(John Disney/Daily Report)
Claiming the First District Court of Appeal was wrong to deny attorney fees in a public records request dispute with the state, The Florida Times-Union wants state Supreme Court review.
Last November, the Jacksonville newspaper prevailed on its petition that “value-added” teacher data is open to review. The Florida Department of Education and Florida Education Association argued the data was shielded by a state law that blocks release of teacher evaluation records until the following year.
The Times-Union said the data made up but half of an evaluation record, so it should not be exempt.
While the First District agreed with the Times-Union, the court denied its petition for legal fees, a decision that became final March 21. The First District acknowledged that Times-Union attorneys, George Gabel Jr. and Jennifer Mansfield of Holland & Knight in Jacksonville, timely pleaded for fees. However, the court said, “appellant did not state the authority on which attorney fees were sought.”
In an initial brief filed Thursday, Mansfield said the First District’s position directly contradicts Florida Supreme Court case law and a 2012 Fourth District opinion.
The Supreme Court said in 1991 in Stockman v. Downs that a claim for attorney fees must be pleaded. And in 2002 in Caufield v. Cantele, the Supreme Court clarified Stockman, stating the pleading does not require notation of the statutory or contractual basis.
In 2012, the Fourth District in Advanced Chiropractic and Rehabilitation Ctr. v. United Auto Ins. said there was no rule in the Florida Rules of Appellate Procedure that sets forth a procedure for the type of proceeding at issue, Mansfield said.
Supreme Court Clerk John Tomasino, also on Thursday, designated the petition a high profile case. The Department of Education should answer the Times-Union brief before the Supreme Court considers accepting the case.
Mansfield noted that the Florida Bar Appellate Court Rules Committee has recommended a new requirement that a separate motion for attorney fees be filed in an original proceeding.
“To the extent the court would be disinclined to accept jurisdiction because the proposed rule change would ‘fix’ the problem,” Mansfield said, “petitioner respectfully asserts that where awards of attorney fees are the enabling mechanism which allows individuals to enforce their constitutional and statutory rights to public records, fairness and justice in this particular case compels accepting jurisdiction.”