Bondi v. Tucker

• Decision Date: 24 July 2012
• Docket Number: No. 1D11–5935.,1D11–5935.
• Citation: 93 So.3d 1106
• Parties: Pamela Jo BONDI, in her capacity as the Attorney General of the State of Florida, Appellant, v. Kenneth S. TUCKER, in his capacity as the Secretary of the Florida Department of Corrections, James Baiardi, John McKenna, Shanea Maycock, and Florida Police Benevolent Association, Inc., Appellees.
• Court: Florida District Court of Appeals

93 So.3d 1106

Pamela Jo BONDI, in her capacity as the Attorney General of the State of Florida, Appellant,

v.Kenneth S. TUCKER, in his capacity as the Secretary of the Florida Department of Corrections, James Baiardi, John McKenna, Shanea Maycock, and Florida Police Benevolent Association, Inc., Appellees.

No. 1D11–5935.

District Court of Appeal of Florida,

First District.

July 24, 2012.

Pamela Jo Bondi, Attorney General, and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, for Appellant.

Peter D. Webster and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for Amicus Curiae the Florida Chamber of Commerce in support of Appellant.

M. Stephen Turner, Kelly Overstreet Johnson, and David K. Miller of Broad and Cassel, Tallahassee; Gene L. “Hal” Johnson, General Counsel, and Stephanie Dobson Webster, Assistant General Counsel of the Florida Police Benevolent Association, Inc., Tallahassee, for Appellees James Baiardi, John McKenna, Shanea Maycock, and Florida Police Benevolent Association, Inc.

BENTON, C.J.

As Attorney General of the State of Florida, Pamela Jo Bondi seeks review of a final declaratory and injunctive judgment entered in Circuit Court. The Secretary of the Department of Corrections, against whom the final declaratory and injunctive judgment was actually entered, has not appealed. Like any other non-party in the trial court, the Attorney General lacks standing to initiate an appeal on her own. We therefore dismiss the appeal.

In the circuit court proceedings that culminated in the final declaratory and injunctive judgment, the Attorney General did not participate as a party in her own right: Her office's only role was as counsel for the Department of Corrections (DOC). The judgment she now seeks to overturn declared unconstitutional proviso language in last year's General Appropriations Act, ch. 2011–69, § 4, at 1215–17, Laws of Florida, pertaining to the 2011–2012 budget for DOC, and enjoined DOC's implementing the proviso language.

A notice of appeal timely filed by a party is necessary in order to perfect an appeal from a final judgment. “The notice of appeal shall ... contain ... the name and designation of at least 1 party on each side.” Fla. R. App. P. 9.110(d) (emphasis supplied). In the present case, on October 31, 2011, the last day allowed for an appeal, seeFla. R. App. P. 9.110(b) (requiring notice to be filed within 30 days of rendition), the Attorney General filed ¹ a notice of appeal of the trial court's order, not on behalf of any party to the proceedings below, but “in her capacity as the Attorney General of the State of Florida and pursuant to her [putative] authority under § 16.01(4), Fla. Stat.”

A party who suffers an adverse judgment in circuit court has the right to appeal, but non-parties whose rights have not been adjudicated have no right of appeal. See Portfolio Invs. Corp. v. Deutsche Bank Nat'l Trust Co., 81 So.3d 534, 536 (Fla. 3d DCA 2012) (“Generally, a non-party in the lower tribunal is a ‘stranger to the record’ and, therefore, lacks standing to appeal an order entered by the lower tribunal.”); Morrell v. Nat'l Health Investors, Inc., 876 So.2d 580, 580–81 (Fla. 1st DCA 2004) (“This appeal is hereby dismissed. Appellate review is limited to the parties in the lower tribunal. As David E. Morrell was not a party to the proceedings below, he cannot participate in appellate review.” (citation omitted)); Stas v. Posada, 760 So.2d 954, 955 (Fla. 3d DCA 1999) (“Appellant Juan Mueller was not a party below and made no effort to intervene in the action. Consequently, he ... is precluded from seeking appellate review.”).

Even class members who are already parties and bound by a judgment must intervene as named parties in the trial court before they can appeal. See Ramos v. Philip Morris Cos., Inc., 714 So.2d 1146, 1147 (Fla. 3d DCA 1998) (“We agree with the Fourth District that ‘non-named class members must intervene formally in the class action to gain standing to appeal.’ Concerned Class Members[ v. Sailfish Point, Inc., 704 So.2d 200, 201 (Fla. 4th DCA 1998) ].”). With rare exception, failure to participate as a party in the lower tribunal precludes the ability to invoke appellate proceedings. See Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997) (“The general rule is that a non-party is a ‘stranger to the record’ who cannot ‘transfer jurisdiction to the appellate court.’ ” (quoting Forcum v. Symmes, 101 Fla. 1266, 133 So. 88 (1931))). But see Smith v. Chepolis, 896 So.2d 934, 935–36 (Fla. 1st DCA 2005) (finding nonparty deemed responsible for workers' compensation benefits could appeal final order entered by judge of compensation claims so ruling). Like other rules of finality, rules restricting who can appeal foster stabilityand good order. “The doctrine of decisional finality provides that there must be a ‘terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein.’ ” Fla. Power Corp. v. Garcia, 780 So.2d 34, 44 (Fla.2001) (quoting Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679, 681 (Fla.1979)).

The Attorney General is in many ways no ordinary litigant. She has important and far-ranging responsibilities, including the “power to institute litigation on [her or] his own initiative.” State ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 271 (5th Cir.1976). Section 16.01(4), Florida Statutes (2011), provides that the Attorney General “[s]hall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal of this state.” Under this statute, as at common law, the Attorney General has broad authority to litigate matters in the public interest:

[I]t is the inescapable historic duty of the Attorney General, as the chief state legal officer, to institute, defend or intervene in, any litigation or quasi-judicial administrative proceeding which he determines in his sound official discretion involves a legal matter of compelling public interest....

The courts of this state have long recognized this advocacy authority, and litigation duty of the Attorney General. It derives from the common law and in only rare instances has the Legislature otherwise provided. See State ex rel. Attorney–General v. Gleason, 12 Fla. 190;State ex rel. Moodie v. Bryan, 1905, 50 Fla. 293, 39 So. 929;State ex rel. Landis v. S.H. Kress & Co., 1934, 115 Fla. 189, 155 So. 823;State ex rel. Davis v. Love, 1930, 99 Fla. 333, 126 So. 374;State ex rel. Crim v. Juvenal, 1935, 118 Fla. 487, 159 So. 663;Barr v. Watts, Fla., 70 So.2d 347;Ervin v. Collins, Fla.1956, 85 So.2d 852, and State ex rel. Ervin v. Jacksonville Expressway Authority, Fla.1962, 139 So.2d 135.

State ex rel. Shevin v. Yarborough, 257 So.2d 891, 894–95 (Fla.1972) (Ervin, J., specially concurring). We recognize that the “office of the Attorney–General is a public trust .... [and that s]he has been endowed with a large discretion ... in ... matters of public concern,” State v. Gleason, 12 Fla. 190 (Fla.1868), and acknowledge and affirm the Attorney General's “discretion to litigate, or intervene in, legal matters deemed by him [or her] to involve the public interest ... and [that] his [or her] standing ... can not be challenged or adjudicated.” Id. at 895 (Ervin, J., specially concurring). See also Thompson v. Wainwright, 714 F.2d 1495, 1500–01 (11th Cir.1983). But the Attorney General did not exercise her “discretion to litigate” in the circuit court proceedings, and never sought intervention here or below.

Proceedings began when James Baiardi, John McKenna, Shanea Maycock, and the Florida Police Benevolent Association, Inc. filed their complaint against the DOC Secretary in circuit court for declaratory judgment and injunctive relief, seeking to invalidate proviso language understood as intended to require DOC to issue a request for proposals to “privatize” twenty-nine correctional facilities in DOC's Region IV.² Proceedings in circuit court concludedon September 30, 2011, when the trial court entered judgment ruling (on cross motions for summary judgment) that the privatization directive in the Appropriations Act violated Article III, sections 6 and 12, of the Florida Constitution, and enjoining DOC from taking any further steps to implement the proviso. At no time did the Attorney General file a motion to intervene in the trial court proceedings.³

When the Attorney General does appear in court as a party litigant, she is subject to the same rules of judicial procedure which other litigants must observe.⁴ Whether as litigant or as counsel, the Attorney General must comply with court rules and court orders. The separation of powers between judicial and executive branches requires no less.⁵ Our supreme court recognized as much in Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 244–45 (1948), where the Attorney General filed an “Answer and Motion to Dismiss” and “Reply to and Motion to Dismiss Counterclaim,” both of which the trial court struck on the narrow ground that it had previously denied the Attorney General's petition to intervene in the action. Because review of the prior order had not been sought, the prior order denying intervention had become final.

Seeking review of the later interlocutory order, the Attorney General filed a petition for writ of certiorari, arguing that he was entitled, despite the unchallenged order denying his intervention, to participate as a party, citing section 87.10, Florida Statutes (1941), which provided that “[i]n any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney...