Ippolito v. State of Fla., No. 92-880-Civ-T-99.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: George L. Waas, Asst. Atty. Gen., Joanne Day, Tallahassee, FL, for defendants
• Citation: 824 F. Supp. 1562
• Parties: Emilio L. IPPOLITO, Susan L. Mokdad, and Daniel E. Schramek, Plaintiffs, v. The STATE OF FLORIDA, the Florida Supreme Court, the Florida Bar, et al., Defendants.
• Docket Number: No. 92-880-Civ-T-99.
• Decision Date: 14 June 1993

824 F. Supp. 1562

Emilio L. IPPOLITO, Susan L. Mokdad, and Daniel E. Schramek, Plaintiffs,
v.
The STATE OF FLORIDA, the Florida Supreme Court, the Florida Bar, et al., Defendants.

No. 92-880-Civ-T-99.

United States District Court, M.D. Florida, Tampa Division.

June 14, 1993.

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COPYRIGHT MATERIAL OMITTED

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Emilio L. Ippolito, Susan L. Mokdad and Daniel E. Schramek, pro se

George L. Waas, Asst. Atty. Gen., Joanne Day, Tallahassee, FL, for defendants.

ORDER

SCHLESINGER, District Judge.

Plaintiffs are individuals unlicensed to practice law in the State of Florida and non-members of the Florida Bar who desire to practice law in the State of Florida. Plaintiffs bring this suit against the State of Florida, the Florida Supreme Court, the Florida Bar, the President of the Florida Bar, the Florida Bar's Executive Director, members of the Board of Directors, the Second District Court of Appeals and its member judges, various state attorneys and public defenders, the Florida Bar's Committee against the Unlawful Practice of Law, and its committee members. In the Complaint, Plaintiffs state two claims for relief: (1) that the Florida Bar has engaged in a pattern of racketeering activities in violation of the Racketeer Influenced Corrupt Organization Act ("RICO"), including Plaintiffs' selective prosecution for the unauthorized practice of law, and (2) Plaintiff Ippolito's malicious prosecution by Judge Sam D. Pendino.¹ Plaintiffs have filed a Motion to Amend the Complaint to include additional charges of retaliation and reprisal. The statutory basis for these claims is 42 U.S.C. §§ 1983, 1985. Jurisdiction is predicated on 28 U.S.C. § 1331.

In essence, Plaintiffs assert in a lengthy three Count Complaint that the Florida Bar, along with the remaining Defendants, has engaged in a conspiracy to deprive them and others without due process of law of their allegedly constitutionally protected rights to practice law, as well as a multitude of other rights. Plaintiffs are neither licensed to practice law in the State of Florida, nor have they been licensed, but Plaintiffs are associated with several non-profit organizations, such as Pro Se Litigants of America, Inc.,

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and the Defenders of Life and Property, Inc., which endeavor—as unlicensed, non-members of the Florida Bar—to represent clients. In response to the allegations in the Complaint, Defendants have filed numerous dispositive motions, including motions to dismiss and motions for summary judgment,² to which Plaintiffs have not responded. In response, Plaintiffs have only filed a Motion to Strike Defendants' dispositive motions

A.

STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a cause of action "unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see, e.g., Bank v. Pitt, 928 F.2d 1108 (11th Cir. 1991). In deciding a motion to dismiss, the Court must consider the four corners of the complaint, see Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir.1991), and accept Plaintiffs' allegations as true. All reasonable inferences are to be resolved in Plaintiffs' favor. Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986).

B.

PLAINTIFFS' CLAIMS

Plaintiffs contend that the Florida Bar represents a government within a government, and lacks any formal checks and balances. Plaintiffs also allege that the state legislature has delegated to the Florida Supreme Court, a judicial branch of government, quasi-legislative authority in violation of the Constitution of the State of Florida. Further, Plaintiffs allege that the judiciary has encroached on the legislature's traditional function as regulator, and by doing so, has eschewed the constitutional doctrine mandating separation of powers.

Similarly, Plaintiffs assert that the Florida Supreme Court lacks "inherent power" to function as a regulatory body and regulate its members. Because it cannot regulate its own members, a fortiori, the Florida Supreme Court and the Florida Bar lack the power to impose a regulatory scheme on nonmembers. By sanctioning Plaintiffs and prohibiting them from practicing law, Plaintiffs contend that the Florida Bar through its Unfair Practice of Law Committee has deprived non-members without due process of their allegedly constitutional right to practice law.

Related to this claim is Plaintiffs' civil RICO claim. Plaintiffs assert that the Florida Supreme Court has created an "enterprise"—the Florida Bar—which has engaged in a pattern of racketeering activity with judges and attorneys that has deprived Plaintiffs of their cherished constitutional rights.³ By filing this federal action, Plaintiffs seek a declaration that the Florida Bar is a corrupt organization within the meaning of Title 18, United States Code, Section 1961. By the Court so ruling, Plaintiffs hope to thwart this allegedly unlawful conspiracy.

For the reasons stated below, Plaintiffs are unable to state a cause of action and meet the standard announced in Conley. The factual allegations giving rise to each of Plaintiffs'

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claims demonstrate that Plaintiffs are not entitled to relief

C.

HISTORY OF THE FLORIDA BAR

The controversy surrounding the role of the Bar is not a novel question. Since the time of Edward I (King of England 1272-1307) and continuing for centuries to follow, the legal profession has occupied a unique role in society, in part, by virtue of the important responsibilities entrusted to it. Justice Frankfurter eloquently pronounced the legal profession's responsibilities when writing that "one does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to `life, liberty, and property' are in the professional keeping of lawyers." Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring). A lawyer's responsibility is preeminently to stand "`as a shield' in defense of right and ward off wrong." Id.

Since the early thirteenth century in England, the House of Lords has determined not only the Bar's membership, but also the qualifications and requirements for admission to the Bar, which in reality is a license to practice law. In the United States, the state supreme courts acting through appropriate committees exercise ultimate control over bar applicants. Entrusted to each state bar is responsibility for determining the educational requirements,⁴ and the moral fitness⁵ of those who will manage the most important affairs of their clients. Because the legal profession is charged with such matters, "there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as `moral character.'" Schware, 353 U.S. at 247, 77 S.Ct. at 761. This is the Bar's unique responsibility.

The Bar's "inherent power" to regulate those who desire to practice law has been widely recognized by the states.⁶ Over the years, many states have instituted integrated

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bars, requiring all attorneys who are licensed to practice law within a given state to be a member of a cohesive bar association. The Florida Bar was integrated in 1950. In 1949, the proposed integration of the Florida Bar aroused the public's interest, spawning considerable debate over the appropriateness and desirability of integration. An issue then raised was whether the Florida Supreme Court had the "inherent power" to integrate the Bar; and if so, whether integration was in the best interest of the Bar and the public

The Florida Supreme Court considered these issues and decided that it did have the power to integrate the Bar. At the time this question was presented, twenty-seven states considering integration concluded that a state supreme court had the "inherent power" to integrate a bar. Petition of Florida State Bar Ass'n, 40 So.2d 902, 906 (Fla.1949). The Florida Supreme Court described this power as follows:

It is essential to its being and dignity which does not require an express grant to confer it. Under our form of government it is the right that each department of government has to execute the powers falling naturally within its orbit when not expressly placed or limited by the existence of a similar power in one of the other departments."

Id. at 905.

In its opinion, the Florida Supreme Court noted that attorneys are not officers of either the state or the county. Rather, they are officers of the court and an integral part of the state judicial system. The practice of law is inextricably connected with the exercise of the judicial power so that "the right to define and regulate the practice naturally and logically belongs to the judicial department of the government." Id. at 907.

Also, the Court considered the public policy furthered by integrating the Florida Bar—integration would allow the Bar to undertake many projects that a minority membership could not perform. The Court found this to be true even though some feared that, by integrating the Bar, the will of the many would be subject to the desires of a select few. The Florida Supreme Court surveyed the history of integration, including its origin in thirteenth century England and rejected the opponents' fears. Integration, the Court stated, was never designed to "sacrifice the freedom and initiative of the Bar." Id.

Yet the Court recognized that integration would impose curbs on professional freedom. The Court acknowledged the similarities between integration and the fictional adventures of Robinson Crusoe. The Court noted that "Robinson Crusoe enjoyed a much...