The appeal is dismissed for want of jurisdiction. Treating the
papers whereon the appeal was taken as a petition for writ of
certiorari, certiorari is denied.
Chief Justice BURGER.
I agree that we should dismiss this improper appeal, and
treating the appeal as a petition for certiorari, deny certiorari.
The merits of this appeal are utterly frivolous, as were most of
appellant's persistent efforts in the courts of Florida. In light
of that frivolousness, as well as appellant's status as a member of
the Florida Bar, I would award the State costs and fees under Rule
49.2.
This case originated when appellant Bret Clark received a
speeding ticket while traveling on the Florida Turnpike on August
12, 1982. At the time he was a law student. Appellant pleaded not
guilty, went to trial pro se and lost; he was fined $100. On appeal
the Fifth Judicial Circuit Court of Florida, sitting in its
appellate capacity, affirmed without opinion on September 4, 1984.
At some point during 1984 appellant graduated from law school and
was admitted to the Florida Bar.
Page 475 U.S.
1134 , 1135
Five months later, on February 14, 1985, appellant sought a writ
of certiorari from the Florida Fifth District Court of Appeal.
Under Florida Rule of Appellate Procedure 9.100(c), however, a
petition for that writ must be filed within 30 days of the order
sought to be reviewed, or in this case, no later than October 4,
1984. Appellant claimed that his petition was nevertheless timely
under an exception to the rule when denial of appellate review
would be fundamentally unfair, because he claimed he did not become
aware of the Fifth Judicial Circuit's order of affirmance until
January 14, 1985, after his driver's license had been suspended by
the Florida Department of Highway Safety and Motor Vehicles. He
apparently failed to inform the Circuit Court of his change of
address while appeal was pending and to keep a watchful eye on that
court's docket, as he was obligated to do if he intended to pursue
his claim.
On the merits, he challenged the arresting officer's failure to
show him the digital display on the radar detection device
indicating that he was exceeding the speed limit. He also
challenged the Florida sentencing procedure as discriminating
against traffic offenders who plead not guilty by imposing "double
or nothing" fines that exceed the fine imposed if they plead
guilty, thereby discouraging offenders from protesting their guilt.
Finally, he challenged the constitutionality of the
55-mile-per-hour speed limit. The Court of Appeal ordered the State
to show cause why the petition should not be granted, and the State
filed a response raising the jurisdictional bar based on the
untimely filing of the petition. On April 15, 1985, the court
dismissed the petition for lack of jurisdiction.
Undeterred, appellant filed a motion for rehearing which was
stricken as untimely. Over a month later he filed a motion to
recall mandate and a suggestion for reconsideration. At this point
the State, frustrated with appellant's frivolous litigious efforts,
filed a response pointing out that the court had no power to recall
mandate, and that no mandate had even issued. The State also moved
for attorney's fees pursuant to Fla. Stat. 57.105 (1985), which
provides for an award of fees where a losing party's position is
completely lacking any "justiciable issue" of law or fact. The
State emphasized that appellant's motion for recall of mandate
"demonstrates a startling ignorance
of the law, and, more importantly, an unwillingness to expend even
minimal effort
Page 475 U.S.
1134 , 1136
to research facts or law before taking the time of this counsel
and this honorable court. . . . [T]he correspondence and pleadings
in this cause . . . amply demonstrate petitioner's misconception
that his law training entitles him to file whatever he wants
whenever he wants without the slightest regard for the law or
judicial resources ." App. to Juris. Statement A-4.
Appellant responded by citing a Florida District Court of Appeal
decision from 1980 supporting his position that the court could
consider his rehearing motion. See Rogers v. State Farm Mutual
Automobile Insurance Co., 390 So. 2d 138 (Fla.App.1980). He also
asserted that the State's motion for fees "demonstrate[d] a
shocking degree of arrogance and lack of professionalism," App. to
Juris. Statement A-7, and that the State , "by its motion, reveals
that it has nothing but contempt for a law student who does not
simply permit an injustice to run its course, paying an unjust
penalty." Id., at A-8.
The Court of Appeal issued an order to show cause why sanctions
should not be awarded, and appellant again responded that his
efforts were not frivolous, relying on the same 1980 case. He
claimed his driver's " license was suspended without notice or an
opportunity to be heard." Id., at A-10. The State filed a notice of
supplemental authority pointing out that the 1980 case upon which
appellant relied had been reversed by the Florida Supreme Court in
1981. See State Farm Mutual Automobile Insurance Co. v. Judges of
District Court of Appeal, Fifth District,
405 So. 2d
980 ( Fla.1981), reversing 390 So. 2d 138 (Fla.App.). The Court
of Appeal thereafter denied the motion for recall of mandate and
awarded attorney's fees in the amount of $100 against appellant
pursuant to Florida Rule of Appellate Procedure 9.400(b).
Not one to suffer defeat lightly, appellant untimely moved the
Court of Appeal to review its order granting the nominal $100 fee
award. For the first time, as appellant acknowledges, see Juris.
Statement 2, he claimed that the award of sanctions was in
retaliation for certain correspondence he had sent to the Court of
Appeal complaining about the " denial" of appellate review of his
conviction, in violation of his First Amendment right to petition
for redress of grievances. He contended that the fee statute was
therefore "repugnant to the Constitution and laws of the United
States." App. to Juris. Statement A-14. The Court of Appeal
Page 475 U.S.
1134 , 1137
summarily denied his motion to review the award on September 12,
1985, and the Florida Supreme Court informed appellant that it
lacked jurisdiction to review orders granting fee awards under Rule
9.400(c) on November 14, 1985.
From the Florida Fifth District Court of Appeal's "final" order,
appellant brings this appeal challenging the fee award as in
violation of the First Amendment. He claims Fla.Stat. 57.105 (1985)
permits an award of fees based "upon the vague concept of what
constitutes a 'justiciable issue.' " Juris. Statement 2. This
claim, coming from an attorney, is so utterly frivolous as to not
warrant any further discussion. All this suggests is that appellant
considers the judicial system a laboratory where small boys can
play.
Rule 49.2 provides that "[w]hen an appeal or petition for writ
of certiorari is frivolous, the Court may award the appellee or the
respondent appropriate damages." Plainly this is an appropriate
case for sanctions. As the State makes clear:
"This case, although the subject of considerable judicial
attention, has been troubled by two common elements-untimeliness
and only casual observance of proper state procedural rules. Every
pleading Clark filed after the affirmance of his speeding ticket
was either late or inappropriate and filed with but a minimal
knowledge of relevant procedure. That which started him litigating
in the Fifth District Court of Appeal was filed almost four months
late. Even after being informed that the court was without
jurisdiction to entertain the petition, Clark nevertheless
persisted in his efforts to obtain something to which he was not
legally entitled under state law. When that persistence resulted in
a motion for him to pay for the state's costs in the litigation, he
was given an opportunity to show cause why such an assessment
should not issue. At most, Clark only offered reasons which had
nothing to do with the purpose of the motion." Motion to Dismiss
4-5.
Appellant now claims that he "is the victim of a state court
system which, confronted by a critical and recalcitrant defendant,
decided to punish him for attempting to assert his right to a day
in court on an appeal from a conviction in a presumably routine
traffic case." Brief Opposing Motion to Dismiss 1. This distorted
framing of the issue simply illuminates the frivolousness of
this
Page 475 U.S.
1134 , 1138
appeal. The extended proceedings in this case make clear that no
one has denied Bret Clark his day in court. Rather, appellant has
demonstrated a contempt for the Florida courts and the system of
justice by repeatedly ignoring filing deadlines and by raising
patently frivolous claims. As a result of his protracted efforts to
keep this case alive, the State has been denied its right to put an
end to this tedious litigation.
This curious sequence suggests the dangers of a system of legal
education that trains students in technique without instilling a
sense of professional responsibility and ethics-a bit like giving a
small boy a loaded pistol without instruction as to when and how it
is to be used. Had he thus conducted himself after finishing law
school and before being admitted to practice the State would
plainly have been entitled to conclude that he was unfit to be a
member of the Bar.
I would impose a penalty of $1,000 in favor of the State against
appellant, who, as a member of the Florida Bar, has abused his
privilege to practice law by repeatedly filing frivolous
papers.
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