Spradley v. Parole Comm'n

• Decision Date: 09 September 2015
• Docket Number: No. 2D14–4056.,2D14–4056.
• Citation: 198 So.3d 642
• Parties: Glenn L. SPRADLEY, Petitioner, v. PAROLE COMMISSION, Respondent.
• Court: Florida District Court of Appeals

198 So.3d 642

Glenn L. SPRADLEY, Petitioner,

v.PAROLE COMMISSION, Respondent.

No. 2D14–4056.

District Court of Appeal of Florida, Second District.

Sept. 9, 2015.

Glenn Spradley, pro se.

Sarah J. Rumph, General Counsel, Commission on Offender Review, Tallahassee, for Respondent.

LaROSE

, Judge.

Glenn Spradley petitions for certiorari review of the trial court's order dismissing his mandamus petition seeking to compel the Parole Commission to reconsider its denial of parole. He wants us to quash the order and instruct the trial court to transfer the petition to Hillsborough County for adjudication on the merits. We grant the petition, approve the trial court's decision that proper venue is in Leon County, quash the dismissal of the petition, and remand for transfer to the circuit court in the Second Judicial Circuit in Leon County.

In 1980, a jury convicted Mr. Spradley of attempted first-degree murder; the trial court sentenced him to life in prison. Mr. Spradley was incarcerated in Union County, Florida, with a presumptive parole release date of November 7, 1998. In August 1998, a parole examiner interviewed Mr. Spradley and recommended his release on the presumptive date. See Fla. Admin. Code R. 23–21.015 (1998)

.¹ The Commission heard Mr. Spradley's case at an October 1998 meeting. The Commission considered whether there was a reasonable probability that Mr. Spradley, on parole, would “live and conduct himself ... as a respectable and law-abiding person.” See § 947.18, Fla. Stat. (1998). The Commission thought not. Consequently, it denied Mr. Spradley's release, suspended the presumptive release date, and referred the case for extraordinary review, with future interviews to be scheduled. See Fla. Admin. Code R. 23–21.0155² ; § 947.174, Fla. Stat. (1998)³

; Fla. Admin. Code R. 23–21.013(1).⁴

Mr. Spradley was scheduled for another parole release date interview in February 2013. Before the scheduled date, the Commission informed the chief judge of the Sixth Judicial Circuit (Pinellas County), where Mr. Spradley was sentenced, of this status. See § 947.1745(6), Fla. Stat. (2012)

; Fla. Admin. Code R. 23–21.015(1) (2012).⁵ Responding to the Commission, the chief judge objected to Mr. Spradley's release. See § 947.1745(6) ; Fla. Admin. Code R. 23–21.015(1).⁶ Thereafter, a parole examiner interviewed Mr. Spradley and recommended continued suspension of his release date. See Fla. Admin. Code R. 23–21.015.⁷ At a June 2013 Commission meeting in Tampa pursuant to section 947.06,⁸ the Commission determined that Mr. Spradley did not meet the criteria for release, declined to authorize an effective parole release date, and ordered a parole-interview interval of seven years. See Fla. Admin. Code R. 23–21.015(6), (9)⁹

; §§ 947.18,¹⁰ .1745(6).¹¹ Almost a year later, Mr. Spradley filed a petition for writ of mandamus in the Hillsborough County Circuit Court challenging the Commission's denial of parole. He alleged that the Commission denied his parole and ordered a parole-interview interval of seven years based on improper considerations. He asked the trial court to compel the Commission to reconsider properly his release date and review schedule. See §§ 947.18 (considerations for parole release), .1745(6) (seven-year review schedule). The Hillsborough County Clerk of Court transferred the petition to the Pinellas County Circuit Court where Mr. Spradley was originally convicted and sentenced. The trial court there dismissed the petition.

Exhaustion of Administrative Remedies

In dismissing the petition, the trial court noted that Mr. Spradley failed to allege that he had exhausted his administrative remedies before the Commission. See Bush v. State, 945 So.2d 1207, 1215 (Fla.2006)

(holding mandamus petition is proper remedy after prisoner exhausts administrative remedies); Finfrock v. Fla. Civil Commitment Ctr., 34 So.3d 777 (Fla. 2d DCA 2010) (stating that appellant neither alleged that he had exhausted administrative remedies nor alleged that none existed). However, this pleading deficiency does not warrant dismissal where the parties did not raise this issue. See

Henry v. Santana, 62 So.3d 1122, 1123, 1129 (Fla.2011) ; Mehl v. Tucker, 71 So.3d 248, 249 (Fla. 2d DCA 2011). In his unsuccessful motion for rehearing, Mr. Spradley advised the trial court that there were no available administrative remedies.

Improper Venue

The trial court also dismissed Mr. Spradley's petition for improper venue. It concluded that Leon County, where the Commission is based, is the proper venue. “[V]enue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains it principal headquarters.” Bush, 945 So.2d at 1212

(quoting Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 363–63 (Fla.1977) ). This “home venue privilege,” Fish & Wildlife Conservation Comm'n v. Wilkinson, 799 So.2d 258, 260 (Fla. 2d DCA 2001), “promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” Carlile, 354 So.2d at 364. See also

Barr v. Fla. Bd. of Regents, 644 So.2d 333, 337 (Fla. 1st DCA 1994) (stating that litigating cause in Alachua County under sword-wielder doctrine would minimize costs and facilitate taking evidence because witnesses were there).

A plaintiff may defeat the home venue privilege under the “sword-wielder” exception¹² recognized in Department of Revenue v. First Federal Savings & Loan Ass'n, 256 So.2d 524 (Fla. 2d DCA 1971)

.

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. On the other hand if plaintiff is the prime mover in the premises against a passive or dormant state or state agency then venue lies properly in the county wherein the state or the agency maintains its official headquarters.

Id. at 526.

The so called “sword-wielder” doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent.

....

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, because of the enforcement or threatened enforcement by a state agency of a statute, rule or regulation ...

Carlile, 354 So.2d at 365

; see also

Dep't of Revenue, 256 So.2d at 526

Mr. Spradley argues that the sword-wielder exception applies to his case and that the trial court departed from the essential requirements of law in dismissing his case and failing to transfer it to the proper venue, which he claims is Hillsborough County where the Commission's June 2013 hearing occurred.

Unlawful Invasion of a Right

The Commission argues that the sword-wielder doctrine does not apply because there is no constitutional right to parole. See Cochran v. State, 476 So.2d 207, 208 (Fla.1985)

. However, “there is a right to a proper consideration for parole.” Moore v. Fla. Parole & Probation Comm'n, 289 So.2d 719, 720 (Fla.1974), superseded by section 120.52(10), Fla. Stat. (1983), on other grounds as stated in

Johnson v. Fla. Parole & Prob. Comm'n, 543 So.2d 875, 875 (Fla. 4th DCA 1989). Moore did not involve a sword-wielder-doctrine home-venue challenge, but its holding supports Mr. Spradley's argument that his case could qualify for sword-wielder venue if the Commission violated his right to a proper parole consideration.

Our review of the case law indicates that courts apply the sword-wielder principle to allow venue in the county where the plaintiff's person or affected property is located. See, e.g., Pinellas Cty. v. Baldwin, 80 So.3d 366 (Fla. 2d DCA 2012)

(applying sword-wielder exception to Pinellas County governmental taking of landowner's property in Hillsborough County); Dep't of Labor & Emp't Sec. v. Lindquist, 698 So.2d 299 (Fla. 2d DCA 1997) (affirming venue in plaintiff's county where Department of Labor physically seized fishing nets there without procedural due process); Dep't of Revenue v. Arvida Corp., 315 So.2d 235 (Fla. 2d DCA 1975) (holding Department notice that tax warrant and execution for allegedly past due taxes had issued was real and imminent official action justifying suit in taxpayers' county); Rehman v. Fla. Dep't of Law Enf't, 681 So.2d 854 (Fla. 5th DCA 1996) (holding “sword wielder” venue lay in Orange County to which FDLE employee claimed FDLE transferred him in retaliation for exposing financial waste at his previous FDLE job in Leon County); Barr, 644 So.2d 333 (reversing transfer of venue to Leon County for university instructor's suit for retaliatory discharge in Alachua County where Board of Regents terminated her employment); Bd. of Med. Exam'rs v. Kadivar, 482 So.2d 501 (Fla. 4th DCA 1986) (affirming venue in St. Lucie County for suit alleging deprivation of his right to practice medicine there); Graham v. Vann, 394 So.2d 178 (Fla. 1st DCA 1981) (holding sword-wielder exception applied in suit for intolerable prison conditions where plaintiff was imprisoned and where rights were allegedly being violated); Dep't of Transp. v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977) (holding venue proper in Dade County where Department of Transportation terminated plaintiff's employment for filing to run for public office); Swinscoe v. State, 320 So.2d 11 (Fla. 4th DCA 1975) (reversing order transferring venue to Leon County where taxpayers sued in Broward County where Department of Revenue executed and recorded a tax warrant against them). In...