IN THE SUPREME COURT OF FLORIDA. Sup. Ct. case no. SC07- DCA case no. 1D LEON COUNTY, FLORIDA'S BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA LEON COUNTY, FLORIDA, a Political Subdivision of the State of Florida, Petitioner, vs. STEPHEN S. DOBSON, III, P.A., Sup. Ct. case no. SC07- DCA case no. 1D Respondent. / LEON COUNTY, FLORIDA'S BRIEF ON JURISDICTION On Review of an Opinion from the District Court of Appeal, First District, State of Florida D. ANDREW BYRNE, ESQ. Fla. Bar no Tenn. Bar no DAVID C. HAWKINS, ESQ. Fla. Bar no Cooper & Byrne, PLLC 3520 Thomasville Road, Suite 200 Tallahassee, Florida (voice) (fax) Attorneys for Leon County, Florida

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND OF THE FACTS...1 SUMMARY OF THE ARGUMENT...2 STATEMENT ON JURISDICTION...2 ARGUMENT...3 Standard of Appellate Review...3 I. BY RULING THAT SOVEREIGN IMMUNITY DOES NOT BAR MALOY'S CLAIM FOR FEES, DOBSON EXPRESSLY CONSTRUED THE STATE CONSTITUTION...3 II. DOBSON DIRECTLY CONFLICTS WITH OPINIONS OF OTHER APPELLATE COURTS...4 CONCLUSION...7 CERTIFICATE OF SERVICE...7 CERTIFICATE OF COMPLIANCE...8 Appendix i

3 TABLE OF CITATIONS Florida Constitution Art. V, 3(b)(3), Fla. Const....2 Art. X, 13, Fla. Const...3 Florida Statutes , Fla. Stat. (2006) , Fla. Stat. (2006)... 1, 3, 4 Cases Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362 (Fla. 1977)...4 Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So. 2d 1113 (Fla. 1976)...4 Fullerton v. Florida Med. Ass'n, Inc., 938 So. 2d 587 (Fla. 1st DCA 2006)...4 Leon County, Florida v. Stephen S. Dobson, III, P.A., case no. 1D slip op. (Fla. 1st DCA Jan. 26, 2007)... 1, 3, 4 Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1982)... 1, 4, 5 Maloy v. Bd. of County Comm'rs of Leon County, No. 1D , --- So.2d ----, 2007 WL (Fla. 1st DCA Jan. 26, 2007)...3 Tillman v. State, 934 So. 2d 1263 (Fla. 2006)...4 Florida Rules of Court Fla. R. App. P (2)(A)(ii) and (iv)... 2, 3, 5 ii

4 Fla. R. App. P (a)(2)...7 iii

5 STATEMENT OF THE CASE AND OF THE FACTS Florida common law recognizes that the public has an obligation to pay reasonable attorney fees to public officials who successfully defend themselves against lawsuits brought against them that arise out of or are connected with their public duties and serve a public purpose. In the case below, Leon County, Florida v. Dobson, case no. 1D , slip op. (Fla. 1st DCA Jan. 26, 2006), a county commissioner successfully defended himself against criminal charges and sued the county to reimburse his legal fees. Citing Lomelo v. City of Sunrise, 423 So.2d 974 (Fla. 4th DCA 1982), the panel concluded that the Florida common law extends to criminal proceedings. The Supreme Court has never decided that the common law right extends to criminal matters. Juxtaposed beside the common law, the Florida Constitution expressly provides the State and its political subdivisions with sovereign immunity from lawsuits, except where immunity has been waived by the Florida Legislature. The Dobson panel ruled that the doctrine of sovereign immunity did not bar a suit by a public official against Leon County to recover legal fees incurred in the defense of a criminal charge, but it did not identify any basis for the Florida Legislature's waiver of sovereign immunity for such actions. Leon County timely filed a notice to invoke this Court's discretionary jurisdiction to review Dobson. 1

6 SUMMARY OF THE ARGUMENT Discretionary review of the district court panel decision is warranted on two bases. First, in direct violation of the Florida Constitution's grant of sovereign immunity to the State and its political subdivisions, the Dobson panel held that the doctrine of sovereign immunity did not bar a lawsuit by a public official seeking to recover attorney's fees incurred by the official to defend criminal charges. This holding overlooks the limited waiver of sovereign immunity for payment of fees in civil actions, which appears in section , Florida Statutes (2006), and which is grounded in the state constitution. Second, the decision conflicts with reported opinions of other courts upholding the well-respected rule calling for strict construction of statutes that abrogate common law. STATEMENT ON JURISDICTION The Florida Supreme Court has discretionary jurisdiction to review the opinion of the district court of appeal because the opinion expressly construes Florida's doctrine of sovereign immunity, which is incorporated in the state constitution, and expressly and directly conflicts with a decision of another appellate court. Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P (2)(A)(ii) and (iv). 2

7 ARGUMENT Standard of appellate review Answering whether this Court ought to accept jurisdiction calls for an interpretation of its constitutional powers. Answering whether the opinion on review construed the constitution, statutes, and decisional law to create conflict presents a question of law. Each of these matters is to be decided under a de novo standard of appellate review. I. BY RULING THAT SOVEREIGN IMMUNITY DOES NOT BAR MALOY'S CLAIM FOR FEES, DOBSON EXPRESSLY CONSTRUED THE STATE CONSTITUTION. The basis for discretionary jurisdiction arises from the following excerpt in the opinion: "Although the circuit judge found Maloy's common law claim barred by the doctrine of sovereign immunity, we have now explained that sovereign immunity does not bar such claims. See Maloy v. Bd. of County Comm'rs of Leon County, No. 1D , --- So.2d ----, 2007 WL (Fla. 1st DCA Jan. 26, 2007)." Dobson, slip op. at 4. The doctrine of sovereign immunity is constitutionally preserved. Art. X, 13, Fla. Const. ("Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating"). By holding that the doctrine "does not bar" a claim for criminal fees, the opinion necessarily 3

8 construes the state constitution and invites this Court's review. Fla. R. App. P (a)(2)(A)(ii). As it was authorized to do, the Florida Legislature implemented the constitutional provision by enacting section , Florida Statutes (2006), waiving immunity for the state and its subdivisions to provide an attorney for the defense of public officers in "any civil action" under certain circumstances. Review by this Court is warranted to reconcile the panel's obvious disregard of the limited waiver regarding civil actions in section , which makes no such waiver in connection with defense of public officials charged criminally. Moreover Dobson disregards precedent holding that the state's immunity is absolute absent waiver by the Legislature or constitutional amendment. Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So. 2d 1113, 1114 (Fla. 1976)(citations omitted). II. DOBSON DIRECTLY CONFLICTS WITH OPINIONS OF OTHER APPELLATE COURTS. The district court panel affirmed the trial court order under Florida's common law doctrine allowing reimbursement of fees to public officials under certain circumstances. Citing Lomelo, an opinion of the 4th DCA, it added that the doctrine applies to criminal proceedings. Dobson, slip op. at 4. Dobson conflicts with well-respected principles describing the tension 4

9 between statutory law and judge-made law. Assuming for argument that the origins of Florida's common law required Leon County to pay Commissioner Maloy's attorney's fees in defending himself against criminal charges, then the requirement has been since changed by statute. At all times relevant the County's obligation was limited to providing an attorney "to defend any civil action." , Fla. Stat. The section did not and does not require a county to pay fees in defense of a criminal action. If the Legislature intended that a county pay criminal fees, then it could have enacted a general law for that purpose. See, e.g., , Fla. Stat. (2006)(requiring employing agency to pay reasonable attorney's fees and costs for any law enforcement officer in any criminal proceeding under specified circumstances). These statutes are in derogation of common law and therefore must be interpreted strictly. Tillman v. State, 934 So. 2d 1263, 1269 (Fla. 2006); Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 364 (Fla. 1977); Fullerton v. Florida Med. Ass'n, Inc., 938 So. 2d 587, 592 (Fla. 1st DCA 2006). Dobson directly conflicts with Tillman, Carlile, Fullerton, and similar cases, triggering this Court's power to review. Fla. R. App. P (a)(2)(A)(iv). This Court has a vested interest in considering developments in Florida's common law. Lomelo is the first reported appellate decision to declare that the Florida common law doctrine applies to criminal proceedings. Apparently Dobson 5

10 is the only other such appellate decision. The district court's reliance on Lomelo begs review by this Court. Twelve reported cases from Florida and other states are cited in the opinion, which declares that "[t]hese cases establish that a municipal corporation or other public body is obliged to furnish or pay fees for counsel to defend a public official subject to attack either in civil or criminal proceedings...." Lomelo, 423 So. 2d at 976 (emphasis added). To the contrary, not one of the twelve cited cases involved the payment of fees to defend against criminal charges. Completely lacking in Lomelo and the twelve cases is any shred of analysis to support its unprecedented extension of the doctrine to criminal proceedings. The failure to explain why Florida's common law embraces the common law of other states also makes its legal logic dubious. 6

11 CONCLUSION By accepting jurisdiction to review Dobson, this Court will assure the statewide uniformity essential to the development of decisional law. D. ANDREW BYRNE, ESQ. Fla. Bar no Tenn. Bar no DAVID C. HAWKINS, ESQ. Fla. Bar no Cooper & Byrne, PLLC 3520 Thomasville Road, Suite 200 Tallahassee, Florida (voice) (fax) Attorneys for Leon County, Florida CERTIFICATE OF SERVICE I hereby certify that a copy of this Brief on Jurisdiction, together with the Appendix, were served by U.S. Mail, postage pre-paid, on Cynthia S. Tunnicliff, Esq., and Ben H. Wilkinson, Esq., Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., 215 South Monroe Street, 2d Floor, Tallahassee, FL 32301, attorneys for Stephen S. Dobson, III, P.A., this 5th day of March DAVID C. HAWKINS, ESQ. 7

12 CERTIFICATE OF COMPLIANCE The undersigned certifies that this Brief on Jurisdiction complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). DAVID C. HAWKINS, ESQ. 8

13 IN THE SUPREME COURT OF FLORIDA LEON COUNTY, FLORIDA, a Political Subdivision of the State of Florida, Petitioner, vs. STEPHEN S. DOBSON, III, P.A., Sup. Ct. case no. SC07- DCA case no. 1D Respondent. / LEON COUNTY, FLORIDA'S BRIEF ON JURISDICTION Appendix D. ANDREW BYRNE, ESQ. Fla. Bar no Tenn. Bar no DAVID C. HAWKINS, ESQ. Fla. Bar no Cooper & Byrne, PLLC 3520 Thomasville Road, Suite 200 Tallahassee, Florida (voice) (fax) Attorneys for Leon County, Florida

14 Index to Appendix Leon County, Florida v. Stephen S. Dobson, III, P.A., case no. 1D slip op. (Fla. 1st DCA Jan. 26, 2007).