IN THE CIRCUIT COURT OF
THE
17TH JUDICIAL CIRCUIT IN
AND
FOR BROWARD COUNTY,
FLORIDA
CASE NO.: 00-19722-04
FLA. BAR NO. 246220
JUDICIAL WATCH, INC.,
Plaintiffs,
v.
JANE CARROLL, SUPERVISOR OF
ELECTIONS, BROWARD COUNTY,
Defendants.
_________________________________/
PLAINTIFF’S EMERGENCY MOTION FOR REHEARING OF
REQUEST FOR EMERGENCY EXPEDITED HEARING
Plaintiff,
JUDICIAL WATCH, INC., respectfully requests that the Court rehear and
reconsider Plaintiff’s request for an emergency expedited hearing on
Plaintiff’s Motion to Compel Access to Public Records. As grounds therefor, Plaintiff states as
follows:
1. At issue in this lawsuit is
Plaintiff’s request for access to ballots cast in Broward County, Florida
during the November 7, 2000 election.
Plaintiff sought access to these ballots -- and clearly is entitled to access to them --
under the Florida Public Records Act.
In fact, on or about November, 29, 2000, Defendant had agreed to allow
Plaintiff access to the ballots on Thursday, December 7, 2000, but then reneged
on that agreement. See Exhibit
1.
2. On Tuesday, December 5, 2000,
Plaintiff requested that the Court schedule an emergency, expedited hearing on
Thursday, December 7, 2000 regarding Plaintiff’s Motion to Compel Access to
Public Records.
3. In the afternoon of the following
day, Wednesday, December 6, 2000, the Court’s Judicial Assistant, Ms. Pamela
Desmond, telephoned Plaintiff and left a message for Paul J. Orfanedes, an
attorney in Plaintiff’s office. See
Exhibit 2. When Mr. Orfanedes returned
Ms. Desmond’s call that same afternoon, Mr. Orfanedes was advised that the
Court did not consider this an emergency matter, that the Court was conducting
a trial that had to be completed by the end of the week, and Plaintiff could
either set the matter for a hearing during the Court’s regular motions
calendar, in which case the motion would be heard on a first-come, first-served
basis, or have the matter specially set for a hearing on Friday, December 15,
2000. Id. Mr. Orfanedes advised Ms. Desmond that the
parties had worked out their differences earlier that day. Id.
4. In fact, earlier that morning,
Defendant had agreed to allow Plaintiff access to the ballots beginning at
10:00 a.m. on Thursday, December 7, 2000.
See Exhibit 3.
5. At no point on Wednesday, December
6, 2000 was Plaintiff ever advised that attorneys for George W. Bush or the
Republican Party, or anyone else, sought to intervene in this action. At no
point on Wednesday, December 6, 2000, did Plaintiff’s General Counsel, Larry
Klayman, Esq., or anyone else at Judicial Watch, Inc., including but not limited
to Tom Fitton, President of Judicial Watch, Inc., speak with William R. Scherer, Esq., counsel for Mr. Bush and the
Republican Party, or anyone else purporting seek to intervene in this action. In fact, Mr. Klayman was at his office only
briefly on Wednesday, December 6, 2000, and, on Wednesday afternoon, left for
South Florida to attend the ballot inspection commencing the following
day. Mr. Klayman’s only contact with by
Mr. Scherer was a telephone call just before 9:00 a.m. this morning, Thursday,
December 7, 2000.
6. Plaintiff understands that Mr.
Scherer and James A. Cherof, Esq., counsel for Defendant, appeared before the
Court on Mr. Scherer’s motion this morning seeking an injunction to prevent the
ballot access that Defendant had agreed to only yesterday, and demanded to be
heard. Because the Court had already
held that it would not grant an emergency hearing on this matter, and because
if the Court decided to proceed in the face of its earlier, unequivocal
decision not to allow for emergency proceedings, Plaintiff believed , with
reason, that the Court would not proceed, at least without any attempt being
made by the Court to notify Plaintiff.
No such notice was provided to Plaintiff of the Court’s decision to
treat the Republicans differently than Plaintiff and to grant an emergency
hearing in this case on only ½ hour notice by the Republicans.
7. In sum, the hearing given to this
request was inconsistent with the representation to Plaintiff that the Court
did not consider this an emergency matter and was otherwise unavailable
for an emergency hearing because it was presiding over a trial that had to be
completed by the end of the week. Nor
was Plaintiff ever contacted by the Court to advise Plaintiff that it would be
proceeding with an emergency hearing in this matter. At this unnoticed, ex parte, emergency hearing, the Court
entered an order preventing timely ballot access on December 7, 2000.
8. Clearly, Defendant, and now the
proposed intervenors, are trying to frustrate Plaintiff’s efforts to undertake
a timely review, in the public interest, of the Broward County ballots. In order to allow Plaintiff to undertake a
timely review prior to the election process being closed, and consistent with
the priority given to Public Records Act cases under Florida law, Plaintiff
respectfully request that the Court reconsider scheduling an emergency hearing
to address this matter this afternoon, December 7, 2000, as the parties have
now agreed on two separate occasions that Plaintiff could begin reviewing the
ballots on December 7, 2000. Plaintiff
intends to ask the Court for immediate access to the ballots at that time, and
for attorneys fees, costs, and such other relief as the Court deems
appropriate. Based upon the reasonable
expectation that it would have access to the ballots today, Plaintiff traveled
to Broward County, Florida with six (6) attorneys, accountants, and other
staff, at great loss of time and expense.
9. Any representations that Defendant
had not notified the Republicans and other political interests, made at the ex
parte emergency hearing this morning, are suspect, particularly
because: (1) Defendant admittedly had notice of Plaintiff’s request for ballot
access on November 10, 2000, the date the request was made; (2) this matter has
been widely publicized; (3) eight days ago, on or about November 29, 2000,
Defendant agreed to provide Plaintiff access to the ballots on December 7,
2000, and thus had plenty of time to provide notice to the candidates; and (4)
the Republicans, the only party to object, were obviously aware of Plaintiff’s
request, as they would not have attempted to intervene, however improperly.
WHEREFORE,
in order to accord Plaintiff due process rights, it respectfully requests that
the Court schedule an emergency, expedited hearing to address this matter on
Thursday, December 7, 2000.
JUDICIAL WATCH, INC.
By: _____________________________
Larry Klayman, Esq.
Fla. Bar. No. 246220
501 School Street, S.W.
Suite 725
Washington, DC 20024
(202) 646-5162 (office)
(202) 646-5199
(facsimile)
Attorney for Judicial
Watch, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2000 a true and correct copy of the foregoing
PLAINTIFF’S MOTION FOR REHEARING OF REQUEST FOR EMERGENCY EXPEDITED HEARING was
served, via facsimile and first class U.S. mail, postage prepaid, on the
following:
James A. Cherof, Esq.
Samuel S. Goren, Esq.
JOSIAS, GOREN, CHEROF,
DOODY
& EZROL, P.A.
3099 East Commercial
Blvd., Suite 200
Ft. Lauderdale, FL 33309
William R. Scherer, Esq.
Albert L. Frevola, Jr.,
Esq.
CONRAD & SCHERER
P.O. Box 14723
Ft. Lauderdale, FL 33302
_____________________________
Paul J. Orfanedes