Gator Freightways, Inc. v. Mayo, 47878

• Decision Date: 08 January 1976
• Docket Number: No. 47878,47878
• Citation: 328 So.2d 444
• Parties: GATOR FREIGHTWAYS, INC., et al., Petitioners, v. William T. MAYO et al., Respondents.
• Court: Florida Supreme Court

Page 444

328 So.2d 444

GATOR FREIGHTWAYS, INC., et al., Petitioners, v. William T. MAYO et al., Respondents.

No. 47878.

Supreme Court of Florida.

Jan 8, 1976.

Lawrence D. Fay, of Glickstein, Crenshaw, Glickstein, Fay & Block, Jacksonville, for petitioners.

Prentice P Pruitt and Jerry M. Johns, Tallahassee, for respondents.

Ansley Watson, Jr., and David C. G. Kerr, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for Smalley Transp. Co., intervener.

HATCHETT, Justice.

At the conclusion of proceedings before respondent Commission, petitioners sought review of the Commission's order, by filing a petition for certiorari in this Court. Petitioners also filed directions to the Commission Clerk, specifying papers to be included in the record for transmittal to this Court. By letter ¹ to petitioners' counsel, however, the Commission Clerk advised that he would omit from the record some of the items requested. ² There is no claim that any of the disputed documents is confidential. In order to require the inclusion of these papers, petitioners have filed a motion to compel, pursuant to Rule 3.9(a), Florida Appellate Rules, 1962 Revision. We now grant this motion, and express no view on any other facet of this cause.

While procedure within administrative agencies is subject to statutory regulation, procedure in all Florida courts is governed by such rules of procedure as have been adopted by this Court. Fla.Const art. V § 2(a) (1972); In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). The present proceedings in this Court are governed by the appellate rules, pursuant to Rule 1.1, Florida Appellate Rules, 1962 Revision, and this is expressly recognized in Fla. Stat. § 120.68(2) (1974), which specifies that judicial review of agency action 'shall be conducted in accordance with the Florida Appellate Rules.'

Under the appellate rules, the clerk of the Public Service Commission has the same duties as the clerk of a court. These duties are ministerial only. The clerk has no duty or authority to edit the record-on-appeal by selective compliance with directions duly filed by the parties. ³ The Commission Clerk has no discretion to decide which staff memoranda or other materials this Court should see, and which it should not see.

It is no answer to say that an aggrieved party may apply to this Court, as petitioners have done in the present case, to compel the inclusion of materials in the record. Any such approach, as was said in a related context:

. . . places an unnatural and illogical duty upon the appellate court, which would rarely have before it sufficient information in the file from which to determine what papers are necessary . . . (and) violates the fundamental concept of our court system and the function of a court in relation to the rights and contentions of the parties litigant.

A.N.E. v. State, 167 So.2d 769, 771 (Fla.App.1st Dist. 1964).

Recent experience has taught that case by case resolution in this Court of such disputes serves only to add an additional, unnecessary step to review of Public Service Commission orders. Exxon Co., et al. v. Florida Public Service Comm'n., Nos. 45,152--4 (Fla., order entered July 3, 1974); Morgan Drive Away of Florida, Inc. v. Florida Public Service Comm'n., No. 45.264 (Fla., order entered Sept. 23, 1974). Settling the record is an inappropriate function for this Court, in the first instance, and an unwise use of our resources, if we can do it at all, given the limited information available to the Court in the initial stages of proceedings here.

The Commission advances the argument that:

As the moving party, (petitioner) has the duty to convince the Court that the Commission should be compelled to make the items at issue part of the record on appeal. If the Court has as much trouble locating what moves the movant as the Commission has had from reading the Motion to Compel, we would offer that it should be summarily rejected without further ado. . . .

The claim in essence is that these papers have not yet been shown to be relevant for review purposes. The decision as to relevancy is for this Court to make when it is in a position to do so, namely, when it has before it what the parties, or any of them, directs to be included in the record-on-appeal, in support of their respective theories of the case.

The motion to compel is granted.

ADKINS, C.J., and OVERTON, ENGLAND and SUNDBERG, JJ., concur.

1 The clerk's letter reads, in part, as follows:

It is the Commission's position that neither the minutes of Commission conferences nor staff memoranda are parts of the Record in this docket as that term is used in § 120.24(2), Florida Statutes.

. . . Until otherwise directed by the Supreme...