HomeMy Public PortalAbout2007-10-02 AttorneyClient Session CASE 07-12570CA15BAL HARBOUR V ILLAGE
655 -96th S tr eet
Bal Harbour, F l or ida 33154
October 2nd, 2007
5 :00 o 'clock p.m .
ATTORNEY -CL IENT SESSION
PERSONAL TOUCH REPORTING (305)944-9884
APPEARANCES:
MAYOR HOWARD J . BERLIN
ASSISTANT MAYOR JEAN ROSENFIE LD
COUNCILMAN MARTIN PACKER
COUNCILMAN JAIME M. SANZ
ACTING VILLAGE MANAG ER ELLISA HORVATH
RICHARD JAY WE I SS, ESQ.
and
MICHAELS. POPOK , ESQ .
Weiss, Serota, He lfman , et al .
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TH E REUPON, THE FOLLOWING PROCE E DINGS WERE HAD :
MAYOR BERLIN : Attorney-clien t
session, Octobe r 2nd, 2007 .
I am cal l ing this pub l ic meet i ng t o
order .
Ca ll the roll .
MS . HORVA T H : Mayor Ber l in?
MAYOR BER L IN : P r esen t.
MS. HORVATH : Assis t an t Mayor
Rose n f i e l d?
VICE MAYOR ROSENF I ELD : Present .
MS. HORVATH : Councilman Packer?
COUNCI LM AN PACKER : Presen t.
MS . HORVATH : Coun c i l man Sanz?
COUNCILMAN SANZ : Present .
MS. HORVATH :
absent .
Councilman Jacobi is
MAYOR BER LI N : The time i s now 5 :00
p.m. We a r e about to have an
atto rn ey -clien t session in accordance with
Flo rida St a tu t e 286 .0 11 regard i ng the
litigation s t yled Lynne Bloc h-Mu l l en
versus Joel Jaco b i , Bal Harbour Vi llage ,
the Miam i-Dade Canv assing Boa r d, Circuit
Court Case Number 07 -12570 CA 1 5 .
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The sess i on is estimated to last one
ho u r and the following people wil l be in
attendance at this meeting .
Myself, Mayor Howard J. Berl i n,
Assistant Mayor Joa n Rose nf ie l d,
Councilman Ma r t i n Packer , Counc ilman James
Sanz, Ac t ing Vil l age Manager Ellisa
Horvath, City Attorney Richard We i ss and
Michae l Popok .
These proceed i ngs will be r ecorded by
a certified court repo r ter and at the
conclus i on of al l lit igat ion discussed,
the transcript will be made part of the
pub l ic record.
All of those individuals who I have
not named shall leave the room at this
time .
MR . WEISS : Mr. Mayor? At the
conclusion of t h is attorney-cl i ent
sess i on, we wi l l again go into a pub l ic
meeting and we will close the public
meeting .
Okay. At this point, we're in
attorney-cl i ent session . I f you want, we
can stay here or we can go to a more
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informa l setting.
(Thereupon, there was a brief
in t erruption i n the session whi l e t he
Commiss i on moved to a room adjacent t o the
Commission Chambers, after wh i c h the
fo l lowing proceed i ngs were had:)
MR. WEISS: Under t h e Florida
Statutes, it used to be that you couldn't
have this k i nd of a meeting becaus e i t al l
had to be i n t h e public.
So they carved out a narrow except i on
to the Sunshine Law that a l lows you to
speak this way.
I emphas i ze again that at the
conclusion o f t h e litigation, the
transcr i pt wi ll become a public r e cord .
Number two is th a t our discussions
are limited to s e t tl ement negotiations
here and stra te gy as it relates to
l i t igation expend i tures .
Obvious l y, the decisio n s tha t you
make here are going to impact the amou n t
of time, energy and , therefore, money t h at
we spend on th i s case; but the ~isc u ss i ons
r e ally a r e limited to those two v er y b r oad
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topics.
So go ahead , Mr. Po pok.
MR . POPOK : I want to give an
overview
MR. WEISS: You all know Mi chael.
He's my partner who's been ha n ding the
litigation .
I guess the other thing I would say
is that we are very happy to have this
executive session with you . It's very
unusual for us to be defending a case
without being ab l e to have a session like
this with our clients . We have done the
best that we could based upon what we
thought that you would want us to do to
basically put the litigation in this
particular posture .
The purpose of this meeting is for us
to get direction from the Council as to
exact l y the position that you would like
us to take in the litigat i on on a couple
of different issues .
So go ahead .
MR . POPOK: Okay . If yo u recall, I
had an opportunity to speak to each one of
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you in dividually at the time that we had
fi led and we h ad our hearing --our
three -hour hearing several months ago.
Actua ll y, i t's been two months ago now,
but let me bring you up to date .
You'll recall that the Vi ll age was
not or i ginally sued in the lawsuit .
E llisa in her of fi cial capacity was sued.
Some representatives of the Miami-Dade
E l ecti o n Off i ce were sued, bu t not the
Village and that's one o f the reasons --
that's the reason we --
MR. WEISS: By the way, you're
welcome to take notes, but the concern
that I have if you want to take notes is
that at some point, they become a p u b l ic
record. So I encourage you no t to.
You're we l come to take the notes , but
understand at some po int they could become
a pub li c record .
COUNC I LMAN PACKER: T his could become
a p u bl i c record (indicating)?
MR . WEISS:
p u b li c r ecord .
Yes.
So it 's up to you .
It could become a
You're welcome to
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do i t, but I jus t want t o tell you that at
some point, you know --
COUNCILMAN PACK ER : Well , the
offic i a l public record will b e th e re
(indicat i ng).
MR. WEISS : Correct , but somebody
could make a request for a pub l ic record
for that pad (indicating) if they want to .
Now , I would argue that it 's j u st
your personal notes and it 's up to you ;
but I mean, I p r efer that I think it 's
better for the Village if you don 't have
the notes .
That's the public record
(indicating). It 's up to you .
Go ahead .
MR . POPOK : Okay . The lawsuit was
originally f iled by Lynne Bl och -Mullen , a
challenger who had received 30 percent of
the vote in the l ast e l ection .
It was a post -election challenge and
was based on an argument co n cerning the
residency of Councilman J acobi and in it
she sought to have him ousted and to have
her seated in his place . That was the
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remedy that she was seeking and she
broug h t three c l aims.
Since the Village wasn't a party,
wi th the inf ormation that we had , we had
to do the best that we cou l d with fi li ng
or taking whatever position that we could .
We felt that it was a proper course
to f ile a motion to dismiss a n d f ocus on
the remedy , wh ich spec i fical ly is that the
Charter power of this Council allowed for
somet hi ng other than a w i nning cha ll enger
in this lawsuit to be seated
automatically .
We were looki ng to preserve the
Village 's options as best as possible
u nl ess and unti l the Village was brought
in .
Now , yo u should know that I had
conversations with the opposing lawye r
abo ut bri nging the Vil l age in i mmed iate l y
at the beginn ing of the case and told him
rea lly the reason would be that I would be
able to have my clien t in front o f me and
get di r ection, and they refused to do
that . Ul timately, they have done that .
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So we f ocused in our motion on
Charter powers, on the Code powers, on the
powers of this Council to fill, if there
was a vacancy , to control the election
process and focused on potent i al
d i senfranc hise ment of the electorate type
i ssues, which happen when after an
election someth i ng happens that's
different from the wil l of the people.
Whi l e Joel Jacobi 's counsel , Mr.
Ge l le r , filed a motion at t ack i ng the three
counts raised , we focused our br ief on the
remedy issue, which was that even if he
were to win --even if she were to win --
that she wou l d not be seated
automatical l y, that there were powers that
were impl i ca t ed here for the Village.
MR . WE I SS : Let me just stop you .
The reason that we did this was
not --it was, as Michae l mentioned, but
just to emphasize --it was t o preserve as
best we could t he po wers of the Council to
make a d ecis ion o n this as opposed to
having the Court --
Generally when we take pos i tions in
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l i tigat ion , it 's t o prese rve the powers of
the Vil la ge and the posi ti on was not an
anti L y nne Bloch -Mul len position . It was
a preserve the powers o f the Council
posit i o n and that could be c h anged today,
but t h at 's wh e r~ we are .
MR . POPOK : An d as Ri chard mentioned
befo r e , we we r e kind of in a unique
situatio n because we didn't have a session
l ike this where we'd ge t the majority wil l
and get direction .
So we d i d wha t we could based on the
informat i on t hat was available, whic h led
to a three -ho u r hearing be f o r e Judge
Gl azer and it went i n a d irection tha t I
do n 't t hink anybody was ant i c i pa t ing on
e i t her side .
As a l i tigator and doing t h is for 1 7
yea r s, i f we t hink t hat th e r e 's something
wrong wi t h the Comp l aint, we almost always
invariably move t o dism i ss because the
Plain t iff shoul d be put to the test of
having a s u it t h at's prope r and fl i es
under Flor i da l aw .
So when we l ooked at this, we saw
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that there were some potent i a l defects in
the su it itself; but honest l y , I'm not
sure we thought that the Judge would take
such a hard stand against Lynne
Bloch-Mu ll en at th e hearing and
particu l ar l y her papers . I think we were
all kind of surprised at how much the
Judge thought that her papers were
deficient and ultimately not something
that could be cured .
You know, I t hi nk that's one of the
things that the lawyers in this room know ,
that you can only antic i pate certain
things , but the direction o f the hea ring
when a Judg e reads your pape rs .
real l y out of my control.
I t's
So it's kind of like a fast moving
train went in a direction that none of us
were really prepared f or . I mean , I was
prepared to make my argument, but after
reading our papers, she cast out almost
immediately on the Plaint iff 's suit and
h e r abil i ty to maintain that suit at the
pleadings stage and had profound prob l ems
with her suit .
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In fact, at the end of t he hearing
when she ruled in favor of the motions to
dismiss, she actually i nvited the opposing
lawyer to take a dismissal wi th prejudice,
which al most is never done on a f irst
mot io n to dismiss.
In fact, there's case l aw in the
Appellate Court that says a J udge should
give opportunity to cure a problem maybe
tw o or three times .
But she said, "Listen . If you want
to get right to the merits of t h is , take
it with prejudice, go up on appeal ," but
they didn't take that invita t i on . They
decided they wanted another opportunity to
file another Comp l ai nt to t r y to cure some
o f the defic i encies that she noted .
Had they taken that recommendation by
the Judge to take it with p re judice and go
up on appea l , it would have been a much
fast er, quicker, cheaper suit because we'd
be on an appe ll ate brief right now . We
wouldn't be back i n Court litigating and
doing discovery, taking depositions, but
that was their cho ice and their election
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and they chose to do that .
So now we have a Second Amended
Complaint which has been fi l ed, which i s
virtually identical to the firs t Amended
Compla i nt . Wh a teve r was right or wrong
about the first suit is real l y the same
suit over again, the fundamental things
that they f ixed where they dropped Ellisa
in her official capacity. They added the
Village.
They attempted to add the Mi ami-Da d e
County E l ectio n Supervisor , and they did
some other smal l modif icati ons to some of
the language in their other counts; but by
and large, it is basical l y the same.
I thin k where we are now is there are
some issues that t his Counci l has to
dec i de abou t whe r e they want to be in this
lawsu it and I th ink t he ones that we hav e
identified --
The f i rst one i s that i f you have a
suit t ha t is in fro n t of you from a
challenger and i t has potential defects in
it technical or otherw i se that could l ead
to it s dismissa l , does t h is Council want
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to take a position concerning that
pleading, that suit.
I can tell you that I -- I may be
wrong, but the body language I'm getting
from the Judge and from re -reading the
transcript before this hearing is that if
we filed another motion to di smiss that
was s i milar or so me body filed another
motion to dismiss that was s imilar , I
think she's going to dismiss the suit
outright with prejudice and le t th e m ta ke
it up on appeal .
I h ad a d i scussion with opposing
counsel. He actually sa i d t ha t to me
before I sa id it to him . He said he
thinks it 's a 60 or 70 pe rce nt chance
they're going to l ose on procedural
grounds. So I wou ld be remiss i f I didn't
t e l l you that if either Joel Jacobi 's
counsel or us filed someth i ng that was
s imilar, that this case would not be
d ismissed .
But I thi n k that 's the first iss ue
that th is Council has to make, which is if
you have a challenger who b rings a suit
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and i t has de f ects or technica l defects,
do you want to take a pos i t i o n concerning
it ; or do you just wan t to let it stand,
survive a motion to dismiss, and move on
to the merits of the substantive aspect of
the case?
MAYOR BERLIN: Can I ask you a
question?
MR. POPOK : Sure .
MAYOR BERL IN : Ar e the t ech n ica l
defects that you're referring to a res ult
o f the lawyers representing Miss Lynne
Bloch -Mul l e n not having acted either
timely or whatever?
MR . POPOK : Wel l, it's always
difficult for me on that . I f eel
uncomfortab l e commenting on somebody
else's litigation st r a t egy .
MAYOR BERL IN : But is it a time
issue --
MR . POPOK : No .
MAYOR B E RL IN :
within a certain time?
MR . POPOK : No .
they f ailed to act
They made a
decision, and the first decis i on that they
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made was to file this post -e l ection as
opposed to be f ore
I do n 't know if they h ad this
i nformation be f o r e the e l ect i on , but if
they did, at l east one of the counts may
have su r vived.
As to the s tatut ory time --
MAYOR BERLIN: Wait a minute . I'm
going to push you a little .
I f they knew abou t th i s before the
elect i on
MR. WE ISS : They knew about the
alleged p rob lem before the e l ec ti on .
MAYOR BERL I N : Right . I f th ey knew
about the alleged problem befo r e t he
election i n one of these technical areas ,
they should have fi l ed at t h at time .
MR . PO P OK : Correct .
MAYOR BERLIN : And what other
technical --
MR. WE I SS : That's our reading o f the
law.
MAYOR BERLIN: Righ t . Apparent l y ,
the Judge 's as well because she d i sm is sed
it .
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MR. WEISS: Yes .
MAYOR BERLIN: Okay . So the Judge
said, i f you knew about this beforehand ,
you should have fi led it beforehand.
MR . POPOK : Well, she didn't comment
on that spec if ical l y, but --
MAYOR BERLIN: What are the other
t echnical issues?
MR. POPOK : The statutory claim wh i ch
ou r read ing o f it requires at the t ime of
th e filing , wi thin 10 days of the filing ,
you have t o include the Miami-Dade
Supervisor of Elections .
MAYOR BERL IN :
MR . POPOK : No .
MAYOR BERLIN :
Did they do that?
Well, that's a
dec i sion that a l awyer would make .
Correct? I mean, Miss Lynne Bloch -Mullen
wouldn't know t ha t .
MR . WEISS :
decision.
That's a l awyer's
MAYOR BERLIN: So the lawyers
represent i ng her failed to jo i n this
party --
MR . WEISS : Or to be fair --or to be
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f air --we're reading the law wrong and
they had some other strategy t ha t they
were
MR. POPOK : They h ave another theo r y .
MR . WEISS: They have some other
theory tha t --
MAYOR BERLIN : Bu t i n connection with
that "technical defect "
MR . WEISS : We think that they , the
lawyers --
MAYOR BERLIN : The Judge found so --
MR . WEISS : Yes .
MAYOR BERLIN:
dismissed iJ:.
MR. WEISS : Right.
because she
MAYOR BERLIN : Yes. I'm not sugar
coati n g it or trying to p l ay it . I want
to understand it.
MR . WEISS : Yes, yes .
MAYOR BERLIN : Okay . So --
MR. POPOK : And the third part i s the
quo warranto . That particular claim of --
t he re i s a Chapter 80 o f t he Florida
Statutes. It says that you may have an
e l ection cha ll e ng e if you are the l osing
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candidate if you can argue that you have
clear legal right and title to that
office.
Then the J udge, if that claim
p rev a il s, has the power to oust the other
party that's been seated. Hence, the
challenger --
Bu t that case law really talks about
kind of like Bush versus Go re where
ballots a r e hang i ng in the balance . You
know, they're ve r y, very close in terms of
the e l ectio n r esults and one or two
ba l lots --or how absentee ballots are
be ing treated versus the hanging chador
whatever it is.
That's rea ll y the quo warranto type
cases and that was our a r gument on remedy,
that this was not a quo warranto --
MA YOR BERLIN: She didn't see i t that
way and the Judge agreed with that as
wel l .
MR. POPOK: Well, she dismissed it .
MAYOR BERLIN: Di d she comment on the
record about that particu l ar thing?
MR. POPOK: No. She was relatively
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quiet.
There was a lot of body language,
some eye rolling and not buying their
arguments and giving them a hard time with
some questions , but s he d i dn't comment.
She didn't give a substantive ruling on
the record. She just denied it.
MR . WE I SS : To be very --to give you
fu l l i nformati on about th i s, the reason
that the direction from you regarding
these technical arguments i s important is
because --and I'm not say i ng this in any
ki nd of bragg ing kind of way, but we're
very good.
If we can win on the technical
defenses, it will be --it has been
seen --because I have h eard comments from
other people --that we are supporting --
that we are against Lynne and supporting
Joel just because we are pursuing t hese
sort o f technical items;
T hat the f a ct t h at we might be able
to get the l awsu i t dism i ssed based u pon
these techn i cal i tems, i n ef f ect, benefits
Joel because we are basically getting the
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suit thrown out , as you wou l d say, on
technicalities .
And so that 's why this i s an
important decision for you t o ma k e .
That 's why we're presenting i t t o you
because we feel p re tty good that if we
pursue these tech n ica l arguments that
the r e's a good chance that we could win,
wh i ch wo ul d he l p Joel a n d hurt L ynne .
The othe r thi n g I would add is that I
have spoken with Michae l and these
technical arguments are not only ours t o
raise .
So it may be that if you decide t hat
we shou ldn't raise these tech n ical
a r gumen t s, tha t they could be r a i sed by
that t h ey wi l l be --I'm su r e that they
wi l l be raised and they have bee n raised
by Joe l's a t to rn ey .
COUNCILMAN PACKER : C an I say
something?
MAYOR BER L IN : Sure .
COUNCILMAN PACKER: I f you 're basing
eve r y t hing on t ec h nicali t ies --
MR . WEISS : This is just the f ir s t
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little part of this.
COUNCILMAN PACKER : Okay . You /re
basing everything on techn i calities an d
you want our advice .
MR. WEISS: The first quest io n is
l e t me g ive you the big picture and then
I /11 get back to this.
A, should we raise these
techn i ca l it i es?
Two , s h a ll we take a pos i tion with
regard to th e substance of where Joel
l i ved?
Three, what shou l d we do with respect
to what happe n s if Joel loses?
T hose are the three questions.
COUNCILMA N PACKER: With r espect to
ra i sing the techn i calities, i f you feel
that by r a i sing the technicalities and
then the Judge throws the case out aga i n,
they wi l l have a r i ght then ? But you
don 't know if she 's go i ng to say with
prejudice or without prejudice.
MR. POPOK: She will l i kely say wi th
prejud i ce.
COUNC I LMAN PACKER : She will likely
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say with prej ud ice .
So , therefore, they wi ll have -to
appea l and go to the next Court .
MR . WEISS : Right .
MR . POPOK : Yes.
MR. WEISS : It will be u p to t he m,
but at some --
COUNCILMAN PACKER : Of course, they
wo u ld do that .
MR . WEISS: --at some point, t hey
dismiss this wi th pre jud ice and at some
point , it goes to appeal .
MR. POPOK: Oh, they'll a ppe al .
COUNCILMAN PACKER : Th ere 's no
qu estion about that because you 're not
getti ng to the subs tance of the case .
MR. WE I SS : Which is why --by the
way , in terms o f the expense of this , we
would pre fer that --
COUNC I LMAN PACKER: That they appeal .
MR . WEISS : --that they appeal right
away b ec aus e t hen we wouldn 't be involved
in spending money , Vi l lage mo ney ,
answe rin g another Compla i nt .
COUNCI LM AN PACKER: On t hat note
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then, if the Council should feel tha t they
shouldn't spend too much money , we should
direct you then no t to techn i cally
cha l lenge t h e case on technicalities .
MR. POPOK : Well, I just wa nt to
preface one thing.
The "techni ca l ities " that we'r e
tal k ing about are --because whether it's
this case or it 's another case, th i s is a
lawsuit that was filed that may or may no t
have some l ega l deficiencies in it.
So I g u ess th e fundamenta l
question --I don't want t o get hung up on
technica l ities because that mak es it sound
l ike these are minor th in gs that were
wrong with her suit .
She's got major potential defects in
the way that she
MR . WEISS : I think the point that
he's making is , these are not going to the
substance of this case .
COUNCILMAN PACKER : Correct .
MR. POPOK: Correct .
MR . WEISS : You 'r e righ t . The issue
i s whether we deal with these technical
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things --
MAYOR BERLI N:
probab l y a mi snomer
Actually, it's
to call t hem
technicalities . They're substantive .
Th ey just don't dea l with the subs tant ive
issue of whether Joe l was or was not a
resident.
They deal with other issues --
MR . WEISS : They 're procedural.
MR. POPOK : Right .
MAYOR BERLIN: T hey deal with
peop l e's i ntentiona l conduct, which I
th ink drives directly to the position we
should take .
I 'll tell you , for e xample, I'm
appal l ed that if they knew abo ut this
before the election and chose not t o file
when it was procedura l ly proper to do so,
they could have saved us t h e cost of t he
e l ection and all this aggravation and
expense .
It sounds to me that somebody
intentional l y decided not to do that or
there was malpractice --one of t he two
because it seems l i ke i t 's an obvious
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issue. That's pretty damming righ t t here .
I don 't know why we shou l d
COUNC I LMAN PACKER : I never hea r d of
it before.
MAYOR BERLIN:
should --
I don 't know why we
MR . WEISS : What --
COUNCI LMAN PACKER: I neve r heard
that there was any i ssues beforehand.
COUNCILMAN SANZ: As f ar as --
MAYOR BERLIN : Tha t 's clearly why.
The Judge can 't f i nd that they should
have --in order f or the Judge to conclude
that they were wrong to f i le it when they
d i d on t he basis of they should have f i led
it before wou l d have on l y been if they
knew about it before .
I t sounds like they knew abou t i t
be f ore and if they knew about it be f o r e ,
then they had an obl i gation to file it
before, which i s why she 's on that point
dismissing it for them filing it after the
fact.
That 's not good conduct . We don 't
want to condone that k i nd of conduct.
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MR. POPOK: I'm no t sure she made a
f inding like that.
MAYOR BERL IN: Well, but that's the
issue.
COUNCILMAN PACKER: Mr. Mayor
MAYOR BERLIN: Isn't that the issue?
MR . POPOK : Wel l , it could be since
she was a little bit of the Orac l e of
Delphi du r ing t he hearing.
I can't really te l l you that she made
a substantive ruling --
MAYOR BERLIN : But let 's just go
right to the heart of it.
Is that issue the issue of whether or
not they should have filed it before or
after?
MR. POPOK : Well, as it relates to
one of the c l aims, wh i ch is the
declaratory j udgment claim --
MAYOR BERLIN : I'm talking about
that.
MR . POPOK: Yes. That claim, she
dism i ssed i t .
We argued that you can't use a
declarato r y judgme n t action post-election
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if you don't have a valid s tat utory c l aim.
You cou l d do it preelection , but you can 't
do it post .
MAYOR BERLIN : So if they knew about
it be forehand , they would have had the
opportunity properly to file this as a
declarato r y action before the election .
MR . POPOK : I t h ink at best because
I --at best , I think what she --one w~y
to read her ruling is that she d i dn't f eel
that the dee action coming post-e l ection
given t he lack of a statutory challenge
that she found viable would survive ; but
I 'm not quite sure. It's just there was
no evidence.
hearing.
It was not an evidentiary
MAYOR BERLIN : Be cau se we have a lo t
of non -lawyers here, let 's keep it r ea l
s imple .
Is this about whether they. should or
shou l d not have fi l ed i t before the
e l ection?
MR . POPOK : I don't think tha t 's t he
only way to read why she dismissed the
declaratory judgment action, that clai m.
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MAYOR BERLIN: Then what's be f ore the
e le ct ion versus the after the elec tion
co mponent of it?
MR . POPOK : Wel l , what I was arguing
was
MAYOR BER LIN : If they were never in
a position that they could have sought the
rel i e f, then it's a push; but if th ey were
in a posit i on where they could ha v e sough t
the relief and t hey p l ed different l y --
MR. POPOK: Yes .
MAYOR BER L IN: and if they bro u ght
it before the elect i on, that's what I'm
asking.
MR. WEISS: I guess a simp l e way to
put this is, Michael, i s they had t he
information abou t --if they had i t --was
there a way to c h a ll enge t his --
MAYOR BERLIN: R i ght, before .
MR. P OP OK: Yes.
MR . WEISS :
beforehand?
Was there a prope r way
MAYOR BERLIN : Yes, a n d the answer is
yes .
COUNCILMAN PACKER: How wou l d we know
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when or whoever knew anything ahead of
time?
MAYOR BERL I N : They would know .
COUNCILMAN PACKER : Has that been
MAYOR BERLIN : They could file an
af fi davit saying nobody k n ew unt il after
the fact . They would overcome it if they
did.
MR. WEISS : We haven 't taken any
depos i tions. We haven't done any
discovery . So we have --I 'm trying to
stay away f rom the r umor mill and al l of
that b ec a u se I don't reall y k now . So we
don 't have an y spec ific --we don't know
one way or another --
COUNCILMAN PACKER : Who, what , when ,
or wh ere ahead o f time --
MR. WEISS : But have they made any
representations in Court that they didn 't
know ahead of --
MR . POPOK : I t wasn't an i ssue in
Court.
COUNCILMAN PACKER : It was never an
issue .
VIC E MAYOR ROSENFIELD : It could have
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been an issue , couldn/t i t?
MR . POPOK: It could have . It could
have.
Had they brought a su i t before --
S ee , t here are so me claims that cou l d
be viable post -election based on fil ing
under the sta t ute, wh i ch may or may not
su r v i ve anot h er motion to dismiss brought
by whoever, and there are some claims that
might have survived pre -e l ec ti on .
Now , w h ethe r they made a strategic
decision t o wait t o see t he resu l ts of the
election and then cha ll enge? I don't know
the answer to that .
MR . WE I SS: We /re not mind readers .
COUNCILMAN PACKER: I was go ing to
say
MR. WE I SS : Do you want to go through
a ll the i ssues and then ma k e some more
statements?
MAYOR BER L IN : They have qu esti o ns .
COUNC I LMAN PACK E R: No. Go ah e ad .
MR . WEISS : Because I think this is a
decis i on tree .
I thin k that in order to get f rom
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here to there , in my own mi nd when I tr i ed
to figure out h ow this was going to go
today , I feel like you should make some
you can change i t, but I feel like you
should make some decisions as we go
along --
MAYOR BERLIN: Yes . I
MR . WEISS : because t h ey affect
where we're going --
COUNC I LMAN PACKER:
thing. Wel l --
To the next
MAYOR BERLIN : The fir st --
MR. WEISS: The first issue is
COUNCILMAN PACKER : I can give yo u my
opinion .
MR . WEISS :
substan t ive --
Shou l d we r ai se these
MR . POPOK : Substantive posit i ons ,
but not re l ated to the underly ing merits
o f the residency issue .
MR . WEISS : Yes .
MR. POPOK : That's how I'd like to
phrase i t.
COUNCI LM AN PACKER : I 'm su r e everyone
here has seen some of the evidence that
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has been brought out in the ex hib its .
MAYOR BERLIN: You mean --
COUNC ILMAN PACKER : Checks , et
cetera, et cete r a .
MAYOR BERLIN: You mean what they
have a l leged?
COUNCILMAN PACKER : It was
e -mailed --the e -mai l cop ie s of the
checks --
MAYOR BERLIN: I don 't know what
yo u'r e talking about .
VICE MAYOR ROSENFIELD: I d i dn't get
any e-mai l ed copies o f the checks . I 've
seen the law s uit .
e-mails.
I haven 't seen any
MAYOR BERLIN : What have you seen? I
saw t he laws uit .
COUNCI LM AN PACKER : T h e lawsuit
and --wel l , the briefs .
MAYOR BERLIN: This is what I have ,
the lawsuit (indicating).
COUNC ILM AN PACKER : The no ti ce of the
fil ing o f Exh ibit E, Plaint if f 's Second
Amende d Comp l aint .
In Exh ib it E , I have here a check --
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more tha n one check.
Have you see n this?
VI CE MAYOR ROSENFIELD : Yes . I 've
seen it, but I don't know what you r point
i s .
COUNC I LMAN PACKER : Well , this i s
par t o f some of the evidence, I assume , is
why not on l y the r esidency was brought but
part of the actual nuts and bo l ts .
I th in k rather than challenging i t on
a technica lity basis , we go to the next
thing~ leave that I wou l d l eave that
hang for a minute or t wo
MR . WEISS: Any way you want to do
it .
COUNCILMAN PACKER : --and get to the
next pos i tion.
MR. POPOK : But just to frame i t
before we leave , I g uess the question is:
Does t his Council want me to fil e
something that's s i mi l ar to what we filed
before , t o move t o dismiss on the grounds
t ha t we moved i t --I almost have the same
arguments --
MR . WEISS : Yes .
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MR . POPOK : And the second one would
be, i f we don't do it, can so mebody else
do i t because you know that Jacob i w i l l
l ikely f ile the sa me motion he filed
before and do t he arguments t h e same
way
MAYOR BERLIN : Can he raise all of
these technical issues?
MR. POPOK: Yes . There 's nothing
that they don 't have s t anding to raise.
MAYOR BERLIN : So then why even
deba t e i t?
If h e co ul d raise it , we don 't have
to r a i se i t.
I'm j ust asking , what dif f erence does
it make?
MR. WEISS : Only the difference of
weight.
MAYOR BE RLIN :
them, there are some
shou l d be heard on .
I mean, when we get to
that I think we
I don't know if I care one way or
another about the before or the after, the
10 day
I mean, the q uo war ranto goes r i ght
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to the heart o f what --
MR . WEISS : That's a remedy.
MAYOR BERLIN: Yes . I t's a remedy
issue and I don't think we should be
condon i ng her opi ni on that
MR . WEI SS : Okay. I try i n g to
so wou ld your pos ition be t h at we
should --I 'm going t o call them
substantive d efens es not r el ated to the
residential fact, that we should let t h ose
be raised by Ge ll e r?
MA YOR BERLI N: Well , why don't we
ta l k about the resident ial facts so we can
ge t rid of the
MR . WEI SS: T he s e co n d issue is:
Shou l d we take a p os ition --what position
shou l d we take regarding t he residentia l
facts --I 'm go i ng to cal l it --where
Joe l l i ved . Th e r e ar e several positions
you can take , just to lay them out .
One, we could take t he pos iti on
absolute l y in Jo el 's favor a nd say that he
l i ve d here and support him totally .
Two, we co ul d take totally th e
opposite position and we could s a y that
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Lynne Bloch-Mullen i s correct and we could
support her position .
T h e third position we could take with
respect to the facts of this is that we're
not going to take a position on the facts
because we don't know .
COUNCILMAN PACKER : Let the Judge
rule?
MR. WEISS: The Ju dge is going to
rule eit h er way, but the question is what
position the Vi l lage takes .
The third pos i t i on i s bas i cally a
neutral position with respect to the
facts.
COUNCILMAN PACKER: And the facts
would be presented by?
MR . WEISS: By Lynne Bloch -Mul l en on
one side and Joe l 's l awyer on the other
s i de.
COUNCILMAN PACKER : So once the fac ts
come out, we should al l ow the Court to do
the rul i ng .
MA YOR BERLIN : Well, I think I know
where you're going, bu t he said either
advocate on behalf of Joe l , advoca te
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against Joel, or take a neutral positio n .
CO UNC I LMAN PACKER :
neutral position.
I would take a
MAYOR BERLIN :
cho i ces.
T hos e are the th ree
COUNCILMAN P ACKER : I would tak e a
n eut ral pos ition in that sense o f the word
and let th e c hi ps fall where they may .
MAYOR BER LIN : I h appen to ag r ee with
him on this particu l ar point. I don't
think we should take a position on the
residency i ssues .
VICE MAYOR ROSENFIELD : I don 't
COUNCILMAN SANZ : I agree .
MR. WEISS : It's not my
p l ace to ca l l on peop l e . I t's your
meet ing . I 'm just try i ng to --
MAYOR BERLIN : No . Go ahead .
V IC E MAYOR ROSE NFIELD: Ladies fi rst.
I wo ul d take a neutra l posi t ion here
because I 'm not quite su r e how to
i n terpret t h at ord inance and I think a
J udge will interpret the exact o r d inance
and the dep t h of · that ordinance and how it
shou l d b e r u l e d on.
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So I would say let's let the Judge
ma k e the decision on that .
COU NCILMAN SANZ : I agree with Jean.
MR . WEISS : So that 's the decision .
So with respect to the issues of the facts
o f where he lived, we're going to file
whatever we need to fi l e to te l l the Judge
that we don't --
MR. POPOK : And that's consisten t
with the position we already took in
Court.
MR . WEISS: Okay . Now, going on to
the third one, we stil l --the fir st issue
is stil l out there a little bit, but th i rd
issue is : Assuming that Joel loses or
assuming that Lynne wins --which is , of
course, the other s i de of the coin . Let's
assume Lynne wins.
The question is: What i s the
appropriate --we call it --remedy and
there are a numbe r of positions that we
can take with rega rd to the remedy.
One position is to say that we
advocate that t he Judge order the Vi llage
to immediately seat Lynne . That wou l d be
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one position . That would be our pos i tion,
that if Joel is out, we advocate that
Lynne be given her seat.
MR. POPOK: Can I ment io n one thing?
MR . WEISS : Yes .
MR . POPOK : In eac h of th e cla ims,
that's the remedy she's asked the Court
for .
MR . WEISS: So position one is that
she be i mm ediately seated .
Posi t ion two is t ha t we advocate that
the Judge direct the Village to
immediately hold an election, a special
e l ection , not in conjunction with a n y
other e l ect ion, but just a special --I'm
going to call it a special independent
elect ion.
A third pos i tio n is tha t we advocate
that the Judge tells the Vi l lage to hold a
special elec t ion in conjunction with the
n ext ava il ab l e election.
The next position is that t he Judge
should allow us to fil l this seat at the
next time the Village has an e l ection and
then under our charter, the Village
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Council may --it says may --appoint
someone to fi l l a vacancy .
So there's a lot of different
I g u ess the last one is that we ho l d
a special --that we take the pos i tion
that there should be a spec i al elect i on in
conjunction with the next election and in
the meantime , the Vi l lage may appoin t
somebody to fil l the vacancy .
There's a lot of different va r iat i ons
of this .
COUNCILMAN P ACKER:
MR. WE I SS : Yes .
COUNCILMAN PACKER :
Ca n I --
I f in f act
well, the way the chips may fall ,
whatever --
Do you want to --
MR . WE I SS : This all assumes t hat
L ynne wins . All this entire conversation,
this part of it, assumes that she wins .
COUNCILMAN PACKER : All right .
MR . WEISS : If Joel wins, there's no
discussion.
COUNC I LMAN PACKER : There's no
discussion.
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But if the Judge rules that the
case --she ru l es for Joel with prejudice
and it goes to appeal
MR . WEI SS : Yes.
COUNCI LMAN P ACKER: --t hen we 're
strung out for about how long again?
MR . POPOK: It could be anywhere
from --well, eithe r way we're going to be
strung o ut because we haven't had a
substantive hearing in this case .
Ev en if she surv i ves her suit
surv i ves a mo tion to dismiss brought by,
let's say , Joel 's l awyer
COUNCILMAN PACKER : Right .
MR. POPOK : a final hearing on the
i ssues with all the discove r y being
completed is four to six months away.
Even if t h ey did it expedited, they're not
going to get it done any earlier than--
MR . WEISS : A motion to dismiss is
not dispositive o f this case.
A motion to dismiss means you're in
the game . If you get by a motion to
dism i ss, it means then there's deposi tions
and there 's d i scovery and t h ere's document
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requests and there 's all sorts of motions .
Then at some point , there's going to
be a substantive hearing where I presume
witnesses are going to be ca l led and --
MR . POPOK : It cou l d be a couple of
day trial.
MR. WEISS : --there 's a couple of
day trial on this and so forth and so on .
Then after that , if Lynne wins , Joel
might appeal and he wou l d have the right
to appeal ; and if Joel wins, Lynne might
appea l.
COUNCILMAN PACKER : How can we decide
to do this as expeditiously, as quickly as
possible, so that the Vil l age doesn 't get
dragged --like it was in the paper and,
you know, on television.
Do you have any suggestions?
MR . WEISS: I'm not a~-I pride
myself on not looking back , but the way
they 've done that --assuming that they
had information, the way that a lot of
these challenges come up is before the
election .
There 's a real time frame and it's
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got to be done, but there's --
COUNCI LMAN PACKER :
the dam .
It's water over
MR . WEISS : At this po in t, you know ,
it 's
MR. POPOK: I t's going to be up t o
the J u dge to decide whether
MR . WEISS : There's no quick way out
of t hi s any more .
COUNCILMAN PACKER: In other words,
then you wou l d --where yo u gave us the
four possibil i ties if she wins , what
happens then? Do you present those to the
Judge ahead o f t ime or is it done right
MR. WEISS : We're asking you what
pos ition you want us to t ake.
I made u p th ese possibilit i es
Mich ael a nd I made up these possib i lities
as we were prepar i ng f o r th i s meeting .
We're going to take the --we'r e
go i ng to in our pleadings say, i f Lyn ne
Bloch -Mu ll en wins --
COUNCILMAN PACKER : Th at wo u ld be
presented to the Judge .
MR . WEISS : Yes, but we want to
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p re sent a pos iti on on b e ha lf of the
Village
COUNCILMAN PACKER: Okay.
MR . WEISS:
to do .
MR . POPOK :
--whatever you direct us
In terms of t he answer to
yo ur or i g i na l question --
MR . WE ISS :
of th i s?
MR . POPOK :
question .
MR . WEISS :
out of th is .
MR . POPOK:
asked about is :
Is there a quic k way out
No, no . That wasn 't the
No i n ex pensive quick way
The appea l t ime that you
Let 's say t hat a motion
to dismiss is filed by some party, whether
it 's us or them , and there's a hearing in
let 's say a month.
So now we 're in November. I f she
rules in No vember , le t's say she ru l es
against the plead i ngs --
COUNCILMAN PACKER : Well --
MR . PO P OK : I'm using that as an
example because that would end it right
there .
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So in No vember , wi th i n 30 days. So
b y December, th e re wou ld be a t i me to
appeal .
MR. WEISS : T he y have to f i le a
not ice of appea i.
MR. POPOK : T hey would file a notice
o f appea l . Let 's say they did it righ t
away, that they mo ved pretty q uickly.
So then t here 's a whole br i efing
schedule that t he Th ird District Co u r t of
Appeal would set up and we're pro bab l y six
to eight mon ths away, starting i n
Dece mbe r, from getting a ru li ng --
COUNC ILMAN PA CKER : Next year .
MR . POPOK : Right . So you 're a lr ea dy
i nto t he s umm er .
MR. WE I SS : Yes . We're probably i nto
late sp ri ng or summer in an optimistic
appeal schedu l e . That 's where we are .
That 's where we are .
MAYOR BER L I N: I don 't see the logic
of taking a position that we 're go i ng to
have an immediate e l ection.
If it 's going to go on that l ong ,
people won 't know --I mean , no one i n the
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city will know about it. So there ought
to be an opportun it y for people on a
de liberate basis to decide whet h er or not
they want to pa r t icipate in this . So
MR . WEISS: By the way , they cou l d
try to exped ite th is, but based on even
t hough th is i s the mo st impo rtant case
it's the only case but this is a
c ri t i ca l issue in Bal Ha rbour to the
Appel lat e Courts .
T hey'r e dealing with a lo t of other
stuff a n d ma ybe it cou ld be expedited by a
couple of months, but we're not talking
about a month or two months or t hree
months . I mea n , that's just not
happening .
You have 30 days to appeal this.
Then you have a cer t ain amount of ti me to
fi le you r fir st b ri ef.
T hen we have an opportunity to file a
r eply b rief and then they can --
MAYOR BERLIN : Why do n 't we just tell
th e Cou rt that if Joel is unseated , our
intention is t o hol d an electio n w i th in a
r easonable pe ri od of time and then look
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and see what the calendar is ?
We may want to do it --if it
happened quickly, we may want to do it in
conjunction with the January pr imarie s .
We may want to do it in our tr ad iti ona·1
time of voting i n April. We may want
to --if it takes a really lon g time, we
may even lob it into the next time we have
a Council election .
I mean , rather than taking a
pos i tion
MR. POPOK: Well, but i t's a litt l e
different angle because the position I'm
going to have to take, for instance, on
the quo warranto or really any of the
c l aims --the J udge is goi n g to l ook to us
and say look , if her quo warranto claim is
proper , it's ouster of the incumbent and
I'm seat ing --
MAYOR BERLIN : But that's different .
That 's different.
I'm talking about where she's g iven
us the opt ion --
MR . POPOK: I f we ge t an option .
MAYOR BERLIN : If she's given us the
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option --
MR . WEISS: What you're suggesting
is one of t he four or five people --which
is that t he pos itio n we take is that the
Village wil l --t ha t she order us to ho ld
an electio n as soon as --I'll use the
word --practicab le .
MAYOR BERLIN: Which is r e asona b l y
practicab l e, loo k at the ca l e ndar and giv e
people an opportunity to get invo l ved
and
MR. POP OK : But I don't wa n t to be
too ethe real he r e .
On quo warra n to
MA YOR BER L IN : That's differen t .
MR . POPOK: Yes .
MAYOR BER L IN: Hold the quo warranto .
Put it aside because it's a different
issue . We're going to ge t to t hat . We
have to specifically take a pos itio n on
that .
If we pass quo warranto --she denies
quo warranto, but she unseats Joe l , she
says, "Joe l, you were not a resident .
You're not authorized."
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I f we go through t h e appellate
p r ocess and he loses , take an appea l to
the Supreme Court and he loses, he 's
gone
MR . WEISS : R i ght.
MAYOR BERLIN : --whenever that is ;
six months, a yea r , two years , whenever it
i s .
MR . WEISS : Ri ght .
MAYOR BER LIN : We wo u ld want to take
the position that we're going t o have an
elect i on.
MR. WEISS : Rig ht .
MAYOR BERL I N : And we wou ld tel l the
Judge that we would have it as soon as
reaso n ably practicable .
MR. WE I SS : Ri ght .
MAYOR BERLIN : We wou l d look at the
calenda r --li k e, fo r examp l e , what i f it
was ultimate l y disposi t ive --what if the
ultimate d i sposition occurred in Jun e.
We don 't want to have an election
over the summer. Nobody's her e . We
wo u ldn't want to have an el e ct i on i n 30
days or 60 days because nobody's here.
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I can't tell you how ma n y t i mes we
have tried to do things over the summe r
and peop l e say, "Don't you dare . We're
not around," so we would probably want to
wait until the fa l l .
S i mil a rl y i f i t happened in January
when it was d is posit i ve, we would probably
want to do it in Apri l whe n we normally
vote .
I n other wo rds , I want to tel l t hem
specifically when we would do it . I wou ld
rather do it in a reasonably pract i ca l
time once we k now it 's been finally and
ultimately resolved . Th at 's the pos i tio n ,
to a ccomm odate the residents .
accommodate the re sidents .
I want to
COUNC I LM AN PACKER : How
MAYOR BERLIN : By the way, does
an ybo dy disagree with that?
COUNC I LMAN PACKER : No. I don't
d i sagree with that, but how i s this quo
warranto business --
MAYOR BERLIN: We're going to get to
tha t.
MR . WEISS: Just put that on t he
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s i de .
I th ink we have some consensus here
other than we
The only issue I would raise, which
is a nuance of what you just said , is
there 's two ways to ho ld an e l ection and
we co u ld take a posit i on one way or the
other .
What does an election cost, Ellisa?
ACTING VILLAGE MANAGER HORVAT H:
About $1 5 ,000.
MR . WEISS : Okay.
ACTING VILLAGE MANAGER HORVATH :
was our last elect i on .
T hat
MR. WE I SS : That was in conjunct i on
wi th
ACTING VILLAGE MANAG ER HORVAT H: That
was in conjunction with Bay Harbo r and
another municipality. It's probably about
double that .
MR. WEISS: There's a n economic i ssue
here, which is just a variation on t h e
position that we're going to take.
One posi ti on is --
MAY OR BER LI N : Well , we want i t to be
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eco nomic , clearly.
MR. WEISS : One position is that
we're going to spend th e money to h o l d a
special e l ectio n , stand a l one --let me
call it stand alone elect i on . That's
one way.
MAYOR BERLIN : That 's the most
expensive .
MR . WEISS : That's t he most
expensive.
T he second o n e, which costs about
$15 ,000 --
ACTING VILLAGE MANAGER HORVATH:
Right .
MR . WEISS : I don't know what the
nu mbers are any mo r e , but I wanted to give
you a feel for it is to hold a special
election in conjunction with a regular
election of some sort, which is a more
econom i cal way but is less flexible than
the first one .
The first one you could set any time
you want subject to the schedule o f the
Superviso r of Elections and there needs to
be advertising and stuff l i ke that.
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T he second one you would have to sort
of wait until our number came up and see
what elections are going to be hel d.
So we could take either one of those
two decisions on that.
COUNCILMAN PACKER: Right.
MR . WEISS: Either one.
MR. POPOK: Besides the e l ection,
what was the issue you wanted to talk
about --
MAYOR BERLIN:
talk about that.
Yes. We've got to
MR . WEISS: So the question is a
stand alone e l ection versus a conjunction
election.
COUNCILMAN PACKER : Conjunct i on .
That's no q u estio n .
COUNCILMAN SANZ : Yes, in
conjunction .
MR. WEISS: So that's our position.
Our pos iti on is --f o r get about the other
issues we have to deal wit h --is that if
she wins the lawsuit othe r than on the quo
warranto , that our pos i t i on is going to be
that the Counci l should be --o r we
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believe t h at the Council sho ul d be
obligat ed t o h o ld a spec i a l e l ect i on in
conjunction wi th the next --
COUNCI LMAN PACKER: The next --
MR . WEISS :
election
--reg u l a r l y sched u led
COU NC I LMAN PACKER : Right.
MR . WE I SS : --to elect a successor
to f i ll t he re mainder of J oel 's term .
MAYOR BERLIN :
reasonab l e.
Pr esu mi n g i t 's
So for example, if the decision i s
u ltimately dec i ded on October 31st to --
MR . WEISS: We can always hold it
sooner .
COUNCILMAN SANZ : No .
MAYOR BER LIN : No . I 'm s a y ing , if
it 's dec i ded on Octobe r 3 1 st
CO UNCILMAN PACKER :
hold i t sooner .
MAYOR BERLIN : No.
We can always
I 'm saying
MR . WE I SS : You can 't do it .
MAYOR BERLIN : --we'r e no t going to
h ave it on t h e first Tuesday of
November --
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MR . WEISS : You can't do it.
can't do it .
MR . POPOK : 75 days .
MAYOR BERLIN: Okay . I 'm just
saying --
You
MR . WE I SS : There has to be
advertising, plus we 've got to ge t the
okay f rom the Superviso r of Elect i ons --
MAYOR BERLIN : Got it .
MR . WEISS : Okay .
pos i t i on .
So that 's a clear
MAYOR BERLIN : Okay .
MR . WEISS : Okay. Let's go back
MAYOR BERLIN : Now , before we go to
quo wa r ranto .
Okay . So that issue is, there will
be some period of time between --
presuming Joel doesn 't resign --between
when the ult i mate decision of his
entitlement to s i t is made a n d when t h e
e l ection takes p l ace.
MR . WEISS : R i ght .
MAYOR BERLIN: It could be two and a
half months . It could be f our months . It
could be six mont h s . It could be nine
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months, depending upon whether --
MR . WEISS : The Charter says that the
Council may till a vacant position .
MAYOR BERLIN : But we don't have to.
Is that right?
COUNCILMAN PACKER : It says "may ."
MAYOR BERLIN: Right . So why don't
we reserve the right to --i f we f el t it
was necessary --
I f we were abl e to get an elect i on
s l otted in three months , we may decide,
why bother?
MR. WEISS: Right .
MAYOR BERLIN: If it 's going to be
nine mo nths to 12 months because of the
tim ing of e l ections, we may say --
MR. WEISS : And that's consistent
with our Charter.
MAYOR BERLIN : So wouldn 't we
re serve? Because I don't see the need to
do it. If it's only going to be a few
months, why wou l d we bother doing it?
VICE MAYOR ROSENFIELD : Yes .
MAYOR BERLIN : Makes sense?
COUNCILMAN PACKER : That 's
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reasonable .
COUNCI LMAN SANZ: Yes. It does make
sense, yes.
MR. WEISS : So we sti l l have th e --
MAYOR BERLIN: Quo warranto.
MR. WEISS: So just to put this in
some other terms, quo w~rranto is --for
Joel, it 's like --it's sudden death .
Bas ical ly , you're out. She's in
COUNCILMAN PACKER: Period .
MR. WEISS: --period .
That 's a home run for Lynne, if you
want to put i t that way . You're out a n d
she's in .
So the question is then, what
position do you want to take with respect
to that?
COUNCILMAN PACKER: When you say
that , you mean to oppose?
MR. WEISS: We have severa l positions
we could take .
COUNCILMAN PACKER : What are the
positions?
MR . WEISS : We could say --one
position should be is that we encourage
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the Judge to --we encourage t h e J udge if
they find that Joel is not --correct me
if I 'm wrong --
MR . POP OK : Okay .
MR . WEISS: --if the Judge finds
that J oel is not qual ifi ed , we encourage
the Judge to immediately sea t Lynne.
That 's posit i on one .
MR . POPOK :
MR . WEISS:
MR. POPOK:
Well, may I jump in?
Yes.
Wit h quo warranto,
there's rea l ly no choice.
If she prevai l s in quo warranto,
there's only one re medy . The one remedy
is ouster --
MR. WEISS : And seated.
MR. POPOK: --ouster and seated.
COUNCILMAN PACKER : So it's open and
shut .
MR. POPOK : I f she wins on quo
warranto .
MR. WEISS : If she wins .
COUNCILMAN PACKER : Okay .
MAY OR BERLIN: So our choice is
either advocate for it or against it.
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MR. WEISS: Correct.
MAYOR BERLIN: The remedy
MR . WE I SS: Co rrect .
MAYOR BERLIN : The remedy is that
we /r e advocating f or or against . Correct?
MR . POPOK : Right.
MAYOR BERLIN: Not her over Joel.
MR . WEISS: No . It/s a remedy.
The question is : If Joel i s
unqua lifi ed , should she be immediate l y
seated . Th at /s the remedy.
COUNCI LM AN PACKER : Wel l, the Judge
wil l dec id e th at . No?
MR. WEISS : Th e quo warranto if you
could t hink of sort of a separate litt l e
laws uit ---
COUNCI LMAN PACKER : As a separate
issue?
MR. WE I SS : --as a separate l i ttle
lawsuit that we have to take a position on
because it/s such a dramatic result .
COUNCILMAN PACKER : In other words ,
Richard, what you /re saying is the quo
warranto , that /s almost l i ke a sepa r a t e
issue a l together .
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I f th e Judge --wil l the Judge have
seen any of the evidence?
MR . POPOK: Yes .
MAYOR BERLIN : Okay
MR . POPOK : Not on the motion to
dismiss.
COUNCILMAN PACKER :
evidence
See, the
MR . POPOK: Le t me break it down.
On a motion to d i smiss, she's already
ind i cated in the f ace of one motion to
dismiss --
COUNCI LM AN PACKER: That she 's not --
MR . POPOK: --t hat she's not buying
the quo warranto, that it's a un i que set
o f facts .
She didn't say this. You've got t o
trust me on body language and what she did
say ; that she doesn't find as of yet that
quo warranto i s the right vehicle for this
challenger beca us e it's a unique factual
circumsta nce that's not really present
here.
It 's not a 70-30 win or loser . It's
like when there's one or two votes or a
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batch of votes that are hanging in the
balance .
COUNCILMAN PACKER: Is that where
t his particul ar quo warranto comes in
b asica l ly on precedent, or is i t j ust an
open and shut case as f ar as evidence on a
particu l ar case t h at would invoke this
particu l ar rule?
MR . POPO K: It only app l ies if
they 're able to establish on the evidence
that they present t hat t h ey're ent i tled t o
quo warranto , t h at she has clear leg al
t i tle and right based on the vo t es that
were cast to her seat .
law reads.
COUNCILMAN PACKER :
votes that were cast .
That 's t he way the
Based on the
In othe r words , i f I'm r eadi ng you
correctly , any of the evidence that
they're presenting will not bea r on that
part i cular point?
MR . P OPOK : Wel l , this is my opinion
based on reading of the case law.
I can tell you that we foun d no quo
warranto cases whe r e a residency c h al l enge
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where somebody has got a vote tota l the
way this challenger has got a vote
tot a l --
COUNCILMAN PACKER: Forget the votes.
F orget the votes.
MR. POPOK: To answer to your
question, I don't think it gets to t he
evidence.
COUNCILMAN PACKER :
to the evidence .
It does not get
MR. POPOK: It gets to the scenario
t hat 's being proposed .
The Judge has to believe that on the
way the quo warranto cases fall, that the
facts or the evidence --that the facts
fit the quo warranto relief .
MR . WE Is s : I t , s a Very
MAYOR BERLIN : Is quo warranto a
voting irregularity?
MR . POPOK: It's close to that,
Mayor. I t's that but fo r --here 's where
it arises.
miscounted
Absentee ballots that were
MR. WEISS: These are the cases that
we found.
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MAYOR BERL I N: Ha n ging chads.
MR . POPOK: Hanging ch ads, cases of
votes that were --you know, they did an
artificial deadline of midnight and t he
Judge finds it should go to 1 :00 a .m.
COUNCILMAN PACKER : Right .
MR . POPOK : And if you had counted
those votes, she would have won . That's
the way quo warranto lays out.
COUNCILMAN PACKER : That's the --
MR . WEISS: That's the historical way
that
COUNCILMAN PACKER : That's the
historical precedent that you f ound .
MR. POPOK: Which is why the remedy
is so automatic because t his me ans the
Judge has found t h is shou ld have been the
winner.
COUNCILMAN PACKER : I understand.
However , basical l y that's not the
i ssue. The issue is res i dency.
MAYOR BERLIN : Keep going.
COUNCILMAN PACKER: So therefore
therefore --if the Judge doesn't have the
evidence of residency and all these --
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between pol i ce reports and so forth and
so, whatever, to challenge it and to say
well, we are not go in g to support this
or we support the quo warranto move, I
find that very, very difficu lt to --
MR . WEISS : I'm not understanding
what you're saying.
COUNCILMAN PACKER :
didn't make mysel f clear.
Okay . Maybe I
To me, it's
MR. WEISS : You know what? To me, I
don't --in other words, everybody else
may understand it. I don't u nderstand it.
COUNCI LMAN PACKER: As far as I 'm
l i ke I sa i d before, I thin k the Judge
should do the ruling as far as evidence.
MR . WEISS : Substance .
COUNCILMAN PACKER: Substance , and
from what I hear, the q uo warranto has
nothing to do with evidence . It has only
to do from your perspective --as far as
what you have researched has only to do
wi th the number of votes or d iffe rent type
of
MR. WE I SS : Al l we can say from
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precedent is th at we have not seen --
Quo war r ant o is a series in order
to get quo war ranto, you have to have a
series of chec ks on a list; in other
words, certain things t ha t yo u have to
have i n place.
CO UNC ILM AN PAC KER : Okay .
MR . WEISS : We hav e not seen it
used --we have looked at all th e cases
and we have not see n it used in th i s
context .
COUNCILMAN PACKER : But it cou l d
possib l y be.
MR . WEISS : This J udge could rule
that in this pa r t i c u l ar c i rcumstance , that
quo warran to i s appropriate .
COUNCILMAN PACKER : But what I don't
unders tand is , wi ll th e Judge hav e seen
any of t h e evidence that is t o be
presented?
MR. POPOK: She's read t he Co mp l aint .
CO UNC ILMAN PACKER : She 's read the
Comp l aint .
MR. POPOK: They have l oaded the
Complaint with a ll ega tion s relating t o the
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evidence.
MR. WEISS: T he Comp laint i s not
evidence. You un derstand , the Compla i nt
is not evidence.
COUNCI L MA N PACKER :
n ot evidence?
MR . POPOK: No.
T he Complaint is
MR . WEISS : T h e Complaint is
a llegations, just like our Answer is no t
evidence.
MR. POPOK : See, when she's r uling --
when .any J udge r ul es on
COUNC ILMAN P ACK ER :
wrong word .
Maybe I us e d t he
MR . POPOK: When any J udge ru l es on
motions --
MR . WEISS: Ev i dence means ev idence .
Evidence means documents
COUNCILMAN PACKER : Documents, oka~.
MR . WE IS S:
MR . POPO K:
--or swo rn testimony --
Let me do i t th i s way .
On a motion to dismiss , the J udge
cannot l ook at evidence. She can o nl y
l ook at the fo ur corners of th e Compl ai nt
that's in front of he r, wi thout e v idenc e
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without testimony.
That's why s h e wasn't receptive to
any of their arguments where they tried to
bring in some of the "evidence " at the
motion to dismiss hearing .
She wasn't receptive to it. No Judge
would be because it's not proper on a
motion t o dism i ss. That particular
COUNC I LMAN PACKER : Right.
MR. PO PO K: That particular
procedural vehicle --
COUNC I LMAN PACKER: I und e rstand .
MR. POPOK : You don't l ook at
evidence. You look at the pleading and
dec ide whether it's sufficient or it
survives a mot i on to d i smiss and is
viable. That's yo ur only aspect that the
Judge is focused on.
So yes, she's a human being . Did she
read whatever is in the l awsuit? Yes .
Bu t is she adjudicating, being an
arbitrator on evidence , evidence being put
on
COUNCILMAN PACKER : At t hat poin t ?
No .
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MR . PO POK : At that po in t . No .
MR . WEI SS : Let me put it in a
different way, ver y sort of resu l t
oriented .
I f th e Judge rules that J oel i s not
q u a l ified --v ery result or ie n t ed does
this Counci l wants L ynne to be seated o r
n o t ? Forget about how she gets there o r
not .
is :
That 's the guts o f this issue , whi ch
Assuming that Joe l is not there o ne
way o r anot h er, does th i s Council want
Lynne to be seated --does this Council
want us to t ake the position that as the
seco n d pe r son in the r ace , L ynne should be
seated; or does the Counci l want to have
an elec t io n? I rrespective o f sort of the
legal machinations of t h is, that's the
issue.
MR . POPOK : I agree w i th that.
MR. WEI SS : That's the i ssue for you .
COUNCILMAN PACKER: All right.
MR. WEISS : I f you guys tell us what
to do wi th that i ssue --
COUNC I LMAN PACKER: I unde r stand .
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MR. WEISS: --we'll present it
properly.
COUNCILMAN PAC KER : In other words,
then therefore, it's not an automatic
according to --
MR . WEISS: No . Al l we're doing is
taking wha t position the Village should
take .
In other words, should we take the
position --how ever we do it and we'l l
have to f i gure out ho w to do it --that
she should be immediate ly seated; or does
the Council want there to be an e l ection
to fill that spot.
of this issue .
That's really the guts
VICE MAYOR ROSENFIELD : Without
names .
seat Y .
If Xis removed, do we i mmediately
MR. WEISS : T hat's the quest i on.
VICE MAYOR ROSENFIELD: The reason
that I would like to have an election is
that Y is not the choice of the people.
Th e people did not choose Y to be on the
Council by a very wide margin and,
therefore, the people need to have the
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opportu nit y to make that decis i on , not us
on the Counc il .
COUNCILMAN PACKER :
point.
That 's a valid
The only ques t ion I --I keep raising
it . Is it in this q u o wa r ranto
leg i slation --or whatever i t is --law,
is that t h e way i t 's directed? Is there a
direction of t h at part i cular paragraph or
whateve r i t is in the Sta t e law that says
i f the Judge ru l es in favor of Lynne
MR. WEISS: That's the way quo
warranto works.
MR . POPOK : That's the only remedy.
It's in the statute.
COUNCILMAN PACKER : That's the way i t
works . Therefore, we are --
MR . WEISS:
result --
Bu t if you like that
COUNCILMAN PACKER : Wel l , it's no t
whethe r we like it or not.
MR . WE I SS : No, no.
if that's the result that
If you th ink
if the
Co un c il wants to have an election , then
you can direct it ; but i f the Counci l
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likes that resu l t and wants h er to be
seated , then you nee d to tell us so .
VICE MAYOR ROSENF I ELD : But the su it
i s asking for two different th ings .
It 's asking , n u mber one , that Joel be
r e moved f r o m the Counc il .
MR . WEI SS: Yes .
V I CE MAYOR ROSENF I E LD : Nu mber two ,
i t is asking t hat she b e seate d
immed i ate l y .
MR . WEISS : Correct .
MR . POPOK : Right .
VI CE MAYOR ROSENFIELD : Those are two
sepa r ate i ssues .
same .
They a r e not o n e a n d t he
MR . POPOK : And I have ha d
d i scuss io ns with op p osing co u nse l about
will you back off that reme dy a nd propose
something else that I can ta k e t o my
Counci l , and t hey said n o .
So that 's the o nl y remedy t h at
they 're l ooking fo r .
VICE MAYOR ROSENFIELD :
t wo separate issues .
I see that a s
MR. WEISS : I d on 't know --sorry --
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COUNCILMAN PACKER : But you still
haven't answered me the quest i on . I 'm
still up in the air .
MR . POPOK : In the statute itself
COUNCILMAN PACKER : What does the
statute actually say?
MR . POPOK : It says i f the Judge
fi n ds t h at ouster i s appointment , she
seats the challenger .
COUNCILMAN PACKER : That 's i t . So
i t's open and closed as far as that .
MR . POPOK : But The f undamental issue
i s , do we go a f ter t h e q u o warranto and
have it defeated so we can there can be an
election or do we allow i t
MR . WEISS :
li sten to --
No. I think we need to
Martin basically says he feels like
i f the Judge kicks out Joel under quo
warranto , he wan t s L ynne seated ; and I
think you said that you don 't think she
should be seated because t he people didn't
vo t e for her.
VICE MAYOR ROSENFIELD :
of the people in Bal Harbour.
I 'm for a l l
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MR . WEISS : So we need to listen
t o --you guys need to tell us what to do.
That's a l l .
VICE MAYOR ROS ENFIELD : I'm for all
of t he people i n Bal Harbour
COUNCILMAN PACKER: But do we have a
choice?
VICE MAYOR ROSENFIELD :
f in i sh? Please?
Can I please
COUNCILMAN PACKER : Go ahead . Go
ahead. I'm sorry .
VICE MAYOR ROS ENF IELD : I'm for a l l
of the people in Bal Harbour making this
decis i on and this would not b e the case .
The Counc il shou l d no t make it , and I hope
the Judge doesn't make it.
I hope the Judge would l i sten to an
appea l that says we need our voters to
make the decis i on .
MR . WE I SS : Martin, just to answer
your question . Do we h a ve a choice?
COUNC I LMAN PACKER :
cho i ce .
We do have a
Yes.
MR . WEISS: Yes, because if you don 't
like --i f you take th e other position
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that 's bee n expressed , then our direction
has to be to oppose the q uo warranto
because we don't lik e the result of what
happens if the quo warranto is granted .
So you do have a choice because yo u
can be --I mean , you could even be --if
you wanted to take the pos i t ion, you cou l d
even take the position that Joe l is
unqualified , but s till tel l us to oppose
the quo warranto because you don't like
the idea of somebody being immediately
seated .
But do have a choice, whic h is : I f
you fee l what Jea n f eels , wh i ch is that if
there's a vacancy it should be fi ll ed by
the electorate or the position that you're
expressing which is t hat if there is a
vacancy , then i t should be filled by Lynne
Bloch -Mullen.
Obviously, we have a --this is the
only issue that we
COUNCILMAN PACKER : Yes , just so
we 're c l ea r on that .
MAYOR BERL I N : Martin, ho l d on one
second.
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Jaime?
COUNCILMAN SANZ : But now when we
just g ive you the way we feel --
MR. WE I SS: Yes .
COUNCILMAN SANZ: --then why are we
going back again with this? We already
to l d you that we will have an e lection
when it's appropriate, but now this comes
back again .
MR. WEISS: Th is is a little bit of
a --it 's slicing the app l e a little
different way. It's a different way
that --it's another thing that
MAYOR BERLIN: Here. I 'l l make it
simple for you .
Richard, what Jaime is saying and
Jean, they think under any circumstance
think there should be an election, which
wou l d mean that you should oppose quo
warranto .
I agree with them . I don't think
there's a circumstance where this woman
should be seated . She c l early didn't have
a mandate from this community an d to
suggest otherwise is simp l y an obvious
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i t's obvious l y not the case .
So just like we 're not going to take
a position to defend J oel and advance h is
interest s, we shou ld n 't b e advancing her
interes ts .
She didn 't get a mand at e . She wasn't
been e l ected by a major i ty of t he peop l e
in the election.
I t's probably a fair statement to say
that the major ity don't want her i n there.
So why would we take a position to support
an action t ha t wou l d seat her ? That mak es
no sense to me .
So we h ave three to one. I take it
Mart in is v oting agains t.
COUNCI LMAN PACKER: Mr. Mayo r . I
just want --
MAY OR BERLIN : So you oppos e. It
could be three to one . It's o k ay.
COUNC I LMAN P ACKER: No . I'm simply
not clea r . I'm no t ge tti ng a d i rect
a nswe r --
MR . WE I SS: I 'm trying --you know,
I'm not trying to be evasive. I 'm not
r e all y t r ying to --
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VICE MAYOR ROSENFIELD : I think h e
gav e you an answer .
says
COUNCILMAN PACK ER : No , he did n 't .
MR. WE I SS: Ask i t again.
COUNC IL MAN PACKER : If the l aw
the law is the law whether we say
we l ike it or we don 't like i t . Correct?
MR. WEISS : T he law i s the law
wh et h e r we l ike it or --yes, tha t 's
cor r ect .
COUNCI LMAN PAC KER : Okay . If t hi s
quo warranto sa y s that if a candidate i s
unqualified o r if she rule s aga in st t h e
candidate and o usts h e r , the law says
quote --
MR . WEISS : T h at's what it says.
COUNC ILM AN PACKER :
c an dida t e is --
That t h e ot her
That 's the law . Co r rect?
MAYOR BERLIN : Seated, co r rect .
MR . WEISS : Rig h t, but t h a t --
COUNC I LMAN P ACKER : So how can we
come out and say we are above t h e way t he
St at e law is wr i t ten?
MAYOR BERLIN : No, because in this
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i nstance, we're act i ng on behalf of th e
residents of the commun i ty .
This woman is a private remedy.
not about --it's a private remedy. She
wants to be seated . She's not saying,
"It's in the best interests of the
commun ity ."
She 's saying, "I wo n .
seated."
I want to be
That 's what s he 's saying.
COUNCILMAN PACKER : She's saying
that , but it's the law --what is the way
the l aw i s
MAYOR BERLI N : R i ght now, the Judge
thinks it 's inappropriate for her to have
that remedy because all the cases they
have res earched s how it's neve r been the
case ever before where somebody was ab le
to seat themselves under an issue whe r e
t h ere was a reside n cy contes t.
The examp l e t hey gave you was whe r e
but for c ir cums tance s that too k place
dur ing th e election --
MR . POPOK : Right .
MAYOR BER LIN : --like a hanging chad
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where there was --where rea l ly , the
election was hanging in the balance.
This woman lost 70 to 30. There's no
mandate for her candidacy . The people
have spoken. They didn't want her . Joel
may not be qualified, but they clearly
didn't want her .
So why we would take a position to
advance her to have the seat would be
adverse to the majority of the people in
this community who we represent , period.
That 's the explanation.
COUNCILMAN PACKER : There's no
question I can fo l low your reasoning , but
I like to follow what the law says.
MAYOR BERLIN : We ll, that is the law.
The law --
COUNCI L MAN PACK ER :
should be seated.
The law says she
MAYOR BERLIN : No. Th e l aw says is
she 's not entitled to this remedy. That's
why i t was dismissed. The Judge has
indicated she's not enti tl ed to this
remedy . That's the law and that 's the
appropriate position --
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MR . WEISS.: So far in th e case --
MAYOR BERLIN : I f our lawyers had
come in and said, we've r esearched this
and that there are a l it a ny of cases that
p ro vide that in these ci r cumstances this
woman should be seated, we may h ave a
different analysis to make .
They have come in and said t he
opposite. She said th a t t hey researched
this . This is i nappropriate for her .
S he 's reaching . She's looking to go
beyond t h e law for personal gain. She
wants to be seated and the l aw says,
you 're not entitled to it .
We should oppose th at . It's very
clear . We shou l d oppose that . T hat 's t h e
law .
MR . WEISS: The truth i s that what
the law i s --you al l know what the l aw
in this partic ular case is going to be
dete rmin ed by the Judge and --
COUNCILMAN PACKER : Okay .
MR. WEISS: an d th e issue t ha t
we 're d i scussing is real l y a result
oriented circumstance . In other wo r ds,
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we're going to take a position one way or
the other . The Judge is going to
determi n e that the law is, b ut the
question is --
MAYOR BERLIN: What's re a lly the r i sk
here, Mar t in ?
If we are wrong in terms of what the
l aw is , she has t h e right to run
COUNCILMAN PACKER : That's r i ght.
MAYOR BERLIN : --and i f the
commun it y wan t s h er, she 'l l get elected .
There won 't be a problem. She 'll spend a
coup l e of dol lars .
throw an election?
How expensive is it to
But it wou l d be a grave injus t ice, a
big mis take , if we went the other way when
the community didn 't want her .
So sh e 's appa r ent l y u ndertaking to
spend money for th i s lawsuit . I guess
either her or somebody is support i ng her
and t h e money she spends real l y shou l d n 't
be our pr i mary consideration .
I t should be wha t's i n the b es t
interests i n the community; and if we have
an e l ection and t h e community wants her ,
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she'll be sitting up at the dais wi th us.
Then we'll have a clear conscience about
everything that took place.
COUNC IL MAN PACK E R: I h ave no problem
having an election i f the Judge rul es that
Joel is ine ligi ble . I have no problem .
MAYOR BERLIN : R ig ht. We a ll agree.
We all agree on t h at.
COUNC I LMAN PACKER : We all agree wi t h
that .
Th e only prob l em I have is that if
this quo warra n to --if this Council
supports our attorney opposing the quo
warranto mot i on
MR. WE I SS : Right .
MR . POPOK : If you d ire ct us
COUNC ILMAN PACKER: --if we should
direct you to oppose it.
MR. WEI SS: Righ t .
MR. POPOK : R i ght.
VI CE MAYOR ROSENFIELD: Whic h we have
every right to do, which any cit i zen has
the r ight to do .
MA YO R BERLIN : Because i t's
apparently not appropriate .
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MR. POPOK: The Judge i s ultimately
going to make the decision .
COUNCI LMAN PACKER : The Judge wi ll
ma k e the decis i on .
MR. POPOK: Yes, as to whether it 's
le ga l ly suffici en t --
MR. WEISS: It's rea ll y --I think
that I 'm back to, it's really a result
oriented directio n t ha t you're giving us.
I f you fee l that u nd er certain
circumstances t h at Lynne should be seated
immediately , t hen you should tell us .
I f you feel that Ly n ne should not be
seated and that there should be an
e l ection, then you go the other way .
mean
MAYOR BER LIN: I think what we're
I
say ing i s Lynne s ho uld be seated if she
wi ns an e l ection . Well, whoever wins an
election shou ld be seated . That 's what
we're saying .
COUNCILMAN PACKER : Ye s, that 's a l l .
MAYOR BERLIN : Well , that 's what
we're saying . That's the consistency of
supporting and having an elect i on and
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opposing quo warranto because those two
positions are intel l ectually incons istent .
MR . WEISS: You could end up with no
e l ection .
VICE MAYOR ROSENFIELD: First o f all,
Martin, i t's a three and a half year term .
T h i s isn't a matt e r of three months.
You know, we migh t not have opposed
th i s if i t had only been thr ee months l e f t
i n the t e rm, but this i s a four year term .
On ly f i ve months of th e four y e ar term are
over.
The people have not spoken on this.
T he people a r e the constituents, the
peop le who we represent. They need to
have
COUNCILMAN PACKER : I re p r esent them,
also .
VICE MAY OR ROSEN F I ELD: T h ey need to
have a voice as to who that person on the
Council is go i ng to be.
Th at's wh y I actua lly would recommend
that we take the position that we have
taken --or the major i ty of us have taken.
It 's no t against Lynne. It 's not
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against anything . It's a matter of saying
there's three years and eigh t months
left
COUNCILMAN PACKER: Well , my position
is , like I sa id before, let the Judge
rule.
Now
MR. WEISS: The Judge is going t o
rule , anywa y. The question --
COUNCILMAN PAC KER : Whethe r we
support the --
MR. WEISS: Quo wa rr anto or not .
COUNCILMAN PACKER: --quo warranto
or not.
MR. WEISS: Right.
VICE MAYOR ROSENFIELD: The Judge is
going to rul e.
COUNCILMAN PACKER: The Judge is
going to rule on that .
VICE MAYOR ROSENFIELD: We're all in
favor of the J u dge ru ling.
COUNCILMAN PACKER : Natura lly.
VICE MAYOR ROSENF I ELD: We're just
advising our counsel what opinion we would
like him to express. T his , expresses our
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feelings . The J udge is s t il l going to
ma ke the d ec i sion.
COUNCI LMAN PA CKER : Well, personally
if I was the Judge --and I'm not and I 'm
not an attorney --I would try and
research as much as I could t o see if
there was any othe r p r eceden t s on this
business, b ut i f you say it on l y has to do
wit h
MR. WEISS: The only cases that we
fo u nd --and we've done a pre tt y good
research job .
COUNCILMAN PACKER : Okay .
VICE MAYOR ROSENFIELD : Chads and
close elec ti o ns.
COUNCILMAN PACKER : If t ha t be th e
case
MR . WE I SS : Mic ha el , to be fair .
Have they c it ed any ca se s whe r e quo
warranto has been used?
MR . PO POK : No. I think they did a
very weak job of defending quo warranto .
They just sa id th ey did n 't hav e an y cases
in opposition. Th ey sai d that they
believe --
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Their argument is wel l, if he hadn't
been there and she had run I guess
unopposed, she wou l d have won , wh ich is
not the way q u o warranto works and I don't
think the Judge was buying the argument;
but no, they didn't h ave the counter
cases. There's not that many cases in
th i s area . The cases --
MR . WEISS : I real l y th i n k that
and I guess I'm just --the issue is
whether under any circums tan ces y ou feel
that --I'm not tal king about technical
wh ether you feel that u nder any
circumstances, she shou l d be immedi ately
seated .
That 's really the issue here because
that 's what quo warranto i s and I t hink
that this obviously is a personal
decision.
I f you f eel like under some
ci r cumstances, you cou l d justi f y hav i ng
her immediately seated, then yo u're tak i ng
the corr~ct pos i tion --
COUNCI LMA N PACKER : It certainly
would save the Vi llage a lot of money
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righ t off the bat .
VICE MAYOR ROSENFIELD: There are
times wh en money i s spent
MR . WEISS : Mi c h ael, are there --
VICE MAYOR ROSENFIELD : --sometimes
when we spend money , i t i s spent in the
best interests of the people .
MR . WE I SS: Mic ha e l , are there
sett l ement opportunities i n t his case?
Have we been presented with any settlement
opportunities that --have you asked for a
qu i ck r esu lt?
MR. POPOK: I mean, I hav e had a
number of discussions with Mark Journey .
I have had some d i scuss i ons with some
o t her lawyers that are invo lved in the
background of the case about --
d i scussions, but --you k now, I have
opened t he door. They have neve r stepped
through --
MR . WEISS : And the other th i n g i s
that we, the Vi ll age, aren't in --because
there's other parties to the case --
Joel
MR. POPOK : But I have to l d them the
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door is open fo r a proposal.
I have a l so told them that one of the
problems that th ey wou ld maybe remove is
if she was seeking something other tha n
immediately be ing sea t ed as my own view of
the case and th ey said, "That 's our remedy
that we're seek ing."
MR. WEI SS : Okay . J u st to summarize,
we have decided two th i ngs unanimously.
We hav e decided that number one,
we 're going to let Joe l's atto rneys raise
these non -residential defe nses that we
have
MAYOR BERLIN : It's down to two :
Whethe r or not they should have filed it
b e for e and the 1 0-day issue .
MR. WEISS : Right .
MAYOR BE RLIN : The thi rd, we are
go in g to take a position --
MR. WEISS : The th i rd
one --the second o ne .
the second
Yes, on the thi r d
procedu ral/non -resi d en tia l defense, three
of you I th i nk have said t ha t we should
oppose the quo warra n to.
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Then I th i nk we have agreed --you
all have agreed that we 're not going to
take a position with respect to J oel 's
qua l if icat ions i n terms of the residency
and so fort h. We're going to be neutra l
on that issue .
I think a l l of you have agreed that
our pos i tion wi th respect to the remedy
aside from the quo warranto is s ue is that
i f Lynne wins, that we should be directed
to hold an election in conjunction with
another election to fill the seat.
Is that accu r ate?
MAYOR BERLIN: Let me just --
preserving the right , i f we deem it
appropriate --
MR. WEISS: Correct .
MAYOR BERLIN : --to appoint somebody
to f i ll i t on an i nterim basis .
MR . WEISS : Right, right.
MR . POPOK : Okay . Let me just ru n
through the suit to make sure that I
understand it.
Count I, dec l a ra tory relief . As to
the s ubst ance of the a t tack that anyone
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would make on the declaratory rel ie f at a
procedural leve l right now, that we're
going to let --it's going to be made by
Joe l Jacob i 's counsel .
MR . WEISS: Right .
MR. POPOK : As to the remedy that's
sought in that claim, wh i ch is that she
get seated , I oppose it
MR . WEISS : Right.
MR. POPOK :
as a remedy .
--and I seek an election
MR . WEISS : Right .
MR . POPOK : As to the second count ,
which is q uo warranto, that one we can
address and attack as being inappro pr iate
in this case .
As to th e third, which is
MAYOR BERLIN: Because we want the
peop l e to hav e the opportun i ty to make
that decis i on.
MR . WEISS : Co rr ect.
COUNCILMAN PACKER : Tha t's no
question . Th at's no question as far as
that goes .
MR . POPOK: An d as to the last --
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MR . WEISS: We ll , i t is . See, the
thing is that again, if we don't oppose
the quo warranto, then the people --if
she wins, the peop l e wi l l never have a
chance to vote for this again .
I me an, i f y ou feel like the people
should --and I'm not putting words in
y our mouth or trying to go in any
particular direction.
If you f eel like th i s vacancy that's
created should be filled b y the voters in
any case, th en the quo wa rr anto needs to
be opposed.
I f you feel li ke there should be this
slam dunk for he r avai lable, t he n that's
the other position on the quo wa rranto .
T hat's really the issu e because if
the --that 's really sort of the only
place that you guys have to go tonight.
VICE MAYOR ROSENFIELD : Can I --I
want to amend some thing I said and that is
when you brought up t he issue of money and
that it disturbs me t ha t t h e e l ection will
cost money .
It disturbs me that you broug ht it up
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because i t is the morally and e t h i cally
the co rr ect thing to do .
If you l ook at the morali ty of t his
and the ethics of letting the voters make
this dec ision, then spendi n g the mo ney i s
not an issue.
COUNC I LMAN PACKER : There's no
question --there's no question that the
voters have the final say and the voters
will have the final say if the Judge rules
that he is ine ligibl e .
MR . WEISS: If the quo warranto is
granted, the voters wi ll not --
COU NCILMAN PACKER : If you 're going
to oppose the quo warranto and if the
J udge ru l es with you, st i l l he loses the
case . R i ght?
MR . WEISS: Then it goes to the
voters .
COUNCILMAN PACKER:
the voters .
Then i t goes to
MR . WEISS: But if the Judge rules
for the quo warranto , then there 's no
election. That's the only p l ace you guys
have diverged tonight .
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MR. POPOK : No. I think Councilman
Packer's pos ition is clear and I think
under the major i ty wi ll based on the rest
of the --
MR. WEISS :
MR . POPOK :
I'm just trying to --
Go ahead.
MR . WEISS : This is an i mportan t
issue . I want to make sure that he
understands. That's the on l y issue .
COUNCILMAN PACKER : You can oppose a
law, but the law has been written --
MR. WEISS: You can oppose --as you
know, nothing is black and white .
Basically what you're doing is you're
saying, I don't like the result of quo
warranto. So, therefore, you guys are
really good lawyers . You just beat the
State of Florida in this tax suit.
guys are r eal ly good .
You
So I don't like the result that quo
wa rranto --
We did . You know that we won that .
VICE MAYOR ROSENFIELD: I know.
MR. POPOK: A li ttle advertising.
MR. WE ISS : I'm not
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bashfu l.
But the point i s that I don't l ike
the result o f quo warranto, just what you
were say ing and so you guys are smart.
You figure out a way . You figure out a
way so that that 's not the result . That 's
basical l y --t hat 's wha t the rest of t h e
Council is, I thin k , saying.
So I understand your position and I'm
not trying t o put --I just want to make
sure t h at you understand the l ega l
position that we 're i n .
COUNCI LMAN PACKER : The lega l
position is if the res t o f the Counc i l
feels that you should oppose it, then
that's what you're going t o do .
MR . WEISS : Yes. That's where we
are .
MR. POPOK : And the last one , which
is the stat ut o r y challenge unde r Chapter
102.1 68, wh i ch is this 10 -day obligation
that they had to b r ing in the pr.oper
pa rti es, wh i ch also seeks the remedy of
ouster a n d seating of Lynne Bloch -Mu l len
as to the technical or procedural i ssues
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re l a t ed to t h e cla im , t h a t aga in --th at's
something is somethi n g that we 'r e going to
al l ow if app r opriate Joel Jacobi's co u nsel
to do ; but as to the remedy , I 'm go ing t o
take t h e position that's been di r ected by
the majo rit y --
THE REPORTER : I 'm sorry . I didn't
hear t he end of what you just said .
MR . P OPOK: I'll do a n other ve r sion .
As to 1 02 .1 68 as to the procedural
and substantive issues , that's something
that counsel f or Joel Jacobi wil l ra is e .
As to the remedy, I wi ll a rgue th a t
until elect i o n , an appo int me n t power
should be prese rved for this Council as
opposed to the seat ing of Lynne
Bloch -Mullen .
CO UN CILMAN PACK ER : I n other wo r ds,
that has nothi n g t o do wit h t he quo
warran to .
MR. WE I SS: Not at all .
MR. POPOK : No, bu t she's seekin g the
same r eme dy for each o f the t hr ee --
MR. WEIS S : He's ri gh t . T here 's a
separate co un t in the Complaint --
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COUNCILMAN PACK E R: I see.
MR. WEISS:
MR . POPO K:
Okay, that 's it .
Okay, thank you .
MR . WE I SS: Does anybody have any
questions? I mean, is there anything e l se
that we shou l d --this is comp l icated
stuff.
COUNCILMAN PACK E R: We l l, the on l y
thing that you had raised was there any
sort of --some sort of compromise brought
in and you sa i d abso lu tely not .
MR. POPOK: I sa i d the door i s open.
If they want to come and propose
someth i ng, I wi ll br ing it righ t back to
this Council.
MR . WEISS: All right . We'l l h ave
anothe r Execu t ive Session and we'll
propose
But the thing I added was t hat unl ik e
a lawsuit wh ere there's just two part i es
i nvo l ved, in this particular case Joel is
a l so a party to the lawsuit. So any
settl eme nt that was rea l ly an ultimate
settlement of th i s would h ave to include
Joe l .
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VICE MAYOR ROSENFIELD : Do you have
any idea when th i s may be heard?
MR . POPOK : I think that assum i ng the
motions get filed in th e n ext two weeks, I
think she'll probably ho l d a hearing at
the end of Octobe r , beg i nning of Nove mbe r,
probably have another two-h our hearing and
then she'll ma k e he r ruling .
VICE MAYOR ROSENFIELD : Of f the
record --
MR . WEISS : There's no o ff the
re cord .
VICE MAYOR ROSEN F IELD : Oh, there's
no o ff the record .
MR . WEISS: No.
VICE MAYOR ROS E NFIELD : Does th i s
mean --t hi s means that Joel has a seat
until such time as the Judge rules .
MAYOR BERLIN : And everythi n g he does
is
MR. WE I SS : Yes .
MAYOR BERLIN : In other words,
someone ra ised the question the other day
a b out --
VICE MAYOR ROSENF IEL D : I f he we r e
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re moved, what he --
MAYOR BER LIN : I f he wer e no t
r emov e d, are the votes that h e's
part ic ipated now in some how nu ll and void?
is the q uestio n .
MR . WEISS : I know that . I know that
that question h as been raised and we 're
looking at i t.
T he answ er is we feel that he has the
pr esumpt i on t hat he's properly seated and
tha t
COUNCI LMAN PACKER: He's innocen t
u nt il proven gui l ty.
MAYOR BER L IN : We n eed to go back
over t h ere on the record .
Can yo u p ic k i t up here , E ll isa?
ACTING VI LL AGE MANAGER HORVATH : No .
MAYOR BERLIN : We ha v e to go over
th e r e.
(Thereupon , there was a brie f
interruption in the session while t he
Commission moved to th e Comm i ssion
Chambers, a f ter whic h th e fo l low i ng
proceed i ngs we re had :)
MAYOR BERLIN : I will no w r eope n the
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public meeting .
The attorney -client session has now
been terminated .
Me mbers of t he genera l public are now
invited to return for any further
proceedings or matters .
Hearing none , is t here a motion to
adjourn?
COUNC I LMAN PACKER :
to adjourn .
I make the mot i on
MAYOR BERLIN : Second?
VIC E MAYO R ROSENFIE LD: Second .
MAYOR BERLIN : All in favor?
THE COMMISS I ON (i n unison):
MAYOR BERLIN : Any opposed?
(No response .)
MAYOR BERL I N : The meeting i s
adjourned .
(Thereupon; the session was
adjourned at 6 :20 o 'clock p.m .)
Aye .
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CERTIFICATE OF REPORTER
STAT E OF FLORIDA
ss .
COUNTY OF DADE
I, CAROLE BECKER, a Notary Public in and
for the State of Florida , do hereby certify that
I reported t h e forego ing hearing at the time and
place he r einabo ve set forth ; and that t he
foregoing pages numbered from 1 to 102 ,
inclus i ve, constitute a true and correct
transcription of my shorthand report of said
hearing .
I FURTHER CERTIFY that I am ne i ther
attorney nor Council for, nor related to nor
emp loyed by any of the part i es connected with the
ac t ion, nor financially interest ed i n the act ion .
WI TNESS MY HAND AND SEAL in the City o f
Miami , Dad e County , Flor i da, this 9th day of
Sep tember , 200 7 .
CAROLE BECKER
PERSONAL TOUCH REPORTING (305)944 -9884
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