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Judicial Administrative Orders – Overused and Over-Reaching?

Administrative Orders in Ninth Circuit family law cases (including Orange County, Orlando divorce and paternity cases) have been in place for more than a decade. These orders put litigants on notice of substantive law; address issues that commonly arise in newly filed divorce cases; and are intended to promote stability and decrease the number of hearings in the early stages of litigation.  These administrative orders encourage cooperation with parental decision-making and timesharing; prohibit relocation with children; encourage payment of child support; require continuity of insurance; and restrict the disposition of assets.

More recently, a series of administrative orders has been issued by both the Florida Supreme Court and the Ninth Circuit (including Orange and Osceola County) in response to COVID-19. These Administrative Orders suspend jury trials, suspend the right to speedy trial, suspend implementation of writs of possession, cancel all civil dockets, close courthouses to the public, and even authorize law enforcement to remove and detain citizens for violation of the court’s own administrative orders.

Are these administrative orders legal? Are they necessary? Are they advisable?

I. Authority and Tools to Administer the Courts

The types of regulatory tools available to the judicial branch to promote its functions include (1) (statewide) court rules; (2) local rules (at the circuit and county level); and (3) administrative orders.

Statewide court rules facilitate the uniform conduct of litigation across the state for all proceedings, parties, and attorneys, for example: Florida Family Law Rules of ProcedureFlorida Rules of Civil Procedure; Florida Rules of Juvenile Procedure; etc.

Local rules (i) implement statewide court rules at the county level where local circumstances may require clarification for implementation and (2) address subject matter delegated by the Florida Consitution, state law, the Florida Supreme Court, and statewide court rules. See Fla. R. Jud. Admin. 2.210(b).

An “administrative order” is defined as “a directive necessary to administer properly the court’s affairs but not inconsistent with the constitution, court rules, or administrative orders entered by the supreme court.” Fla. R. Jud. Admin. 2.120(c).

The authority to issue administrative orders is derived from the inherent authority of the court to administer and manage its own affairs as a separate branch of government. The authority of the chief justice to manage, operate, and oversee Florida’s judiciary is established by Article V, section 2(b) of the Florida Constitution and Fla. R. Jud. Admin. 12.205(a)(2)(B)(4), (5). The authority of the chief circuit judge to manage, operate, and oversee the courts within the circuit is established by F.S. §40.001; F.S. §43.26; Fla. R. Jud. Admin. 2.210;  and F.S. §905.01.

The Rules of Judicial Administration recognize the authority of the chief justice and chief judge to issue administrative orders. Administrative orders include little or no formal requirement for review, comment, and approval. Administrative orders of the Florida Supreme Court are issued and active upon signature by the chief justice. Administrative orders of a judical circuit are issued and active upon signature by the chief judge of the relevant circuit.

By contrast, statewide court rules and even circuit level local rules require extensive comment and review. See Fla. R. Jud. Admin. 2.140 (governing amendments to statewide rules) and Fla. R. Jud. Admin. 2.215(e) (governing amendments to local rules of a judicial circuit).

The lack of formal comment and review means that the chief justice and chief judge enjoy broad discretion in the issuance of administrative orders. The decentralized and summary method by which such orders are issued at the circuit level contributes to a lack of uniformity among the circuits, even where administrative orders address the same topics. See Where Do We Stand? An Examinination of Florida’s Standing Family Law Orders, Fam. L. Commentator, Gunia and Tackenberg (Fall 2019).

II. Constitutional Issues with Administrative Orders

A. Emergency Administrative Orders

As of this writing, the Florida Supreme Court has issued six emergency administrative orders in response to COVID-19 in the last two weeks. See Florida Supreme Court Issues New Administrative Orders. The Ninth Circuit (including Orange County and Osceola County) has issued five administrative orders in response to COVID-19 in the last week. See Ninth Circuit Issues New Administrative Orders.

The Chief Justice of the Florida Supreme Court’s “emergency” administrative orders restrict or suspend access to the courts and the constitutional right to speedy trial. The chief circuit judge of Orange and Osceola County has followed suit by issuing a series of temporary orders that appear largely intended to implement the administrative orders of the Florida Supreme Court.

Although by definititon an administrative order cannot conflict with the constitution or the officially promulgated rules of court, the chief justice of the Florida Supreme Court is granted sweeping authority to suspend jury trials, suspend the right to speedy trial, and suspend civil proceedings in times of “emergency.” Fla. R. Jud. Admin. 2.205(2)(B)(4), (5) provides:

“The administrative powers and duties of the chief justice shall include, but not be limited to  . . . . in the event of natural disaster, civil disobedience, or other emergency situation requiring the closure of courts or other circumstances inhibiting the ability of litigants to comply with deadlines imposed by rules of procedure applicable in the courts of this state, to enter such order or orders as may be appropriate to suspend, toll, or otherwise grant relief from time deadlines imposed by otherwise applicable statutes and rules of procedure for such period as may be appropriate, including, without limitation, those affecting speedy trial procedures in criminal and juvenile proceedings, all civil process and proceedings, and all appellate time limitations . . . . ”

This is the authority by which the chief justice in AOSC20-13; AOSC20-15; and AOSC20-17 identifies certain proceedings as “essential” and “critical;” identifies specific types of hearings as “non-essential,” generally prohibits non-essential hearings from being conducted in-person; and directs the chief judges to to cancel “non-essential” proceedings unless they can be effectively remotely conducted.

  1. Are there Limits to the Chief Justice’s Emergency Powers?

The chief justice of the Florida Supreme Court has unilateral discretion whether to recognize an emergency that justifies restriction and suspension of judicial functions. The chief justice’s decision is likely informed by declarations of officials in the federal, state, and local executive branches, as well as organizations and agencies like WHO, CDC, and FEMA. However, the chief justice could decide whether to recognize an emergency regardless of the declarations (or lack thereof) by other entities.

The chief justice serves a term of two years and can only be removed by four of the seven fellow justices.

Even though legally issued, administrative orders that unreasonably restrict access to courts, or validly restrict access to courts for a lengthy time, could result in constitutional issues and social backlash.

When litigants are detained, at what point are fundamental civil rights unacceptably impacted by the denial of access to the courts to timely adjudicate cases in which persons accused of crime cannot post bond, or to establish a purge amount in child support contempt cases? In social services cases, at what point is the fundamental constitutional right to parent unacceptably impacted by the denial of access to the courts if DCF is not facilitating parent-child visitation; if DCF is not fulfilling its obligation to provide court-ordered services; and the courts are unavailable to determine whether continued separation of parents from their children is necessary? In civil cases, at what point are property rights unacceptably impacted by the denial of access to the courts? How long will frustrated landlords wait before resorting to self-help?

The suspension of trial, the suspension of the right to speedy trial; and the wholesale cancellation of the civil dockets mean that people will have to wait to have their causes determined. Justice delayed is justice denied. If legal redress is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.

2. Ninth Circuit’s Implementation of Florida Supreme Court’s Emergency Admininstrative Orders.

The new Ninth Circuit temporary orders appear valid to the extent they implement the Florida Supreme Court’s emergency orders at a circuit level. However, certain provisions of the new administrative orders may be invalid to the extent they address topics (1) that are not conveyed or delegated by the Florida Supreme Court, (2) that are outside the purview of the administrative functions of the court, or (3) that conflict with standing Florida law.

For example, Administrative Order 2020-07-01 (one of the orders issued in response to COVID-19) automatically resolves custody disputes during a “shelter-in-place” order in favor of the parent with more of the yearly overnights in an existing parenting plan. Although efficient, this directive establishes a default resolution across all cases without the due process ability to be heard. Customarily, a party is required to file a motion for temporary relief on the topic of timesharing. The court would then decide the matter according to the best interests of the child, taking into account existing circumstances and legal parenting factors. Instead, Administrative Order 2020-07-01’s resolution is driven by numerical overnights, detached from the best interests of the child or the legal parenting factors, which is at odds with Florida law. In addition, the administrative order impacts the right to parent, a fundamental right under the Florida Consititution. See e.g. De Los Milagros Castellat v. Pereira, 225 So. 3d 368 (Fla. 3d DCA 2017) (recognizing the right to parent as a fundamental right). It is not clear that the administrative order is the least restrictive means or sufficiently narrowly tailored to pass constitutional muster.

B. (Non-Emergency) Standing Administrative Orders

By definition, an administrative order cannot conflict with the constitution or the officially promulgated rules of court. See e.g. Fla. R. Jud. Admin. 2.120(c). Admininstrative orders often include provisions that summarize existing law. Although there may be utility in notifying litigants as to legal requirements and expectations, there is also risk that admininstrative orders imperfectly convey governing law, or impose obligations not existing in law. Due process issues arise when administrative orders affect substantive rights in a manner inconsistent with existing law.

For example, Administrative Order 2004-05-04 ¶6 requires that in divorces:

“Food, shelter, utilities, transportation and necessary medical expenses shall continue to be paid as they were during the intact marriage until further order of the Court or written agreement of the parties.”

This would suggest that an out-of-possession spouse who paid the mortgage in the past is required to continue to pay house related expenses for the spouse in possession, even though the out-of-possession spouse has their own separate overhead to pay post-separation. That is tantamount to requiring the out-of-possession spouse to pay alimony without any due process need and ability analysis.

Administrative Order 2004-05-04 further states:

“Neither party may . . . dispose of any asset, whether marital or nonmarital, and neither party may dissipate the value of an asset, for example, by adding a mortgage to real estate . . . “.

This appears to be the equivalent of an automatic civil injunction without due process. Fla. Fam. L. R. P. 12.605 states that a temporary injunction without written or oral notice may only be granted if it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition and the movant’s attorney certified in writing any efforts that have been made to give notice and the reasons why notice as not given. Under governing law, the non-movant would also be entitled to an expedited evidentiary returnable hearing, which is not anticipated in the administrative order.

III. Conclusion

The chief justice of the Florida Supreme Court has tremendous discretion and authority to recognize an emergency and restrict access to the courts. The Florida Supreme Court’s new administrative orders that suspend jury trials, suspend the right to speedy trial, and cancel all civil dockets, appear properly issued under the chief justice’s emergency powers described in Fla. R. Jud. Admin. 12.205(2)(B)(4), (5). However, continuation of these restrictions for an unreasonable length of time could be legally and socially problematic, especially where access to the courts affects fundamental consitutional rights.

The new administrative orders implemented by the chief judge of the Ninth Judicial Circuit appear clearly valid to the extent they implement the administrative orders of the Florida Supreme Court. However, portions of these administrative orders may be invalid to the extent they (1) address topics that are not conveyed or delegated by the Florida Supreme Court, (2) address topics other than the administrative functions of the court, or (3) include directives that conflict with existing Florida law.

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