IN THE SUPREME COURT OF FLORIDA. CASE NO. (Lower Tribunal Case No. 3D ) OPHELIA BROWN, Petitioner, vs. SAMUEL MCKINNON. Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. (Lower Tribunal Case No. 3D ) OPHELIA BROWN, Petitioner, vs. SAMUEL MCKINNON Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM A DECISION OF THE THIRD DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF PETITIONER R. A. CUEVAS, JR. MIAMI-DADE COUNTY ATTORNEY Stephen P. Clark Center, Suite N.W. 1st Street Miami, Florida Telephone: (305) Facsimile: (305) By: Craig E. Leen Assistant County Attorney Florida Bar No

2 TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT I. The Third District s Decision Expressly And Directly Affects A Class Of Constitutional Or State Officers... 5 A. Official Immunity From Suit... 6 B. Absolute Immunity From Suit... 8 II. The Third District s Decision Expressly And Directly Conflicts With Decisions Of The Florida Supreme Court And The Second District... 9 A. Line Of Second District Cases... 9 B. Supreme Court Decision In Tucker v. Resha... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF CITATIONS Cases Page(s) Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417 (Tex. 2004)... 6 City of Miami v. Wardlow, 403 So. 2d 414 (Fla. 1981)... 8 Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980)... 8 Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996)... 4 Elder v. Holloway, 510 U.S. 510 (1994) Goetz v. Noble, 652 So. 2d 1203 (Fla. 5th DCA 1995)... 8 LeMay v. Kondrk, 923 So. 2d 1188 (Fla. 5th DCA 2006)... 7 Mitchell v. Forsyth 472 U.S. 511 (1985)...10 McNayr v. Kelley, 184 So. 2d 428 (Fla. 1966)... 8 Ondrey v. Patterson, 884 So. 2d 50 (Fla. 2d DCA 2004)... 9 Sailboat Key, Inc. v. Gardner, 378 So. 2d 47 (Fla. App. 1979)... 8 Simon v. Murphy, 895 So. 2d 1245 (Fla. 4th DCA 2005)... 7 ii

4 TABLE OF CITATIONS Cases Page(s) Spradley v. State, 293 So. 2d 697 (Fla. 1974)... 5 Stephens v. Geoghegan, 702 So. 2d 517 (Fla. 2d DCA 1997)... 9 Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994)... 4, 6, 9, 10 Willingham v. City of Orlando, 929 So. 2d 43 (Fla. 5th DCA 2006)... 7 Other Authorities Fla. Stat (1)... 6 Fla. Stat (9)(a)... 1, 6, 7, 9 Fla. R. App. P (a)(2)(A)(iii)... 3 Fla. R. App. P (a)(2)(A)(iv)... 3 William L. Prosser, Handbook of the Law of Torts 128 (4th ed. 1971)... 8 iii

5 STATEMENT OF THE CASE AND OF THE FACTS Ophelia Brown ( Director Brown ) has been individually sued for discretionary actions taken in her capacity as a high-level County official. In response, Director Brown raised absolute immunity from suit under the common law and official immunity from suit under section (9)(a) of the Florida Statutes. The trial court denied these immunities from suit as a matter of law. Third District Opinion, Appendix ( Appx. ) at 1-2. Director Brown then timely filed an interlocutory appeal of this denial and alternatively sought review by certiorari. Appx. at 3. In a published opinion following oral argument, the Third District found that it had no jurisdiction to review the denial of these immunities from suit. Id. at 1-2. The Opinion is categorical in denying jurisdiction. In other words, the Opinion establishes a rule that would prevent all government officials, including all constitutional and state officers, from seeking review of the denial of a state immunity from suit as a matter of law. The Opinion included a long and spirited dissent by Judge Shepherd. The pleaded facts are straightforward and are recited in the dissent. The Miami-Dade County Community Action Agency (the Agency ) is the County agency that distributes federal Head Start funds. Id. at 4. Director Brown was the County official charged with overseeing the Agency as its Director and was thereby responsible for the allocation and administration of these funds. Id. 1

6 St. Alban s Nursery was one of the recipients of these Head Start funds. Id. at 4. Plaintiff was the Executive Director of St. Alban s Nursery. Id. Plaintiff admitted in the pleadings that St. Alban s was in financial crisis at the time of the events described in the pleadings, which is also acknowledged in the dissent. Opinion at 5 ( It is not seriously disputed that St. Albans was in financial crisis. ). The day before Plaintiff was terminated, Director Brown sent a letter to St. Alban s on County stationary, which discussed St. Alban s request for a second advance of Head Start funds. Id. at 5. 1 The letter recommended an independent audit and the removal of the Executive Director. Id. The letter conditioned the allocation of the second advance on the adoption of these recommendations. Id. Plaintiff was terminated the next day by St. Alban s. Plaintiff has now sued Director Brown for tortious interference, defamation, and injurious falsehoods. Director Brown maintains that the pleadings indicate that she acted at all times in the scope of her office, which was to allocate Head Start funds, and therefore both absolute and official immunity protect her from being sued. The issue presented is whether the denial as a matter of law of a government official s state immunity from suit can be reviewed prior to the completion of that suit. 1 The letter, which was attached to the pleadings, stated that County s concerns regarding the on-going problems of the Fiscal Operations of St. Alban s [Third District Record at 53] and attached a list of checks the Agency had previously reimbursed [St. Alban s] for which vendors [had] not received payment. Id. 2

7 SUMMARY OF ARGUMENT Director Brown respectfully requests that the Florida Supreme Court accept jurisdiction to determine whether the denial of state absolute and official immunities from suit can be reviewed on an interlocutory basis, either on direct appeal or by certiorari. The Supreme Court has jurisdiction over this appeal under two provisions of Rule of the Florida Rules of Appellate Procedure. First, the Supreme Court has jurisdiction because the Third District s decision expressly affects a class of constitutional or state officers. See Fla. R. App. P (a)(2)(A)(iii). Namely, the Third District s denial of jurisdiction is categorical and would deny every state officer the right to seek review of the denial of absolute and official immunities from suit, rendering these officers protection from suit illusory. Indeed, this decision would apply to every state officer who has some form of absolute or official immunity, including legislators, judges, sheriffs, and numerous other executive officials. Second, the Supreme Court has jurisdiction because the decision expressly and directly conflicts on the same issue of law with (i) a line of cases from the Second District that expressly recognize that the denial of an individual immunity from suit under state law is immediately reviewable and (ii) a prior Supreme Court decision expressly recognizing that an individual immunity from suit under federal law is immediately appealable. See Fla. R. App. P (a)(2)(A)(iv). 3

8 ARGUMENT The Supreme Court previously addressed whether there was interlocutory jurisdiction to review the denial of an individual government official s qualified immunity from suit under federal law in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994) (finding jurisdiction and amending rules of appellate procedure). The Supreme Court also previously addressed whether there was interlocutory jurisdiction to review the denial of a state entity s sovereign immunity from liability in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996) (finding no jurisdiction). The Supreme Court, however, has not yet addressed whether there is jurisdiction to review the denial of an individual government official s claim of absolute immunity from suit and official immunity from suit under Florida law. Similar to federal qualified immunity, these state immunities protect individual government officials from suit, not merely from liability. Therefore, like federal qualified immunity, these state immunities should be reviewable on an interlocutory basis. If they are not so reviewable then they are rendered illusory, not really immunities from suit at all. Moreover, if they are not so reviewable, Florida will continue to protect a federal immunity from suit more than it protects its own state immunities from suit. Accordingly, and for the following reasons, 4

9 Director Brown respectfully requests that the Court exercise its discretion and grant jurisdiction. I. The Third District s Decision Expressly And Directly Affects A Class Of Constitutional Or State Officers Absolute and official immunities from suit protect government officials from suit in their individual capacities. The purpose of these immunities is to protect officials from harassing or costly litigation and to ensure that these officials are not chilled in the performance of their public functions by the threat of litigation. The determination by the Third District that there is no jurisdiction to review the denial of such immunities, particularly immunities from suit, affects every constitutional or state officer in Florida. 2 Indeed, the Third District s ruling treats these officers immunities as if they are not from suit, and eliminates any possible remedy when these immunities are improperly denied. After all, it is impossible to reimmunize a government official from suit after the suit is completed. This is exactly why the Florida Supreme Court established that qualified immunity from suit was immediately appealable in 2 For purposes of this analysis, it does not matter whether Director Brown, a County official, is a state or constitutional officer. All that matters for jurisdiction is that the decision would affect a class of state or constitutional officers even if they are not parties. See Spradley v. State, 293 So. 2d 697, 701 (Fla. 1974) (stating that jurisdiction may also exist in a case in which no member of the class is a party if the decision generally affects the entire class in some way unrelated to the specific facts of that case. ). 5

10 Tucker. 648 So. 2d at 1189 (stating that the central purpose of affording public officials qualified immunity from suit is to protect them from undue interference with their duties and from potentially disabling threats of liability and that an immunity from suit is effectively lost if a case is erroneously permitted to go to trial. ) (citations omitted). A. Official Immunity From Suit The concept of official immunity has well-established roots in English common law. See, e.g., Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004) ( Common law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation. ). In Florida, the Legislature chose to enshrine this common law immunity in the Florida Statutes. See Fla. Stat (9)(a). 3 Further, the Florida Legislature chose to provide government officials with an immunity from suit as well as from liability. This is clear from the text of 3 Official immunity is distinct from a government entity s sovereign immunity. This makes sense. With section (1), the Legislature waive[d] sovereign immunity for [tort] liability on behalf of the state and its subdivisions. (Emphasis added). With section (9)(a), however, the Legislature granted government employees a statutory immunity from suit by codifying common law official immunity. Notably, Section (9)(a) does not state that a governmental entity must not be named as a party defendant. This immunity from suit is unique to government officer[s], employee[s], or agent[s], Fla. Sta (9)(a). 6

11 section (9)(a), which states that no government employee shall be held personally liable in tort or named as a party defendant in a tort action. (Emphasis added). The Florida Supreme Court itself has recognized that section (9)(a) provides government employees with immunity from suit. In Stoll v. Noell, the Court stated explicitly that section (9)(a) provides government employees and agents with statutory immunity from suit and liability. 694 So. 2d at 703 (emphasis added). Florida s appellate courts have also recognized that section (9)(a) provides immunity from suit as well as from liability. See Willingham v. City of Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006) ( Importantly, the immunity provided by section (9)(a) is both an immunity from liability and an immunity from suit.... ) (emphasis in original); LeMay v. Kondrk, 923 So. 2d 1188, 1192 (Fla. 5th DCA 2006) ( We fully recognize that the immunity provided by section (9)(a) is both an immunity from suit and an immunity from liability.... ) (emphasis added); Simon v. Murphy, 895 So. 2d 1245, 1246 (Fla. 4th DCA 2005) (finding an officer entitled to immunity from suit as a matter of law pursuant to Florida Statutes section (9)(a) ) (emphasis added). 4 In sum, section (9)(a) provides government employees with official immunity, 4 These cases also provide an independent basis for conflict jurisdiction. The Third District is not treating these immunities as ones from suit itself. 7

12 which is distinct from sovereign immunity. This immunity has now been made illusory by the Third District s decision. This directly affects all state and constitutional officers. B. Absolute Immunity From Suit Absolute immunity also constitutes an immunity from suit, not merely from liability. For example, the Florida Supreme Court has explicitly held that executive officials should be protected by the law from suit or damages for purportedly defamatory statements made in the scope of their duties. McNayr v. Kelley, 184 So. 2d 428, 429 (Fla. 1966) (emphasis added); see also City of Miami v. Wardlow, 403 So. 2d 414, 416 (Fla. 1981) (recognizing the immunity granted in McNayr was from suit). This immunity from suit does not only apply to defamation suits, but also to tortious interference with contract suits. See Goetz v. Noble, 652 So. 2d 1203, 1205 (Fla. 5th DCA 1995); Danford v. City of Rockledge, 387 So. 2d 967 (Fla. 5th DCA 1980). 5 Furthermore, the Third District s decision is not limited in any manner and applies to all denials of absolute immunity as a matter of law. Accordingly, the 5 Plaintiff also complains of injurious falsehoods, otherwise known as slander of title. Sailboat Key, Inc. v. Gardner, 378 So. 2d 47, 48 (Fla. App. 1979). [I]t may be said that injurious falsehood, which is a tort that never has been greatly favored by the law, is subject to all the privileges recognized both in cases of personal defamation and in those of other types of interference with economic advantage. Id. at 49 (quoting William L. Prosser, Handbook of the Law of Torts 128, at 924 (4th ed. 1971)). 8

13 decision would not only affect the rights of executive officials, but would also affect the rights of judges, legislators, and prosecutors to seek interlocutory review of absolute immunites applicable to these offices as well. In short, the scope of the Third District s decision is enormous and affects countless government officials. II. The Third District s Decision Expressly And Directly Conflicts With Decisions Of The Florida Supreme Court And The Second District The Third District s decision, which categorically denies any power of interlocutory review, expressly and directly conflicts with the following decisions. A. Line Of Second District Cases The Third District s Opinions is in conflict with decisions from the Second District Court of Appeal. In Ondrey v. Patterson, the Second District took certiorari jurisdiction to review the denial of a government official s immunity under section (9)(a). 884 So. 2d 50, (Fla. 2d DCA 2004). In Stephens v. Geoghegan, the Second District granted a petition for certiorari to review the denial of state absolute immunity as well as qualified immunity, because those immunities were not merely defenses to liability; as the terms themselves imply, they protect a public official from having to defend a suit at all. 702 So. 2d 517, 521 (Fla. 2d DCA 1997). B. Supreme Court Decision In Tucker v. Resha The Third District s decision also fails to follow or apply the reasoning of the Florida Supreme Court in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994). At 9

14 issue in Tucker was whether the district court could review a denial of federal qualified immunity from suit on an interlocutory basis. Id. The Court first noted that the Florida Rules of Appellate Procedure did not provide for such review. Id. That did not end the inquiry, however - the Court had to also examine the nature of the rights involved, namely immunity from suit. Id. at The Court considered that the central purpose of affording public officials qualified immunity from suit is to protect them from undue interference with their duties and from potentially disabling threats of liability. Id. (quoting Elder v. Holloway, 510 U.S. 510 (1994)). The Court noted that qualified immunity provides immunity from suit, and that the right is effectively lost if a case is erroneously permitted to go to trial. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)). In that event, not only does the official suffer from erroneously lost immunity, but society as a whole bears the burden of litigation expenses, diversion of official energy, and deterrence from entering public office. Id. at The Court held that the denial of federal qualified immunity was subject to interlocutory review. Id. at The Third District did not engage in the inquiry required by Tucker. This inquiry would have required the Third District to take jurisdiction. Accordingly, Director Brown respectfully requests that the Florida Supreme Court accept jurisdiction. 10

15 Respectfully submitted, CERTIFICATE OF SERVICE R. A. CUEVAS, JR. Miami-Dade County Attorney 111 N.W. First Street, Suite 2800 Miami, Florida Telephone: Facsimile: By: Craig E. Leen Assistant County Attorney Fla. Bar No I HEREBY CERTIFY that a true and correct copy of the foregoing was served by Federal Express on November 5, 2007 to the Florida Supreme Court and to counsel for Respondent, Charles McKinnon, Esq., S.W. 280th Street, Naranja, Florida, CERTIFICATE OF COMPLIANCE Assistant County Attorney Undersigned counsel certifies that this brief has been generated in Times New Roman 14-point font and complies with the font requirements of Rule 9.210(a) of the Florida Rules of Appellate Procedure. Assistant County Attorney 11