State v. Foster, s. 95-1200

• Court: Court of Appeal of Florida (US)
• Citation: 674 So.2d 747
• Docket Number: Nos. 95-1200,95-2312,s. 95-1200
• Parties: 21 Fla. L. Weekly D533 STATE of Florida, Appellant, v. Scott Edward FOSTER, Jr., and Martha Jean Foster, Appellees.
• Decision Date: 28 February 1996

Page 747

674 So.2d 747 21 Fla. L. Weekly D533 STATE of Florida, Appellant,
v.
Scott Edward FOSTER, Jr., and Martha Jean Foster, Appellees. Nos. 95-1200, 95-2312. District Court of Appeal of Florida,
First District. Feb. 28, 1996.
Opinion on Grant of Clarification April 26, 1996.

Page 748

An appeal from the County Court for Santa Rosa County. Colie Nichols, Jr., Judge, in Case No. 95-1200.

An appeal from the County Court for Escambia County. David B. Ackerman, Judge, in Case No. 95-2312.

Barry Richard, of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, Tallahassee, for Appellant.

The Florida Bar, Amicus curiae.

Scott E. Foster & Martha J. Foster, pro se, for Appellees.

MICKLE, Judge.

The State of Florida appeals from orders issued in separate cases 1) dismissing charges against Scott E. Foster, Jr., and his wife, Martha J. Foster, purportedly arising from the unauthorized practice of law and 2) finding section 454.23, Florida Statutes, vague and violative of federal constitutional protections or unconstitutional in its application to the appellees. We reverse both orders.

In Santa Rosa County Case No. 94-2809, Mr. Foster was charged with four counts of unauthorized practice of law for his participation in four depositions by questioning four witnesses in two different cases. In Escambia County Case No. 94-22137, the State likewise charged Mrs. Foster for her participation in one deposition by questioning a witness.

The applicable statute provides:

Page 749

454.23 Penalties.--Any person not licensed or otherwise authorized by the Supreme Court of Florida who shall practice law or assume or hold himself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he is qualified, or recognized by law as qualified, to act as a lawyer in this state, and any person entitled to practice who shall violate any provisions of this chapter, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

§ 454.23, Fla.Stat. (1993).

In Mr. Foster's case, the trial court dismissed all counts against him; declared section 454.23 violative of the "fair warning" requirement and, thus, void as unconstitutionally vague as applied to the defendant; and certified the following question to this court pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A) as a matter of great public importance:

IS FLORIDA STATUTE 454.23 UNCONSTITUTIONALLY VAGUE AND VIOLATIVE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION WHEN USED TO PROSECUTE NON-ATTORNEYS FOR ACTIVE PARTICIPATION IN DEPOSITIONS IN CIVIL OR CRIMINAL PROCEEDINGS BY QUESTIONING A WITNESS?

Similarly, the trial court in Mrs. Foster's case dismissed the count, declared a portion of section 454.23 void as unconstitutionally vague, and certified another question:

IS THE PHRASE "SHALL PRACTICE LAW OR ASSUME OR" WHICH IS INCLUDED IN FLA. STATUTE 454.23 WHICH PROHIBITS THE UNAUTHORIZED PRACTICE OF LAW SO VAGUE AND LACKING IN SPECIFICITY AND THEREFORE VIOLATIVE OF DUE PROCESS AND EQUAL PROTECTION FOR FLORIDA NON-LAWYER CITIZENS WHO ARE IN SOME WAY CONNECTED WITH THE LEGAL SYSTEM THAT IT MUST BE EXCISED FROM THE STATUTE FOR THE REMAINDER THEREOF TO SURVIVE CONSTITUTIONAL SCRUTINY?

Assuming arguendo that we would find the statute facially constitutional, the trial court in Mrs. Foster's case determined that section 454.23 is "inapplicable or unconstitutional as applied in this case." The State's appeals were consolidated for briefing and on the merits.

In reversing both orders, we conclude that the taking of a deposition constitutes the practice of law under section 454.23, Florida Statutes; that the statute is not void for vagueness; and that the law was not unconstitutionally applied to the appellees' activities. For the reasons set forth in this opinion, we answer both certified questions in the negative.

Neither of the appellees disputes the fact that each participated in the respective depositions by questioning one or more witnesses. The Fosters are paralegals who own a business that performs paralegal functions. Neither one is a licensed attorney or a person "otherwise authorized by the Supreme Court of Florida" to practice law in this state pursuant to section 454.23, Florida Statutes.

The first issue to be resolved is whether taking a deposition constitutes the practice of law, for purposes of section 454.23, Florida Statutes (1993). The Supreme Court of Florida considered an analogous question in The Florida Bar v. Riccardi, 304 So.2d 444 (Fla.1974), in which The Florida Bar requested an adjudication of contempt and permanent injunction against Mr. Riccardi, a disbarred lawyer, for 1) appearing at and actively participating in a deposition, 2) holding himself out to the court reporter as an attorney, and 3) appearing at and actively participating in a pretrial conference in the same case. The court held that Mr. Riccardi's conduct constituted the unauthorized practice of law. Id. at 445. Citing Riccardi, the State asserts, and we agree, that the appellees' questioning of witnesses in depositions likewise constituted the unauthorized practice of law, in violation of section 454.23, Florida Statutes.

Page 750

The second issue is whether the lower courts correctly found the statute to be unconstitutionally vague. See also State v. Trotter, 3 Fla.L.Weekly Supp. 361 (Hernando County Ct., July 28, 1995) (finding the words "practice law" in § 454.23, Fla.Stat., unconstitutionally vague in a case where the defendant determined the need for, and assembled, drafted, executed, and funded a revocable living trust). Because statutes are presumed to be valid, we view section 454.23, Florida Statutes, with a presumption of validity. "[A] statute, especially a penal statute, must be definite to be valid." Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947). The appropriate standard for applying the vagueness doctrine embedded in the Fourteenth Amendment was addressed in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The United States Supreme Court recognized in Arnett that because "[t]here are limitations in the English language with respect to being both specific and manageably brief," a statute need only be "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." Id. at 159, 94 S.Ct. at 1647. The drafters of legislation are not to be held to an impossible standard. Rather, the Court has held that the only requirement is that a statute not be "so vague that 'men of common intelligence must necessarily guess at its meaning.' " Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830, 837 (1973), quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Linville v. State, 359 So.2d 450 (Fla.1978). A statute "will not be struck down as vague, even though marginal cases could be put where doubts might arise." Arnett, 416 U.S. at 159, 94 S.Ct. at 1647; Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (in a facial challenge case where no constitutionally protected right is implicated, a prevailing plaintiff must prove that the law is impermissibly vague in all its applications). However broad the language may be, a statutory provision will not be judged on the basis of language alone, for the wording must be "measured by common understanding and practices." Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, 1511 (1957); State v. Dye, 346 So.2d 538 (Fla.1977).

For example, in In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985), the Court analyzed a different statute containing language at least as broad as the wording at issue in section 454.23, Florida Statutes. The Court considered a vagueness challenge to Federal Rule of Appellate Procedure 46, which permits an attorney to be suspended or disbarred for "conduct unbecoming a member of the bar of the Court." In upholding the rule, the Court indicated that the phrase...