IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

GORDON WAYNE WATTS, Individually,			
as a Florida Citizen, Generally, on behalf of
similarly situated Citizens, and Specifically
on behalf of Theresa Marie Schindler-Schiavo,		Case No.: 2003-005071AP
	
Petitioner						Section 88A

V.

City of Pinellas Park, Florida
Police Dept., et al.,

	Respondents
__________________________________/

Reply of Petitioner, opposing a motion to dismiss for lack of Jurisdiction, in re: Petition for Writs of Habeas Corpus, Quo Warranto, Prohibition, and Mandamus

The Respondent, Woodside Hospice, in and through its attorneys, apparently makes facially incorrect claim that service through postal mail is not sufficient, a claim which this courts knows not to be true from numerous examples (and as supported by general law so cited in this response) in its dealings with court cases - and then goes on to support this false supposition with citations from the Florida Rules of Civil Procedure, while also styling the case in the same incorrect fashion -in spite of the glaringly obvious fact that this case is an appellate case, dealing with appellate issues, and in the appellate division of the sixth circuit court so styled. Finally, the Woodside Hospice responds in its service by serving its petitions in the same way as petitioner, although said Hospice entity's main contention in its motion was that this type of service was impermissible -in fact not even obtaining return receipt as has Petitioner.

While the 2003 holidays afford us all a hearty sense of humor, this being one of them, the scarce judicial resources of This Court -and of the petitioner and other parties involved -should not be used as an outlet for such humor, no matter how good it is, as efficient use of time and resources available to all parties. (This could be cause to strike.)

Nonetheless, as a formality, Petitioner hereby shows respect to the parties, facts, and laws by making this brief response:

(1) Motioner's first bone of contention is with This Court's in personam jurisdiction related to the manner of service. Many court cases are initiated by service through mere postal mail without any signed return receipt, a recent example being in the recent (highly publicized) challenge to the constitutionality of "Terri's Law," a separate proceeding, in which lead Bush attorney Ken Connor made similar claims that his client was not properly served, claims which were struck by the appellate court hearing his petition. At best, one would hope for a delay, which may have been afforded Connor. The very fact that the Woodside attorneys replied should show "a reasonable person" that they were properly served, but to continue the humor and defer to the court, a little further analysis is given:

The existence of personal jurisdiction depends upon reasonable notice to the defendant. Noble v. Noble, 502 So. 2d 317, 320 (Miss. 1987), citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S. Ct. 652, 656-57, 94 L. Ed. 865, 873 (1950). 

The "higher" standard of the proof of delivery is given here:
"Absent some proof of receipt of summons" such reasonableness is questionable. Noble, 502 So. 2d at 320. Unless such a defendant made an answer or appearance, the trial court would not have jurisdiction with this type of summons. Id. An affidavit of service upon a party personally is sufficient for reasonable notice. Penton v. Penton, 539 So. 2d 1036, 1038 (Miss. 1989). Likewise, an acknowledgment of service by the party is sufficient. Id. 

However, Courts have generally not required proof of delivery:
"We reject appellant's contention that the notification method employed here and the proceeding upon default against him deprived him of his due process right to notice and opportunity to defend. Due process does not require actual receipt of notice before a person's liberty or property interests may be adjudicated; it is sufficient that the means selected for providing notice was "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 3l4). "The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it" (id., at 3l5). The notice procedure chosen need not eliminate all risk that notice might not actually reach the affected party (id., at 3l9). Unquestionably, mailed notice may suffice (see, Tulsa Professional Collection Servs. v Pope, 485 US 478, 490; Mennonite Bd. of Missions v Adams, 462 US 79l, 799). Accord Fla.R.App.P. 9.420(c)(1), "Service on the attorney or party shall be made by delivering a copy to the attorney of party or by mailing it to the attorney of party at the last known address or, if no address is known, by leaving it with the clerk of the court."

Petitioner, acting as his own attorney, properly certified these claims to be true, to satisfy Rule 9.420(c)(2), and in computing the times of service by sub-parts (c) and (d), and comparing them with the date on said Hospice's petition, the time requirements are met, even taking into account the weekend status of Sunday, 21 December 2003, and the "additional time after service by mail" needed to either mail or fax a copy to This Court.

See:
We hold that the publication and actual mailed notice which were required by both Chapter 54C (N.C. Gen. Stat. § 54C-33(d)) and the Administrative Code (N.C. Admin. Code, tit. 4, 16G.0510 and 16G.0511) satisfy due process standards set out by the United States Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 489-90, 99 L. Ed. 2d 565, 572 (1988) (notice by mail required to known holders of protected property interest). Despite having actual notice of the anticipated conversion of Mutual Savings Bank, plaintiff never availed himself of any of the available administrative remedies during the two-year period prior to filing the complaint in the instant case. (Emphasis added)

See also:
Indiana statute providing for constructive notice to mortgagee of tax sale of real property violates the Due Process Clause of the Fourteenth Amendment; instead, personal service or notice by mail is required. Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983).  (Emphasis added)

This "reasonable" standard applies to the Government too - even if the mail is not received:
When the government can reasonably ascertain the name and address of an interested party, due process requires the government to send "[n]otice by mail or other means as certain to ensure actual notice."  Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983).  But due process does not require that the interested party actually receive the notice.  United States v. 51 Pieces of Real Property,  17 F.3d 1306, 1316 (10th Cir. 1994).  "So long as the government `acted reasonably in selecting means likely to inform [the] persons affected, . . . then it has discharged its burden.'"  Id. (quoting Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir. 1988), cert. denied, 488 U.S. 1005 (1989)).

(2) Movant's next complaint before This Court is related to "subject matter" jurisdiction. (See movant's motion, page 2.)

Movant incorrectly cites a Rule of Civil Procedure, in that the Florida Rules of Appellate Procedure govern this subject matter:  RULE 9.010 "These rules,...shall govern all proceedings...in...the circuit courts in the exercise of the jurisdiction described by rule 9.030(c)...These rules shall supercede all conflicting statutes and...all conflicting rules of procedure [including the Fla Rules of Civil Procedure]."

RULE 9.030(c)(3) "Circuit courts may issue writs of mandamus, prohibition, quo warranto,...and habeas corpus [the remedies being sought in the instant case]..."

But, even assuming arguendo this to be this case, Movant still fails to make a compelling argument:

A close comparison between the rule and the pleading reveals that the two are congruous in that the initial pleading certainly has (1) facts (findings of facts, in perhaps the most well-known case in the world now, the "facts" are not in dispute) (2) a request for specific relief (this is contained in both the initial pleading and the clarification which was submitted at the request of a clerk who telephoned Petitioner Gordon Watts and requested it) (3) If desired, and argument with citations of authority (it has that).

The Florida Rules of Appellate Procedure, in RULE 9.300(a) generally agree with this Civil rule, so this may be a "harmless error" on the part of the Movant, except that Movant is without grounds to complain for a violation of this rule: This jurisdiction is sovereignly left to the Courts, who are well aware of these requirements.

Additional:
Although Movant does not raise legal standing as a complaint, nonetheless, each petition is different in its requirements for standing. (Mandamus for enforcement of a state law merely requires the petitioner to be a state citizen, which would infer standing in relation to harm suffered for lack of public enforcement. Habeas is another creature altogether, and those arguments are outlined in the petitions on file.) It should be noted here that, while the “next friend” legal argument for filing for Writ of Habeas is “tenuous at best,” in some legal analyses, nonetheless, it is supported by solid case law –and, in that no closer member of the Schindler family has made this petition, Petitioner Watts is the “next closest” relative. (Watts is, by “Evolutionary” standards, evolved from the same ancestor –or, alternatively, from Historical Biblical records, commonly descended from Noah of the Bible, and also common decent from Adam and Eve of lore. Thus, in either instance, Petitioner Watts is blood-related and thus has the legal standing to file as “next friend” in Habeas, absent any other challenge by closer members of the family.) 

Further, Movant does not object to the target of the petition for Quo Warranto or Mandamus, and, again, each petition is different in its target. (E.g., Prohibition only lies to compel Courts in Florida to refrain from doing some future act in certain circumstances, and mandamus may only, in Florida, compel, the performance of the ministerial duty of "officers of the state," a term that has not been clearly defined by the courts or the legislature.) 

(3) Lastly, Movant alleges that petitioner (a) "fails to allege sufficient facts as opposed to conclusions" and (b) failed to support the petitions with necessary "documentation" and also (c) seek relief "not available."

Petitioner (a) certainly alleges facts, and, with the most well-known case in the world in question (deprivation of liberty of Theresa Schindler-Schiavo and failure of "officers of the state" to uphold / enforce state law, their ministerial duty), these new and untested petitions (b) certainly have the backing of facts, and, as the arguments in the record will show, (c) certainly afford the relief sought, in most, if not all, the cases in which specific relief is sought -as a finding of fact and as a matter of state law, case law, and controlling precedent. There were a whole host of Federal laws and federal case law violated, but, in the interests of brevity and states' rights, only the state law was referenced.

The "weak link" in the chain is certainly the lack of submission of official records in the case at bar in relation to the allegations made, even though they may be "common knowledge," and, if this nonfatal defect is found to be present in the instant case, the Petitioner, in and through, undersigned acting counsel, PRO SE, would be amenable to any suggestion afforded by the Court. However, in the alternative, if it should be noted that show that there is no genuine issue as to any material fact then the petitions of petitioner, Gordon Watts, are entitled to a judgment solely as a matter of law.

Apparently, for the reasons outlined supra, the suggestions of the Movant, attorneys for the Woodside Hospice, regarding dismissal should be stricken with prejudice.

Respectfully submitted,
			
			Gordon Wayne Watts
Gordon Wayne Watts

Motion to include new respondents in this cause

Although this court is within its discretion to say "no" to this motion, let it be noted that these respondents could be served lawsuit in separate proceedings -as the courts are open to hear all complaints in this vain.

Therefore, in the interests of expediency, Petitioner, Gordon Wayne Watts, hereby respectfully requests that This Court issue a Writ of Mandamus -for the same general reasons outlined in initial pleadings -to the following two entities of the state: (1) The Pinellas County State Attorney's Office; and (2) The Florida Department of ADULT PROTECTIVE SERVICES, compelling them to perform their "ministerial duties" to investigate charges of spousal abuse that have been brought to their attention in re Theresa Schiavo in the instant case -violations of current state law, which will give the petitioner full legal standing in This Court.

Reason to justify a mandamus are stated in initial pleadings, and authority to compel the aforementioned entities are as follows, from 2003 Florida State Law:

27.255  Investigators; authority to arrest, qualifications, rights, immunities, bond, and oath.-- 

(1)  Each investigator employed on a full-time basis by a state attorney and each special investigator appointed by the state attorney pursuant to the provisions of s. 27.251 is hereby declared to be a law enforcement officer of the state and a conservator of the peace, under the direction and control of the state attorney who employs him or her, with full powers of arrest, in accordance with the laws of this state. Such investigator may arrest any person for violation of state law or applicable county or city ordinances when such violation occurs within the boundaries of the judicial circuit served by the state attorney employing the investigator, except that arrests may be made out of said judicial circuit when hot pursuit originates within said judicial circuit. Such investigator shall, within the boundaries of the judicial circuit served by such state attorney, have full authority to serve any arrest warrant, search warrant, capias, or court order issued by any court or judge within such judicial circuit in a criminal case, or in connection with a criminal investigation, when the same is directed to him or her. The investigator may serve, anywhere within the state, a witness subpoena issued by any court or judge within the state or issued in connection with a criminal investigation that arises anywhere within the state, provided that prior notice is given to the sheriff in whose county service will be attempted; however, failure to provide this notice to the sheriff does not affect the validity of the service. The investigator may carry weapons on or about his or her person in the same manner as other law enforcement officers. 

415.104  Protective investigations of cases of abuse, neglect, or exploitation of vulnerable adults; transmittal of records to state attorney.-- 

(1)  The department shall, upon receipt of a report alleging abuse, neglect, or exploitation of a vulnerable adult, begin within 24 hours a protective investigation of the facts alleged therein. If a caregiver refuses to allow the department to begin a protective investigation or interferes with the conduct of such an investigation, the appropriate law enforcement agency shall be contacted for assistance. If, during the course of the investigation, the department has reason to believe that the abuse, neglect, or exploitation is perpetrated by a second party, the appropriate law enforcement agency and state attorney shall be orally notified.

For the aforementioned reasons, Petitioner hereby prays to this court to allow initial pleadings to be amended, such that Petitioner now also seeks a Writ of Mandamus directed at the two aforementioned entities to compel them to investigate allegations of abuse, well within their jurisdiction and authority.

In compliance with the appropriate rules, Petitioner is hereby including the aforementioned "officers of the state" in regular service, so indicated by the Certificate of Service, including the initial pleadings to them as well.

Respectfully submitted,
			
			Gordon Wayne Watts
Gordon Wayne Watts

Motion for ex parte temporary injunction

Pursuant to the authority given in Fla.R.App.P. 9.030(c)(3), Petitioner respectfully moves this court for a temporary injunction in ex parte fashion to stay the removal of the feeding tube which might result from any unfavorable ruling a the challenge to the constitutionality of the "Terri's Law." It is painfully obvious to This Court that such unfavorable ruling may violate the legal rights sought in the instant petitions before This Court in the case at bar, and so thereby petitioner makes this request before the court, that these matters be given a chance to be litigated before any final disposition be given in related court cases.
Respectfully submitted,
			Gordon Wayne Watts
Gordon Wayne Watts

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing, “Reply of Petitioner, opposing a motion to dismiss for lack of Jurisdiction, in re: Petition for Writs of Habeas Corpus, Quo Warranto, Prohibition, and Mandamus” and “Motion to include new respondents in this cause” and “Motion for ex parte temporary injunction” was sent to the following parties by FIRST CLASS US POSTAL MAIL, this _22nd_ day of December, 2003.

* Circuit Court, Sixth Judicial Circuit, Florida - CIRCUIT CIVIL DIVISION - Room 170 - 315 Court Street North - Clearwater, FL 33756-5165

* Patricia Fields Anderson, Esq. - 447 Third Avenue North, STE 405 - St. Petersburg, FL 33701
FAX: 727.898.4903 VOICE: 727.895.6503

* George J. Felos, Esq. - 595 Main Street - Dunedin, FL 34698
FAX: 727.736.5050 or 727.736.6060

* Deborah A. Bushnell, Esq. - 204 Scotland Street - Dunedin, FL 34698
FAX: 727.733.0582 - VOICE: 727.733.9064

* Christina Calamas, Esq. - 400 S. Monroe St., STE 209 - Tallahassee, FL 32399-6536
FAX: 850.488.9810 VOICE: 850.488.3494

* George LeMieux, Esq. - Office of the Attorney General - Plaza Level 01 - 400 S. Monroe Street - Tallahassee, FL 32399-5536
FAX: 850.488.9810 VOICE: 850.488.3494

* Jay Alan Sekulow, Esq. - American Center for Law and Justice - 201 Maryland Ave., NE - Washington, DC 20002

* Randall C. Marshall, Esq. - American Civil Liberties Union of Fla. - 4500 Biscayne Blvd., STE 340 - Miami, FL 33137

* Thomas J. Perrelli, Esq., Robert M. Portman, Esq., Nicole G. Berner, Esq. - 601 13th Street, NW, STE 1200 - Washington, DC 20005

* City of Pinellas Police Department - 7700 59th Street North - Pinellas Park, FL 33781-3247

* Woodside Hospice House - 6770 102nd Ave. - North Pinellas Park, FL 33782-2909

* (Sservice in duplicate this time) Michael D. Malfitano, Esq., John W. Campbell, Esq., and Monica J. Williams, Esq., Attorneys for Woodside Hospice House, Pinellas Park Florida c/o Costangy, Brooks, & Smith, LLC
(100 West Kennedy Boulevard, STE 500) Post Office Box 1840 - Tampa, FL 33601-1840
VOICE: (813) 223-7166 / FAX: (813) 223-2515

* Hon. George W. Greer, Judge, c/o Florida Sixth Judicial Circuit Court - Rm. 484
315 Court Street, Clearwater, FL 33756-5165

* Hon. W. Douglas Baird, Judge, c/o Florida Sixth Judicial Circuit Court - Rm. 468
315 Court Street, Clearwater, FL 33756-5165

* Kenneth L. Connor, Esq., Counsel for Respondent Governor Jeb Bush - c/o Wilkes & McHugh, P.A., One North Dale Mabry, STE 800 Tampa, FL 33609-2755
VOICE: (813) 873-0026 or 1-800-255-5070 ; FAX: (813) 286-8820 or (813) 872-1836

* Kenneth L. Connor, Esq., Counsel for Respondent Governor Jeb Bush - 19928 Evergreen Mill Road - Leesburg, VA 20175-8741
VOICE: (703) 669-8108 FAX: (703) 669-9702

SUPPLAMENTAL CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing, letter “Reply of Petitioner, opposing a motion to dismiss for lack of Jurisdiction, in re: Petition for Writs of Habeas Corpus, Quo Warranto, Prohibition, and Mandamus” and "Motion to include new respondents in this cause" and "Motion for ex parte temporary injunction" - plus all prior proceedings in this cause -were sent to the following parties by FIRST CLASS US POSTAL MAIL, this _22nd_ day of December 2003.

(Service in duplicate for Fla. DCF, this time)
The Florida Department of ADULT PROTECTIVE SERVICES c/o
Florida Department of Children and Families-APS
1317 Winewood Blvd. - Bldg. 6 Room 366
Tallahassee, FL 32399-0700
Ph: (850) 922-4076

Bernie McCabe,
State Attorney for Pinellas County Florida
 PO Box 5028 Clearwater, FL 33758 

Bernie McCabe, 
State Attorney for the Sixth Judicial Circuit
Room 100
14250 49th Street - Clearwater, FL 33760

				Respectfully submitted,
				Gordon Wayne Watts
				GORDON W. WATTS, Petitioner / Plaintiff / Appellant
				821 Alicia Road - Lakeland, Florida 33801-2113
				Home Phone: 863-688-9880
				Work Phones: 863-686-3411 and 863-687-6141
				Electronic Mail: Gww1210@aol.com

				Acting Attorney for the Appellant:
					Gordon W. Watts, PRO SE