Wexler's Maryland Residency Allegations

 

 

 

 

UNITED STATES DISTRICT COURT

FOR SOUTHERN DISTRICT OF FLORIDA

 

EDWARD J. LYNCH, SR.

 

                                                Plaintiff

 

                Vs.

 

 

CONGRESSMAN ROBERT IRA WEXLER,

AND THE FEDERAL ELECTION COMMISSION,

PALM BEACH COUNTY SUPERVISOR OF ELECTIONS,

BROWARD COUNTY SUPERVISOR OF ELECTIONS,

FLORIDA STATE ATTORNEY GENERAL,

STATE OF FLORIDA SUPERVISOR OF ELECTIONS

 

                                                Defendants

 

COMPLAINT FOR DECLARTORY AND INJUNTIVE RELIEF

 

PRELIMINARY STATEMENT

 

 

1.      Article I, Section 2 of the United States Constitution, states in particular part, “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

  1. Congressman Wexler is not an inhabitant of the State of Florida due to the fact that he is an inhabitant of the State of Maryland and has been, by his own admission, since 1997.
  2. Wexler has been fraudulently using an address where he does not live at, for he and his wife in order to qualify for the ballot, to represent the citizens of the 19th Congressional District in Florida, to register and insure his personal automobiles and to vote from.
  3. The actions of Wexler, a United States Representative, in having run for congress knowing that he is not eligible makes his election to such office null and void.
  4. Wexler, having knowledge and by his own admission is domiciled in, an inhabitant of and a resident of Maryland and having run for United States Congress to represent the State of Florida is in direct violation of the United States Constitution.
  5. Wexler, having knowingly and willfully violated the United States Constitution and the laws of the State of Maryland by qualifying for and being an inhabitant of the State of Maryland therefore, not being an inhabitant of Florida should be removed from the ballot for the 2008 election in Florida.
  6. Wexler, having knowingly and willfully violated the United States Constitution and the laws of Florida and Maryland should be removed as a congressman, purporting to represent the State of Florida

 

JURISDICTION AND VENUE

 

  1. This case arises under the Constitution and laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. 1331.
  2. This court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201

 

PARTIES

 

  1. Plaintiff, Edward J. Lynch, Sr. [hereinafter “Plaintiff”], is an adult individual with a home address of 8584 Wendy Lane East, West Palm Beach, FL 33411
  2. Defendant, Robert Wexler [hereinafter “Wexler”], is an adult individual with a home address of 7708 Ivymount Terrace, Potomac, MD 20854
  3. Defendant, The Federal Election Commission (FEC) was created in 1975 by Congress to administer and enforce the Federal Election Campaign Act (FECA). The FEC is a Governmental Agency with a principal address of 999 E Street, NW, Washington, DC 20463

 

FACTUAL ALLEGATIONS

 

  1. Wexler was first elected to United States House of Representatives in 1996 to represent Florida’s 19th congressional district.
  2. Wexler sold his primary residence in Florida at 17526 Wagon Wheel Drive, Boca Raton, FL 33496 in 1997.
  3. Wexler and his wife bought his new and only residence at 7708 Ivymount Terrace, Potomac, MD 20854 in 1997 into which he moved his family, his furniture, his belongings, his clothes and items held “near and dear”.
  4. From 1997 through 2003 Wexler listed this residence as his “PRINCIPAL RESIDENCE” on his property tax records.
  5. In 2003, Wexler changed the listing for this residence to “NOT A PRINCIPAL RESIDENCE” on his property tax records.
  6. On October 18, 2002 Wexler and his wife signed a document in a Deed of Trust that stated, in part, “…and the property herein described is my/our principal residence.”  This language was the only paragraph on the page that was signed and notarized.
  7. In 2008, Wexler sent out a press release where he stated that he did not know that he was signing paperwork at the closing of his house in 1997 that indicated that this house would be his “principal residence” and that when he realized the error, 6 years later in 2003, he corrected the error.
  8. On May 25, 2004, on an Amendment to Income Equity Credit Line Agreement and Deed of Trust on the Land Instrument Intake sheet, section 11, it is checked and verified that the property will be “Grantee’s  Principal Residence”.  This instrument was signed by Wexler and his wife and is duly notarized.
  9. On May 28, 2005, Wexler and his wife signed and had notarized another Deed of Trust that had the refinance language that stated, in part, “and the property herein described is my/our principal residence.”  This language was the only paragraph on the page that was signed and notarized.
  10. In 1997, Wexler enrolled his school age children into private school in Maryland.
  11. On the Affidavit of Grantee as First-Time Maryland Home Buyer Regarding Exception from State Transfer Tax, dated 8/20/97, Wexler and his wife, being duly sworn, deposed and said under oath pursuant to Maryland Code Annotated, Tax Property Article, Section 13-203 (b) the “The real property described above is improved by a residence in which each Grantee herein will occupy as the Grantee’s principal residence…”
  12. Wexler has not owned any other property in Maryland establishing that his residence at 7708 Ivymount Terrace, Potomac, MD 20854 has been his only principal residence since 1997
  13. On November 18, 1998, Wexler and his wife signed a title document for his property that stated, “This is a refinance of a prior Deed of Trust on the borrower(s) principal place of residence.”
  14. On a recorded Deed of Trust that was filed with Montgomery County that was duly signed by Wexler and witnessed by a notary, the Uniform Covenants, section 6, Wexler agrees that he shall, “occupy, establish and use the property as Borrower’s principal residence within sixty days after the execution of the Security Instrument and shall continue to occupy the Property as Borrower’s principal residence for at least on year after the date of occupancy…”
  15. On a Home Equity Credit Line Agreement and Deed of Trust, signed by Wexler and his wife, dated May 19, 2004 and notarized, section 11 on the State of Maryland Land Instrument Intake Sheet asks, “Will the property being conveyed be the grantee’s principal address?”  The box attached to this question is checked “YES”
  16. On all of Wexler’s congressional Financial Disclosure Forms, Schedule III – Assets and “Unearned” Income he does not list his home in Potomac, Maryland as an asset.  Block A, Asset and/or Income Source states to exclude “your personal residence(s) (unless there is rental income)”; verifying that his home in Maryland is, indeed, his personal residence
  17. By Wexler’s own admission, he enrolled his children, full time, into a Jewish Day School where he listed his address as the address in Potomac, Maryland and the form indicates that the children “live” with their parents at that address
  18. By Wexler’s own admission  he “established” his residency at his in-laws address in 1998 and 1999 at 23316 Alora Drive, Boca Raton, Florida
  19. By Wexler’s own admission  he “re-established” his residency at his in-laws house at 7370 Viale Caterina, Delray Beach, Florida.  This is a 3 bedroom, 2 bathroom house in a deeded 55 and older, gated community that does not allow children under the age of 18 to live there for more than 60 days, cumulatively making it impossible for him to live there with his wife and children or return to that property when he is not present as is required by Florida residency requirements
  20. Wexler and his wife list his in-law’s  address as their residence for the purpose of obtaining their driver’s licenses, their voter  registration, their automobile registration and their automobile insurance as well as qualifying for the ballot since they first listed it
  21. Wexler and his wife own 2 automobiles, a 2003 and a 2005 Volvo that they drive and store full time at their home in Maryland
  22. By Wexler’s own admission, he can not afford to own two homes, therefore he owns no property in the State of Florida
  23. By Wexler’s own admission, he and his family attend an Orthodox Synagogue in Maryland
  24. Wexler and his wife do not pay for utilities in Florida
  25. Wexler and his wife are not listed in the phone book in Florida
  26. Wexler and his wife are listed in the Maryland phone book at 7708 Ivymount Terrace, Potomac, Maryland
  27. Florida Statutes, provides for voter registration in a certain precinct when an elector is temporarily residing out of the precinct, but does not apply to the Wexler’s because their move is permanent and there is no intent to return to an address that they never lived at and their return to Palm Beach County is speculative, at best.  In addition, their move was not temporary since they have their children in school in Maryland and they have been residents of Maryland for the past 11 years.  This is especially due to the fact that Wexler, his wife and his children would not be allowed by law to reside at the address that Wexler and his wife have been using to register to vote at since 1999, at Wexler’s in-laws house.
  28. Mrs. Wexler has voted by absentee ballot since 1998
  29. Wexler has voted by absentee ballot 2 times in 2004 and once in 2002
  30. Neither Wexler nor his wife have filled out and filed a Declaration of Domicile in the State of Florida
  31. According to Maryland law, a person is required to obtain a driver’s license within 60 days after becoming a Maryland resident, the Wexlers have Florida drivers licenses
  32. According to the Maryland Department of Motor Vehicles, once a vehicle is in the state for more than 60 days out of one calendar year, a person is required to register it in the state and maintain Maryland insurance on that vehicle, the Wexlers maintain Florida registration and insurance on their vehicles which they keep permanently in Potomac, Maryland
  33. According to the Maryland Division of Taxation, a resident of Maryland is obligated to pay Maryland State income tax, the Wexlers have not paid Maryland state income tax
  34. Lawrence and Roslyn Cohen have not and do not claim additional income from renting Wexler a room in their home
  35. Wexler issued a press release July 2008 in response to a press release issued questioning his residency where he admitted that he and his family “moved” to Maryland in 1997 and that he did not know that he was filling out paperwork indicating that his home in Maryland would be his “Principal Residence” due to the fact that he was confused by having to sign so many papers and that when he realized his error, 6 years later (in 2003), her corrected the “error”
  36. Wexler is an attorney and a congressman and is familiar with the law and mortgage documents

 

FLORIDA STATUTES AND RULINGS REGARDING RESIDENCY

 

  1. FS222.17 states that a person can show intent to maintain a Florida residence as a permanent home by filling a sworn Declaration of Domicile with the clerk of the court.  The statute does not exclude concurrent ownership of a residence in another state provided that primary residence is claimed only in Florida.

 

  1. Summary Opinion on Voter Residency DE 78-27 – June 2, 1978:  A person’s residency for voting purposes is where he or she intends to maintain permanent domicile at that time to the exclusion of any other location.

 

  1. Opinion DE 88-34 – August 16, 1988 Section 97.091(1),Florida Statutes, provides for voter registration in a certain precinct when an elector is temporarily residing out of the precinct, does not apply here because the voter‘s move is permanent and his intent to return to Jefferson County is speculative. Case law discussing, this question is scarce. However, in Felker v. Henderson, 78 N.H. 509, 102 A 623 (N.H. 1917) the court held that one who married and established a home in another jurisdiction could not retain his former residence by a mere intent to return to it if certain events occurred. As in Felker, the facts of this case indicate that the voter has moved his permanent place of residence to Madison County and plans to stay there for an indefinite time. His speculative return to Jefferson County is not enough to satisfy the requirements in Section

 

  1. “No person shall be permitted to vote in any election precinct or district other than the one in which he has his permanent place of residence and in which he is registered; provide however that persons temporarily residing outside of the county shall be registered in the precinct in which the county courthouse is located when they have no permanent address in the county and it is their intention to remain a resident of Florida and of the county in which they are registered to vote.” S. 97.091(1), “F.S. (e.s.).

 

  1. FS196.012 defines a permanent residence as “that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning.”

 

  1. Op. Div. Elect. Fla. 80-27 (August 27, 1980); Walker v. Harris, 398 So. 2d 955 (Fla. 4th DCA 1981); and Cruickshank v. Cruickshank, 420 So. 2d 914 (Fla. 1st DCA 1982) states that no provision of the Florida Election Code defines legal residency.  However, Florida courts have consistently construed legal residence to mean a permanent residence, domicile, or permanent abode, rather than a residence that is temporary.

 

  1. Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364 (Fla. 1955), the Florida Supreme Court stated:  [W]here a good faith intention is coupled with an actual removal evidenced by positive overt acts, then the change of residence is accomplished and becomes effective.  This is so because legal residence consists of the concurrence of both fact and intention.  The bona fides of the intention is a highly significant factor.  Summary:  An individual has established legal residency for voter registration purposes in a county when he physically moves to the county with the intent of making that county his permanent home.

 

  1. Jennifer Davis, a spokeswoman for Secretary of State, Kurt Browning, said the office usually forwards complaints about a voter’s residency to state law enforcement to investigate and that each case must be reviewed based on its own circumstances.  A 1993 opinion from the office said a person’s intent to be a resident is not good enough to meet the voting requirement, but that there must be evidence such as a state driver’s license, tax receipts, a local bank account, relocation of personal items or the purchase or rental of a home.

 

UNITED STATES CONSTITUTION

 

  1. Article I, Section 2. No person shall be a representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

 

MARYLAND STATUTES AND RULINGS REGARDING RESIDENCY

 

  1. Code of Maryland Regulations 03.04.02.01B briefly stated, and individual is a resident of Maryland if the individual is domiciled in Maryland on the last day of the taxable year or the individual maintains a place of abode in Maryland for more than six months of the taxable year and is physically present in the State for 183 days or more during the taxable year.

 

  1. Blount v. Boston, 351 Md. 367, 367 (1998) Domicile is defined as, “that place where a man has his true fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place, he has, whenever he is absent, the intention of returning.”

 

  1. Comptroller v. Lenderking, 268 Md. 613, 617-618 (1973), the Court stated: “Although we recognize that a change of domicile is an exercise of the mind, …Shenton v. Abbott, 178 Md. 526, 534 (1940), the cerebration must be supported by, or at least not be at variance with, extrinsic circumstance.  Moreover, there may be a sharp distinction between a change of domicile and a change of residence, Shenton v. Abbott, supra, 178 Md. At 530-31.”  Intent must be supported by action.  An individual must take specific actions to change the person domicile.  The individual must be physically present in the new domicile and must establish ties that create the new domicile, while severing ties with the old domicile.  Some criteria used to determine a person’s domicile include home, time, items near and dear, active business involvement, and family connections.

 

  1. Code of Maryland Regulations 11.11.06.02 A.  An individual who owns, leases, or rents a primary place of residence in this State is a resident if the individual is domiciled in (1) This State; or (2)Another state but lives in a primary place of residence in this State for more than 1 year.

 

  1. Code of Maryland Regulations 11.11.06.02 C. An individual domiciled in another state is a resident of Maryland if the individual: (1)Owns, leases, or rents a primary place of residence in Maryland form more than 1 year

 

  1. Maryland Income Tax Administrative Release:  Any individual who maintains a place of abode in Maryland and spends in the aggregate 183 days or more in Maryland is considered a resident for Maryland personal income tax purposes and must file a Maryland Resident Personal Income Tax Return

 

MISCELLANEOUS RULINGS REGARDING RESIDENCY IN FLORIDA

 

  1. Matter of Silverman, supra, citing Matter of Trowbridge, supra Determination DTA No. 817952 :  In the present matter, petitioners obtained a Florida driver’s license and a motor vehicle identification card, registered to vote in Florida, filed homestead exemption and exemption from ad valorem tax in Florida, executed new wills with their Florida address and filed their income tax returns using the Florida address.  In reviewing the acts of a taxpayer alleging a change in domicile, formal declarations have been held to be “less persuasive than the informal acts of an individual’s general habit of life.”  In summary, petitioners’ declaration of a Florida domicile is undermined by their general habit of life in which New York remained their permanent home.

 

COUNT ONE

VIOLATION OF THE UNITED STATES CONSTITUTION

ARTICLE I, SECTION II

 

  1. Plaintiff hereby incorporates 1 through 64 as if fully set forth herein.
  2. The United States Constitution, Article I, Section II states:

“No person shall be a representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”

  1. Wexler has violated this clause in every election since 1996 (1998, 2000, 2002, 2004, 2006 2008), since he has been an inhabitant of the State of Maryland according to Maryland Law and residency requirements and has not been an inhabitant of Florida.

 

 

WHEREFORE, Plaintiff respectfully prays that this Court:

A.    Declare that Defendant Wexler is ineligible to run for United States House of Representatives to represent the State of Florida since he is an inhabitant of the State of Maryland under the United States Constitution, Article I, Section II and has been since 1997 and for the election years 1998, 2000, 2002, 2004, 2006 and 2008.

B.     Preliminarily and permanently enjoin Defendant Wexler from running for United States House of Representatives to represent the State of Florida

C.     Preliminarily and permanently enjoin Defendant Wexler from being placed on the ballot in the State of Florida due to the fact that Wexler has been and is an inhabitant of the State of Maryland

 

COUNT TWO

FRAUD

 

  1. Plaintiff hereby incorporates Paragraphs 1 through 67 as if fully set forth herein.
  2. Wexler committed Fraud upon Plaintiff and the citizens of Florida and District 19 by running for United States House of Representatives purporting to represent Florida congressional District 19 claiming to be eligible and an inhabitant of the State of Florida knowing that he was not eligible as a result of him admitting and actually being an inhabitant of the State of Maryland
  3. Wexler further committed Fraud upon Plaintiff and the citizens of Florida and District 19 by falsifying his residency as a place that he does not “live” at and is within a gated 55 and older community while knowing this information to be false.
  4. Wexler committed fraud upon Plaintiff and the citizens of Florida and District 19 by indicating to the Supervisor of Elections that his intent was to move “back” to a residence that he never lived at and according to the terms of the homeowner’s association documents in the gated, 55 and older retirement community, is not allowed to reside at with his family and minor children, while knowing this information to be false.
  5. Wexler committed Fraud upon Plaintiff and the citizens of Florida and District 19 by voting in Florida by using an address where he does not live, knowing that he was a resident and inhabitant of the State of Maryland
  6. Wexler committed Fraud and/or conspiracy to commit Fraud upon Plaintiff and the citizens of Florida and District 19 by allowing his wife to vote in Florida via absentee ballot knowing that his wife was a resident and inhabitant of the State of Maryland and not the State of Florida
  7. Wexler committed Fraud upon Plaintiff and the citizens of Florida and District 19 and the State of Maryland by not filing state income tax returns and not paying Maryland state income taxes as a resident and inhabitant of the State of Maryland, while knowing he was illegally using an address where he knowingly did not live

 

  WHEREFORE, Plaintiff respectfully prays that this Court:

A.    Declare that Defendant Wexler is ineligible to run for United States House of Representatives to represent the State of Florida since he fraudulently claimed that he was an inhabitant of the State of Florida while he, knowingly was an inhabitant of the State of Maryland under the United States Constitution, Article I, Section II for the election years 1998, 2000, 2002, 2004, 2006 and 2008.

B.     Declare that Defendant Wexler has not been eligible to run for United States House of Representatives to represent the State of Florida for knowingly committing fraud claiming that he was an inhabitant of the State of Florida while he was an inhabitant and resident of the State of Maryland, and should not be a congressman.

C.     Preliminarily and permanently enjoin Defendant Wexler from running for United States House of Representatives to represent the State of Florida

D.    Preliminarily and permanently enjoin Defendant Wexler from being placed on the ballot in the State of Florida due to the fact that Wexler has been and is an inhabitant of the State of Maryland

E.     Award Plaintiff such costs and fees pursuant to 42 U.S.C. 1988 and other applicable by law; and

F.      Grant Plaintiff such other and further relief as the Court deems just and proper.

 

 

Paid for and authorized by Lynch For Congress

www.wexlersweb.com