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New Pro Bono Program Aims to Reframe the Way Domestic Violence Injunction Opinions Are Written

Appellate Practice

Winston Churchill would have us believe that history is written by the victors. As a response to this proposition, author Sarah Vowell advised that, actually, “[h]istory is written by the writers.”[1] In appellate law, the truth lies somewhere in between: History is written by the judges. The judges write on behalf of the victors. But when the victors are the appellees, history is often unwritten. In light of the breadth of use of the per curiam affirmance, courts can tend to under-develop common law on issues that find themselves repeating in the trial and appellate courts.

This issue is prevalent in the jurisprudence surrounding injunctions for protection against domestic violence. The victim often represents himself or herself pro se in the trial court proceedings and, upon issuance of an injunction, finds the other party appealing. When the injunction is reversed, the victim goes back to the trial court with a written opinion of reversal that is grafted onto the body of law. But when the injunction is affirmed, there is frequently no written opinion and no reasoning that would support a similar affirmance for another victim in a subsequent case. Forces in the state of Florida are looking to ameliorate these concerns by supporting the rights of victims to proceed as appellants when their initial foray into the court system did not work in their favor.

This article examines the role of the Pro Bono Committee of the Appellate Practice Section of The Florida Bar, the statewide Guardian ad Litem Program, the Veterans Consortium Program, the Young Lawyers Division of The Florida Bar, and the new Stigma Free Community in providing or securing legal services for underrepresented people. This article further delves into the impact that per curiam affirmances have on domestic injunction cases and explains how pro bono representation in appeals could result in more written opinions on both sides of the law.

The Appellate Practice Section’s Commitment to Pro Bono Service

The Appellate Practice Section of The Florida Bar has a long-standing commitment to pro bono service. For those unable to hire an attorney or otherwise obtain counsel, the section provides the Pro Se Handbook.[2] The Pro Se [Self-Represented] Appellate Handbook is a 255-page book in PDF form that discusses the appellate process in Florida.[3] The handbook is offered in French Creole and Spanish in addition to English.[4]

The Pro Bono Committee aids in providing appellate “pro bono legal services to those in need.”[5] Of particular importance to the committee is its email list.[6] The committee receives various requests for pro bono assistance that are filtered through the list, from which section members will volunteer as counsel.[7] Further, the committee has partnered with two appellate pro bono programs: Defending Best Interests and Veterans Consortium.[8] Defending Best Interests is the statewide Guardian ad Litem Program’s appellate pro bono initiative,[9] which pairs volunteer attorneys with the statewide Guardian ad Litem to aid children in defending appeals of dependency and termination of parental rights cases. The initiative helps children, the statewide Guardian ad Litem, and also provides benefits to the attorneys who volunteer for it, including “unlimited access to GAL’s extensive online training database, detailed practice aids, and support through the GAL’s skilled appellate attorneys and executive leadership.”[10]

The Veterans Consortium assists veterans in appealing the denial of benefits or compensation in U.S. Court of Appeals for Veterans Claims,[11] and provides free legal services in federal venues for veterans in need. Volunteer attorneys represent veterans who have been denied benefits or compensation they earned during military service and litigate cases appealed to the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.[12]

The Pro Bono Committee is increasing its efforts to help victims of domestic violence. For victims seeking pro bono representation on appeal in a domestic violence matter, the committee had already advised that support would be provided.[13] But a new initiative is underway: Stigma Free Community, which is a partnership between the Guardian ad Litem Program and The Florida Bar Young Lawyers Division. The partnership aims to provide information and resources and to encourage the participation of pro bono attorneys in disputes involving injunctions for protection against domestic violence.

An estimated one in four women and nearly one in 10 men have experienced sexual violence, physical violence, stalking, or some combination of the three by an intimate partner during their lifetime.[14] During 2018, Florida had reports of nearly 105,000 incidents of domestic violence, including 215 deaths.[15] This type of violence directly affects children, who can be victims, family members of victims, or household members of victims. Exposure to domestic violence can cause emotional, mental-health, and social consequences that impact developmental growth and contribute to lifelong medical and psychological issues.[16] These issues can lead to cyclical, generational issues, and incidents of domestic violence.[17]

However, victims of domestic violence often face stigma in the courts and in their own communities. As explained by Stigma Free Community:

Many lack resources to secure legal representation. Some do not have access to legal advice and are unaware of resources and protections available. There is also the social stigma of being a domestic violence survivor. Studies have shown that survivors not only blame themselves for their victimization, but can also face blame from others. This can cause the person to feel more victimized.[18]

The Young Lawyers Division intends to work with community partners, including law firms and legal aid providers.[19] This outreach includes the Appellate Practice Section. From an appellate standpoint, the gravity of a domestic violence case is compounded by the relative ability of an appellant and relative inability of an appellee to secure an opinion in their favor that will be of benefit to similarly situated individuals in subsequent appeals.

The Per Curiam Affirmance

An appeal of an injunction for protection against domestic violence may be complicated by the fact that many such appeals, when they are decided in the victim’s favor, have been and continue to be concluded by the issuance of an unelaborated per curiam affirmance. A “per curiam” opinion is one in which the judges are all of one mind with a question so clear that it need not be elaborated by an extended discussion.[20] A per curiam opinion may involve a review of questions of fact, the use of another decided case, the disposition of cases involving multiple issues, an issue that two or more judges answer with the agreement of others, or matters of which a written opinion would add nothing new to the law.[21] Ultimately, “there is no limit to the grounds that may prompt a per curiam opinion.”[22]

One type of per curiam opinion is particularly plentiful among district court opinions and has wide-ranging effects on appellate practice in Florida. A per curiam decision with no written opinion — usually stated as “per curiam affirmed” — is a useful tool for an overburdened court system. As has been noted, the “sheer volume of appeals, in and of itself, would seemingly indicate the impossibility of a written opinion on every affirmance.”[23] A district court, inasmuch as there is no reversal and, thus, no instructions to the trial court on remand, may simply state, “per curiam affirmed,” and move on to the next case that requires a written opinion.

However, district courts may utilize per curiam affirmances for reasons other than or in addition to judicial economy. The district courts of Florida are, in the vast majority of cases, the court of last resort for litigants.[24] The Florida Courts System clearly explains, “[a]s a general rule, decisions of the district courts of appeal represent the final appellate review of litigated cases.”[25] One influencer on the primacy of the district courts is that a per curiam affirmance establishes the district court as the final arbiter for appellate purposes.

The Florida Supreme Court is a court of limited jurisdiction that extends only to the narrow class of cases enumerated in Fla. Const. art. V, §3(b).[26] The Florida Supreme Court does not have jurisdiction to review unelaborated per curiam affirmances, even when such affirmances contain a citation.[27] This is because the Florida Supreme Court lacks subject matter jurisdiction over a district court opinion that does not expressly address a question of law.[28] The Florida Supreme Court lacks review jurisdiction and extraordinary writ jurisdiction in such a scenario, regardless of whether the unelaborated decision is by way of an opinion per curiam affirming a trial court order or by way of an order denying relief requested by a petitioner.[29]

Therefore, although the Florida Supreme Court may be the highest court in Florida, it is often not a viable option for appeal upon losing at the district-court level. An unelaborated per curiam affirmance of an order does not allow for further review of that order and marks the end of the road. Such an affirmance also has no precedential value.[30] A decision with no written opinion does not establish any point of law, and there is no presumption that an unelaborated per curiam affirmance was decided on the merits.[31] Although it may be sufficient to form the law of the case in a particular case, an unelaborated per curiam affirmance does not bind an appellate court to accept any conclusions of law.[32] Even when an unelaborated opinion is accompanied by a written dissenting opinion, no precedential value attaches.[33] It is so well settled that an unelaborated per curiam affirmance has absolutely no precedential value that application of such an opinion constitutes a departure from the essential requirements of law.[34] The Florida Supreme Court envisioned a public policy rationale for limiting the application of an unelaborated per curiam affirmance:

No one can ascertain what was argued to the original court first rendering a decision. More importantly, however, would be the uncertainty of the law. All lawyers, and lay people also for that matter, should be able to research and have available all existing law. If there is a body of law floating around in unwritten or unpublished opinions, only those persons privy to those cases know those pronouncements. This creates unwarranted confusion and disparity in the orderly presentation of issues.[35]

In other words, the ability of parties to rely upon such affirmances as precedent would prohibit a democratization of the law.

It is against this backdrop that another problem of legal democracy exists: Appellate courts tend to only issue written opinions when they reverse the trial court. The district courts have explained their rationale for whether to write an opinion in an affirmance. In Whipple v. State, 431 So. 2d 1011, 1015 (Fla. 2d DCA 1983), for example, the court explained that it endeavors “to write opinions in all cases in which we believe that our decision can arguably be in conflict with a prior decision of the supreme court or a district court of appeal.” Regardless of the rubric utilized, the effect is the same: Cases in which an appellant secures reversal require a written opinion, whereas cases in which an appellee secures an affirmance may garner a written opinion, with many receiving per curiam affirmances for a variety of reasons, including conservation of limited judicial resources.[36] The law tends to be clarified in favor of those who lose the trial and then win the appeal.

Issues with the Per Curiam Affirmance in Temporary Injunction Practice

F.S. §741.30 provides for a cause of action for an injunction for protection against domestic violence. A person has standing in the circuit court to file a sworn petition for an injunction if they are a victim of domestic violence or have reasonable cause to believe they are in imminent danger of becoming a victim of any act of domestic violence.[37] The class of persons who can petition for these injunctions extends beyond the spouses of those alleged to have committed domestic violence, and includes family and household members.[38] It is expressly contemplated that trial court proceedings in domestic violence injunction matters occur with at least one party unrepresented by an attorney.[39]

There is an analogous dating violence injunction statute.[40] Once the petition is filed, the trial court must set a hearing to be held as quickly as possible.[41] The trial court may grant an ex parte temporary injunction in the event of an immediate and present danger of domestic violence.[42] And the trial court may award a temporary or final judgment on injunction for protection against domestic violence, and may also grant other relief as enumerated by statute.[43]

A respondent who has an injunction entered against them may be motivated to appeal.[44] However, just because a respondent hires counsel and files an appeal, that does not mean the victim has the resources to do the same.[45] Recent caselaw is replete with reversals of injunctions where the pro se petitioner may or may not have presented sufficient evidence at the trial-court level and, subsequently, is burdened by their own actions at trial, now as a pro se appellee. The victim turned pro se appellee may find themselves filing briefs that are ultimately stricken.[46] Or a victim in such circumstances may simply fail to file a brief.[47] The victim may find their pro se status on appeal compounded by issues relating to their pro se status at trial, wherein the testimony may have been contradictory and in direct dispute.[48] In some instances, the victim will act pro se at trial and also fail to file an answer brief in the appellate court.

That backdrop makes reversal — and the attendant written opinion that clarifies the law in a light more favorable to the respondent — more likely. The district courts have been sympathetic to these circumstances, with one going so far as to feel “constrained” to reverse.[49] However, on the other side, when the petitioner presents arguably sufficient evidence at the trial court or otherwise prevails for a reason that is later appealed, that petitioner does not get to clarify the law in a way that benefits other victims of domestic violence when their injunction is affirmed on appeal.

Appellant Status: A Curse and a Solution

Part of the problem is that victims of domestic violence are often not apprised of their rights and do not bring a cause of action in the first place; victims who do bring a cause of action often do so without the benefit of counsel; and those who prevail and obtain an injunction find themselves unrepresented in appeals. Each of these issues, independently and in concert, contributes to there being fewer written appellate opinions upholding an injunction. And each of these issues would be aided by the presence of pro bono counsel in these matters.[50]

Additionally, because per curiam affirmances will continue to be entered without a written opinion, one means to secure written opinions in favor of victims of domestic violence is for such victims to exercise their rights to bring appeals. In the event that a domestic violence injunction is not entered, the victim may believe that they have no further recourse. Or they may believe that the system is not designed to help, lose hope, and decline to exercise their rights and proceed pro se a second time. The pro bono assistance of counsel in these matters, at trial and during the appellate process, helps to ensure that the law is being written on all sides of domestic violence injunction disputes.

Conclusion

Unelaborated per curiam affirmances are necessary. But so are injunctions for protection against domestic violence, and so is pro bono service. Hopefully, the focus of Stigma Free Community will be able to provide pro bono legal services to victims of domestic violence who can then shape the law through the lens of the victim.

[1] Sarah Vowell, The Wordy Shipmates 13 (2008).

[2] The Florida Bar Appellate Practice Section, Representing Yourself on Appeal, Pro Se Handbook, available at http://prose.flabarappellate.org/.

[3] The Florida Bar Appellate Practice Section, Pro Se [Self-Represented] Appellate Handbook, available at http://flabarappellate.org/prose/pdf/EDIT_ProSe_English_2016.pdf.

[4] See note 2.

[5] The Florida Bar Appellate Practice Section Pro Bono Committee, flabarappellate.org/about_committee_PROB.asp.

[6] See id.

[7] See id.

[8] Id.

[9] Id. See also Gal Project Aims to Help Children in Partnership with the Appellate Practice Section, Fla. Bar News, Aug. 15, 2017, available at floridabar.org/the-florida-bar-news/gal-project-aims-to-help-children/.

[10] Id.

[11] See note 5. See also The Veterans Consortium Pro Bono Program, vetsprobono.org/.

[12] See id.

[13] See note 5.

[14] Centers for Disease Control and Prevention, Preventing Intimate Partner Violence,cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html.

[15] Florida Department of Law Enforcement, Domestic Violence: Victim to Offender Relationships, fdle.state.fl.us/FSAC/Crime-Data/DV.aspx.

[16] Child Welfare Information Gateway, Impact of Domestic Violence on Children and Youth, childwelfare.gov/topics/systemwide/domviolence/impact/children-youth/.

[17] See id.

[18] Stigma Free Community White Paper (as yet unpublished). For a thorough discussion of the state and effects of domestic violence in Florida, see also Caitlyn R. Shield Waksler, Restraining Justice: How Florida Can Better Aid Pro Se Survivors of Domestic Violence with Appeals of Injunction for Protection Cases, 93 Fla. B. J. 4, 46 (July/Aug. 2019).

[19] See id.

[20] Newmons v. Lake Worth Drainage Dist., 87 So. 2d 49, 50-51 (Fla. 1956).

[21] Id.

[22] Id.

[23] See Elliott v. Elliott, 648 So. 2d 137, 138-39 (Fla. 4th DCA 1994).

[24] See Boca Burger, Inc. v. Forum, 912 So. 2d 561, 570-71 (Fla. 2005).

[25] Florida District Courts of Appeal, https://www.flcourts.org/Florida-Courts/District-Courts-of-Appeal.

[26] Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003); Mystan Marine, Inc. v. Harrington, 339 So. 2d 200, 201 (Fla. 1976).

[27] See id.

[28] See Florida Star v. B.J.F., 530 So. 2d 286, 288 and n. 3 (Fla. 1988).

[29] See Gandy, 846 So. 2d at 1144. See also Wells v. State, 132 So. 3d 1110, 1111 (Fla. 2014).

[30] Dep’t of Legal Affairs v. Dist. Court of Appeal, 434 So. 2d 310, at passim (Fla. 1983).

[31] Id. (quoting Schooley v. Judd, 149 So. 2d 587, 590 (Fla. 2d DCA 1963) (reversed on other grounds, 158 So. 2d 514 (Fla. 1963))).

[32] See Dep’t of Legal Affairs, 434 So. 2d at 312 (internal citations omitted).

[33] See Munnerlyn v. Wingster, 825 So. 2d 481, 483 (Fla. 5th DCA 2002); St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 248-49 (Fla. 4th DCA 2005).

[34] Gould v. State, 974 So. 2d 441, 445 (Fla. 2d DCA 2007).

[35] Dep’t of Legal Affairs, 434 So. 2d at 312.

[36] See Elliott, 648 So. 2d at 138-39.

[37] Fla. Stat. §741.30(1)(a).

[38] Fla. Stat. §741.30(1)(e).

[39] Fla. Stat. §741.30(1)(f).

[40] See Fla. Stat. §784.046.

[41] Fla. Stat. §741.30(4).

[42] Fla. Stat. §741.30(5)(a).

[43] Fla. Stat. §741.30(6)(a)1.-7.

[44] See Mitchell v. Brogden, 249 So. 3d 781, 783 & n. 2 (Fla. 1st DCA 2018) (Makar, J., dissenting).

[45] See id.

[46] See id.

[47] See Hussey v. Lara, 272 So. 3d 498, 499 (Fla. 3d DCA 2019).

[48] See Khan v. Deutschman, 282 So. 3d 965, 966 (Fla. 1st DCA 2019).

[49] See Hussey, 272 So. 3d at 499.

[50] See note 44; Hussey, 272 So. 3d at 499; Khan, 282 So. 3d at 966.

 

Photo of Morgan WeinsteinMorgan Weinstein is a board certified specialist in appellate practice. He operates Weinstein Law, P.A., a firm dedicated to appellate practice and trial support. He obtained his J.D. from the University of Florida Levin College of Law.

This column is submitted on behalf of the Appellate Practice Section, Christopher Dale Donovan, chair, and Thomas Seider, editor.


Appellate Practice