Florida Bar Seeks Discipline Against Removed Former County Judge

Jacek Stramski

The saga involving former Leon County Judge Judith Hawkins has not ended following her removal from the bench for, among other things, using her office to run a private business by selling a self-published book and for tampering with and concealing evidence from the Judicial Qualifications Commission during its investigation of her actions.

On February 23, the Florida Bar filed a complaint against Judith Hawkins under Rule 3-3.2(b)(6) of the Rules Regulating the Florida Bar, which allows the filing of a complaint against a former judge if the Supreme Court has found a judge guilty of misconduct, the person is removed from the bench, and the facts warrant imposing disciplinary sanctions. The Bar complaint charges that Ms. Hawkins’ actions constituted a lack of candor toward a tribunal, constituted criminal actions, adversely reflected on her ability to practice law, and involved conduct involving dishonesty, fraud, deceit, or misrepresentation.

No answer has been filed yet. The docket can be found here.

Court Considers What Must be in a Return of Service of Process

Kristen Larson

On February 5, the Florida Supreme Court issued its opinion in Koster v. Sullivan (SC13-159). The main question was over the facts regarding the manner of service that a return of service was required to list in order for service to be presumed valid. Section 48.21, Florida Statutes, invalidates service of process if its return of service fails to state: the date and time that the documents were received by the process server; the date and time they were served; the manner of service; the name of the person they were served upon; and, if they were served upon a representative, the relationship between the representative and the intended recipient. If the intended recipient is not available, section 48.031(1)(a), Florida Statutes, allows the process server to leave the complaint with a resident of the household provided that the individual is at least fifteen years old and is informed of the contents. Koster contended that the return of service was required to list the section 48.031 factors in addition to those prescribed by section 48.21.

In 2009, Sullivan hired a process server to serve a complaint and summons on Koster. The process server delivered the documents at Koster’s place of residence but Koster was not home. The documents were instead left with Koster’s sister-in-law. Koster failed to respond to the pleadings and a default judgment was entered against him. Although service on Koster’s sister-in-law met the requirements of section 48.031, Florida Statutes, the return of service did not specifically state that Koster’s sister-in-law was at least fifteen years old and was informed of the contents. Therefore, Koster motioned the trial court to set aside the judgment, claiming that the service was facially defective. However, the trial court found that Koster failed to “meet the clear and convincing evidence standard to rebut the presumption that service was proper and denied his motion.” Opinion page 3. The Second District Court of Appeal upheld the trial court’s decision.

The issue raised required the Court to interpret the statute by looking at legislative intent. When determining legislative intent, the Court must first “look to the actual language used in the statute.” Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000). If the language is clear and unambiguous then the Court must abide by its plain meaning. Id. Because the language of section 48.21, Florida Statutes, is unambiguous about the information to be included on a return of service, the Court determined that it did not have the discretion to require additional information.

Moreover, the Court found that although service of process is essential to the legal system and thus necessitates strict adherence to any statutorily proscribed requirements, “strict construction” does not support reading additional requirements into the express language of a statute.” Opinion page 6. Because the legislature clearly outlined the information to be included on a return of service in section 48.21, Florida Statutes, and because this section makes no reference to the requirements of section 48.031, Florida Statutes, the Court determined that “section 48.21 cannot be strictly read to require that the factors in section 48.031(1)(a) be specified.” Opinion page 7. Therefore, the Court upheld the validity of Sullivan’s service on Koster.

Family Law and Judicial Administration Rule and Jury Instruction Changes Adopted

Kristen Larson

On January 22, the Court adopted notable changes to rules of family procedure and judicial administration and jury instructions.

Florida Family Law Rule of Procedure 12.451 was adopted to mirror Florida Civil Rule of Procedure 1.451, which allows testimony to be given via audio or video equipment provided that either all parties agree or provided that all parties have been given adequate notice and that good cause is shown. Both the Court and the Florida Bar’s Family Law Rules Committee passed the rule unanimously. Neither the Court nor the Committee published comments on the rule.

The Supreme Court of Florida also approved the Florida Bar’s Rules of Judicial Administration Committee’s proposed amendments to the Florida Rule of Judicial Administration 2.420. The amendment adds “forensic behavioral health evaluations under Chapter 916” and “eligibility screening, substance abuse screening, behavioral health evaluations, and treatment status reports for defendants referred to or considered for referral to a drug court program” to the list of information automatically designated by court clerks as confidential. Opinion at page 2. The amendments are based on chapters 2014-67 and 2014-174, Laws of Florida. The Court is allowing interested parties to submit comments until March 23, 2015.

The Supreme Court additionally approved proposed changes from the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to jury instructions for Kidnapping (9.1) and False Imprisonment (9.2). The changes add “Human Trafficking for Commercial Sexual Activity in which a Child under the Age of 18 or a Mentally Defective Person or a Mentally Incapacitated Person was Involved” to the list of crimes that can be considered aggravating circumstances. Opinion at page 2. This change mirrors the recent changes to sections 787.01(3)(a) and 787.02(3)(a), Florida Statutes (2014). The Court is allowing interested parties to submit comments until March 23, 2015.

February Oral Arguments: Public Records, Sexual Intercourse, and Bond Validation

Jacek Stramski

The Supreme Court’s February oral argument calendar was just released and a handful of cases will present especially interesting questions to the Court.

On February 3, the Court will hear Board of Trustees, Jacksonville, v. Lee (SC13-1315). The Court will be asked to determine whether there is a good faith exception to s. 119.12, Fla.Stat. which provides for attorney fees where an agency is found to unlawfully restrict access to public records.

Debaun v. Florida (SC13-2336) will be argued on February 4. There, the issue presented will be whether the criminal prohibition in s. 384.42, Fla. Stat. against a person with HIV from having “sexual intercourse” with another applies only to heterosexual vaginal penetration, or whether the statute extends to cover other sexual activity, such as male-male sex as in this case.

Reynolds v. Leon County Energy Improvement District (SC14-710), which will be argued February 5, will be a review of a bond validation proceeding for a special district set up in Leon County to provide financing to homeowners who intend to make energy saving improvements to their homes.

The full oral argument calendar is available here. Video of oral argument will be streaming live on WFSU’s Gavel to Gavel portal here.

Secret Recordings Made by Alleged Victim of Sexual Abuse Prohibited As Evidence

Regina Keenan

On December 11, 2014, the Florida Supreme Court unanimously decided McDade v. State (13-1248).

McDade was arrested and charged with various sex crimes after his then sixteen-year-old stepdaughter (Alleged Victim) reported to the police that he had been sexually abusing her since she was ten years old. The Alleged Victim provided law enforcement with two recordings of her conversations with McDade that supported her testimony of solicitation and child sexual abuse. At trial, McDade objected to introduction of the recordings.

The Supreme Court applied the evidentiary prohibition in chapter 934, Florida Statutes (2010). In chapter 934, the Florida Legislature found that:

In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of intrastate commerce, it is necessary for the Legislature to define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings.

Section 934.01(2), Fla. Stat. [Emphasis added.]

Because this case involves an audio recording, the Court first had to determine whether the recordings are an “oral communication,” which means:

[A]ny oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

Section 934.02(2), Fla. Stat. [Emphasis added.]

In this case, the Alleged Victim made recordings with a concealed device in McDade’s bedroom without his knowledge or consent. The Court concluded the recordings of McDade were “oral communications” under chapter 934 because McDade had the expectation that his communications were not subject to interception and that the facts justified that expectation.

The Court next found that the recordings were unauthorized interceptions because “[n]one of the exceptions [in section 934.03(2)] allow for the interception of conversations based on one’s status as the victim of a crime.” They were prohibited as evidence in court proceedings, and their introduction at trial constituted reversible error. Section 934.06, Fla. Stat.

The Court compared two of its previous cases to support its exclusion of the recordings. In State v. Walls, 356 So.2d 294 (Fla. 1978), the Court applied chapter 934 and prohibited evidence of a recording of alleged criminal activity of extortionary threats made personally by the accused at the alleged victim’s home, as there was a justified expectation that the communication would not be intercepted. Conversely the Court in State v. Inciarrano, 473 So.2d 1272 (Fla. 1985) permitted an audio recording of a murder into evidence. The recording took place in a quasi-public area, in plain sight of a microphone, and was near and accessible to bystanders. Therefore, the recording was not an oral communication governed by chapter 934 as there was not justified expectation by the accused that the recording would not be intercepted.

The Court also found that the boyfriend’s testifimony that the Alleged Victim told him she was sexually abused should have been excluded as hearsay

Thus, the Court concluded that the recordings should have been suppressed under section 934.06 and the boyfriend’s testimony should have been excluded. The opinion of the Second District Court of Appeal in McDade v. State, 114 So.3d 465 (Fla. 2d DCA 2013) was quashed, the case was remanded to reverse McDade’s convictions and sentences, and the Court found that McDade was entitled to a new trial.

All the Court Wants for Christmas is 35 Judgeships

Jacek Stramski

On December 22, 2014, the Supreme Court addressed a holiday wish list to the Legislature pursuant to its constitutional duty to provide an annual report on the need for additional judges. In re: Certification of Need for Additional Judges (SC14-2350).

Given that the state has seen no increase in trial judges since 2007 (and that in spite of the flood of foreclosure litigation that followed the housing crash), it is unsurprising that the Court certified a need for 35 judgeships across the state, including 3 circuit seats and 32 county seats. The Court noted waits of several weeks to schedule motion hearings in some circuits, as well as increased procedural complexity in various types of cases, to justify the need for additional circuit judges. It also noted the loss of traffic infraction hearing officers as driving a need for more county judgeships. Nevertheless, the certified need for new judges is lower than last year, when the Court ceritified a need for 7 circuit judges, 39 county judges, and 3 appellate judges.

In contrast to last year, the Court did not certify a need for additional appellate judges.

The upcoming legislative session will show whether the Legislature thought the Court was naughty or nice, and if any of its requests will be granted.

Do Civil Appeal Harmless Error Findings Require Special Consideration?

Kristen Larson

In Special v. West Boca Medical Center (SC11-2511), the Florida Supreme Court held that the Fourth District Court of Appeal erred in ruling that an error which “more likely than not” did not contribute to the verdict was therefore harmless in a civil appeal. The Court stated that the “test for harmless error requires the beneficiary of the error to prove that there is no reasonable possibility that the error complained of did not contribute to the verdict.” Special v. W. Boca Med. Center, (SC11-2511).

In 2003, Frank Special’s wife, Susan Special, died shortly after giving birth. Susan delivered via C-section, with spinal anesthesia being administered prior to the start of the surgery. Shortly after the placenta was removed she went into cardiac arrest. Although she was resuscitated, she died following another cardiac arrest a few hours later. Frank Special then filed suit against the anesthesiologist (Baux) and hospital (West Boca) alleging that their negligence caused his wife’s death. The defendants claimed that Susan’s death was caused by amniotic fluid embolism (AFE), an allergic reaction when her blood mixed with the amniotic fluid. Both sides presented conflicting expert testimony and the jury found that the defendants were not liable for her death.

Frank Special appealed the decision citing two specific errors: “(1) the exclusion of the proffered testimony of Dr. Gary Dildy, the defense AFE expert; and (2) the exclusion of evidence related to the alleged witness tampering of Dr. Barbara Wolf, the chief deputy medical examiner.” Op. at 5. In regards to the former, Special argued that the jury had been improperly precluded from considering cross-examination testimony regarding a potential over-diagnosis of AFE at the hospital. In regards to the latter, Special argued that he was improperly denied the opportunity to offer evidence that the defense had attempted to intimidate Dr. Wolf (who had performed the autopsy) into altering her testimony by filing a complaint with the Department of Health and through comments made to her attorney by their counsel because she concluded that Susan had not died from AFE. The Fourth DCA applied the “more likely than not” test, deciding that the defendants had met this burden and that the errors were therefore harmless.

The Supreme Court began by referencing section 59.041, Florida Statutes, which states that an error shall be held harmless unless it results in a “miscarriage of justice”. Due to the nature of this test, harmless error is decided on a case-by-case basis. The Court then discussed State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), which established the criminal harmless error test and held that the beneficiary of the error had the burden of proving that there was “no reasonable possibility” that the error resulted in conviction. In order for this to be applied correctly, a court must examine the effect of the error on not only the result, but also on the trier-of-fact. The Court concluded that the DiGuilio “no reasonable possibility” test is appropriate in civil cases as well (substituting “conviction” for “verdict”) because it maintains the “integrity of the process” while also conserving judicial resources, as required by section 59.041, Florida Statutes. Op. at 10.

In reference to the first of the two specific errors cited by Special (the cross examination of the AFE expert), the Court found that the error was not harmless. The Court, quoting the 4th DCA, found that “where the diagnosis is one of exclusion, the frequency with which one comes to that conclusion is a ‘material fact’ bearing upon the credibility of the diagnosis.” Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011). The Court rejected the defendants’ claim that the ability of Special to address the issue during closing arguments negated the effect of precluding the evidence and found that the exclusion of the evidence “hindered Special’s efforts to undermine the credibility” of the central defense offered by Baux and West Boca.

In reference to the second error cited by Special (alleged witness tampering), the Court found that the evidence regarding the Department of Health complaint was correctly precluded because there was an “insufficient factual basis” to attribute the complaint to either of the defendants. However, the Court found that Dr. Wolf’s witness tampering testimony (that she had been informed by her attorney of opposing counsel’s recommendation that she alter her medical testimony in order to avoid being embarrassed when their expert testified to a contrary conclusion) should have been admitted because, as stated in Jost v. Amad, 730 So. 2d 708 (Fla. 2d DCA 1998), excluding testimony of witness tampering would be “fundamentally unfair” and the “threshold question is whether the matter is relevant.” The Court found that Special should have been allowed to introduce the evidence because Dr. Wolf did in fact understand the communications as an attempt at intimidation and because the issue was relevant.

Therefore, the Court reversed the district court’s decision and remanded for further proceedings.

Court Orders Release of Documents in Redistricting Case

John Koeppel

On November 13, the Florida Supreme Court affirmed a trial court ruling which ordered Data Targeting, Inc., its president Pat Bainter, and others (collectively, “non-parties” or “Bainter”) to produce 538 pages of documents subpoenaed in a challenge to the constitutional validity of the Florida Legislature’s 2012 congressional redistricting plan, and held that “any objection to the production of these documents based on a qualified First Amendment privilege has been waived.” Bainter et al. v. League of Women Voters, et al. (SC14-1200). The Court accepted jurisdiction of the appeal of the trial court’s discovery orders after the First District Court of Appeal, in an en banc opinion, passed the appeal directly through to the Florida Supreme Court, per Art. V, § 3(b)(5), Fla. Const. Non-Parties v. League of Women Voters of Fla., 39 Fla. L. Weekly D1300, 2014 WL 2770013 (Fla. 1st DCA June 19, 2014).

The Court reached its conclusion “based on the totality of the circumstances,” which “clearly and conclusively demonstrated the inexcusable delay of non-parties Pat Bainter and his political consulting firm, Data Targeting, Inc., in asserting this qualified privilege.” (Op. at 36).

The Court noted that non-parties received multiple subpoenas duces tecum seeking the documents in question, followed by over six months of hearings and filings seeking same. Bainter, having failed to file a motion for a protective order or raise any legal objection, attended a deposition where “he affirmatively testified under oath that he had conducted ‘a thorough search’ for documents in response to the subpoena and had produced what he found.” Non-parties’ objection to the request for the remainder of the documents was “based solely on the claimed irrelevancy and burdensome nature of the discovery requests.”

“Not until the day after the trial court held the non-parties in contempt of court and ordered them to pay attorney’s fees for failing to produce the documents did the words ‘First Amendment’ appear for the first time in a filing or a hearing transcript in the trial court.”

Accordingly, the Court held that, “based on the totality of the circumstances,” non-parties’ asserted qualified First Amendment privilege had been waived.

The Court also noted that it remains “committed to the principle that ‘all trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records.’” Citing Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 114 (Fla. 1988). Accordingly, the Court ordered that previously sealed transcripts as well as the documents themselves be unsealed and made part of the public record.

When is a Suspicion Founded Sufficiently to Support a Detention?

Kristen Larson

Earlier this month the Florida Supreme Court heard Williams v. State. (SC13-2315). The central issue in this case is whether the Fourth District Court of Appeals erred in affirming the trial court’s admission of evidence that was obtained when a police officer stopped Williams without, as Williams contends, the required reasonable suspicion, based on the totality of the circumstances, to make such a stop.

The facts of the case are as follows: An experienced narcotics officer was conducting an active investigation of an individual in a car where he had seen a crack cocaine pipe in plain view. Williams approached the vehicle to speak with the individual. When the officer acknowledged Williams, Williams began walking away with a closed fist. The officer then attempted to stop Williams, at which point Williams turned around and a bag of cocaine fell out of his hand.

Williams argued that he was detained when the evidence was discovered and that the officer did not have the requisite suspicion to detain him. Williams’s argument that he was detained is based on Dees v. State, 564 So. 2d 1166, 1167 (Fla. 1st DCA), which states that detention occurs when a reasonable person no longer feels free to leave. To make such a stop the officer must have a founded suspicion based on the totality of the circumstances surrounding the stop. Williams argued that merely speaking to an individual in a parked car, with a clenched fist, was not enough for a founded suspicion. Further, Williams cited to Hollinger v. State, 620 So. 2d 1242 (Fla. 1993), which held that contraband dropped during an illegal stop must be suppressed. Therefore, Petitioner contends that the evidence obtained from the illegal seizure should have been suppressed.

The State contended that Williams approached a person who was under active investigation by the officer, thus distinguishing this case from the cases cited by Williams. Further, the State argued that the reviewing court should defer to the trial court’s decision when a trial court hears a motion to suppress, and that the officer had founded suspicion because: “1) it was 1 a.m. in a dark parking lot; 2) an ongoing criminal investigation was occurring after a crack pipe had been discovered; 3) Petitioner [Williams], in the immediate presence of the police, began to engage the subject of the investigation who was being detained; and, 4) when asked what he was doing turning to the inquiring police officer and began to walk away with a clenched fist.” (Ans. Br. At pg 13). Thus, in light of the officer’s experience, the state argued that the totality of the circumstances supported a finding of a reasonable suspicion. Alternatively, the State asked the Court to consider whether the drop happened before the stop, thus making the evidence obtained not subject to the founded suspicion requirement.

Video of the argument is available here.

Court Amends Florida Rules of Appellate Procedure

Jacek Stramski

On November 6, the Florida Supreme Court adopted changes to a number of the Florida Rules of Appellate Procedure. In re: Amendments to the Florida Rules of Appellate Procedure (SC14-227). Some changes of note:

Rule 9.020(i) was amended “to eliminate the language providing that postjudgment motions are abandoned upon the filing of a notice of appeal, [and instead] allow an appeal to be held in abeyance until disposition of a postjudgment motion.”

Rule 9.100 was amended to reflect that appellate courts have “the discretion to request a response to a petition for writ of prohibition without bringing the proceedings in the lower tribunal to a halt…”

Rule 9.110(k), which relates to the appeal of partial final judgments, was amended to specify that “[a] partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.”

The Court also adopted an amendment to rule 9.420 to provide that the time of a filing of a pro se inmate will be presumed to be the time that the document is recorded by an institution as recieved for mailing if the institution has a legal mail system that records such a time.