Plaintiff’s contempt conviction resulted in a reversal of one of the two convictions at issue by the Fifth District Court of Appeal, and subsequent repeal of one of the two challenged administrative orders.
4. Accordingly, the Plaintiff agrees with the Defendant that a portion of the complaint filed in this Court has been rendered moot.
5. The state court appeal of the Plaintiff’s contempt conviction resulted in an affirmance of one of the two convictions at issue by the Fifth District Court of Appeal on the second administrative order. Recognizing that collateral attack of a criminal conviction in federal court is generally available only by way of habeas corpus (as opposed to declaratory judgment), the undersigned believes that in this specific case such review would be justified and available.
6. The undersigned attorney initiated this action on behalf of SCHMIDTER and HEICKLEN for the purpose of vindicating their constitutional rights, without regard to seeking monetary damages against any other person or party.
7. In the state court appeal of the convictions, Plaintiff HEICKLEN’s convictions have been reversed on Faretta inquiry grounds.
8. One count of Plaintiff SCHMIDTER’s conviction was upheld and is on appeal at the state supreme court.
9. HEICKLEN proposes pursuing a Section 1983 action for actual exemplary and punitive damages against Judge Perry.
10. SCHMIDTER is greatly prejudiced by these actions and other actions. Furthermore, HEICKLEN refuses to cooperate and insists that he will do whatever he wants. It is impossible to maintain a joint action.
11.. SCHMIDTER should not be punished for HEICKLEN’s actions in being required to commence a new proceeding, file a new case, pay a new filing fee (for the original filing fee was paid for by SCHMIDTER), and be required to re-serve process. SCHMIDTER’s day in court would be greatly delayed.
12. In addition, HEICKLEN intends to remain in Israel and refuses to return to the United States, or to appear for re- trial before the Ninth Circuit Court.
13. Accordingly, Plaintiff SCHMIDTER requests that he be permitted to file an amended complaint, and that the Court either severs these Plaintiffs or drops HEICKLEN as a party, requiring him to file a new action on his intended Section 1983 complaint.

WHEREFORE, the Plaintiff, MARK E. SCHMIDTER, respectfully request that the Court grant the foregoing motion and grant the relief requested above.

II MEMORANDUM OF LAW IN SUPPORT THEREOF
The court-imposed deadline for the filing of motions to amend pleadings under the amended case management order (Dkt # 27) is January 18, 2013. Accordingly, this motion is timely filed. Motions to amend pleadings pursuant to Fed. R. Civ. P. 15(a)(2) should be liberally granted when justice so requires. Id. The Plaintiff has stated two specific grounds based on intervening facts which have occurred since the filing of the initial complaint which give rise to good cause for permitting an amended complaint. Burger King Corporation v. Weaver, 169 F.3d 1310 (11th Cir. 1999); Foman v. Davis, 371 U.S. 178, 182 (1999); See ASAP Installations, LLC, 2010 WL 2431922, *1 (M.D. Fla. 2010).

SUDBURY LAW, PL
424 E Central Blvd # 307 Orlando, FL 32801
T: (407) 395-4111
F: (407) 395-4023 contact@sudburylaw.net



Exhibit 4: Certificate of Good Faith
CERTIFICATE OF GOOD FAITH

    I CERTIFY that the undersigned has conferred with counsel for the opposing party and represents that s/he: OBJECTS to the Court granting the relief requested herein.

Dated: January 31, 2013 E-Mail Service Instructions:

Primary: inbox@sudburylaw.net Secondary: adam@sudburylaw.net
SUDBURY LAW, PL
424 E Central Blvd # 307 Orlando, FL 32801

SUDBURY LAW, PL
424 E Central Blvd # 307 Orlando, FL 32801-1923 P: (407) 395-4111 F: (407) 395-4023 By:/s/ ADAM H SUDBURY
ADAM H. SUDBURY Florida Bar No. 783951
T: (407) 395-4111
F: (407) 395-4023 contact@sudburylaw.net
_____________________________________
COURT: DISTRICT: DIVISION:
CASE STYLE: CASE NO.:
DOCUMENT: DOCUMENT:
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
SCHMIDTER, et al. v. PERRY 6:12-CV-1102-ORL-36-KRS
RENEWED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND TO DROP CO-PLAINTIFF HEICKLEN AS A PARTY WITH SUPPORTING MEMORANDUM OF LAW
N/A
Fax: DATE OF SERVICE:
METHOD:
422-1080 Friday, February 01, 2013


Exhibit 4: Certificate of Service
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the referenced document(s) and of this certificate was furnished to:

PARTY: E-Mail: Mail: Fax:
ATTORNEY: OFFICE: Primary: Secondary: Fax:
JULIAN P. HEICKLEN jph13@psu.edu 36 Rachel Immenu #2, Jerusalem, Israel 93228 N/A
JOHN EDWIN FISHER, ESQUIRE Fisher Rushmer, P.A. jfisher@fisherlawfirm.com N/A
(407) 422-1080
JAMIE BILLOTTE MOSES, ESQUIRE Fisher Rushmer, P.A. jmoses@fisherlawfirm.com
ATTORNEY: OFFICE: Primary: Secondary: choward@fisherlawfirm.com

YES E-MAIL
NO    FACSIMILE NO MAIL BY: /s/ ADAM H SUDBURY
ADAM H. SUDBURY Florida Bar No. 783951 adam@sudburylaw.net


Exhibit 1: Sudbury New Motion for Relief
February 1, 2013 7:27:33 PM GMT+02:00
In the United States District Court, Orlando Division, in and for the Middle District of Florida
In re: SCHMIDTER, et al. v. PERRY, Case No.: 6:12-CV-1102-ORL-36-KRS
 
Documents served:
 
1)      CERTIFICATE OF SERVICE
2)      RENEWED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND TO DROP CO-PLAINTIFF HEICKLEN AS A PARTY WITH SUPPORTING MEMORANDUM OF LAW
 
E-Mail Addresses for Service of Court Papers:
Primary: inbox@sudburylaw.net
Secondary: adam@sudburylaw.net
 
Sudbury Law, PL
424 E Central Blvd # 307
Orlando, FL 32801-1923
P: (407) 395-4111
F: (407) 395-4023
E: contact@sudburylaw.net
 
E: contact@sudburylaw.net