Yesterday the Florida Supreme Court issued its much anticipated opinion in Public Defender, Eleventh Judicial Circuit of Florida, et al. v. State of Florida (SC09-1181 and SC10-1349). The 5-2 decision, authored by Justice Quince, considered issues presented from two appeals from the Third District Court of Appeal. The fundamental question at issue was whether an excessive caseload can constitute a sufficient conflict of interest under statutes and the Rules Regulating the Florida Bar to merit the prospective refusal to accept additional cases. Also at issue was whether the State Attorney has standing to oppose a motion for withdrawal by a public defender, whether a public defender could seek to prospectively refuse a class of cases based on conflict, as opposed seeking withdrawal on a case by case basis, and the applicability and constitutionality of s. 27.5303(1)(d), Fla. Stat., which provides that “[i]n no case shall the court approve a withdrawal by the public defender…based solely on the inadequacy of funding or excess workload.”

The issues were originally raised in the 11th Circuit Court, located in Miami-Dade County, by the Public Defender for the Eleventh Judicial Circuit (Public Defender). The Public Defender filed motions for withdrawal from representing indigent clients in 21 criminal cases, certifying a conflict of interest in each case, and claiming that due to caseload and underfunding, the office would not be able to ethically represent those clients. The motions were consolidated and the trial court, after finding that the Public Defender would not be able to provide competent representation in those cases, permitted the Public Defender to withdraw and decline future appointments in third-degree felony cases. The Third DCA ultimately reversed the trial court in State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009), and State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010). The cases were then presented to the Florida Supreme Court for review.

At the Supreme Court the state argued that withdrawal based on conflict requires a case by case factual determination, and that a blanket prospective withdrawal based on ineffective assitance concerns is improper as there are adequate remedies for defendants who were denied effective assistance of counsel through post conviction proceedings. The Public Defender on the other hand (and various amici, including the American Bar Association) argued that prospective and blanket withdrawal was necessary to protect the 6th amendment rights of future defendants, and to ensure that public defenders comply with Rule 4-1.7(a)(2) of the Rules Regulating The Florida Bar, which prohibits representation if there is a substantial risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.

The majority began by noting that a defendant’s right to effective assistance of counsel is guaranteed by both the federal and state constitutions. See Gideon v. Wainwright, 372 U.S. 335 (1963). The right is denied if a defendant’s attorney has a conflict of interest, which can arise with an excessive caseload when taking on another client would harm the ability of the attorney to provide effective assistance to each client. In cases where a public defender has a conflict of interest, the Legislature has provided for the appointment of the Office of Conflict and Civil Regional Counsel. In 2003, however, the Legislature added a provision to the statute dealing with conflict motions by public defenders providing that “[i]n no case shall the court approve a withdrawal by the public defender based solely upon inadequacy of funding or excess workload of the public defender.” Section 27.5303(1)(d), Fla. Stat.

The Court acknowledged that s. 27.5303(1)(d), Fla. Stat. applies to public defenders seeking to prospectively decline cases based on an excessive workload. However, the Court asserted that to read the statute as prohibiting a public defender from withdrawing based on conflict of interest caused by an excessive workload would render the statute unconstitutional as it would encroach on the courts’ exclusive authority to ensure the proper administration of justice in accordance with requirements of due process. While the statute prohibits withdrawal solely on the basis of an excessive workload, if the excessive workload creates a conflict, the statute cannot prevent the withdrawal of a public defender.

The Court additionally held that the issue of ineffective assistance of counsel can be addressed before trial; while there are remedies for ineffective assistance that available post-conviction, the right to an effective attorney is one that can be secured prospectively as well. The Court cited as support Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988): “[a]s the Eleventh Circuit explained, ‘The sixth amendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness” standard may nonetheless violate a defendant’s rights under the sixth amendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of the trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief—whether the defendant is entitled to have his or her conviction overturned—rather than to the question of whether such a right exists and can be protected prospectively.’” The Court pointed out the additional strain on that would be imposed on judicial resources from preventing pre-trial withdrawal, and requiring ineffective assistance of counsel concerns to be reserved for post-conviction proceedings. Also significant was the language of Rule 4-1.7(a)(2) of the Rules Regulating The Florida Bar; the requirement that an attorney not accept a client if there is a “substantial risk” of conflict requires that this restriction apply prior to accepting representation.

Finally, the Court concluded that in cases such as those of the Public Defender for the Eleventh Circuit, where the noncapital felony caseload was in the range of 400 per attorney, where third degree felony attorneys often had as much as 50 cases set for trial in a single week [yikes!], and where as a result attorneys are often unable to conduct investigations, depositions, or interview clients, the problem of conflict could be addressed in a system- and office-wide manner. In particularly stark language, the majority asserted that requiring a case by case approach in such dire circumstances would be “tantamount to applying a band aid to an open head wound.”

The Supreme Court concluded by remanding the case back to the trial court to determine if the conditions in the Public Defender’s office still warrant granting the motion to decline appointments of future third-degree felony cases.

On May 20, 2012, the U.S. Department of Justice (DOJ) filed an amicus curiae brief in the matter of Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar (SC11-2568). That proceeding was initiated by the Florida Board of Bar Examiners, which seeks an advisory opinion as to whether undocumented immigrants are eligible to be licensed to practice law. The amicus brief, filed at the invitation of the Florida Supreme Court, argues that Jose Godinez-Samperio, a graduate of the Florida State University College of Law, and undocumented immigrant who was brought to Florida by his parents when he was nine on a temporary visa and has stayed since, is not eligible for licensure as an attorney in Florida. The Department of Justice relies on 8 U.S.C. sec. 1621, which provides in pertinent part that any undocumented alien is not eligible for “any State or local public benefit”. “Public benefit” in turn includes any “professional license…provided by an agency of a State or local government or by appropriated funds of a State or local government.” While the statute allows states to create categories of aliens that are eligible for state licenses, the statute requires that such categories may only be created by the enactment of state law. No such carve out is applicable to Mr. Godinez-Samperio in Florida.

The Department of Justice noted that the Supreme Court of Florida, which ultimately governs the admission of attorneys to the Florida Bar, is an agency funded by moneys appropriated by a State, and is therefore bound by 8 U.S.C. sec. 1621 in the absence of a carve out created by state law. The federal government went on to point out that the deferred action policy recently announced by the Department of Homeland Security (DHS), whereby certain undocumented immigrants will not be subject to deportation proceedings but will rather receive authorization to work, does not affect the statutory prohibitions imposed by 8 U.S.C. sec. 1621. According to DOJ, while DHS may authorize undocumented workers to work legally in some cases, the deferred action policy does not waive the statutory provisions of 8 U.S.C. sec. 1621.

The online docket of the case is available here. A brief discussion of the positions of the applicant is available here. Oral arguments held in this matter (prior to the participation of the DOJ) are available here. ]]> http://www.flascblog.com/the-u-s-department-of-justice-argues-that-undocumented-immigrant-is-ineligible-to-be-licensed-as-an-attorney-in-florida/feed/ 0 http://www.flascblog.com/florida-statutes-preempt-local-laws-related-to-priority-of-code-enforcement-liens/ http://www.flascblog.com/florida-statutes-preempt-local-laws-related-to-priority-of-code-enforcement-liens/#comments Sat, 18 May 2013 15:58:37 +0000 Jacek Stramski http://www.flascblog.com/?p=329 Continue reading →]]> In City of Palm Bay v. Wells Fargo Bank, N.A. (SC11-830), the Florida Supreme Court held that a municipal ordinance may not establish super-priority status for municipal code enforcement liens.

City of Palm Beach Ordinance 97-07 provides that liens on property created pursuant to an order of the City’s Code Enforcement Board will be coequal with state and local tax liens, and shall be superior to all other liens until paid. Wells Fargo challenged this ordinance, as it would relegate its mortgages to an inferior position with respect to the City’s code enforcement liens. As authority for the ordinance, the City asserted its broad home rule powers. The City argued that it could create exceptions to certain statutory rules governing the priority of liens, as the Legislature made exceptions itself. The trial court and the 5th District Court of Appeal ruled against the City, and held that the Ordinance was invalid.

The Supreme Court began its analysis by examining the Local Government Code Enforcement Boards Act. It pointed out that while s. 162.09, Fla. Stat. permits local code enforcement boards to place liens for fines and repair costs on properties that violate local codes, the statute does not provide for local ordinances to establish priority status for such liens. And, while Art. VIII, sec. 2(b) of the Florida Constitution grants municipalities broad powers to conduct municipal business, those powers are generally limited to the extent they conflict with state law. The Court further noted that the priority of liens is generally governed by s. 695.01, Fla. Stat., which provides in relevant part that no lien on real property shall be valid against subsequent purchasers for value and without notice unless the lien is first recorded.

While the Court recognized that the Legislature has created exceptions to the general rule for the priority of liens (notably for property taxes and special assessment liens), it held that municipalities are preempted from creating additional exceptions to the general statutory rule, as they would otherwise to destroy priority rights that were established by statute. In short, municipalities may not by ordinance affect the priority status of liens unless authority for such an ordinance is explicitly provided for by statute.

In 2007, a child with birth-related neurological injuries was born to the Samples. The Samples filed a claim for compensation with the Division of Administrative Hearings (DOAH) pursuant to the Plan. The Neurological Injury Compensation Association (NICA) set up by the Plan stipulated that the parents’ claim was covered under the Plan. The Plan provides in part for parental compensation of up to $100,000 (in addition to necessary costs of care for the child and other compensation). NICA stipulated that it typically does not dispute payment of the full $100,000 depending on whether a claim is submitted by both parents, or only one.

The Samples argued that the $100,000 cap on parental compensation violated equal protection, was void for vagueness, and impermissibly restricts access to courts. The Court considered each claim in turn.

With respect to equal protection, the court noted that there is no invidious classification or fundamental right implicated by the cap. Accordingly, the cap would be subject to rational basis scrutiny. The Court held that seeking to ensure the actuarial solvency of the Plan was a legitimate state interest. Imposing a cap on parental compensation, without regard to whether one or two parents submitted a claim, was rationally related to pursuing the state interest, and so did not violate equal protection.

The Court next addressed the question of vagueness. The Court pointed out that the void-for-vagueness doctrine is a component of constitutional due process requirements; it is in place to ensure that laws that require or prohibit action be sufficiently clear so that affected persons are aware of what behavior is required or prohibited. The cap was not such a law, and so the vagueness doctrine was not applicable to the cap.

Finally, the Court turned to the question of whether the cap impermissibly restricted the parents’ access to obtain a remedy through the courts, as set forth in Art. I, sec. 21 of the Florida Constitution. The majority pointed out that there are two exceptions to the access to courts provision. The first permits the Legislature to limit access to courts if a reasonable alternative remedy or commensurate benefit is provided. The second exception is met if there is a legislative showing of overpowering public necessity of a limitation and no alternative method of meeting such a necessity is available. Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). The Court concluded that the compensation Plan provides a reasonable alternative to the otherwise speculative and uncertain compensation that parents might receive through traditional tort remedies, and, since the Plan is not the exclusive remedy in cases where there is evidence of bad faith or malicious conduct, the cap’s limit on parental compensation did not impermissibly limit access to courts. ]]> http://www.flascblog.com/parental-compensation-cap-in-the-birth-related-neurological-injury-compensation-plan-is-upheld/feed/ 0 http://www.flascblog.com/statutes-of-limitations-applies-to-arbitration-proceedings/ http://www.flascblog.com/statutes-of-limitations-applies-to-arbitration-proceedings/#comments Sat, 18 May 2013 15:44:07 +0000 Jacek Stramski http://www.flascblog.com/?p=320 Continue reading →]]> In Raymond James Financial Services, Inc. v. Barbara J. Phillips, etc., et al. (SC11-2513) the Florida Supreme Court considered whether the statute of limitations of section 95.11, Fla. Stat., applicable to “civil actions and proceedings” pursuant to s. 95.011, Fla. Stat., apply to arbitration.

The case arose when a group of investors filed a claim for arbitration, pursuant to their contract, against Raymond James for alleged violations of securities laws that resulted in poor investment returns. Raymond James moved to dismiss the arbitration, arguing that the claim was filed after the limitations period provided for in s. 95.11, Fla. Stat. had expired. Before the arbitration panel could consider the motion to dismiss, the investors sought a declaratory judgment in circuit court, arguing that the limitations statute did not apply to arbitration. The circuit court ruled in favor of the investors, holding that an arbitration is not a “civil action or proceeding”. On appeal, the Second District Court of Appeal affirmed the trial court’s order.

The Supreme Court unanimously reversed the lower courts, and explicitly held that the limitations in s. 95.11, Fla. Stat. apply to arbitrations.

The Court started by noting that while s. 95.11 sets out time limits for “actions”, the term “action” is defined in s. 95.011, Fla. Stat. as a “civil action or proceeding”. The Court noted that Black’s Law Dictionary recognizes that a proceeding may include a tribunal, which is defined in turn as an adjudicatory body. As “adjudication” is defined as the legal process of resolving a dispute, and an adjudicator is one who renders binding decisions, the Court concluded that arbitration falls under the scope of a “proceeding” as used in s. 95.011, Fla. Stat. The Court pointed out that there was no indication that term “proceeding” was meant to be limited strictly to judicial proceedings. The Court looked at the reference to “arbitration proceedings” in s. 684.03, Fla. Stat. to bolster the conclusion that “proceeding” in s. 95.011, Fla. Stat. is not limited to judicial proceedings; if the term was meant to be qualified, the Legislature could have done so. Finally, the court pointed out that the public policy purposes of protecting defendants from surprise and stale claims that underlie statutes of limitations would be undermined if the limitations did not apply to arbitrations as well.

The Court started by examining section 366.93, F.S. The Court held that the statutory language that directs the PSC to establish cost recovery mechanisms “for the recovery of costs incurred in the siting, design, licensing, and construction of a nuclear power plant, including new expanded, or relocated electrical transmission lines and facilities that are necessary thereto, or of an integrated gasification combined cycle power plant” provides sufficient standards to determine if the PSC is complying with the statute. The Court noted that the statute only authorizes the PSC to allow the recovery of “prudently incurred costs.” While SACE argued that such language did not provide sufficient standards to provide any real guidance to implement the statutory mandate, and was therefore an improper delegation of legislative power, the Court disagreed, noting that statutes and caselaw have in many cases applied the prudence standard in the context of setting public utility rates.

The Court next examined whether the PSC could have found that FPL and PEF had demonstrated a sufficient intent to build to justify approval of preconstruction cost recovery. The Court noted that since such a finding of intent was a factual issue, SACE would have to show that there was no competent, substantial evidence to support the PSC’s finding if SACE was to prevail. As section 366.93 defined costs as expenses involved in “siting, licensing, design, construction, or operation of a plant”, the utilities would have a right to recover costs if they could establish any of those conditions. The Court concluded that the efforts of FPL and PEF to obtain necessary regulatory approval for the nuclear power plants provided sufficient evidence for the PSC to find an intent to build, and therefore, authorize cost recovery by the utilities.

In recently decided McClain v. Atwater, (SC11-1452), the Supreme Court decided whether a postconviction capital case presents extraordinary or unusual circumstances sufficient to depart from the fee caps for investigative expenses established by Florida Statutes. The Court examined the statutes and held that the case presented extraordinary or unusual circumstances sufficient to justify fees over the $15,000 limit specified in section 27.711(5), Fla. Stat.

Thomas James Moore was convicted of murder stemming from an incident in 1993 and was sentenced to death in 1997. In 2003, Martin McClain became Moore’s registry counsel pursuant to section 27.710, Fla. Stat., which provides a registry of attorneys to represent persons in postconviction capital collateral proceedings. Two years later, McClain contracted with a private investigator to work on Moore’s case. After reviewing the records and files, the investigator interviewed numerous individuals who had been incarcerated with Moore’s codefendants. It was discovered that Moore’s codefendants made statements implying that they had set up Moore and Moore was actually innocent. McClain then filed a postconviction motion in 2006. Five years later, the trial judge ordered an evidentiary hearing, which required the investigator to locate the witnesses again to ensure their testimony had not changed. After the hearing, McClain filed a motion for reimbursement for the investigative fees totaling $16,844, $1,844 over the limit in section 27.711(5), Fla. Stat. McClain claimed the fees were above the cap because they were based on six years of investigation. The Chief Judge of the Fourth Judicial Circuit denied the motion, claiming that McClain had not established that this case was of extraordinary or unusual circumstances sufficient to justify the $1,844 in additional fees. McClain sought review of the order to the Supreme Court.

The Court examined sections 27.710 and 27.711 of the Florida Statutes. Enacted in 1998, these sections establish the fee schedule and provide for a statewide registry of private attorneys to represent indigent death row defendants in postconviction proceedings. Section 27.711(5), Fla. Stat. contains provisions relating to fees in regards to obtaining the help of an investigator of $40 per hour, up to a maximum of $15,000. However, in Olive v. Maas, 811 So. 2d 644 (Fla. 2002), the Court authorized a trial court to award fees in excess of the $15,000 limit in capital cases where extraordinary or unusual circumstances existed. Recognizing the importance of “competent and effective representation,” the Court in Olive wished to prevent the statutory caps from jeopardizing the quality of representation. The majority in the instant case stressed that the proper focus of the court should be the effectiveness of the defendant’s representation, rather than attorney’s right to fair compensation. In determining whether additional fees are justified, the court must conduct an “as applied analysis to determine whether the statutory cap would be confiscatory of the attorney’s time, energy, talent, and resources under the circumstances of the particular case.” In her concurrence, Justice Pariente called on the legislature to review the fee structures to ensure that they are still realistic and sufficient to cover costs, fifteen years after their enactment.

The Court determined that McClain was entitled to reimbursement. While focusing on Moore’s right to effective representation, the court found that the fees were reasonable and necessary to developing his defense. In addition, the five-year period between the motion and the evidentiary hearing weighed heavily as an extraordinary or unusual circumstance. The Court also noted that pursuant 27.711(4) of the Florida Statutes, an attorney is entitled to $100 per hour. McClain actually saved the State $60 per hour by hiring an investigator to perform those tasks. The Court concluded that the circumstances in the case at hand were extraordinary and unusual and justified departure from the statutory limits.

In DK Arena, Inc. v. EB Acquisitions I, LLC (SC10-897), the Florida Supreme Court reaffirmed the Florida rule that promissory estoppel does not create an exception to the Statute of Frauds. The Statute of Frauds, codified in Florida since 1828, provides in pertinent part that no one may bring an action against another involving the sale of lands (and certain other circumstances) unless there exists a writing that memorializes the agreement and is signed by the person against whom enforcement is sought. Section 725.01, Fla. Stat.

In 2004, EB Acquisitions I, LLC (“EB”) contracted with DK Arena, Inc., (“DK Arena”), a corporation wholly owned by boxing promoter Don King, to purchase a jai alai fronton in Mangonia Park, Florida. The contract provided in part for the deposit by EB of $1 million into an escrow account, and a 60 day period during which EB could perform all the due diligence necessary to examine the desirability of the purchase. EB could cancel the purchase any time during that period. A failure to cancel the purchase would be deemed an acceptance of the property as is, and the escrow deposit would be released to DK Arena. DK Arena in turn agreed to participate in any efforts to obtain government approval for EB’s development proposal for the property.

On the day the 60 day review period was to expire, the parties met and discussed the fact that EB needed more time to obtain support from the local government for its development plan. EB later claimed that at the meeting the parties agreed to extend the review period indefinitely, while DK Arena contended that the extension was for a period of one week. No writing was created. The next day, Don King personally appeared at a town council meeting along with EB, and sought to get support for the EB development proposal. The council did not make a decision, and scheduled another meeting for about two weeks later. The day before the following meeting, DK Arena faxed a demand to the escrow agent to release the escrow funds, stating that the original 60 day period had expired. Don King did not appear at the second town council meeting. The meeting apparently did not go well for EB; the following day, EB received notice of the demand for the escrow funds, and directed the escrow agent not to release the funds to DK Arena.

DK Arena filed suit against EB for breach of contract for failure to release the escrow funds; EB filed counterclaims alleging a breach of contract as well. Relying on Blue Paper, Inc. v. Provost, the trial court found for EB, holding that a written contract could be modified by an oral agreement if accepted and acted upon by the parties in a manner that would work a fraud on either party if the modification was not enforced. 914 So.2d 1048 (Fla. 4th DCA 2005). The trial court also held that Don King’s refusal to participate in the second meeting constituted a breach of the contract, and that the oral agreement reached at the expiration of the 60 day review period constituted a joint venture agreement.

On appeal, the Fourth DCA held that due to EB’s detrimental reliance on Don King’s agreement to extend the review period, DK Arena would be estopped from arguing that the agreement was invalid for failing to comply with the Statute of Frauds.

The Supreme Court made relatively short work of the promissory estoppel argument. The Court noted that the Statute of Frauds has been codified by legislative act, and historically Florida courts have not created any promissory estoppel exception to the plain language of the statute. The Court cited a long string of cases affirming this principle, including Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777 (Fla. 1966), where the Court found that an employment contract for 5 years could not be enforced absent a writing, even though the employee moved from out of state in reliance of the promise of employment.

The Court concluded that the oral extension of the contract in this case would not be binding in spite of detrimental reliance by EB, as there was no writing. Nevertheless, the Court remanded the case for the determination of several outstanding issues, including whether DK Arena waived the delivery of the deposit and whether DK Arena breached the contract by failing to provide the support for EB’s development plan as it agreed to do.

Thought the fight over the 2012 redistricting process was over? Think again. Not only is the fight still going, it never truly stopped. On September 5, 2012, mere months after the Supreme Court approved the Senate redistricting plan (“Senate Plan”), the Coalition (which consists of the League of Women Voters, the National Council of La Raza, Common Cause, and other groups) filed a law suit in the Circuit Court of the Second Judicial Circuit in Leon County (the “Circuit Court”), challenging the Senate Plan on constitutional grounds. The Legislature moved to dismiss the complaint, arguing that the Florida Supreme Court has exclusive jurisdiction to determine the validity of state legislative redistricting plans. Circuit Judge Terry P. Lewis disagreed and denied the motion on January 17, 2013. In the opinion, Judge Lewis found that the Supreme Court “has never held that it has exclusive jurisdiction over challenges to legislative redistricting plans.”

Undaunted, the Legislature decided to bypass the First District Court of Appeal and go straight to the horse’s mouth, and on February 14, 2013, filed a Petition for the Writ of Prohibition or for Constitutional Writ in the Supreme Court. That Petition is before the Court in Florida House of Representatives, et al. v. League of Women Voters, et al(SC13-252). In the Petition, the Legislature asks the Supreme Court to step in and stop the Circuit Court from exercising jurisdiction over the suit. The Court has yet to rule.

A Little Background

The Florida Constitution requires the Legislature to reapportion the state’s legislative districts during its regular session in the second year after every decennial census. The districts must conform to the general provisions of the United States Constitution, which set forth the one-person, one-vote standard under the Equal Protection Clause, and the specific provisions of the state constitution, requiring districts to be consecutively numbered and to consist of contiguous, overlapping or identical territory.

In 2010, Floridians passed the “Fair Districts Amendments” to the Florida Constitution, which added additional standards for reapportionment plans. Art III, sections 20 and 21, Fla. Const. Specifically, the amendments set forth 2 tiers of review for district plans, each with 3 requirements. The first tier provides that (1) districts shall not be drawn with the intent to favor or disfavor a political party or incumbent, (2) districts shall not be drawn with the intent or result of denying or abridging equal opportunity of racial or language minorities to participate in the political process or diminish their ability to elect representatives of their choice, and (3) districts shall be contiguous. The second tier lists 3 additional requirements, the compliance with which is subordinate to the first tier and to federal law in the event of a conflict: (1) districts shall be as nearly equal in population as is practicable; (2) districts shall be compact; and (3) where feasible, districts shall utilize existing political and geographical boundaries.

The Florida Constitution sets out a series of relatively short timeframes during which the state’s legislative districts must be reapportioned. The Legislature gets the first crack at it during its regular session the second year after the Census. If it fails to adopt a plan during its regular session, the Governor must reconvene the Legislature for a special apportionment session, which cannot last longer than 30 days, during which reapportionment is the sole issue addressed. If the Legislature fails again, the Attorney General has 5 days to ask the Supreme Court to do the job, and the Court has 60 days to get it done. Art III, sec, 16, Fla. Const.

If the Legislature manages to successfully adopt a plan during its regular session, the Attorney General must petition the Supreme Court for declaratory judgment as to the validity of the plan. The Court must enter its judgment within 30 days during which it must allow adverse interests to present their views. If the Court approves the plan, it becomes binding. On the other hand, if the Court finds all or part of the plan to be invalid, the Governor must reconvene the Legislature within 5 days for an extraordinary apportionment session, which cannot exceed 15 days. Within that time, the Legislature must redraw the invalid portion(s) of plan in accordance with the Court’s judgment. If it successfully adopts a revised plan, the Attorney General must send it back to the Court for review and the process starts all over again, complete with input from adverse interests. If the Court approves the plan, it becomes binding. However, if the Court also finds the revised plan to be invalid, or if the Legislature fails to adopt a plan during the extraordinary apportionment session, the Court must adopt its own apportionment plan within 60 days.

2012 Reapportionment

On February 9, 2012, the Legislature passed Senate Joint Resolution 1176 (“Joint Resolution”), apportioning this state into 120 House districts and 40 Senate districts. The next day, Attorney General Pam Bondi fulfilled her constitutional obligation by filing a petition in the Supreme Court for a declaratory judgment to determine the validity of the legislative apportionment plans contained within the Joint Resolution.

The Court allowed adverse parties, including The Coalition, to file briefs and participate in oral arguments. On March 9, 2012, the Court rendered its judgment. There was much consternation among the members of the Court as to the scope of their review – with some believing it difficult if not impossible to conduct a thorough review of the plans in light of the newest constitutional standards prescribed by the Fair Districts Amendments and their role as an appellate court not equipped or designed to take evidence or develop a record. The majority opinion acknowledged the difficulties, but ultimately rejected this notion, arguing that new technologies have increased the Court’s ability to review legislative districts, even when faced with a very limited record. However, the as the Court subsequently noted: “Based on the restrictive time frames under the Florida Constitution, together with other inherent limitations in the constitutional structure and the limited record before us, this Court announced that the review would be restricted to a facial review of the plan and that no rehearing would be permitted.” In Re: Senate Joint Resolution of Legislative Apportionment 2-B, (SC12-460).

Ultimately, the Court approved the House reapportionment plan, but found the Senate reapportionment plan constitutionally invalid. Specifically, the Court declared invalid the Senate‘s numbering scheme and eight Senate districts, Districts 1, 3, 6, 9, 10, 29, 30, and 34. It also admonished the Legislature to conduct a functional analysis of voting behavior to comply with Florida’s minority voting rights protections, to consider the feasibility of using the City of Lakeland‘s boundaries to keep that city intact, and to adopt an incumbent-neutral numbering scheme.
The Court was careful to point out that its role was not to dictate to the Legislature the plan that it would have adopted, but rather to provide guidance as to its interpretation and application of the constitutional standards. In short, the Court noted, its duty is not to select the best plan, but only to determine whether the Legislature’s plan is valid.
The Legislature reconvened by special apportionment session and adopted a revised plan on March 27, 2012. The Attorney General petitioned the Supreme Court for a declaratory judgment as to the validity of the plan. The Court again considered the arguments of adverse parties, including the Coalition, and considered alternative plans submitted by the Coalition and the Florida Democratic Party. This time, however, the Court concluded that “the opponents have failed to satisfy their burden of demonstrating any constitutional violation in this facial review,” and found the revised apportionment plan to be valid under the under the Florida Constitution.
Thereafter, the Coalition, et al, filed its suit in the Circuit Court.

The Present Fight

The present fight in the Supreme Court comes down to whether the Court’s jurisdiction over legislative reapportionment plans is exclusive and plenary – i.e., whether only the Supreme Court has jurisdictions to hear challenges to the plans; or whether the Supreme Court’s jurisdiction is limited to determining the facial validity of the plans, leaving jurisdiction over other types of challenges in the circuit courts.
In its Petition for Writ of Prohibition or Constitutional Writ, the Legislature argues that the Supreme Court has exclusive and plenary jurisdiction over legislative reapportionment and that the Fair Districts Amendments, with all the new standards, require the Supreme Court to consider certain challenges that are normally brought as as-applied challenges in the circuit court. As such, the Circuit Court cannot properly exercise jurisdiction over the Coalition’s law suit. Further, the Legislature asserts that the Coalition raised all the same arguments that it brought to the Circuit Court in the two times it appeared before the Supreme Court in 2012 as parties opposed to the House and Senate reapportionment plans. As a result, the Coalition should not be allowed to raise, the Circuit Court should not be allowed to hear, those same arguments.
The Coalition, in contrast, argues that given the time constraints and the limited evidentiary record, the Supreme Court expressly conducted a facial review of the reapportionment plans; i.e., it reviewed the plans and determined, on their face, whether they complied with constitutional standards. In other words, since the Florida Constitution sets such short deadlines, and since the Supreme Court is an appellate court, which, by design, does not take evidence, it was not possible for the Supreme Court to conduct anything more than a facial review of the plans. The Coalition therefore contended that the Circuit Court, as it did in the past, properly retains jurisdiction over as-applied challenges to the reapportionment plans. In short, the Coalition asserts that despite the facial validity of a plan in the abstract, it can still be unconstitutional as applied in the real world, and only a trial court can take the time for such facts to be fleshed out in discovery and at trial.
Indeed, both the Coalition and Judge Lewis point out that the Supreme Court’s prior opinions have held that the Court’s review is limited to facial challenges and that any as-applied challenges would have to be heard in the circuit courts.

It will be interesting to see how the Court comes down on this issue. Did the Fair Districts Amendments fundamental change the scope of the Supreme Court’s review? Did the Amendments eliminate circuit-court jurisdiction over as-applied challenges?

We will soon see.

In Pino v. The Bank of New York (SC11-697), the Supreme Court decided the narrow question of whether an allegation of fraud on the court empowers a trial court to strike a properly noticed voluntary dismissal, then reinstate the dismissed action in order to then again dismiss the action, with prejudice, as a consequent sanction. The Court held that if a plaintiff voluntary dismisses a suit and a defendant alleges fraud on the court as a basis for setting the dismissal aside, the trial court can reinstate the action only when proven fraud resulted in some affirmative relief to the plaintiff.

The Bank of New York (BNY) commenced an action to foreclose on a mortgage held on real property owned by Pino. BNY was neither listed or referenced anywhere in the documents as the lender or the mortgagee. Despite not being listed on any of the attached documents, BNY alleged that it held and owned the mortgage by assignment. BNY also alleged that the original note demonstrating assignment had been “lost, destroyed, or stolen.” Pino moved to dismiss the complaint alleging that it was defective because BNY failed to show they had been assigned the mortgage and thus was not a real party in interest. BNY then amended the complaint to no longer state the original note had been lost, destroyed, or stolen, and attached a copy of an adjustable rate note showing the transfer and assignment of the note to BNY with a date of execution twenty days before the original complaint was filed. Pino brought a motion for sanctions claiming the document was fraudulently backdated with the intent to commit fraud on the court. Pino then scheduled deposition and initiated discovery to prove the fraud but BNY properly served notice of voluntary dismissal dismissing the foreclosure action without prejudice pursuant to Fla. R. Civ. P. 1.420(a)(1).

About five months later, BNY refilled an identical action against Pino but did not claim the note was lost, missing, or stolen, and filed an assignment of mortgage dated after the date of the voluntary dismissal. Pino filed a motion in the original, voluntarily dismissed action seeking to strike BNY’s notice of voluntary dismissal based on fraud on the court and to dismiss that action with prejudice as consequent sanction pursuant to Fla. R. Civ. P. 1.540(b). BNY opposed the motion saying that the fraud on the court exception was available only where the party voluntarily dismissing the case had obtained affirmative relief prior to dismissing the action. The trial court rejected Pino’s argument and denied the rule 1.540(b) motion to strike because BNY had not obtained affirmative relief. Pino appealed to the Fourth Circuit who affirmed the decision of the lower court.

In determining whether the trial court has an ability to grant relief from a voluntary dismissal, the Supreme Court examined the Florida Rules of Civil Procedure and the trial court’s inherent authority to protect judicial integrity. A plaintiff has a right to voluntarily dismiss a civil action under Fla. R. Civ. P. 1.420(a)(1) once without prejudice. This rule is very broad and has been interpreted liberally. The Supreme Court has long interpreted the right to be absolute with the trial court having no authority or discretion to deny the voluntary dismissal. The right does not take into account the plaintiff’s motive and unless the action falls within one of the recognized exceptions, the voluntary dismissal is allowed. A plaintiff’s voluntary dismissal is an act of finality, which typically deprives the trial court from retaining jurisdiction; rule 1.540(b) provides some exceptions. Fla. R. Civ. P. 1.540(b), “provides a litigant relief from a final judgment based upon fraud.” In addition, the rule requires the plaintiff to gain some affirmative relief that had an adverse impact on the defendant. If the affirmative relief were obtained as a result of some fraudulent act, the defendant would be entitled to seek redress under Rule 1.540(b)(3).

In addition to rule 1.540(b), the Court also examined whether a trial court has inherent authority to strike the voluntary dismissal when fraud is alleged. The Court rejected the trial court’s assertion of inherent authority, holding that under the plain language of rule 1.420(a)(1), the common law “serious prejudice” exception that allowed trial courts to strike a voluntary dismissal if a defendant suffered serious prejudice no longer exists. The trial court had no authority to deny a plaintiff’s voluntary dismissal except as provided by the rules. Finally, the Court discussed whether Section 57.105 of the Florida Statutes requires a motion for sanctions to be filed prior to dismissal of the case even with the 21 day safe harbor provision. The Court held that if a plaintiff does not file a voluntary dismissal or withdraw the offending pleading before the twenty-one day safe harbor expires, then a defendant may file a sanctions motion under the statute — thus giving the trial court continuing jurisdiction.

In applying the holding to the case at bar, the Court affirmed the trial court and fourth district court of appeals. Since Rule 1.540(b) requires the plaintiff to obtain some kind of affirmative relief prior to the dismissal in order for the court to have discretion to strike the dismissal, the Court held that since BNY did not obtain relief, Pino’s motion to strike the dismissal must fail. In addition, sanctions under 57.105 were unavailable because BNY dismissed the action within the statutory twenty-one day safe harbor following the motion for attorney fees filed by Pino.