By Gary Blankenship
The Board of Governors agreed on July 27 to support the position that a parental leave continuance be added to the Florida Rules of Judicial Administration.
The board’s input —which was requested by the Supreme Court — along with the majority and minority positions of the Bar’s Rules of Judicial Administration Committee, will be submitted to the court by August 31. The Supreme Court then could choose to consider a proposed rule on its own and, if it decides to, will publish the rule for comments and may schedule oral arguments.
In June, the RJAC voted against adopting a proposed judicial rule of procedure specifically granting continuances to lawyers who are expecting children by a vote of 23-15 (with one abstention). This decision was in response to a January 23 letter from the court asking the committee to submit a report on the issue with majority and minority positions and including the position of the Board of Governors.
The board, at its meeting in Hollywood, sided with the RJAC’s minority position that while judges have the authority now to grant continuances, more specific guidance regarding parental leave is needed.
The RJAC’s majority position is that continuances should be granted in such circumstances, but a rule is not necessary for these specific circumstances as judges already have the authority to grant continuances.
The minority recommendation suggests a rule that judges should grant parental leave continuances to lead lawyers in a case absent good reason, such as harm to an opposing party. If the opposing party claims that the leave would prejudice their case, the moving lawyer would have the burden of showing a lack of harm.
“This should not be dependent on the sensitivities of a judge or opposing counsel,” RJAC member Craig Leen, representing the minority position, told the board. “This is a unique situation and we know and we have evidence that these continuances are often denied. What does this rule do? It basically tells the judiciary and [opposing] counsel that if you’re going to object to the granting of a continuance based on parental leave, then you need to have a substantial reason for doing so.”
RJAC Chair Ed Sanchez said the committee “is probably close to unanimous for the notion that continuances should be granted if not continually then regularly” and the dispute has always been “whether a rule on continuances is the way to address that issue. The majority of the committee, through its vote, has concluded that is not the way to go forward.”
Bar President Michelle Suskauer told the board it had three options: do nothing, endorse the majority position opposing a rule, or support the minority position.
Board member Deborah Baker-Egozi immediately moved to support the minority position.
“This is an opportunity for Florida to shine,” Baker-Egozi said.
YLD President Christian George noted both the board and the YLD Board of Governors unanimously approved an earlier iteration of the parental leave rule last year, and that the ABA YLD will be proposing a parental leave rule at the ABA’s Midyear Meeting in January.
“Statistically speaking, it is largely our members who are affected by this rule,” he said. “My friends, my board members, are currently dealing with this issue and they should not have to.”
Board member Melissa VanSickle warned any continuance rule, while important, would have impacts beyond the affected lawyers.
“I have some concern the proposed rule could potentially divest the trial court of its discretion to manage its cases and it could also potentially elevate the needs of an attorney over those of witnesses or parties to litigation,” VanSickle said. “The trial judge is in the best position to make determinations on a case-by-case basis and I am concerned about a rule that potentially hamstrings the judge from doing that.”
Board member Tom Bopp said he had spoken with several circuit judges and the majority have opposed it for the reasons cited by VanSickle.
The rule would help trial judges, board member Steve Davis said, because it would give them a standard to apply, which would protect them from criticism, and it helps the opposing lawyer who can point to the rule in explaining to clients why a continuance may be justified.
Immediate past chair of the Florida Conference of Circuit Court Judges Scott Bernstein, attending as an ex officio member of the board, said the conference Executive Committee discussed the issue and said the committee supports having a rule, but has not supported any particular language.
Much of the conference discussion, he said, focused on judicial discretion and what kinds of discretion judges want.
“If there is a legitimate reason to deny a continuance, the proposed rule gives the judge the discretion to do exactly that,” Bernstein said. “But if there are no good grounds to deny the continuance, then what is the discretion the judges want to hold on to? The discretion to do something offensive? The discretion to do something inappropriate? That is not the discretion the judges need to have.”
Bernstein added, “We did not say we are in favor of parental leave. The position of the Florida Conference of Circuit Court Judges was we favor a rule on parental leave.”
The board voted 41-0, with one abstention, in support of the RJA minority position.
The continuance rule has been under consideration in some form for around three years. It originally surfaced in the RJAC when a subcommittee, chaired by Leen, proposed a mandatory continuance rule. The committee rejected that, saying it supported the policy of allowing parental continuances but didn’t believe it should be in a rule.
Leen’s subcommittee brought it back redrafted so judges would retain some discretion, but the full committee rejected it again.
In the meantime, the Bar’s Diversity and Inclusion Committee took up the issue and voted to support a mandatory rule.
Then-President Bill Schifino appointed a special committee, with members from both committees. That panel, by a 6-4 vote, proposed a rule allowing lawyers to seek parental continuances and requiring judges who reject the request to state the reasons in writing. The opposing party could object that the continuance would prejudice its case and the petitioning attorney would have the burden of showing there was no harm. The rule would apply only to the lead attorneys in cases.
The board approved that recommendation and submitted it to the Supreme Court. The court, however, last year rejected the submission, noting that only procedural rule committees and the court itself can propose rule amendments.
In January, the court sent a letter to the RJAC directing it to file a report on parental leave, with majority and minority positons. It was also directed to get input from the Board of Governors and Bar members.
That led to the RJAC’s action at the Bar’s June Annual Convention.
Bar members have until August 15 to submit comments, which can be sent to Krys Godwin at [email protected].
The minority report would create new Rule of Judicial Administration 2.570 and provide that unless another party demonstrates “substantial prejudice,” a parental leave continuance must be granted if it is made within reasonable time of learning the need for the leave or the setting a date for the proceeding for which the continuance is sought.
The draft rule included in the minority report says, “Three months is the presumptive maximum length of a parental leave continuance absent a showing of good cause that a longer time is appropriate. If the motion for continuance is challenged by another party that makes a prima facie demonstration of substantial prejudice, the burden shifts to the movant to demonstrate that the prejudice caused by denying the continuance exceeds the burden that would be caused to the objecting party if the continuance were to be granted. The court shall enter a written order setting forth its ruling on the motion and, if the court denies the requested continuance, the specific grounds for denial shall be set forth in the order.”
The proposed rule comment notes it would apply to both the birth and adoption of a child and that the rule creates a presumption in favor of granting the continuances. It also says the court has discretion to deny continuances “where there would be substantial prejudice to another party, where an emergency or time-sensitive matter would be unreasonably delayed, where a significant number of continuances have already been granted, or where the substantial rights of the parties may otherwise be adversely affected.”