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Are Judicial Administrative Orders Enforceable?

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 judicial administrative orders legal and enforceable? Even if valid, are they necessary and advisable?  Can they result in inconsistent application of the law, inject additional uncertainty into cases, and paradoxically increase litigation?

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 Constitution, 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.” See Fla. R. Jud. Admin. 2.120(c).

Statewide court rules of procedure, 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). This can include review by the local judiciary, the local bar, statewide bar committees, public comment, and review and approval by the Florida Supreme Court and its committees. See e.g. Hartley v. State, 650 So. 2d 1044 (Fla. 4th DCA 1995).

By contrast, administrative orders include little or no formal requirement for review, comment, and approval. Administrative orders are issued and active upon signature.

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.

II. Constitutional Issues with Administrative Orders

A. Emergency Administrative Orders

As of this writing, the Florida Supreme Court has issued over seven 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 definition 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; AOSC20-17; and AOSC20-23 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 entry of “such order or orders as may be appropriate to suspend, toll, or otherwise grant relief from time deadlines.” See Fla. R. Jud. Admin. 2.205(2)(B)(4), (5).

Do Fla. Sup. Ct’s Judicial Directives Exceed Scope of Authority Granted by the Fla. R. of Jud. Admin.?

Parts of the recent Florida Supreme Court orders appear to go beyond granting relief from time deadlines. For example, AOSC20-16 and AOSC20-23 suspend “all rules of procedure, court orders and opinions  . . that limit or prohibit the use of communication equipment for conducting proceedings by remote electronic means.” Another example is AOSC20-18 and AOSC20-23 in which all in-person parent-child and sibling visitation is summarily suspended in all DCF dependency cases.

It could be argued that Fla. R. Jud. Admin. 2.205(2)(B) contains a non-exhaustive list of topics over which the chief justice has authority. See Fla. R. Jud. Admin. 2.205(2)(B)(4) (“The administrative powers and duties of the chief justice shall include, but not be limited to . . .). Anyway, the sub-section that describes the chief justice’s powers falls under Part II of the Fla. R. of Jud. Admin., which may be summarily expanded, with or without notice, and without referral to the rules committee. See Rule 2.140(g). See also e.g. In Re: Amend. to the Fla. R. Jud. Admin., 929 So. 966 (Fla. 2006) (reorganizing the rules of judicial administration into five parts and adding new rule 2.140 that allows amendments to Part II, and §2.310 and 2.320 of Part III, without referral or proposal from the Rules Committee).

However, the definition of “administrative order” (as a directive that does not conflict with the constitution or court rules) falls under Part I of the Fla. R. Jud. Admin., amendment of which must comply with review formalities specified in Rule 2.140 (a) – (f).  There is a body of caselaw that interprets and limits the topics that are properly the subject of judicial administrative orders.

Judicial administrative orders cannot conflict with law, the constitution, or established court rules. An administrative order is invalid to the extent it conflicts with Florida law. See Obando v. Bradshaw, 920 So. 2d 198 (Fla. 4th DCA 2006) and Douglas v. Bradshaw, 198 So. 3d 878 (Fla. 4th DCA 2016) (giving no legal effect to an administrative order that conflicted with state law that required the return of firearms seized during safety checks that do not result in criminal charges in absence of a judicial order).

An administrative order cannot add terms and conditions that do not otherwise exist in court rules or law, even if to fill a legislative vacuum. See e.g. Hatcher v. Davis, 798 So. 2d 765, 766 (Fla. 2d 2001) (finding that A.O. that required child support respondents to schedule hearings through the department’s attorney effectively deprived respondents from access to the courts in a manner inconsistent with Fla. Fam. L. Pr. Rule 12.491(e)(1) which states that the hearing officer is responsible for assigning hearing time); Douglas v. Bradshaw, 198 So. 3d 878 (Fla. 4th DCA 2016) (finding that an A.O. which attempts to amend a statute or rule by adding terms and conditions is invalid); Skelly v. Skelly, 257 So. 3d 150 (Fla. 5th DCA 2018) (requiring mediation to be scheduled as precondition to effectiveness of an objection to a referral to the general magistrate was not merely supplying a “directive necessary to administer properly the court’s affairs” but instead imposed an additional burden not required by established court rules); and Dep’t of Juv. Just. v. Soud, 685 So. 2d 1376 (Fla. 1st DCA 1997) (finding that an administrative order that supplied definitions to the undefined terms “aggravating” and “mitigating” factors in the statewide juvenile risk assessment instrument was invalid based on separation of powers).

Even if a statute reserves discretion to the courts, administrative orders generally cannot dictate how that discretion will be exercised across all cases, at least where statutory discretion is intended to be exercised on a case-by-case basis. For example, in State ex rel. Dep’t. of Health & Rehab. Servs. v. Upchurch, 394 So. 2d 577 (Fla. 5th DCA 1981), the Seventh Circuit relied on the statutory caveat “unless otherwise ordered by the court” as authority by which to enter an administrative order that greatly expanded the situations in which juveniles would be securely detained. The Fifth District found that the statute’s delegation of discretion was intended to be exercised on a case-by-case basis, not by a blanket administrative order. Otherwise the court would be essentially enacting new legislation, violating the separation of powers. See also Schwarz v. Nourse, 390 So. 2d 389 (Fla. 4th DCA 1980).

An administrative order must be directly related to administration of the court’s affairs as opposed to application of law to litigants. In Upchurch, the chief judge argued that Fla. R. Jud. Admin. 2.050(b)(3) mandated the creation of a plan “which shall include an administrative organization capable of effecting the prompt disposition of cases . . . ” as justification for a blanket A.O. that dictated how discretion would be applied in all detention hearings. The Fifth District noted, “We do not construe the order in question as one necessary to administer the court’s affairs.” [Emphasis in the original.]

Even if otherwise proper, administrative orders cannot be unduly burdensome. In Skelly, supra, the Fifth Circuit found null and void the language in an administrative order that required mediation to be scheduled as precondition to effectiveness of an objection to a referral to the general magistrate. The Court found that this required timely, expedited cooperation of the nonmovant, which was beyond the control of the movant.  See also State v. Covington, 131 So. 3d 10 (Fla. 1st DCA 2012) (finding that an administrative order that addresses the timing of filing of otherwise required information is valid so long as it does not impose an undue administrative burden on litigants).

As a general rule, no legal advice or advisory opinions are permitted. See e.g. Schwarz v. Nourse, 390 So. 2d 389 (Fla. 4th DCA 1980) (stating “it has generally been held that courts do not have the power to give legal advice or opinions”).

Applying the foregoing to AOSC20-18 and AOSC20-23 (which suspend in-person parent-child and sibling visitation in DCF dependency cases), the following potential defects are noted:

  • The new AO takes away an existing right of a party (not just a procedural rule in furtherance of the court’s affairs).
  • The AO may not be consistent with the local executive branch emergency orders that seem to allow parent-child visitation (implicating separation of powers).
  • The AO appears to conflict with judicial administrative orders on parent-child visitation and timesharing in domestic relations cases.
  • Court rules generally require a motion, notice, and hearing in order for a valid court order to issue. See e.g. Fla. Fam. L. R. P. 12.100(a) and Fla. R. Juv. P. §8.235(a). As such, the AO imposes an additional burden on parents to file a motion and schedule a hearing to reinstate parent-child and sibling visitation.
  • The legal standard on visitation terms is “the child’s best interest” based on the current circumstances of the parties and children. The AO constitutes a blanket decision on visitation terms across all cases, regardless of the particulars of each case.

If the Florida Supreme Court does not have that authority to issue these directive by way of judicial administrative order, then local circuit courts order implementing the Supreme Court’s orders are also likely invalid.

Limits to Deciding What Constitutes “Emergency”

The discretion assigned to one person (the chief justice) to declare an “emergency” and “suspend, toll, or otherwise grant relief from time deadlines” is itself a sweeping power. Are there constraints?

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.

Judicial 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 Administrative Orders.

The new Ninth Circuit temporary orders appear valid to the extent they implement the Florida Supreme Court’s valid 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 delegated or are improperly 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 2020-07-02 (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 2020-07-02’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.

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). Administrative 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 administrative orders imperfectly convey governing law, or impose obligations not existing in law. Separation of powers and due process issues arise when administrative orders affect substantive rights in a manner inconsistent with existing law and procedure.

For example, Administrative Order 2004-05-04 ¶6 mandates:

“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 temporary alimony without any due process need and ability analysis anticipated in F.S. 61.08.

A second example is Administrative Order 2004-05-04 which mandates:

“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. Uneven Exercise of Discretion

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 Examination of Florida’s Standing Family Law Orders, Fam. L. Commentator, Gunia and Tackenberg (Fall 2019).

The problem is compounded when even the same judicial circuit enters conflicting directives on the same topic in different subdivisions. For example, in response to the COVID-19 order, Ninth Judicial Circuit Administrative Order 2020-10 entered 3/26/2020 that governs DCF dependency cases provides:

“Unless specifically ordered otherwise in a particular case, ALL supervised in person [parent-child] visitation is SUSPENDED through April 17, 2020.”

[Emphasis in the original.]

However Ninth Judicial Circuit Administrative Order 2020-07-02 entered 3/27/2020 that governs divorce and paternity cases provides:

“If regular time sharing and exchanges can occur and be consistent with any governmental orders, then regular time sharing shall continue as Ordered by the Court . . . “.

More than one Orlando divorce judge has suggested that child exchange for timesharing can occur at the current time despite government orders that restrict non-essential travel and business, especially where child exchange can occur ancillary to essential business and activities. This conclusion seems at odds with the dependency division, where all in-person parent-child visitation is automatically suspended. Between the two divisions, it would seem discretion would be exercised in a manner maximizing parent-child visitation in DCF dependency cases, where government action by DCF intrudes on the right to parent, a fundamental right under the Florida constitution.

IV. 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 power “to suspend, toll, or otherwise grant relief from time deadlines” as 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 deficiencies in due process and restrictions on access to the courts affect fundamental constitutional rights.

The Florida Supreme Court’s recent judicial administrative orders may be invalid to the extent they affect issues and rights other than as they relate to time deadlines.

The recent circuit level judicial administrative orders of the Ninth Judicial Circuit appear valid to the extent they implement the valid judicial 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 that are improperly conveyed 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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