Jennifer Carroll, Chair Civil Rules Subcommittee of the Appellate Court Rules Committee

TO: CC: FROM: Ed Mullins, Chair Appellate Court Rules Committee Joanna Mauer, Legal Editor Florida Bar Jennifer Carroll, Chair Civil Rules Subcommittee of the Appellate Court Rules Committee DATE: August 21, 2006 COMMITTEE MEMBERS: Steve L. Brannock; Natalie J. Carlos; Jim H. Daniel; Veronica E. Donnelly; Dorothy F. Easley; Edward G. Guedes; Valeria Henricks; Celene Humphries; Chris M. Kise; A. Hinda Klein; Honorable Joseph Lewis, Jr.; Maria C. McGuinness; David K. Miller; Honorable David A. Monaco; Edward M. Mullins; Kathleen O Connor; Kelly A. O Keefe; Honorable Alan R. Schwartz; Rodolfo Sorondo, Jr.; Patrice A. Talisman RE: Civil Rules Subcommittee Report REPORT The subcommittee first met on June 29, 2006 in response to the Florida Supreme Court s letter of May 30, 2006 to the Florida Bar President with respect to potential rule changes which may result from new legislation -- Section 45.045 Florida Statutes (Supp. 2006) (HB 841). At that time, the subcommittee believed it was operating under a fast-track procedure. While concerns were expressed over the constitutionality of Section 45.045, the subcommittee questioned whether it was the role of the subcommittee to decide the constitutionality of the statute. The consensus of the subcommittee was to proceed to draft a rule amendment in response to this new legislation. The subcommittee met telephonically on July 6, 2006 and voted upon a proposed amendment for consideration by the ACRC Executive Committee. The Executive Committee determined that more time was available to the subcommittee to address the Florida Supreme Court s letter. The Executive Committee directed the Civil Rules Subcommittee to do the following: 1. Brief the constitutionality/unconstitutionality of Section 45.045; 2. Make recommendation regarding need for rule changes; and 3. Draft best rule amendment possible. Pursuant to that directive, memoranda were prepared by subcommittee members Dorothy Easley and Patrice Talisman. Copies of the two memoranda are attached as Appendix 1 and Appendix 2. The subcommittee submits this

format because it was assigned the task of presenting a point/counterpoint approach in an attempt to fully and objectively brief the issue of the constitutionality of HB 841. It is believed that such an approach will aid the Florida Supreme Court s review of this issue. Additional telephone conferences were held on August 7, 2006 and August 16, 2006. Judicial members of the subcommittee were not in attendance. From her research and analysis, Ms. Easley found that Section 45.045 does not create or modify a procedural rule of court and is not constitutionally infirm. While it contains procedural components, the statute primarily creates substantive rights of appeal. In addressing the counterpoint analysis, Ms. Talisman found that the provisions of Section 45.045 are procedural. Stays are procedural and within the exclusive jurisdiction of the Florida Supreme Court. The legislature may not amend Rule 9.310 by statute, which is what is has tried to do by Section 45.045. Ms. Talisman concludes that the statute is unconstitutional in its entirety. The subcommittee did not take a position on whether Section 45.045 is constitutional. Regarding the recommendations for the need for rule change, the subcommittee was evenly split (5/5 vote). The rationale of those members opposing recommending a rule change was that the statute is unconstitutional, and no rule change is needed. The rationale of those members in favor of a rule amendment was as follows: (1) there exists a conflict among the District Courts of Appeal and that conflict should be resolved; (2) judges should be given discretion; and (3) the rule and statute should be consistent. These members also believe a proposed rule amendment would be helpful to the Florida Supreme Court. At the ACRC Chair s request, the subcommittee finalized a proposed amendment to Florida Rule of Appellate Procedure 9.310. Appendix 3 That proposed amendment includes the subcommittee s draft from the July 6, 2006 (Appendix 4)meeting, with additional changes made by subcommittee members Dave Miller and Jim Daniel. The minutes of the four (4) telephonic meetings of the subcommittee are attached hereto as Appendix 5. Index to Appendix 1. Amended and Supplemented Memorandum from Dorothy Easley 2. Supplemental Amended Memorandum from Patrice Talisman 3. Final Proposed Amendment, August 16, 2006 4. First Proposed Amendment to Florida Rule of Appellate Procedure 9.210 in Response to HB 841, July 6, 2006

5. Minutes of Wednesday, August 16, 2006 Telephonic Meeting 6. Minutes of Monday, August 7, 2006 Telephonic Meeting 7. Minutes of Thursday, July 6, 2006 Telephonic Meeting 8. Minutes of Thursday, June 29, 2006 Telephonic Meeting

TO: JENNIFER CARROLL, CHAIR, CIVIL RULES SUBCOMMITTEE OF THE APPELLATE COURT RULES COMMITTEE FROM: DOROTHY EASLEY, CIVIL RULES SUBCOMMITTEE MEMBER DATE: JULY 30, 2006, AMENDED & SUPPLEMENTED 8-15-06 RE: WHETHER HB 841 CREATING 45.045, FLA. STAT. (SUPP. 2006), PURPORTS TO CREATE OR MODIFY A PROCEDURAL RULE OF COURT AND, IF SO, WHETHER IT IS CONSTITUTIONALLY INFIRM SHORT ANSWER AND RECOMMENDATION HB 841 creates 45.045, Fla. Stat. (Supp. 2006), which concerns limitations on supersedeas bonds in some instances. It contains procedural components, but primarily creates substantive rights to appeal, to the safeguard of assets, and remedies for its violation by effectively removing the cost impediments to appeals that have historically existed (effectively denying a right to an appeal because of the sheer costs of obtaining a bond to stay execution of a money judgment) and by providing discovery procedures to protect assets with teeth where discovery uncovers the dissipation or diversion of assets. It also contains a reverter provision, such that courts have the discretion to revert to Fla. R. App. 9.310(b)(1) and still impose the supersedeas bond requirements under current Rule 9.310(b)(1). There is a robust body of federal law showing that this is a much-needed solution to a present problem that effectively denied appellate review because of the sheer costs of a bond to stay execution of a money judgment, and the solution demonstrably works. As such, it does not exclusively or primarily create or

modify a procedural rule of court and is not constitutionally infirm. Even assuming some constitutionality defects, under the canons of constitutional construction, the statute can be, and should be, construed as constitutional. Amendments to Fla. R. App. P. 9.310 implementing the statute and effectuating the intent of the Legislature should be proposed; and, where appropriate and to the extent the Supreme Court of Florida concludes it is constitutional, those amendments should be adopted. ANALYSIS AND REASONING 1 A. APPLICABLE LEGAL STANDARDS It is a well-established principle that a statute that purports to create or modify a procedural rule of court is constitutionally infirm. 2 This principle is grounded in article V, section 2(a) of the Florida Constitution. That section states that the Supreme Court of Florida shall adopt rules for the practice and procedure in all courts. The constitution further provides that the legislature may not exercise powers constitutionally bestowed on the courts. 3 Additionally, "[i]t is a fundamental rule of statutory construction that, if at all possible, a statute should be construed to 1 All emphasis is added unless otherwise noted. 2 Markert v. Johnston, 367 So. 2d 1003 (Fla. 1978); Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So. 2d 1020 (Fla. 4th DCA 1981). 3 See art. II, 3, Fla. Const.

be constitutional." 4 Courts are required "to resolve all doubts as to the validity of a statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent." 5 Where a statute is substantive, and not procedural, and "operates in an area of legitimate legislative concern," the court should not invalidate it as an intrusion on the Supreme Court's rulemaking authority. 6 The statute should be construed as constitutional, if at all possible. 7 The Supreme Court has also consistently held that statutes should be construed to effectuate the express legislative intent and all doubts about the validity of any statute should be resolved in favor of constitutionality. 8 This is particularly so in areas of the judicial process, which necessarily involve both procedural and substantive provisions to accomplish a proposal's objective. 9 4 St. Mary's Hospital, Inc. v. Phillipe, 769 So. 2d 961, 972 (Fla. 2000). 5 State v. Elder, 382 So. 2d 687, 690 (Fla. 1980). 6 VanBibber v. Hartford Acc. & Indem. Ins. Co., 439 So. 2d 880, 883 (Fla. 1985). 7 VanBibber, 439 So. 2d at 883. 8 Leapai v. Milton, 595 So. 2d 12, 14 (Fla. 1992). 9 Leapai v. Milton, 595 So. 2d 12, 14 (Fla. 1992).

With the above, the question remains, what is meant by a substantive right and by a procedural rule of court? Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. Practice and procedure may be described as the machinery of the judicial process as opposed to the product thereof. 10 Stated differently, practice and procedure concern themselves with the methods of conducting litigation over rights and corresponding defenses. 11 Substantive law, on the other hand, prescribes the duties and rights under our system of government. 12 "Substantive law creates, defines and regulates rights." 13 While substantive law includes "those rules and principles that fix and declare the primary rights of individuals with respect to 10 In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 66 (Fla. 1972) (Adkins, J., concurring). 11 Skinner v. City of Eustis, 147 Fla. 22, 2 So. 2d 116 (1941). 12 Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975). 13 State v. Garcia, 229 So. 2d 236 (Fla. 1969).

their persons and property," 14 procedural law concerns the means and method to apply and enforce those duties and rights. 15 B. FLA. R. APP. P. 9.310 AND THE STATUTE IN QUESTION-- HB 841 CREATING 45.045, FLA. STAT. (SUPP. 2006) CONTAINS SUBSTANTIVE RIGHTS WITH PROCEDURAL COMPONENTS. The text of Fla. R. App. P. 9.310, with key language for comparison with HB 841, is as follows: 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) 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 14 Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991). 15 Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975).

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. (c) Bond. (1) Defined. A good and sufficient bond is a bond with a principal and a surety company authorized to do business in the State of Florida, or cash deposited in the circuit court clerk's office. The lower tribunal shall have continuing jurisdiction to determine the actual sufficiency of any such bond. (2) Conditions. The conditions of a bond shall include a condition to pay or comply with the order in full, including costs; interest; fees; and damages for delay, use, detention, and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may be required by the lower tribunal. (d) Judgment Against a Surety. A surety on a bond conditioning a stay submits to the jurisdiction of the lower tribunal and the court. The liability of the surety on such bond may be enforced by the lower tribunal or the court, after motion and notice, without the necessity of an independent action. (e) Duration. A stay entered by a lower tribunal shall remain in effect during the pendency of all review proceedings in Florida courts until a mandate issues, or unless otherwise modified or vacated. (f) Review. Review of orders entered by lower tribunals under this rule shall be by the court on motion. 16 The text of HB 841 creating 45.045, Fla. Stat. (Supp. 2006), with the relevant terms highlighted, provides as follows: H.B. No. 841 16 For a through discussion of Fla. R. App. P. 9.310 and the cases construing it, see Jack R. Reiter, Putting The Brakes On Litigation: Stays Pending Review, 77 Fla. B.J. 50 (Nov. 2003).

SUPERSEDEAS BOND An act relating to supersedeas bond; creating s. 45.045, F.S.; limiting the amount of supersedeas bond required for certain appellants; providing that a party may move the court to reduce the supersedeas bond; providing an exception to limits if an appellant engages in certain conduct for the purpose of avoiding payment of the judgment; providing applicability; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Section 45.045, Florida Statutes, is created to read: << FL ST 45.045 >> 45.045. Limitations on supersedeas bond; exception (1) Except for certified class actions subject to s. 768.733, in any civil action brought under any legal theory, the amount of a supersedeas bond necessary to obtain an automatic stay of execution of a judgment granting any type of relief during the entire course of all appeals or discretionary reviews, may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed. The $50 million amount shall be adjusted annually to reflect changes in the Consumer Price Index compiled by the United States Department of Labor. (2) In any civil action brought under any legal theory, a party seeking a stay of execution of a judgment pending review of any amount may move the court to reduce the amount of a supersedeas bond required to obtain such a stay. The court, 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 court may not reduce the supersedeas bond if the appellant has an insurance or indemnification policy applicable to the case. This subsection does not apply to certified class actions subject to s. 768.733.

(3) If an appellant has posted a supersedeas bond for an amount less than that which would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, the appellee may engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so. (4) If the trial or appellate court determines that an appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate. Section 2. This act shall take effect July 1, 2006, and shall apply to judgments rendered on or after that date. Approved by the Governor June 22, 2006. HB 841, when compared with Fla. R. App. P. 9.310, is not necessarily in conflict with the Rule (the Rule also reflects court discretion to consider other conditions for a stay upon motion), though amendment of the Rule is required to implement HB 841. This is because HB 841 creates or expands substantive rights and imposes duties in at least six ways upon the author s analysis. Further analysis and discussion among the subcommittee members

may reflect that there even more rights and duties created. The rights are duties created or expanded include: 1. A meaningful right to an appeal that a putative appellant presently subject to a money judgment against him/her/it, who cannot post any bond, or cannot post a bond for the full amount of the judgment plus two years of interest under the current 9.310(b)(1), would otherwise bring [ 2 provides: (2) In any civil action brought under any legal theory, a party seeking a stay of execution of a judgment pending review of any amount may move the court to reduce the amount of a supersedeas bond required to obtain such a stay. The court, 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. ]; 2. A meaningful right to an appeal by a putative appellant presently subject to a money judgment against him/her/it, who cannot post a bond for the full amount of the judgment greater than $50 million plus two years of interest under the current 9.310(b)(1), would otherwise bring [ 1 provides: in any civil action brought under any legal theory, the amount of a supersedeas bond necessary to obtain an automatic stay of execution of a judgment granting any type of relief during the entire course of all appeals or discretionary reviews, may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed. ]; 3. A meaningful right to discretionary review in the Supreme Court of Florida with a further guaranteed stay of proceedings beyond the appellate court level [ 1 provides an automatic stay of execution of a judgment granting any type of relief during the entire course of all appeals or discretionary reviews ]; 4. A meaningful right of a putative appellee to engage in meaningful discovery directed to determining whether assets

are protected and seek a judicial determination on whether assets are adequately protected [ 3 provides: If an appellant has posted a supersedeas bond for an amount less than that which would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, the appellee may engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so. 4 provides: If the trial or appellate court determines that an appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate. ]; 5. A meaningful right of a putative appellee to obtain appellate review of a lower tribunal judicial determination on whether assets are adequately protected [ 3, quoted above, also refers to the appellate court review. Since appellate courts are not fact-finding bodies, the interpretation of HB 841 to create a right in the appellate court to find facts is problematic. [ 4 provides: If the trial or appellate court determines that an appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate. ]; and 6. A meaningful right to a putative appellee to other remedies and sanctions for violation of this statute upon a judicial determination that the appellant has either dissipated or

diverted assets or is about to in the process of doing so. [ 4 provides: If the trial or appellate court determines that an appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate. ]. At the same time that HB 841 creates rights and imposes duties, it also provides the courts with judicial discretion to balance when and how to impose supersedeas bonds on money judgments. See, e.g., HB 841 2 ( The court, 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 court may not reduce the supersedeas bond if the appellant has an insurance or indemnification policy applicable to the case.); see also, e.g., HB 841 4 ( the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate ). Irrefutably, the statute contains procedural components that impact Fla. R. App. P. 9.310 by dictating to the courts, among

things, the amount of a bond and the elements that a court may consider in balancing the parties rights and duties associated with a supersedeas bond. It is also true that the Florida Legislature s Substantive Analysis expresses concerns that HB 841 may be a constitutionally impermissible intrusion on the Court s rule making authority because the requirements of supersedeas bonds are contained in the Florida Rules of Appellate Procedure. See House of Representatives Staff Analysis of HB 841 CS at 3. Respectfully, however, focusing on solely the fact that the statute may contain procedural components is an incorrect analysis under Supreme Court of Florida precedent. The Supreme Court of Florida has recognized that there are some substantive statutes that permissibly include procedural elements. See Kalway v. State, 730 So. 2d 861, 862 (Fla. 1st DCA 1999) (holding that when a statute has procedural elements, the court must then decide whether those elements impermissibly intrude upon the procedural practice of the courts). Kalway concerned 57.085, Fla. Stat. (1997), which required Kalway to file, upon his request for indigency status, information showing activity in his prisoner bank account, and the Court still concluded that,

because the statute was primarily directed at substantive rights, it s plain procedural components did not unconstitutionally interfere with the Court s rule making authority. Although the statute had procedural aspects-it contained directives concerning the manner in which the substantive objective was to be reached-the thrust of the statute involved the right of indigents to proceed without payment of court costs, which was undoubtedly a substantive matter. The minimal procedural aspect of the statute was proper in order to implement the substantive law, and the procedural aspect did not conflict with any existing court rule nor did it bar the Supreme Court from adopting specific rules designed to carry out the substantive goal of section 57.085. Although we found in Kalway that section 57.085 did intrude on the practice and procedure of the courts, it did not impermissibly do so. 17 Kalway is not an atypical decision. Where statutes concerned substantive rights (in this instance, the substantive right to an appeal by mitigating costs impediments) intertwined with procedural components, the Supreme Court of Florida has not hesitated in rejecting constitutionality challenges to those statutes. See, e.g., Caple v. Tuttle's Design-Build, Inc., 753 So. 2d 49 (Fla.2000) (holding that statute at issue created substantive rights and any procedural provisions were merely incidental to those 17 State v. Raymond, 906 So. 2d 1045, 1049-50 (Fla. 2005) (quoting Kalway v. State, 730 So. 2d 861, 862 (Fla. 1st DCA 1999)).

rights); Smith v. Dep't of Ins., 507 So. 2d 1080, 1092 & n.10 (Fla. 1987) ("any procedural provisions of these sections are intimately related to the definition of those substantive rights") (concerning pleading punitive damages, standards for remittitur and additur and itemized verdict requirements); see also Lunstrom v. Lyon, 86 So. 2d 771, 772 (Fla. 1956) (statute of limitations creates substantive rights); VanBibber, 439 So. 2d 880 (statute that prohibited joinder of insurers within legislature's power to regulate insurance industry, though it affected joinder of parties in courts). Like the above cited Supreme Court precedent, it is likely that HB 841 will also be deemed to create a statute having a primarily substantive thrust with procedural components. C. OTHER EXAMPLES WHERE STATUTES INTERTWINING SUBSTANTIVE RIGHTS WITH PROCEDURAL COMPONENTS HAVE BEEN DEEMED CONSTITUTIONAL. Caple v. Tuttle s Design-Build, Inc., 753 So. 2d 49 (Fla. 2000), further provides guidance on the issues presented here. In Caple, the Supreme Court of Florida held that a statute allowing a mortgagee suing to foreclose its nonresidential mortgage, without the necessity of posting a bond, to obtain a prejudgment order directing the mortgagor to pay interest, did not violate due process

or infringe on the Court's rulemaking authority. In Caples, a mortgagee suing to foreclose its nonresidential mortgage asked for issuance of show cause order why the mortgagor should not be required to make interest payments while the foreclosure action was pending. The lower court entered order requiring the mortgagor to make interest payments or to post bond. The Third District Court of Appeal, 712 So. 2d 1213, reversed and remanded. Because the Third District Court of Appeal declared 702.10(2), Florida Statutes (1997), unconstitutional under the Due Process Clauses of the United States and Florida Constitutions, 18 the mortgagee was able to appeal to the Supreme Court of Florida. 19 Relying on this Court's opinion in Gazil, Inc. v. Super Food Services, Inc., 356 So. 2d 312 (Fla. 1978), Tuttle asserts that the statute's failure to require a creditor's bond violates due process and thus renders it unconstitutional. Additionally, Tuttle argues that section 702.10(2) conflicts with (1) Florida Rule of Civil Procedure 1.610(b) by failing to require a creditor's bond even though it authorizes what is essentially a temporary injunction, and (2) Florida Rule of Civil Procedure 9.310 by requiring a mortgagor's bond that greatly exceeds the supersedeas bond provided by the rule. Thus, Tuttle reasons, section 702.10(2) encroaches upon this Court's rulemaking authority. We disagree with Tuttle's 18 U.S. Const. amend. V, XIV; art. I, 9, Fla. Const. 19 Tuttle s Design-Build, Inc., 753 So. 2d at 50. The Court s mandatory jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

arguments. * * * Section 702.10(2) was designed to protect the property rights of commercial creditors and debtors during litigated foreclosure proceedings. Before the enactment of section 702.10(2), a mortgagee did not have the right to receive mortgage payments or to protect the value of the security for that payment prior to the entry of a final judgment, a process that was often time-consuming and replete with delays. 20 In State v. Golden, 350 So. 2d 344 (Fla. 1976), the Court was faced with a determination of whether a statute which concerned the period of time a juvenile may be detained prior to a judicial hearing was procedural or substantive. The Court found the statute, which reduced the time period from 48 to 24 hours, created a substantive right to a detention hearing speedier than that afforded by the rule. 21 The Court reasoned that "the length of time an individual may spend in confinement is substantive in nature and within the prerogative of the Legislature to the extent it does not violate a constitutional provision." 22 A helpful example through contrast is State v. Raymond, 906 So. 2d 1045, 1049-50 (Fla. 2005), where the Court was asked to consider whether 20 Tuttle s Design-Build, Inc., 753 So. 2d at 51, 54. 21 Golden, 350 So. 2d at 347. 22 Golden, 350 So. 2d at 347.

907.041(4)(b), Fla. Stat. (2000), impermissibly intruded upon the supreme court's rule making authority in violation of the separation of powers clause of article II, section 3, of the Florida Constitution. In holding it did, the Court s language provides extremely helpful guidance and is quoted at length here for that reason: Importantly, prior to the 2000 amendment, Florida Rule of Criminal Procedure 3.130(d) required the trial judge to determine and impose the conditions of pretrial release pursuant to rule 3.131 at the first appearance hearing. Rule 3.131(b) pertains to the first appearance hearing and states that the court shall conduct a hearing to determine pretrial release. Rule 3.131(b)(1)(D) provides that, at first appearance, one of the pretrial release conditions to be considered is placement of the defendant in the custody of a designated person or organization agreeing to supervise the defendant. PTS qualifies as the designated person or organization referred to in the rule. In 2000, the Legislature amended section 907.041, and repealed Rules 3.131 and 3.132, Florida Rules of Criminal Procedure, relating to pretrial release and pretrial detention, to the extent of inconsistency with the act. Ch. 00-178, 5, at 1909, Laws of Fla. The session law is inconsistent with rules 3.131 and 3.132 on the issue of whether certain defendants will be considered for nonmonetary pretrial release at the first appearance hearing. The rules require the judge to determine and impose the conditions of pretrial release at the first appearance hearing for all defendants, but the session law prohibits such consideration for certain defendants by specifying that [n]o person charged with a dangerous crime shall be granted nonmonetary pretrial release at a first appearance hearing. Thus, those portions of the rules which require the trial judge to determine and impose the conditions of pretrial release for persons charged with a dangerous crime at the first appearance, including nonmonetary conditions, have been repealed by the Legislature. 23 23 Raymond, 906 So. 2d at 1051.

If a statute is substantive and [ ] operates in an area of legitimate legislative concern, then courts are precluded from finding it unconstitutional. 24 In this instance, the thrust of HB 841 is to expand the now-existing rights and duties of parties under Fla. R. App. 9.310. It addressed a real social concern that the appellate process be available to all Florida citizens. Edward Mullins & Annette C. Escobar, Staying A Money Judgment In Federal Court Without Posting A Supersedeas Bond, 77 Fla. B.J. 45 (Dec. 2003), provides a through survey of the federal courts recognizing that bond requirements may effectively deny appellate review and of decades of federal decisions showing that waiving the bond requirements, under compelling circumstances, effectuates justice. The article ends with the following notable observations: The courts, in previous cases, have acknowledged that justice and the public interest favor the use of judicial discretion, rather than application of an unvarying rule, in requiring or excusing a supersedeas bond in order to grant stays pending appeal. In exercising its discretion, a court will consider the individual circumstances of the case, making certain to balance a concern for protecting the judgment creditor with the need to ensure that the status of the judgment debtor is not endangered to the detriment of its other creditors and the public. The court will also [] take into account the likelihood of success on appeal in order to decide if the judgment creditor should bear the risk of a stay without a full supersedeas bond. 25 24 VanBibber, 439 So. 2d at 883. 25 Mullins & Escobar, Staying A Money Judgment In Federal Court Without Posting A Supersedeas Bond, 77 Fla. B.J. at 49.

HB 841 provides more opportunities for appellate review that otherwise may not be had for Florida citizens who otherwise simply cannot afford the heavy costs and attorneys fees incurred during the appellate process. It addresses a social reality and, to the end, expands substantive rights through meaningful appellate review with greater safeguards for all appellate parties. The fact that HB 841 may coincide with Fla. R. App. P. does not appear fatal. The legislature has the authority to determine an appellant s right to appeal and an appellee s right to security during the appellate process. HB 841 also contains a reverter provision, such that courts have the discretion to revert to Fla. R. App. 9.310(b)(1) and still impose the supersedeas bond requirements under current Rule 9.310(b)(1).And HB 841 preserves those rights by preserving judicial discretion and a Fla. R. App. P. 9.310(b)(1) express reverter provision that explicitly preserves the reason for the Rule. As such, HB 841 does not usurp the Court's rule making power. It merely limits the burdens on putative appellants of money judgments provided they show, to the courts, good cause and that justice is being effectuated. It further informs the putative appellant that they cannot appeal and not be subject to discovery and continued judicial scrutiny for the preservation of assets. As such, HB 841 s primary thrust is substantive. HB 841 provides more opportunities to protect parties during the appellate process and an opportunity for discovery into the ability to pay a prevailing party

during the appellate process. It further provides important disincentives to putative appellants considering the disposition or dissipation of assets. And it creates rights and remedies for appellees should assets be redirected. Finally, it provides numerous openings for judicial discretion and the Court s rule making to implement rules to effectuate the statute, including (1) the balancing of for good cause shown, (2) what factors constitute good cause, (3) the criteria for determining when assets are being dissipated or diverted, (4) the orders necessary protect the appellee and (5) additional remedies for the violation of HB 841. The mandatory directive in HB 841 that caps a supersedeas bond at $50 million is problematic at first reading. The constitutionality of that cap, however, does not, in the author s opinion, impermissibly intrude on the Court s rule making authority. This because 4 provides gives the courts with the discretion to impose a supersedeas bond in the amount as set forth in the current Fla. R. App. P. 9.310(b)(1). For these reasons, the concerns at issue in Raymond do not appear to be at issue in this instance. Other Florida statutes have operated in a similar manner. Section 77.24, Fla. Stat., for example, has permitted a garnishee to secure release of its property at any time before entry of judgment by posting a bond "[i]n at least double the amount claimed in the complaint with interest and costs or if the value of the property garnished is less than this amount, then double the value..." Section 78.068, Fla.

Stat., has permitted a replevin defendant to obtain release of the property seized under a prejudgment writ by posting bond in the amount of one and a quarter the amount due and owing on the agreement. Neither of these statutes have been deemed unconstitutional simply because they legislated an issue coincidentally and possibly covered by a rule of procedure. D. EXPANDING OR RENDERING APPELLATE RIGHTS MEANINGFUL DOES NOT VIOLATE THE SEPARATION OF POWERS. In Kalway v. Singletary, 708 So. 2d 267 (Fla. 1998), the Supreme Court of Florida was presented with a prisoner s challenge against the Department of Corrections from a prisoner s petition for writ of mandamus challenging prisoner disciplinary action. The trial court denied the writ as time barred. The prisoner appealed. The Third District Court of Appeal, 685 So. 2d 973, affirmed and certified conflict. The Supreme Court of Florida held that the interplay between the court rule for seeking extraordinary remedies and the statute setting time limit for challenging correctional disciplinary actions did not violate the separation of powers doctrine. True, the Court did recognize the potential conflict between the new Reform Act and the judicial rulemaking powers. 26 26 Kalway v. Singletary, 708 So. 2d at 268.

Florida citizens seeking extraordinary relief in the courts of this state must comply with the general filing requirements-including time restrictions-set forth in this Court's rules of procedure. See generally Fla. R. Civ. P. 1.630; Fla. R.App. P. 9.100. Florida Rule of Civil Procedure 1.630, entitled Extraordinary Remedies, provides in part: (a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus. * * * (c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed. Id. (emphasis added). The specific time provided by law for prisoners seeking relief from disciplinary action taken by the Department of Corrections (the Department) is set forth in section 95.11(8), Florida Statutes (1995): 95.11 Limitations other than for the recovery of real property.-actions other than for recovery of real property shall be commenced as follows: * * * (8) WITHIN 30 DAYS FOR ACTIONS CHALLENGING CORRECTIONAL DISCIPLINARY PROCEEDINGS.-Any court action challenging prisoner disciplinary proceedings conducted by the Department of Corrections pursuant to s. 944.28(2) must be commenced within 30 days after final disposition of the prisoner disciplinary proceedings through the administrative grievance process under chapter 33, Florida Administrative Code. Any action challenging prisoner disciplinary proceedings shall be

barred by the court unless it is commenced within the time period provided by this section. 95.11, Fla. Stat. (1995). 27 In fact, the supreme court had amended its rules of procedure, effective January 1, 1997, to adopt the same thirty day time limit set forth in the statute: RULE 9.100 ORIGINAL PROCEEDINGS (a) Applicability. This rule applies to those proceedings that invoke the jurisdiction of the courts for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts' jurisdiction * * * (c)...the following shall be filed within 30 days of rendition of the order to be reviewed: * * * (4) A petition challenging an order of the Department of Corrections entered in prisoner disciplinary proceedings. Fla. R.App. P. 9.100. The amendment became effective January 1, 1997. Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996). 28 The Court held, however, that the interplay between rule 1.630 and 95.11(8) did not constitute a separation of powers violation. 29 The language set forth below suggests, therefore, that, to the extent courts conclude the thrust of HB 841 is the shoring up of a meaningful substantive right to appeal, the statute does not 27 Kalway v. Singletary, 708 So. 2d at 268-69. 28 Kalway v. Singletary, 708 So. 2d at 269-70. 29 Kalway v. Singletary, 708 So. 2d at 269-70.

violate the separation of powers and the Court, indeed, may permit amendment to Rule 9.310: As a practical matter, the Court on occasion has deferred to the expertise of the legislature in implementing its rules of procedure. See, e.g., Amendment to Florida Rule of Juvenile Procedure 8.100(a), 667 So. 2d 195, 195 (Fla. 1996) (noting that the need for juvenile detention shall be made according to the criteria provided by law and explaining that these include those requirements set out in section 39.042, Florida Statutes (1995) ); In re Family Law Rules of Procedure, 663 So. 2d 1049, 1086 (Fla.1995) (setting forth amended rule 12.740, which provides that all contested family matters may be referred to mediation, [e]xcept as provided by law ). The setting of an interim time frame for challenging the Department's disciplinary action following the exhaustion of intradepartmental proceedings is a technical matter not outside the purview of the legislature. We do not view such action as an intrusion on this Court's jurisdiction over the practice and procedure in Florida courts. Separation of powers is a potent doctrine that is central to our constitutional form of state government. See Art. II, 3, Fla. Const. ( No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. ). This does not mean, however, that two branches of state government in Florida cannot work hand-in-hand in promoting the public good or implementing the public will, as evidenced by our recent decision in Amendments to the Florida Rules of Appellate Procedure, 685 So. 2d 773 (Fla.1996), wherein we deferred to the legislature in limited matters relating to the constitutional right to appeal: [W]e believe that the legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants' legitimate appellate rights. Of

course, this Court continues to have jurisdiction over the practice and procedure relating to appeals. Id. at 774-75 (emphasis added). The deferral in rule 1.630 noted above, i.e., within the time provided by law, is far less extensive than that in Amendments. E. A STATUTE THAT INCLUDES PROVISIONS, WHICH CREATES A SUBSET OF DISCOVERY PROVISIONS TO PROMOTE APPELLATE RIGHTS, WITHIN A SUBSET OF EXISTING RULES OF DISCOVERY, DOES NOT NECESSARILY VIOLATE THE SEPARATION OF POWERS, WHERE THOSE PROVISIONS ARE CONSTRUED TO DIRECTLY RELATE TO CREATING A THE SUBSTANTIVE RIGHT OF A MEANINGFUL RIGHT TO APPEAL. At first blush, the discovery provisions in HB 841 creating 45.045, Fla. Stat. (Supp. 2006), would appear to violate the separation of powers. HB 841, with the relevant terms highlighted, explicitly contains discovery provisions: H.B. No. 841 SUPERSEDEAS BOND An act relating to supersedeas bond; creating s. 45.045, F.S.; limiting the amount of supersedeas bond required for certain appellants; providing that a party may move the court to reduce the supersedeas bond; providing an exception to limits if an appellant engages in certain conduct for the purpose of avoiding payment of the judgment; providing applicability; providing an effective date. * * * << FL ST 45.045 >> 45.045. Limitations on supersedeas bond; exception * * * (3) If an appellant has posted a supersedeas bond for an amount less than that which would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida

Rules of Appellate Procedure, the appellee may engage in discovery for the limited purpose of determining whether the appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so. (4) If the trial or appellate court determines that an appellant has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so, the court may enter orders necessary to protect the appellee, require the appellant to post a supersedeas bond in an amount up to, but not more than, the amount that would be required for an automatic stay pursuant to Rule 9.310(b)(1), Florida Rules of Appellate Procedure, and impose other remedies and sanctions as the court deems appropriate. Section 2. This act shall take effect July 1, 2006, and shall apply to judgments rendered on or after that date. Approved by the Governor June 22, 2006. Discovery rules are made pursuant to the supreme court's rule making authority under article V, section 2(a) of the Florida Constitution, and grant courts authority to control discovery in all aspects in order to prevent harassment and undue invasion of privacy. 30 Florida Rule of Civil Procedure 1.280 is our court-made rule concerning discovery. As such, a statute containing provisions that impact discovery is seemingly unconstitutional. 30 South Florida Blood Service, Inc. v. Rasmussen, 467 So. 2d 798 (Fla. 3d DCA 1985), decision approved, 500 So. 2d 533 (Fla. 1987) (citing Springer v. Greer, 341 So. 2d 212, 214 (Fla. 4th DCA 1976), appeal dismissed, 351 So. 2d 406 (Fla.1977).

Jackson v. Florida Dept. of Corrections, 790 So. 2d 381 (2000), illustrates this point. In Jackson, the supreme court reasoned: If the statutes' procedural requirements for granting in forma pauperis status conflict with or interfere with the procedural mechanisms of the court system, they are unconstitutional under both a separation of powers analysis, and because formulating procedures for granting in forma pauperis status is the exclusive province of the supreme court pursuant to the rulemaking authority vested in it by the Florida Constitution. As such, the Court held that the copy requirement of the Prisoner Indigency Statute was unconstitutional as a violation of separation of powers and usurpation of the supreme court's exclusive rulemaking authority, because that statute was a legislatively imposed procedure that interfered with and intruded on procedures and processes of the Court and conflicted with the Court's own rule regulating procedure for granting in forma pauperis status to inmates. 31 However, conflict is the key factor in deciding whether the provisions render the statute unconstitutional. That is, when a legislatively imposed procedure is interfering with and intruding on 31 Jackson v. Florida Dept. of Corrections, 790 So. 2d at 381.

the procedures and processes of the supreme court and conflicts with the Court's own rule regulating the procedure, then the legislation violates the constitutional limitation on the legislature's enactment of procedural law. 32 The analysis of the discovery provisions in HB 841 leads back to the original question about whether the thrust of the statute is substantive or procedural. The fact that a statutory provision might appropriately be labeled "procedural" does not necessarily mean it unconstitutionally infringes on powers of the judiciary, through the supreme court, to determine matters of practice and procedure before Florida courts; courts will still uphold procedural provisions that are "intimately related to" or "intertwined with" substantive statutory provisions. 33 TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606 (1995), reh g den., illustrates this point. In TGI Friday's, Inc. the Court held that, to the extent the offer of judgment statute creates substantive rights, the statute did not violate the constitutional provision giving the 32 State v. Veilleux, 859 So. 2d 1224 (Fla. 2d DCA 2003), rev. den. 880 So. 2d 1212. 33 In re Commitment of Cartwright, 870 So. 2d 152 (2004), reh g den., rev. den. 914 So. 2d 952 (Fla. 2005).

supreme court exclusive authority to adopt rules for practice and procedure in state courts: Article V, section 2(a), of the Florida Constitution provides this Court with exclusive authority to adopt rules for practice and procedure in the courts of this State. The Legislature, on the other hand, is entrusted with the task of enacting substantive law. In Leapai v. Milton, 595 So. 2d 12, 14 (Fla.1992), we noted that the judiciary and legislature must work together to give effect to laws that combine substantive and procedural provisions in such a manner that neither branch encroaches on the other's constitutional powers. The Legislature has modified the American rule, in which each party pays its own attorney's fees, and has created a substantive right to attorney's fees in section 768.79 on the occurrence of certain specified conditions. To the extent section 768.79 creates substantive rights, we find the statute constitutional. The procedural portions of the statute were superseded by Rule of Civil Procedure 1.442. See Florida Bar re Amend. to R.Civ.P., Rule 1.442. 34 Notably, the amendment to Rule 1.442, explicitly referenced the procedure set forth in 768.79, Florida Statutes (1991). Likewise, a statute permitting the admission of hearsay evidence in sexually violent predator proceedings did not unconstitutionally infringe on the powers of the judiciary, through the supreme court, to determine matters of practice and procedure before Florida courts; and the invalidation of that procedural 34 TGI Friday's, Inc. v. Dvorak, 663 So. 2d at 606.

provision was deemed to risk fundamentally altering the nature of sexually violent predator proceedings and disrupt the substantive statutory scheme established by the legislature. 35 These decisions suggest, therefore, that really two factors determine whether the discovery provisions in HB 841 creating 45.045, Fla. Stat. (Supp. 2006), render the statute unconstitutional, and those two factors are really addressing the same thing: (1) the extent to which the discovery provisions conflict with Fla. R. App. P. 9.310 and (2) the extent to which the discovery provisions are "intimately related to" or "intertwined with" substantive statutory provisions. Here, Fla. R. App. P. 9.310 contains no discovery provisions, so the statute does not conflict with that appellate rule. Rule 1.280, Fla. R. Civ. P., does concern discovery and vests discretion in the trial court. However, that is not the rule at issue here; the rule at issue is Rule 9.310. Further, the fact that a statute contains specific discovery provisions directed to advancing an appellate proceeding does not necessarily conflict with the more general rule directed to general lower court proceedings. Additionally, HB 841, directed to advancing rights in an appellate proceeding, appears to 35 In re Commitment of Cartwright, 870 So. 2d 152 (2004), reh g den., rev. den. 914 So. 2d 952 (Fla. 2005).