The URL can be used to link to this page

Home My WebLink AboutHandouts_Special Meeting_Tab _04/11/2006 ,*04/10/2066 08:17 5617485339 DALACK PAGE 0S 1 ` UNITED STATES DIS�'Ft�CT COURT SOUTHERN DISTk��C'� OF FLORIDA _ Case No. 06-$0342 CIV�MIDDLE�Rt�KS BAS IL E . DAI,AGK, Plaintiff, v, VILLAGE OF �EQUE�aTA, FLO��AA, Def�ndant. PLAIN�'I�`F' S A�lENGMENT TO COMFI,AINT 1�ursuant �r� Federal Rule of Civil 1�rv�edure 15 (a) , Plaintiff h�reby amends his camplain� by deleting �herefram th� prayer ��r �eJ.i�t set �orth a� pp. 5�� af his camp�.aint and �ep].aci�g that pray�r wi�h the foll.ow�.ng_ WHEREF4RE, Pl�iritiff prays this Court: (�) '�v t�k� juri�dic�ian of this matter; (2) to ente�r a judgmen� d��2.axing �hat S��tion 2.03, as wri�ten is facially unconstitu�ional, �.nd �hat either, (a? �h� word "support" b� del.�ted from l�.n� �wo of the path �et forth in Sect%an 2.D3, o�, in th� alt�rnative, (b? th� wards "and Governmen�" b� deleted from line fihree of the o�th, �o that the o�th �z�d, therefc�re, th� s�ction wil], comply with fihe Constituticsri of the Un�.ted States; and i3? �o enter such furth�r r�li�t it deems a�propriate. Dated- Apri1 10, 2006 Respectfully �ubmitted, '�equesta, Fl�rid� .� � APR-10-2006 07:z2AM FAX:5617485339 ID: PAGE:001 R=96'• ��4/1�/2666 98:17 5617485339 DALACK rHUt a� . ` �.�/�� .�. _:�,�� - " E�sil. �. DalaGk, Elorida Bar No. 099185 b�zdett�@bell�outh.net 225 GQlfview f]rive T�questa. Flar.ida 334�9 � Telephone:(Sbl) 74�-1544 F��simile: (561) 74&-5339 Attorn�y k`ar Plaintiff C�rtificate of_Servi�e I ltir�y �rtify that a true a�r� Gox�xect �apy of this Amendment Tc� Complainr is being delivered to th� offic� nf the D�fend�n� at 2�(} Tequesta Driv�, Tequesta, Florida � �� 33469, trii� � day of April 2Q06. �j�Stl. �• �+��C `� � . APR-1�-20�6 07:23AM FAXs5617485339 ID: PAGE:�02 R=96% . �. . IN UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA �� ' �� `�v� �� , ' �' ��,�� =�- � BASIL E. DALACK, Plaintiff, v . �-� r-_ � - i-t . . r -� i.3 VILLAGE OF TEQUESTA, FLORIDA, : :.� �-� - c � _ ; _.., s . Defendant. ' 4 '{' _ - --<� � COMPLAINT ��, : ° �: � ,_�: 1. This action arises under the First and Four��en�� . ' , Amendments to the Constitution of the United States; it is filed on authority of 28 U.S.C. Section 1331. Plaintiff is in doubt as to the validity of Section 2.03, of the Charter af the Village of Tequesta (set forth below in paragraph 7 of this complaint). Plaintiff seeks declaratory relief pursuant to 28 U.S.C. Section 2201 and Federal Rule of Civi� Procedure 57. 2. Plaintiff, Basil E. Dalack, is a qualified elector residing in Village of Tequesta, Florida, the Defendant. 3. Defendant is a municipal corporation in Palm Beach County, Florida, duly created under the laws of Florida; under its Charter, Defendant has a Village Council-Manager form of government. . 1 4. The Tequesta Village Council is composed of five elected members, who serve terms of two years in positions called "Seats". Three members are elected in even years to hold Seats One, Three, and Five; and two members are elected in odd years to hold Seats Two and Four. 5. Persons seeking to be elected �o the Council must qualify as candidates by mee�ing certain conditions, and in the year 2006, only one.person per seat qualified as a, candidats for the office of Councilmember. 6. Plaintiff is the only individual who qualified as a candidate for Seat Five. 7. Qualified candidates become members of the Council only if they take and subscribe the following oath, set forth in Section 2.03 of the Village Charter: "I do solemnly swear (or affirm) that I will support, protect and defend the Constitution, and Government of the United States and of the State of Florida against all enemies, domestic or foreign, and that I will bear true faith, loyalty ' and allegiance to the same and that I am entitled to hold office under the Constitution and that I _ will faithfully perform all the duties of the office of on which I am about to enter so help me God."' (Emphasis added.) 8. The three persons who qualified for Seats One, Three, and Five are due to be inducted at the Village Council Meeting scheduled to be held on April 13, 2006. 2 9. On April 4, 2006, Plaintiff informed the Village Manager, Michael R. Couzzo, Jr., that he would be unable to take and subscribe the foregoing oath for the following reasons: This oath requires whoever takes it to support - the Government of the United States and of the State of Florida blindly and unconditionally; if he does not do so after having sworn that he will, the affiant would be guilty of perjury. � No one who is worthy of citizenship in. our great coun�ry can fail to support, pro�ect, and defend the Constitution of the United States. Most certainly I can and will swear to support, protect, and defend the Constitution of the United States cheerfully and zealously. I can " and will do the same relative to the Constitution of the State of Florida. Similarly, no one who is worthy of citizenship can fail to deny his support to the Government of the United States when it engages in unlawful behavior such as the Traq War, as the Government has been doing since March 2003. And I could not support the Government of the State of Florida when I disagree with its policies. Therefore, I cannot in good conscience swear to support the Government of the United States and �the Government of the State of Florida. And I will not so swear. 10. Plaintiff offered to resolve the dilemma by taking and subscribing the loyalty oath set forth in Section 876.05, Fla. Stat., which is substantially identical to loyalty oath which he had signed in order to qualify as a candidate for Seat Five, viz.: "I do hereby solemnly swear 3 . . (or affirm) that I will support the Constitution of the United States and of the State of Florida." 11. The Village Manager replied that he was powerless to accept that offer, and so a controversy existed between the parties. 12. After further reflection, Plaintiff, on �April .6, 2006, informed The Village Manager that his difficulty with Section 2.03 had been reduced to a.single word, the word - "support", i.e., Plaintiff could readily and cheerfully swear to protect and defend the Government of the United States and of the State of Florida, but he still could not give his sacred word of honor that he would support those governments if he believed their policies to be mistaken or unlawful. Plaintiff offered to swear and subscribe the Section 2.03 oath if the word "support" were deleted from it. 13. The Village Manager responded that he was powerless to accept the revised offer and refused to do so. 14. As a result of that refusal, Plaintiff faces the following dilemma: if on April 13, 2006, he takes and subscribes the oath that Section 2.03 of the Village Charter requires as a condition for holding the office of Councilmember, he' will thereafter either (a) have to remain silent if he disagrees with, and therefore could not 4 _� , , � � . ';� support, a policy of the Government of United States or the Government of Florida, or (b) subject himself to - prosecution for perjury if he speaks out in opposition to a Governmental. policy, thereby failing to support it; but if Plaintiff does not take and subscribe the required oath on April 13, 2006, he will be unable to assume the office of Village Councilmember, which he is qualified to occupy. 15. For the reasons set forth in the foregoing ra h Section 2.03 is facially unconstitutional, as it � parag p , constitutes a prior restraint on the exercise of freedom of speech, as guaranteed by the Firs.t Amendment to the Constitution of the United States (made applicable to the States by the Fourteenth Amendment); further, it denies the Plaintiff, without due process of law, occupancy of the elective office he is qualified to occupy. 16. At the very least, Section 2.03's requirement that he support the Governments of The United `States and of Florida denies the Pl-aintiff his First Amendment right to obey his conscience by engaging_ in non-violent civil protest against governmental policies he deems immoral. WHEREFORE, Plaintiff prays this Court: (a) to take jurisdiction of this matter; (b) to enter a judgment declaring that Section 2.03, as written, is facially � unconstitutional, and �that the word "support" be deleted 5 � � from Section 2.03 so that it to will comply with the Constitution of the United States; and (c) to grant such further relief it deems appropriate. Respectfully submitted, � }� �' ` ; �' '" A ?? 7 ' : °P l"t�.> i� r s. �.%i" 1 �;� .. �'L.�'f 1 Basil E. Dalack, Florida Bar No. 099185 225 Golfview Drive Tequesta, Florida 33469 (561) 746-1544 Attorney For Plaintiff I hereby certify that the Defendant has waived formal service of process, and that, pursuant to that waiver, I have delivered two conformed copies of this complaint to the Village Manager of Tequesta at 250 Tequesta Drive, Tequesta, Florida 33469, this Sev�nth day of April 2006. ��,�g�. �. C',".�"�v{�C 6