Opposition — Court Reporters of Dade County v. Circuit Judges for the Eleventh Judicial Circuit in & for Dade County, Florida

. CAPITAL PRESS, INC. — MIAMI, FLORIDA

g, Supremes Oourt, UW. & .,

"33

’

United States

October Term, 1975

CASE No._75=-555 ‘

COURT REPORTERS OF DADE COUNTY,

Petitioner,

———

vs.

HONORABLE CIRCUIT JUDGES FOR THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR DADE COUNTY, FLORIDA,

Respondent.

MEMORANDUM OPPOSING

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

AND THE COURT OF APPEALS, THIRD DISTRICT

STATE OF FLORIDA

GREENBERG, TRAURIG, HOFFMAN,

LIPOFF & QUENTEL, P.A.

By Alan T. Dimond

1401 Brickell Avenue, PH-1

Miami, Florida 33131

(305) 377-3501

CAPITAL PRESS, INC. — 625-7663 — 525-3351

in the

Supreme Court

nf the

United States

October Term, 1975

CASE No.-

COURT REPORTERS OF DADE COUNTY,

Petitioner,

vs.

HONORABLE CIRCUIT JUDGES FOR THE

ELEVENTH JUDICIAL CIRCUIT IN AND

FOR DADE COUNTY, FLORIDA,

Respondent.

MEMORANDUM OPPOSING

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

AND THE COURT OF APPEALS, THIRD DISTRICT

STATE OF FLORIDA

MEMORANDUM OPPOSING PETITION

FOR WRIT OF CERTIORARI ”

Respondent, HONORABLE CIRCUIT COURT

JUDGES, represents to the Court as follows:

A. The Petition is Untimely

The opinion sought to be reviewed was rendered and

filed on November 6, 1974 by the District Court of Ap-

peal of Florida, Third District (Petitioner’s Appendix L)

on December 11, 1974. The District Court of Appeal denied

rehearing (Petitioner’s Appendix J).

Petitioner seeks this Court’s jurisdiction under the

auspices of 28 U.S.C.A. Section 1257(3) but did not file a

petition until 302 days after the decision sought to be re-

viewed was rendered by the highest court of the State of

Florida in which a decision could be had.

The Supreme Court of Florida in which Petitioner

sought jurisdiction did not decline to exercise discretionary

jurisdiction, but rather twice held it did not have juris-

diction (Petitioner’s Appendixes E and F). See also Arm-

strong v. City of Tampa (Fla. 1958) 196 So.2d 407.

Under Florida law, the District Court of Appeal is

the highest court from which decision could be had, Wil-

liams v. Florida, 399 U.S. 78, 26 L.Ed.2d 446, 90 S.Ct. 1893

(1970). See also Amsin v. Thurston (Fla. 1958) 101 So.2d

808, 810.

3

The instant Petition was filed on October 9, 1975, more

than 180 days since the opinion was rendered and rehear-

ing denied (28 U.S.C.A., Section 2101(c) and Rule 22

of this Court).

Therefore, it appears that Petitioner’s Application for

a Writ of Certiorari is out of time and should be denied.

B. Equal Protection is Afforded

1. Petitioner's Contentions

Assuming for the sake of argument the Petition is not

untimely, there is no issue presented that would warrant

this Court’s consideration. The gravamen of Petitioner’s

argument is that the regulation of “the payment of court

reporter services performed in all civil and criminal pro-

ceedings, including depositions” somehow violates the

equal protection provision of the Constitution (Petitioner’s

Appendix Q). According to Petitioner, the classification is

discriminatory, arbitrary and capricious. Court reporters

have been selected for regulation, Petitioner contends,

rather than people who manufacture the paper or sell type-

writers. Other even less compelling examples are cited by

Petitioner to show some other class should have been se-

lected for regulation. Then Petitioner argues that there is

no rational connection with any state interest. This argu-

ment presumes that the state is regulating a business in the

“free enterprise system” (court reporting) rather than its

court system and the cost to litigants of access to that

system.

4

Further Petitioner argues that:

“Certainly attendance and deposition copies

ordered by private agreement between counsel or

parties, and a court reporter are not a subject for

control by the court and a regulation thus singling

out and so regulating court reporters is not con-

stitutionally allowable. The same certainly may

be said insofar as the order seeks to regulate fees

for depositions not to be filed in the court.”

(Petition, p. 14)

2. State's Interest in its Court System

The State has a keen interest in its court system and

in the costs involved in using that system. Ortwein v.

Schwab, 410 U.S. 656, 35 L.Ed.2d 572, 93 S.Ct. 1172

(1973). The right to set filing fees, even as to indigents,

has been affirmed by this court. United States v. Kras, 409

U.S. 434, 34 L.Ed.2d 629, 93 S.Ct. 631 (1973). The state

has a strong ability to regulate its court system; combined

with its power to regulate businesses operating within the

state, th’ burden to overturn such regulation is a heavy

one. In Nebbia v. New York, 291 U.S. 502, 78 L.Ed. 904,

54 S.Ct. 505 (1934) this Court held that a state did not

violate the Fourteenth Amendment when it fixed the mini-

mum and maximum price of milk. The state’s interest in

its court system is as vital to the public interest as is the

supply of miik.

The use of depositions is provided for in Rule 1.280,

Florida Rules of Civil Procedure, General Provisions Gov-

erning Discovery, which provides in subsection (a) thereof,

5

“Discovery Methods. Parties may obtain discovery by one

or more of the following methods: depositions upon oral

examination. ...” Rule 1.300, Florida Rules of Civil Pro-

cedure, provides in section (a) that:

“Depositions may be taken before any notary

public or judicial officer or before any officer au-

thorized by the statutes of Florida to take ac-

knowledgments or proof of execution of deeds

or by any person appointed by the court in

which the action is pending.”

The taking of depositions, the use of depositions, and

the persons before whom depositions may be taken are

integral parts of the Rules of Civil Procedure. Depositions,

under Florida law, are evidence to be used in civil cases

and are available in criminal proceedings for the purposes

of impeachment. Thus, it is clear that the deposition itself

plays an integral part in the entire judicial system. On the

face of it, without more, it appears reasonable for the

Judges of the Circuit Court to regulate the cost of deposi-

tions.

However, that contention gains strength when it is re-

membered that the costs of depositions are a “court cost”

that is recoverable by the prevailing party in either civil or

criminal proceedings. Section 57.071, Florida Statutes. In

fact, it is specifically provided in Rule 1.310(f) (2), Florida

Rules of Civil Procedure, that: “Upon payment of reason-

able charges therefor the officer shall furnish a copy of the

deposition to any party or to the deponent.” Thus, the

Florida Statutes and Florida Rules of Civil Procedure spe-

cifically require that “reasonable charge” be paid for the

6

cost of a deposition. Obviously, the Statute and the Rule

are interpreted and enforced by the Judges of the Circuit

Court, as are all the other laws relating to discovery pro-

ceedings.

It is important to point out that depositions as a

“product” are not intended to be used for purposes other

than court proceedings. General Order No. 5 provides

that: “the following court reporter fees are hereby adopted

and shall govern the payment of court reporters’ services

performed in all civil and criminal proceedings.” Accord-

ingly, it is not the intent of General Order No. 5 to cover

depositions taken in administrative hearings or for any

other private purpose but rather the Order pertains only

to “civil and criminal proceedings.” Those same proceed-

ings are the subject matter of Rule 1.310 with regard to

the “reasonable charges therefor” and of Florida Statute

57.071.

Clearly, the use of depositions is as much an integral

part of the judicial process as is the use of testimony at

trial. Any difference between the two is merely academic

insofar as the judicial proceedings are concerned. As a

matter of fact, depositions are frequently used in the place

of testimony before a court and submitted directly into

evidence for that purpose. Thus, in those instances, the use

of a deposition is identical in all respects to the transcript

of proceedings in the court.

3. Achievement of a Permissible State Objective

This court held in Rinaldi v. Yeager, 384 U.S. 305,

16 L.Ed.2d 577, 86 S.Ct. 1497 (1966) that legislation may

— —-

.

impose special burdens upon defined classes in order to

achieve permissible ends. The traditional test for a denial

of equal protection under state law is whether the chal-

lenged classification rests on grounds wholly irrelevant to

the achievement of a valid state objective. Turner v.

Fouche, 396 U.S. 346, 24 L.Ed.2d 567, 90 S.Ct. 532 (1970).

The order here applies equally to all persons within the

class by regulating official and free-lance court reporters.

The choice of classification is up to the regulating authority

and the Florida court system is entitled to great latitude in

making classifications, Levy v. Louisiana, 391 U.S. 68, 20

L.Ed.2d 436, 88 S.Ct. 1509 (1968). The object here is

clearly to control the cost of litigation which is a laudable

objective wholly within the framework of proper court

management. Moreover, there is no suspect classification

such as race present.

The inferred aim of the Court Reporters in challeng-

ing this fee setting Order is to be able to sell transcripts and

depositions for whatever the market can bear. It is reason-

able for the State to keep a “supply and demand” economy

out of its court system. Setting reasonable and uniform

rates serves to keep the court system within the reach of

her citizens, rich or poor.

C. Conclusion

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

GREENBERG, TRAURIG,

HOFFMAN, LIPOFF &

QUENTEL, P.A.

By /s/ Alan T. Dimond

Alan T. Dimond

Attorneys for Respondent

1401 Brickell Avenue, PH-1

Miami, Florida 33131

(305) 377-3501

9

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that three true copies of

the foregoing Memorandum Opposing Petition for Writ of

Certiorari have been mailed to ROBERT ORSECK, ESQ.,

Podhurst, Orseck & Parks, P.A., 1201 City National Bank

Building, 25 West Flagler Street, Miami, Florida 33130,

this day of October, 1975, in accordance with Rule

33 of this Court.

GREENBERG, TRAURIG,

HOFFMAN, LIPOFF &

QUENTEL, P.A.

By /s/ Alan T. Dimond

Alan T. Dimond

1401 Brickell Avenue, PH-1

Miami, Florida 33131

(305) 377-3501