Office of the Florida Solicitor General.
The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, [Solicitor General] Frederick William Lehman, that the Government wins its point when justice is done in its courts.(1)
These reflective remarks provide an excellent description of the important role and high ideals of the U.S. Solicitor General. It also provides a great model for the new office of Florida's solicitor general, which was conceived by Attorney General Bob Butterworth and President Sandy D'Alemberte of Florida State University and created in July 1999. The specific duty of Florida's solicitor general is to represent the State of Florida in the Florida Supreme Court and the U.S. Supreme Court in civil cases involving constitutional issues. The concept of the office is to infuse private legal expertise and experience into government practice, to elevate the state's appellate practice, and to provide coordination of both legal and policy issues in the state's most important cases. As Florida's first solicitor general, my goal for the office is embodied in the substance of the quote above: not merely to prevail in the instant case or to achieve victory, but to establish justice.
Florida's solicitor general serves in two roles. First, by memorandum of authority from the attorney general, the solicitor general has plenary authority over all civil appeals for the State of Florida.(2) In that role, the solicitor is appointed by and reports directly to the attorney general and serves at his pleasure. The Office of the Solicitor General exists as a separate unit in the Office of the Attorney General and consists of the solicitor general, two deputy solicitors, a legal assistant, and an administrative assistant.
The second role of Florida's solicitor general is to hold the Richard W. Ervin Eminent Scholar Chair and teach a seminar at the Florida State University College of Law. Richard Ervin, who is 95 years old and attends the seminar once each semester, is a former chief justice of Florida's Supreme Court and served as Florida's attorney general from 1949 to 1964.(3) This chair was endowed with the assistance of Attorney General Bob Butterworth and provides funds for one-half the salary of the solicitor general. Because of this second role, the solicitor general is appointed by the attorney general with the advice and approval of the president of Florida State University and the College of Law.
In regard to the solicitor general's role in civil appeals, the main responsibility is to oversee the representation of the state in significant litigation affecting the powers, duties, and responsibilities of all branches of state government. The solicitor general has the authority, subject to the attorney general's final approval, to decide whether the state should appeal a case to the Florida Supreme Court, the U.S. Supreme Court, or the 11th Circuit Court of Appeals. The office also has the authority to decide whether the state will file or join an amicus brief in state or federal court, primarily in cases pending in the Florida Supreme Court and U.S. Supreme Court. To implement this broad delegation of authority, our office has developed procedures to identify and monitor cases in Florida in which the solicitor general might appear, as well as procedures to review and respond to requests from other states to join as amicus in cases pending in the U.S. Supreme Court.
The solicitor general's office reviews each petition for review filed in the Florida Supreme Court in civil cases to determine whether the case involves an issue of statewide importance in which the state should be involved. When a potentially significant case is identified, the legal and policy issues in the case are further researched and evaluated. Affected agencies are consulted and if the case presents issues of statewide significance, we will seek leave of court to present the views of the State of Florida, usually in the form of an amicus brief. Some of the cases in which we have appeared include Anderson v. Anderson (#00-59) and D.F v. Department of Revenue (#96,288), which both involve the husband's continuing obligation to pay child support for a child born during marriage but later determined not to be biologically his; S.A.P. v. Dept. of Health and Rehabilitative Services (#00-105), which involves the state's liability for fraud committed by its employees; Schreiber v. Rowe (#95,000), which involves the public defenders' immunity from malpractice suits by criminal defendants; and Cook v. City of Jacksonville (#00-1745), which involves term limits imposed on the clerk of court through a local charter amendment.
In other cases, the attorney general, through the solicitor general, will directly intervene in or initiate action on behalf of the "people of the State of Florida." For example, in Florida Senate v. Florida Public Employees Council 79, AFSCME, 26 Fla. L. Weekly S250 (Fla. Apr. 18, 2001), we filed an emergency petition with the Florida Supreme Court for a writ of prohibition directed to a circuit court judge who attempted to enjoin a legislative meeting and subsequently hold individual legislators, including the president of the Senate and the speaker of the House, in contempt. The court granted the petition and adopted the argument that the separation of powers provision in the Florida Constitution precluded the judicial branch from interfering with the legislative process. The court's opinion specifically recognized the detrimental effect of judicial interference with the legislature's dispatch of the people's business during the 60-day legislative session, which was the interest of the State of Florida that the attorney general advocated.
Additionally, I was recently granted leave of court to appear in cases challenging the constitutionality of the newly enacted exemptions from the Public Records Act for autopsy photographs in the wake of Dale Earnhardt's death.(4) Despite the inevitable focus solely on the Earnhardt photographs, this case presents difficult questions about the media's right to pursue the news and the plight of any family facing the potential publication of very sensitive and personal information. The resulting media attention and public outcry revealed problems with Florida's Public Records Act, which were subsequently debated and addressed by the legislature. As solicitor general, I will provide oversight on behalf of the State of Florida in the defense of the new law.
The solicitor general's office also monitors those cases being handled by the Office of the Attorney General which involve the constitutionality of a statute, interpretation of a constitutional provision, the functions of government, or other matters of great public interest. When the case involves significant policy issues, we will represent the state in the appeal. Examples of these cases include Bush v. Holmes, 767 So.2d 668 (Fla. 1st DCA 2000) (upholding the constitutionality of Florida's A-Plus education program), rev. denied #SC00-2295 (Fla. Apr. 24, 2001); Kainen v. Harris, 769 So. 2d 1029 (Fla. 2000) (rejecting a challenge to the ballot question for the local-option vote on the merit selection of trial judges); and Fish and Wildlife Conservation Comm'n v. Caribbean Conservation Corp., #1D00-1389 & #1D00-1804 (involving constitutionality of the implementing legislation for the 1998 constitutional amendment creating the FWCC). In other cases in which I am not personally involved, our office provides oversight and assistance in brief writing and editing, and oral argument preparation, to the assistant attorneys general handling the cases in the appellate court.
Our office also coordinates requests the State of Florida receives from other states seeking Florida's support for amicus briefs in cases pending in the U.S. Supreme Court. These requests generally are referred to us by the National Association of Attorneys General, although we sometimes have direct inquiries to our office from another state's solicitor general or attorney general. When a request for amicus participation is received, our office will review the lower court decision and research Florida and federal law to determine whether the case impacts an interest important to Florida. We will also consult with and coordinate the efforts of other attorneys in the Department of Legal Affairs who specialize in the legal issues implicated by the case, and with the governor's office and the general counsels of affected state agencies.
Once it is determined that Florida should join an amicus brief prepared by another state or should prepare its own amicus brief, I will discuss the issue with the attorney general.(5) Our office then reviews and provides comments on the draft brief prepared by the other state or we prepare a separate brief in which Florida's interests may be paramount or unique. Examples of cases in which we filed an amicus brief on behalf of the State of Florida are Minnesota Twins v. Hatch (#99-414), which involved the scope of baseball's antitrust exemption, a matter which had previously been decided favorably to the state by the Florida Supreme Court; Shaw v. Murphy (#99-1613), which involved restrictions on prisoners giving "legal advice";(6) and Pierce v. Sac & Fox Nation (#00-556), which involved Indian Tribes and the states' 11th Amendment Immunity.
Not all of our amicus cases originate in the government sector or involve public agencies. Our office is sometimes contacted by private attorneys requesting that the State of Florida file an amicus brief in a case between private litigants. We consider each request and independently research the issues presented in the case to determine whether or how Florida's interests may be implicated by the case. We are generally hesitant to interject the state into private litigation and will not recommend doing so unless a significant and clearly identifiable state interest is directly implicated and the case is in the Florida Supreme Court, U.S. Supreme Court, or the 11th Circuit. An example of a case brought to our attention by a private attorney and in which we filed an amicus brief is American Home Assurance Co. v. National Railroad Passenger Corp., 11th Cir. #00-13811-D, which involves a municipality's attempt to waive the state's sovereign immunity through a contractual indemnity clause. I encourage private attorneys to bring such cases to the attention of my office. In furtherance of this objective, I frequently speak at local bar association meetings to explain my job and my interest in important issues.
In addition to these duties as a lawyer representing the State of Florida, I consider it a great privilege to hold the Richard W. Ervin Eminent Scholar Chair and teach a seminar at the Florida State University College of Law. The seminar is limited to 15 second- and third-year law students, and it provides these students with the opportunity to work with the solicitor general on legal issues in pending cases of statewide and national interest, usually involving state or federal constitutional law. The students prepare weekly research memoranda, which are of significant value to my office in preparing briefs or evaluating whether the State of Florida should join or prepare an amicus brief on issues before the Florida Supreme Court or the U.S. Supreme Court. A highlight of the course for the students, as well as for me, is the opportunity to have lunch with Justice Ervin and enjoy a wide-ranging discussion of his experiences as a lawyer, attorney general, and justice of the Florida Supreme Court. On occasion, Attorney General Butterworth, the statewide prosecutor, and other notable guests have joined the class for lively, interactive discussions in a small group setting.
I consider it part of my responsibility as Florida's first solicitor general to educate the public and other government officials about the significance of the position and the benefits this office provides to the state's appellate practice by coordinating legal and policy issues in cases of statewide importance. The U.S. Solicitor General has been in existence since 1870,(7) and Florida now joins nearly half of the other states that have a solicitor general or its equivalent.(8)
When Attorney General Bob Butterworth and President D'Alemberte offered me the opportunity to become Florida's first solicitor general, I didn't know what I was being offered or what the job would entail. Now I can tell you: It is the greatest job for a lawyer in the State of Florida. The opportunity to use my skills and experience as a lawyer in public service, to work on Florida's most interesting and challenging cases, and to participate in the legal and policy decisions regarding important issues to Florida and the nation has been one of the most rewarding and satisfying experiences in my professional life. It is my hope that our initial efforts to create and establish this office will emulate the success of the U.S. Solicitor General's Office and become a resource that the courts will come to respect and rely on for exceptional legal work and "to establish justice" on behalf of the people of the State of Florida.
(1) Brady v. Maryland, 373 U.S. 83, 87 n.2 (1963) (quoting former solicitor general and then-judge Simon E. Sobeloff).
(2) The precise scope of my authority as solicitor general is set forth in memorandum of authority prepared by the attorney general and the September 30, 1999, letter from the attorney general to me appointing me to the position.
(3) The Florida Bar News published an excellent article on Justice Ervin which I encourage my students (and all lawyers) to read. See http://www.flabar.org/ newflabar/publicmediainfo/tfbnews/ 99dec1-4.html.
(4) See 2001 Fla. Laws ch. 1 (effective Mar. 29, 2001).
(5) All responsibility delegated to the solicitor general is subject to review and modification by the attorney general. Moreover, the attorney general's name actually appears on the amicus brief because neither leave of court nor the consent of the parties is required for an amicus brief filed on behalf of a state by its attorney general. See U.S. Sup. Ct. Rule 37.4.
(6) The amicus brief prepared by our office (and joined by 16 other states) was specifically cited by Justice Thomas in his opinion for the Court. See Shaw v. Murphy, 69 U.S.L.W. -- (2001) ("Prisoners have used legal correspondence as a means for passing contraband and communicating instructions on how to manufacture drugs or weapons. See Brief for State of Florida et al. as Amici Curiae 6-8;....") (italics original and underscore provided).
(7) See 28 U.S.C. [sections] 505. The solicitor general is the only person in the Department of Justice that is required to be "learned in the law." And see Solicitor General Seth Waxman, Presenting the Case of the United States As It Should Be: The Solicitor General in Historical Context (June 1, 1998) (available at http://www.usdoj.gov/osg/aboutosg/ sgarticle.html).
(8) Other states which have a solicitor general or its equivalent are Arizona, Colorado, Delaware, Illinois, Iowa, Kansas, Maryland, Michigan, Missouri, Montana, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, and Washington. California and Wisconsin are studying whether to create such an office.
Tom Warner is the solicitor general of the State of Florida. He is a board certified civil trial attorney and certified mediator. He received his B.A. (1970) and J.D. (1973) from the University of Florida and served as a member of the Florida House of Representatives from 1992 to 1999. Prior to his appointment as solicitor general, he was a partner with the Stuart law firm of Warner, Fox, Wackeen, Dungey, Seeley, Sweet, Wright & Beard, LLP.
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|Publication:||Florida Bar Journal|
|Date:||Jul 1, 2001|
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