F.G. v. Agency for Persons with Disabilities
SC06-240

>> THE MARSHAL: HEAR YE, HEAR
YE, HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA,
DRAW NEAR, GIVE ATTENTION AND
YOU SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THIS GREAT STATE OF FLORIDA AND
THIS HONORABLE COURT.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> CHIEF JUSTICE: GOOD MORNING,
LADIES AND GENTLEMEN AND
WELCOME TO THE FLORIDA SUPREME
COURT.
THE FIRST CASE ON THIS
MORNING'S DOCKET IS F.G. VERSUS
AGENCY FOR PERSONS WITH
DISABILITIES, AND, MR.^BLECKE?

>> MAY IT PLEASE THE COURT.
JIM BLECKE APPEARING ON BEHALF
OF JUDGE LEDERMAN.
>> CHIEF JUSTICE: YOU'RE DIED
DIVIDING YOUR TIME WITH MISS
GEVERS?
>> TODAY IS JUNE 29, 2006,
EXACTLY SIX YEARS AGO TODAY ON
JUNE 29, 2000, 12-YEAR-OLD
MENTALLY RETARDED F.G. WAS
DETERMINED TO BE ELIGIBLE FOR
NEEDED AND NECESSARY
DEVELOPMENTAL DISABILITY
SERVICES.
F.G. GREW FROM AGE 12 TO AGE 18
WITHOUT THOSE SERVICES, AND I
BELIEVE IT HAS BEEN APPROPRIATE
AREA FOR THE JUDICIARY TO MAKE
INQUIRY INTO THAT AND
DETERMINE.
>> JUSTICE: CAN YOU EXPLAIN THE
GENESIS OF THIS PARTICULAR
CASE?
JUDGE LEDERMAN'S SUBPOENA WAS
ISSUED IN THE CONTEXT OF WHAT
KIND OF A CASE, WHAT KIND OF A
HEARING?
IT WAS UNCLEAR FROM THE RECORD.

>> THIS WAS IN THE CONTEXT OF A
CHAPTER 39 PENNED EVENSY
PROCEEDING, AND THE INQUIRY WAS
DIRECTED TO THREE INDIVIDUALS
OR PERSON TO BE DESIGNATED BY
APD TO PROVIDE THE RECORDS AND
TO EXPLAIN BASICALLY WHY THIS
CHILD WAS NOT RECEIVING
SERVICES OR THE EXTENT OF THOSE
SERVICES.
>> CHIEF JUSTICE: THERE WAS AN
ONGOING DEPENDENCY.
>> YES.
>> CHIEF JUSTICE: HAD RIGHTS
BEEN TERMINATED?
WAS THE CHILD IN FOSTER CARE
FOR SIX YEARS?
IS THAT WHAT WAS GOING ON?
>> I CAN'T ANSWER THAT, BECAUSE
THERE IS NO RECORD BEFORE THE
THIRD DISTRICT OR THIS COURT
UPON WHICH TO ANSWER THOSE
QUESTIONS AND I'M GOING TO BE
PURPOSEFULLY OBTUSE IN THAT
REGARD BECAUSE WHAT OCCURRED IN
THIS CASE AND WHY I BELIEVE THE
IMPORTANCE OF THE SUBPOENA
POWER IS SO IMPORTANT IN THIS
CASE IS BECAUSE THE THIRD
DISTRICT REACHED ITS DECISION
BASED UPON REPRESENTATIONS THAT
WERE EITHER CORRECT OR
INCORRECT FROM APD BUT
REPRESENTATIONS THAT ARE
DIFFERENT THAN THE
REPRESENTATIONS MADE BY APD TO
THIS COURT.
I DON'T KNOW WHICH OF THOSE
REPRESENTATIONS ARE CORRECT OR
INCORRECT.
>> CHIEF JUSTICE: HOLD ON.
BUT YOU UNDERSTAND THAT WE'RE
HERE AND YOU ARE TALKING ABOUT
SOMETHING THAT WAS GOING ON FOR
SIX YEARS, AND WE'RE FIRST
CONFRONTED WITH AN ISSUE AND
WE'VE GOT TO PUT IT IN CONTEXT
WHICH IS THERE IS NO QUESTION
IT WAS A CHAPTER 39 PROCEEDING
AND THE JUDGE LEDERMAN WAS
ACTING UNDER HER AUTHORITY AS A
JUVENILE COURT DEPENDENCY JUDGE
IN MONITORING THE CARE, ONGOING
CARE OF THIS CHILD?
>> THAT'S CORRECT.
>> JUSTICE: NOW, IN THAT
REGARD, YOU JUST SAID THAT HE
WAS DETERMINED TO BE ELIGIBLE
FOR THE SERVICES SIX YEARS AGO.

WAS THAT REALLY A DETERMINATION
THAT HE WAS ELIGIBLE OR DID THE
DEPARTMENT ACTUALLY SAY THAT
THEY DIDN'T HAVE THE FACILITY
TO PUT HIM IN AND THAT
ELIGIBILITY WOULD THEN BE
DETERMINED AT THE TIME WHEN
SPACE BECAME AVAILABLE?
>> I CAN'T ANSWER THAT
QUESTION, BECAUSE JUDGE
LEDERMAN WAS NOT ALLOWED TO
ACCESS TO THE RECORDS THAT
WOULD ANSWER THOSE QUESTIONS.
IN FACT, I MADE THE COMPLETELY
WRONG IN TELLING YOU THAT THIS
OCCURRED EXACTLY SIX YEARS AGO,
BECAUSE MY ONLY INFORMATION
COMES FROM A FOOTNOTE IN THE
APD BRIEF.
THAT COMES FROM PAGE 2 WHERE I
AM TOLD THAT THIS OCCURRED IN
JUNE OF 2000.
>> CHIEF JUSTICE: BUT YOU SEE
WHY FOR US IT IS IMPORTANT TO
KNOW WHETHER IT IS HEARD IN THE
CONTEXT OF THE CHAPTER 39
PROCEEDING INVOLVING THIS CHILD
BECAUSE IN TERMS OF WHAT THE
SCOPE OF THE JUDGE'S AUTHORITY
IS WILL DIFFER DEPENDING ON THE
TYPE OF THE PROCEEDING.
WOULD YOU AGREE WITH THAT?
>> YES.
BUT TO DETERMINE THE NATURE AND
EXTENT OF JUDGE LEDERMAN'S
RESPONSIBILITIES ONE MUST FIRST
KNOW, HAVE THE INFORMATION UPON
WHICH TO BASE THAT DECISION.
>> JUSTICE: WELL, LET'S SEE
THEN IF WE CAN NARROW THE ISSUE
THAT IS BEFORE US AND THE LAST
STATEMENT THAT YOU MADE, IS
THAT THE ISSUE BEFORE US?
IN OTHER WORDS, WAS THE PURPOSE
OF THE SUBPOENA HERE AN
INFORMATION-GATHERING PURPOSE
RELEVANT TO THE CARE OF THIS
PARTICULAR CHILD?
IS THAT --
>> THAT'S CORRECT.
>> JUSTICE: HOW WOULD YOU STATE
THE ISSUE THAT IS BEFORE US
THEN IN TERMS OF THIS
INFORMATION-GATHERING FUNCTION
OF THE COURT?
>> DOES THE JUDICIARY HAVE THE
ABILITY TO, THROUGH THE
SUBPOENA POWER, TO GAIN
INFORMATION ABOUT CHILDREN IN
STATE CARE?
>> JUSTICE: AND WHY DOESN'T
RULE 8 --
>> THEY HAVE ANSWERED THAT
QUESTION, YES.
>> JUSTICE: WHY DOESN'T RULE
8825 ANSWER THAT QUESTION
SIMPLY AND DIRECTLY?
>> IT DOES TOTALLY FOR MY
PURPOSES I THINK IT DOES.
HOWEVER, THE THIRD DISTRICT HAS
HELD THAT NEITHER THAT RULE NOR
THE POWERS OF THE COURT EXTEND
TO APD.
THE THIRD DISTRICT HELD THAT
JUDGE LEDERMAN HAS A MEMBER OF
THE JUDICIARY HAS NO
JURISDICTION, NO AUTHORITY TO
EVEN ASK THE QUESTION AND I
SUBMIT TO YOU --.
>> JUSTICE: WHAT IS -- SPEAKING
OF JURISDICTION, THE THEORY THE
CASE IS HERE IS HOW IT AFFECTS
THE CONSTITUTION.
>> THAT IS ONE OF THE BASES.
THERE IS ALSO CONFLICT WITH THE
OTHER DISTRICT COURTS BECAUSE
BOTH THE BROOK CASE AND THE IEC
DECISION FROM OTHER DISTRICTS
RECOGNIZE THE POWER OF THE
COURT TO ASK THE QUESTION.
>> JUSTICE: THERE'S BEEN SOME
DIFFICULTY, HAS THERE NOT, IN
SEPARATING OUT THE ISSUE OF THE
COURT'S AUTHORITY WITH
REFERENCE TO GATHERING
INFORMATION, AND THE COURT'S
AUTHORITY TO COMMAND CERTAIN
SERVICES BE PROVIDED TO A
TRIAL.
SO HELP SORT THAT OUT FOR US IN
THE CONTEXT OF THIS PARTICULAR
CASE.
>> WE NEVER GET TO THAT IN THE
CONTEXT OF THIS CASE, BECAUSE
THE INFORMATION WAS NEVER MADE
AVAILABLE.
IT WAS DENIED JUDGE LEDERMAN BY
THE THIRD DISTRICT.
ONCE SHE HAS THAT INFORMATION,
WHAT SHE DOES WITH IT THEN
BECOMES SUBJECT TO JUDICIAL
REVIEW.
IT MAY BE IN THAT CONTEXT THAT
APD WILL BE HAPPY WITH WHAT
JUDGE LEDERMAN DOES WITH THE
INFORMATION AND THE CHILD'S
ADVOCATE WOULD BE UNHAPPY ABOUT
THAT.
>> JUSTICE: WALK ME BACK
THROUGH, WE'LL COME BACK TO THE
QUESTION.
[INAUDIBLE].
>> YES.
AND ALSO CONFLICT.
>> JUSTICE: WHAT IS THE THEORY?

[INAUDIBLE].
>> JUDGE LEDERMAN AND EVERY
CIRCUIT COURT JUDGE IN
MIAMI-DADE AND MONROE COUNTIES.

NO LONGER HAVE SUBPOENA POWER
OVER ANYONE ASSOCIATED WITH THE
EXECUTIVE BRANCH, WHICH IS NOT
THE CASE IN EVERY OTHER
DISTRICT.
EVERY OTHER DISTRICT RECOGNIZED
THE SUBPOENA POWER OF THE COURT
AND THE POWER OF THE COURT
COMES SPECIFICALLY FROM CHAPTER
39 AND THE INHERENT POWER OF
THE COURT OVER THE CHILDREN IN
STATE CARE.
>> CHIEF JUSTICE: GO BACK TO
JUSTICE CANTERO'S QUESTION.
>> I BELIEVE THE AUTHORITY, BY
BOTH RULE AND STATUTE GIVES THE
COURT SUBPOENA POWER.
RULE 8.55, I BELIEVE, GIVES THE
COURT SUBPOENA POWER.
>> JUSTICE: ARE YOU ASKING US
TO GO BEYOND THAT NARROW ISSUE
AND TO HOLD THAT JUDGE LEDERMAN
HAS THE AUTHORITY TO ORDER THE
DEPARTMENT TO TAKE CERTAIN
ACTION?
>> NO.
THAT'S NOT BEFORE THE COURT AT
THIS TIME.
APD WANTS YOU TO ANSWER
ABSTRACT QUESTIONS, AT LEAST ON
BEHALF OF JUDGE LEDERMAN.
I CAUTIONED AGAINST THAT.
I THINK THAT BOTH --.
>> JUSTICE: THERE IS NOTHING IN
HER SUBPOENA ORDER THAT
ACTUALLY ORDERED THE DEPARTMENT
TO DO ANYTHING AT THIS POINT?
>> NO, IT WAS PURELY
INFORMATION GATHERING, LOOKING
FOR AN EXPLANATION.
>> JUSTICE: WHAT ABOUT AS FAR
AS A PERSON DESIGNATED IN THIS
CASE THREE INDIVIDUALS
SPECIFICALLY NAMED TO COME
BEFORE THE COURT?
>> I READ THE SUBPOENA A LITTLE
DIFFERENTLY THAN THEY DO, BUT
EVEN READING IT THE WAY THEY
DO, IT IS A SINGLE SUBPOENA,
AND IT NAMES ALL THREE PEOPLE.

IT IS AN EXHIBIT TO THEIR
PETITION, AND THE SUBPOENA IS
SIMPLY, WELL, IT NAMES THREE
INDIVIDUALS, AND THEN SAYS OR
OTHER DESIGNATED PERSON.
I READ THAT AS A SUBPOENA FOR
SOMEONE FROM APD TO APPEAR WITH
THE RECORDS DESIGNATED AND
EXPLAIN WHY THIS CHILD IS NOT
RECEIVING CARE.
>> JUSTICE: SO THEN YOU AGREE
THAT THE DEPARTMENT WOULD HAVE
THE POWER TO DESIGNATE WHOMEVER
THE DEPARTMENT WISHED TO COME
AND PRESENT THAT INFORMATION?
>> INITIALLY, YES, AND IF THE
RESPONSES WERE INADEQUATE IT
COULD GO UP THE LINE.
ALTHOUGH, AGAIN, THE THREE
PEOPLE THAT ARE NAMED, JOSEPH
PERRY, HE IS A FRONT LINE
PERSON.
HE IS THE PERSON DIRECTLY
RESPONSIBLE FOR PROVIDING OR
NOT PROVIDING CARE.
THEN THERE IS THE UPPER AGENCY
PERSON WHO IS PROBABLY THE BEST
PERSON TO RESPOND TO THE
SUBPOENA BUT AGAIN THESE ARE
THINGS IF THE SUBPOENA IS
OVERBROAD THEY SHOULD GO TO
JUDGE LEDERMAN AND SAY, JUDGE,
THIS SUBPOENA IS OVERBROAD.
>> CHIEF JUSTICE: I GUESS AGAIN
AND REALIZING THAT YOU'VE SAID
WE ARE SORT OF SEEING THIS CASE
IN A VACUUM AND A SNAPSHOT IT
WOULD HAVE HELPED TO KNOW WHAT,
SINCE MAYBE THIS STARTED SIX
YEARS AGO, CERTAINLY IT DIDN'T
START THE DAY BEFORE THE
SUBPOENA WAS ISSUED, WHAT OTHER
EFFORTS HAD BEEN MADE FOR THIS
TRIAL.
YOU KNOW, AGAIN WE'RE TALKING
ABOUT A SUBPOENA BUT THEN GOT A
VERY COMPELLING SITUATION FOR
WHATEVER REASON A CHILD UNDER
THE CARE OF THE STATE OF
FLORIDA APPARENTLY WAS DENIED
SERVICES THAT WERE SIGNIFICANT
TO THIS CHILD'S CARE FOR OVER A
SIGNIFICANT PERIOD OF TIME, BUT
WE DON'T AGAIN HAVE ANY OF THAT
INFORMATION AND SO, THEREFORE,
HOW WE WOULD -- IF WE CONTINUE
TO TAKE JURISDICTION IT HAS TO
BE ON THE NARROW ISSUE BUT IT
DOES HAVE TO RELATE TO AN
ONGOING CHAPTER 39 PROCEEDING.

DOES IT NOT?
>> THAT'S CORRECT.
THIS IS A CHILD SPECIFIC, FACT
SPECIFIC INQUIRY.
BUT IT IS NOT THE ONLY INQUIRY.

THERE IS ANOTHER RN WHERE THE
THIRD DISTRICT HELD JUDGE
LEDERMAN DID NOT HAVE AUTHORITY
TO EVEN ASK THE QUESTIONS.
THERE IS A THIRD CASE CALLED T.
G. THAT IS NOW PENDING.
THEY ARE HOLDING IT IN ABEYANCE
PENDING REVIEW OF THIS COURT SO
THERE ARE MULTIPLE CASES
AFFECTED BY THIS CASE.
IT MAY BE IN ONE CASE THE
RESPONSE WILL BE APPROPRIATE.
>> CHIEF JUSTICE: BEFORE YOU,
BECAUSE YOU ARE IN YOUR TIME
FOR MISS DEVERS.
WE HELD THIS SPECIAL ORAL
ARGUMENT BECAUSE IT INVOLVED A
CHILD.
YOU SAY THERE ARE OTHER CASES
BEING HELD.
WE WANT TO MAKE SURE THAT
NOTHING THIS COURT IS DOING BY
TAKING JURISDICTION IS
INTERFERING WITH MOVING ANY
CHILD INTO PERMANENCY.
DO WE KNOW THAT OR THESE CASES?

BECAUSE WE JUST DON'T WANT THEM
BEING HELD IN ABEYANCE ON
SOMETHING THAT IS COLLATERAL,
POTENTIALLY COLLATERAL TO THE
ISSUE OF CHILDREN GOING INTO
PERMANENCY.
IN THIS CASE THE CHILD IS 18.
THEY'VE GOT A DIFFERENT
SITUATION.
>> IN EACH OF THE CASES THAT I
AM AWARE OF THAT ARE IN THE
APPELLATE SYSTEM AND THEY ARE
THE ONLY ONES I AM AWARE OF,
THEY ARE ALL BEING HELD, THERE
IS NO INFORMATION BEING
PROVIDED TO THE JUDGE IN TERMS
OF DISABILITY MATERIAL.
SO MEDICAL ISSUES ARE BEING
DELAYED WHILE THIS ISSUE IS
PENDING IN MIAMI-DADE AND
MONROE COUNTY.
THERE ARE NO SUBPOENAS BEING
RESPONDED TO, NO INFORMATION
BEING FORTHCOMING AND THE
REASON WHY THIS IS IMPORTANT IN
THIS CASE AND IN EACH CASE IS
BECAUSE THEY ARE -- THERE ARE
NEEDS OF THESE CHILDREN THAT
ARE NOT BEING MET.
THEY ARE EITHER ELIGIBLE AND IN
THE RN CASE THERE IS A QUESTION
OF ELIGIBILITY HERE.
THERE IS NO QUESTION OF
ELIGIBILITY.
>> CHIEF JUSTICE: ARE YOU GOING
TO, AGAIN, ARE YOU SAVING ALL
OF THE TIME FOR REBUTTAL OR
SINCE YOU'VE GOT ABOUT SEVEN
MINUTES TOTAL LEFT?
>> I HOPEFULLY HAVE BEEN
RESPONDING TO THE COURT'S
QUESTIONS.
LET ME MAKE ONE POINT AND THEN
YIELD.
I WILL RESPOND TO THE COURT'S
QUESTIONS, BUT WHY IT IS SO
IMPORTANT TO RESTORE THE
SUBPOENA POWER, WHICH IS MY
FIRST AND PRIMARY MISSION.
MY SECOND IS TO AVOID THIS
COURT ADDRESSING ISSUES WITHOUT
A PROPER RECORD.
AND WHY IS THAT IMPORTANT?
THE THIRD DISTRICT WAS TOLD NO
LESS THAN FIVE TIMES IT WAS
THAT JUDGE LEDERMAN WAS
MEDDLING BECAUSE NO ONE ON
BEHALF OF THIS CHILD HAD EVER
APPLIED FOR CRISIS STATUS.
FIVE TIMES, NEVER APPLIED,
JUDGE LEDERMAN IS
INTERMEDDLING.
THE THIRD DISTRICT APPARENTLY
BELIEVED THAT WHEN THEY HEARD
THAT OVER AND OVER AGAIN.
>> JUSTICE: AND THAT SEEMS TO
BE GOING BEYOND THE NARROW
ISSUE.
IF THE ISSUE IS SO NARROW, DOES
THE JUDGE HAVE SUBPOENA POWER
AND IF THAT INVOKES OUR
JURISDICTION AS FAR AS IT
AFFECTING A CLASS OF
CONSTITUTIONAL OFFICERS THEN
THAT GOES BEYOND THE PARTICULAR
FACTS OF THE CASE, DO YOU HAVE
THE POWER IN A DEPENDENCY CASE
TO SUBPOENA THE DEPARTMENT FOR
DOCUMENTS AND INFORMATION
PERIOD?
>> YES, AND IT IS IMPORTANT
BECAUSE WITHOUT THAT POWER YOU
DON'T NECESSARILY GET THE
CORRECT ANSWER, BECAUSE NOW
WE'RE TOLD IN THE BRIEF BEFORE
THIS COURT BY APD THAT THE
CHILD DID, INDEED, APPLY FOR
CRISIS STATUS AND WAS DENIED.
WE'RE ALSO TOLD THAT
MIRACULOUSLY WITHOUT BENEFIT OF
RECORD THAT IN AUGUST SHORTLY
AFTER RECEIPT OF THIS SUBPOENA
THAT THIS CHILD IS GETTING
CARE.
I DON'T KNOW IF THAT IS TRUE OR
NOT.
>> JUSTICE: YOU ARE USING UP
ALL OF THE TIME.
>> I APPRECIATE THAT.
I THINK THAT THIS COURT, FIRST
JUDGE LEDERMAN AND THEN THE
THIRD DISTRICT AND PERHAPS
ULTIMATELY THIS COURT NEEDS TO
KNOW THE TRUTH OF THE MATTER
THAT COMES THROUGH THE SUBPOENA
POWER AND THAT IS WHAT SHOULD
BE REINSTATED BY THIS COURT SO
WE WILL KNOW THE ANSWERS TO THE
QUESTIONS.
THANK YOU.
>> CHIEF JUSTICE: I'M ASSUMING
THAT MR.^BLECKE AGREED TO,
BECAUSE YOU WERE HERE ON
AMICUS, SO ARE YOU GOING TO
ADDRESS THE NARROW ISSUE WE'VE
BEEN DISCUSSING?
>> YES, I AM, YOUR HONOR, I'M
HERE NOT ONLY ON BEHALF OF THE
VARIOUS AMICAE BUT F.G., THE
YOUNGSTER WHOSE CASE BRINGS US
HERE.
THIS IS A VERY NARROW ISSUE.
>> CHIEF JUSTICE: SO YOU ARE
APPEARING ON BEHALF OF F.G.?
>> YES, AS FAR AS THE ARGUMENT.

>> JUSTICE: IS THERE A CASE
THAT YOU ALL CITED WHICH THIS
COURT TELLS WHERE THERE IS AN
ISSUE OF JURISDICTION OF A
CIRCUIT COURT JUDGE THAT THAT
COMES WITHIN THE CONSTITUTIONAL
BASIS FOR OUR JURISDICTION ON
THE POWERS OF THE CONSTITUTION?

>> YOUR HONOR, CANDIDLY I HAVE
NOT SEEN ONE.
THIS CASE IS BEFORE THIS COURT
ON REVIEW OF THE ORIGINAL
PROHIBITION PROCEEDING.
>> JUSTICE: IT SEEMS THAT'S A
ROUND-ABOUT WAY TO GET TO AN
ISSUE.
WE WOULD HAVE TO HAVE
SOMETHING.
>> AND FROM THE STANDPOINT OF
YOUNGSTERS WE HAVE A SYSTEM IN
WHICH ALL OF THE BRANCHES OF
GOVERNMENT ARE SUPPOSED TO WORK
TOGETHER TO PROVIDE FOR THE
NEEDS OF OUR YOUNGSTERS IN THE
STATE FOSTER CARE SYSTEM.
THIS WHOLE SYSTEM ONLY WORKS IF
EVERYONE WORKS TOGETHER AND
WHAT WE SEE HERE BY AN AGENCY
THAT SAYS A JUDGE DOESN'T HAVE
THE AUTHORITY TO SUBPOENA IT,
TO PROVIDE INFORMATION, IS THE
BEGINNING OF THE WHEELS COMING
OFF THE WAGON TO THE POINT THE
SYSTEM WILL BE TOTALLY
DYSFUNCTIONAL.
IT IS NOT EASY KNOWING WHO HAS
INFORMATION AT THIS POINT.
>> JUSTICE: CAN YOU GIVE US ANY
MORE INSIGHT INTO THE GENESIS
OF THIS CASE?
MR.^BLECKE KEEPS TALKING ABOUT
A DATE OF 2000 BUT THE CASE
NUMBER IN THE CIRCUIT COURT,
JUDGE LEDERMAN'S CASE IS A 2002
CASE NUMBER.
HOW WAS THAT FILED AND IN WHAT
CONTEXT, DO YOU KNOW?
>> I REGRET TO SAY THAT I DO
NOT.
I KNOW THERE WAS A SECOND
DETERMINATION THAT F.G. WAS
ELIGIBLE.
THAT WAS IN OCTOBER OF 2002,
AND THAT WAS A FORM THAT HAD A
LIST OF BOXES THAT COULD BE
CHECKED TO INDICATE TO THE
YOUNGSTER THE REASON THAT HE
WAS BEING DENIED THE DISABILITY
SERVICES AND THE ONLY BOX THAT
WAS CHECKED AND THIS IS IN 2002
THAT THEY HAD A LACK OF
FUNDING.
WE COULD SPECULATE THAT JUDGE
LEDERMAN SAW NEWSPAPER STORIES
LAST SUMMER ABOUT HOW APD HAD
SURPLUS FUNDS THAT WERE BEING
RETURNED AND FEDERAL MONIES
WERE NOT BEING DRAWN DOWN
BECAUSE APD WAS NOT SPENDING
ITS MONEY.
I DON'T KNOW THE REASON BEHIND
THE SUBPOENA.
I CAN ASSURE YOUR HONORS AS I
SUSPECT EACH OF YOU ALREADY
KNOWS, THAT IT IS ESSENTIAL
THAT OUR FRONTLINE JUDICIARY
HAVE ALL OF THE INFORMATION
ESPECIALLY WHEN SOMETHING IS AS
TIME SENSITIVE AS THE LIFE OF A
CHILD.
>> JUSTICE: IT SEEMS TO ME THAT
BECAUSE THE RECORD IS SO SPARSE
IN THIS CASE IF WE DO ISSUE AN
OPINION IT NEEDS TO BE PRETTY
SHORT.
DOES A CIRCUIT JUDGE HAVE
AUTHORITY TO ISSUE SUBPOENAS TO
DEPARTMENT?
YES.
SEE RULE 8.225.
IT IS SO ORDERED.
>> YES, THE DEPARTMENT OR
AGENCY OR ANYONE WHO HAS
INFORMATION REGARDING A CHILD.

IT REALLY IS THAT NARROW AN
ISSUE, AND YET THE RIPPLE
EFFECT IS CRUCIAL TO THE
FUNCTIONING OR THE ABILITY OF
THE SYSTEM TO FUNCTION AND KEEP
OUR CHILDREN SAFE.
WITHOUT INFORMATION JUDGES
CAN'T MAKE PROPER DECISIONS OR
MOVE KIDS TO PERMANENCY.
>> CHIEF JUSTICE: YOU AGREE
THAT FOR EXAMPLE IF A
DEPENDENCY JUDGE GOT FRUSTRATED
AS THEY OFTEN DO BECAUSE
WHETHER IT IS BUREAUCRACY, LACK
OF FUNDING, THERE ARE MANY
FACTORS, AND SUBPOENAED THE
SECRETARY OF AN AGENCY, THAT
THAT MIGHT IMPLICATE SOMETHING
ELSE AND THAT'S AS FAR AS WHAT
LEVEL EMPLOYEE THAT YOU ARE
ASKING TO COME BEFORE THE
COURT?
>> RIGHT.
AND I THINK THAT'S BEEN
ADDRESSED IN THE BROOK CASE
WHERE IT IS CLEAR THAT YOU
DON'T START LIKE WITH THE
SECRETARY KOHLER OR HIS
COUNTERPART AND IN THIS CASE
JUDGE LEDERMAN DIDN'T.
IT LOOKED LIKE THE SUBPOENA WAS
DRAFTED IN ACCORDANCE WITH
BROOK WHERE THE COURT STARTED
WITH THE FRONT LINE PERSON,
MR.^PERRY AND THEN ADDED THE
OTHER TWO PERSONS KNOWN TO THE
COURT TO BE INVOLVED WITH APD
BUT GAVE THEM AN OUT TO
DESIGNATE THEIR OWN PERSON IF
IT WASN'T THE RIGHT ONE.
>> CHIEF JUSTICE: YOU MIGHT
WANT TO SAVE YOUR 40 SECONDS
FOR REBUTTAL.
>> I'LL DONATE MY 40 SECONDS ON
BEHALF OF ALL OF FLORIDA'S
CHILDREN TO MR.^BLECKE.
THANK YOU.
>> MAY IT PLEASE THE COURT,
I'LL CHARLES FAHLBUSCH, SENIOR
ASSISTANT ATTORNEY GENERAL FOR
THE AGENCY FOR PERSONS WITH
DISABILITIES.
>> CHIEF JUSTICE: DO YOU WANT
TO SPEAK UP A LITTLE BIT?
>> THIS CASE ISN'T ABOUT
WHETHER DEPENDENCY COURTS CAN
ISSUE INFORMATIONAL SUBPOENAS
TO PERSONS WHO HAPPEN TO BE
GOVERNMENT OFFICIALS.
>> JUSTICE: SO YOU AGREE ON
THAT ISSUE THAT THE COURT DOES
HAVE THE AUTHORITY TO ISSUE
SUBPOENAS TO GATHER INFORMATION
ABOUT WHAT CARE THIS CHILD IS
OR IS NOT RECEIVING AND
INQUIRE, YOU KNOW, INFORMATION?

>> ABSOLUTELY.
>> JUSTICE: YOU HAVE NO DISPUTE
ABOUT THAT?
>> ABSOLUTELY NOT.
>> JUSTICE: YOU'RE TAKING THIS,
I ASSUME THEN, AS MORE OF A
SHOW CAUSE ORDER.
THAT IS THAT YOU --
>> WELL, IT WAS CHARACTERIZED
--.
>> JUSTICE: IT WAS
CHARACTERIZED AS AN ORDER TO
SHOW CAUSE WHY YOUR AGENCY IS
NOT PROVIDING THESE SERVICES TO
THIS PARTICULAR CHILD.
>> IT WAS A SUBSTANTIVE SHOW
CAUSE ORDER, YES, YOUR HONOR.
>> JUSTICE: SO LONG AS THIS
COURT TREATS THE ISSUE AS AN
INFORMATION-GATHERING SUBPOENA,
THEN IS THE ISSUE REALLY THEN
MOOT?
I TAKE IT YOUR AGENCY HAS NO
OBJECTION TO PROVIDING
INFORMATION PURSUANT TO
SUBPOENA TO THE INQUIRIES OF A
JUDGE THAT HAS JURISDICTION
OVER THIS CHILD IN DEPENDENCY
COURT?
>> THAT QUESTION WOULD BE
SOMEWHAT OVERBROAD FOR US TO
ANSWER YES TO.
>> JUSTICE: HOW ABOUT YOU
ARTICULATING IN TERMS OF THAT?

>> OF COURSE, YOUR HONOR.
WHAT THE DEPENDENCY COURT WAS
SEEKING HERE AND WHAT THE THIRD
DISTRICT BELIEVED WAS IMPROPER
WHICH WE BELIEVE IS PROPERLY
LAID FORTH IN ITS OPINION IS
REQUIRING TESTIMONY ABOUT THE
DELIBERATION PROCESS INVOLVED
IN DECISIONS EXCLUSIVELY WITHIN
EXECUTIVE DISCRETION.
>> JUSTICE: WHERE IS THE
SUBPOENA IS THERE ANYTHING
REQUIRING TESTIMONY ABOUT THAT?

THE ONLY POSSIBLE PHRASE IS TO
PRODUCE OUR RECORDS AND THEN
WHY THIS CHILD IS NOT RECEIVING
SERVICES.
IT DOESN'T SAY THERE WHAT WERE
YOUR DELIBERATIONS.
IT JUST SAYS TELL US WHY THE
CHILD IS NOT RECEIVING
SERVICES.
>> THAT WOULD APPEAR TO BE THE
ABSOLUTE REASON WHY,
SPECIFICALLY REQUEST FOR
DELIBERATION.
IT WOULD BE SIMILAR, FOR
EXAMPLE, TO SUBPOENAING A JUDGE
WHO HAD MADE A CRIMINAL
DECISION ON FINDING SOMEONE
GUILTY AND SAYING OH, AND BRING
ALL DOCUMENTS WITH YOU SAYING
WHY YOU FOUND THIS PERSON
GUILTY.
>> JUSTICE: WELL, HOLD ON.
WHY NOT JUST APPEAR BEFORE THIS
JUDGE AND YOU ANSWER THE
QUESTION WHY THE CHILD IS NOT
RECEIVING SERVICES SAYING,
WELL, YOUR HONOR, WE HAVE NOT
BEEN ADEQUATELY FUNDED BY THE
LEGISLATURE TO PROVIDE ALL
SERVICES NECESSARY.
HE IS ON THE WAITING LIST AND
WE'LL PLACE HIM AS SOON AS WE
CAN AND JUST ANSWER THAT
QUESTION?
HOW DOES THAT GO INTO THE
DISCRETIONARY FUNCTION?
>> IF THAT WERE THE ANSWER, OF
COURSE, IT WOULDN'T, YOUR
HONOR.
THE FACT IS, OF COURSE, THE
DEPENDENCY COURT WAS ABSOLUTELY
AND COMPLETELY AWARE OF THAT AS
IT WAS AWARE.
>> JUSTICE: HOW DO WE KNOW THAT
FROM THE RECORD?
>> FROM THE RECORD WE CAN'T
TELL YOU.
>> JUSTICE: AND ISN'T IT TRUE
THAT THE SUBPOENA ISSUED AND
THERE WAS NO ATTEMPT TO QUASH,
NARROW OR DO ANYTHING ELSE WITH
THE CIRCUIT JUDGE, YOU JUST
TOOK IT TO THE DCA?
>> THAT'S CORRECT, YOUR HONOR.

THIS WAS ONE OF A NUMBER AS
YOUR HONOR IS AWARE OF,
SUBPOENAS.
>> CHIEF JUSTICE: AND THE THIRD
DISTRICT OPINION SAYS
SPECIFICALLY THE TRIAL COURT IS
PROHIBITED FROM REQUIRING THE
APPEARANCE OF THESE THREE
INDIVIDUALS TO TESTIFY OR
PRODUCE ANY AND ALL RECORDS
CONCERNING F.G. IN REFERENCE TO
HIS MID WAIVER STATUS AND
SERVICES RENDERED.
END OF STORY.
IT DOESN'T SAY THAT THE
SUBPOENA SHOULD BE NARROWED TO
ONLY OBTAIN THE RECORDS AND
INQUIRE INTO ITS STATUS.
IT IS A BROAD STATEMENT OF
PROHIBITION THAT THE COURT
LACKS THE CONSTITUTIONAL OR
STATUTORY AUTHORITY.
>> REALLY, AND I THINK IT IS
CLEAR, IT IS SUFFICIENTLY CLEAR
FROM THE OPINION WHAT THE THIRD
DISTRICT WAS FOCUSED ON WAS
THAT THE COURT WAS REQUIRING
RECORDS TO DETERMINE WHY APD
HAD MADE THE DECISION THAT IT
DID MAKE.
>> CHIEF JUSTICE: IT SAYS WHY
THE SERVICES WERE NOT BEING
RENDERED.
HOW COULD A JUDGE WHO IS
CHARGED WITH INSURING THAT A
CHILD WHO IS DEPENDENT IS
RECEIVING PROPER SERVICES, HOW
CAN YOU IN THIS VACUUM, AGAIN
THAT WE ARE OPERATING IN, SAY
THAT THEY ARE PREVENTED FROM
INQUIRING AS TO SERVICES FOR
THE CHILDREN THAT PROBABLY MOST
NEEDED THOSE THAT ARE SEVERELY
DISABLED?
>> WELL, THE SUBPOENA IS
AMBIGUOUS AND THE QUESTION IS
SOMEWHAT CONFUSING, BECAUSE AS
EVERYONE HERE HAS ADMITTED THE
CHILD WASN'T RECEIVING ANY
SERVICES.
SO WHEN THE COURT REQUIRING THE
APD TO PROVIDE ALL RECORDS WITH
REGARD TO SERVICES RENDERED, WE
KNOW THAT THE COURT AND ALL OF
THE PARTIES WERE AWARE THAT NO
SERVICES WERE BEING RENDERED,
BECAUSE THE CHILD WAS ON THE
WAITING LIST.
>> JUSTICE: WHAT IF THE COURT
WAS CONTEMPLATING THAT, YOU
KNOW, I'VE GOT LIMITED OPTIONS
BUT I DO HAVE SOME OPTIONS, AND
IN ORDER TO KNOW WHICH OPTION
TO PICK TO BEST SUIT THIS
CHILD'S NEEDS, I NEED TO KNOW
WHETHER, WELL, NEXT WEEK THIS
AGENCY IS GOING TO SAY, JUDGE,
AND YOU KNOW NOW WE CAN TAKE
THE CHILD IN AND WE CAN PROVIDE
THESE SERVICES TO THE CHILD,
AND WE KNOW YOU NEED TO KNOW
THAT IN ORDER TO MAKE YOUR
OTHER DECISIONS ABOUT WHAT TO
DO WITH THE CHILD.
WHY WOULDN'T THAT JUST BE GOOD
COMMON SENSE?
>> THAT'S INFORMATION THAT IS
ABSOLUTELY AVAILABLE TO THE
COURT.
IT IS AVAILABLE TO DCF, IT IS
AVAILABLE TO THE PARENTS.
>> JUSTICE: BUT JUSTICE BELL
HAS ASKED THEN WHY WOULDN'T THE
APPROPRIATE WAY TO HANDLE THIS
BE, JUDGE, WE'RE HAPPY TO GIVE
YOU ANY INFORMATION THAT WE
POSSIBLY CAN BUT NOW WHEN YOU
GET TO THE POINT THAT YOU WANT
TO TELL US WHAT TO DO WE THINK
THERE IS A PROBLEM, AND SO WHAT
DO YOU WANT TO KNOW?
WHY SHOULDN'T THAT BE THE
ATTITUDE OF THE AGENCY?
>> WE CERTAINLY WOULD HAVE A
BETTER RECORD IF THERE HAD BEEN
AN OBJECTION OR A MOTION TO
QUASH POINTING OUT THE
PROBLEMS.
>> JUSTICE: IS THIS THE
ATTITUDE OF THE AGENCY, THOUGH,
NOW HERE?
THAT IS ARE YOU TELLING US WE
WOULD BE HAPPY TO BE BEFORE THE
JUDGE AND SAY, JUDGE, WHAT DO
YOU NEED TO KNOW, WE'LL BE
HAPPY TO TELL YOU, BUT WE DRAW
A LINE WHEN YOU ARE DIRECTING
US TO DO PARTICULAR THINGS THAT
WE BELIEVE WE HAVE THE
EXCLUSIVE AUTHORITY TO DO?
>> OR INQUIRING INTO OUR MENTAL
AND DELIBERATIVE PROCESSES.
>> JUSTICE: BUT YOU ARE
AGREEABLE TO PROVIDING ALL OF
THE INFORMATION, IS THAT
CORRECT?
>> ABSOLUTELY.
WITH REGARD TO FACTUAL
INFORMATION, YOUR HONOR, WE
HAVE ALWAYS BEEN AGREEABLE TO
PROVIDE IT.
WE PROVIDE IT UPON REQUEST FROM
THE COURT.
WE PROVIDE IT UPON REQUEST --.

>> JUSTICE: YOU DIDN'T SHOW UP
PURSUANT TO THIS SUBPOENA AND
SAID WHAT DO YOU WANT TO KNOW.

>> THAT COULD HAVE BEEN DONE
BUT WHAT THE COURT WAS DOING IS
REQUIRING THE HIGHEST RANKING
OFFICIALS OF THE AGENCY.
>> JUSTICE: HOW LONG ARE WE NOW
BETWEEN THE TIME THAT THE
SUBPOENA WAS ISSUED AND YOUR
APPEARANCE HERE IN COURT?
>> A LITTLE OVER A YEAR.
>> CHIEF JUSTICE: JUSTICE
LEWIS?
>> YOU KNOW, THE TROUBLESOME
THING IS THAT IT WASN'T THE
JUDGE NOR WAS IT THE CHILD THAT
SELECTED THE REMEDY THAT THE
AGENCY SELECTED AND THAT'S THE
PROHIBITION, AND YOU ARE MAKING
ALL KINDS OF ARGUMENTS IT SEEMS
AND WE'RE HAVING DIFFICULTY
DEALING WITH THAT IS THAT YOU
ARE SEEKING TO PROHIBIT
SOMETHING THAT DOESN'T EXIST
AND IT JUST DIDN'T GO THE RIGHT
WAY AND IT SEEMS TO BE A
PROCEDURAL NIGHTMARE THAT
NEITHER THE THIRD DISTRICT NOR
DO WE KNOW REALLY WHAT IS GOING
ON BECAUSE THE PROHIBITION IS
SUCH A DRASTIC REMEDY TO JUST
STOP.
HOW COULD PROHIBITION BE
APPLICABLE UNDER A SITUATION
WHERE THERE IS A SUBPOENA AND
IT DIRECTS NOT THOSE PEOPLE BUT
SOMEONE ELSE IF YOU DESIGNATE
THEM, WHICH IS NOT YOU DON'T
FIND THAT UNCOMMON IN THE LEGAL
PRACTICE, DO YOU?
>> NO, CERTAINLY NOT.
>> JUSTICE: AND SO WHY SELECT
THE REMEDY OF PROHIBITION,
RATHER THAN FOLLOWING THROUGH
AND DOING THIS IN THE
APPROPRIATE, PROCEDURAL WAY?
>> TO ANSWER YOUR HONOR'S
INQUIRY, WE WERE GETTING
SUBPOENA AFTER SUBPOENA AFTER
SUBPOENA.
>> JUSTICE: YOU UNDERSTAND WE
CAN'T DEAL WITH THOSE OTHER
ONES.
>> I UNDERSTAND WE WERE GETTING
ORDERS TO PROVIDE SERVICES.
WE WERE GETTING ORDERS TO SHOW
CAUSE WHY WE SHOULDN'T BE HELD
IN CONTEMPT FOR FAILING TO
PROVIDE SERVICES.
>> JUSTICE: MAYBE THAT SHOULD
HAVE BEEN ONE OF THE OTHER
CASES THEN.
WE MUST DEAL WITH WHAT WE HAVE.

>> I UNDERSTAND, YOUR HONOR,
BUT AS A RESULT APD FOUND
ITSELF IN A POSITION RESPONDING
TO SITUATION AFTER SITUATION
AFTER SITUATION AND SO INSTEAD
OF FILING A MOTION TO QUASH OR
OBJECTION NOTING THAT WITH
REGARD TO INFORMATIONAL
PURPOSES CERTAINLY WE WOULD BE
HAPPY TO PROVIDE BUT WITH
REGARD TO DETERMINING THESE
PERSONS OR DETERMINING WHY A
DELIBERATIVE PROCESS WAS
CONDUCTED THE WAY IT WAS WE DID
HAVE AN OBJECTION AND IT WAS
DONE THE WAY IT WAS BECAUSE OF
THE AMOUNT OF TIME AND THE
NUMBER OF CASES THAT WERE
HAPPENING.
>> JUSTICE: DO YOU SEE HOW MUCH
A CONCERN THE DECISION THAT THE
THIRD DISTRICT HAS RENDERED IN
THIS CASE WITH THAT SWEEPING
LANGUAGE HOW DRASTICALLY THAT
IMPACTS SO MANY THINGS.
DO YOU RECOGNIZE THAT?
>> I DO PERCEIVE THAT, YES,
YOUR HONOR.
>> JUSTICE: AND CERTAINLY WE
RESPECT AND UNDERSTAND PROBLEMS
IN OTHER CASES, BUT YOU MUST
UNDERSTAND THAT PROHIBITION IS
SUCH A DRASTIC REMEDY AND IN
THIS CASE IT A VERY DIFFICULT
HURDLE TO OVERCOME.
DO YOU SEE THAT?
>> I DO UNDERSTAND THAT, YOUR
HONOR.
OF COURSE, IF THE ONLY THING
THAT HAPPENS IS IT IS REVERSED,
THEN THAT IS LIKELY TO BE TAKEN
AS A GREEN LIGHT TO SAY JUDGES
CAN INQUIRE INTO WHY PEOPLE
AREN'T RECEIVING SERVICES, EVEN
THOUGH THE DECISION ON WHETHER
OR NOT THOSE SERVICES SHOULD BE
PROVIDED IS A MATTER
EXCLUSIVELY WITHIN EXECUTIVE
--.
>> CHIEF JUSTICE: NOW, THE WHY
IS DIFFERENT AND AGAIN THERE IS
A LEVEL OF THE SWEEPING
LANGUAGE, AND WHETHER THIS
COURT WILL STOP AT THAT BECAUSE
THE PROHIBITION WAS JUST
AGAINST THE SUBPOENA GENERALLY,
BUT LET'S MAKE SURE WE
UNDERSTAND THAT WHY SOMEONE
ISN'T RECEIVING SERVICES COULD
BE THEY WEREN'T ELIGIBLE, THERE
WASN'T INFORMATION PROVIDED OR
IT COULD BE LACK OF FUNDING.
THE DIFFICULT THING HERE IS
THAT WE'VE GOT AN AGENCY NOW
SEPARATE FROM DCF WHO WAS SORT
OF STANDING IN AND SAYING THAT,
WELL, NOW YOU CAN'T INQUIRE.
OF COURSE THE COURT CAN ALWAYS
INQUIRE OF DCF AS TO WHY
SOMETHING IS NOT HAPPENING.
THEY CAN'T ORDER THEM INTO A
SPECIFIC PLACEMENT.
WHY AREN'T THOSE SAME STANDARDS
OR WOULD YOU AGREE THAT
WHATEVER THE SAME PARAMETERS
HAVE ALWAYS BEEN WITH DCF IS
WHAT A JUDGE CAN DO, SHOULD
LIKEWISE APPLY TO THE AGENCY
FOR PERSONS WITH DISABILITIES
FOR CHILDREN THAT ARE IN UNDER
CHAPTER 39, DO YOU UNDERSTAND
WHAT I AM SAYING?
>> NOT EXACTLY, BUT I WILL DO
ANY BEST TO ANSWER YOUR
INQUIRY, JUSTICE.
I'M NOT SURE THAT WE DO -- THAT
APD DOES STAND SPECIFICALLY IN
THE SAME SHOES AS DCF DOES.
WHAT ACCORDING TO THE J.M. CASE
WHICH THIS COURT DENIED REVIEW
OF LAST MONTH, THE DECISION OF
WHETHER OR NOT TO PROVIDE
SERVICES UNDER MED WAIVER IS
EXCLUSIVELY WITHIN THE
EXECUTIVE DISCRETION OF APD.
NOW, IF THAT IS TRUE, BRINGING
A SENIOR APD OFFICIAL INTO
COURT UNDER CONTEMPT TO ANSWER
THE QUESTION WHY AREN'T YOU
PROVIDING SERVICES TO THAT
CHILD WOULD CERTAINLY PURSUANT
TO THE BROOK CASE APPEAR TO BE
VIOLATIVE OF THE SEPARATION
WITH REGARD TO LIMITING INQUIRY
INTO THE PROCESS.
>> JUSTICE: I WOULD ASSUME IF
THIS COURT ISSUED A BRIEF
OPINION WHICH IT LINED UP THE
THIRD DISTRICT FIRST WITH
LANGUAGE FROM BROOK,
[INAUDIBLE].
>> I'M AFRAID TO WAIVE MY
CLIENT'S RIGHTS BUT THAT SOUNDS
APPROPRIATE, YES, JUSTICE
WELLS.
OUR CONCERNS AS YOU HAVE
POINTED OUT IS WITH REGARD TO
OVERBROAD INQUIRIES WHICH GET
INTO INQUIRING CONCERNING THAT.

>> JUSTICE: DOESN'T THIS
PROCESS DEMAND THAT OVERBROAD
INDIVIDUAL PROCESS BE DEALT
WITH ON A CASE-BY-CASE BASIS?
IT IS VERY DIFFICULT TO DEAL
WITH A BROAD UMBRELLA BASIS.
>> THAT IS CERTAINLY CORRECT,
YOUR HONOR.
>> JUSTICE: SO WHAT, IF YOU
AGREE, AND YOU CAN TELL FROM
THE QUESTIONS THAT IS BEING
ANSWERED THAT THE COURT IS NOT
COMFORTABLE WITH THE SCOPE OF
THE THIRD DISTRICT'S OPINION,
SO IF YOU AGREE THAT THAT
OPINION IS PRETTY BROAD THEY
DON'T EVEN SAY THE DISCRETION
OF THE DEPARTMENT, THEY SAY THE
AUTHORITY, ANYTHING WITHIN THE
DEPARTMENT'S AUTHORITY.
SO IF YOU AGREE THAT THAT IS
OVERBROAD, WHAT WOULD BE YOUR
SUGGESTION AS TO THE SCOPE OF A
CIRCUIT JUDGE'S SUBPOENA POWER
UNDER THESE KINDS OF
CIRCUMSTANCES?
WHAT LANGUAGE WOULD YOU SUGGEST
TO THE COURT TO USE?
>> THE THIRD DISTRICT OPINION
TO THE EXTENT THAT IT INFERS
THAT CIRCUIT COURT DEPENDENCY
JUDGES DON'T HAVE SUBPOENA
POWER FOR INFORMATIONAL
PURPOSES MAY BE OVERBROAD, BUT
THAT NOTHING IN THE OPINION IS
TO BE CONSTRUED TO INDICATE
THAT SUCH SUBPOENAS OR
INFORMATIONAL REQUESTS MAY GO
INTO THE DELIBERATION PROCESS
FOR MATTERS EXCLUSIVELY WITHIN
EXECUTIVE DISCRETION.
>> JUSTICE: WHAT DOES THAT
MEAN?
DOES THAT MEAN THAT YOU CAN'T
GET THE PIECE OF PAPER ON WHICH
WHATEVER THE DECISION IS AS
RECORDED AFTER THAT
DELIBERATIVE PROCESS?
>> CERTAINLY NOT.
>> JUSTICE: WELL, YOU SEE
THAT'S WHAT WE GET INTO WHEN WE
START USING BROAD LANGUAGE
WITHOUT REFERENCE TO FACTS IN
CASES.
WOULD YOU NOT AGREE?
>> YES, YOUR HONOR.
>> JUSTICE: SO DON'T YOU THINK
THAT PROBABLY WE NEED TO KNOW
WHAT THE FACTS ARE AND WHAT THE
QUESTIONS ARE AND WHAT THE
INFORMATION IS THAT IS ON IT
BEFORE WE CAN REALLY CRAFT FOR
EITHER PARTY WHAT THE RULE
SHOULD BE?
>> THAT MAY BE TRUE, BUT WE ARE
FACED WITH THE SITUATION THAT
WE HAVE AT THE MOMENT, YOUR
HONOR, AND THE PROBLEM IS STILL
HERE WITH AN OVERBROAD OPINION
WHICH COULD BE LOOKED UPON AS A
GREEN LIGHT TO SAY OH, WE CAN
GO INTO EXECUTIVE DISCRETION.
WE CAN SUBPOENA SENIOR AGENCY
OFFICIALS TO COME BEFORE THE
COURT AND WE CAN MAKE THEM
EXPLAIN WHY THEY MADE THE
DECISIONS THAT THEY MADE
CONCERNING THE PROVISION OR
NONPROVISION OF SERVICES.
>> JUSTICE: BUT IF YOU LOOK AT
THE RESPONSE THAT THE JUDGE
FILED IN THE LOWER COURT SHE
SAID IT IS BEYOND PURVIEW THAT
A CIRCUIT COURT JUDGE DOES NOT
HAVE THE AUTHORITY TO
CONTRAVENE THE INTERNAL
WORKINGS OF A STATE AGENCY.
THE RESPONSE TO THE THIRD DCA
THE JUDGE SIMPLY SAYS I JUST
WANT TO KNOW WHAT IS HAPPENING.

WHY ISN'T THAT APPROPRIATE?
I MEAN WHY DIDN'T IT STOP AT
THAT POINT IF YOU UNDERSTOOD
WITHOUT EVER GOING TO THE JUDGE
AND ASKING WHAT'S THE SCOPE OF
THE SUBPOENA OR SEEKING TO
QUASH IT AND YOU GO DIRECTLY TO
THE DCA AND A RESPONSE FILED BY
THE JUDGE IS I DON'T WANT TO
GET INTO THE EXECUTIVE
DECISION-MAKING PROCESS.
I JUST WANT TO KNOW WHAT IS
HAPPENING.
WHY DIDN'T IT STOP THERE?
>> THE REASON IT DIDN'T STOP
THERE IS BECAUSE THAT WAS
INCONSISTENT WITH THE LANGUAGE
OF THE SUBPOENA OR AT LEAST THE
THIRD DISTRICT BELIEVED AND WE
BELIEVE WHERE WHAT THE COURT
WAS LOOKING FOR WAS WHY THIS
CHILD IS NOT RECEIVING
SERVICES.
>> JUSTICE: LET ME ASK YOU A
QUESTION ABOUT THE SUBPOENA.
YOU REFER TO THE FACT THAT THE
JUDGE CANNOT SUBPOENA SENIOR
OFFICIALS.
HOW DO YOU INTERPRET THE
LANGUAGE IN THE SUBPOENA THAT
IDENTIFIES THREE OFFICIALS BUT
THEN IN PARENTHESES SAYS OR
OTHER DESIGNATED PERSONS WHICH
SEEMS TO ALLOW THE AGENCY TO
DETERMINE FOR ITSELF WHO WILL
ANSWER THE SUBPOENA AND WHO
WILL ATTEND THE HEARING?
>> I UNDERSTAND YOUR CONCERN,
JUSTICE, BUT WHEN YOU COMBINE
THE FACT THAT THESE PERSONS ARE
NAMED WITH THE FACT THAT THE
SUBPOENA IDENTIFIES ALBEIT AS
RECORDS WHAT THE COURT WANTS TO
KNOW AS TO WHY THIS CHILD IS
NOT RECEIVING SERVICES,
OBVIOUSLY THIS ISN'T SOMETHING
THAT A RECORDS CUSTODIAN OR A
LOWER LEVEL PERSON IS GOING TO
BE AWARE OF.
>> JUSTICE: IT SEEMS TO ME FROM
READING THE SUBPOENA THAT THAT
LANGUAGE IS DESIGNED TO ELICIT
THE PERSON WITH THE MOST
KNOWLEDGE ABOUT F.G. AND WHY
F.G. IS NOT RECEIVING SERVICES.

WHETHER IT IS ONE OF THE THREE
NAMED OR SOME OTHER PERSON IN
THE AGENCY.
>> YES, YOUR HONOR, IT WAS
DESIGNED TO REQUIRE THE
ATTENDANCE OF THE PERSON WITH
THE MOST KNOWLEDGE OF THE
DELIBERATIVE PROCESS.
>> JUSTICE: I DON'T SEE THE
WORD DELIBERATIVE ANYWHERE IN
THE SUBPOENA OR ANYWHERE ELSE,
ANY HEARING, ANY TRANSCRIPT.
I DON'T KNOW WHERE YOU ARE
GETTING THAT LANGUAGE
DELIBERATIVE FROM.
>> I UNDERSTAND BUT WE ARE
INFERING IT FROM THE WORD WHY.

WHEN SOMEONE WANTS TO KNOW WHY
A DECISION WAS MADE, THAT WOULD
SEEM BY VERY STRONG INFERENCE
TO BE AN INQUIRY WITH REGARD TO
THE DELIBERATIVE PROCESS.
>> CHIEF JUSTICE: LET'S GO BACK
AGAIN TO WHAT I JUST SAID WHICH
IS WHY IS INFORMATIONAL, WHY IS
THERE IS NO FUNDING, WHY IS
THAT HE DIDN'T MEET THE
CRITERIA, WHY IS THAT WE DIDN'T
HAVE ENOUGH MEDICAL
INFORMATION, WHY MIGHT BE HE
DIDN'T FILL OUT THIS FORM.
NONE OF THAT GOES INTO
SOMEBODY'S INSIDE THEIR HEAD AS
TO THE GREATER ISSUE OF WE WERE
MAKING OR EVEN SAYING WE HAD
ONLY THIS MUCH MONEY.
WE COULDN'T SPEND IT ON THIS
CHILD.
WHERE IS THAT AGAIN INTERFERING
WITH THE DELIBERATIVE PROCESS
OF AN EXECUTIVE BRANCH AGENCY
WHEN THE COURT IS GIVEN THE
EXPLICIT AUTHORITY BY THE
LEGISLATURE AGAIN TO BE
RESPONSIBLE FOR THE BEST
INTERESTS OF CHILDREN IN THE
DEPENDENCY SYSTEM.
>> THAT WOULDN'T BE, JUSTICE.
IF WHAT THE COURT WAS SEEKING
WAS NOW INFORMATIONAL
INFORMATION OF A FACTUAL
NATURE, WE HAD EVERY REASON TO
BELIEVE, OF COURSE, WITH REGARD
TO THE INFORMATION THAT YOUR
HONOR HAS POINTED OUT THAT THE
COURT WAS AWARE OF OUR
FINANCIAL STATUS AND WAS AWARE
HE WAS ON A WAITING LIST.
HE WAS AWARE THAT HE HAD
PREVIOUSLY PROVIDED FOR --
APPLIED FOR CRISIS STATUS AND
BEEN DENIED.
THAT WAS AVAILABLE TO DCF.
THERE WAS NO MYSTERY WITH
REGARD TO THAT AND SINCE WE
KNEW THAT THAT INFORMATION WAS
AVAILABLE IT SEEMED A
REASONABLE INTERPRETATION OF
THE SUBPOENA THAT WHAT THE
COURT WAS REALLY SEEKING WASN'T
NARROW INFORMATIONAL FACTUAL
MATTERS AT ALL, BUT INFORMATION
WITH REGARD TO THE PROCESS.
>> JUSTICE: SINCE WE ARE IN A
VACUUM LET'S ASSUME LIKE
JUSTICE ANSTEAD SAID, LET'S
ASSUME THERE IS A RELATIVE OUT
OF STATE THAT'S WILLING TO TAKE
THIS CHILD BECAUSE ANOTHER
STATE CAN PROVIDE THESE
SERVICES AND BEFORE THE JUDGE
CAN MAKE THE DETERMINATION TO
CHANGE PLACEMENT THEY HAVE TO
GET A CLEAR DETERMINATION FROM
THE DEPARTMENT THAT HAVE THE
DEPARTMENT COME BEFORE THE
COURT AND SAID YOUR HONOR WE
WOULD LOVE TO PROVIDE THE
SERVICES THAT THE CHILD IS
ELIGIBLE.
WE SIMPLY DON'T HAVE SPACE OR
FUNDING AND WE DON'T ANTICIPATE
THIS CHILD BEING PLACED FOR
ANOTHER TWO YEARS, AND IF THAT
INFORMATION IS PROVIDED TO THE
JUDGE THE JUDGE IS THEN ABLE TO
DETERMINE WHETHER OR NOT
PLACING THE CHILD IN ANOTHER
STATE WITH A RELATIVE OR
WHATEVER THAT MAY HAVE THOSE
SERVICES IS APPROPRIATE, BUT BY
YOU NOT BEING ABLE TO COME
BEFORE THE JUDGE OR BEING
UNWILLING TO COME TO THE JUDGE
AND GIVE THAT JUDGE THAT
INFORMATION THE JUDGE CAN'T
MAKE THAT DETERMINATION.
>> I UNDERSTAND, AND IF THAT'S
WHAT THE JUDGE WAS SEEKING THAT
CERTAINLY WOULD BE APPROPRIATE.

>> CHIEF JUSTICE: AND WITH
THAT, WE HAVE WITH OUR HELP YOU
HAVE GONE OVER YOUR TIME.
WE APPRECIATE THE CANDOR OR THE
CONCESSIONS.
WE CAN ALSO APPRECIATE THAT
THIS MAY BE, THERE MIGHT BE
MUCH MORE TO THIS STORY BUT WE
DON'T HAVE IT IN FRONT OF US,
AND SO IN THAT WAY WE
APPRECIATE YOUR AT LEAST
AGREEING THAT THE THIRD
DISTRICT COULD BE READ AS BEING
EXTREMELY OVERBROAD.
THANK YOU VERY MUCH.
>> THANK YOU, YOUR HONOR.
>> IF I MAY, COUNSEL WANTS A
RESTRICTION.
EVEN THE BROOK CASE RESTRICTS
--.
>> JUSTICE: LET ME ASK YOU
ABOUT THE SUBPOENA.
ASSUMING THEY GO AND TESTIFY
AND THE JUDGE ASKS A QUESTION
AT THE HEARING ABOUT THE
DELIBERATIVE PROCESS, HOW DOES
THE AGENCY SEEK RELIEF IF THE
JUDGE IS ORDERING AN OFFICIAL
TO TESTIFY ABOUT THAT SUBJECT?

>> I WOULD IMAGINE THE SAME WAY
ANY QUESTION THAT'S EVER ASKED
IN ANY COURT PROCEEDING.
THERE IS AN OBJECTION MADE.
IT IS EITHER SUSTAINED OR
OVERRULED.
>> JUSTICE: THAT'S THE POINT
HERE.
IT IS NOT THE ATTORNEY WHO IS
ASKING THE QUESTION.
IT IS THE JUDGE SO THE JUDGE
WOULD BE IN THE POSITION OF
SUSTAINING HER OWN OBJECTION OR
OF SUSTAINING AN OBJECTION TO
HER OWN QUESTION.
>> THEY COULD ASK TO SUSPEND
THE PROCEEDINGS TO GET A RULING
ON THE COURT'S DECISION.
THESE ARE ALL QUESTIONS THAT
ARE CASE SPECIFIC, QUESTION
SPECIFIC, FACT SPECIFIC, AND
I'LL GO BACK TO THE BROOK CASE
AS AN EXAMPLE.
IN BROOK, SECRETARY PULLER WAS
SUBPOENAED.
THE COURT HAD THAT SUBPOENA
POWER.
THE DISTRICT COURT SIMPLY HELD
THAT THE COURT ABUSED ITS
DISCRETION IN THAT CASE,
BECAUSE OF THE FACTS SPECIFIC
TO THAT CASE.
MY CONCERN IS THAT IN
RECOGNIZING THE SUBPOENA POWER
YOU MAY SAY SOMETHING IN THE
ABSTRACT, SOME BROAD LANGUAGE.

THIS IS TO MAKE THE SAME
MISTAKE THE THIRD DISTRICT IS
WHICH IS ISSUE SOME STATEMENT
OR PROCLAMATION THAT WILL NOT
BE THE RIGHT ANSWER IN A FACT
SPECIFIC CASE, SO I SAY TO THIS
COURT, YES, IT IS A GREEN
LIGHT.
THEY HAVE THE SUBPOENA POWER,
IT CAN BE ABUSED AND IF IT IS
ABUSED YOU START AT THE TRIAL
COURT LEVEL AND WORK YOUR WAY
UP.
YOU DON'T READ THAT HERE.
THERE IS A QUESTION FROM THE
COURT THAT I DIDN'T APPRECIATE
AND THAT HAD TO DO WITH
JURISDICTIONAL QUESTION.
I THINK THE JURISDICTIONAL
QUESTION IS ANSWERED BY THE
CASE OF STATE VERSUS WOOD.
IT IS CITED IN THE
JURISDICTIONAL BRIEF.
THAT INVOLVED A CLASS OF
CONSTITUTIONAL OFFICERS, THE
CIRCUIT COURT JUDGES.
IT HAD TO DO WITH THE WRIT OF
DENOVIS.
ANOTHER QUESTION FROM THIS
COURT ON THIS ASPECT FROM 327
SOUTHERN 2D 3.
THERE THIS COURT REVIEWED THE
CLERK'S ABILITY OR INABILITY TO
ISSUE SUBPOENAS.
I THINK THOSE TWO CASES ARE THE
TWO CLOSEST THAT COME ON POINT
JURISDICTIONALLY AND GIVES THIS
COURT ITS JURISDICTION AND
UNLESS THERE ARE ANY OTHER
QUESTIONS OF MYSELF OR MISS
GIEVERS I URGE REVERSAL OF THE
THIRD DISTRICT DECISION AND
RESTATEMENT OF THE SUBPOENA.
>> CHIEF JUSTICE: THANK YOU TO
EVERYONE, AND AGAIN THE COURT
WILL ACT EXPEDITIOUSLY BUT
HOPES THAT ANYTHING WE'VE DONE
HAS NOT DELAYED ANY CHILD'S
WELFARE AND THAT'S IN THE END
WE HOPE THAT NOTHING IS
UNNECESSARILY IN ABEYANCE AND
IF THERE IS ANY WAY TO WORK ANY
OF THESE OTHER ISSUES OUT AMONG
YOURSELVES THAT IS WHAT WE HAVE
ALL HAVE TO BEAR IN MIND SO I
HOPE THAT YOU BRING THAT
MESSAGE BACK TO THE AGENCY.
THANK YOU VERY MUCH.