IN THE SUPREME COURT OF FLORIDA. GUSTAV KAKUK, ) ) Petitioner, ) ) vs. ) DCA CASE NO. 5D ) CASE NO. STATE OF FLORIDA, ) ) Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA GUSTAV KAKUK, ) ) Petitioner, ) ) vs. ) DCA CASE NO. 5D ) CASE NO. STATE OF FLORIDA, ) ) Respondent. ) ) ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT PETITIONER S JURISDICTIONAL BRIEF JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT NANCY RYAN ASSISTANT PUBLIC DEFENDER Florida Bar Number Orange Avenue, Suite A Daytona Beach, Florida Phone: 386/ COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS TABLE OF CITATIONS i ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 3 ARGUMENT 4 THE DECISION AND OPINION ISSUED BY THE DISTRICT COURT IN THIS CASE EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS, THE STATE ATTORNEYS. THE DECISION FURTHER EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN HOLLY V. AULD, 450 SO. 2D 217 (FLA. 1984). CONCLUSION 7 CERTIFICATE OF SERVICE 7 CERTIFICATE OF COMPLIANCE 8

3 TABLE OF CITATIONS CASES CITED: NO. PAGE Behr v. Bell 665 So. 2d 1055 (Fla. 1996) 5 Holly v. Auld 450 So. 2d 217 (Fla. 1984) 3,4,6 In re Anders Briefs 581 So. 2d 149 (Fla. 1991) 5 In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of the Tenth Judicial Circuit 636 So. 2d 18 (Fla. 1994) 5 Jenny v. State 447 So. 2d 1351 (Fla. 1984) 5 Office of the State Attorney, Fourth Judicial Circuit v. Parrotino 628 So. 2d 1097 (Fla. 1993) 5,6 Satz v. Perlmutter 379 So. 2d 359 (Fla. 1980) 6 State v. Bowman 437 So. 2d 1095 (Fla. 1983) 5 State v. Fitzpatrick 464 So. 2d 1185 (Fla. 1985) 6 OTHER AUTHORITIES: Article V, Section (3)(b)(3), Florida Constitution 6 Section (7), Florida Statutes 4,6 ii

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5 STATEMENT OF THE CASE AND FACTS The petitioner, Gustav Kakuk, was the respondent in a civil commitment case initiated by the State under the Sexual Predator Act, formerly known as the Jimmy Ryce Act. After a jury trial in the Circuit Court for the Ninth Judicial Circuit, in case no. 02-MH-9314, Mr. Kakuk was found to meet the criteria for civil commitment under the Act, and duly committed by an order rendered February 13, (Vol. V, R 233) Prior to his jury trial in this case, Mr. Kakuk objected to his deposition being taken, on the basis he had opted to use no experts in his own case. On that point the Act expressly provides as follows: If the person who is subject to proceedings under this part refuses to be interviewed by or fully cooperate with...any state mental health expert, the court may, in its discretion: (a) Order the person to allow...any state mental health experts to review all mental health reports, tests, and evaluations by the person s mental health expert or experts; or (b) Prohibit the person s mental health experts from testifying... Section (7). Mr. Kakuk took the position that that provision creates a right to refuse to cooperate with the State s mental health experts, provided he gives up the privilege of having his own expert or experts testify. The trial 1

6 court disagreed, and the District Court affirmed WL (Fla. 5 th DCA July 8, 2005). The District Court s decision was dated July 8, A timely motion for rehearing was filed July 20, 2005, and that motion was denied August 16, Notice invoking this court s jurisdiction was timely filed in the District Court on September 14, A copy of the opinion has been attached to this brief as the copy of the opinion attached to the Notice to Invoke Jurisdiction filed in this case inadvertently omitted some pages. 2 See attachments to the Notice to Invoke Jurisdiction filed in this case. 2

7 SUMMARY OF ARGUMENT The decision and opinion issued by the Fifth District Court in this case expressly affect a class of constitutional officers, the State Attorneys, in that it affects how they may proceed in civil commitment cases involving sexually violent predators. The decision further expressly and directly conflicts with this court s decision in Holly v. Auld, 450 So. 2d 217 (Fla. 1984) in that the District Court has favored the civil procedure rules broad policy of discovery over express legislative intent. 3

8 ARGUMENT THE DECISION AND OPINION ISSUED BY THE DISTRICT COURT IN THIS CASE EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS, THE STATE ATTORNEYS. THE DECISION FURTHER EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN HOLLY V. AULD, 450 SO. 2D 217 (FLA. 1984). The District Court held in this case that even where the respondent in a sexually violent predator civil commitment case declines to use any expert of his own, he cannot decline to provide deposition testimony. The District Court reasoned that despite Section (7), Florida Statutes, which appears to create such a privilege, the general Rules of Civil Procedure govern. Those rules allow the State, as a party to the proceeding, to depose the respondent. As the District Court further pointed out, the civil procedure rules allow the State, as a party, to obtain a compulsory mental health examination of the respondent, as his mental state is at issue. The District Court expressly held as follows: If the discovery provisions of the Rules of Civil Procedure are fully applicable to Jimmy Ryce commitment proceedings, it appears that the Legislature has enacted a useless and meaningless statute -- Section (7)(a) and (b)....[t]hat provision appears to limit the power of the state to compel a mental health examination of a person in a Jimmy Ryce commitment proceeding, if that person is willing to 4

9 suffer the consequences set forth in subsection (7)(a) and (b). However, as demonstrated by this case, the civil rules provide an easy by-pass around any protection afforded by those provisions, if they were intended to provide any, by allowing the state to conduct what is essentially a compulsory mental health examination via Rule and then furnish it to the state s mental health experts to use in formulating their opinions. In addition, although it did not occur in this case, Rule 1.360(a)(1)(B) is another avenue to mandate a compulsory mental health examination by the state s mental health experts, based on the fact that the mental state of the person being considered for commitment is at issue. We submit that the Legislature should clarify the Jimmy Ryce statute regarding these ambiguities to provide guidance to the courts, because that Act is a special statutory proceeding created by the Legislature. This holding affects a class of constitutional officers, the State Attorneys, since it directly affects how they may proceed in litigating cases under the Ryce Act. This court should review the District Court s holding, as it has previously done when District Courts holdings have affected how the State Attorneys and Public Defenders litigate cases within the course of their statutory duties. See In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of the Tenth Judicial Circuit, 636 So. 2d 18 (Fla. 1994) (Public Defenders filings affected); In re Anders Briefs, 581 So. 2d 149 (Fla. 5

10 1991) (Public Defenders filings affected); Jenny v. State, 447 So. 2d 1351 (Fla. 1984) (State Attorneys subpoena power affected); State v. Bowman, 437 So. 2d 1095 (Fla. 1983) (State Attorneys affected by holding that substituted agency as party in interest). See also Behr v. Bell, 665 So. 2d 1055 (Fla. 1996) (Public Defenders affected by ruling on standby counsel status); Office of the State Attorney, Fourth Judicial Circuit v. Parrotino, 628 So. 2d 1097 (Fla. 1993) (State Attorneys affected; sovereign immunity case); State v. Fitzpatrick, 464 So. 2d 1185 (Fla. 1985) (State Attorneys affected by disqualification ruling); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980) (State Attorneys affected by holding regarding endof-life decisions). Since the State Attorneys duties are directly affected by this case it is this court, not a District Court of Appeal, that should decide the matter. Article V, Section (3)(b)(3), Fla. Const. The decision and opinion issued in this case further expressly and directly conflict with this court s decision in Holly v. Auld, 450 So. 2d 217 (Fla. 1984). Holly involved a statutory discovery privilege created for doctors in order to promote the public policy of full, frank medical peer evaluation. The Fourth District Court of Appeal narrowly construed the privilege because the policy in favor of 6

11 broad discovery compelled a narrow construction of any statute which limited a litigant s right to discovery. See 450 So. 2d at 219. This court reversed the Fourth District s conclusion, favoring instead the public policy that had governed the Legislature s action. Here the policy that governed the Legislature s action in enacting Section (7) was fairness. The District Court s elevation of the generally broad discovery procedures set out in the Rules of Civil Procedure thwarted the Legislature s patent intent. This court should accept jurisdiction of this case based on the conflict with Holly. 7

12 CONCLUSION This court should exercise its discretionary jurisdiction in this matter. Respectfully submitted, JAMES S. PURDY, PUBLIC DEFENDER NANCY RYAN ASSISTANT PUBLIC DEFENDER Florida Bar No Orange Avenue, Suite A Daytona Beach, Florida Phone: 386/ COUNSEL FOR PETITIONER CERTIFICATE OF SERVICE A true and correct copy of the foregoing has been served on Assistant Attorney General Douglas T. Squire, of 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118, by way of the Attorney General s in-basket at the Fifth District Court of Appeal, and mailed to Mr. Gustav Kakuk, No , Florida Civil Commitment Center, S.E. Highway # 70, Arcadia, FL on this 26 th day of September, Nancy Ryan 8

13 CERTIFICATE OF COMPLIANCE The undersigned certifies that this brief complies with Rule 9.210(2)(a), Florida Rules of Appellate Procedure, in that it is set in Courier New 12-point font. Nancy Ryan 9