Rehman v. Florida Dept. of Law Enforcement

• Decision Date: 18 October 1996
• Docket Number: No. 96-474,96-474
• Parties: 21 Fla. L. Weekly D2240 D. Douglas REHMAN, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee. Fifth District
• Court: Florida District Court of Appeals

Page 854

681 So.2d 854

21 Fla. L. Weekly D2240

D. Douglas REHMAN, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.

No. 96-474.

District Court of Appeal of Florida,

Fifth District.

Oct. 18, 1996.

D. Douglas Rehman, Longwood, pro se.

Robert A. Butterworth, Attorney General, and Joseph Lewis, Jr., Assistant Attorney General, Tallahassee, for Appellee.

PETERSON, Chief Judge.

D. Douglas Rehman appeals an order transferring venue from Orange County to Leon County in his action against the Florida Department of Law Enforcement (FDLE). We reverse.

During his employment as FDLE's communications coordinator, Rehman filed an affidavit pursuant to the Whistle Blower's Act ¹ detailing gross financial waste under a communications system.. Rehman alleged that almost immediately after he filed his affidavit, FDLE's management personnel began retaliatory harassment in a hostile work environment that culminated in his transfer from Tallahassee to Orlando and his reassignment to a lesser position as a communications technician. Rehman filed this action in Orange County. The trial court transferred it to Leon County when FDLE moved for a change of venue.

In a civil action against the state or one of its agencies, the Florida common law home venue privilege provides that venue is proper in the county where the state, agency or subdivision maintains its principal headquarters. Carlile v. Game and Fresh Water Fish Comm., 354 So.2d 362 (Fla.1977); Graham v. Vann, 394 So.2d 178 (Fla. 1st DCA 1981). The home venue privilege is long standing and controls in most situations, but is subject to the "sword wielder" exception. Barr v. Florida Bd. of Regents, 644 So.2d 333 (Fla. 1st DCA 1994); Hancock v. Wilkinson, 407 So.2d 969 (Fla. 2d DCA 1981). The sword wielder doctrine applies in those cases where the official action complained of has been or is being performed in the county in which the suit is filed, or when the threat of action in that county is both real and imminent. Dep't of Revenue v. First Federal Sav. & L. Ass'n of Ft. Myers, 256 So.2d 524 (Fla. 2d DCA 1971); Barr v. Florida Bd. of Regents, 644 So.2d 333 (Fla. 1st DCA 1994); Hancock v. Wilkinson, 407 So.2d 969 (Fla. 2d DCA 1981). The First Federal court instructed:

The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter and whether the plaintiff's action is in the nature of a shield against the state's thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

Id. at 526. Our supreme court in Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977), further instructed:

This exception to the common law privilege of venue is limited to those cases wherein the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted....

Id. at 365. Here, the allegations in Rehman's complaint assert that FDLE is the initial sword wielder by laying a blow against Rehman through its retaliatory transfer and demotion of Rehman to Orlando. Rehman then attempted to shield himself by filing his complaint in Orange County against what he claimed were unlawful prohibited personnel actions in direct contravention of section 112.3187(4)(a) of the state's Whistle Blower's Act. ² The Whistle Blower's Act protects an individual who exercises his or her First Amendment rights...