Cate v. Oldham
| Citation | 450 So.2d 224 |
| Decision Date | 03 May 1984 |
| Docket Number | No. 63775,63775 |
| Parties | Kenneth R. CATE, et al., Appellants/Petitioners, v. Gordon G. OLDHAM, Jr., et al., Appellees/Respondents. |
| Court | Florida Supreme Court |
Dennis J. Wall of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for appellants/petitioners.
David R. Best, and John M. Robertson of Robertson, Williams, Duane, Lewis & Ranson, Orlando, for appellees/respondents.
This cause is before us on discretionary review of two questions certified to this Court by the Eleventh Circuit Court of Appeals. We have jurisdiction. Art. V, § 3(b)(6), Fla.Const. The questions certified by the federal appellate court are:
1) Under the common law of Florida, may a state official who has been sued in his official capacity for alleged negligence in the exercise of his official duties, maintain an action for malicious prosecution against plaintiffs in the negligence action?
2) If the answer is "yes", what is the standard of malice that the state official/plaintiff must prove in order to prevail on the merits of the malicious prosecution action? How does this standard compare with the level of malice that must be proved in malicious prosecution actions where private parties are the plaintiffs?
Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983).
The facts leading up to this suit are somewhat complex. Petitioner Kenneth Cate was retained by the estate of Mary Bradham to investigate the possibilities for suit on behalf of the estate against the state and respondent Gordon Oldham. Mary Bradham had died as a result of a battery committed by her estranged husband, Ernest Bradham. Cate did file a wrongful death action in the circuit court alleging that Oldham, as state attorney, had breached his duty to prosecute Ernest Bradham because he knew of Bradham's dangerous propensities but had, nevertheless, failed to adequately prosecute and investigate Bradham. The wrongful death action resulted in a summary judgment for the state and Oldham. The result was affirmed, per curiam without opinion, by the Fifth District Court of Appeal. Russell v. State, 392 So.2d 91 (Fla. 5th DCA 1980). Attorney's fees were then sought by the state under section 57.105, Florida Statutes (1979). The trial court awarded attorney's fees but the district court reversed the award.
Thereafter, Oldham individually filed suit against Cate, Cate's law firm, and Bradham's estate alleging that the wrongful death action brought by those parties was a malicious prosecution action and seeking both compensatory and punitive damages. Subsequently, a suit for malicious prosecution was also filed by the state and Oldham in his capacity as state attorney, denominated as "State ex rel. Gordon G. Oldham, Jr., Plaintiff."
Petitioners' motions to dismiss the individual action brought by Oldham were denied by the trial court. Petitioners then filed a petition for injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983, in federal district court asserting that the malicious prosecution action filed against them was a violation of their first amendment rights. On the same date petitioners also filed a petition for writ of certiorari in Florida's Fifth District Court of Appeal from the denial of their motion to dismiss. The district court of appeal denied interlocutory relief citing Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corp., 393 So.2d 1201 (Fla. 5th DCA 1981). In the same order the district court of appeal denied petitioners' motion to certify the issue to this Court.
In conjunction with the petition for injunctive and declaratory relief in the federal court the petitioners requested a temporary restraining order and applied for a preliminary injunction. The court denied both requests. The federal district court also dismissed with prejudice the petition for injunction to prevent the suit by the state and Oldham in his official capacity on the basis that the state was not a "person" within the meaning of 42 U.S.C. § 1983. Petitioners then took an appeal to the United States Eleventh Circuit Court of Appeal.
On June 2, 1983, the Eleventh Circuit Court of Appeals affirmed the dismissal of the petitioner's section 1983 action under the broad immunity provided the states by the eleventh amendment to the United States Constitution rejecting the application of either the Younger or Pullman abstention doctrines to this case. The court also certified the questions being presented to this Court.
We answer the first question certified in the negative.
Section 2.01 of the Florida Statutes (1981) declares that the common and statute laws of England which are of a general nature, down to July 4, 1776, are in force in this state. The only exception provided is if the statute or common law is inconsistent with the United States Constitution or laws of the United States or Florida. Since there is an absence of any statutory law on the point addressed in this question, it is therefore proper that we examine the common law cause of action for malicious prosecution.
The common law required a showing of special damage before the action for malicious prosecution could lie. The policy behind this determination was an Englishman's right to petition his fellow citizens for redress of grievances against individuals generally. Parker v. Langley, 93 Eng.Rep. 293, 294-97 (K.B.1714). In Parker v. Langley the court stated:
The applying in a civil action to a Court of Justice for satisfaction or redress has been so much favoured, that no action has ever been allowed against a plaintiff for such suit singly and directly, on pretence of its being false and malicious.
The fact that pre-revolutionary judges based their disfavor of malicious prosecution on the right to petition generally is of dispositive significance in this proceeding. The right to petition government specifically, for redress of grievances against government, was separately and expressly protected by Parliament. By statute, except for the crimes of riot and unlawful assembly, no other criminal sanction and no form of action could ever be imposed or brought because of a previous petition to the government for redress of a grievance against any part of government. See 1 W. Blackstone, Commentaries 138-39. The right to petition was so important a part of the constitutional scheme that the royal charters of each of the American colonies guaranteed this right. R. Bailey, Popular Influence Upon Public Policy: Petitioning in Eighteenth-Century Virginia 13 (1979). So strongly protected was the exercise of this right that judges in colonial times were reprimanded and fined for inquiring into the contents of petitions against government and for rejecting those they deemed to be false. Id. at 39-41.
At the time the American Bill of Rights was adopted the English constitution permitted only two governmental restrictions on the right to petition. The first restriction was a "time, place and manner" limitation by Parliament on the number of persons permitted to subscribe to a given petition. The only other permissible governmental restriction was by prosecution for the offenses of riot or...
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