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MIAMI MIRROR TRUE REFLECTIONS

SOVEREIGN IMMUNITY AND THE INJUSTICE OF THE FLORIDA SUPREME COURT BY DAVID ARTHUR WALTERS In Floridas notorious sovereign immunity case, Trianon Park Condominiums v The City of Hialeah (1985), the Florida Supreme Court held that a municipality is a sovereign entity immune from lawsuits for the negligence of its building inspectors. Although building inspections are exercises of governmental police power to regulate behavior to ensure the safety of the public, the government is responsible to no one for its negligence: The government clearly has no responsibility to protect personal property interests or ensure the quality of buildings that individuals erect or purchase, ruled Floridas highest court, for there has never been a common law duty to individual citizens for the enforcement of police power functions. The police power is a very broad power, therefore we should not be fooled by the Courts statement that its decision has narrow implications, that it addresses only the narrow issue of exercising basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county, or municipal governmental entity. Jose Smith, City Attorney of the City of Miami Beach, for example, said that attorneys do not dare to challenge the Trianon decision, and that he is currently using it in police shooting cases.

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And we should not be misled by the Courts misstatement that government never has had a common law responsibility to the public, or to suppose that, if there has never been a law against something, there never should be one. The ancient laws common to our culture are not the private property of a tyrant who may do as he will with our lives and property but whom we must beg permission to sue for our welfare. Our right to justice is not a gift from a private sovereign above the law, for equity demands that all be subject to the law natural therefore common to our mutual being. Our rights remain ours when stolen, and the duty is ours to recover them in that event. But we have been negligent in Florida: we have not kept our eyes on our highest good in Florida, our liberty, and when we would bring a negligent government to heel we are confronted the monstrous Trianon judgment, a landmark apparently set in stone due to legal neglect. The Trianon landmark frightens plaintiffs away from exercising their ancient right against the arrogant aspiration to absolute power. But the landmark is a scarecrow made of straw and dung, and it shall be overturned. In reality, the history of the advance civilization, the struggle to extend liberty to all human beings, is based on the law common and natural to all. No person natural or artificial, individual or corporate is above that essential law. No one is human without society. Everyone in society is accountable for their public deeds, and especially so the elected and hired police power. The right to plead for justice and to have it done in the appropriate court, the right to petition government for and obtain effective redress for grievances, is a right sacred to all upon which freedom in order depends. The common law is certainly not the private property of the ruling elite, as if the political elite own the right to render themselves immune from the grievances of the rest if they like. The judgement of the slimmest majority of justices in Trianon is a weak excuse and specious justification for sovereign immunity, an immunity oft expressed by the maxim that the King can do no wrong. For those overawed by His Majesty and who feared being executed for speaking a word against him, that meant he was the untouchable, uncommanded commander. But the maxim is ambiguous. Kings are indeed capable of doing wrong, but cannot do wrong lawfully. Indeed, many of them did so much wrong that they were periodically beheaded if not converted to figureheads. Royal ministers were held legally liable for misconduct as well if not murdered in halls and on highways despite attempts to extend immunity to themsometimes they were conveniently faulted or sacrificed in order to absolve the sovereign. A sovereign in the abstract sense is as untouchable as God Almighty, but a king may be decapitated in the concrete sense despite his purportedly divine right to the throne. His title to the kingdom is held in trust. Furthermore, it was always owned that a Kings ministers could do wrong and be held liable for those wrongs, although they all too often had his protection. The king may do no wrong because his obligation is to do the right thing or else, and it is the or else that has been the undoing of tyrants. The very reason for being a king is to do right, not wrong. That is his priority and prerogative. It is not the king but right which is sovereign, for the throne must endure in righteousness or else it shall be thrown into the dustbin of history if not perdition. To avoid this doom, misgovernment must be corrected and people compensated for damages to property and personal injuries.

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Quite to the contrary in the State of Florida, for its high court has condoned maladministration and encouraged official negligence with its pernicious ruling in Trianon. The so-called sovereign State of Florida is the king here only by analogy, or is rather a corporation or crown where no single human being is sovereign but where the ideal government through its real officials has constitutional prerogatives to serve the whole people according to the peoples general will. That general will may be illusive but it certainly is not to hold the state and its subsidiary entities harmless for negligence that may be so gross, and with consequences easily foreseen because the acts and omissions violate the legislative intent of all police power laws to protect the public health, safety, and welfare, that we wonder why the tort is deemed merely negligent instead of intentional. We note well that the City of Hialeah is a virtual subsidiary of the state chartered by the state, and that a municipality today may be likened to a modern private business corporation except for its general regulative prerogatives. In its governmental aspect, it is, in a feudal manner of speaking, a sort of vassal of the state, and here, in Trianon, the states royal court or kings council has rendered its local minister immune as if it too were sovereign, contrary to the old but oft violated rule that ministers should be held liable. A state may be called sovereign, but in respect to the rights and liberties of the citizens of the United States, it is a vassal of the federal government. The federal government has already disposed of the one-sided myth of sovereign immunity, although its retention of the term discretion in the legislative waiver is problematic, for it is in discretion that tyranny may preside. We have previously wondered why the plaintiffs lawyers in Trianon did not see a federal question in the misruling of the states high court inasmuch as it foreclosed, even in apparent defiance of the intent of the states legislature, effective due process for parties injured by negligent acts and omissions of officials charged with performing specific, mandatory duties. The neglect of the federal issue is related to the partial blindness of members of the legal profession whose interest is aligned with and depends on governmental authority. When the professional practice of English law first arose in the kings council, a lawyers loyalty extended no further than his employers interest, hence it was said that kings kept lawyers like huntsmen kept hounds. That is not to disparage their struggle for independence from the throne, and their essential role in restoring the ancient Teutonic rights and liberties of the people, determined as law (a Viking, Norse word) in the ancient public assemblies around wise men. The common law status of English kings evolved from the Germanic tribal custom of electing chiefs for warfare. The sovereign power resided not in the leader whose sway was temporary but in the transcendent conscience of the barbarian people who had good cause from time to time to protest the Roman imperium. The New Dictionary of the History Ideas provides this meaning of imperium: The Roman doctrine of imperium, meaning the concentration of powers over the territories of the Empire in the hands of its Emperor, conveyed the unrivaled and unchallengeable supremacy invested in the ruler. To affront this imperium by word or deed constituted a grave crime against the Roman majesty, punishable by execution. When imperium is coupled with the legal doctrine

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that the Emperor is legibus solutusa law unto himself answerable to no oneone arrives at a concept very nearly identical to that of sovereignty. The barbarians eventually overthrew the Roman Empire, but the imperial ideology influenced the development of modern civil law, thanks in large part to the Roman Church. The imperium was still anathema to the German spirit although it would itself eventually aspire to Romanic Reichs holy and unholy. Calvins spirited protest, for example, referred to radical liberty as Christian liberty, in three parts, the first two parts as follows: The first part is that the consciences of believers, when seeking an assurance of their justification before God, should raise themselves above the law and forget all the righteousness of the law. The second part of Christian liberty, which is dependent on the first, is that their consciences do not observe the law, as being under any legal obligation; but that, being liberated from the yoke of the law, they yield a voluntary obedience to God. Calvin had his totalitarian disposition too, for he would have dispensed with the secular state and established a theocracy where people can live more freely yet are not free to do what they want, such as have sex at will, use alcohol and drugs, be proud of themselves and so on, but must do what god wants them to do, to be slaves to their god. Still, if Mosaic Law is cast off, as in early Lutheran antinomianism, and if that god is really found within individual conscience instead of priestly authority, personal passions are bound to rule the world as always even in the name of Christian liberty, and people and nations shall war upon one another in the name of the same god until the end of time. In fine, English common law is derived from a tradition that cherished freedom in order, freedom running slightly ahead of it for the sake of progress. The ideal order reflects equality in supreme being and therefore all are entitled to equity in the legal order hence have the divine or natural right to petition for and receive justice even when and especially when the grievance is against the mundane sovereign power, whether that power be an individual or group, or a person natural or artificial. The civil order never would have been imposed without popular support. So let us not be fooled by Floridas Trianon case into believing that common law is the private property of sovereignty. No, it is common to all, and countless millions of lives have been invested in its evolution. The Supreme Court of Florida or any other court for that matter does not own the common law. The common law is the law of right, and right is equity, or fair justice. Indeed, one ancient Greek myth has Zeus recommending that any adult without a sense of justice be put to death or banished, excepting madmen and infants. Our ideas of justice are abstract hence so various and indefinite that injustice might be a better word for the common sense, for everyone feels injury and can calculate the inequity of that harm when unjust. However that may be, controversial studies of late demonstrate that even babies have a sense of justice or its opposite. Equity is the rule of the oral law common to prehistoric folk prior to the development of writing, and once wise men became literate the law was written down that it not be forgotten. The wisdom of the wise was consulted by magistrates for principles: the doctrine of rigid reliance on precedents to determine instant cases is a recent invention.

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No, our champions must not be frightened by the Trianon scarecrow into giving up the battle against the tyranny presupposed by sovereign immunity. The failure of the Florida Supreme Court in the Trianon case to hold government liable for negligent behavior cultivates negligence so that petty municipal tyrants may rule in the name of discretion. That decision offends our sense of injustice and demands a remedy. The end of the law is peace. The means to that end is war, begins Rudolph Jherings The Struggle For Law. So long as the law is compelled to hold itself in readiness to resist the attacks of wrongand this it will be compelled to do until the end of timeit cannot dispense with war. The life of the law is a strugglea struggle of nations, of the state power, of classes, of individuals. And what is the struggle for law if not the struggle for justice? That is, for example, the Justice that the Hebrew expects to come to Earth on judgment day, the very Lord or Dom that is doom. It is said that the Hebrews entered into a covenant or contract with the only true sovereign. Their faith would be for naught if the contract was one-sided and the sovereign were immune from suit for nonperformance. Why, Israel exists today because Jacob struggled with the Lord, and rabbis punished boys for not questioning the Torah. Wherefore it appears that the highest god of all, whose existence is supposed from the sense of long injustice, is justice. If we are to think globally for the betterment of the world, and act locally, the injustice perpetrated by the majority of the Florida Supreme Court in Trianon Park Condominiums v. The City of Hialeah must be remedied. ##

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