Invoking “the Rule” in Administrative Proceedings: Florida Industrial Power Users Group v. Art Graham
Referred to simply as “the rule,” the Florida Evidence Code allows a party to request a court to exclude a witness from the courtroom to prevent the witness from hearing the testimony of other witnesses.1 “Witness sequestration is designed to ensure fairness at trial by avoiding ‘the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand.’”2
The rule of witness sequestration has roots dating back to the days of the Bible. In the biblical story, two elders lusted after the beautiful Susanna and propositioned her. When she declined their proposition, the men publicly accused her of having an adulterous meeting in her husband’s garden with another man. Daniel challenged the accusations of the two men, saving her from conviction:
“’Are you such fools, you sons of Israel? Have you condemned a daughter of Israel without examination and without learning the facts?’…And Daniel said to them, ‘Separate them far from each other, and I will examine them.’
“And when they were separated from each other he summoned one of them and said,…’Now then, if you really saw her tell me this: Under what tree did you see them being intimate with each other?” He answered, “Under a mastic tree….’
“Then he put him aside and commanded them to bring the other, and he said to him,…’Now then, tell me under what tree did you catch them being intimate with each other?’ He answered, ‘Under an evergreen oak….’
“Then all the assembly shouted loudly and blessed God….And they rose against the two elders, for out of their own mouths Daniel convicted them of bearing false witness….”3
The story of Susanna has been cited numerous times by courts in support of the importance of sequestration of witnesses: to prevent falsification and to uncover fabrication that has already taken place.
Witness sequestration has been part of the common law in Florida for more than a century.4 It was codified as part of the Florida Evidence Code in 1990 in F.S. §90.616. However, the rule is not absolute; Florida courts have broad discretion as to when witness sequestration should be granted. The right of witness sequestration “is subject to the trial court’s sound discretion.”5 The court will generally evaluate whether the complaining party is prejudiced by the presence of the witness.6
Sequestration of Witnesses in Administrative Proceedings
The rules of evidence do not strictly apply in Florida administrative proceedings. Dating back to the early days of administrative law in Florida, the formalities of court proceedings are loosened in administrative proceedings.7 Administrative proceedings “are not controlled by strict rules of evidence and procedure.”8
As early as 1966, appellate courts gave wide discretion to administrative agencies in evaluating whether to impose witness sequestration. Sauls v. DeLoach, 182 So. 2d 304, 305 (Fla. 1st DCA 1966), involved an appeal of an agency order to deny re-employment to a junior college professor. The professor argued that the agency violated his rights by denying his request to sequester a witness.9 The appellate court rejected the professor’s argument, holding that the agency could have found that the violation of the rule of witness sequestration did not prejudice the professor’s rights, and, thus, there was competent substantial evidence supporting the agency’s decision. The court stated: “It is fundamental that the strict rules of evidence followed in formal court actions do not govern in proceedings before administrative bodies.”10
Instant Case: Public Service Commission Denied Party’s Request for Witness Sequestration
Florida Industrial Powers Users Group v. Graham, 209 So. 3d 1142 (Fla. 2017), stemmed from a petition filed by Florida Power and Light (FPL) for approval of a contractual arrangement relating to the Cedar Bay Power Plant. FPL sought approval from the Public Service Commission to purchase the Cedar Bay Power Plant so it could terminate its existing power purchase agreement with Cedar Bay.11 The Florida Industrial Power Users Group (FIPUG) and the Office of Public Counsel (OPC) both intervened in the proceedings in opposition to FPL’s petition.12 Extensive discovery was conducted in the proceedings. Shortly before the opening of the evidentiary hearing, FPL and OPC filed a motion for approval of a settlement agreement; FIPUG objected to the settlement, to which it was not a party.13
The commission withheld ruling on the settlement agreement, and an evidentiary hearing was conducted.14 At the beginning of the proceedings, FIPUG sought to invoke the rule of sequestration of witnesses pursuant to F.S. §90.616.15 The commission denied this request and the hearing proceeded.16 At the hearing’s conclusion, the commission set a special agenda conference in order to consider the approval of the settlement agreement between FPL and OPC, and then approved the settlement, entering its final order on September 23, 2015.17 FIPUG timely filed its appeal, focusing solely on the court’s denial of its right to invoke the rule of witness sequestration in this administrative proceeding.18
FIPUG Argued Denial of Sequestration Was an Abuse of Discretion
FIPUG argued the evidence code applies to administrative proceedings, unless a statutory exception exists, and, therefore, the rule of witness sequestration (as part and parcel of the evidence code) applied and should be granted to a requesting party in administrative litigation. FIPUG cited F.S. §90.103(2), which states that “this act [the evidence code] shall apply to…civil actions and all other proceedings pending on or brought after October 1, 1981.”19 FIPUG argued the administrative proceeding before the Public Service Commission was included within the “all other proceedings” language of F.S. §90.103(2).
FIPUG argued that F.S. §120.569(2)(g) (allowing a more relaxed standard for admitting evidence) governs only the admissibility of evidence and not the overall applicability of the evidence code. The evidence code addresses many issues, not limited to admission of evidence, such as presumptions affecting the burden of proof and privileges. The right to request sequestration of witnesses is not the same legal question as whether to admit a piece of evidence.
In support of the applicability of the Evidence Code to administrative proceedings, FIPUG pointed to the historical use by the commission of the general rules of evidence and reliance upon the evidence code in its proceedings.20
As further support, the evidence code applies to administrative proceedings, FIPUG quoted F.A.C. Rule 28-106.106(4), which provides the presiding officer must ascertain the qualified representative’s “knowledge regarding the rules of evidence, including the concept of hearsay in an administrative proceeding.”21 FIPUG argued that this rule’s requirement of evidentiary knowledge for administrative hearing participants proved its contention that the evidence code applies in administrative proceedings.22
Assuming that the evidence code is applicable to the proceeding, FIPUG argued that sequestration is demandable as a matter of right.”23 The language of F.S. §90.616 is as follows: “(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).”24 F.S. §§90.616(2)(a)-(d) provide the exceptions in which a witness may not be excluded despite invocation of the rule. FIPUG argued that the “shall” language within the rule makes sequestration demandable as a matter of right and that it must be granted by the court, absent an applicable exception.25 FIPUG took the position that the commission erroneously concluded it had the discretion to deny FIPUG’s request, notwithstanding the mandatory language of F.S. §90.616.26
FIPUG argued that the denial of sequestration caused prejudice in the proceeding. FIPUG asserted that two party witnesses had “similar” cross-examination testimony about the proposed contractual arrangement, with the second witness having had the benefit of hearing the parties’ questions and his colleagues’ answers.27
Commission Argued Denial of Sequestration Is Within Its Discretion
The commission disagreed with FIPUG on both counts, arguing the evidence code does not apply in administrative proceedings and, thus, the commission was not required to apply the rule of sequestration.28 The commission argued that the Administrative Procedure Act (APA) sets the standard for the admissibility of evidence in administrative proceedings.29 F.S. §120.569(2)(g) provides: “Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a trial in the courts of Florida.”30 The commission took the position that the APA provides a more relaxed standard for evidentiary disputes in administrative proceedings; evidence, which may not be admissible in a trial court proceeding in Florida, may be admissible in an administrative proceeding.31 The commission argued that F.S. §120.569(2) expressly exempts administrative hearings from the evidence code by providing its own superseding standard.32
Further, the commission attacked FIPUG’s argument that F.A.C. Rule 28-106.106 demonstrates the applicability of the evidence code in administrative proceedings by citing authority that “an administrative rule may not expand the authority of the statute that it implements.”33
While FPL supported the commission’s position that the evidence code did not apply to commission proceedings, 34 OPC supported FIPUG’s position that the evidence code is applicable, although not strictly enforced in commission proceedings.35
On the second issue, of witness sequestration specifically, the commission stated that it acted within its discretion in declining to sequester witnesses during cross-examination of their pre-filed testimony.36 In support of its position, the commission argued that the inherent dangers in allowing witnesses to be present during the testimony of others were not present in this proceeding, as all witnesses pre-filed their direct testimony.37 As such, all witnesses knew the scope and content of the other witnesses’ testimony months prior to the hearing and, thus, had no need or ability to alter their testimony.38
Finally, the commission pointed out that even if it erred in not sequestering witnesses, the error was harmless here.39 It argued that even if the cross-examination testimony were to be excluded, there is competent, substantial evidence in the record based on the pre-filed testimony and the settlement agreement to support the settlement agreement.40 The commission’s conclusion that approval of the settlement is in the public interest was supported by evidence other than the testimony of the witnesses for whom sequestration was denied.41
Both FPL and OPC agreed with the commission that the commission has the discretion to deny a request for witness sequestration. OPC argued that the commission committed harmless error in not allowing sequestration, as other procedural aspects ensured the fairness of the proceeding.42
Florida Supreme Court: Commission Has Discretion to Deny Sequestration
The Florida Supreme Court issued a sweeping opinion, holding that “the rules of evidence do not strictly apply in administrative proceedings” and that the commission did not err in denying the request for sequestration in this case.43 The court held that while F.S. §90.616 makes sequestration mandatory if invoked and applicable, it is ambiguous as to whether it is applicable in administrative proceedings.44 The court held that, as a longstanding general rule, administrative agencies have “discretion on whether to apply the Florida Evidence Code.”45
To ascertain the legislative intent behind §90.616, the court looked to subsection (1) of the statute first, which states the code applies to the same proceedings that the general law of evidence applied to before July 1, 1979.46 It then looked to subsection (2), which was relied on by FIPUG. It states the “all other proceedings pending on or brought after October 1, 1981” language.47 The court concluded that the general law of evidence did not apply to administrative proceedings before 1979 and, therefore, the Florida Evidence Code does not strictly apply in administrative proceedings.48
In response to FIPUG’s assertion that §90.616(2) requires the rules of evidence to apply “in all other proceedings,” including administrative proceedings, the court held §90.616(2) sets forth only the timeline to which the code applies: proceedings after 1981. On the other hand, §90.616(1) sets forth the scope of applicability of the code to certain cases: those the general rules of evidence applied to before 1979. Since the court found the general rules of evidence did not apply to administrative proceedings before 1979, there was no need to evaluate subsection (2) of §90.616.
The court held that the rules of evidence do not strictly govern administrative proceedings, and can be modified based on the commission’s discretion, which is what occurred in this case.49 The court stated that Ch. 120 generally allows the admissibility of all evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs, whether or not such evidence would be admissible in trials in Florida courts.50
Pre-Filed Testimony in Commission Proceedings
Public Service Commission proceedings include several unique aspects; particular to the issue of witness sequestration is the commission’s use of pre-filed written direct testimony.51 Consequently, each party to the proceeding knows the direct testimony of all the other witnesses before they cross-examine them in the evidentiary hearing. Commission proceedings are unlike civil proceedings and even most administrative proceedings in this respect. Both the commission and FPL pointed to this pre-filed testimony as obviating the need for witness sequestration.52 The Florida Supreme Court did not rely on this as justification for upholding the commission’s discretion; thus, it appears the court’s holding is not limited to cases in which witness testimony is pre-filed.
Increasing Discretion in Applying Evidentiary Standards in Administrative Proceedings
The court’s holding that administrative agencies have discretion in whether to apply the evidence code gives significant flexibility to agencies in each respective case. Without clear standards for the use of this discretion, the court’s holding may lead to unpredictability in litigation in the near term as parties evaluate the boundaries of the agencies’ ability to assess the veracity and credibility of witnesses’ testimony and protect against untruthful testimony, such as the long-ago accusation of Susanna.
1 See Fla. Stat. §90.616 (2016).
2 Daughtry v. State, 211 So. 3d 84, 86 (Fla. 2017) (quoting Gore v. State, 599 So. 2d 978, 986 (Fla. 1992)).
3 Book of Susanna (verses 48-64), Apocrypha of the Old Testament (Revised Standard Version), quoted in R. Slovenko, Sequestration of Lay Witnesses and Experts, 32 Journal of American Academy of Psychiatry Law 447-450 (2004), also citing JB Weinstein & MA Berger, Weinstein’s Evidence Manual (2003); James v. Heintz, 478 N.W.2d 31, 36 (Wis. Ct. App. 1991).
4 See, e.g., Seaboard Air Line Ry. v. Smith, 53 So. 375, 380 (Fla. 1907); Hernandez v. State, 4 So. 3d 642, 658 (2009).
5 Daughtry, 211 So. 3d at 86.
6 See id.
7 DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
8 Bush v. City of Mexico Beach, 71 So. 3d 147, 150 (Fla. 1st DCA 2011) (citing Jennings v. Dade County, 589 So. 2d 1337, 1340-41 (Fla. 3d DCA 1991)).
9 Sauls, 182 So. 2d at 305.
10 Id.
11 FIPUG, 209 So. 3d at 1143.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. (quoting Fla. Stat. §90.103(2)).
20 See, e.g., In re: Application for Increase by General Development Utilities, Inc., Order No. PSC-92-0326-PCO-WS at 2: In re: Petition for Determination of Need for Electrical Power Plant in Taylor County by Florida Municipal Power Agency, JEA, Reedy Creek Improvement District, and City of Tallahassee, Order No. PSC-07-0033-PCO-EU, 7 F.P.S.C. 1:57 (2007); In re: Application for a rate increase for North Ft. Myers Division in Lee County by Florida Cities Water Company — Lee County Division, Order No. PSC-96-1133-FOF-SU, 96 F.P.S.C. 9:139 (1996); In re: Initiation of Show Cause Proceedings Against Cherry Payment Systems Inc. for Violation of Rule 25-4.118, F.A.C., Interexchange Carrier Selection, Order No. PSC-93-1374-FOF-TI, 93 F.P.S.C. 9:412 (1993); In re: Application for amendment of Certificate No. 106-W to Add Territory in Lake County by Florida Water Services Corporation, Order No. PSC-01-1919-PCO-WU, 1 F.P.S.C. 9:317 (2001).
21 Id. at 15 (quoting F.A.C. Rule 28-106.106(4)).
22 Id. at 15-16.
23 Id. at 9.
24 Id. (quoting Fla. Stat. §90.616(1)).
25 Id. at 10-11.
26 Id. at 11.
27 FIPUG, 209 So. 3d at 1142, Reply Brief for Appellant, Florida Industrial Power Users Group at 4.
28 Id., Answer Brief for Appellee, Florida Public Service Commission at 6-7.
29 Id. at 9.
30 Fla. Stat. §120.569(2)(g) (emphasis added).
31 FIPUG, 209 So. 3d at 1142, Answer Brief for Appellee, Florida Public Service Commission at 9.
32 Id.
33 Id. at 13 (citing Fla. Stat. §120.536).
34 Answer Brief for Appellee, Florida Power & Light Co. at 18-19, Florida Industrial Power Users Group v. Graham, 209 So. 3d 1142 (2017) (No.15-2146).
35 FIPUG, 209 So. 3d at 1142, Answer Brief for Appellee, Citizens at 5.
36 Id. at 14-15.
37 Id. at 15-16.
38 Id.
39 Id. at 18.
40 Id.
41 Id.
42 Id. at 10-11.
43 FIPUG, 209 So. 3d at 1142.
44 Id. at 1143.
45 Id. at 1146.
46 Id. at 1144.
47 Id.
48 Id.
49 Id. at 1145.
50 Id. (other than irrelevant, immaterial, or unduly repetitious evidence).
51 In re: Petition for Approval of Arrangement to Mitigate Impact of Unfavorable Cedar Bay Power Purchase Obligation by Florida Power & Light Company, 2015 WL 1419606, at *1 (Mar. 26, 2015). This means all the testimony that is pre-filed “will be inserted into the record as though read after the witness has taken the stand and affirmed the correctness of the testimony and associated exhibits.”
52 Commission Brief at 16; FPL Brief at 15.
Referred to simply as “the rule,” the Florida Evidence Code allows a party to request a court to exclude a witness from the courtroom to prevent the witness from hearing the testimony of other witnesses.1 “Witness sequestration is designed to ensure fairness at trial by avoiding ‘the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand.’”2
The rule of witness sequestration has roots dating back to the days of the Bible. In the biblical story, two elders lusted after the beautiful Susanna and propositioned her. When she declined their proposition, the men publicly accused her of having an adulterous meeting in her husband’s garden with another man. Daniel challenged the accusations of the two men, saving her from conviction:
“’Are you such fools, you sons of Israel? Have you condemned a daughter of Israel without examination and without learning the facts?’…And Daniel said to them, ‘Separate them far from each other, and I will examine them.’
“And when they were separated from each other he summoned one of them and said,…’Now then, if you really saw her tell me this: Under what tree did you see them being intimate with each other?” He answered, “Under a mastic tree….’
“Then he put him aside and commanded them to bring the other, and he said to him,…’Now then, tell me under what tree did you catch them being intimate with each other?’ He answered, ‘Under an evergreen oak….’
“Then all the assembly shouted loudly and blessed God….And they rose against the two elders, for out of their own mouths Daniel convicted them of bearing false witness….”3
The story of Susanna has been cited numerous times by courts in support of the importance of sequestration of witnesses: to prevent falsification and to uncover fabrication that has already taken place.
Witness sequestration has been part of the common law in Florida for more than a century.4 It was codified as part of the Florida Evidence Code in 1990 in F.S. §90.616. However, the rule is not absolute; Florida courts have broad discretion as to when witness sequestration should be granted. The right of witness sequestration “is subject to the trial court’s sound discretion.”5 The court will generally evaluate whether the complaining party is prejudiced by the presence of the witness.6
Sequestration of Witnesses in Administrative Proceedings
The rules of evidence do not strictly apply in Florida administrative proceedings. Dating back to the early days of administrative law in Florida, the formalities of court proceedings are loosened in administrative proceedings.7 Administrative proceedings “are not controlled by strict rules of evidence and procedure.”8
As early as 1966, appellate courts gave wide discretion to administrative agencies in evaluating whether to impose witness sequestration. Sauls v. DeLoach, 182 So. 2d 304, 305 (Fla. 1st DCA 1966), involved an appeal of an agency order to deny re-employment to a junior college professor. The professor argued that the agency violated his rights by denying his request to sequester a witness.9 The appellate court rejected the professor’s argument, holding that the agency could have found that the violation of the rule of witness sequestration did not prejudice the professor’s rights, and, thus, there was competent substantial evidence supporting the agency’s decision. The court stated: “It is fundamental that the strict rules of evidence followed in formal court actions do not govern in proceedings before administrative bodies.”10
Instant Case: Public Service Commission Denied Party’s Request for Witness Sequestration
Florida Industrial Powers Users Group v. Graham, 209 So. 3d 1142 (Fla. 2017), stemmed from a petition filed by Florida Power and Light (FPL) for approval of a contractual arrangement relating to the Cedar Bay Power Plant. FPL sought approval from the Public Service Commission to purchase the Cedar Bay Power Plant so it could terminate its existing power purchase agreement with Cedar Bay.11 The Florida Industrial Power Users Group (FIPUG) and the Office of Public Counsel (OPC) both intervened in the proceedings in opposition to FPL’s petition.12 Extensive discovery was conducted in the proceedings. Shortly before the opening of the evidentiary hearing, FPL and OPC filed a motion for approval of a settlement agreement; FIPUG objected to the settlement, to which it was not a party.13
The commission withheld ruling on the settlement agreement, and an evidentiary hearing was conducted.14 At the beginning of the proceedings, FIPUG sought to invoke the rule of sequestration of witnesses pursuant to F.S. §90.616.15 The commission denied this request and the hearing proceeded.16 At the hearing’s conclusion, the commission set a special agenda conference in order to consider the approval of the settlement agreement between FPL and OPC, and then approved the settlement, entering its final order on September 23, 2015.17 FIPUG timely filed its appeal, focusing solely on the court’s denial of its right to invoke the rule of witness sequestration in this administrative proceeding.18
FIPUG Argued Denial of Sequestration Was an Abuse of Discretion
FIPUG argued the evidence code applies to administrative proceedings, unless a statutory exception exists, and, therefore, the rule of witness sequestration (as part and parcel of the evidence code) applied and should be granted to a requesting party in administrative litigation. FIPUG cited F.S. §90.103(2), which states that “this act [the evidence code] shall apply to…civil actions and all other proceedings pending on or brought after October 1, 1981.”19 FIPUG argued the administrative proceeding before the Public Service Commission was included within the “all other proceedings” language of F.S. §90.103(2).
FIPUG argued that F.S. §120.569(2)(g) (allowing a more relaxed standard for admitting evidence) governs only the admissibility of evidence and not the overall applicability of the evidence code. The evidence code addresses many issues, not limited to admission of evidence, such as presumptions affecting the burden of proof and privileges. The right to request sequestration of witnesses is not the same legal question as whether to admit a piece of evidence.
In support of the applicability of the Evidence Code to administrative proceedings, FIPUG pointed to the historical use by the commission of the general rules of evidence and reliance upon the evidence code in its proceedings.20
As further support, the evidence code applies to administrative proceedings, FIPUG quoted F.A.C. Rule 28-106.106(4), which provides the presiding officer must ascertain the qualified representative’s “knowledge regarding the rules of evidence, including the concept of hearsay in an administrative proceeding.”21 FIPUG argued that this rule’s requirement of evidentiary knowledge for administrative hearing participants proved its contention that the evidence code applies in administrative proceedings.22
Assuming that the evidence code is applicable to the proceeding, FIPUG argued that sequestration is demandable as a matter of right.”23 The language of F.S. §90.616 is as follows: “(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).”24 F.S. §§90.616(2)(a)-(d) provide the exceptions in which a witness may not be excluded despite invocation of the rule. FIPUG argued that the “shall” language within the rule makes sequestration demandable as a matter of right and that it must be granted by the court, absent an applicable exception.25 FIPUG took the position that the commission erroneously concluded it had the discretion to deny FIPUG’s request, notwithstanding the mandatory language of F.S. §90.616.26
FIPUG argued that the denial of sequestration caused prejudice in the proceeding. FIPUG asserted that two party witnesses had “similar” cross-examination testimony about the proposed contractual arrangement, with the second witness having had the benefit of hearing the parties’ questions and his colleagues’ answers.27
Commission Argued Denial of Sequestration Is Within Its Discretion
The commission disagreed with FIPUG on both counts, arguing the evidence code does not apply in administrative proceedings and, thus, the commission was not required to apply the rule of sequestration.28 The commission argued that the Administrative Procedure Act (APA) sets the standard for the admissibility of evidence in administrative proceedings.29 F.S. §120.569(2)(g) provides: “Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a trial in the courts of Florida.”30 The commission took the position that the APA provides a more relaxed standard for evidentiary disputes in administrative proceedings; evidence, which may not be admissible in a trial court proceeding in Florida, may be admissible in an administrative proceeding.31 The commission argued that F.S. §120.569(2) expressly exempts administrative hearings from the evidence code by providing its own superseding standard.32
Further, the commission attacked FIPUG’s argument that F.A.C. Rule 28-106.106 demonstrates the applicability of the evidence code in administrative proceedings by citing authority that “an administrative rule may not expand the authority of the statute that it implements.”33
While FPL supported the commission’s position that the evidence code did not apply to commission proceedings, 34 OPC supported FIPUG’s position that the evidence code is applicable, although not strictly enforced in commission proceedings.35
On the second issue, of witness sequestration specifically, the commission stated that it acted within its discretion in declining to sequester witnesses during cross-examination of their pre-filed testimony.36 In support of its position, the commission argued that the inherent dangers in allowing witnesses to be present during the testimony of others were not present in this proceeding, as all witnesses pre-filed their direct testimony.37 As such, all witnesses knew the scope and content of the other witnesses’ testimony months prior to the hearing and, thus, had no need or ability to alter their testimony.38
Finally, the commission pointed out that even if it erred in not sequestering witnesses, the error was harmless here.39 It argued that even if the cross-examination testimony were to be excluded, there is competent, substantial evidence in the record based on the pre-filed testimony and the settlement agreement to support the settlement agreement.40 The commission’s conclusion that approval of the settlement is in the public interest was supported by evidence other than the testimony of the witnesses for whom sequestration was denied.41
Both FPL and OPC agreed with the commission that the commission has the discretion to deny a request for witness sequestration. OPC argued that the commission committed harmless error in not allowing sequestration, as other procedural aspects ensured the fairness of the proceeding.42
Florida Supreme Court: Commission Has Discretion to Deny Sequestration
The Florida Supreme Court issued a sweeping opinion, holding that “the rules of evidence do not strictly apply in administrative proceedings” and that the commission did not err in denying the request for sequestration in this case.43 The court held that while F.S. §90.616 makes sequestration mandatory if invoked and applicable, it is ambiguous as to whether it is applicable in administrative proceedings.44 The court held that, as a longstanding general rule, administrative agencies have “discretion on whether to apply the Florida Evidence Code.”45
To ascertain the legislative intent behind §90.616, the court looked to subsection (1) of the statute first, which states the code applies to the same proceedings that the general law of evidence applied to before July 1, 1979.46 It then looked to subsection (2), which was relied on by FIPUG. It states the “all other proceedings pending on or brought after October 1, 1981” language.47 The court concluded that the general law of evidence did not apply to administrative proceedings before 1979 and, therefore, the Florida Evidence Code does not strictly apply in administrative proceedings.48
In response to FIPUG’s assertion that §90.616(2) requires the rules of evidence to apply “in all other proceedings,” including administrative proceedings, the court held §90.616(2) sets forth only the timeline to which the code applies: proceedings after 1981. On the other hand, §90.616(1) sets forth the scope of applicability of the code to certain cases: those the general rules of evidence applied to before 1979. Since the court found the general rules of evidence did not apply to administrative proceedings before 1979, there was no need to evaluate subsection (2) of §90.616.
The court held that the rules of evidence do not strictly govern administrative proceedings, and can be modified based on the commission’s discretion, which is what occurred in this case.49 The court stated that Ch. 120 generally allows the admissibility of all evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs, whether or not such evidence would be admissible in trials in Florida courts.50
Pre-Filed Testimony in Commission Proceedings
Public Service Commission proceedings include several unique aspects; particular to the issue of witness sequestration is the commission’s use of pre-filed written direct testimony.51 Consequently, each party to the proceeding knows the direct testimony of all the other witnesses before they cross-examine them in the evidentiary hearing. Commission proceedings are unlike civil proceedings and even most administrative proceedings in this respect. Both the commission and FPL pointed to this pre-filed testimony as obviating the need for witness sequestration.52 The Florida Supreme Court did not rely on this as justification for upholding the commission’s discretion; thus, it appears the court’s holding is not limited to cases in which witness testimony is pre-filed.
Increasing Discretion in Applying Evidentiary Standards in Administrative Proceedings
The court’s holding that administrative agencies have discretion in whether to apply the evidence code gives significant flexibility to agencies in each respective case. Without clear standards for the use of this discretion, the court’s holding may lead to unpredictability in litigation in the near term as parties evaluate the boundaries of the agencies’ ability to assess the veracity and credibility of witnesses’ testimony and protect against untruthful testimony, such as the long-ago accusation of Susanna.
1 See Fla. Stat. §90.616 (2016).
2 Daughtry v. State, 211 So. 3d 84, 86 (Fla. 2017) (quoting Gore v. State, 599 So. 2d 978, 986 (Fla. 1992)).
3 Book of Susanna (verses 48-64), Apocrypha of the Old Testament (Revised Standard Version), quoted in R. Slovenko, Sequestration of Lay Witnesses and Experts, 32 Journal of American Academy of Psychiatry Law 447-450 (2004), also citing JB Weinstein & MA Berger, Weinstein’s Evidence Manual (2003); James v. Heintz, 478 N.W.2d 31, 36 (Wis. Ct. App. 1991).
4 See, e.g., Seaboard Air Line Ry. v. Smith, 53 So. 375, 380 (Fla. 1907); Hernandez v. State, 4 So. 3d 642, 658 (2009).
5 Daughtry, 211 So. 3d at 86.
6 See id.
7 DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
8 Bush v. City of Mexico Beach, 71 So. 3d 147, 150 (Fla. 1st DCA 2011) (citing Jennings v. Dade County, 589 So. 2d 1337, 1340-41 (Fla. 3d DCA 1991)).
9 Sauls, 182 So. 2d at 305.
10 Id.
11 FIPUG, 209 So. 3d at 1143.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. (quoting Fla. Stat. §90.103(2)).
20 See, e.g., In re: Application for Increase by General Development Utilities, Inc., Order No. PSC-92-0326-PCO-WS at 2: In re: Petition for Determination of Need for Electrical Power Plant in Taylor County by Florida Municipal Power Agency, JEA, Reedy Creek Improvement District, and City of Tallahassee, Order No. PSC-07-0033-PCO-EU, 7 F.P.S.C. 1:57 (2007); In re: Application for a rate increase for North Ft. Myers Division in Lee County by Florida Cities Water Company — Lee County Division, Order No. PSC-96-1133-FOF-SU, 96 F.P.S.C. 9:139 (1996); In re: Initiation of Show Cause Proceedings Against Cherry Payment Systems Inc. for Violation of Rule 25-4.118, F.A.C., Interexchange Carrier Selection, Order No. PSC-93-1374-FOF-TI, 93 F.P.S.C. 9:412 (1993); In re: Application for amendment of Certificate No. 106-W to Add Territory in Lake County by Florida Water Services Corporation, Order No. PSC-01-1919-PCO-WU, 1 F.P.S.C. 9:317 (2001).
21 Id. at 15 (quoting F.A.C. Rule 28-106.106(4)).
22 Id. at 15-16.
23 Id. at 9.
24 Id. (quoting Fla. Stat. §90.616(1)).
25 Id. at 10-11.
26 Id. at 11.
27 FIPUG, 209 So. 3d at 1142, Reply Brief for Appellant, Florida Industrial Power Users Group at 4.
28 Id., Answer Brief for Appellee, Florida Public Service Commission at 6-7.
29 Id. at 9.
30 Fla. Stat. §120.569(2)(g) (emphasis added).
31 FIPUG, 209 So. 3d at 1142, Answer Brief for Appellee, Florida Public Service Commission at 9.
32 Id.
33 Id. at 13 (citing Fla. Stat. §120.536).
34 Answer Brief for Appellee, Florida Power & Light Co. at 18-19, Florida Industrial Power Users Group v. Graham, 209 So. 3d 1142 (2017) (No.15-2146).
35 FIPUG, 209 So. 3d at 1142, Answer Brief for Appellee, Citizens at 5.
36 Id. at 14-15.
37 Id. at 15-16.
38 Id.
39 Id. at 18.
40 Id.
41 Id.
42 Id. at 10-11.
43 FIPUG, 209 So. 3d at 1142.
44 Id. at 1143.
45 Id. at 1146.
46 Id. at 1144.
47 Id.
48 Id.
49 Id. at 1145.
50 Id. (other than irrelevant, immaterial, or unduly repetitious evidence).
51 In re: Petition for Approval of Arrangement to Mitigate Impact of Unfavorable Cedar Bay Power Purchase Obligation by Florida Power & Light Company, 2015 WL 1419606, at *1 (Mar. 26, 2015). This means all the testimony that is pre-filed “will be inserted into the record as though read after the witness has taken the stand and affirmed the correctness of the testimony and associated exhibits.”
52 Commission Brief at 16; FPL Brief at 15.
Virginia Dailey and Samantha Evans are attorneys with Panza Maurer & Maynard in the Tallahassee and Ft. Lauderdale offices, respectively, practicing in the area of Florida administrative and regulatory law. Dailey and Evans are members of The Florida Bar Administrative Law Section, and did not represent any of the parties in the proceedings discussed.
This column is submitted on behalf of the Administrative Law Section, Robert H. Hosay, chair, and Stephen Emmanuel, editor.
