As we reported in Adiós, Miguelito!, on February 16, 2023 North Miami Beach Commissioner Jay Chernoff filed a lawsuit against Michael Joseph and, by extension, the City of North Miami Beach, “Wednesday, February 15, 2023 marked the 120th day that the now former Commissioner Michael Joseph had not attended a meeting of the City Commission, and according to Article II, Sec. 2.5 of the North Miami Beach Charter, he has officially vacated his seat.”

The lawsuit was later amended on March 13, 2023 to include McKenzie Fleurimond, claiming that he had also vacated his seat for the same reason.

A separate but related lawsuit had already been filed by Mayor Anthony DeFillipo on January 17, 2023 after Michael, McKenzie, and their co-conspirator, Daniela Jean, refused to attend yet another Commission meeting and prevented a quorum for the second time in a row.

When the three Criminal Commissioners also refused to attend the next commission meeting scheduled for February 21, 2023, Mayor DeFillipo filed an Emergency Motion to Order City Commission to Meet on February 22, 2023.  On March 5, 2023, Judge Valerie R. Manno Schurr issued an Order Granting Plaintiff’s Emergency Motion to Compel Commissioners Attendance at Commission Meeting, forcing them to attend the March 21, 2023 meeting.  Daniela was a no-show, according to the City Clerk, who claimed she had an “excused absence.”

As an aside, Daniela also did not attend either the April 18, 2023 Commission meeting or the follow up meeting on April 24, 2023, also with alleged “excused absences.”  (More on that mystery in a future blog.)

At the April 24, 2023 meeting, the Mayor and Commission voted to hold a hearing at the May 16, 2023 meeting, on Michael Joseph’s violation of the Charter by refusing to attend meetings for 120 days, and vote on whether or not he will be permanently removed from the dais.

This move prompted Michael and McKenzie to file a counter-claim On April 24, 2023 against the City and Jay Chernoff, claiming that they refused to attend meetings because “the Mayor doesn’t live in the City and he vacated his seat,” and their “lawyer” advised them not to show up.

Yes, they’re still singing that same old song.

On the same date, McKenzie filed a Motion to Dismiss, and on April 27, 2023, Michael joined him in filing his Motion to Dismiss.

They also filed a Verified Emergency Motion for Injunctive Relief in an attempt to prevent the City Commission from being able to vote to uphold the Charter and force Michael to vacate his seat.

On May 4, 2023, one of Jay’s three attorneys, David P. Reiner II, filed a Response to Motion for Injunctive Relief, the opening paragraph of which reads:

“Defendants’ Motion should be denied because it: (1) ignores the controlling City precedent and authority that they themselves advocated in the form of the findings and conclusions of law made in the January 2018 Jean Olin Memorandum of Law (incorporated herein), (2) misconstrues Section 2.5 of the City Charter, (3) is not ripe because no vote or discussion by the Commission has occurred, and (4) is not justiciable because the matter involves a completely political matter being determined by a legislative branch of government with which this Court should not interfere.”

In layman’s terms, this is what Mr. Reiner’s Response means:

(1)  In their bogus claims against Mayor Anthony DeFillipo, Michael and McKenzie kept referring to the “Pierre precedent” as justification to claim that the Mayor had vacated his seat because he allegedly did not reside in North Miami Beach, and they were advocating the findings and conclusions of law in attorney Jean Olin’s Memorandum of Law as a basis for their intent to remove the Mayor.  Now that the shoe is on the other foot, Michael and McKenzie want to throw that Memorandum out the window and play by new rules.

(2)  Michael and McKenzie are misinterpreting Article II, Sec. 2.5 of the City Charter which states, “If any Commissioner has failed to attend a meeting of the City Commission for a period of one hundred and twenty (120) days, the seat of such Commissioner shall automatically become vacant.”  Remember that the last meeting Michael Joseph attended was October 18, 2022.  As of February 15, 2023, he had not attended a City Commission meeting for 120 days, and he was presumed to have vacated his seat.  Despite the fact that Michael and McKenzie’s taxpayer-funded personal “lawyer,” Hans Ottinot, “opined” that the clock started on December 20, 2022, which was the first meeting that Michael missed, anyone with a working brain cell knows that is not what the Charter says.  Hans also knew that, but he was throwing everything he could at the wall in the hopes that something would stick.  He was desperate because he knew the minute the Commission would be able to meet, he would be sent packing.

(3)  And lastly, the third response that the Motion for Injunctive Relief is not justiciable, or subject to trial in a court of law, is self-explanatory, in that Michael’s violation of the Charter “involves a completely political matter” that requires action by the “legislative branch of government,” which is the City Commission.

Even better, City Attorney John Herin, representing North Miami Beach as Defendant, also filed a Response to Motion for Injunctive Relief, stating:

The Court should deny this Motion because:

(a) Defendants have maintained that the proper venue for addressing this dispute is at a City Commission meeting, rather than through judicial intervention;

(b) Addressing the attendance issue at a City Commission meeting is consistent with the Commission’s prior process under the Pierre precedent; and

(c) It would be improper for the judiciary to intervene prior to the Commission taking any action at this meeting, attendance at which is required for Commissioners Joseph and Fleurimond to exhaust their administrative remedies.

More importantly, all the hundreds upon hundreds of pages (and we are not exaggerating!) of pleadings and exhibits filed by the Defendants’ lawyer, Benjamin H. Brodsky, couldn’t save Michael and McKenzie from their own stupidity.

As for the “Pierre Precedent,” the adorable little catchphrase coined by ex-City “Attorney” Hans Ottinot and his illegally hired Sham Lawyer Luis E. Suarez when they were desperately trying to remove Mayor DeFillipo from his seat, has now come back to bite Michael and McKenzie in their culos gordos.

Because at today’s Evidentiary Hearing before the Honorable Peter R. Lopez, Michael’s and McKenzie’s Emergency Motion for Injunctive Relief was DENIED!

After the two years of hell that Mayor Anthony DeFillipo, Commissioner Fortuna Smukler, and especially former Commissioner Barbara Kramer all endured at the hands of Michael, McKenzie & Co., these losers finally got exactly what they deserve.

On Tuesday, May 18, 2023, the Mayor and Commission will give Michael Joseph his due process, and then vote whether or not he has vacated his seat according to the City Charter.

Also, a Notice of Hearing on “All pending Motions to Dismiss” in Chernoff v. Joseph, et al, was filed today.  It will take place via Zoom on Thursday, May 11, 2023 at 10:30 AM.  If you would like to attend, you can register for a text notification here:  https://cmap.jud11.flcourts.org/ebench/textNotificationsRegistration.jsp

Stephanie