Table Of ContentTHE FLORIDA
VOLUME LXXV, NO. 1 JANUARY 2001
BAR JOURNAL
ADVANCING THE COMPETENCE AND PUBLIC RESPONSIBILITY OF LAWYERS
Administrative Law: A Meaningful Alternative
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JANUARY 2001 VOLUME LXXV, NO. 1
BARJOIRNAL Features
65Q Apalachee Parkway
Tallahassee, Florida Administrative Law: A Meaningful Alternative 14
32399-23CX3 to Circuit Court Litigation
(850) 561-56DO by Judge Linda M. Rigot
wvwv.FLABAR.org Why Florida Needs the Administrative Procedure Act 18
vvvvw.flcourts.org by William E. Williams and S. Curtis Kiser
Publisher The Florida Division of Administrative Hearings 22
John F. Harkness, Jr. by Judge William C. Sherrill, Jr.
Editor
The Administrative Process and Constitutional Principles: 28
Cheryle M. Dodd
Separation of Powers
cdodd@flabar. org
by Johnny C. Burris
Associate Editor
Laura L. Johnson State Agency Rulemaking Procedures and Rule Challenges 34
ljohnson@flabar. org by Donna E. Blanton
Assistant Editor Nonrule Policy and the Legislative Preference for Rulemaking 38
Amy Brown by Cathy M. Sellers and Lawrence E. Sellers, Jr.
Advertising Director
Back to the Future—^An Agency Perspective on Rulemaking 42
Cassandra Dixon
in the 21st Century
Account Executive by Robert C. Downie II
Randy Traynor
Sales Associate Limiting Agency Discretion in Rulemaking Under the 45
Federal and Florida Administrative Procedure Acts
Julie M. Tanner
by Dan R. Stengle
Circulation
Marie D. Bryant Standing in Florida Administrative Proceedings 49
Communications Director by Richard M. Ellis
Park M. Trammell, Jr.
A Comparison of the APA and Circuit Court Procedures 54
Published monthly except July/August, by Mary Smallwood and Margaret-Ray Kemper
which is a combined issue, by The Florida
Appellate Mediation at the First District Court of Appeal: 58
Bar, 650 Apalachee Parkway, Tallahassee
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Periodicals postage paid at the Post Office by Donna Riselli
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Subscriptions: Florida Bar members re¬
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Letters
dues payment. Nonmember subscriptions
are a year; single magazine copies. Florida’s Winning Team: U.S. Senators Graham and Mack
12 months old or less. $2; older than 12 Protecting Floridians’ Right to Justice
months. $5; September directory issue by Herman J. Russomanno
$35 ($30 to Bar members). Single copy
sales subject to Florida sales tax. Expanding Benefits to Meet Members’ Needs
Advertising copy is reviewed, but publi¬ by John F. Harkness, Jr.
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Medical Monitoring Claims Are Viable in Florida
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A Look at Probation and Community Control Revocation
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Proceedings in Light of Boyd and F.S. §901.02(1)
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2 THE FLORIDA BAR JOURNADJANUARY 2001
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Letters
Bifurcation—A Novel
the fore to justify the increased de
Approach
facto separation of the races. Cer¬
President
Herman J. Russomanno Judge David L. Tobin’s featured tainly every effort should be made
President-elect article advocating bifurcation of to pair students/faculty at the UF
Terrence Russell more civil trials (November 2000) and FAMU schools of law if diver¬
Executive Director should be required reading for sity is to have real meaning.
John F. Harkness, Jr. litigators and judges. Most bifur¬ The Gainesville Sun has warned
cated trials will be shorter and less that without a change of direction,
Board of Governors expensive. This concept will result the UF law school would be per¬
in the elimination or the settling of ceived as the last bastion of “good
First Circuit Alan B. Bookman; Second Circuit many damage issues and will old boy” racial segregation. The U.S.
KelyCKerstTBet Johnson, Michael J. GtazeriThTd streamline trial calendars. Office of Civil Rights already is said
□r^ Michael S. Smith; Fourth Circuit Chris¬ Judge Tobin’s novel approach to to be concerned about Florida’s com¬
tine R. Milton, Merry M. Coxe III; Fifth Qncuit Wil¬
liam H. Ftielan, Jr.; SMhQrxi; Louis Kwal, John litigation management and calendar mitment in a signed agreement to
A. Yarichunis:S0wer1hOcut Charles C. BXiets; planning is a win-win solution for rid higher education of the vestiges
Bghth Circuit Robert A. Rush; Ninth Circuit clients, attorneys, and witnesses. of racial segregation. Both the new
Kirk N. KirkconneM, Michael P. McMahon, John
Marshall Kest; Terth Qncuit Robert M. Brush; Jack W. Bettman law schools and the so-called One
BewerKh Circuit Francisco R. Angones, David Jacksonville Florida Plan have been placed un¬
B. Rothrrian, TodAroricMtz, MariueIR, Morales, der scrutiny by that office.
Jr., Don L. Horn, Sharon L. Langer, David W. Diversity
Bianchi,An(iwNeecie, Steven E Cha^,Arthir But the need for diversity in the
H. Rice; Twelfth Qouit Anthony J. Abate.;Thf^ The Florida Bar long has talked legal community obviously goes be¬
teerth Qncuit Wiliam Kalish, MarkP. Buell, Ri¬ the talk about diversity. It is time yond the academic world. Media
chard A. Gilbert; Fourteenth Circuit Rob Blue,
to walk the walk. have reported that blacks make up
Jr.; Rfbeenth Qncuit John G. White III, Jerald S.
Beer, Michael T. Kranz; Sbteerth Circuit James The Bar President’s October call only two percent of the 65,000
S. Lupino; Seventeerrth Circuit Michele Kane for diversity (“Diversity: Seize the Florida Bar members. Therefore, it
CLmmings, Da^ D. Welch, Henry Latimer, Jesse
Future and Feel the Power of Inclu¬ shouldn’t surprise us that The
H. Diner, John Hume; Bghteenth Circuit Qifton
A McQelland, Jr.; NineteerTth Circuit Louis B. sion”) came at a time when the Florida Bar News earlier this year
Vocelle, Jr.; Twentieth Circuit John P. Cardillo; state’s flagship law school, at the reported then president of the
□utK#State Richard A. Tanner. Ian M. Comisky,
University of Florida, was being Florida Chapter of the National Bar
DemisM. Whalen, Brian D. Burgeon; Residert
YLD Stuart N. Ratzan; President-elect YLD criticized in Gainesville for its lack Association stated, “Minorities still
Elizabeth G. Rice; Public Members. Royce B. of black faculty. Only one African- have a perception of The Florida Bar
Walden, Vivian L. Hobbs.
American, Professor Kenneth Nunn, as a ‘good old boys’ club, as very ex¬
is a full-time tenure track professor clusionary.” He advocated more mi¬
Editorial Board on site there. (At Florida State Uni¬ norities on the Board of Governors,
versity, only two blacks are reported including the elevation of his non¬
Chair: Jeffrey D. Kottkamp, Ft. Myers; Vice Chair: to be in tenure track positions.) voting status to that of a voting seat.
GaryS. Gaffney, Ft. Lauderdale; Mambers: Donna E.
In March 2000, The Florida Bar Past efforts, including litigation,
Btanton, Tabhassee: Peter A Btett, West Palm Beach;
KelyM. Braui, Tampa: Dean Bunch, Talahassee;Da/id reported that then ABA President have failed to change the makeup
R. Cassetty, Coral Gables: Susan G. Chapin, West Palm Bill Paul was urging expansion of of the Board of Governors. Surely
Beach; ChnsbneC. Daly, Lake Wales; RsJph A Demeo,
minority law school enrollment. Now the time has come for some drastic
Talahassee; Judge Sandra EdwardsStephens, Ocala:
Richard E. Fee, Tampa; Cleveland Ferguson HI, Ft Lau¬ that increase likely will occur as a solutions, if the diversity call is to
derdale; AmyL Fischer, West Palm Beach; Nancy S. result of placement of two public new have any meaning.
Freeman, WirterPark, Judge Thomas G. Freeman, Jr.,
schools in minority areas. However, Measures to be considered might
Sanford; EvelyiD. Golden, Atlanta, GA; Pearl Goldman,
Ft Lauderdale; RobyiS. Hankins, Ft. Lauderdale; Keith the demands of those institutions for be the following:
C. Haymes, Mami Beach; Judge Fland Hoch, West l^aln minority faculty members and ad¬ 1) Merger with parity of the ABA
Beach; Valerie G. Ikoff, Miami; Judge Lisa D. Kahn, Vera;
Marlyne Marzi Kaplan, Holywood; Judith R. Koch, St. ministrators could have the unfor¬ and the National Bar Association
Petersbirg; BenedctP. Kuehne, Memi; David Lawrence tunate effect of resegregation. when two Floridians, Martha
III, New York, NY; Steven B. Lesser, Ft. Lauderdale: African-Americans already have Barnett and Yvette Simmons, head
Heather Jo Melom, Talahassee; David K. Miller.Talla-
hassee; PetErF^paganakB, New York, NY; John R. Fteid, indicated in area media that lack of those organizations.
Jr., Orlando; Kel^S. Roari^, Memi; AmyD. Ronner, Opa role modeling at the UF faculty level 2) Merger with parity of The
Locka; Lawrence D. Silverman, Miami; Susan L. leaves students discomfited. If Florida Bar with the state chapter
Stephens, Talahassee; Robert H. Sturgess, Jackson-
Rafael Suarezfivas, Holyvood; Frances H, Toomey, blacks then rush to the site of the of the National Bar Association.
Tampa; R. Daig Waters, Talahassee; John 0. Wiams, new FAMU School of Law, to be in a 3) Willingness of whites to pay
Talahassee; Board Uaean; Tod Aronovitz, Miami.
comfort zone, the old South myth of their dues to the Florida and local
“separate but equal” may come to minority bar associations, even
4 THE FLORIDA BAR JOURNAL/JANUARY 2001
L S though they will be in the minority ation clause with the words “Now
f Oath of Admission ? in such organizations. Therefore” is both hackneyed and
i to The Florida Bar " 4) Encouragement of whites to verbose. The words serve no purpose
refrain from seeking Board of Gov¬ except to make the writer of the con¬
ernor seats when minorities step tract look silly. The modern way of
The general principles which s
forward to seek the positions. commencing a consideration para¬
^ should ever control the law- ■
5) Minority presence on most, if graph is with the words “In consid¬
I yer in the practice of the legal S
not all, continuing legal education eration of. . .”.
I profession are clearly set J
programs. You can probably guess my feel¬
i forth in the following oath of!
6) Reporting racial/gender/ethnic ing about the phrase “In Witness
I admission to the Bar, which
makeup of the Florida courts. Whereof.”
i the lawyer is sworn on admis- ^
7) Minority lawyers as adjunct John C. Lovett
I sion to obey and for the willful 1
professors at state law schools. Tallahassee
I violation to which disbarment 5
8) Creation of CLE programs to
f may be had. ^
address civil rights, affirmative ac¬ I enjoyed James Martin’s article
I “I do solemnly swear: ^
tion, equal opportunity, modern on drafting contracts. One part that
I “I will support the Constitu-;
property relations, federal/state I would disagree with, however, is
I tion of the United States and i
funding for minority and low income his recommendation to put a blank
i the Constitution of the State ^
communities, and the federal Com¬ for a date in the first paragraph.
f of Florida:
munity Reinvestment Act. That’s fine if you have all parties
i “I will maintain the respect
9) Withholding visual recognition sign at the same time in front of you,
f due to courts of justice and ^
in publications for those with length but my contracts typically have
I judicial officers: ;
tenure in law practice or member¬ multiple parties spread around the
I “I will not counsel or main- h
ship. country or the world, and don’t be¬
I tain any suit or proceedings
10) Minimizing use of member come effective until signed by the
I which shall appear to me to 5
photos in Bar publications. last party, who then distributes cop¬
I be unjust, nor any defense ex- ^
Let the Bar be the first to encour¬ ies containing all signatures to all
I cept such as I believe to be ^
age discussion about such controver¬ the parties. Leaving a blank space
I honestly debatable under the |
I sial issues. invites confusion, as it permits one
law of the land: ^
Gabe Kaimowitz of the parties to write in whatever
I “I will employ for the purpose I
Gainesville date he wants, which may be before
I of maintaining the causes con-
or after the actual date the agree¬
I fided to me such means only Suggestions for
I ment takes effect or is signed by all
as are consistent with truth Writing Contracts
parties. I have seen a first party sign
I and honor, and will never seek
The article, “Fifty Tips for Writ¬ the contract and put that date in the
ijto mislead the judge or jury ;
ing the 21st Century Contract” (No¬ first page, then send it on to the
I by any artifice or false state- :
vember 2000), has many good other parties to be signed a month
I ment of fact or law: ii
points, but at least three of its sug¬ later. I am usually the last party to
I “I will maintain the confi-1;
gestions are of the 11th century. sign, and I don’t want a contract that
J dence and preserve inviolate I
The author suggests recitals in purports to make my company liable
I the secrets of my clients, and ^
the nature of “Whereas” clauses for something our representative
I will accept no compensation 5
each followed by semicolons. Then may have done under the terms of
I in connection with their busi- *
comes a consideration paragraph the contract a month before I signed
I ness except from them or with ‘
which begins with the stilted phrase it. The way I handle that is to say
I their knowledge and approval: I
“Now Therefore.” This style is ar¬ “made on the date last signed by all
I “I will abstain from all offen- *
chaic and perpetuates the conclu¬ Parties to this Agreement.” To re¬
I sive personality and advance i
sion that legal writing has not pro¬ solve doubt about the effective date,
i no fact prejudicial to the honor I
gressed since Schuester from days which may be different than the
I or reputation of a party or wit-
of old. date the contract was made, include
I ness, unless required by the |
The modern method of incorporat¬ an “Effective Date” or “Term of Con¬
I justice of the cause with which i
ing recitals in a contract employs a tract” paragraph which specifies the
i I am charged: |
section entitled “Statement of Back¬ date liability begins. I then attach
li “I will never reject, from any \
ground Information” or “Statement a protective coversheet that says
j consideration personal to my- ^
of Purpose and Intent” or the like. “Contract of 15 December 2000 be¬
I self, the cause of the defense- f
] I The recitals are stated in a narra¬ tween Harris Corporation, Ajax Cor¬
less or oppressed, or delay
tive form. If the contract is substan¬ poration, and NASA for the Supply
I anyone’s cause for lucre or !
tial, a separate paragraph contain¬ of Satellite Antennas.”
I malice. So help me God.” |
ing definitions is included. James E. Bartlett III
The introduction of the consider¬ Melbourne
6 THE FLORIDA BAR JOURNAL/JANUARY 2001
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President’s Pegs
Florida’s Winning Team:
U.S. Senator Graham and U.S. Senator Mack
Protecting Floridians’ Right to Justice
T
his article is rience, mature judgment,
in tribute to the strong work ethic, and in¬
outstanding bi¬ tegrity beyond reproach.
partisan leader¬ As a result of the
ship of Senator Bob Gra¬ efforts of our senators, in
ham and Senator Connie the last three years the
Mack in addressing U.S. Senate has con¬
Florida’s special judicial firmed 13 federal judges
needs. Because of their ex¬ in Florida: one in the
traordinary determination Northern District (Judge
and hard work they have Stephan Mickle); six in
achieved what no other the Southern District
state has even come close to (Judges William P.
Senator Bob Graham Senator Connie Mack
accomplishing in recent Dimitrouleas, Alan Gold,
years concerning the ap¬ Paul C. Huck, Adalberto
pointment of U.S. district court Flo Jordan, Donald Middlebrooks,
judges. Because of their dedicated as l Patricia A. Seitz); and six in the
service, Florida has been blessed Aci Middle District (Judges John Antoon
with competent, experienced, com- juc II, Richard A. Lazzara, James S.
passionate, and highly professional Soi Moody, Jr., Gregory A. Presnell, John
judges. These distinguished indi- wa Steele, James D. Whittemore).
viduals bring to the court the high- fac The process for becoming a U.S.
est standards and strong commit- an( district court judge is demanding and
ments to the administration of bio challenging. It is a unique process
justice. Ad that may take many months or even
What did our senators do to pro- Coi years to complete, starting with ap¬
tect Floridians’ right to justice? How lin plications 30 to 50 pages in length.
did our Florida senators join hands the It should be noted that there is no
to assist our overburdened federal tin reference to political party affilia¬
courts in Florida? For several years, Dis tions in the entire application. The
U.S. Senators Graham and Mack in applications are studied and “graded”
worked together to prevent crowded jud by the Federal Judicial Nominating
court dockets from turning delayed ing Commission, consisting of 39 mem¬
justice into denied justice for thou- era bers who are lawyers and lay people.
sands of criminal victims, defen- nu The commissioners are diverse in
dants, and civil litigants in Florida. tioi every sense. Senators Graham and
Their unified efforts were ultimately i n c Mack personally interview the nomi¬
successful in the fiscal year 2000 ser nees, and names are then sent to the
budget agreement between Con- jur President. This interviewing process
gress and the White House, which hai by Senators Graham and Mack in¬
included legislation to create four uni volves many hours and energy in ful¬
new Middle District Court judge- sio filling their mutual goal of sending
ships. Senators Graham and Mack ria the most qualified judicial nominees
had introduced legislation to assist ck to the President. As part of this pro¬
the overburdened federal courts in su] cess, The Federal Bureau of Investi-
8 THE FLORIDA BAR JOURNAL/JANUARY 2001
