MINUTES APPELLATE COURT RULES COMMITTEE FRIDAY, SEPTEMBER 15, 2006 8:30 am to 12:00 pm TAMPA AIRPORT MARRIOTT HOTEL Tampa, Florida I. CALL TO ORDER Chair Mullins called the meeting to order at 8:35 a.m. welcoming members, new members, and introducing the new Vice Chairs, Parliamentarian, Secretary and Joanna Mauer, Florida Bar liaison to the ACRC. He circulated the attendance sheet, email sheets, subcommittee sign in sheets, and the conference call-in information. II. CHAIR S REPORT A. Approval of minutes of January 2006. The minutes of the January 2006 meeting in Miami were approved. B. Announcements Elimination of Amicus Curiae Special Subcommittee. Chair Mullins announced that the executive committee eliminated the Amicus Curiae Special Subcommittee. Orientation. The Orientation meeting for new members will follow the regular meeting. All members invited to join. Florida Supreme Court s Committee on ADR Rules and Policies, Voluntary Trial Resolution Subcommittee. Vice Chair and Parliamentarian Kristy Gavin will attend the Florida Supreme Court s Committee on ADR Rules and Policies, Voluntary Trial Resolution Subcommittee meeting on September 28, 2006 on behalf of the ACRC. 1
New Bar Rule on Attorney Misconduct. Chair Mullins reported that that there is a proposed new rule to the Rules Regulating the Florida Bar which would allow judges to fine attorneys who exhibit unprofessional conduct. Since the proposed Rule provides a mechanism for appealing the fine, Chair Mullins will request a subcommittee to review the proposal for comments. III. STANDING SUBCOMMITTEE ISSUES AND REPORTS a. Administrative Law Practice Subcommittee Chair David Miller presented the issue of whether Rule 9.310(b)(2) should be amended to eliminate an inconsistency in the Administrative Procedure Act, and summarized the memoranda that have been drafted on the issue. He explained that the Rule conflicts with the Administrative Procedure Act by allowing an automatic stay when the government seeks review of an administrative agency s decision. The memoranda cite to cases interpreting Rule 9.310(b)(2) that hold either that the Rule supersedes the Act, or hold that Rule 9.310(b)(2) is in conformity with Act. The issue arises occasionally, especially in cases relating to land use and permitting, personnel and challenges to agency rules. The subcommittee unanimously decided to amend Rule 9.310(b)(2) as follows, and to present the amendment to the full committee for a vote: ****************************************************************** RULE 9.310. STAY PENDING REVIEW (b) Exceptions. (2) Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases or in administrative actions pursuant to the Administrative Procedure Act, when the 2
state, any public officer in an official capacity, board, commission, or other public body seeks review; provided that an automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. On motion, the lower tribunal or the court may extend a stay, impose any lawful conditions, or vacate the stay. ****************************************************************** Chair Mullins presented the issue to a vote. John Mills explained that the Legislature got it right and supports amending the Rule. The vote carried 48 -- 0. b. Civil Practice Subcommittee Subcommittee Chair Jennifer Carroll reported that the subcommittee received a letter from Tom Hall requesting an analysis on the need to amend Rule 9.310 to be consistent with HB 841 (creating Fla. Stat. 45.045), which sets a limit on supersedeas bonds to $50 million in civil cases (except certified class actions). The subcommittee originally received the request by fast track procedure, but got an extension until February 2007 to address the issue. The Executive Committee directed the subcommittee to address the following issues: 1. Constitutionality of 45.045 2. Whether a rule change is needed 3. Whether or not a rule change is needed, to recommend amended language. The subcommittee worked throughout the summer on the issues and decided not take a position on the constitutionality of the statute because it felt that it was not in its place to take a side. By a 5-5 vote, the subcommittee was split as to the constitutionality of the statute, as well as whether a rule change was needed. It nevertheless believed collectively that Rule 9.310 and the statute should be brought in conformity with each other to ensure consistency. 3
Dorothy Easley summarized her research on the constitutionality of the 45.045. The central question is whether the statute affects procedural versus substantive rights. Based on her analysis, the statute is constitutional because, although it contains procedural components by dictating the cap of the bond and elements for judicial determination as to amount of the bond, it does not create or modify a procedural rule of court. Rather, the focus of the Rule is to expand the following substantive rights: (1) a right to appeal for putative appellants facing money judgments who cannot post any bond; (2) a right to appeal for putative appellants facing money judgments who cannot post a full bond; (3) a right to discretionary review in the Supreme Court of Florida with a guaranteed stay of proceedings beyond the appellate courts; (4) a right of putative appellees to engage in discovery to determine scope of protected assets; (5) a right of putative appellees to obtain appellate review of a lower tribunal determination on whether assets are protected; and (6) a right of putative appellees to other remedies and sanctions for appellant s violation of the statute by dissipating or diverting assets. Referring to Supreme Court of Florida precedent, e.g., Caple v. Tuttle s Design-Build, Inc., 735 So. 2d 49 (Fla. 2000), Easley noted that the intertwining of substantive and procedural rights does not necessarily render a statute unconstitutional. Patrice Talisman submitted a memorandum on the unconstitutionality of 45.045, which John Mills presented. He explained that his personal beliefs on constitutionality of 4
statute should not sway others, since the constitutionality of the statute is for the courts to decide, not the committee. Chair Mullins reminded the full committee that the constitutionality of the statute is only relevant to determine the appropriate Rule amendment to propose, but that the committee will not be voting on whether statute is constitutional. Mills explained the difference between the state and federal rules, noting that in Florida there is a separation of powers in the Constitution that says only the Supreme Court can adopt procedure not the Legislature. He summarized the research on definitions of procedure v. substantive law and noted that if it relates to procedure it falls within the judicial power. If it is substantive it falls within the legislative power. In Wait v. Florida Power & Light Co., 372 So. 2d 420 (Fla. 1979) and City of Jacksonville Beach v. Public Employees Relations Comm n, 359 So. 2d 578 (Fla. 1 st DCA 1978), the courts expressly held that the obtaining of a stay order to prevent enforcement of a judgment is procedural law. Mills further noted that the right of appeal is not dependent on the posting of a bond, and that even if the stay provision affects the right to appeal, it affects the core judicial power that should be left to the courts. Mills distinguished the cases in Easley s memo as not addressing the simple question of whether the statute is procedural or substantive, and argued that the statute only comes into play when a final judgment is entered and the substantive rights of parties have been determined. What happens between the final judgment and the appeal are procedural matters, not substantive. 5
Chair Mullins explained that even though subcommittee vote was only 5-5 to change Rule 9.310, he decided, and the executive committee decided, to present the following two issues to the full committee: 1. Should Rule 9.310 be amended in light of 45.045 2. If so, should Rule 9.310 be amended in the form as suggested by the subcommittee? If the committee voted to amend Rule 9.310, the subcommittee proposed the following amendment: ********************************************************************* RULE 9.310. STAY PENDING REVIEW (a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both. (b) Exceptions. (1) Money Judgments. If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond satisfying the above criteria. (2) Reduction or Limitation on Bond Amount. Except in class actions subject to section 768.733, Florida Statutes, the amount of the supersedeas bond in subdivision (b)(1) is subject to modification as set forth in subdivisions (a) and (b) below: 6
(a) Reduction. A party seeking to stay execution of a judgment pending review may move the lower tribunal to reduce the amount of a supersedeas bond required to obtain such a stay. The lower tribunal, in the interest of justice and for good cause shown, may reduce the supersedeas bond or may set other conditions for the stay with or without a bond. The lower tribunal may not reduce the supersedeas bond if the party seeking_ a stay has an insurance or indemnification policy applicable to the case. (b) Limitation. Regardless of the amount of the judgment appealed, the supersedeas bond amount necessary to obtain an automatic stay in any civil action shall not exceed $50 million for each appellant. The $50 million amount shall be adjusted annually for inflation as provided by general law. (3) Protection for Party Opposing Stay. If a party seeking to stay execution of a judgment pending review has posted a supersedeas bond for an amount less than that required for an automatic AM pursuant to subsection (b)(1), the opposing_ party may engage in discovery for the limited purpose of determining whether the party seeking the stay has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so. If the lower tribunal determines that the party seeking a stay has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the lower tribunal may enter orders necessary to protect the opposing_ party, require the party seeking a stay to post a bond in the amount up to, but not more than, the amount required for an automatic stay pursuant to subdivision (b)(1), and impose other appropriate remedies and sanctions. (4) Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the state, any public officer in an official capacity, board, commission, or other public body seeks review; provided that an automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. On motion, the lower tribunal or the court may extend a stay, impose any lawful conditions, or vacate the stay. ********************************************************************* 7
Mullins again emphasized that the constitutionality of the statute is not the committee s decision, and that the only reason it was briefed was because members believed it may affect their decision to amend the Rule. Mullins thanked Easley, Talisman and Mills for their hard work and research. Subcommittee Chair Carroll made a motion to amend Rule 9.310 to conform with 45.045. Mills seconded the motion. Mullins asked for opposition to the amendment. Mills expressed that the Rule needs to be amended because of the conflict in the Rule and the statute, but did not advocate the amendment to the Rule that was being presented by the subcommittee. He reminded the committee of the close vote two years to amend Rule 9.310 to give courts discretion relating to posting supersedeas bonds, and the split of the appellate courts on the issue. He recommended that, if the position is to not resolve the conflict, then members should vote not to amend Rule 9.310. But if members believed that some change to the Rule is appropriate, then to vote yes, adding that a vote to amend the Rule does not mean that it has to be amended to conform to the statute. Carroll added that the motion is only whether the Rule should be amended not how. She argued that the issue is whether the current Rule can co-exist with the statute, and that it cannot. Edward Guedes agreed with John Mills and noted he is troubled by the statute because it is not well drafted and that the ACRC mechanism should not be used to correct it. Judge Alan Schwartz argued that voting in favor of a Rule change would moot the issue of whether the statute is procedural are substantive. If it is substantive it takes precedence over the conflicting Rule. The Supreme Court of Florida will decide whether the 8
substantive nature of the statute will overrule the Rule, and recommended that the committee vote not to amend the Rule. Carroll added that the subcommittee recommended new language to give the Florida Supreme Court some guidance if and when it addressed the issue. Mullins explained that if the committee decided not to amend Rule 9.310, it would provide our work product and memoranda to the Florida Supreme Court to resolve the issues if it wished to resolve them. Mills argued that the committee must respect the Legislature and defer to it on substantive matters, and that we should not moot out this issue by conforming Rule 9.310 to the statute. Easley noted that, although the committee did not pass the prior amendment to broaden discretion, she recommended to amend the Rule. Mullins explained that there is no reason to revisit the prior vote to not amend the bond rule and reiterated that the only issue for vote is whether an amendment is necessary in light of the statute, not whether an amendment is necessary to conform to the statute. Andrew Berman was concerned that if we amended a rule every time the Legislature passed a statute, the courts will lose their autonomy. Judge David Monaco argued that if the Florida Supreme Court rules that the statute affects substantive rights, that the committee should vote no on a rule amendment, but send a recommended Rule change to the Court if they want to amend the Rule. Thomas Hall clarified that the fast track letter advised the committee that an amendment may be required. Therefore, if the committee believes that no amendment is required, then the court would want a reason why. 9
Chair Mullins called the question whether Rule 9.310 should be amended in light of the 45.045. Vote failed 7 45. Chair Mullins asked whether the committee wanted to talk about sending proposed language to the Supreme Court, or leave the record as it was. Mullins stated he would entertained any motions as to what the committee wants to do. Michael Korn asked that if member have concerns about the drafting of the Rule how do members relay that concern to the subcommittee. Mills made a motion to expressly disprove a Rule change. Celene Humphries seconded the motion. Mills explained that there are 2 constitutional questions as to the cap on the bond and that the proposed Rule reflected a lot of the poor drafting of the statute because it is trying to conform to the statute. Robert Biasotti argued that if the statute is substantive then the amended Rule is proper. Judge Schwartz argued that Mills s motion was out of order because the committee agreed not to propose an amendment to Rule 9.310. Mills withdrew the motion to disprove a Rule change. c. Criminal Practice Subcommittee Subcommittee Chair Calianne Lantz reported that the subcommittee is addressing two issues: (1) whether Rule 9.142 should be amended relating to waiver of counsel in capital cases and (2) whether the rules relating to the record on appeal in death penalty cases should be amended. The subcommittee was not ready for a vote, but currently monitoring whether 10
any changes need to be made to the Rules. The subcommittee requested someone from the Criminal Rules Committee to aid them on the issues. Since the second issue came as a referral from the Supreme Court by letter from Thomas Hall, Lantz asked Hall whether the Court was looking for anything specific. Hall explained that the record that is created from a Rule 3.580 hearing is very limited. Rule 3.581 for death penalty cases refers to the complete record, but it is not specific as to what constitutes the record. Thus, the Court wanted the subcommittee to clarify what should go in the record on appeal in post conviction cases. The subcommittee hopes to have a proposal to the issues in January. d. Orientation Subcommittee Subcommittee Chair Dorothy Easley reported that the Orientation meeting was being conducted immediately after the full committee meeting and that the subcommittee is debating whether next year s Orientation meeting should be moved earlier in the year, to June. Chair Mullins called for a 5-minute break. e. Family Law Practice Subcommittee Subcommittee Chair Denise Powers had nothing to report, other than the subcommittee is dealing with the issue from the last ACRC meeting of providing the Florida Supreme Court with statistics regarding dependency proceedings in the various appellate courts as requested by the Court at oral argument on June 5, 2006. 11
f. General Practice Subcommittee Chair John Mills encouraged members to sign up for subcommittee because there are many issues pending and a lot of work to be done. He reported that the subcommittee reviewed new Rule 9.510 governing advisory opinions to the attorney general to determine whether comments by the ACRC would be helpful to the Florida Supreme Court, but that it agreed that no change to the rule was necessary. The subcommittee is also reviewing whether the Rules should be amended to address the issue of number of briefs per side when multiple parties have aligned interests on appeal and are being represented by the same party. In response to a request from the Florida Supreme Court to the ACRC, the subcommittee will be proposing a Rule amendment to prohibit Supreme Court review of PCA s. The subcommittee is also reviewing whether Rule 9.300 should be amended to conform with the 21-say safe-harbor provision in 57.105. Edward Guedes noted that the Civil Rules Subcommittee already addressed the issue and recommended not to amend Rule 9.300. Robert Biasotti responded that the issue addressed by the Civil Rules Subcommittee is slightly different and that their efforts would not be duplicative. Chair Mullins added that the General Practice Subcommittee and the Record on Appeal Subcommittee are very busy and need assistance, and that the specialized subcommittees such as criminal and family law, need members who work in that area of law. g. Record on Appeal Subcommittee Subcommittee Chair Robert Biasotti reported that it is reviewing the Rules in response to the Florida Supreme Court s Report on Privacy and Court Records to avoid the 12
unnecessary filing of personal information. He noted that the subcommittee s response needs to be done between now and the January meeting so there is a lot to be done. h. Workers Compensation Practice Rules Subcommittee The subcommittee had nothing to report. IV. SPECIAL SUBCOMMITTEE ISSUES AND REPORTS a. Internal Operating Procedures Subcommittee Subcommittee Chair Kristy Gavin reported that the subcommittee is reviewing three issues. The first issue is whether the IOP should be amended to clarify whether non-acrc members of subcommittees or ad hoc members could serve as chairs or have voting rights. The subcommittee decided not to allow ad hoc members to vote or serve as chairs. Motion is made by subcommittee to amend Section III of IOP as follows: ********************************************************************* III. Subcommittees... The chair shall have the discretion to appoint non-committee members to Standing, Special and Executive Subcommittees when special expertise is needed to assist with an issue being considered by a subcommittee. Such non-committee members may attend, and participate, and vote on issues at the subcommittee level and may attend and participate at the Committee level but shall have no voting rights at the subcommittee or committee level(s) and shall not serve as chair or vice chair of the subcommittee. ********************************************************************* Chair Mullins added that the issue came up based on concerns and comments from the June meeting on the role of ad hoc members. 13
Judge Lazzara opposed the motion, noting that the Worker Compensation Practice Rules Subcommittee has relied heavily on ad hoc members for years. Judge Lazzara made a friendly amendment to bifurcate vote as to whether amendment should apply to only certain subcommittees. Robert Pritt asked whether there can be an exception to allow ad hoc members to vote on just some subcommittees, instead of all. Chair Mullins noted his concern that, as Chair, he can appoint any one to be an ad hoc member and therefore, Chairs can select a group of ad hoc members not appointed by the Florida Bar president to sway a vote. John Crabtree added that ad hoc members do influence members voting. Robert Biasotti did not agree to the proposed amendment, noting that if you do not accept a vote from the ad hoc members, it affects the quorum. Chair Mullins clarified that ad hoc members do not count towards the quorum. Fran Toomey questioned whether there is anything in the IOPs regarding a quorum on subcommittee sections. Mullins referred the issue to the subcommittee for clarification. Dorothy Easley added to the friendly motion that many consideration should go to the size of the subcommittee. Veronica Donnelly argued that ad hoc members were specifically created to create a balance on the committee. In light of the comments, Subcommittee Chair Gavin withdrew the motion and submitted another motion to only amend Section III of the IOP by deleting subcommittee or from the language: 14
********************************************************************* III. Subcommittees... The chair shall have the discretion to appoint non-committee members to Standing, Special and Executive Subcommittees when special expertise is needed to assist with an issue being considered by a subcommittee. Such non-committee members may attend, and participate, and vote on issues at the subcommittee level and may attend and participate at the Committee level but shall have no voting rights at the committee level(s) and shall not serve as chair or vice chair of the subcommittee. ********************************************************************* Michael Korn seconded the motion. The motion carried 45 0. The subcommittee is also in the process of reviewing whether the IOP s should be amended to clarify procedures on committee notes to the Rules. The subcommittee also reviewed the issue of whether special committee chairs should be included as members of the executive committee. It made a motion to amend the IOPs to state that they should not be included as members of the executive committee because special committees are usually created only for a brief period: ********************************************************************* III. Subcommittees c. Executive Subcommittee. The Executive Subcommittee shall consist of the Chair, the Vice Chair, the Secretary, all standing Subcommittee Chairs, and the immediate past-chair if still on the Committee.... ********************************************************************* 15
Kathleen O Connor opposed the motion. Chair Mullins expressed his concern that special subcommittees are created at the whim of the Chair. John Mills asked whether the Chair can appoint as many special committees as it wants to pack the Executive Committee. John Crabtree questioned whether special subcommittee chairs had ever staged a coup against the other Executive Committee members. Fran Toomey added that the concern is having a quorum at the Executive Committee level, noting the larger the committee, the harder it is to get a quorum. Roberta Mandel asked how many special committee chairs there were, to which Chair Mullins answered two, and clarified that the issues did not affect current special committee chairs. Celene Humphries asked how many Executive Committee members there were, to which Chair Mullins answered approximately 10, and noted that one was eliminated today. John Mills argued that consistency is the key. Former Chair Jack Reiter added that special subcommittees are very important because they may ultimately become standing committees, and thought it was helpful to invite those members on to the Executive Committee. In light of the comments, Subcommittee Chair Gavin withdrew the motion. b. Special Subcommittee on Electronic Filing and Service Subcommittee Chair John Crabtree reported that the subcommittee prepared proposed revisions to the Rules relating to the new electronic filing requirements and explained that the state filing system would be akin to the federal system where service is completed electronically in real time. Since the Florida Supreme Court pushed back the roll out for 16
electronic filing, the subcommittee has more time to consider its revisions and asked for feedback from the full Committee. Crabtree asked Thomas Hall as to the Florida Supreme Court s pulse on the issue. Hall explained that the Court was ready to begin, but that the system had to be modified because it learned that Section 508 of the Americans with Disability Act, which provides that anything one makes electronic over the internet must be ADA compliant, applied to electronic filing. Hall added that the electronic filing project in Manatee County had been approved and was not a pilot project any more. There was also a recommendation to approve the Broward County electronic system. Hall further stated that there was an issue regarding allowing for electronic records on appeal. Crabtree explained that the proposed Rule amendments anticipated that the record would be allowed electronically. Chair Mullins encouraged members to join the subcommittee and to direct any comments on the proposed new language directly to the subcommittee. c. Original Proceedings Subcommittee Chair Kathleen O Connor had nothing to report. V. ADJOURNMENT Chair Mullins adjourned the meeting and requested that new members and those invited to speak at Orientation to take a break and return for the Orientation meeting. 17