Florida Supreme Court Justice Case Dismissed on Ripeness Grounds

The Florida Supreme Court, in a per curiam decision, dismissed a petition seeking quo warranto relief brought by the Florida League of Women Voters challenging Governor Rick Scott’s ability to appoint three new Supreme Court Justices, to replace three who will have reached the age of mandatory retirement, before he leaves office in 2019.   Read the opinion here.

The ruling, issued today, determined that the case was not ripe for consideration because “[a]though Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made.”  “Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.”

Based on this ruling, the Court will not consider the matter on the merits unless and until Governor Scott follows through on his plans to appoint the replacement justices before leaving office.  In such an event, the petition is likely to be refilled, which could likely mean that 3 of 7 justices will be recused from hearing the petition–potentially creating a deadlock.

The dismissal also renders moot a pending effort to recuse one of the justices from the case.  The Governor had been pushing the court to recuse Justice Barbara Pariente, one of the outgoing retirees, from ruling on the case because of remarks overheard on a hot microphone following oral argument.  Justice Pariente agreed with the dismissal, but she concurred with Justice Quince, who expressed her belief that the gubernatorial appointment need have occurred before the issue is ripe for consideration.  Justice Lewis disagreed with the ruling entirely in a vociferous dissent.

The Perils of De Novo Review

Florida’s Third District Court of Appeal issued an opinion today that highlights the perils of de novo review.  De novo review is the broadest standard of review for an appellate court, reserved for construing pure matters of law, and is often an appellant’s best opportunity for reversal.  In Deutsche Bank National Trust Company v. de Brito, Case No. 3D16-1466 (Fla. 3d DCA November 8, 2017), the court reversed a post-trial order of involuntary dismissal in a mortgage foreclosure action.  Why?  Because under the de novo standard of review, the court was allowed to review the facts and evidence anew, and determined that the trial court was wrong in concluding that the bank’s witness testimony concerning business records was hearsay.  The court also determined that the key defense prompting the dismissal–the failure of the bank to provide notice of a rate increase–was never actually plead by the defendants.   This opinion highlights the inherent risks of defending an appeal with de novo standard review–the most favorable standard of review for an appellant.  Read the full opinion here.

Lowndes Attorneys Obtain Favorable Rulings for Court-Appointed Receiver

Orlando, FL–Lowndes, Drosdick, Doster, Kantor & Reed, P.A. is pleased to announce that shareholder, Richard Dellinger, and appellate attorney, Jennifer R. Dixon, prevailed in defending a client appointed to serve as a receiver in proceedings brought by the Securities & Exchange Commission (the “SEC”).  The SEC action involved allegations of fraud and violations of the Securities Exchange Act by a public company.  In an unpublished opinion, in Securities & Exchange Commission vs. North American Clearing, Inc., the Eleventh Circuit Court of Appeals affirmed the U.S. District Court for the Middle District of Florida, which twice denied the accused’s requests to sue the receiver and the court-appointed trustee, pursuant to Barton v. Barbour, 104 U.S. 126 (1881), for acts undertaken during the SEC proceeding.  The district court found, and the appellate court affirmed, that the alleged acts of the receiver were within the scope of the receiver’s authority, shielding the receiver from liability. Attorney Dellinger represented the receiver in proceedings before the district court.  Attorney Dixon defended the appeal.

Noteworthy in the unpublished opinion was the Court’s determination of the standard of review for a challenge to the denial of a Barton motion—a matter of first impression in the Eleventh Circuit. Citing the Second, Third, Sixth, Seventh and Ninth Circuit Courts of Appeal, the court determined that the standard of review for such motions is abuse of discretion.

Founded in Orlando, Florida in 1969, Lowndes, Drosdick, Doster, Kantor & Reed, P.A. is a multi-practice business law firm. Our attorneys represent corporate, entrepreneurial and individual clients across a myriad of industries locally, nationally and beyond our borders, from offices in Orlando, Mount Dora and Melbourne, and through Meritas, an established global alliance of independent law firms offering local insight, local rates and world-class client service. LOCAL ROOTS. BROAD REACH.SM www.lowndes-law.com

 

SCOTUS Voids Florida’s Death Penalty

Breaking News:  In an 8-1 decision, the Supreme Court of the United States finds that Florida’s death penalty violates the U.S. Constitution in that it takes power that should belong to juries and vests it in trial judges.  Read the details here.

Read the Court’s full opinion here.

Florida’s Highest Court Refuses Webster’s Request for “Seat at the Table”

Today, the Supreme Court of Florida entered an order denying U.S. Senator, Daniel Webster’s request to intervene in the widely-reported Florida redistricting case, League of Women Voters of Florida, Inc., et al. v. Detzer, Case No.  SC14-1905. Webster filed a Motion to Intervene on October 22, 2015, recognizing that “generally intervention is not authorized at the appellate level,” but arguing that “this is an extraordinary case.”

The primary reason given for Webster’s motion to intervene:  “The Congressional District of a sitting United States Congressman is being transmuted into a majority minority district in which he stands no chance of re-election, and he has, to date, not been permitted ‘a seat at the table.'”  Effectively Webster argued that “the Proposed Remedial Plans for District 10 are unconstitutional because they fail to comply with Art. III, § 20’s tier-one requirements for having been drawn with the intent to disfavor a political party or incumbent . . . [and] do not adhere to Art. III, § 20’s tier-two requirements of compactness and utilization of political and geographic boundaries.”  According to Webster’s motion, the plans for District 10 would split Orlando into two districts–a practice that is disfavored under Florida’s Constitution.

The Court denied the Motion to Intervene without opinion.  In light of the “long shot” possibility of appellate intervention in Florida’s state courts, it is possible that Webster simply wanted to plant a seed with the court, as it seems none of the true parties to the case have raised any issue with the Proposed Remedial Plans for District 10.  We will have to stay tuned to learn whether the tactic was effective.

Economic Development in the Sunshine?

The Fifth District Court of Appeal heard oral argument today on the issue of whether the records of the Economic Development Commission of Brevard County are subject to public inspection.  The lower court ruled that such records are subject to public inspection.  The EDC has appealed, arguing that its records should be exempt from the public records law.  Read more about today’s oral arguments HERE.  Check back for further developments on this case.

SCOTUS Affirms Sanction of Florida Judicial Candidate

On April 29, 2015, the Supreme Court of the United States affirmed a Florida Supreme Court decision upholding disciplinary sanctions against Lanell Williams-Yulee, a candidate for County Court Judge in Hillsborough County.  See Williams-Yulee v. Florida Bar, Case No. 13-1499 (2014); Florida Bar v. Williams-Yulee, 138 So.3d 379 (Fla. 2014).  Williams-Yulee was disciplined by the Florida Bar for violating a Florida Bar Rule that requires judicial candidates to comply with Canon 7C(1), Code of Judicial Conduct.  Canon 7C(1) prohibits judicial candidates from “personally solict[ing] campaign funds.”  Williams-Yulee was found to have violated the rule when she mailed and posted online a letter soliciting campaign contributions.  SCOTUS undertook review after Williams-Yulee asserted that the solicitation letters were protected by the First Amendment.  The 5-4 decision, which drew dissents from Justices Scalia, Thomas, Kennedy and Alito, held that Canon 7C(1) was narrowly tailored to serve a compelling State interest–preserving public confidence in the integrity of the judiciary.  The majority said, “[I]t is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between jducial jandidates and campaign contributions.”  The dissenting opinions provide some interesting fodder for debate.  For example, Justices Scalia and Thomas called Canon 7C(1) a “wildly disproportionate restriction upon speech.”  In their opinion, “banning candidates from asking for money personally ‘favors some candidates over others–incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.”

The full opinion can be read here.

New Rules Bring New Requirements in the Fifth DCA

If you are a registered filer with e-DCA, you may have received this notice from the Fifth DCA last week.  Because of changes to the Florida Rules of Appellate Procedure, attorneys are now required to notify the appellate court when there is a pending motion in the trial court that delays rendition of a final order.  In the civil/family law contexts, such motions would include motions for new trial, for rehearing, for certification, to alter or amend the final judgment, for judgment in accordance with prior motion for directed verdict, for arrest of judgment, to challenge the verdict, or to vacate an order based upon recommendation of a hearing officer pursuant to Fla. Family Law Rule of Procedure 12.491.

Previously, the filing of a notice of appeal while a post-trial motion was pending resulted in abandonment of the motion.  On January 1, 2015, Rule 9.020(j) was amended such that, if a notice of appeal is timely filed before adjudication of a post-trial motion, the appeal is held in abeyance until the trial court has ruled on the motion.  To facilitate the administration of the new rule, the Fifth DCA has adopted the requirement that attorneys must notify the appellate court when such a motion is pending in the trial court, and when an order disposing of the motion has been entered.

At this point, only the 5^th DCA has adopted this formal requirement, but other courts will likely follow suit.  In any event, it’s good practice to ensure the appeal is abated. 

LYNX Surveillance Footage Exempt from Public Inspection

In a surprising opinion issued on January 30, 2015, which promises to have a wide-reaching effect, the Fifth District Court of Appeal overturned a declaratory judgment entered in favor of WKMG-TV Local 6, and determined that surveillance footage is exempt from inspection under Florida’s Public Records Act, Chapter 119, Florida Statutes.

The controversy began when WKMG requested access to surveillance footage taken from buses operated by the Central Florida Regional Transportation Authority (“LYNX”). Relying upon a narrow exception articulated in sections 119.071(3)(a) and 281.301, Florida Statutes, LYNX argued that the footage from its buses is exempt from inspection because the footage constitutes “records, information, photographs, audio and visual presentations . . . relating directly to the physical security of the facility or revealing security systems,” which are confidential and exempt from disclosure under the Public Records Act.

The trial court ruled in favor of WKMG holding that the footage did not fall within the statutory exemption because the video did not reveal information concerning the “security system plan,” nor did the footage relate directly to or reveal LYNX’s security system. Moreover, to the extent that the footage revealed or related to the existence of a security system, which is open and notoriously disclosed on every bus, and LYNX’s security concerns were de minimus and did not overcome the strong public policy in favor of access to public records.

The Fifth District, relying on what it deemed the “plain language” of the statute, reversed the trial court. “We agree with LYNX that the video footage captured by the bus camera directly relates to and reveals information about a security system.” While WKMG argued that the bus footage revealed nothing about the security system itself, the appellate court disagreed. “The videos, which are records, reveal the capabilities—and as a corollary, the vulnerabilities—of the current system.” Declining to analyze the legislative history, the court determined that the footage clearly fell within the plain language of the statutory exemption, and held that security footage is not subject to inspection under the Public Records Act.

In light of the media’s interest in obtaining this kind of footage, this is likely not the last we will hear on this issue. Do you think the appellate court got it right? Leave a comment and let us know.

 

U.S. Supreme Court Victory for T-Mobile

On January 14, 2015, the U.S. Supreme Court issued an opinion in T-Mobile South, LLC v. City of Roswell, Georgia, Case No. 13-975, reversing a decision of the Eleventh Circuit Court of Appeals.  At issue:  whether an application to construct a cell phone tower on residential property was properly denied after a public hearing.  T-Mobile argued that the denial was not supported by competent substantial evidence.  The District Court agreed, holding that minutes from the public hearing, published 26 days after the hearing, were insufficient under the Telecommunications Act of 1996 (the “Act”), which requires a locality’s denial of an application thereunder to be “in writing and supported by substantial evidence contained in a written record.”  The Eleventh Circuit reversed, in accordance with its precedent, and determined that the city’s denial letter and written transcript were sufficient under the Act.

In its opinion, delivered by Justice Sotomayor, the U.S. Supreme Court did what it rarely does, and set forth a procedural outline for localities to comply with the Act.  It held that, under the Act, a locality must state, in writing, the reasons for denying applications to build cell phone towers.  While the locality’s reasons need not be contained in the denial notice itself, there must be some written record issued essentially contemporaneously with the denial, to give a reviewing court sufficient information to determine with the locality’s denial is lawful.

In the case at bar, the City of Roswell’s minutes were deemed to be a sufficient writing memorializing the reason for denial, but because the minutes were not issued for 26 days, it was insufficient under the Act.  The contemporaneous requirement takes into account that the deadline to seek judicial review of a denial is 30 days.

Chief Justice Roberts and Justice Thomas filed dissenting opinions.  A full copy of the opinion can be found here.