TALLAHASSEE — Calling the discipline a “gross abuse of power,” an administrative law judge has appealed a five-day suspension he received for accusing his boss of making what are known as improper “ex parte communications” when reviewing an order in a case about a South Florida horse track.
Administrative Law Judge John Van Laningham’s suspension for misconduct and insubordination “threatens to undermine two foundational (tenets) of Florida administrative law: transparency and judicial independence,” his lawyers argued in an appeal filed Wednesday with the Public Employee Relations Commission.
Van Laningham was appointed to serve as judge at the Division of Administrative Hearings nearly two decades ago. He is known for lengthy, sharply written orders in which he sometimes harshly rebukes state agency officials.
Van Laningham’s sanction, recommended March 26 by fellow administrative law judges Li Nelson and Gar Chisenhall, stemmed from two footnotes he included in a March 13 recommended order in a case involving Calder Race Course Inc.
The footnotes said Division of Administrative Hearings Director John MacIver, who is also the chief judge, began reviewing judges’ orders and making comments about them before they were rendered. MacIver instituted the reviews shortly after his October appointment as director by Gov. Ron DeSantis and the Florida Cabinet.
Van Laningham’s footnotes asserted MacIver’s comments “are, or might be, ex parte communications prohibited by” a section of Florida administrative law. An ex parte communication generally involves someone discussing a case with a judge without the knowledge of each party in the case.
The suspension of an administrative law judge, or ALJ, and the public scrutiny are extremely rare at the agency, which handles cases ranging from big-money fights involving gambling operators and medical-marijuana companies to a dispute about bakers who refused to make a pastry with an anti-gay slogan. MacIver approved the decision by Nelson and Chisenhall to suspend Van Laningham.
“If the agency succeeds in this proceeding, any agency director will be able to impose his or her will on independent-thinking ALJs, influence the outcomes of pending cases, and prohibit ALJs from disclosing his or her substantive involvement upon threat of suspension or dismissal,” lawyers for Van Laningham wrote in the appeal. “The concept of ALJ independence enshrined in the Florida Administrative Procedure Act will be shattered forever.”
In addition to raising “serious jurisprudential concerns,” Van Laningham’s lawyers said his suspension “is legally and factually baseless.”
The footnotes created a firestorm not only within the legal community, but also among Van Laningham’s colleagues.
Senior Administrative Law Judge Robert Cohen, a former chief judge who is Van Laningham’s direct supervisor, said in a March 19 memo to MacIver that he was “shocked” by Van Laningham’s comments.
Van Laningham’s suspension --- the only suspension of an administrative law judge in recent history --- also set the tight-knit administrative law community abuzz.
MacIver told The News Service of Florida that his agency is letting the system work “the way it’s supposed to.”
“His supervisor (Cohen) made a recommendation to a panel. It was reviewed and approved. The same thing will happen with PERC. The process will play out the way it’s supposed to play out,” MacIver said Thursday.
Van Laningham has argued that he “reached an independent legal conclusion” when determining that MacIver’s comments were prohibited ex parte communications, and disclosed MacIver’s comments to the litigants “in a neutral and noncritical manner” that “did not violate a single directive or order.”
But, in the March 26 recommendation to suspend Van Laningham, Nelson wrote that the standard definitions of ex parte communication “simply do not align” with Van Laningham’s interpretation, in part because MacIver is not a party to the litigation.
“Moreover, to reach this conclusion would mean that each comment resulting from a review of a recommended or final order by a senior judge would also qualify as an ex parte communication, including the countless orders that Judge Van Laningham reviewed in that capacity,” Nelson wrote in the three-page recommendation. “Respectfully, I cannot find that this view is a good faith, reasonable, or well-founded belief.”
Nelson also found it was not the disclosure of the review policy that was problematic. Instead, “it is the characterization of the review as an ex parte communication, which by definition means an attempt to influence the presiding officer to benefit one party over another” that is troubling, she added.
But, in Wednesday’s 25-page appeal to the commission that oversees public employee sanctions, Van Laningham’s attorneys strenuously disagreed, calling his suspension “a gross abuse of power and an abuse of the disciplinary process itself.”
“Judge Van Laningham did what judges are supposed to do: he analyzed the law and applied it. That is not, never has been, and never should be a disciplinable offense,” they wrote.
Van Laningham also disputed that his suspension arose from insubordination or misconduct, accusing the review panel consisting of Nelson and Chisenhall, of a “woefully inadequate attempt to present any evidence or coherent argument supporting those charges.”
Instead, the judge said he was being disciplined for revealing MacIver’s “systematic and compulsory review” of recommended and final orders before they are issued.
“It appears that, for reasons known only to it, the agency did not want litigants to know about Director MacIver’s substantive involvement in each and every case pending at the agency, and that someone other than the trier-of-fact is now influencing the outcome of a case without the litigants’ knowledge,” he wrote.
Nelson acknowledged that “there may be differing reactions” among the administrative judges “regarding this extra layer of review.”
But the process has been in place for several months, she added. If Van Laningham felt that the process was improper, “it was incumbent upon him” to address the issue with his supervisor or the chief judge, rather than using footnotes.
“It is difficult to reach this conclusion, because both Judge Chisenhall and I respect Judge Van Laningham’s legal acumen. We do not take this action lightly. It is that same stellar ability that undermines his assertion that he truly believed Judge MacIver’s comments to be ex parte communications,” Nelson concluded.
