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Wednesday, December 23, 2015

The Florida Court Declines Review of Padgett

Today's guest post is authored by The Honorable David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings. Contact him at It is shared from his blog

In a brief order dated December 22, 2015, the Florida Supreme Court declined to review Padgett v. State of Florida. This saga began with a Miami Circuit Judge presiding over a case involving an injured worker, Cortes, and his employer, Velda Farms. Those two resolved their differences, but the Florida Workers' Advocates (FWA) and Workers' Injury Law and Advocacy Group (WILAG) had "intervened" in the case, meaning they also became parties.

With Velda Farms no longer in the case, a defendant was needed though. The trial judge allowed FWA and WILAG to change the name of the case. He allowed a new injured worker, Elsa Padgett, to join the plaintiffs' side of the case. Then the name was changed to Padgett and FWA v. State of Florida.

At that point, it would have been helpful for the plaintiffs to "serve" The State of Florida. When a lawsuit begins, it is "filed" which creates the case with the court system. Then the defendants are "served" which is how the defendant knows that it or they are being sued. In America, this action of being "served" is important, because it is the "notice" that we call due process under the law. Procedural due process is protected by the Constitution, and it is comprised of two important rights, the right to "notice" and the right to an opportunity to tell your side of the story, called the "opportunity to be heard."

The Third District Court concluded that changing the name of the case to include "The State of Florida" as a defendant was not sufficient to put the State of Florida on notice. The Court concluded that sending the State of Florida a notice of the name change was likewise not sufficient for notice. The defendant has to be "served" with the lawsuit. The Third District also concluded that the question of constitutionality was moot by the time the Circuit Judge ruled on that question. The Third District's Opinion is an interesting read.

Because the District Court disposed of the case with that decision, it never reached the due process question regarding Ms. Padgett's employer. She became a plaintiff in the case (Cortes' case against Velda). Her employer, from whom she was seeking damages in this lawsuit, was never invited to the case. Her employer, the one that would apparently have been liable to pay her damages if she prevailed in this lawsuit, was never named in the lawsuit, never served, and never (apparently to this day) given any opportunity to be heard in this case. That has often been mentioned by curious lawyers discussing the case.

The Florida Supreme Court order of December 22, 2015, in the case now styled Florida Workers' Advocates, et al. v. State of Florida, Case Number: SC15-1255 (Lower Tribunal Case(s): 3D14-2062)(a/k/a Padgett) states:

This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Article V, Section 3(b), Florida Constitution, and the Court having determined that it should decline to accept jurisdiction, it is ordered that the petition for review is denied. No motion for rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d)(2).

About 60 years ago, writing for the United States Supreme Court in Brown v. Allen (1953), Justice Jackson observed that "we are not final because we are infallible, but we are infallible only because we are final." A paraphrase of this has been a favorite of Supreme Court scholars since: "the Court is not last because it is always right, but it is always right because it is last." As a general rule, the Supreme Court is the end of the road for litigation. Its decision is the last word.

There will be no rehearing or reconsideration of Padgett in Florida's courts, the Court's December 22, 2015 order says so. The Supreme Court can pre-emptively deny motions for rehearing that have not been written, filed or read yet.

There will be those who will immediately ask "can this order be appealed?" No, not "appealed." An Appeal is something to which we each have a right in Florida, but that right ends with one appeal. The "right" to appeal in this instance was the right to appeal to the Third District. Any appellate review beyond that is not a "right" but is instead what we call "discretionary review."

Certainly, the Florida Workers' Advocates could ask the U.S. Supreme Court to review the case further by petition for writ of certiorari (this is how discretionary review is requested, and is how FWA and WILAG unsuccessfully asked the Florida Supreme Court to review this). The old saying is that "if you do not ask, you do not get." So certainly, one could ask ("petition") the U.S. Supreme Court to review.

Certiorari has been sought in many cases over the years, and the U.S. Supreme Court accepts a very small fraction of such cases. In fact, that Court only reviews about 100 cases each year. Can the FWA, WILAG and Padgett seek review? The answer is absolutely "yes." Are the odds in favor of the U.S. Supreme Court reviewing it, clearly "no." The conclusions of the Third District Court of mootness and notice are unlikely to compel the attention of the Court.

Rather, it would appear that the saga that has been Padgett and FWA and WILAG v. State of Florida (or as the Third District referred to it "Padgett v. [?]") has run its course and is now concluded.

There remain other Florida Supreme Court cases in which we await decisions: Westphal v. St. Petersburg, Castellanos v. Next Door Company, and Stahl v. Hialeah Hospital. So many interesting issues. Last Christmas I said 2015 would be an interesting year at the Florida Supreme Court. I was wrong; for the most part it was quiet. Many of us spent the year marking our Thursdays with a rush to the Court's decision webpage, reminiscent of a child's rush to see what Santa left under the Christmas tree. We had a great many anticlimactic Thursdays in 2015.

Hopefully 2016 will bring decisions in some of these cases? In Home, singer Daughtry cautions us "be careful what you wish for, you just might get it all, and then some you don't want." Keeping this in mind, I still wish for 2016 to bring closure for Florida on some of these important issues. There are those out there that think Jerry Clower's idea ("shoot up here amongst us") is not such a bad idea; maybe Florida "has got to have some relief" in 2016?