Court: District Court of Appeal of Florida; May 19, 1995; Florida; State Appellate Court
Marjorie Keene's petition for certiorari review concerning a nonfinal discovery order was dismissed due to facial insufficiency, as it lacked both a filing fee and an order of indigency. The court provided her counsel an opportunity to demonstrate indigency status, which was not achieved through a trial court order or adequate motion and affidavit. The court clarified the procedural requirements for indigent clients in civil cases, highlighting that noncompliance could lead to dismissal. Keene, involved in a personal injury suit from an automobile accident allegedly caused by Joseph Nudera, sought to prevent discovery of unrelated medical information. Although the trial court ordered her to respond to discovery requests, it mandated the protection of sensitive medical information unless disclosed by future court order. The court noted that without sufficient documentation from the trial court, it could not limit discovery as requested by Keene. The court emphasized that while the absence of a filing fee is not jurisdictional, failure to resolve this issue following notice will result in dismissal without a merit ruling.
Most attorneys representing indigent clients in appellate proceedings secure an order of indigency from the trial court within thirty days of the relevant order. Occasionally, attorneys may submit a letter indicating that the order is forthcoming. However, David Solomon, representing Ms. Keene, has filed multiple appellate proceedings without a fee or order of indigency, leading to court orders requiring him to pay the fee or establish indigency. This has caused delays and confusion in various appeals, incurring additional costs for the court. In a recent case, Solomon sought an extension of time to comply with the fee order, citing difficulty in contacting his client. When ordered to show cause regarding potential sanctions, he submitted a document labeled "affidavit," which lacked a formal oath and did not meet necessary affidavit standards. Although it is clear Solomon is not willfully disregarding court orders, he appears to lack understanding of the procedures for establishing indigency. Given that Ms. Keene had an opportunity to demonstrate her entitlement to proceed without fees and would not qualify for relief, the court dismissed the proceeding. While the court has the authority to impose fines on Solomon for non-compliance with rules, it opted instead to mandate that he complete ten hours of continuing legal education in appellate practice within the year, providing proof to the court clerk. Additionally, prior to 1980, litigants had no right to appeal without paying fees, but a subsequent statute established this right for indigent individuals, outlining the procedure for obtaining a certificate of indigency, which was later amended to allow attorney certification instead of requiring an affidavit from the party.
An appeal can be made to the court with jurisdiction if a clerk denies a certification. However, proposed legislative procedures conflict with established judicial rules, as only the supreme court can set procedural rules according to the Florida Constitution. The Florida Rule of Appellate Procedure 9.430 outlines that a party seeking review without costs must file a motion with an affidavit proving financial inability. If granted, they can proceed without prepayment. If denied, reasons must be provided in writing, and the denial is subject to appellate review. Additionally, the Florida Rule of Judicial Administration 2.040(b)(3) states that filing fees are required unless the party is adjudicated insolvent or in specific types of appeals, such as habeas corpus. The statutory procedure for obtaining a clerk’s certificate does not meet these procedural requirements, as established in case law. The 1994 amendment does not alter the fundamental rules regarding orders of indigency, and while it allows for a certificate based on an attorney's certification, this relies on hearsay, which raises questions about its validity. It is noted that obtaining a client’s affidavit is generally recommended. In the specific case mentioned, Ms. Keene did not file a direct appeal of a final or non-final order, and if she had, she would have needed an order of indigency from the circuit court, as prior orders of indigency are typically only accepted if the appeal starts within six months.
An attorney representing an indigent client must file a motion for an order of indigency in the trial court prior to or shortly after filing a notice of appeal. If this order is not obtained before the appeal starts, the attorney must inform the appellate court of its status. The responsibility to provide the appellate court with a copy of the indigency order lies with the appellant, as the appellate procedure rules do not mandate automatic transmission of the order by the lower tribunal. Failure to pay the filing fee or submit the indigency order within thirty days may lead to dismissal of the appeal.
For original proceedings, such as a petition for writ of certiorari, the process for obtaining an order of indigency differs slightly. Most original proceedings involve circuit court orders, where all parties from the lower tribunal also participate in the appellate process. A circuit court has the authority to grant an indigency order for both original proceedings and direct appeals. In cases where original proceedings challenge decisions from non-judicial lower tribunals, petitioners may file a motion for indigency directly with the appellate court along with an affidavit, bypassing the lower tribunal. Similar to direct appeals, failure to pay fees or submit required documents can result in dismissal after thirty days.
The Florida Rules of Appellate Procedure and common practice manuals do not provide forms for indigency orders; however, this opinion includes a suggested form affidavit and order to assist trial courts and petitioners in meeting statutory requirements. The court dismissed the petition for writ of certiorari, and the attached order detailed whether the plaintiff was deemed indigent for appeal purposes, allowing or denying their request based on the findings.
The dismissal and sanctions in this case are not due to conflicts in procedures, as the petitioner’s counsel did not utilize the unauthorized procedure outlined in the statute. Instead, the counsel failed to take adequate steps to establish the petitioner’s indigency as required by the court. Several cases were cited demonstrating various outcomes related to fee payments and indigency determinations, including instances of fees being waived, paid, or cases dismissed for failure to pay. Notably, the affidavit submitted does not clarify whether the petitioner has been declared indigent by the trial court. It is assumed the petitioner paid a filing fee. An appellant can submit an order of indigency from the lower tribunal to this court, allowing the appellee to contest the order through a motion based on a significant change in the appellant's financial situation since the prior determination.
