Florida Supreme Court Justice Case Dismissed on Ripeness Grounds

cropped-fl-supreme-court-image_from_istockphoto_paid1.jpgThe 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.

SCOTUS Affirms Sanction of Florida Judicial Candidate

1stAmOn 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.

LYNX Surveillance Footage Exempt from Public Inspection

bus insideIn 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

tmobileOn 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.

Orange County Sanctioned for Frivolous Appeal

sanctionsIn a scathing opinion issued on December 12, 2014, the Fifth District Court of Appeal took Orange County and its attorney to task for its appeal of an order awarding attorneys fees in connection with the County’s violation of public records laws.  Orange County, Florida v. Hewlings, Case No. 5D13-3775 (5th DCA December 12, 2014).

As recited in the opinion, the case involved a records request in connection with the investigation of the appellee’s dog by the county’s animal services division.  Appellee repeatedly requested copies of all the county’s records with respect to the investigation, and offered to pay the costs of copies.  The requests were ignored for so long that the appellee filed a petition for writ of mandamus, which was granted,  however the appellee’s request for attorneys’ fees was denied. Appellee appealed the trial court’s denial of her request for attorneys’ fees.  The Fifth DCA reversed–determining that the county’s delay in furnishing records “was tantamount to a refusing to comply”–and remanded for further consideration by the trial court to determine whether the county had “unreasonably delayed” complying with the records request.

On remand the trial court found that the county had, indeed, unreasonably delayed compliance.  The county appealed the order on remand, but did not challenge the trial court’s finding of unreasonable delay.  Rather, the county re-raised the very same issues decided in the first appeal–arguing that the delay in compliance was not a refusal to comply.

In its opinion the Fifth DCA stated, “It is as if counsel for Appellant, who was the same counsel in Hewlings I, slept through the entire prior appellate proceeding and then failed to read either the opinion or order.” The county’s attempt to re-argue the same question of law previously decided by the Court (the “law of the case”) was not well taken.  “Appellant’s suggestion that it may incrementally dole out its arguments pertaining to the meaning of a single statute in separate appeals borders on ludicrous.”

Holding that the case was a “textbook example of why the legislature authorized an award of fees against obstinate public entities,”  the court ultimately sanctioned the County for what it deemed a “frivolous and abusive appeal,” and granted the appellee her appellate attorneys’ fees.

SCOTUS Denies BP’s Appeal of Gulf Spill Settlement

ID-10051435On December 8, 2014, the Supreme Court denied a petition for writ certiorari filed by BP Exploration & Production. Through its petition, BP sought to set aside a settlement agreement it reached with parties to a class action lawsuit over the devastation caused by the Deepwater Horizon explosion and oil spill. The primary basis cited by BP in the petition was that the certified class included numerous members who had not suffered any injury. At issue was the fact that claimants seeking to recover monies from the settlement were not being required to demonstrate by evidence that their claims arose from the oil spill. Opponents to the petition argued that BP was ‘switching sides’ have advocated in favor of the district court’s adopting settlement agreement.

The denial of the petition means that BP is bound by the terms of the settlement agreement, and that claimants will receive compensation regardless of whether they actually suffered economic damages as a result of the spill.