When Truth is Defamatory

 

WHEN TRUTH IS DEFAMATORY

BY

DAVID ARTHUR WALTERS

 

“Defamation” generally means using words to hurt the fame of a person (de bona fama aliquid detrahere: “to hurt his good fame.”) A person’s fame is his common or widespread reputation.

Spoken words may be easily forgotten, whereas writings may be preserved and referred to indefinitely. Defamatory words when spoken are slanderous, and, when written, libelous, although that legal distinction has been rendered obsolete in jurisdictions such as Australia. Indeed, the legal definition of defamation varies from jurisdiction to jurisdiction.

Presently, in the United States, the scandalous words must be false, or, if true, must have false implications. So it is said that the perfect defense against a defamation suit is truth. Elsewhere, depending on time and place, hailing back even to ancient Rome, statements injurious to reputation may be either true or false. That is, true statements can be defamatory, sometimes with the exception that they are allowed if justified as necessary to protect the public.

Some persons are more famous than others. The public order may depend on the good reputation or majesty of its leaders, especially when the leader happens to be a virtual god, say, a Roman emperor, or a king, say, of England, who rules by divine right, notwithstanding that any singular god is apparently both good and evil despite theodical caviling that attempts to explain how a presumably absolutely good and omnipotent god can countenance evil.

To publish a detraction of a majestic sovereign who claims to be the supreme or divine representative of the people would be a seditious libel whether its propositions were true or false, providing that the sovereign powers deemed it threatening to the peace of the state.

Some sovereigns have thinner skins than others, especially when envious nobles i.e. “known” or famous persons including “equals” are vying against one another and their ruler for fortune and power. Today, where the people are sovereign, seditious libel involves the publication of words designed to incite the violent overthrow of government.

Tiberius Claudius Nero, the emperor who ruled the Roman Empire as a virtual dictator from 14 AD to 37 AD, allowed that almost any offense against the law was an offense against his majesty and therefore treasonous. That allowed common informers known as “delators” to aid and abet rivalries and thus obtain wealth and titles by accusing or informing on people against whom they or advocates would bring action in the Senate, ostensibly presided over by the emperor.  Tacitus relates (or delates) in his Annals that:

“If anyone impaired the majesty of the Roman people by betraying an army, by exciting sedition among the commons, in short, by any maladministration of the public affairs, the actions were matter of trial, but words were free. Augustus was the first who used to take cognizance of libels under pretence of this law, incensed by the insolence of Cassius Severus, which had prompted him to asperse distinguished persons of both sexes by coarse lampoons. Soon after, Tiberius, when Pompeius Macer, the praetor, consulted him ‘whether trials should be had under this law’ answered,’ said ‘that the laws must be executed.’ He also was exasperated by the publication of satirical verses written by unknown authors, exposing his cruelty, his pride, and dissensions with his mother.”

Of course experienced advocates or lawyers were more likely to be successful in taking a denunciation to trial, and senators disgraced themselves by acting as delators, exposing even one another and their own families to depredation, banishment, and death.

“This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times : equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion  of the times. “(ibid)

A prominent, reputable person and his family might be defamed and ruined by a charge that would be considered trivial today, such as consulting with an astrologist or palm reader for advice as to what a judge will decide in a pending case. They were banished or executed and their estates confiscated. Suicide prior to judgement was for a time a way to save family and fortune. Tacitus tells us of a case brought under the imperium of Nero:

“A charge of recent date involved the daughter in her father’s (Soranus) peril: it was, ‘that she had distributed sums of money among the magi.” Such was the fact, it must be admitted; but it arose from the filial piety of Servilia, for that was her name, who out of affection for her parent, and with the simplicity natural to so young a creature, had merely consulted them “on the safety of the family: whether Nero would be disposed to mercy, and whether the investigation before the senate would issue in anything of a formidable nature”….  The accuser then questioned her, “whether she had not sold her bridal ornaments, and even the chain off her neck, to raise money for the performance of magic rites?” At first she fell prostrate upon the floor, and continued for a long time bathed in tears and speechless; afterwards, embracing the altar and its appendages, she said, ” I have prayed to no malignant deities: I have used no spells: nor did I seek aught by my unhappy prayers than that you, Caesar, and you, fathers, would preserve this best of fathers unharmed. With this view I gave up my jewels, my raiment, and the ornaments belonging to my station; as I would have given up my blood and life, had they required them. To those men, till then unknown to me, it belongs to declare whose ministers they are, and what mysteries they use; the prince’s name was never uttered by me except among the gods. Yet to all this proceeding of mine, whatever it were, my most unhappy father is a stranger; and if it is a crime, I alone am the delinquent.’ …. Thrasea, Soranus, and Servilia were indulged with the choice of their mode of death….” (ibid)

The reader should keep in mind when reading Tacitus that he tended to repeat what amounted to gossip, that his accounts of Tiberius were frequently contradictory and at variance with other historical narratives. The reader may consult The History of that Inimitable Monarch Tiberius (1811) by Reverend John Rendle for a scholarly exposé of Tacitus’ history and the elevation of Caesar Tiberius into virtual sainthood.  Of one thing we can be sure, the empire was pestered and plagued by common informers.

Anyone who reads the law at length today might notice that the law especially case law or casuistry is irrational, and he might therefore resort to an astrologer for advice on cases. Americans prefer their laws in writing, but then lawyers i.e. licensed delators plead cases for fees, judges interpret it for salaries. The adjudications add to the vagaries of the “unwritten” or common law, which they all are wont to say is perfectly reasonable, protecting a profession that virtually rules every walk of life.

The more sophisticated Roman delators developed some rather absurd but winning arguments at trial to prove their cases. One interesting plea, a charge of defamation, is related by Tacitus, who as a historian is a sort of common informer or denunciator since his every writing constitutes an indictment of the ruling elite of the age. He certainly was interested in defaming emperors, who were creatures of their time and culture, some of which seems to persist to this day as the Cosa Nostra or what is popularly called the Mafioso.

Here is the legal tactic: Good can be found without evil in every man and the gods he projects. When prosecuting someone for slander, testify that he pronounced all the known faults of a person, not mentioning the virtues. People who know the person will believe those things were said about him because they are true.

“Granius Marcellus, praetor of Bithynia, was prosecuted for high treason by his own quaestor, Cepio Crispinus; Romanus Hispo supporting the charge. This Cepio began a species of avocation, which through the miserable times and the daring wickedness of men afterwards became very common and notorious; for, at first needy and obscure but of a restless spirit, by creeping into the good graces of the prince, who was naturally cruel, by secret informations, and thus imperiling the life of all the most distinguished citizens, he acquired influence with one, but the hatred of all, and thus exhibited an example, by following which men from being poor became rich, from being contemptible became formidable. and, after bringing destruction on others, would perish by their own arts. He accused Marcellus of “holding defamatory discourses concerning Tiberius,” a charge which it was impossible to repel, when the accuser collected all the most detestable parts of the prince’s character, and framed his accusation with reference to them; for because they were true they were believed to have been spoken. To this Hispo added,” that the statue of Marcellus was by him placed higher than those of the Caesars, and that having cut off the head of an Augustus, he had in the room of it set the head of a Tiberius.” At this (Tiberius) flew into such a rage, that breaking silence he cried out, that “he would himself, in this cause, give his vote openly, and upon oath,” that the rest might be under the necessity of doing the same. There remained even then some faint traces of expiring liberty. Hence Cneius Piso asked him, “In what place, Caesar, will you give your opinion? If first, I shall have your example to follow; if last, I fear I may unwittingly dissent from you.” Deeply affected by these words, and by how much the more indiscreetly he had let his passion boil over, by so much the more submissive now from regret that he should have committed himself, he suffered the accused to be acquitted of high treason. “(ibid)

So Tiberius shamed himself, and the truth set Marcellus free. But that did not have to occur. If the sovereign had not acted so shamefully as a person at the trial, Marcellus might have been convicted of insulting the sovereignty itself, strangled and hurled down the infamous steps to rot; and likewise anyone who begged askance or who loved him enough to shed tears. By the way, the other charge, that of peculation, was referred to a court of justice with jurisdiction.

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On Common Informers Good and Evil

COMMON INFORMER JPG

“I confess, it is my nature’s plague, To spy into abuses; and oft my jealousy Shapes faults that are not.” – Othello

COMMON INFORMERS GOOD AND EVIL

BY

DAVID ARTHUR WALTERS

A wise man may live well, and a government that knows all may govern for the common good. The good citizen not only obeys the laws, he bears witness against law breakers. He is a common informer. If everyone, although not personally aggrieved, had the duty and material incentives and standing in court to personally or by his private attorney denounce and prosecute, as a representative and common informer of the people, without resort to public prosecutors, anyone for any civil or penal violation of law that he has espied or become aware of, the proverbial war against incivilities and crimes including the malfeasances of government would be won. Or so it seems.

The good man has introjected the mores of his culture, concealing his resentment the best he can, hence he is self-governed even to the extent of punishing himself for real and imaginary infractions. Alas then that man by nature is inclined to break every law made by others and himself at one time or another, and sometimes almost all the time. So the individual is a natural born criminal. He is divided within, fundamentally set against the impositions of the forces that he must love and obey or else perish. There exists a struggle for survival where some live at the expense of others when individual life is god.

So the other side of the story is that man “is born in sin,” that is, with a will of his own, opposed as it is from time to time not only to the will of a few others around him, but to the common good. And the trouble with the common good on this planet is that Good wants definition by people who are inherently selfish and thus differ in their definitions; even majority rule falls short of the common good. If the will of a faction small or large is uniformly imposed on all, their version of the common good could constitute the worst state of affairs, either chaos at one extreme, or a totalitarian police state at the other.

Indeed, the notion that the ability of a “common informer” to prosecute others for violations of law in the stead of a public prosecutor guarantees the freedom of the people and ensures integrity in government has proven to be a very bad idea when there are few civil rights including due process of law, and the motive for complaining is revenge or greed for property and other forms of power. In any case, it is highly unlikely that the motivation of a common informer is altruistic, or that he acts for the sake of duty. We may concur with Kant that it is “absolutely impossible by experience to discern with complete certainty a single case” of anyone acting solely for the sake of duty, and that a “cool observer is bound to be doubtful sometimes whether true virtue can really be found anywhere in the world.”

Today we have whistleblowers in the United States who are rewarded for prosecuting persons for making false claims on the government or who otherwise cheat the treasury. The public prosecutor may or may not step in after the informer complains; if he does, the prize will more likely be won. The whistleblower may recover his costs if he must prosecute a case himself, and the reward may be substantial, running into millions of dollars in some cases. Whistleblowers are naturally despised by the persons exposed. Everyone has something to hide, so he tends to hate “rats,” but he also cannot help admiring one who brings down the rich and powerful, and he envies one whose reward is substantial.

The federal and local whistleblower acts are a vestige of English law derived from Roman law. There was no official public prosecutor such as an attorney-general available in ancient Rome. Citizens, foreigners, and even slaves could originate libels or suits against prominent persons, currying favor with emperors and nobles, taking advantage of their resentments, jealousies, and rivalries, and in the process slaves won their freedom and other persons of low birth sometimes won great fortunes and high office for themselves. The most successful of these “common informers” were advocates i.e. lawyers. The whole lot of them, the paid informers, accusers, denunciators, witnesses and calumniators as well as those who served their mandating clients as advocates in the court of justice and the senate, were impugned as “delators,” meaning tattlers.

The most infamous form of delation endured nearly a century during the Roman Empire, reaching its height during the imperium of Tiberius Caesar. The practice had begun with laying the name (nomen deferre) of someone who owed property or taxes to the treasury before a magistrate. These fiscal delators, who received a portion of the value collected, as do whistleblowers today, were part of the state machinery. The category of offenses was extended to include celibacy, adultery, defamation, collusion (prevarication), perjury, tergiversation (bribery or intimidation to drop cases instead of resorting to a formal abolition), perjury, and treason.

The delator received roughly a fourth of the penalty, which could included the entire estate of a wealthy person exiled or executed, and the treasury got the rest. The reward could include high office. The denounced person, to salvage whatever he could, might denounce himself for the delator’s portion of the reward. If his life was at risk, suicide would save his estate against the judgment; the delator would still get his reward but it would come from the treasury. Political cases were tried before the senate.

Eventually a charge of treason was added to every offense charged against prominent persons since every crime is in a sense against the state or the emperor, the incarnation of the people. Nowadays we distinguish political crimes from civil crimes. But all crimes are political inasmuch as they are crimes against the state to be prosecuted by someone on behalf of the state and not by particular victims. Happily, that advance in procedure, based on the notion that a realm belongs to its sovereign and all crimes committed therein are therefore offenses against him, supplanted feuding, where everyone was a law unto himself except when on royal grounds and highways. In any case, it served delators, the emperor, and the treasury well to make the emperor an offended party to every kind of complaint no matter how remote the offense was from political business.

Delators always found plenty of muck to rake given the corruption of their day. Of course some sort of documentation was required to support a charge, yet clever sophists could create muck out of thin air if none were found. If their case failed, however, the delator and his mandator or sponsor would have to suffer the penalty they wanted for the accused.

Commoners were not the only informers. Even senators stooped to betray their colleagues and best friends and family members for the rewards. So it is no wonder that delation fell into disrepute. The muckraking delator had a status lower than the garbage collector.

The infamous practice waned by the time of Tacitus, the historian credited with rendering Tiberius so infamous by emphasizing the evils in his contradictory anecdotal gossip in his Annals. Tacitus was himself a muckraker or sort of common informer, laying the evils of the times on Tiberius, who reportedly attempted to follow in the steps of Augustus, his august predecessor, who had made use of common informers. Tiberius lacked the charisma and passion of Augustus. He took occasional steps to curb delation, perhaps with ulterior motives, and instituted other reforms. At least one academic, the Reverend John Rendle, MA, has pointed out the contradictions in Tacitus’ account, painting Tiberius as a great emperor, with a few qualifications of course, at book length in The History of That Inimitable Monarch Tiberius (1811). In sum, the Reverend agreed with “seven contemporary and other writers” that:

Tiberius was very studious of every liberal and useful science; the friend of none but virtuous and learned men as long as he lived; most cordially beloved by all his officers and men when commander and chief; the sole supporter of the Roman super-eminence during the Pannonian and German wars; by the senate made equal in power to Augustus five years before he became a Monarch; a detester of flattery and all pompous titles long after he was a monarch; the abhorrent opposer of his own deification in the tenth year of his monarchy; most eminent, exemplary, great, just and humane long after the disaster at Fidenae (collapse of the amphitheatre that killed or injured 20,000); an eater of human flesh and drinker of human blood after he was so very exemplary; the universal dispenser of the blessings of peace during most of his reign; permitted the worst of all civil wars to rage at Rome from the fourteenth to the nineteenth of his reign; overcome by the pressure of family affections during the first years of the same period; negligent of the gods, but attentive to some one god in the decline of life; a friend of Jews and the maintainer of Jewish rights always; a hearer of the law and a partial doer of it from the time he went to Rhodes; remarkably inquisitive about futurity sometime before he died; a believer in the divinity of Jesus Christ in the fourteenth year of his reign; the abolisher of al sanctuary protections after the Jews and preferred Barabbas to Jesus; the first prohibitor of immediate executions before the death of Sejanus; the nursing father of the infant Catholic Church during the last eight years of his reign; the protection of Jewish Christians as not blasphemers in the sixteenth year of his reign; of all kings or autocrats the most venerable when old; as some affirmed, prefigured by that of a phoenix; solemnized with due pomp and at the public expense as his funeral; and, lastly, who, at his death, followed Augustus to the residence of the gods.

Tacitus’ descriptions of the pestilent effects of delation rings true, however, reminding us of East Berlin under surveillance by the Stasi, the U.S.S.R secured by the KGB, and other totalitarian states that have been established throughout the world.

This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times: equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion of the times….. At no time was the city in a state of deeper anxiety and alarm, never was there greater need of caution against a man’s nearest relatives; men were afraid to meet, afraid to discourse: silence and distrust extended alike to strangers and acquaintance, and both were equally avoided: even things dumb and inanimate, roofs and walls, were regarded with apprehension. Annals

An example related by Tacitus was the case of four informers who had all been praetors (elected magistrates) set up a trap to gather evidence against a Roman knight by the name of Titus Sabinus. They endeavored to get rid of him because he stood in the way of their aspirations to consulship, which could be obtained through the auspices of Lucius Aelieus Sejanus, the praetor prefect who practically ruled Rome during the moody absences of his best friend Tiberius, who would eventually become wary of a coup and have him imprisoned, strangled and tossed down the Gemonian stairs to rot. Sabinus’ offense was his friendship for Tiberius’s nephew, “Germanicus,” the agnomen given him after to his victories in Germany. Germanicus died of a mysterious disease, rumored to have been poisoned at the behest of Tiberius. The praetors Latinius Latiaris was enlisted to curry favor with Sabinus, attracting him into his home, where senators were hidden in the attic with their ears glued to “nooks and crannies.” Latiaris induced Sabinus to denounce Sejanus for his cruelty, pride, and terrible plots, and, in the process of doing so, Tiberius was uttered against as well. This information was dispatched in the form of a written memorial to Tiberius, who sent a letter a letter to the senate on the matter, then indicted Sabinus before the senate for treason in terms that required vengeance. The historical accounts of his death are contradictory; Tacitus claims that Sabinus was dragged out and immediately put to death.

Naturally paranoid megalomaniacal emperors representing themselves as the divine incarnation of the people could take offense at almost any offense reported by a common informer as treason, striking fear into the hearts of the people they supposedly represented that the slightest hint of disagreement or even a tear shed over the death of a relative who happened to be the emperor’s enemy might result in their own prosecution and demise. A modern historian sums up the ancient annals as follows:

“The law decreed that the informer should receive a quarter of the goods belonging to the condemned, but this sum was often exceeded when the victim was a person of importance. After the condemnation of Thrasea and Soranus the chief informers each received five million terces (one million francs), and by these means scandalously large fortunes were quickly acquired. Epriuss Marcellus and Vibius Crispus earned at this trade three hundred million sesterces (sixty million francs). The Emperor was not satisfied with repaying their services by money, he also lavished upon them all the State dignities. After each important case there was a distribution of praetorships and edileships. These ancient republican dignities served as a price for shameful compliance. Nothing, according to Tacitus, was a greater offence to honest people than to see the informers “displaying the sacerdotal offices and the consulate, as though they were spoils taken from the enemy.” At the end of Tiberius’ reign men only became consul when they had ruined one of Caesar’s enemies. And under Domitian it was the shortest road by which public dignities could be attained. In this way, towards the time of Tiberius, informers issued from all ranks of this corrupt society. Seneca tells us, “That on every side there was a mania for informing which emptied Rome more quickly than a civil war.”Nothing is richer in contrasts than the group of informers that Tacitus describes to us; every social rank and position are represented in it. By the side of this crowd of smaller people-slaves, freedmen, soldiers, schoolmasters–we also find the names of a few of the old nobility, a Dulabella, a Scaurus, and even a Cato. There were bold cynical informers, who prided themselves on defying public opinion, who made honest men blush and were proud of doing so, who boasted of their great deeds and claimed glory for them. There were informers belonging to the lower classes, who commenced by the vilest functions, and who having reached wealth and power always retained something of their origin, like Vatinius, whom Tacitus calls one of the monstrosities of Nero’s court. He was formerly a cobbler, and owed his fortune to the buffoonery of his mind and the deformities of his body. And lastly, there were elegant informers, who piqued themselves on their distinction and fine manners, and who gracefully asked for a man’s death. One day an informer of this class appeared before the Senate, dressed in the latest fashion, a smile upon his lips, he came to accuse his father. [Gaston Boissier “Etudes des Moeurs Romaines sous I’Empire,” in The History of Ancient Civilization, A Handbook Based Upon m. Gustave Ducoudray’s Histoire Sommaire de la Civilization, Ed. Rev. J, Verschoyle, New York, Appleton & Company 1889]

Common informers albeit always despised continued to pester the Empire after Tiberius from time to time. His successor Caligula (37-41), who would eventually be assassinated, declared an amnesty and halted the treason trials, thus getting rid of the informers except himself. Much maligned Nero (54-68), who famously committed suicide following a false report that he was about to be executed as a public enemy number one, reduced the rewards to common informers. Titus (79-81), an anti-Semite whom the Talmud reports died pleading with YHWH for mercy because a gnat flew up his nose and turned into a bird, persecuted the informers. His younger brother, totalitarian-minded Domition (81-96), who would be assassinated, encouraged them.

Edward Gibbons’ Decline and Fall of the Roman Empire recounts that Commodus (177-192), the son of Marcus Aurelius, the last of the Five Good Emperors, became suspicious that senators were conspiring to assassinate him. The senators hated the megalomaniacal Commodus, who considered himself to be a demigod, and celebrated himself as the new Hercules and Romulus, but the conspiracy that had him strangled in his bath by his wrestling partner, Narcissus, was actually formed by a prefect named Laetus; the Senate thereafter declared Commodus to be a public enemy. Common informers enjoyed a resurgence of delation due to his delusions of grandeur and persecution (paranoia).

The Delators, a race of men discouraged, and almost extinguished, under the former reigns, again became formidable as soon as they discovered that the emperor was desirous of finding disaffection and treason in the senate. That assembly, whom Marcus had ever considered as the great council of the nation, was composed of the most distinguished of the Romans; and distinction of every kind soon became criminal. The possession of wealth stimulated the diligence of the informers; rigid virtue implied a tacit censure of the irregularities of Commodus; important services implied a dangerous superiority of merit, and the friendship of the father always insured the aversion of the son. Suspicion was equivalent to proof; trial to condemnation. The execution of a considerable senator was attended with the death of all who might lament or revenge his fate; and when Commodus had once tasted human blood, he became incapable of pity of remorse.

Eventually offenses other than treason were prosecuted in the courts of justice by the aggrieved parties or their attorneys. Constantine (306-337), reputedly the first Christian emperor, punished them. Edward Gibbon’s research of ancient writers who freely exposed the faults of Constantine confessed that his predecessor Maxentius (306-312), who drowned in a river fleeing Constantine’s victorious army, was far worse than Constantine, that he was cruel, rapacious, and profligate, and that his suppression of a slight rebellion in Africa “was followed by the abuse of law and justice. A formidable army of sycophants and delators invaded Africa; the rich and the noble were easily convicted of a connection with the rebels; and those among them who experienced the emperor’s clemency were only punished by the confiscation of their estates.”

Theodosius (379-395), whose will divided a reunified empire between East and West at his death, made a nice distinction between common informers and persons willing to denounce pagans and heretics such as the Manicheans:

“In the mind of Theodosius Christianity and citizenship were coterminous and anyone who denied Christ automatically made himself an outlaw of the Christian Roman society. An even more sternly worded edict against the Manicheans was issued by Theodosius (31 March 382) in which the recipient, Florus, the praetorian prefect, was told to establish special courts for the trial of Manicheans and receive (anonymous) informers (indices) and denouncers (denunctiatores) without the odium of delation. It was a well-held principle of Roman Law that frivolous or baseless accusations put forward by anonymous indices should be discouraged and all accusation should be conducted by formal delation in which an unsuccessful delator was liable to an action for calumnia. Constantine laid down in a law of 313 a certain regulations concerning informers and threatened those who broke them with the death penalty and this was reaffirmed by a later law of 319.” (Samuel N.C. Lieu, Manichaeism in the Later Roman Empire and Medieval China (1992)]

Given human nature, vestiges of delation were destined to survive and bloom full after the end of the Western Roman Empire in 476 when Romulus Augustulus was deposed by the Germanic King Odoacer (476 CE). Sidonius Apollinaris (430-489), prefect of Gaul, denounced them in a letter: “They are the wretches, as you yourself have heard me say upon the spot, whom Gaul endures with groans these many years, and who make the barbarians themselves seem merciful in comparison. They are the scoundrels whom even the formidable fear. They are the men whose peculiar province it seems to be to calumniate, to denounce, to intimidate and to plunder.”

Byzantine Emperor Justinian (527-565) had the ancient Roman laws compiled, using as primary source the Institutes of Roman Law (160 AD) composed by the celebrated Roman jurist Gaius. Delation was described therein as a popular action brought by an informer for a reward, where the informer enforces a public right, suing as a procurator for the people. Infamous or ignominious persons such as prostitutes, pimps, gladiators, dancers, alien homosexuals and others defamed by a censor or praetor were not allowed to serve in that capacity. Criminals, however, were naturally encouraged to inform on others.

Justinian’s Code, a unit within his Corpus Juris Civilis along with the Digest and Institutes, clearly prohibits delation unless the “detestable” or “execrable” delator is a fiscal informer who benefits the state treasury. Informers who protect the property interests of cities, however, shall not be considered odious. Slaves who inform on their masters shall be executed even if their accusations are true.

“Neither a servant nor freeman shall be permitted to be an informer and no one need fear death or loss of property from that source. And if anyone informs against another that he has found a treasure or for some other reason, he shall, if he be a slave, be at once delivered to a death by fire, especially if he should inform against his master; if he be free, his goods shall be confiscated, he shall lose his citizenship and shall be banished from the soil of the Roman Empire.”

If an informer is “proven to be a malicious accuser, or if he desists from the accusation and hides, he shall, if he disdains a pecuniary punishment on account of the smallness of his property, be subjected to lashes and to perpetual banishment; but if he belongs to the imperial service or has an honorable position of possesses ample property, he shall lose both his position and property, and will be forbidden to reside in the imperial city or in the province.”

The Turkish Ottomans brought the Eastern Roman (Byzantine) Empire in the East to an end with a 53-day siege culminating with the fall of its capital, Constantinople, to an army led by a 21-year old sultan in 1453, a grievous blow as well to Christendom in the East. By then common informers had by no means vanished from the face of the Earth. Delation persisted in Europe where Romans had established themselves, thriving, for example, for centuries in Britain. The English would put so-called common informers to use whether they could personally prosecute a case or not. For example, Catholicism was harassed by them by virtue or vice of the 1699 “Act for further preventing the growth of Popery (11 & 12 Gul. III, 4) offer a reward to common informers of a 100-pound reward for the apprehension of priests.

The libels or writs of common informers who could prosecute cases themselves in England were called as a qui tam (“who as well”) writs, from qui tam pro domino rege quam pro se ipso in hac parte sequitur, “he who sues in this matter for the king as well as himself.” More specifically, a qui tam was an action under a statute which imposes a penalty for the doing or not doing an act, and gives that penalty in part to whosoever will sue for the same, and the other part to the commonwealth, or some charitable, literary, or other institution, and makes it recoverable by action. The plaintiff describes himself as suing as well for the commonwealth for example, as for himself.

In the thirteenth century, prior to the inclusion of qui tam in statutes, qui tam was a means of bringing a suit rather than a peculiar form of action, so a non-statutory qui tam plaintiff filed his suit in an ordinary general writ as if he were suing to recover for an ordinary wrong. There were two types of non-statutory qui tam, then, that allowed private plaintiffs to file complaints in the emerging royal courts: one served the interests of parties who had actually suffered a wrong; the other included the interests of the common informer in their bounties. Eventually, in the fourteenth century, the jurisdiction of the royal courts was extended to the hearing of complaints from the aggrieved parties themselves without the qui tam means, leaving qui tam as the tool of common informers.

A qui tam action has rarely if ever been used in England since the Common Informers Act of 1951 abolished the provision of rewards to private citizens for bring suits on behalf of the state. Qui tam is, however, alive and well in the United States in so-called whistleblower acts; e.g. the federal False Claims Act where a “relator,” someone who relates information to obtain a specific reward, can step in and file a writ against someone defrauding or cheating the government.

Edward Coke (1552-1634), who served Britain variously as Chief Justice of the King’s Bench, Chief Justice of the Common Pleas, Attorney General and Solicitor General for England and Wales, took common informers to task in his Institutes of English Law: Third Part Concerning High Treason, And Other Pleas of the Crown, and Criminal Causes (1798) Capitulo 88, “Against Vexatious Relators, Informers, Promoters upon Penal Statutes.” The foregoing persons he labeled in Latin “turbidum hominem genus” i.e., men who stir up trouble i.e. muckrakers. He attributed a “multiplication of suits in law” in part to “the swarm of informers” and a “multitude of attorneys.”

“Informers and relators,” he wrote, “raised many suits, by informations, writs, &c. in the King’s Courts as Westminster upon penal statutes, many whereof were obsolete, inconvenient, and not fit for those days, and yet remain snares upon the subject…. Lastly, the multitude of attorneys, more than is limited by law, is a great cause of increase in suits.”

Informers, he claimed, are “viperous vermin, which endeavored to have eaten out the sides of the church and the commonwealth.” So laws were made in the 18th and 28th and 31st year of Queen Elizabeth’s reign including corporal punishment to rein in common informers, but another law to the same end is required because there people are still causing a great deal of grief to the Queen’s subjects. He explained that many obsolete penal laws remain on the books as snares which relators, informers and promoters used to vex and entangle subjects. For example: statutes regulating the price of poultry, the transportation of corn, the price of hats, caps, candles. broadcloth, concerning vagabonds, unlawful games, and alehouses, the sale of wine, decay of houses, buying of wool, keeping of great horses, manufacture of locks, rings and crosses, the sale of colored cloth, and so on. The king’s courts in Westminster are being clogged with suits brought by common informers from counties everywhere so that Westminster is likely to suffer from apoplexy. To make matters worse, an informer in one county can at his pleasure bring suit against an alleged infraction in other counties where parties and witnesses are unknown.

Therefore the “Act for the Ease of the Subject concerning the Informations upon Penal Statutes,” in short, “the Common Informers Act of 1623,” (21 Jac. 1, c. 4), specifies “That all offences hereafter to be committed against any penal statute, for which any common informer or promoter may lawfully ground any popular action, bill, plaint, suit or information, &c. shall be commenced, sued, prosecuted, &c. in the counties where the offenses were committed, and not elsewhere.”

The foregoing was apparently insufficient, as we can see from “The Common Informer,” an article by dramatist (“the little Shakespeare”) and journalist Douglas William Jerrold (1803-1857), published in London in 1840 by Vizetelly & Co. in the book entitled, Heads of the People, Portraits of the English.

We all know that many people love to complain about trivial breaches of conduct. They will complain all the more given a reward for complaining, no matter how small. “It is but a few days since,” indited Jerrold, “that a celebrated Informer laid an information against the servants of our maiden queen for having failed to emblazon her initials on the vehicle, and thereby having exposed their gracious mistress to the fatal visitation of a fine. But queens are seldom caught tripping; and, by some means, we are happy to state that Her Majesty escaped the stern sense of justice animating the bosom of the Informer, though we have felt it due to him to chronicle the circumstance, as displaying the virtuous boldness of his character.”

He observed that “The Common Informer so generally confines himself to the healthful castigation of the poor, that he is assuredly an Informer very far from the common who has the moral courage to make known the peccadillo of a queen.” That was certainly not the case in Rome of yore, where vast fortunes were made by delators.

What does a common informer look like? According to Jerrold:

“The Common Informer combines in his visage the offensive acuteness of a sharp-practicing attorney, with the restlessness of an illegal pickpocket: we have seen a Common Informer with a face that reminded us of a shaven ferret. We have read what we think may be adduced as good reason for this. Babies feeding at the breast, and gazing up at the face of the parent, are said to become endowed with a resemblance of the mother: the Common Informer, with his eyes constantly fixed on the flaws and crookednesses of the statutes, and feeding upon them, contracts in his features an habitual sharpness and wary meanness of expression, a sort of hungry half-sagacity, illustrative of his beloved studies. The Common Informer is, in fact, the child, the lawful offspring of the silly, the bungling, and the bigoted legislator: hence, the Most Noble the Marquis of —– may, and know it not, be the legislative father of a Johnson and a Byers. If Common Informers have a patron saint, sure we are it must be Saint Stephen.”

“But, it shall be opposed, the Common Informer may be an injured goodness, a real benevolence under a cloud of odium; inasmuch as his labors, suspected and despised as they always are, may, in many instances, enforce the working out of legislative wisdom, and thus ensure to society the blessings of parliamentary philanthropy. All praise to the Common Informer when such is his design! He is then, indeed, a moral presence,–a philosophic goodness toiling under a bad name. Great, indeed, is his character; noble his purpose, contemplated by this light: and yet, unhappily, we cannot call to our recollection the names of any illustrious Informers who, with valuable eccentricity, have worked for the public good in the abstract, where half the imposed fine did not revert to themselves in the concrete….. Bentham has declared the functions of the Common Informer to be most honorable: in truth, Cato, with his sour face and bare feet, might have plied the trade, gaining a civic wreath for the energy and utility of his practice….”

Indeed, the benevolent side of the story had been well elucidated by the inestimable jurist and reformer Jeremy Bentham (1748-1832) and is well worth quoting at length. He rationalized, under the title, “Rationale of Reward,” the provision of bounties to informers:

In this country where, properly speaking, there is no public prosecutor, many offences, which no individual has any peculiar interest in prosecuting, are liable to remain unpunished. In the way of remedy, the law offers from £10 to £20, to be levied upon the goods of the offender, to whoever will successfully undertake this function: sometimes it is added, that the expenses will be repaid in case of conviction: sometimes this is not promised. These expenses may amount to thirty, fifty, and even one hundred pounds; it is seldom as little as twenty pounds. After this, can we be surprised that the laws are imperfectly obeyed?

It may be added, that it is considered dishonorable to attend to this summons of the laws. An individual, who in this manner endeavors to serve his country, is called an informer; and lest public opinion should not be sufficient to brand him with infamy, the servants of the law, and even the laws themselves, have on some occasions endeavoured to fix the stain. The number of private prosecutors would be much more numerous, if, instead of the insidious offer of a reward, an indemnification were substituted. The dishonorable offer being suppressed, the dishonor itself would cease.

And who can say, when by such an arrangement the circumstance which offends it is removed, whether honor itself may not be pressed into the service of the laws? …. In vain did the Roman emperors bestow honors upon the most odious informers; they degraded the honors, but the informers were not the less infamous. But it is not enough that it does not oppose the prejudices: it is desirable that every reward should obtain the approbation of the public. The execution of a law cannot be enforced unless the violation of it be denounced; the assistance of the informer is therefore altogether as necessary and as meritorious as that of the judge.

It is odious (it is said) to profit by the evil we have caused to others. This objection is found on a feeling of improper commiseration for the offender; since pity towards the guilty is cruelty towards the innocent. The reward paid to the informer has for its object, the service he has performed; in this respect, he is upon a level with the judge who is paid passing sentence. The informer is a servant of the government, employed in opposing the internal enemies of the state, as the soldier is a servant employed in opposing its external foes. It introduces into society a system of espionage. To the word espionage, a stigma is attached let us substitute the word inspection, which is unconnected with the same prejudices. Pecuniary may induce false to conspire against the government. If we suppose a public and well-organized system of procedure in which the innocent are not deprived of any means of defense, the danger resulting from conspiracy will appear but small.

These objections are urged in justification of the prejudice which exists; but the prejudice itself has been produced by other causes; and those causes are specious. The first, with respect to the educated classes of society, is a prejudice drawn from history, especially from that of the Roman emperors. The word informer at once recalls to the mind those detestable miscreants, the horror of all ages, whom even the pencil of Tacitus has failed to cover with all the ignominy they deserve: but these informers were not the executors of the law; they were the executors of the personal and lawless vengeance of the sovereign.

These cases of tyranny excepted, the prejudice which condemns mercenary informers is an evil. It is a consequence of the inattention of the public to their true interests, and of the general ignorance in matters of legislation. Instead of acting in consonance with the dictates of the principle of utility, people in general have blindly abandoned themselves to the guidance of sympathy and antipathy — of sympathy in favour of those who injure — of antipathy to those who render them essential service. If an informer deserves to be hated, a judge deserves to be abhorred.

The prejudice also springs from a confusion of ideas. No distinction is made between the judicial and the private informer; between the man who denounces a crime in a court of justice, and he who secretly insinuates accusations against his enemies; between the man who affords to the accused an opportunity of defending himself, and he who imposes the condition of silence with respect to his perfidious reports. Clandestine accusations are justly considered as the bane of society: they destroy confidence, and produce irremediable evils; but they have nothing in common with judicial accusations.

Besides the prodigious difficulty of inventing a coherent tale capable of enduring a rigorous examination, there is no comparison between the reward offered by the law, and the risk to which false witnesses are exposed. Mercenary witnesses also are exactly those who excite the greatest distrust in the mind of a judge, and if they are the only witnesses, a suspicion of conspiracy instantly presents itself, and becomes a protection to the accused.

Three years prior to the publication of Jerrold’s article in the mother country, we find this report, entitled “Report On The Abolition of Capital Punishment” (Paper No. 4, 1837, issued by the Massachusetts House of Representatives Committee on Capital Punishment:

Whereas Revenge is an Unholy Passion and the Law must be Wholly Passionless: There may have been many cases where government found it expedient to employ revenge, as well as other bad passions, to execute its decrees: such a necessity is to be regretted, and the practice abandoned as soon as the necessity ceases. Encouraging common informers was an expedient of this sort, very common in our own laws, but it has been wisely stricken out in almost every instance from the Revised Statutes.” Fixing a price upon the head of a refugee was once thought just and useful, but is now condemned. Promising pardon to an accomplice, to induce him to testify against his fellow criminal, is a use now made of the treachery which is despised while it is used. In a state of nature, every man revenges to the utmost of his power the injury that he has received: retaliation is the only rule of punishment. In a rude state of society these practices are suffered to continue, because they cannot be prevented. The law only undertakes to restrict them within certain limits, and to forbid their most cruel excesses. The legislator, who should enact laws which presuppose a more elevated standard of morality, would find that public opinion did not sustain him, and that his statutes would remain inoperative and useless. It has been observed, that among a people hardly yet emerged from barbarity, punishments should be most severe, as strong impressions are required; but in proportion as the minds of men become softened by their intercourse in society, the severity should be diminished, if it be intended that the necessary relation between the infliction and its object should be maintained. For this reason, the indulgence of individual revenge is much less an evil, while society is obliged to tolerate it, than it would be in a later stage, when it might be, and ought to be suppressed.

Bentham’s suasions held for a century and a half in Britain, but in 1951 fell to an ‘Act to abolish the common informer procedure’ (14 & 15 Geo. 6, c. 39):

“No proceedings for a penalty or forfeiture under any Act in the Schedule to this Act or under any local and private Act shall be instituted in Great Britain against any person after the commencement of this Act. Provided that no part of the penalty or forfeiture is payable to a common informer….”

British lawmakers have since regretted the abolition of rewards to common informers. The practice is alive and well in the United States. On the federal level, the False Claims Act, called the Lincoln Law, was legislated in 1863, subsequently amended, to curb frauds on the government by punishing crooked contractors. To wit, 31 U.S.C. § 3729 et seq., provides for liability for triple damages and a penalty from $5,500 to $11,000 per claim for anyone who knowingly submits or causes the submission of a false or fraudulent claim to the United States. A qui tam provision allows common informers i.e. whistleblowers to sue on behalf of the government and collect from 10 to 30% of the amount recovered. The federal government recovered an estimated $60 billion under the Act since 1987, of which over two-thirds was derived from qui tam actions brought by relators. States and other jurisdictions have similar statutes on the books that allow informants to collect finders’ fees. The rewards may be large. Whistleblowers, who are likely to be fired if they work for the organizations that makes the false claim, may retain law firms to have them reinstated with double back pay and to pursue the case if the government declines to intervene. The chances of recovery are much higher if the government does intervene, accounting for over 95% of recoveries as of 2015.

False claim acts do not include tax fraud. The federal and state governments otherwise pay bounties on amounts recovered from tax fraud to informants who make formal claims with governments when submitting information. Those non-qui-tam informants may not bring the suit for recovery themselves.

As we have seen, the evils of delation are believed to due to pecuniary and other material rewards made available to greedy common informers. On the other hand, greed, if that is what we must call the passion, and protection from retaliation, has results superior to other base motives such as pride, envy, wrath, malice and such. So-called qui tam actions where delators, now called relators, have a right to prosecute as private persons on behalf of government may indeed provide a better incentive for insiders to out wrongdoers than a conscious will to do their ethical duty for the public. Most whistleblowers are insiders simply because they have access inside information. Employers who treat their employees very well are unlikely to be outed by them. And the very high rate of recovery obtained when government intervenes in qui tam filings indicates that the imagination or malicious motives of common informants lead them to file frivolous or false informations.

The good citizen is expected to altruistic or to be good from a sense of duty to the common good and not from selfish reasons. But we cannot be absolutely certain in any case that an actor is self-interested. Why should he be, when the egoistic or “Dear Self” (Kant) is essential to the survival and progress of the human race?

We all have some complaints in common and are all informers to the degree we voice them. The question is, what sort of informers are we, and to what extent? We may reflect on history as if in a mirror and beg askance of our motives for answers.

No doubt the common informer is as good and evil as any other man or single god for that matter. Therefore it behooves government to make the best of him.

XYX

When Truth is Defamatory

DEFAMATION

WHEN TRUTH IS DEFAMATORY

BY

DAVID ARTHUR WALTERS

 

“Defamation” generally means using words to hurt the fame of a person (de bona fama aliquid detrahere: “to hurt his good fame.”) A person’s fame is his common or widespread reputation.

Spoken words may be easily forgotten, whereas writings may be preserved and referred to indefinitely. Defamatory words when spoken are slanderous, and, when written, libelous, although that legal distinction has been rendered obsolete in jurisdictions such as Australia. Indeed, the legal definition of defamation varies from jurisdiction to jurisdiction.

Presently, in the United States, the scandalous words must be false, or, if true, must have false implications. So it is said that the perfect defense against a defamation suit is truth. Elsewhere, depending on time and place, hailing back even to ancient Rome, statements injurious to reputation may be either true or false. That is, true statements can be defamatory, sometimes with the exception that they are allowed if justified as necessary to protect the public.

Some persons are more famous than others. The public order may depend on the good reputation or majesty of its leaders, especially when the leader happens to be a virtual god, say, a Roman emperor, or a king, say, of England, who rules by divine right, notwithstanding that any singular god is apparently both good and evil despite theodical caviling that attempts to explain how a presumably absolutely good and omnipotent god can countenance evil.

To publish a detraction of a majestic sovereign who claims to be the supreme or divine representative of the people would be a seditious libel whether its propositions were true or false, providing that the sovereign powers deemed it threatening to the peace of the state.

Some sovereigns have thinner skins than others, especially when envious nobles i.e. “known” or famous persons including “equals” are vying against one another and their ruler for fortune and power. Today, where the people are sovereign, seditious libel involves the publication of words designed to incite the violent overthrow of government.

Tiberius Claudius Nero, the emperor who ruled the Roman Empire as a virtual dictator from 14 AD to 37 AD, allowed that almost any offense against the law was an offense against his majesty and therefore treasonous. That allowed common informers known as “delators” to aid and abet rivalries and thus obtain wealth and titles by accusing or informing on people against whom they or advocates would bring action in the Senate, ostensibly presided over by the emperor. Tacitus relates (or delates) in his Annals that:

If anyone impaired the majesty of the Roman people by betraying an army, by exciting sedition among the commons, in short, by any maladministration of the public affairs, the actions were matter of trial, but words were free. Augustus was the first who used to take cognizance of libels under pretence of this law, incensed by the insolence of Cassius Severus, which had prompted him to asperse distinguished persons of both sexes by coarse lampoons. Soon after, Tiberius, when Pompeius Macer, the praetor, consulted him ‘whether trials should be had under this law’ answered,’ said ‘that the laws must be executed.’ He also was exasperated by the publication of satirical verses written by unknown authors, exposing his cruelty, his pride, and dissensions with his mother.

Of course experienced advocates or lawyers were more likely to be successful in taking a denunciation to trial, and senators disgraced themselves by acting as delators, exposing even one another and their own families to depredation, banishment, and death.

This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times : equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion of the times. (ibid)

A prominent, reputable person and his family might be defamed and ruined by a charge that would be considered trivial today, such as consulting with an astrologist or palm reader for advice as to what a judge will decide in a pending case. They were banished or executed and their estates confiscated. Suicide prior to judgment was for a time a way to save family and fortune. Tacitus tells us of a case brought under the imperium of Nero:

A charge of recent date involved the daughter in her father’s (Soranus) peril: it was, “that she had distributed sums of money among the magi.” Such was the fact, it must be admitted; but it arose from the filial piety of Servilia, for that was her name, who out of affection for her parent, and with the simplicity natural to so young a creature, had merely consulted them “on the safety of the family: whether Nero would be disposed to mercy, and whether the investigation before the senate would issue in anything of a formidable nature”…. The accuser then questioned her, “whether she had not sold her bridal ornaments, and even the chain off her neck, to raise money for the performance of magic rites?” At first she fell prostrate upon the floor, and continued for a long time bathed in tears and speechless; afterwards, embracing the altar and its appendages, she said, ” I have prayed to no malignant deities: I have used no spells: nor did I seek aught by my unhappy prayers than that you, Caesar, and you, fathers, would preserve this best of fathers unharmed. With this view I gave up my jewels, my raiment, and the ornaments belonging to my station; as I would have given up my blood and life, had they required them. To those men, till then unknown to me, it belongs to declare whose ministers they are, and what mysteries they use; the prince’s name was never uttered by me except among the gods. Yet to all this proceeding of mine, whatever it were, my most unhappy father is a stranger; and if it is a crime, I alone am the delinquent.” …. Thrasea, Soranus, and Servilia were indulged with the choice of their mode of death…. (ibid)

The reader should keep in mind when reading Tacitus that he tended to repeat what amounted to gossip, that his accounts of Tiberius were frequently contradictory and at variance with other historical narratives. The reader may consult The History of that Inimitable Monarch Tiberius (1811) by Reverend John Rendle for a scholarly exposé of Tacitus’ history and the elevation of Caesar Tiberius into virtual sainthood. Of one thing we can be sure, the empire was pestered and plagued by common informers.

Anyone who reads the law at length today might notice that the law especially case law or casuistry is irrational, and he might therefore resort to an astrologer for advice on cases. Americans prefer their laws in writing, but then lawyers i.e. licensed delators plead cases for fees, judges interpret it for salaries. The adjudications add to the vagaries of the “unwritten” or common law, which they all are wont to say is perfectly reasonable, protecting a profession that virtually rules every walk of life.

The more sophisticated Roman delators developed some rather absurd but winning arguments at trial to prove their cases. One interesting plea, a charge of defamation, is related by Tacitus, who as a historian is a sort of common informer or denunciator since his every writing constitutes an indictment of the ruling elite of the age. He certainly was interested in defaming emperors, who were creatures of their time and culture, some of which seems to persist to this day as the Cosa Nostra or what is popularly called the Mafioso.

Here is the legal tactic: Good can be found without evil in every man and the gods he projects. When prosecuting someone for slander, testify that he pronounced all the known faults of a person, not mentioning the virtues. People who know the person will believe those things were said about him because they are true.

Granius Marcellus, praetor of Bithynia, was prosecuted for high treason by his own quaestor, Cepio Crispinus; Romanus Hispo supporting the charge. This Cepio began a species of avocation, which through the miserable times and the daring wickedness of men afterwards became very common and notorious; for, at first needy and obscure but of a restless spirit, by creeping into the good graces of the prince, who was naturally cruel, by secret informations, and thus imperiling the life of all the most distinguished citizens, he acquired influence with one, but the hatred of all, and thus exhibited an example, by following which men from being poor became rich, from being contemptible became formidable. and, after bringing destruction on others, would perish by their own arts. He accused Marcellus of “holding defamatory discourses concerning Tiberius,” a charge which it was impossible to repel, when the accuser collected all the most detestable parts of the prince’s character, and framed his accusation with reference to them; for because they were true they were believed to have been spoken. To this Hispo added,” that the statue of Marcellus was by him placed higher than those of the Caesars, and that having cut off the head of an Augustus, he had in the room of it set the head of a Tiberius.” At this (Tiberius) flew into such a rage, that breaking silence he cried out, that “he would himself, in this cause, give his vote openly, and upon oath,” that the rest might be under the necessity of doing the same. There remained even then some faint traces of expiring liberty. Hence Cneius Piso asked him, “In what place, Caesar, will you give your opinion? If first, I shall have your example to follow; if last, I fear I may unwittingly dissent from you.” Deeply affected by these words, and by how much the more indiscreetly he had let his passion boil over, by so much the more submissive now from regret that he should have committed himself, he suffered the accused to be acquitted of high treason. (ibid)

So Tiberius shamed himself, and the truth set Marcellus free. But that did not have to occur. If the sovereign had not acted so shamefully as a person at the trial, Marcellus might have been convicted of insulting the sovereignty itself, strangled and hurled down the infamous steps to rot; and likewise anyone who begged askance or who loved him enough to shed tears. By the way, the other charge, that of peculation, was referred to a court of justice with jurisdiction.

XYX

Grand Councillor Li Ssu

 LI SSU

GRAND COUNCILLOR LI SSU

BY

DAVID ARTHUR WALTERS

Although Chao Cheng of Ch’in, who became Shih Huang Ti, the First Sovereign Emperor of China, is the majestic subject of our ancient success story, we must not ignore his Grand Councillor Li Ssu, for Li Ssu was the prime minister who rationalized the power of the throne. Indeed, some say the Legalist Grand Councillor is the primary means by which the Taoist-leaning Emperor got everything done by doing nothing.

Li Ssu was a native of Ch’u. He managed to associate himself with King Cheng of Ch’in around 247 B.C., a year or two after the thirteen-year old boy-king took the throne that he would hold for twenty-seven years prior to becoming the First Sovereign Emperor of all China for another eleven years.

Li Ssu was from humble circumstances, yet he had a mind to get ahead in life and he believed there was scant future in serving the King of Ch’u. According to the Shih Chi (Historical Records) of Ssu-ma (145-86 B.C), when Li Ssu was a petty district clerk in Ch’u, he observed that the rats eating filth in the toilet room were afraid of man and dog; but the rats living in the side-galleries ate wholesome grain from the granary and were not afraid of dog or man; whereupon Li remarked, “A man’s ability or non-ability is similar to these rats. It merely depends upon where he places himself.”

Therefore Li Ssu took up the study of high politics, particularly the study of authority (shih), law (fa) and administrative method (shu) favored by the school of legal scholars who became know as the Legalists. Their primary affection was for authoritarian government in the interest of ruler and state, in contradistinction to government in the people’s interest according to the principles of humanity espoused by various Confucians, Taoists and Mohists. As early as the seventh century B.C., impersonal law had gradually begun to take precedence over ritual morality as the feudal system crumbled and power became more concentrated in the hands of absolute monarchs. Confucius (551-479 B.C.) himself complained that laws were being written on tripods (three-legged ceremonial cauldrons) while the feudal rules of moral propriety, which specified that each person should keep his place according to his relations, were being abandoned: “When those rules are abandoned, and tripods with the penal laws on them are cast instead, the people will study the tripods. How will they then honor the men of rank, and what will the nobles do? When there is no distinction of noble and mean, how can a state continue to exist?”

One of Li Ssu’s fellow law students was Han Fei, a prince of Han whose Legalist essays were soon to be greatly admired by the rising King of Ch’in. Han Fei had abandoned his Confucian studies and taken up Legalism because it was simply more practical and germane to the times: the end of the ‘Warring States’ period. But his advice was not much appreciated by the Han ruler – perhaps Han Fei’s speech impediment detracted from his presentation. In any event, Han Fei resorted to writing his ideas down, and to this day they are an invaluable aid to the understanding of the Legalist doctrine expounded not only by him but by his schoolmate Li Ssu. They are an aid as well to those of our contemporaries who want to succeed in life and who know history is an indispensable lesson to that end.

The Legalist doctrine of Han Fei and Li Ssu is in marked contrast to that of their mutual Confucian teacher, Hsun Tzu, who has been mistakenly identified as the “father of Legalism”, an absurd identification in terms of overall doctrine: if anything, Hsun Tzu was the father of his stiffest opposition. Indeed, after Li Ssu became powerful, he respected him as if he were his father, offering the venerable teacher a nominal post in Ch’in; but Hsun Tzu, by then in his nineties, declined the offer. And no doubt the proceedings of the Ch’in would have been distasteful to him. Yes, Hsun Tzu did diverge from Confucius in a few respects, especially in his belief that men are originally evil, yet he was nevertheless a staunch Confucian in his view that men can be bent straight and true not by reward and punishment but by benevolence, rituals and moral education.

“Lead the people by magnifying the sound of virtue, guide them by making clear ritual principles, love them with the utmost loyalty and good faith, give them a place in the government by honoring the worthy and employing the able, and elevate them in rank by bestowing titles and rewards. Demand labor of them only at the proper season, lighten their burdens, unify them in harmony, nourish them and care for them as you would little children. Then, when the commands of government have been fixed and the customs of the people unified, if there should be those who depart from the customary ways and refuse to obey their superiors, the common people will as one man turn upon them with hatred, and regard them with loathing, like an evil force that must be exorcised. Then and only then should you think of applying penalties.” (translated by Burton Watson, Basic Writings of Hsun Tzu)

Moreover, Hsun Tzu believed power must be tempered by justice, and wars should only be fought to end violence, and not for profit. Good people base their conduct on morality, while depraved people are motivated by profit alone: Confucius considered those profits mere passing clouds while he rested in the pillow of the crook of his arm after eating his meager dinner of rice and water. Again, Hsun Tzu believed, contrary to Confucius’ opinion, men are originally evil; and we can hardly blame him given the warring circumstances of his time. But people can be trained to be good; to that end they should study a limited curriculum, namely, the Classics, including the ones Li Ssu eventually had burned. And there is Hsun Tzu’s link to Legalism; he too advocated an authoritarian response to the troubled times, but by means of education: the central government would have a state monopoly on education. When that monopoly was perfected, there would be no further dialectic or argument presently due to a lack of respect for the ruler’s ‘shih’ (power, authority); of course the ruler would be a model of Confucian virtue. Hence Hsun Tzu despised the military methods and the reward and punishment system of the Ch’in state, and advocated Confucian virtue. His school of thought was eventually represented by the “bookish” Confucian bureaucrats of the Han Dynasty which succeeded the Ch’in Dynasty: they took part in reconstructing the cultural tradition the Legalist approach of Li Ssu and Han Fei had worked so hard to destroy; during the reconstruction, more records were lost than were burned by their predecessors, and the beloved old literature was edited into the authoritative canon handed down to us – in other words, just how Classical the Chinese Classics are is a scholarly bone of contention.

The Legalism of Han Fei and Li Ssu is an altogether different approach to government than the traditional method taught by their teacher. Legalism is a totalitarian form of positive law. Although it is “positive” in the sense it is written down for all to see and obey, it not to be confused with the positive law of a mixed government, such as a constitutional monarchy or a democratic republic, for Legalism ultimately espouses the authoritarian methods of absolute dictatorship.

Legalism does not cater to past precedent but to the needs of the present, particularly the need of the sovereign to rule absolutely, without argument. It rejects the Confucian and Mohist worship and citation of the legendary sage-emperors Yao and Shun; what really happened two thousand years ago simply cannot be known. Han Fei wrote, “To be sure of anything without corroborating evidence is stupidity, and to base one’s argument on anything about which one cannot be sure is perjury. Therefore those who openly base their argument on the authority of ancient kings and who are dogmatically certain of Yao and Shun are men of either stupidity or perjury.”

Legalism denounces moral platitudes and vain talk and demands concrete results. Legalism demands precisely formulated, officially promulgated, and rigorously enforced laws. “A law is that which is enacted into the statute books, kept in government offices, and proclaimed to the people… Therefore for law there is nothing better than publicity.” On the other hand, “secrecy” is the prescription for “statecraft”, for the internal affairs of state, not only for its tactical value in breaking up intrigues, but also to enhance the cult of flawless Royal Power; ‘shih’ is the cornerstone of Legalism, prior to ‘fa’ (law) and ‘shu’ (statecraft).

Ample rewards and severe punishments are the means of enforcement to be directly addressed to the “two handles” of the humans to be handled: pleasure and pain. The prime objective: to prevent disobedience to the ruler’s will and interest; the ruler is an uncommanded commander whose law is beyond dialectical criticism. “To execute is called punishment and to offer congratulations or rewards is called kindness. Ministers are afraid of execution and punishment but look upon congratulations and rewards as advantages,” propounded Han Fei.

Indeed, morality is irrelevant: for instance, people do not steal food because they are evil but because they are hungry; a coffin carpenter does not build coffins to be good to people but because he wants to profit from his work. The ruler’s objective is not to make people good but to restrain them from taking action contrary to the positive law of sovereign authority. Institutions should not be judged by their morality but by their adaptation to change and to the needs of the time. Han Fei writes: “People are submissive to power and few of them can be influenced by doctrines of righteousness. Confucius was a sage known throughout the empire. He cultivated his own character and elucidated his doctrines and traveled extensively within the four seas (China). And yet only seventy people became his devoted pupils. The reason is that few people value humanity and it is difficult to practice righteousness.” And we note that the number of disciples known are half of the ever popular number (seventy) stated.

The ruler must realize that his interests are contrary to those of his subordinates and his own family; he should have no confidence in them: he must hold the supreme, absolute power in his hands alone. If he has confidence in someone, that person will oppose him or will be used by others to subvert his rule. But if he selects his ministers well, on merit alone; if he retains and rewards those who do well, while getting rid of hypocrites and severely punishing mistakes, his government will succeed, even if he is an average or immoral man: society cannot afford to wait around for a hundred or a thousand years for a sage-king or morally superior man to appear on the scene, hence positive law must be the sole guide.

Of primary importance is Equality under law, the equal application of law regardless of the status of the person judged. “If rewards are bestowed according to mere reputation, and punishments are inflicted according to mere defamation, the men who love rewards and hate punishments will discard public law and practice self-seeking tricks and associate for rebellious purposes…” wrote Han Fei.

Of course the ruler will craftily use statecraft to foil plots and intrigues. Rising above all differences to the Equality or “emptiness” of Perfection, he is the inscrutable Power behind the scenes, the Natural Law uniting Heaven and Earth. He is the Pole Star to whom all must turn. He is the Sun, the Central Inspector on tour. He allows everything to fall into place, the assumers to show their hands, the hypocrites to display the disjunction between word and deed, and then….

Mysticism may seem unfitting to the Legalist context of positive law and amoral social science, but we must not be fooled by logical appearances of propriety. Students of Taoism will certainly want to study Han Fei’s comments on the Tao in the context of the relation between the First Sovereign Emperor and his prime minister Li Ssu to see the practical, Legalist application of the occult teaching. Han Fei was fond of Taoism and incorporated it into his Legalist doctrine: “By virtue of resting empty and reposed, (the ruler) waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Himself empty, he knows the essence of fullness; himself reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. The the ruler will find nothing to regret, since everything is reduced to its reality…” indited Han Fei.

Last, but certainly not least, the economy: the economic strength of the Legalist state depends on its military might. The ruler will encourage productive enterprises such as farming, and discourage unproductive occupations such as that plied by the hordes of scholars who sow the seeds of dissension disguised as benevolent humanism… Giving to the poor what has been earned by the rich is both unfair and unwise.

Now, then, after Li Ssu had completed his studies of the foregoing doctrine, he decided to go to the state of Ch’in to take advantage of the ongoing wars which he perceived as a golden opportunity for politically minded commoners to rise in their careers; while losers, of course, remain passive in mean circumstances. Before departing for Ch’in, he remarked that the King of Ch’in “desires to swallow up the world and to rule with the title of Emperor… One who, abiding in a mean position, decides to remain passive, is like a bird or deer that will merely look at meat… But one who possesses a human countenance can act vigorously. Hence there is no greater shame than meanness of position, nor deeper grief than poverty. To remain long in a mean position or in a condition of privation, criticizing the world, despising profit, and committing oneself to the principle of Non-activity (principle of Taoism) – such is not the nature of a gentleman. Therefore I intend to go westward to give counsel to the King of Ch’in.” (The Shih Chi, Historical Record, quoted here and hereafter)

And the proactive counselor did just that. Li Ssu obtained a position at Ch’in Councillor Lu Pu Wei’s office, and he soon had a chance to speak to the King about the golden opportunity to exercise power over the entire country: “The small man,” said Li Ssu to the King, “is one who throws away his opportunities, whereas great deeds are accomplished through utilizing the mistakes (of others), and inflexibly following them up… The feudal lords at the present time are paying allegiance to Ch’in, as if they were it commanderies and prefectures. With Ch’in’s might and the King’s great ability, (the conquest of the other states would be) like sweeping (the dust) from the top of a kitchen stove. (Ch’in’s power) is sufficient to obliterate the feudal lords, bring to reality the imperial heritage, and make of the world a single unity. This is the one time of ten thousand generations.”

King Cheng, pleased with this advice, made Li Ssu Senior Scribe and “listened to his plans, and had him secretly commission plotters, bearing gold and precious stones, to travel about and advise the feudal lords.” Those who took heed were rewarded; those who did not were “stabbed with sharp swords.”

Li Ssu became Alien Minister. Shortly thereafter, a plot by an alien in Ch’in was exposed: upon the urging of his ministers, the King order aliens including Li Ssu expelled from Ch’in. As the former Alien Minister approached the border to leave the state, he sent back a memorial to the King, setting forth an extended argument in favor of employing aliens. In short, since the state of Ch’in owed its prosperity to sound advice given by alien advisors to former Ch’in rulers, as well as to the importation of the good things in life such as treasure, music, dancing, and beautiful women, it would be extremely unwise to expel aliens from the country. “Now there are many articles not produced in Ch’in and yet valuable, and numerous gentlemen who have not been reared in Ch’in and are yet desirous of being loyal. If at present you expel aliens so as to give increment to opposing states, and decrease your people so as to make addition to the enemy, then you will find yourself depopulated at home and will have established (sowers of) enmity against you among the feudal lords abroad. Should you then wish to have the country without danger, you could not obtain it.”

The King rescinded the order to expel aliens and Li Ssu was recalled to office. Another alien, Li Ssu’s old schoolmate Han Fei, was forced to commit suicide by an apparently jealous Li Ssu – the very sort of thing Han Fei had expressly warned rulers about.

No doubt the ancient School of Five Elements powered by Yin and Yang would be amused by our maxim, “What goes around comes around.” Li Ssu had an occasion to write yet another, even more critical “memorial” in prison, just prior to his execution after more than thirty-five years of distinguished and mostly loyal service to the First Sovereign Emperor. Just two years after the Emperor’s death, Hu-hai, his youngest son and illegitimate successor, had Li Ssu convicted on trumped-up charges of sedition, and punished by being cut in half at the waist in the market-place of the capital.

Unfortunately for Li Ssu and the future of the empire, Li Ssu had reluctantly participated with Hu-hai and the evil eunuch Chao Kao in the conspiracy to prevent the eldest royal son Fu Su from taking the throne. Li Ssu knew too much; he had to be disposed of. He falsely confessed to sedition under torture of one-thousand floggings. Yet in an attempt to escape the death penalty, he submitted a “memorial” or confession of his “crimes”, which were really his accomplishments. The list includes many achievements I shall with all due respect, in yet another chapter of this ancient, success story, attribute to the majestic First Sovereign Emperor of China. After all, His Majesty has the Power to get everything done by doing nothing himself, and He may have his Grand Councillor executed at any time. But it would be unfair to conclude without citing Li Ssu’s memorial, rejected by Chao Kao on the grounds that it is inappropriate for prisoners to submit memorials.

“Your servant has become Grand Councillor, and has administered the people for more than thirty years. When he arrived within Ch’in’s narrow confines, during the time of the former King, Ch’in’s territory did not exceed one thousand li, and its soldiers did not number more than a hundred thousand. Your servant used his meager talents to the utmost, carefully establishing laws, secretly sending out plotters, giving them gold and precious stones, and causing them to travel about and advise the feudal lords, and secretly to prepare armor and weapons. He spread the teachings of (imperial) government, gave position to men of arms, honored meritorious officials, and enriched their ranks and revenues. In this was it was possible to seize Han, weaken Wei, destroy Yen and Chao, raze Ch’i and Ch’u, and so finally annex the Six States, make captives of their kings, and establishing (the King of) Ch’in to be Son of Heaven. This is his crime number one.

“(Although thus Ch’in’s) territory was certainly not lacking in extent, he also expelled the Hu and Ho (barbarians) along the north, and imposed rule upon the various Yueh in the south, thus manifesting Ch’in’s power. This is his crime number two.

“He honored the great ministers and enriched their ranks and position, so as to strengthen their attachment. This is his crime number three.

“He established the altars of the soil and grain, and repaired the ancestral temple, in order to make his ruler’s merit illustrious. This is his crime number four.

“He reformed harmful policies, equalized the tou (10.35 litres) and hu ( 5 tous) measures, the measures of weight and size, and the written characters, and made these universal throughout the empire, thus establishing Ch’in’s fame. This is his crime number five.

“He laid out imperial highways and inaugurated (imperial) tours of inspection, in order to show (to the people) that their ruler had attained to his every desire. This is crime number six.

“He relaxed the punishments and reduced the collection of taxes in order to further his ruler’s (efforts to) win the hearts of the masses, so that the people might honor their ruler and not forget him after death. This is his crime number seven.

“The crimes of one who, as a minister, behaved as (Li) Ssu had done, would certainly have merited death already long ago; yet the Emperor has been gracious enough to make use of his ability to the utmost even unto the present time. May it please your majesty to look into the matter.”

Li Ssu was executed along with his alleged co-conspirator, his second son, Yu. As they were being led from the prison, they reminisced about hunting hares with their old yellow dog, then wept. Their kin were exterminated to the third degree – parents, wives, brothers, children.

Quoted Sources:

All quotes of Ch’ien Ssu-ma’s (145-86 B.C.) Shih Chi (Historical Record) are taken from Derk Bodde’s translation set forth in his book, China’s First Unifier, published by Hong Kong University Press in 1967. Derk Bodde’s works are an indispensable standard Western reference for the student of ancient China.

All but the last two quotes of Han Fei are taken from Wing-Tsit Chan’s translation in his book, A Source Book in Chinese Philosophy, published by Princeton University Press in 1963.

The last two quotes of Han Fei are from E.R. Hughes’ translation of Han Fei in his book, Chinese Philosophy in Classical Times, published by E.P. Dutton, New York, in 1954.

Arthur Probsthain of London has published W.K. Liao’s translation, The Complete Works of Han Fei Tzu, to which the serious student is recommended.

 

First Sovereign Emperor Index

On Stretching The Law

 

STRETCHING LAW MOSES

ON STRETCHING THE LAW

BY

DAVID ARTHUR WALTERS

Laws are made to be stretched if not broken. Fundamentalists may keep their commandments exactly as written, but almost everyone else stretches their own rules as far as they can, even to the breaking point. This is hardly surprising inasmuch as we legislate against our natural inclinations. Being born individual is the original sin, for the individual would satisfy its will to live forever without impedance if only it could, but it cannot. The individual rebels in vain against the very collective that it needs for self-preservation. Forged by resistance to its will, the individual human becomes a social person. The god within the individual wants total freedom even unto self-destruction; but the far more powerful society needs individuals; thus Jacob fought with god and became Israel.

American settlers protested against the arcane common law principles of the judicial priesthood. They wanted their laws in written simply in stone, but they cannot get rid of the common law for its essence is hidden in their hearts. Once positive laws are written down, every effort to wiggle out them is made: A relevant statute is read. Written briefs are filed, and oral arguments are duly recorded. Judgments are made, to be upheld or overturned. Precedents are established and recorded to be duly pondered upon; their applicability to other cases is subjected to further argument.

The death penalty was legislated in the United States for capital crimes, and then lawyers deliberately made it difficult to execute the offenders after they were convicted. Perhaps after the death penalty is abolished in all the states because it is deemed uncivilized, the history books will deny it every existed after two thousand years have passed, except as a threat, as some Jewish teachers have claimed of their history of capital punishment.

Christians may defame the Pharisees unto Doomsday, but we should confess that, without the Pharisees, there would be no Christianity. Our law is the ‘living law’ of the Pharisees who believed in resurrection and eternal life: a criminal has every chance to be forgiven and saved. Our law is not the ‘dead letter’ law of the Sadducees who did not believe in salvation, not even in an afterlife, but rather thought that the individual is free to break the law and to be punished exactly as prescribed, without possibility of pardon or parole.

Whatever is written down as law in our ‘free’ country is a fulcrum for perpetual controversy. We have our Sadducean torah, but the lawyers are standing by with the Pharisaic torah, and they may not only stretch the law but go so far as to claim their interpretation of the written law and their principles contradicting the statutes are superior to the recorded law. Given the political power of the Pharisees, the Sadducees recognized the living law, but they do not consider it as binding, hence the controversy continues ad infinitum.

The foremost legal fulcrum for the United States is its Constitution, mistakenly said by some scholars to be the “ground” of the law. The writing itself is superfluous because it is based on the sense of justice; the Greeks had Zeus declare that any adult without that sense of justice should be put to death or banished. Once things are written down, people tend to forget them. We should have a copy in our pocket just in case our memory fails us. It would behoove everyone to memorize the Constitution, the logical elaboration of our sense of justice. Few people today can remember even five of the Ten Commandments in right order; for instance many people do not know the commandment proscribing murder is in the bottom half of the list.

When we read the Constitution and examine the opinions of the highest judicial authorities, we discover that our founding fathers did not get rid of the ‘common’ law after all; indeed, many of the poorer colonial Americans counted on the English Common Law for civil rights not afforded to the Original Americans or to the slaves. Nor did our founding fathers rid America of the high priesthood interpreting those freedoms for society’s own good. Jefferson’s effort to use the impeachment process to smother the independent Supreme Court in its crib failed, as did the later efforts of the Radical Republicans to mock the English parliamentary system. We find both Pharisees and Sadducees on that high court. We are sometimes given to wonder at its apparent hypocrisy, and to think that our beloved English law is illogical or unjust after all, until the rabbis appear to smooth over the differences between reality and ideality. Of course some explanations must remain apocryphal or ‘hidden’ in the true sense of the word: they must never be written down.

When Moses said, “Write this law down,” did he mean that law should be limited to whatever was written down? Not according to some rabbis. The law itself existed before it was written down, and was preserved by oral tradition, gradually recorded in writing. The living law hidden behind the writing still has authority over the language petrified on the page. The oral law must always have precedence. Moses was not a priest or a scribe, he was a prophet having direct access to the Almighty; his word was law. Moses may have been illiterate, although it is usually supposed that he was educated as an Egyptian hence familiar with the language of the New Kingdom and not with that of the Hebrew tribes. In either case he needed a scribe to write down the Torah for literate priests to recite to the illiterate public.

The apparent contradiction between the static Jewish written law and the dynamic oral law, sometimes called ‘the Two Torahs’, is being resolved over the centuries by ‘casuistic stretching,’ which promotes the organic, living integrity of our dynamic order. The conjunction of freedom and order may seem oxymoronic or patently absurd at first glance, but upon reflection it can be viewed as ethical and effective.

‘Casuistry’ is the application of general principles to particular cases; it is a process that members of the legal profession, representatives of the litigious human, are involved in every day. Needless to say, sometimes the process gets a bad reputation. We suspect the casuists have distorted or stretched the law and the truth. The sophists might be as dishonest as their clients and witnesses. More lies are told in court than anywhere else on Earth even though such lies might be punished by fine and imprisonment.

Kenneth Burke defined ‘casuistic stretching’ at length in ‘Dictionary of Pivotal Terms’, a chapter of Attitudes Toward History (1984):

“By casuistic stretching, one produces new principles while theoretically remaining faithful to old principles. Thus, we saw the church permitting the growth of investment, in a system of law that explicitly forbade investment. The legalists ‘took up the slack’ by casuistic stretching’, the ‘secular prayer’ of ‘legal fictions….'”

In a another chapter, ‘Protestant Transition’, Burke speaks of “the ways in which individualistic enterprise, stimulated by colloquial translations of the Bible, whereby every man could become his own interpreter without training in the collective body of interpretation accumulated by the church, served to intermingle material ambition with high moral motives…

“Sincerity and guile were hopelessly interwoven as enlightenment and stupidity. The men who enunciated the doctrine of the ‘poor church’ probably meant just what they said: that the church should not be rich, like a Babylonian whore, but poor like Christ… the sovereign used the doctrine to justify the appropriation of church lands for themselves and their clique…. In the feudal pattern, the casuistic fictions had tended to confine ‘investment for profit’ to a comparatively small class of rulers and big churchmen. In Calvinism, this ‘salvation device’ was ‘democratized’ – as Calvin discarded the legalistic subterfuges and placed positive sanction upon the taking of ‘interest’ in general. His notion of Providence ‘transcended’ the conflicting clutter that amounted to demoralization, since the reality of a monetary practice was being sentimentally denied. And his spiritual symbol was ‘economically implemented’ by the ambivalence whereby the spiritual futurism of ‘providence’ could be equated with the worldly futurism of ‘investment.’ (Later on, instead of separating ‘interest’ from ‘usury’, Bentham came right out with his formal ‘Defense of Usury.’) This move, so necessary for the development of business enterprise, was further backed by a new philosophy of justification, with more modern connotations of ‘ambition.'”

We add in this interpretative vein that the Reformation, as far as the Church was concerned, was an atheistic movement: the protesters were really ‘atheists.’ Some leftists identified Protestants with the Jews, claiming the question of Jewish civil rights was moot because the Protestants were for all intents and purposes Jews themselves. The selling out of Christ, the tucking away of god in heaven, the death of ‘god’ on Earth, dovetailed with the fall of monarchs and the rise of nation-gods, the general commodity fetish, and the demoralizing worship of money. It takes an economic determinist to know one. Nonetheless, scientific materialism is a spiritual or mental form, and, like Luther, we progress by aid of linguistic stretching, from doing our natural duty on the privy in the tower to the most sublime considerations thereupon.

Burke does not condemn casuistic stretching; to do so would bring the progress of history to a halt. It is an underlying dialectical process at the very crux of existence and being, a critical juncture for which we should ‘enunciate a methodology’ rather than try to eliminate it. That is, we should be conscious of ‘casuistic stretching’, and control it for the good of everyone concerned.

Now the legal stretching of the Jewish law is represented by the Midrash and the Mishnah, bodies of Jewish law derived from oral tradition. The Midrash (‘Exposition’ or ‘Investigation’) is deductive: the scholars begin with scriptural law and deduce applications to present cases therefrom; the stretching process often involves a considerable amount of twisting. Besides that ‘Halakha’ (legal statement) content, the Midrash also includes edifying homilies and stories called the ‘Haggada.’ On the other hand, the Mishnah (‘Teaching’ or ‘Repetition’), employs the inductive method: the scholars consider the case and induce general principles, rarely referring to particular scripture, and render a finding in accord with their principles. The Mishnah, then, is separate from the Midrash, but the Mishnah often quotes the Midrash.

The Mishnah as we know it was written down along with commentary, called the Gemara, during the third century of the Common Era. Mishnah plus Gemara (rabbinical teachings subsequent to the destruction of the Second Temple) constitutes the Talmud. Other writings believed to be recordings of old oral law or mishnah have been found, dating a century or so prior to the appearance of Jesus Christ. Of course oral traditions preceded the invention of writing. Some rabbis trace the Mishnah back to Moses. Other scholars attribute it to Ezra the scribe and his contemporaries, who returned from the Babylonian exile and built the Second Temple: this thesis involves the rise of a scholarly elite at the time of the Maccabean Revolt, the Pharisees, in contradistinction to the Sadducean priesthood purportedly descended from Sadoc, the chief priest of King David. Since the oral law was not written down then, there is a great deal of conjecture and controversy appended thereto as to what relation it might have to the Mishnah in the Talmud—the Talmud literally saved the Jewish culture after the revolts and the ensuing Roman destruction.

Many laws appearing in the Mishnah are not referred to or authorized by the Pentateuch. No provisions are made in the Pentateuch for the Jewish court known as the Bet Din. The Pentateuch does not dictate when the Shema (daily prayers) should be read or that it should be read at all. Prayers, the marriage contract, the ritual reading of Esther and the Pentateuch and the Prophets, are not mandated. It knows nothing of a New Year, or of interrogating witnesses prior to proclaiming the New Moon. There is no Pentateuchal warrant for the Mishnaic procedures in respect to Yom Kippur. The core teaching of the Mishnah is the dogma of the resurrection and the world to come, yet we do not find that in the Pentateuch, and if we insist that resurrection and the hereafter is not in the Pentateuch, the Pharisees can rightfully exclude us from the world to come in case it does exist, therefore the Oral Torah is superior to the Written Torah. And we have only mentioned a few discrepancies the rabbis will be glad to reconcile for us after consulting the Talmud.

Daniel Jeremy Silver, in The Story of Scripture, From Oral Tradition to the Written Word (1990), identifies the Talmud as “Israel’s Second Scripture…. The Mishnah quickly became the foundation stone of a reshaped Torah tradition.” According to Silver, the Mishnah structure was new, and set forth on the authority of the rabbis alone formulas not in the Pentateuch.

“Everyone admits that the Mishnah represents something new under the Jewish sun, but the rabbis would have argued that things have not been so much changed as reorganized, a matter more of style than of substance. Laws supplementing the written Torah had existed since Sinai, and the Tannaiam (teachers of the Mishna) believed they had merely drawn together what had always been present. Religious reformers almost always claim that they are not breaking new ground but going back to the original revelations and providing a fuller understanding of it.”

Silver quotes the Mishnah: “R. Zeria said in the name of R. Yohanan: ‘If you come across a Halakha (a statement of God’s law by the rabbis) and if you do not know its scriptural source, do not set it aside for many laws were dictated to Moses on Sinai (independently of Scripture) and all of them are embodied in the Mishnah” (j. Hag. 1:8; j. Peah 2-4)

On the other hand, Ellis Rivkin, in A Hidden Revolution, supports the rabbis who argue for an older origin of the Mishnah. He posits that, during the Maccabean Revolt, the scribes deliberately usurped power from the Aaronite line of high priests (Aaron, Eleazar, Phinehas, Zadok) using every means at hand, including segments of the Written Torah cited out of context, to support the elevation of Oral Law over Written Law, and the Pharisaic scholarly elite over the Sadducean priests.

Due to the lack of convincing evidence, we are left to speculate on whether we have old or new wine in our new skin. We turn to The Jews, Their History, Culture, and Religion, edited by Louis Finkelstein, (1949) for a further explanation of the process of casuistic stretching, wherein Gilbert Murray’s study of Greek religion is quoted:

“When change does come and is consciously felt we may notice a significant fact about it. It does not announce itself as what it was, a new thing in the world. It professes to be a revival, or rather an emphatic realization, of something very old…. This claim of a new thing to be old is, in varying degrees, a common characteristic of great movements. The Reformation professed to be a return to the Bible…. The tendency is due in part to the almost insuperable difficulty of really inventing a new word to denote a new thing. It is so much easier to take an existing word, especially a famous word with fine associations, and twist it into a new sense.”

Not only did the Mishnaic scholars twist the meanings of old words into new meanings, they cited segments of the Pentateuch out of context, invented new laws, devised a special Mishnaic Hebrew dialect that included Persian and Greeks words, and coined technical terms unheard of in the Written Torah. And they did not say, “Thus sayeth the Lord.”

The liberal application of the Mishnaic law to penal cases seems to give the lie to the strict Pentateuch. Circumstantial evidence is not allowed by the Mishnah. There must be two witnesses to the crime, and those witnesses cannot be relatives: Moses and Aaron would be disqualified as witnesses. The witnesses must give a warning to the person about to commit a crime, and that warning is invalid if given more than a few seconds prior to the crime: the time it takes to say, “Peace be upon you, my teacher, my master.” For the warning to be valid the potential criminal must acknowledge the warning and indicate he or she is intentionally ignoring it. And that is not all.

How absurd! Casuistic stretching must be called upon if we are to make any sense of it at all. How is this absurdity explained today?

Aaron Kirschenbaum, in Jewish Law and Legal Theory (1994) states: “The impracticality of the classical Jewish law and its helplessness in coping with social problems involving crime and punishment are proverbial.” He quotes the view of the fourteenth-century rabbi, Nissim of Gerondi (the Ran), that “the non-rational commandments” of the Torah “have nothing to do with maintaining the political stability of society—they have their justification solely in bringing down the Divine Effulgence… The civil laws of the Torah are directed more to that elevated purpose than to the maintenance of our society, for this latter purpose could be achieved by the king whom we shall appoint over us.”

Kirschenbaum clarifies the medieval position: “Thus, the king’s administration of criminal justice is practical in nature, created to cope with the everyday ordering of society; it is parallel to the criminal codes of other nations. But the classical code is above considerations of societal utility. ‘Inherently just’, it is nothing less than a body of ritual whose mystical effect is to bring down the Divine Effulgence upon the Chosen People. Indeed the criminal code of Scripture is no less a ritual than the sacrificial offerings of the Holy Temple and, like them, is no-pragmatic in purpose and non-utilitarian in nature….”

Furthermore, “The rabbis of the Talmud and their medieval successors regarded the criminal law of the Torah as primarily a mighty instrument of character training, religious indoctrination and spiritual edification, and only secondarily (and sometimes not at all) as of practical import.” Moreover, as far as the teachers were concerned, “Teaching was uppermost in the mind of the divine legislator, the penalties of minor significance…. Punishment was thus rarely meted out, but the serious nature of the infraction was duly impressed on the people.”

He goes on to say that, when the situation got out of hand and punishment was warranted, the king’s law was exercised. Besides, the rabbinical courts had sufficient emergency provisions in the Talmud to deal with exigencies. Finally, there was always God’s punishment to count on.

Some authorities believe the absurd conditions set forth in the Mishnah alongside descriptions of the manner of executions, say, the pouring of molten lead down the criminal’s throat while being careful not to hurt his neck while pulling it backward, are merely the pipe dreams of rabbis who had no penal authority. That is, since the Romans took away the Sanhedrin’s jurisdiction over capital crimes, the so-called obsolescence of capital punishment was merely utopian wish fulfillment, perhaps projected in memory of large numbers of Jews being slaughtered by the Romans. Furthermore, testimony exists in the New Testament that the Sanhedrin, when it was in session, was executing people right and left. Even in the Mishnah we have a dissenting opinion from a rabbi who said he saw a criminal one day and stood on his grave the next.

However, Professor Kirschenbaum believes the supposed obsolescence of capital punishment was not merely a later, ‘utopian’ fiction, but a longstanding reality. In favor of his hypothesis, he recalls a member of the Tannaiam, Rabbi Akiva ben Joseph (50-132), who inspired the rebel, Bar Kokhba, to revolt. Akiva was an illiterate shepherd who was encouraged by his beautiful wife Rachel to study the Torah at the late age of 40. In short order, Akiva became the most prominent Tanna and Jewish leader of his day. He advocated democratic procedures among the scholars, urging them to rely on majority decision rather than personal authority, and was responsible for the canonization of some of the books of the Hebrew Bible. When he was tortured by his executioners for fomenting rebellion, he recited the ‘Shema’ calmly without sign of pain. When asked by a Roman if he was a magician, he replied, “I am not a magician, but I rejoice at the opportunity now given to me to love my God with my life.” Then he uttered “One” (god) and died.

It was Rabbi Akiva, who, together with his colleague Rabbi Tarfon, made the famous declaration that, by ingenious tactics in the examination of witnesses, he would abolish capital punishment. Kirschenbaum, in his article, ‘The Role of Punishment in Jewish Criminal Law,’ asks how those pious rabbis could say such a thing, since they of all people knew of the biblical injunction, “and he shall surely die.” “What are we to make of all this?” asks Kirschenbaum. “The explanation usually proffered for the ‘romanticism’ that characterizes the rabbinic (i.e. tannaitic) penology is the historical setting in which the Rabbis found themselves. The Jewish community had been deprived of its jurisdiction over criminal matters approximately one hundred years before Akiva and his colleague made their famous declaration. Hence, since ‘the dirty work’ of criminal punishment was in the hands of the Roman authorities, or so the argument goes, these rabbis could allow themselves the luxury of irresponsibility in matters of law and order.

“This explanation, however, ignores the great piety of the Rabbis and their extreme conservatism when it came to preserving traditional teachings. It also ignores the feverish activity with which R. Akiva sought to achieve the restoration of Jewish independence. Surely, had he succeeded he could ill-afford the luxury of irresponsibility in matters of law and order.”

Perhaps the archeologists will uncover more evidence in favor of the Jew’s virtual abolition of the death penalty. We return to the jurisprudence of the question in Rabbi Benjamin Blech’s Understanding Judaism, The Basics of Deed and Creed (1991). He quotes the written law:

‘And he who curses his father or his mother shall surely be put to death.’ (Exodus 21:15)

“Isn’t it obvious that Judaism is a strong proponent of the death penalty? What needs to be addressed is the almost incredible contradiction to this view, which is found throughout the Talmud…. There is a Mishnah that teaches us: ‘A Sanhedrin that issues a death sentence once in seven years is considered a murderous court. Rabbi Elazar Ben Azaryah said it is a murderous court if it pronounced a death sentence once in seventy years.’ (Makot 7a) How could the Sages call a Sanhedrin that carries out the will of God a ‘murderous court’? If the Torah says ‘yes,’ how could the Mishnah say ‘no’?”

Good question. Rabbi Blech instructs us to consider the opening verse of Exodus in order to understand the apparent contradiction and to have insight into the purpose of Jewish law: “And these are the ordinances which you will set before them.” (Exodus 21:1)

“Legal systems,” advised Rabbi Blech, “are set up to tell us what to do after crimes have been committed…. Every Jew must know the law because ‘These are the ordinances which you shall set before them’—before, not after. Jewish law is meant to be studied by everyone because the essence of Jewish law is preventative rather than punitive.”

Our rabbi admits that the Torah often states ‘mot yumat’, and that is usually translated, ‘He shall die’, but he says the proper translation is ‘He should die,’ because “that is what he deserves. But God does not really want him to be executed.” Rather, the purpose of the severe injunctions of the Written Law is educative:

“Judaism found a remarkable alternative to capital punishment. Indeed, gather the people into the town square…. Let the people hear the words of God Himself. He who does such and such shall surely be put to death. Imagine a child who from the earliest days has heard in the name of the Almighty that cursing or smiting parents is a capital offense. Whoever does these things should die. Hard to imagine that such a child would treat lightly the commission of these offenses.” Moreover, the goal of knowing these laws “is not that they know legal consequences, but rather than legal consequences – absorbed almost with mother’s milk and continuously part of our spiritual nourishment – will, we hope, ensure that our people are immunized against perpetrating any of those acts we have so carefully studied.” As for the death penalty, yes, it is in the Torah, “but it is only there to make us aware of how much we ought to make us aware of how much God detests every crime – and therefore how much we ought to make certain to avoid them.”

The Talmud allows emergency measures to be taken against criminals; however, Rabbi Blech believes that a world vaccinated with the teachings of the Torah would not require emergency measures since it would not sink into the “depraved depths of our days.”

Now what is the moral of our controversial story about the development of the law? A moral education will result in a moral society.

The mores of cultures are said to be relative; almost any sort of behavior can be mandated or prohibited according to the various folkways people embark on. But most of us believe human beings despite their differences have a common nature best preserved if certain rules of behavior are observed. For example, almost all cultures believe children should respect their parents. Children had better believe it, they had better learn to love or else. And since children will get out of hand, especially when their parents, because of love or neglect, are too liberal, a commandment might be posted in every home enjoining all children to respect their parents or else. Or else be dragged out of the house and stoned to death. When the child learns to read, this commandment would be in his first grammar book. Nevertheless, children will revolt; they will fight the angel of the Lord just as Jacob did.

Yes, the naive individual would have god-like freedom from all restraints. And it is that will to lawlessness that empowers the society at large to love itself, to protect that rebellious god from total destruction by his kind, thus he is sheltered by the universal human god. Otherwise there would be no god in the form of man. The world does not need humankind, and can do very well without us, but our gods need us. We do our best to express the law written in our existence, but our words, whether spoken or written, shall never be that perfect Being.

XYX

City of Miami Beach Accused of Fraud

CMB Accused Fraud IMG

 

MIAMI BEACH HOTEL APARTMENT OWNER ACCUSES CITY ATTORNEYS OF DISHONESTY AND FRAUD ON THE COURT

June 20, 2015

By David Arthur Walters

PRESS INDEPENDENT

Rod Eisenberg, owner of the historic 80-year old Sadigo Court Apartment Hotel in South Beach, accused City of Miami Beach attorneys in a June 4, 2015 filing in federal court of dishonesty; to wit, of making blatant and gross misrepresentations and brazenly false arguments supported by convenient cutting and pasting together of statutes as part of a massive scheme to deceive, mislead and defraud the courts where he had lodged complaints to defend his property and his civil rights after city officials conspired to throw his guests onto the street, close his apartment hotel, and subject him to false arrest because he refused to voluntarily install fire sprinklers that were not really required for his historic structure.

His previous filings asserted that he was persecuted by the city in retaliation for 1) his exposure of corrupt practices in the early 1990s, and 2) for his complaints about non-enforcement of code provisions in respect to blight in his neighborhood, and 3) for failing to bribe code enforcement officers.

Eisenberg discovered that the city’s bid selection process was corrupt in 1993 after bidding to rent space at the old city hall building for a Welcome Center. That motivated him to take city officials to task on other matters.

He learned the winning bidder was receiving free rent in the Old City Hall during the bid challenge. He also discovered a City commissioner and his son had received what amounted to an illegal brokerage commission on a $10 million real estate transaction. He subsequently embarrassed city officials by disclosing his findings to the media.

As a result of those disclosures and his lawsuit against the city, a scandal ensued that ultimately led to the city manager resigning, and the city attorney being forced out. Some of the current city attorneys including City Attorney Raul Aguila were involved in that case. I have examined Raul Aguila representation of the city in other matters, and found him to be quite fair in comparison to his predecessor, Jose Smith, who seemed to believe that the city was not the community but the ruling regime, and indeed acted like he was the city itself, although he was right more times than he was wrong—he was nicknamed “The Magic Eight Ball.” So Aguila’s stance in the Eisenberg Affair astonished me.

Furthermore, the discovery process Eisenberg brought against the city back then revealed apparent hanky panky between city officials and an officer of IRAMCO, the broker involved in City of Miami Beach Redevelopment Agency’s purchase of land for the development of the city’s first convention hotel, now Loews Hotel at 1601 Collins Avenue.

Between 2004 and 2009, Plaintiffs and others in the neighborhood voiced many complaints about the health and safety risks and Code compliance violations of an abandoned hotel in the neighborhood. The City investigated some of those complaints but did not resolve the problems with the building.

In December 2011, fifteen police offers, ten code enforcement officers, including Jose Alberto, and five fire officials forcibly shut down the Sadigo for a second time for allegedly violating city fire codes for refusing to install fire sprinklers in the three-story structure. Yet Les Beilinson, a renowned architect and historic preservationist, called the Sadigo “one of the safest buildings I have ever been in” during a 2010 Task Force hearing.

The shut down occurred while the Sadigo was hosting the ‘Pool Art Fair’ during the Art Basel Miami Beach art show, forcing guests to vacate the premises within the hour. Jose Alberto, later convicted and imprisoned for corruption elsewhere, allegedly offered to solve Eisenberg’s problems by using his people, insinuating a bribe would be due from Eisenberg. I estimate from information of past incidents the handling fees might have amounted to $500 for six people, or $3,000. When Eisenberg refused by stating he already had legal counsel working on the matter, Alberto allegedly stated that Eisenberg would not get far using legal means. Eisenberg was then arrested. In April 2012, Alberto and other code compliance officers and fire department inspectors were arrested for bribes they accepted in June 2011.

Since those arrests, the Sadigo has not received any further code compliance notices or violations, according to a recent brief filed in the federal case; however, a $400,000 lien was filed against the property for a fine accruing at $500 a day. Eisenberg has laid out an estimated $450,000 in attorney fees and is being sued for another $200,000 in fees he refuses to pay his attorneys for losing the case. The loss in revenue from the extended closure of the hotel along with damage to his reputation may amount to another $1,000,000. Now that the federal judge had summarily dismissed the case, ensuring that his complaints will never be heard by a jury, the city has filed what appears to be a patently frivolous motion for sanctions for an amazing $800,000 in legal fees and costs for taking him to hell and back, refusing at all times to compromise with his attorneys.

Eisenberg is no slouch when it comes to the practice of law. He trained as an attorney. He did not apply for a license, apparently because he eventually believed the profession is essentially unethical. The allegations he has brought pro se in response to the city’s motion for around $800,000 sanctions indicts not only the city attorneys but his own attorneys as well. He claimed that they colluded wittingly or unwittingly to keep the case going in order to use him as an ATM machine.

“Although there is no guarantee of success in civil litigation, a plaintiff must be certain his attorneys are not succumbing to the City’s arguments because they would rather treat their client like an ATM, rather than vigorously advocate their client’s positions. Opposing counsel points out that plaintiff had so many lawyers and he still lost every time. And although this may be true, the reason is every lawyer, except one or two, had the propensity to do things harmful to the client, while remarkably always beneficial to the City.”

In retrospect, it is astonishing that the city attorneys, blessed by the city commission, would lay out $800,000 in taxpayer money to persecute this businessman instead of negotiating a compromise. And now they expect to bring the owner of this safe little three-story hotel to ruin by forcing him to pay for their destructive maneuvers. Why, their motion to sanction fees and costs is itself frivolous, supported by a spurious argument that his suit against the city was frivolous because he lost it as a consequence of their malevolent machinations.

We like to believe that the law is as solid as a rock, that there is a very high probability that similar cases will be similarly decided. The truth of the matter is that the positive law is what judges decide from day to day, and that law is always subject to change with the excuse that it should evolve, glacially or not, with the so-called progress of civilization. Forsooth, litigation is a gamble because no one knows for sure what some judge may decide given her prejudices and institutional blindness. Controversy keeps the clock ticking for fees accruing at a rapacious $500 per hour or even more for well connected lawyers.

Judges talk about principles of law and the high ethical standards of the legal profession. In sum, the principle of lawyers is profit in a zero sum game. A law-schooled lawyer in our competitive economy is likely to become a sophist who will do his level best to make even the worst case sound like the best. Overall, the size of the war chest and not the elements of law and highfalutin ethical standards win the battles in the never ending war of all against all. Ironically, the opportunities for litigation and the hordes of attorneys available to resolve differences for a fee is said to be what makes America great.

At least Federal Judge Cecilia M. Altonaga almost brought the billing to an end with her summary rulings, exhibiting the usual prejudice in favor of governmental authority, that it should enjoy the sovereign immunity of a queen or king unless virtually impossible exceptions could be proved. There is a saying that one cannot fight city hall and win, and for good reason.

Eisenberg’s suit for recognition of his civil rights was based on the 1871 Ku Klux Klan Act. Few cases were brought, only a handful were won, and the sections of the act cited by Eisenberg’s lawyers laid dormant for many years until they became a handy instrument for harvesting civil rights controversies for fees.

The Radical Republicans back then figured that federal judges would decide independently of local prejudiced judges and juries. That might hold true if the federal judges were riding a broad circuit. Once resident in the place where cases are decided, judges inured with the local prejudices and institutional blindness of their colleagues. Face it, the judge is more likely to sit with her public attorney kin in the lunchrooms. At least she is prone to sympathizing with them because they are constantly under attack for their decisions. And Judge Altonaga is a human being first of all; she is no stranger to South Florida. Its dominating Cuban?American community wanted to see her sitting on the United States Supreme Court. She was reportedly on President George W. Bush’s short list for the nomination.

Eisenberg’s motion against the sanctions claims that his attorneys decided it would be best of focus on the weakest aspect of his case, that the city was retaliation against him for speaking freely.

That would be sexier, they thought, than emphasizing his strongest point that the city was discriminating against him, not affording him with the equal protection of the laws. Many apartment buildings with short term rentals were not harassed for not having fire sprinklers. Some owners had voluntarily installed sprinklers. He was being picked on.

His brief against the assessment of the city’s fees claims that his attorneys figured juries would be too stupid to understand the equal protection issue, even though, Eisenberg would argue, the issue is rather simple. But I shall provide my own analysis of relevant legal requirements instead of his KISS argument:

Chapter 509-215 of Florida’s firesafety law states that public lodging establishments of three or more stories that have interior corridors without direct access to external means of egress must install sprinklers. The three-story Sadigo does not have interior corridors; the second and third floor apartments have stairs descending to ground level. There are also stairs to the rooftop

And Chapter 509 requires that buildings up to 75-feet high that do have direct adequate external means from guest areas for escape from fire and smoke must have sprinklers if erected prior to 1983.

These provisions apply only to those public lodging establishments in a building wherein more than 50 percent of the units in the building are advertised or held out to the public as available for transient occupancy.

And there is a special exception for historic buildings. The statute refers to national fire prevention standards adopted as law by Florida that mentions systems equivalent to automatic sprinklers. Eisenberg argues that his three-story building has an adequate fire and smoke protection system, which he upgraded at a cost of $40,000 at the city’s request, and is absolutely exempted from the equivalency standard because the intention of the law for historic structures is to prevent disturbing, altering, or destroying their integrity by forcing the installation of fire sprinklers OR alternative systems equivalent to automatic fire sprinkler systems.

Eisenberg claimed that the city attorneys deliberately deceived or lied to the judge about this feature of the law, and that several experts as well as his attorneys were also deceived into becoming “shills” for the city and fire sprinkler companies. His notion that he had become an ATM machine for attorneys on both sides is supported by a June 1, 2015, Notice of Resolution discovered on the docket whereby the city attorneys had resolved their claim for fees against his attorneys, and therefore they were pursuing Eisenberg for the $800,000, despite the evidence that Eisenberg had bowed to his attorneys’ wishes that he trust them as his lawyers to present the correct theory of the case and arguments to the court. How can the court hold him alone responsible for fees to defend against frivolous and groundless arguments, if that is what they were, and not his attorneys, when he relied on their advice in the pleadings? In fact, the rule appertaining to sanctions allows the judge to hold the attorneys signing the pleadings responsible.

Right or wrong, everyone was aboard the same ship, naturally unwilling to cross the source of a great deal of bread and butter. Eisenberg, who has been called a sore loser by the press and a crybaby by city attorneys for fighting for his constitutional rights, was denied equal protection of the laws as a so-called class-of-one. In reality there are hundreds of people in that Category of One who are afraid for good reason to confront the city’s legal mafioso who are no doubt gloating over Eisenberg’s defeat.

The 80-year old Sadigo had been partially occupied by transient guests as was the custom for decades on the beach. Eisenberg had a state license for transient use and was paying resort taxes to the city. The trouble began when he pulled a permit to dedicate some space for preparation and storage of cold food for his Art Basel visitors. City inspectors then defined that space as a “restaurant” although no food was to be sold there to the general public, and reclassified it as a “new” structure. Eisenberg declined to have their guys fix the problem or impliedly pay a bribe after code enforcement insisted that the transient apartment building was a brand new hotel that would have to comply with the fire code of a new hotel instead of an existing hotel. “Transient” occupancy, which allows for two transient uses in the district, is the overriding word: The change from transient apartment to transient hotel, Eisenberg argues, was merely a change in paperwork nomenclature, both uses being allowed within the general occupancy zoning of the neighborhood. Wherefore the Sadigo could not be classified as a new building since the occupancy was essentially the same, i.e. transient.

City officials, especially the clan of city attorneys, apparently had a vendetta going against him as if he were an enemy of the state. Right or wrong, everyone but he was aboard the same ship, naturally unwilling to defy the source of a great deal of bread and butter. Wherefore he was denied equal protection of the laws as a so-called class-of-one inasmuch as only his historic building was selected out of many for specious enforcement. His attorneys, apparently believing equal protection abridgement would be hard to sell to a jury, did not have detectives go out and get comparables to show that similar buildings were allowed without sprinklers, and that he was being picked on because he did not bend over for them. He has apparently now retrieved a list of comparables on his own.

Before I was aware of the Eisenberg Affair, I myself had pointed out that a friend of Eisenberg’s, Scott Robins, an influential developer who has partnered with Mayor Philip Levine in several projects, had operated a transient hotel, the Espanola Suites on Espanola Way, above two restaurants with hot kitchens for several years, and according to the city has not paid resort taxes, after the city denied him a certificate of use. An inspection report available from his recent effort to obtain a certificate for hotel use indicates that the sprinkler system installed during a previous renovation, which may not have been permitted by the city is inadequate for the hotel use. It was only after pressing the issue with Hernan Cardeno, Director of the Code Compliance Department, that Espanola Way Suites was cited and then referred to the Special Master. No explanation was forthcoming from Cardeno was to why the hotel guests were not evicted and the owner arrested as was the case in the Eisenberg Affair. The problem with reporting violations to expose the negligence and corruption of the government is not only retaliation by the officials, but retaliation from the businesses that one would rather not offend.
<BR
In any case, Judge Altonaga tossed out Eisenberg’s equal protection argument, in her first round of dismissals in the Summary Judgment Game, for lack of the comparatives that Eisenberg’s attorneys did not collect and press.

And then she tossed the supposedly sexier free speech cause, ruling that it was moot because a principle of current common law, or how judges interpret statutes lately, is that the city itself cannot be held liable for civil rights violations unless it makes the discriminatory policies. It was subject to county review, she said.

Well, then, the problem there is that the county is subject to the state, and the state is immune pursuant to the current misinterpretation of the Eleventh Amendment to the United States Constitution. So nobody is liable.

Judge Altonaga’s institutional blindness to the fact that the city tailor made the policy to put Eisenberg out of business is profound, as can be seen by anyone who thoroughly examines the behavior of the officials concerned and fully understands the confusing hodgepodge of state statutes.

As for the policymaker concept, that is the result of the interpretive vacillations of the also fallible justices of the U.S. Supreme Court. At first it was believed the Congress back in 1871 did not intend municipalities to be “persons” subject to suit to recover damages for civil rights violations. Minds were changed about that, and may and should be changed again, so that such entities are liable for damages for their employees’ behavior, as is the case with businesses. History is again and again conveniently abused to justify current desires.

Eisenberg cited several mistakes made by his lawyers. I note that they did not sue the officers themselves along with the city, which they might have done knowing they might be confronted by sovereign immunity, which is based on the notion that “the King can do no wrong.”

But the King can do wrong, and be beheaded as a consequence. If Eisenberg is right, some heads should roll at city hall. He must have something planned. He is not talking, having learned his lesson the hard way about speaking freely.

# #

Facsimile of Document Retrieved From Public Records
Response to City’s Motion for Approximately $800,000
in City’s Legal Fees and Costs
?

FILED by___________ D.C.
JUN 04 2015
STEVEN M. LARIMORE
CLERK U. S. DIST. CT.
S. D. of FLA. – MIAMI

IN THE UNITED STATES COURT
SOUTHERN DISTRICT OF FLORIDA
ROD EISENBERG, and EISENBERG
DEVELOPMENT CORP., a Florida
Corporation, d/b/a SADIGO COURT
APARTMENT HOTEL, Plaintiffs,

vs.

CITY OF MIAMI BEACH,
Defendant,
CASE NO.: 1:13-CV-23620-CMA

PLAINTIFF ROD EISENBERG’S RESPONSE TO DEFENDANT CITY OF MIAMI BEACH’S MOTION FOR ENTITLEMENT TO FEES, COSTS, AND SANCTIONS

“I will employ, for purposes of maintaining the causes confided in me such means only as are consistent with truth and honor, and will never seek to mislead tile judge or jury by any artifice of false statement of fact or law.. ”
Supreme Court of Florida, Oath to the Florida Bar, 2011

The Plaintiff, Rod Eisenberg, Pro se, adopts co-counsel’s Response pleading, with its memorandum of law, and files this its own Response to Defendant City of Miami Beach’s Motion for Entitlement to Fees, Costs, and Sanctions, and in support states the following:

INTRODUCTION

As shown below, it is clear and convincing that the City’s attorneys, past and present, have broken the solemn oath above and in turn denied that justice was done. Since the very beginning in 2007, when the first fire violation was posted at plaintiff s property, the City has stubbornly refused to fairly apply the laws and facts in the case of the historic Sadigo Court. Instead, they were only concerned with the end result: forcing a costly fire sprinkler system into a “contributing” historic building, which is exempt from sprinklers as a matter of law. Furthermore, the City also demanded Plaintiff go through the rigorous demands of obtaining a “new” hotel license if it wanted to sell short term rentals. And with the public coffers at their disposal, the City has spent an obscene amount of money to enforce their will.

Plaintiffs reason for going to the recent law firm, SmolkerBartlett(Smolker), are grounded in an equal protection claim that other apartment licensees are being allowed to sell short-term rentals, some with sprinklers, some without; while the Sadigo Court was being forced to obtain a new hotel license and be treated as a “new” hotel for licensing, building and fire code purposes. Correspondences between plaintiff and Smolker prior to them agreeing to represent client centered around the equal protection claim, not the free-speech claims that later engulfed the case. (see Exhibit 1) They later told client the equal protection case would be dull and boring to a jury. Instead, the free-speech angle would be interesting for a jury. They also said juries were not very intelligent as a whole to understand the complex zoning and land-use issues.

The issues in this case are very simple and upfront. The City had to embark on a scheme of smoke and mirrors in order to achieve a win at any and all cost. Their well-executed plan consisted of misrepresenting to the Court the necessity of a hotel license, when the current apartment license is good enough in a RM-2 zoning district. The City then unreasonably demanded that the “contributing” historic building be brought up to the same codes applicable for new hotel construction, which mandated fire sprinklers, as well as widening historic exterior stairwells. They argued their hands are tied because the process they deceptively labeled a “change of occupancy”, demanded it.

This City has a disturbing view of what our government is suppose to stand for. Instead of being a government of the people, by the people and for the people, this government is against its people, or at least the ones that have the moral resolve to challenge its absurd edicts, which in this case involved transient rental s and fire safety. Incredulously, this government will ask a property owner to disregard the rule of law, and only be concerned about the amount of money it will cost to fight their unwarranted demands. And since they have the public coffers, with no accountability, the City will guarantee one will spend much more money fighting them, then adhering to their unnecessary and unlawful demands.

If the facts and law do show that a sprinkler system is not actually mandated, then the City’s underhanded practices to force a historic property owner to install the unnecessary fire system would be tantamount to extortion. This Court even stated during a status hearing midway through the case that if the City got it all wrong on the sprinklers, “..that is just going to facto r into damages if your{Mr. Kairalla} assessment is incorrect.” (see Transcript of Court Hearing-7/2 l/1 4, p. 12). Due to misrepresentations by opposing counsel, this court never had the opportunity to analysis the codes, laws and facts in the case to see if indeed a sprinkler system was ever legally required for the “contributing” historic Sadigo Court.

That being said, the strong parts of plaintiff’s case, negating any talk of the action being frivolous, unreasonable or without foundation are as follows:

1) Plaintiff had given to prior counsel a list of other “comparators”, other apartment licensees selling short-term transient rentals, with or without the so-called requisite fire sprinklers, and not having to undergo a “change of occupancy” to hotel. Plaintiff/client should not be penalized for the failure of counsel to submit a list of comparators.

2) The Sadigo Court did not have to undergo a “change of occupancy” from apartment to hotel, thus triggering FFPC Ch. 28 for “new” hotels , because, if anything, the change would only be a “change of use”. That triggers FFPC Ch. 29 for “existing” hotels , which has significantly different requirements than its Ch. 28 counterpart, such as exempting existing buildings under 75 ft. from the sprinkler requirement. ( theSadigo Court is only 38 feet.)

3) City’s “Exhibit 1 &ll”, obtained through discovery in this case, both show unequivocally that opposing counsel misrepresented when he wrote to this Court there was a sprinkler mandate for all transient facilities, “without exception”. (see Exhibit 2) Opposing counsel’s shameful fear-mongering regarding possibility of guests burning in a future fire should not trump Court’s integrity that mandates it to respect the fire codes and statutes already in place that specifically exempt a building exactly like the historic Sadigo Court.

4) Notwithstanding City’s representations, Florida Statutes 509.215, the authoritative law concerning public lodging establishments and fire sprinklers, with its paragraph #4 exception for “contributing historic structures” from sprinklers, does apply to Sadigo Court. It clearly states the Historic Task Force “shall” accept the SadigoCourt’ s exception from sprinklers. Also contrary to City’s argument, the statute applies to both transient and non-transient public lodging establishments, (see F.S. 509.013(4)(a); F.S. 509.242(1) in Exhibit 11). As this Court recalls, City had been arguing that “FS 509.215 does not apply because the Sadigo was not licensed as a transient public lodging establishment prior to 1994”.

5) The validity of the numerous “Cease & Desist Orders” issued by local fire marshal prior to 2013 are null and void since the local fire marshal does not have authority to issue those orders under FS 633.161. Therefore, all those shutdowns in 2011 were invalid and City should be responsible for those damages.

ARGUMENT

I. There are Many Comparators

Plaintiffs’ case was not frivolous because Plaintiff knew there were many other apartment buildings selling short-term rentals and they were not being harassed like the Sadigo Court by calling it “an illegal hotel”. Plaintiff had even given to prior counsel that list of other “comparators”, other apartment licensees selling short-term transient rentals, with or without the so-called requisite fire sprinklers, and not having to undergo a “change of use” or a “change of occupancy” to hotel. (1)
(1)Besides the apartment licensees listed in Exhibit 2, there are many comparators selling short term rentals without sprinklers, such as the Tradewinds Apt./Hotel(2365 PineTree Dr.) European Guest House(721 Michigan Ave.) and Sobe Bed & Breakfast (1018 Jefferson Ave.) and some with sprinklers, such as the Espanola Suites (443 Espanola Dr.), Metropole Hotel(6 35 Collins Ave.), Sunbrite Apartments(1330 Penn. Ave..) BesaroSuites(255 W. 24 St.) and the Lincoln Arms (1800 James Ave.), which happens to be located in the same RM-2 district as Sadigo Court. There are also some newly renovated hotels such as the Clifton Hotel (1343 Collins Ave), Villa Italia Hotel (354 Washington Ave) selling short-term transient rentals without sprinklers. And of course, we have not even mentioned the numerous units in condos that sell short-term rentals, many that do not have sprinklers.
In other words, the Sadigo never needed a “new” certificate of occupancy for a hotel because its original apartment license is good enough in a RM-2 zoning district to sell short-term rentals. Plaintiff’s counsel in this case, Smolker Bartlett, promised to amend complaint and submit comparators at the appropriate time, however, they never did and it is still a mystery today why they did not. Plaintiff/client should not be penalized for the failure of counsel to submit a list of comparators.

For years, plaintiff had been trying to have his numerous counsels simply submit a list of other apartment licensees that sell short term rentals, but done ever did. Furthermore, no attorney ever objected to the City’s repeatedly misrepresenting the need for a hotel license when they stated to a state court judge:
“Apartment use does not allow transient utilization of the premises.” City Atty. Boksner, p. 20; “Transient would require…..to change their certificate of use as a hotel.” City Atty. Montoya, p. 45; “If he wants to operate as a transient apartment under state law, he also has to operate as a hotel under City law.” City Atty. Held, p. 47 [Transcript of Court Proceedings dated 6/30/11, Eisenberg v. City of Miami Beach, Case No. 11-20234 CA 22. {(App’x II Ex. 9) ECF No. 53-9}]
On June 27, 2011, City gave code compliance violation CE # 11010866- “Correct BTR is for apartments. Owner is utilizing the property as a hotel with transient short-term rentals.”. Clearly in this case and in every other related case, the City does not want to acknowledge the existence of local apartment licensees(BTR #900) that legally operate transient short-term rentals.

Inexplicably, the City has destroyed its credibility by representing that apartment licensees are not allowed to sell short term rentals.

The City also has argued that the Sadigo Court without fire sprinklers is a “imminent danger”. If that were true then why would the late renowned architect, Les Beilinson, a historic specialist, state at a Aug. 19th, 2010 Task Force hearing that: “the Sadigo Court is one of the safest buildings I have ever been in”. If the sprinkler requirement were true, you would not have multiple state DBPR inspectors pass the Sadigo and note in their Lodging Inspection Reports that sprinklers are not applicable. (see Exhibit 16) The City fire marshal has told the plaintiff on many occasions that “the only reason your experts agree with you is because you pay them”, This warped cynicism should not diminish the solid foundation of plaintiff’s case built on expert fire-engineer testimony, fire codes and statutes.

II. It’s a “Change of Use”, not a “Change of Occupancy”

Plaintiff thought the foundation of his case was solid because apartments have a “vested” right to sell short- term rentals in Sadigo’ s RM-2 district. However, if the tribunals think the Sadigo has to be a “hotel, ” then the process is only a “change of use”. That label has beneficial ramifications on the Sadigo Court’s sprinkler issue because “changes of use” trigger FFPC, Ch. 29, and Ch. 29 exempts existing hotel-like structures under 75 feet. The Sadigo is under 38 ft. As proof, the FFPC, Ch. 43.7.1 states: “A change in use that does not involve a change of occupancy shall comply with the requirements applicable to the new use{hotel} in accordance with the applicable existing occupancy chapter {i.e. , Ch. 29}……. ”

Opposing counsel also argues that plaintiff also lost his malpractice case against the original law firm who agreed with the fire marshal that Sadigo Court needed sprinklers. However, the judge in that case tangentially ruled that the process is a “change of use”, having repeated the phrase 7 times in his order. (see Exhibit 5-0rder dated 6/2/14) Opposing counsel cannot have it both ways: He cannot bring in the legal malpractice Order against plaintiff, and still argue it’s a “change of occupancy”. Labels do matter. In fact, it is important to realize that in the January 22, 2014 hearing before this judge, opposing counsel alluded to the change from apartment to hotel as a “change in use”, or “that new use….” ; “another type of use…. “; “change from one use….to another use…..”. Notice how opposing counsel does not mention the word “occupancy” when discussing the process because he knows, as all the experts know, that the change, if anything, is just a “change of use”.

If labels don’t matter, then why would opposing counsel surreptitiously recast the phrase “change of use” to now being a “change of occupancy” later in the case? As discussed above, the answer lies in the fact that “changes of use” exempt existing hotels under 75 feet. as per FFPC, Ch. 29. Instead of acknowledging this innocuous fact, opposing counsel has used its vast financial resources to make it appear it is a “change of occupancy” and then arguing that FFPC, Ch. 28 applies because Sadigo Court must be treated like a “newly” constructed hotel in the eyes of the fire code. This is absolutely false, as the City’s own “Exhibit I ” shows many times the process being a “change of use”. (see Exhibit 2)

Although plaintiff’s counsel originally argued there was neither a change of use, nor a change of occupancy, it is strange and unexplainable why Plaintiff s counsel would, toward the end of case, now advise their client that Sadigo now has to undergo a “Change of Occupancy” to a hotel. (see Exhibit 3- Cremer email dated 10/29/14).

This is particularly unsettling because the City’s expert, SLS Consulting, Inc., the City’s Exhibit 1, which list at least 12 examples of “change of use”, and a Miami Dade County Letter all point to the process, if necessary , being a “change of use”. (see Exhibit 4)

Despite all the evidence above that shows the process, if anything is a “change of use”, the City success fully branded the Sadigo’s process as a “change of occupancy” in all the Task Force, BORA as well as in the most recent Fire Appeals Board hearing. (3 City’s Verified Response, Miami Dade Fire Appeals Board , p.2, 8/2/14) The reason why those results should not count and the reason why petitioner/plaintiff had to withdraw his petition every time is due to the fact that the false “change of occupancy” label was accepted by these tribunals without any open discussion or input from other parties.

III. Florida Statutes 509.215(4) Should Apply to Sadigo Court

Plaintiff s actions were not frivolous nor unreasonable because there is a statute directly on point that should have cleared Sadigo Court from sprinklers, if we are to read these statutes in their plain and obvious meaning. As noted above, the original DBPR hotel inspector, as well as a subsequent inspector, passed the Sadigo Court concerning sprinklers, writing, “N/A” and/or “Yes” on the line-item for compliance. [see both DBPR, Division of Hotels, Lodging Inspection Reports dated 7/10/08 and 5/13/10 (Exhibit 16)] They freely passed Sadigo because they knew all “contributing” historic buildings like the Sadigo Court are exempt from sprinklers as a matter of law, as per 509.215(4). That has been the law of the land since 1983. So it is misleading to say no one ever agreed with Sadigo on the issue of fire sprinklers.

As City’s Exhibit 1 & 2 shows, there are other establishments that are allowed to sell short-term rentals without sprinklers because of the exceptions dictated in F.S. 509.215(1) & (2). However, the Sadigo is not allowed to use the 4th paragraph, written to exempt certain types of historic buildings. One of the reasons the City argues that point is because the Task Force never approved of its petition for exemption from sprinklers. This is a gross misrepresentation of what the role of the Task Force is.

Paragraph #4 of F.S. 509.2 15 mandates: “In attempting to discern legislative intent, we first look to the actual language used in the statute”. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000); accord BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287,289 (Fla.2003). “When the statute is clear and unambiguous, courts will not look behind the statute ‘s plain language for legislative intent or resort to rules of statutory construction to ascertain intent”. See Lee County Elec. Coop..Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002). “In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent “. See State v. Burris, 875 So.2d 408, 410 (Fla.2004). When the statutory language is clear, “courts have no occasion to resort to rules of construction – they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power .”Nicoll v. Baker, 668 So.2d 989, 990-9 1 (Fla.1996)
“Special exception to the [sprinkler] provision shall be made for contributing historic structures ……..When recommending alternative systems {to a sprinkler system}, the task force shall consider systems which would not disturb , destroy, or alter the integrity of such historic structures .”
No where does this imply that the Task Force has leeway to approve or disapprove of the exception. Instead, it makes it mandatory for the fire tribunals to accept the “exception” from sprinklers and to recommend alternative systems to a sprinkler system that meet the intent of the NFPA- something they have failed to do in 3 Task Force Hearings, a BORA hearing and/or a Fire Appeals Board hearing. Since the language is so clear and unambiguous, the case law cited [above] does not permit any fire official, nor this Court, to abuse their given right to interpret and instead create new law.

The City is rewriting the Task Force’s mandate without any legislative authority. In other words, if opposing counsel does not like what a statute says, he will just make something up, ala Brian Williams. For example, in the Fire Appeals Board case the City further embellishes its misrepresentation of the law by arguing 509.215 only applies to “transient” facilities licensed before 1994, notwithstanding the law defines a public lodging establishment, as either “transient” or “non-transient” . Opposing counsel then reasons that since Sadigo Court did not get its state transient license until 2008, then 509.215 does not apply. According to the City, the authority for this strange interpretation is a former fire marshal who is no longer employed with the City and a SFM declaratory statement that does not apply to historic buildings, which the Sadigo Court is. The declaratory statement has been overturned by the enactment of FFPC 28.3.5, which does exempt new 3 & 4 story hotels from sprinklers with exterior walkways. Thus, as a matter of law, there is no universal sprinkler mandate, rather just a massive scheme to deceive this Court into thinking there was one.

This Court has previously warned opposing counsel to stop making statements about the correct statutory interpretation s without citing any authority regarding those interpretations. (see Order dated 3/3/14, p. 10, footnote #5)

It appears opposing counsel is cutting and pasting statutes together to create a new statute that fits their needs. The Canons of the Florida Bar, 4-3.3, do not allow officers of the Court to cut and paste statute sections together and pass them off as genuine. Opposing counsel cuts the phrase “transient only” from the Uniform Fire-Safety Standards, F.S. 633.022(1)(b), which only does apply to transient public lodging establishments.

[Opposing counsel does cite In The Matter Of Sonia Machen, Case No.1 05114-09-FM for the proposition that FS 509.215(1)(2) does not apply to Sadigo Court. However, the Statement does say that: “All buildings that are not within those parameters are required to meet Ch. 633…. ” (Id, p. 13) As we now know, F.S. 633 is the FFPC, which is then only Ch. 29, not 28 and Ch. 29 exempts all existing buildings like the Sadigo under 75 feet. So even using the Machen Statement, the Sadigo satisfies it by satisfying FFPC, Ch. 29. Furthermore, on p. 1 of the Dec. Statement it states: “If any of the facts asserted by the Petitioner [fire marshal] are untrue or materially incomplete, the conclusions of the Declaratory Statement could be significantly different. ” The fact that this statement mentions the word “historic” zero times, it is clear that this statement does not apply to historic buildings. Machen failed to account for the historic status of the structure in her analysis and thus should invalidate the use of this statement.]

Opposing counsel then extrapolates the “before 1994” date from F.S. 633.022(2)(b), which allows the local authority to require more strict sprinkler requirements for those buildings built after Jan. 1, 1994, only if a special local sprinkler ordinance is passed. [The City has never passed such an ordinance, thus the Florida Fire Prevention Code is the Uniform Fire-Safety Standard for the state of Florida, as well as the City of Miami Beach. (see F.S. 633.0215(1))] Opposing counsel has then blended these phrases together in their interpretation of FS 509.215.

This cutting and pasting of statutes and representing them as whole in a federal court case has substantially interfered with this Court’s ability to adjudicate the matter fairly. This Court has trusted opposing counsel and that trust has been broken by this unauthorized creation of new law designed to win the case at any and all costs, even if that cost is in the Court’s integrity and fairness in the legal system.

The Legislature has spoken on this issue of historic buildings and fire sprinklers by enacting F.S. 509.2 15(4), with its historic exception to the FS 509.215(2) general sprinkler rule mandated for buildings built before 1983. Although the AHJ does have the last say on interpretation of these codes and statutes, the AHJ does not have authority to rewrite them. The Florida Legislature has also adopted the NFPA’ s 914, Code f or Fire Protection of Historic Structures. The City does not like to talk about this codebook because it also allows historic buildings to utilize many “methods” of compliance, such as the submission of “Equivalency Reports”, in lieu of compliance with any requirement, including even sprinklers. (see NFPA 914, Ch. 8.1) Once again, the City, opposing counsel and/or this Court does not have authority to change the plain and obvious meaning of these “unambiguous” fire codes and statutes that all in one way or another, exempt a historic building just like the Sadigo Court from sprinklers. Therefore, it is the City who does not want to comply with the fire code sections and statutes that exempt the Sadigo Court. If they do not like the outcome of certain laws, then let the fire marshal lobby the State Legislature to change the laws. But for now, the fire marshal must obey the law, not re-write it.

IV. Misrepresentation ofCity Fire Marshal ‘s Authority to Issue Cease & Desist Orders, pursuant to F.S. 633.118

Plaintiffs action s were not frivolous nor without foundation because the Florida Legislature has made it clear that local fire marshals are not agents of the State Fire Marshal’s Office. (see F.S. 633.118, formally 633.121) Given the enormous power and responsibility, the Legislature does not want local fire officials to have to ability to have persons arrested for fire code violations. This is exclusively reserved for the state fire marshal under the state statue 633.228(3), formally 633.161. For good reason, the Florida Legislature only wants State Fire Marshal personnel to be the ones initiating the action to arrest someone. It is general common knowledge that the further down one goes in state and local government, the more likely one is to find people holding technical jobs for which they are not sufficiently qualified by education or experience.

Knowing a local fire official, acting independently of the State Fire Marshal’s Office, could not have the plaintiff arrested for violating local fire dept. “Notices of Violations”, the fire marshal conspired with other local fire marshals to come up with a plan to have plaintiff arrested. (see Exhibit 6- Machen email dated 9/16/1 I-obtained in discovery from City) That conversation resulted in City Fire Marshal continually citing F.S. 633.228 (formerly 633.161) and issuing many “Cease & Desist Orders” pursuant to it, which does allow violators to be arrested. (see FS 633.124) However, the facts show, as evidenced by the email chain, all those knew the authority to “issue” would not extend to the local fire officials and there was no evidence of any coordination with the State Fire Marshal’s Office on the issuance of those Cease & Desist Orders back in 2007-2012.

Additionally, a well-known SFM Declaratory Stmt., In the Matter of Wagner, 128015- 12-FM, confirms the long-standing common knowledge that local fire officials may not issue cease and desist orders under Ch. 633, although they can enforce properly issued Cease & Desist Orders under FS 633 and MD County Sec. 14-44. Even opposing counsel admits that “In re Wagner does fi nd 633.161 inapplicable to municipal officials… “. However, opposing counsel then misrepresents that the local fire marshal has the authority given by other means, such as NFPA 1 Sec. 1.7.6.2,1.7.7,1.7.14. (see Exhibit 11)

A closer look at those sections reveal that all they do is give the AHJ authority to “order person to remove dangerous ..condition…”, (Sec. 1.7.6.2); or “Where dangerous conditions exist….AHJ shall have authority to abate such hazardous conditions…. /I (Sec. 1.7.7); or “The AHJ shall have authority to order an operation or use stopped ….when such building has hazardous conditions… /I ( see Sec. 1.7.14). These are obvious authorities that do not need explaining, however nowhere does it state the AHJ can issue Cease & Desist Orders that subsequently result in the violator being arrested. It is bad faith for opposing counsel to make those representations of a conveyance of authority when in fact they say nothing of the kind. Opposing counsel misrepresents that in addition to the above, the City also has authority to issue Cease & Desist orders as per the City Municipal Code, 50-4(i), and to have persons arrested for fire code violations.

[See Exhibit 7- Ordinance No. 2013-3813, where City unilaterally gave itself the powers the State Legislature said are specifically reserved for State Fire Marshal: the power to issue Cease& Desist Orders pursuant to F.S. 633.]

However, the City modified that municipal code section only in Oct. 2013. Therefore, all those “Cease & Desist Orders” issued prior to 2013, that led to multiple shutdowns of plaintiff s business and his eventual arrest, should be null & void ab initio, as the local fire marshal did not have authority to issue them. Thus, the plaintiffs arrest for violating those “Cease & Desist Orders” should also be null & void, ab initio. So not only did the local fire marshal know her scheme had defects, she carried them out anyways, in such reckless fashion, that opposing counsel had no choice but to deceive this court and suppress this information. Smolker did raise this argument in a Nov. ’14 motion, however it was too little too late, as this Court denied the motion as being moot after it granted City’s motion for final summary judgment.

V. Fire Marshal Does Have Leeway to Exempt Sprinklers

It is also misleading for the City to argue that its hands are tied regarding the mandate of fire sprinklers. This is because the City of Miami Beach never formally enacted any ordinance requiring more strict guidelines for sprinklers. Since Sadigo Court is not a “new” hotel structure, nor undergoing a “change of occupancy”, there is no fire code section that requires sprinklers in an existing 38’ tall hotel-like structure. If there is, then let opposing counsel produce it. Furthermore, F.S. 633.022(2)(b), the Uniform Fire Safety Standards, specifically states that the “local authority may, on a case-by-case basis, in order to meet special situations arising from ….historic….conditions…..authorize equivalent alternative standards”.

Although it is an apartment building by its occupational license, it is an existing hotel, by fire code definition FFPC, Ch. 29 which states: “the term hotel …..shall include a hotel, an inn, a club, a motel, a bed and breakfast, or any other structure meeting the definition of a hotel i. e., transient apartment”}.The Sadigo was built actually as a transient apartment house, hence the original name, Sadigo Court Apartment Hotel, and thus satisfies FFPC Ch. 29, as only existing hotels over 75 feet must be sprinklered.

Also, in FS 509.215(4) , it states the AHJ or fire official shall grant an exception to the fire sprinkler requirement for “contributing” historic structures like the Sadigo Court. In the fire code, the definition of “shall” means a mandatory requirement. (see FFPC Ch. 3.2.6) Ironically, opposing counsel is deceiving this Court into thinking a fire marshal has no leeway into exempting fire sprinklers under the laws and codes. In all actuality, under the FS 509 statute it is the AHJ and tribunal s like the Task Force that have no leeway in denying the exception from sprinklers for a “contributing” historic structure like the Sadigo Court.

VI. Blatant Misrepresentation of Local Ordinance

Plaintiffs actions regarding Count V were not frivolous because the apartment licensees have a “vested right” in an RM-2 zoning district to sell short-term rentals. Additionally, plaintiff cited the new “Vacation Rental Law”, FS 509.032(7)(b), as added proof that it could sell short-term rentals without changing its license because as of the statute’s enactment date of June 2, 2011, there were no city ordinances on the books restricting short-term rentals in any RM-2 district. [Although the new short-term rental statute creates a new category of Transient establishments, “vacation rentals”, the new law generally prohibits municipalities, unless they have a law prior to June2, 2011, from restricting short-term rentals on the basis of occupancy classification, i.e., apartment, bed and breakfast, single-family, rooming house, etc….(see also White Paper: “ShortTerm Rental Housing Restrictions”, Robinson & Cole, LLP, p. 13-14 (2011- Exhibit 12)] However, the City brazenly argued that plaintiffs use of that landmark law is “irrelevant and a classic red-herring” because it already had an ordinance , # 20 I0-3685 , that restricted short-term rental s and existed prior to June 2, 2011. (see Exhibit 8) Remarkably, this in part caused the Court to dismiss plaintiffs Count V when that ordinance clearly does not even apply to Sadigo’s RM-2 zoning district! Thus, the City has repeatedly mislead Courts into believing it already had an ordinance restricting Sadigo’s short-term rentals, when in actuality it never did back then and it does not have one today.

VII. A Lot of Billings, Very Little Results

Although there is no guarantee of success in civil litigation, a plaintiff must be certain his attorneys are not succumbing to the City’s arguments because they would rather treat their client like a ATM, rather than vigorously advocate their client’s positions. Opposing counsel points out that plaintiff had so many lawyers and he still lost every time. And although this may be true, the reason is every lawyer, except one or two, had the propensity to do things harmful to the client, while remarkably always beneficial to the City.

Plaintiffs original lawyers back in 2007 advised him that being a “contributing” historic building is irrelevant when considering sprinklers and there are no statutes, fire code sections or otherwise that can help the historic Sadigo Court stave off a mandate of sprinklers from a local fire marshal, as she is the “Authority Having Jurisdiction”. That same lawyer never advised client that he could engage a fire engineer to submit a sealed and certified “Equivalency Report” that remediates the sprinkler requirement, as per NFPA 914, Code for Historic Structures and/or Florida Building Code, Existing, Ch. 1105/6. It is no coincidence that the City now claims all those Equivalency Reports are unacceptable. It is also no coincidence that opposing counsel now cites these “previous attorney, architect and engineer” as one of the groups who disagreed with their client’s assessment regarding historic buildings and fire sprinklers.

That same firm never advised their client that Sadigo Court can have a State Transient Apartment License, along with its local apartment license, and still sell short-term rentals. Instead, it advised Sadigo that if it wanted to sell short term rentals it would have to undergo a change to hotel and obtain new licenses in order to operate. The City has spent its resources these past eight years backing up the well-connected land-u se law firm, as well as their incorrect determinations regarding, land-use, fire codes and sprinklers. It is palpable that the City and plaintiff could have resolved this back in 2007 if the law firm only honestly advocated on behalf of its client that: 1) the Sadigo Court is an apartment licensee with “vested” rights that allow it to sell short-term rentals in its RM-2 zoning district and 2) it can do so without sprinklers due to the fact that Sadigo is also a “contributing” historic structure, as per FS 509.215(4).

In yet another disappointing display of legal advocacy, another law firm representing client in over two days of hearings, failed to advise the state court judge in the injunctive-relief case involving the City back in 20 II , that the Sadigo is located in a RM-2 zoning district. This is crucial when determining the right to sell short-term rentals. That same lawyer changed plaintiff’s affidavit without informing client and client mistakenly signed it where it stated “after the hearing I protested in a judge’s chamber” . Not only was this not true, but it unfairly cast client as litigious crybaby that rudely protest bad decisions. [see Exhibit 9- Truitt email to client dated 7/12/11] Fortunately, the attorney agreed to change the paragraph in question the next day and this is reflected on the docket sheet in case. However, the damage was already done. The incorrect affidavit still remains on the books and was even sent up on appeal as part of the City’s Appendix to Appellee’s Answer Brief instead of the corrected one.

[See Exhibit 10- City’s Appendix to Answer Brief, Eisenberg Dev. Corp. v. City of Miami Beach, Case No. 3D12-362, filed 4/26/12]

Also, that same lawyer, despite City attorneys making those previously mentioned false statements regarding apartments inability to sell short-term rental s, failed to lodge one objection. The City, during those same two days, lodged 15 objections. (see Transcripts on 6/30/1 1 & 7/6/11 in Eisenberg v. City of Miami Beach. Case No. 11 -20234 CA 22) Another lawyer filed a crucial memorandum of law too late before a hearing regarding a motion for relief from judgment that the judge refused to read or accept. The memo contained exculpatory evidence showing the Planning Director stating that after the landmark state short-term rental law, F.S. 509.032(7) became effective, it restricts City’s ability to prevent certain apartment licensees from selling short-term rentals.

[12 see Exhibit 11- Memorandum of Law in Support for Motion for Relief from Judgment. Eisenberg Dev. Corp. v. City of Miami Beach, Case No.I I-2 0234 CA 01(15), filed two days before 4/30/13 hearing and was not accepted by Judge Rodriguez. Smolker Bartlett attorneys advised plaintiff to voluntarily dismiss this state court motion for relief under Fl. Rules of Civ. Pro. 1.540(b), which plaintiff did.]

So as one can see, it has been a calamity of errors perpetrated by the numerous attorneys who all thought client had a great case at the onset, only to result in them doing something incompetent and benefitting the City in the end. This was plaintiffs experience dealing with lawyers on this case: they always did things that ended up hurting plaintiff s position or reputation. In good faith, plaintiff has spent hundreds of thousands of dollars, in respect of the litigation process, to have able legal counsel independently evaluate and consult through the issues involving short-term rentals and fire safety. However, all that money still resulted in the City’s campaign of misrepresentation of the statutes, facts and code sections, resulting in unjustified victories at every turn.

CONCLUSION

Despite the City’s arguments that plaintiff s case is frivolous, without any foundation , the above shows the exact opposite. Plaintiffs case was strong because there actually are many comparators, that is apartment licensees selling short-term rentals . The only problem plaintiff had was getting their lawyer, Smolkeret.al., to provide them to this Court. Even if this Court believed that the Sadigo must change into a hotel, that change is only a “change of use”, not a “change of occupancy”. Thus the applicable fire code chapter is Ch. 29, not Ch. 28 and Ch. 29 exempts all existing hotels under 75 ft. So the Sadigo does comply with FFPC. It also complies with the Uniform Fire Safety Standards because under Florida law the uniform Standards are the same standards as the FFPC. (see Rule 69A-43.019- Exhibit 12)

Sadigo also complies with FS 509.215(4) because it is a “contributing” historic structure. City once again misrepresents to this Court that FS 509.215 only applies to transient public lodging establishments that were licensed prior to 1994. As shown above, FS 509.215 applies to both non-transient and transient public lodging establishments. The City also misrepresented to this Court by stating there is a universal sprinkler mandate for all transient establishments, “without exception”. This is absolutely false as shown by the numerous buildings in Exhibits 1& 2 provided by City selling short-term rentals without sprinklers.

Lastly, the City has recklessly issued those Cease & Desist Orders from 2007-2012 without having the proper authority to do so and thus they are null and void, ab initio. With its unlimited public resources, the City has maligned the case and caused the legal process to be unfair. They have created problems for plaintiff when none should have existed. Thus, as the above shows, one does not need to have an expertise in fire sprinklers to know that the Sadigo Court is exempt from sprinklers, as a matter of law. The only problem is that this City does not wish to acknowledge that law and has spent obscene amounts of money to distort the truth in the laws and fire codes. For this reason alone, they clearly are a government not for its people. They should not be permitted to allow their numerous misrepresentations to dictate the narrative of this case. Doing justice in a case and obeying the Canons of the Florida Bar are more important than achieving a win at any and all cost. Therefore, Plaintiff respectfully request this Court to deny Defendant’s motion for entitlement and grant such other relief as the court deems just and appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERT1FY that on 6/4/15, I filed the foregoing with the Clerk of the Court and sent filing to all counsel and parties of record on this 4th day of JUNE, 2015.

ROD EISENBERG
334 20th St
Miami Beach, Florida 33139
Tel. No. 305-812- 7125
Fax. No. 305-672-9135
info@sadigo.com
BY: Rod Eisenberg, Pro Se

LIST OF EXHIBITS

1. Letters to Smolker Bartlett, et al dated June 18, 2013 and Aug. 3, 20 13
2. City’s “Exhibit 1”- those apartment s that changed to hotel and “Exhibit 2”-apartments that are selling short term rentals.
3. Cremer email dated 10/29/l4
4. City’s Exhibit 1; SLS Consulting, Inc. Report; Miami-Dade County Letter dated 3/12 /09
5. Order dated 6/2/14 in Eisenberg v. Bercow et al., Case NO. 11-22415 CA 0 I
6. Fire Marshal Machen email dated 9/16/11-obtained in discovery from City
7. CMB Ordinance No. 2013-3813
8. City’s Motion to Dismiss, page 17 of 19, footnote 14, dated 11/22/13 in case at bar and 9 City’s Response, p. 4, footnote #2, dated 4/29/1 3 in Eisenberg v. City of Miami Beach, Case # 11-20234 CA 15)
9. Truitt email to client dated 7/12/11
10. Excerpts from original affidavit and corrected affidavit dated 7/12/11
11. F.A. C. 61C- 1.002(4)(a) ; “Short-Term Rental Housing Restrictions”, a White Paper, Robinson & Cole, LLP, p. 13-14 (2011) Memorandum of Law in Support of Motion for Relief from Judgment. Eisenberg Dev. Corp. v. City of Miami Beach , Case No. 11 -20234 CA 01(1 5)
12. NFPA 1, Sec. 1.7.6.2, 1.7.7,1.7.14; NFPA 914, Ch. 8.1; FS 509.2 15; FS 509.013(4); FS 509.242(1) ; FS 633.161 ; FS 633.118 ; FS 633.022; FFPC, Ch. 3.2.6, Ch. 28, Ch. 29, Ch. 43.7; Uniform Fire Safety Standards, Ch. 69A-43; CMB Municipal Code, Sec. 50-4
13. Misc. CMB Fire Inspection Reports Case No. FIlI 002750; Fl 11002910; FI 11004345
14. Misc. non-hotel licensees selling short-term rentals
15. Misc. Code violations cases- CE# 11010866; CE# 12002753
16. DBPR Lodging inspection Report s dated 7/10 /08 and 5/13/1 0
17. SFM Declaratory Statement, In the Matter of Sonia Machen, Case No. 105114-09-FM; SFM Declaratory Statement, In the Matter of Wagner, Case No. 12801 5-12-FM
18. CMB Ordinance , # 2010-3685
19. Florida Bar, Rule 4-3.3- Candor Toward the Tribunal; Attorney’s Oath of Admission to the Florida Bar

COPY OF ORIGINAL MOTION AND EXHIBITS:

The City of Miami Beach Can Do No Wrong

 

The City of Miami Beach HEADER
Mayor Philip ‘King’ Levine

 

UNDERLYING SOVEREIGN IMMUNITY IN MIAMI BEACH

Two Section 1983 Cases Dismissed

7 April 2015

By David Arthur Walters

Section 1983 of the Ku Klux Klan Act of 1871 provides civil redress for persons who are deprived of their civil rights by persons acting under the color of law, namely government officials and their governments or anyone else acting by their authority. Section 1985 specifically provides for the award of damages to persons deprived of the equal protection of the laws by two or more conspirators.

The history of complaints brought under the acts forged by the 42nd Congress at the close of the Civil War demonstrates that courts would rather not hold any governmental authority liable. Government officials, especially legislators, prosecutors and judges, have a natural prejudice in favor of sovereign immunity, the ancient principle of tyranny that the king is above the law and that he and his ministers can do no wrong unless they specifically waive immunity. Although sovereign immunity may not be mentioned explicitly, the prejudice underlies or is “subconscious” in Section 1983 litigation.

Even though the people are theoretically sovereign in the United States of America, and even though their representatives have waived sovereign immunity for the tortious conduct of governments, it is difficult if not impossible enjoin such conduct or to collect damages. One may argue, for example, that the violation of civil rights is a constitutional tort and not a regular civil tort, so the waiver does not apply.

As for the gross negligence of officials, consider the notorious precedent set by the Supreme Court of Florida in Trianon Park Condominiums v. The City of Hialeah in 1985: a decision that has ever since cultivated negligence in the florid state by sanctioning negligence as within the sovereign discretion of public officials.

The court held that “The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation.”

Further, “we find that no statutory duty for the benefit of individual citizens was created by the city’s adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code.

The court thus stripped government officials of their duty, leaving them subject to their whims and prejudices. Discretion is tyranny in the absence of a beneficent will.

As long as courts hew to the public duty principle of no duty to anyone, which they must adhere to once it is mouthed by the high court, their hands are tied by a logically absurd fiction. The Florida decision on sovereign immunity was definitely political; politics distributes hierarchically the absolute power worshiped by patriarchic religion. Still, three justices out of seven dissented in Trianon, with Justices and Ehrlich and Shaw writing dissenting opinions pointing out the inconsistencies in their colleagues’ specious reasoning, which upon careful analysis was really not pretty enough to be called specious. Chief Justice Joseph A. Boyd, Jr., had been the City Attorney of Hialeah, and he had represented, as a County Commissioner, the area that included Hialeah. If he had recused himself, the outcome would have been a 3-3 decision, the tie favoring Trianon instead of Hialeah.

There would have been no dissent if that case had been brought in federal court under Section 1983 for the deprivation of the property rights of the condominium owners whose homes were damaged because the building inspectors in the exercise of the police power did not provide them with equal protection of the laws. Most likely the federal judge would summarily dismiss the case upon the argument of the city attorney that the city was not obliged to protect everyone equally and there was no solid evidence of deliberate discrimination, so the case should never be considered by a jury.

In a humiliating defeat for Rod Eisenberg, who sued the City of Miami Beach in federal court for shutting down his historic Sadigo Court Apartment Hotel in South Beach’s Collins Park area, throwing his guests onto to the street and arresting him in alleged retaliation for his complaints about the corruption and negligence of city officials, U.S. District Court Judge Cecilia M. Altonaga, in an Order dated 16 December 2014, summarily dismissed his complaint on a technicality using what appears to be erroneous reasoning just as his attorneys were preparing to go to trial in January after surviving the city’s previous motion for summary dismissal.

The lack of an automatic fire sprinkler system in the three-story building situated in a commercial district near the beach was the apparent pretext for the closure and prosecution of Eisenberg. It appeared to him, trained as a lawyer but not licensed to practice, that either sprinklers were not required or that a safety “equivalent” compromise was provided by prevailing firesafety standards. The Sadigo was licensed as a transient apartment building by the state, and the city had been accepting resort taxes for that use from him. When he resisted, an alternative channel was allegedly offered to satisfy the officials; impliedly, a bribe, which was a rather common practice if the long history of corruption was any indication. He fought city hall and city hall won. His potential exposure for refusing to install $70,000 of sprinklers to the detriment of the historical characteristics of his building now stands at $4 million.

Judge Altonaga has exhibited the usual prejudices in favor of governmental authority. Florida’s dominating Cuban-American community wanted to see her sitting on the United States Supreme Court. She was reportedly on President George W. Bush’s short list for the nomination, but retiring Justice Sandra Day O’Connor’s seat went to Samuel Alito instead. She made short shrift of Eisenberg’s complaint that he was not afforded the equal protection of the laws, for lack of comparatives showing that others were treated better than he, a showing that is not really necessary when a single case of official abuse of power suffices under some circumstances. The comparatives would have been there if extensive and intelligent research had been made. As every Miami Beach old-timer well knows, the one thing that is consistent in Miami Beach government is the arbitrary and selective enforcement of codes, and that the selection is often made according to the primitive law of retaliation.

But every possible count was rendered moot by Altonaga when she ruled that, according to the so-called common law rigged in previous cases, the city itself did not make the policy he complained of because he could have appealed it to a county fire appeals board that has heard only five cases over five years and has ruled against the petitioner in all but one. Never mind that the county would not be liable under the same principle inasmuch as it is a subsidiary of the state and is governed by state statute, and the state would not be liable because it is afforded sovereign immunity by the U.S. Supreme Court’s misinterpretation of the Eleventh Amendment to the Constitution.

The City of Miami Beach, its fire chief, fire marshal, city magistrate and city commission clearly had ample discretion under state law to set policy and did so, and enforced it much to the detriment of Rod Eisenberg. It should matter not that he would not grease hands, or had a longstanding grudge against the same city attorneys, had sued it before and had otherwise been an official pain in the bureaucratic ass.

Tellingly, the common law that a city is not responsible for doing its duty because it can blame some higher power, a tactic not available to non-governmental entities, was also taken by Altonaga in a 2009 case, Florida Carpenters Regional Council v. City of Miami Beach.

“Municipalities may not be held liable under 42 U.S.C. § 1983 on a respondeat superior theory, but they may be held liable for the execution of a governmental policy or custom. As a result, municipal liability under § 1983 is incurred only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (Citations omitted)

The Carpenters union made a claim under Section 1983 that its members had been deprived of their First Amendment rights when they demonstrated against hotel policies on the beach and then were harassed and prosecuted for violation of the city’s subjective noise ordinances. Section 1983, as misinterpreted by federal judges, asserts that the municipality being sued set the policy complained of, and not some high power. However, because the Carpenters had failed to clearly and expressly allege any facts that the municipality itself was the policymaker, at least according to Altonaga’s intuition, the claim was held invalid by her as to the form purportedly required by the rules of procedure:

“Here, the Council does not allege action by a City official who has final policymaking authority. Although the Council alleges the City has no authority to revoke a citation after it is issued by a code enforcement officer, the Council also alleges: (1) a special master reviews citationsand rules whether fines should be paid; (2) the special master conducts an evidentiary hearing at which a party may be represented by counsel; and (3) the Council has appealed four of the fivecitations for review by a special master. Based on these allegations, the code enforcement officers are not final policymakers because the citations are subject to meaningful administrative review.”

People who are actually intimate with the City of Miami Beach’s quasi-judicial magistrate or special master agency know very well that it is in fact a policymaking agency of the city government. It is definitely not an independent branch of city government inasmuch as the city’s strong manager/weak mayor charter or council-manager system has no branches, a form that was condemned as “fascistic” by opponents a century ago. Indeed, strong arguments can be made that the city with its special master agency is unconstitutional hence un-American because it does not accord with the political wisdom of the nation’s founders.

According to City Attorney Jose Smith, who was city attorney at the time of the Carpenters suit against the city, the special master is a creature of the city commission and can be abolished by the commission. In other words, the special masters had better do what they are told to do. That city agency has long been a honey pot for case-fixing attorneys. Fines for noise complaints for commercial noise that would put the union megaphones to shame have been routinely reduced or dismissed.

A controversy erupted during the summer of 2012 between the city attorneys and a special master by the name of Babak Movahedi because he refused to go along with the write-down of fines and case dismissals. City Attorney Smith sought his dismissal along with the dismissal of Chief Special Master Abe Laeser, who supported Movahedi, and the installation of Smith’sCuban-American colleague as the new chief. Smith, in response to my objection that his office had dismissed a particular case decided by Movahedi, observed that “Despite what a Special Master might rule, the City ALWAYS retains the inherent, sovereign right, in its discretion, to settle, compromise, or dismiss a case where it is deemed to be in the city’s best interest.”After Jimmy Morales, formerly city attorney for Doral, took over as city manager for the City of Miami Beach, he dismissed the special masters and installed new ones because, he said, he wanted to take the special masters in a “new direction.” Jose Smith resigned as city attorney, and upon his recommendation, Raul Aguila was appointed.

So, yes, city policies are subject to “meaningful review,” meaning that the city reviews it own policies hence remains the policymaker. This sort of absurd question begging is not even specious in the sense of being pretty yet it is part of the gallimaufry common to judge-made common law when authority needs to be absolved of responsibility for doing its duty.

Another distinction Altonaga was careful to take up on cue in the Carpenters case was between “facial” and “as applied.” A particular law may be obviously or on its face unconstitutional, or it may be unconstitutionally applied. Courts are generally reluctant to declare laws unconstitutional as written because to do so may require a great deal of speculation as to the consequences of their application to unknown cases.

The Carpenters alleged that the city’s noise ordinance depended upon subjective assessments of noise levels by code officers as to what was unreasonably loud inasmuch as they took no decibel readings, and, when it was pointed out to an officer that the sound emitted from the union’s megaphone was no louder than music coming from the hotel, the officer said the hotel had a permit for the music, but the union had no permit for its noise.

“The Council also alleges in Count II the City’s enforcement is both arbitrary, because theCouncil must guess at when and how it may use megaphones, and subjective, because the citations describe the noise from the Council’s megaphones as ‘unreasonably loud’ and ‘unnecessary.’ Thus, the Council argues, the City’s ‘enforcement is perhaps better characterized as utterly arbitrary and subjective enforcement.’”

That might be true, but it cannot be allowed by the mind-boggled judge because of some defect in the way it was pled; to wit, that it was seemingly pled as if the noise ordinance were facially unconstitutional instead of unconstitutionally applied, which is the substance of the pleading that the court is not blind to, so on and so forth, anything to dismiss the case and prevent it from going to trial.

“The Council also alleges in Count II the City’s enforcement is both arbitrary, because the Council must guess at when and how it may use megaphones, and subjective, because the citations describe the noise from the Council’s megaphones as “unreasonably loud” and “unnecessary”…..The Council cites no authority for the proposition that it may raise an as-applied challenge for arbitrary and subjective enforcement. All the cases it cites found ordinances facially unconstitutional because they were capable of arbitrary and subjective enforcement…. The Council also argues in its Response, in support of Count II, the ordinance is capable of arbitrary and subjective enforcement. But Count II is an as-applied challenge, not a facialchallenge. The Council has not explained how allegations of arbitrary and subjective enforcement—other than those thatwould be sufficient under Olech–state a claim for an as-applied challenge. In sum, Count II fails to state a claim for arbitrary and subjective enforcement.”

“Olech” was parenthetically mentioned because: “To state a claim for arbitrary enforcement under the equal protection clause, which the Supreme Court has described as a ‘class of one’claim, a plaintiff must allege ‘that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As already discussed, the Council has not alleged that the City treated it differently from a similarly situated individual. Count II fails to state a claim for arbitrary enforcement under Olech.”

A class is needed because it is impossible for government to enforce every law equally, so enforcement often appears to be random, as a warning to violators. And the police power may prioritize enforcement for good reason. Although the members of the Carpenters union are not a class of persons protected by laws against discrimination against race, color, religion, creed, national origin, sex, age, disability, citizenship, genetics, and so on, they may be at least a “class of one” created by judicial fiat. Therefore, according to the judge, the demonstrators must show that they were discriminated against in comparison to other demonstrators. Perhaps others were allowed to demonstrate and raise a racket with megaphones at a hotel elsewhere on the beach. Never mind that non-union noisemakers are seldom cited, and, when they are, there cases are dismissed or fines radically reduced as a matter of city policy.

No doubt a clever lawyer could reasonably counter every reason given by Altonaga for dismissing the Carpenters case, but still she would not allow it to go to trial.

As for the Eisenberg case, Altonaga tossed his equal protection argument, in her first round of dismissals in the Summary Judgement Game, for lack of comparatives. Careful research would probably discover that his case is a case of one, andsimilarly situated persons, except for their amicable relations with the city, were allowed to go Scott Free.

On the other hand, the city government is as notorious for its bungling as its corruption. Laymen might wonder how a jury would decide Eisenberg’s case if officials were not intentionally retaliating against Eisenberg for being a troublemaker or for not paying bribes.

In any case, no doubt Altonaga and her ilk clearly do their level best to make certain his and like cases are not heard by juries no matter what facts and laws are asserted. That is not to say that the majority of jurors selected, given their experience as travelers in need of a safe and relaxing vacation, would not believe that government has an overriding interest in ensuring that vacationers are not disturbed by noisy demonstrators and do not perish in fires due to a lack of fire sprinklers.

Has anything changed other than rampant real estate development in the City of Miami Beach? The jury is still out on that question. However, nothing will deprive it and its officials of sovereign immunity, so they have little to worry about on that score.

 

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