Footnotes lead Florida judge to charges of insubordination

The suspension of an administrative law judge 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.
Judge John Van Laningham [State of Florida Division of Administrative Hearings]
Judge John Van Laningham [State of Florida Division of Administrative Hearings]
Published April 6, 2020|Updated April 6, 2020

TALLAHASSEE — A state Division of Administrative Hearings judge has been suspended for accusing the agency’s director of making what are known as improper “ex parte communications” when reviewing an order in a case about a South Florida horse track.

The five-day suspension of Administrative Law Judge John Van Laningham for “insubordination and misconduct,” which was effective Wednesday, sent shockwaves through the state’s tightly knit administrative-law community.

Van Laningham, who intends to appeal the sanction, was appointed to serve as a judge at the division 20 years ago. He is renowned for lengthy, sharply written orders in which he sometimes harshly rebukes state agency officials.

The suspension of an administrative law judge 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.

Van Laningham’s sanction, issued by Administrative Law Judges Li Nelson and Gar Chisenhall on March 26, stemmed from two footnotes he included in a March 13 recommended order in a case involving Calder Race Course Inc.

The footnotes said division 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 also raised questions about whether 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.

Van Laningham wrote that he was “erring on the side of caution” by placing the comments on the record, adding that “any party desiring to rebut this communication shall be allowed to do so in accordance with” the statute.

The footnotes created a firestorm not only within the legal community, but also among Van Laningham’s colleagues.

Senior Administrative Law Judge Robert Cohen, who was the division’s chief judge for more than two decades until MacIver’s appointment last year, said he was “shocked” by Van Laningham’s comments.

The discussion between the chief judge and an administrative law judge “does not constitute ex parte communications contemplated by the Legislature,” Cohen, who is Van Laningham’s supervisor, wrote in a March 19 memo to MacIver.

“To the contrary,” Cohen continued, “I believe this practice is an excellent management tool for understanding the depth and breadth of matters coming before DOAH” as well as a way to determine whether the administrative law judges are “consistent in their decision-making” and “acting in accordance with” state law.

“In retrospect, I wish I had made the effort to conduct such frequent reviews when I was director,” he added.

Van Laningham’s interpretation is “misplaced, convoluted, and either masquerading as a complaint or an attack against the director who is making an effort to ensure quality orders are issued by DOAH,” Cohen added.

But Daniel Bean, a lawyer representing Van Laningham, argued that the judge has no personal animus toward MacIver and had not done anything wrong.

“These conclusions regarding Judge Van Laningham’s personal motivations are conclusory, unsupported, and untrue,” Bean wrote March 24, asking that the intended punishment be rescinded.

His “sole intent,” rather, “was to disclose to the litigants communications which he believed were relative to the merits and which he had a statutory duty to disclose,” Bean wrote.

“DOAH’s decidedly negative reaction to Judge Van Laningham’s truthful disclosure of a public record in the interests of full transparency to the litigants is both puzzling and concerning,” Bean wrote.

Van Laningham’s lawyer also argued that the charges of misconduct and insubordination are unfounded, noting repeatedly that the comments in the footnote were neutral.

“It is highly concerning that DOAH appears to take the position that an ALJ is prohibited from exercising his independent decision-making authority to analyze and interpret a statute and determine its applicability,” particularly when the statute creates a “personal obligation” for the ALJ to undergo that analysis or face a civil sanction, Bean argued.

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.

Nelson acknowledged that “there may be differing reactions” among the DOAH 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 and/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.

Jackie Van Laningham, a lawyer who is the judge’s daughter and who works for Bean, told The News Service of Florida on Friday that her father intends to appeal the suspension to the Public Employee Relations Commission.

“There was no intent to attack the director’s practice,” she said. “We’ll move forward, but obviously our position is there was no misconduct or insubordination and no directive or order that was violated.”

MacIver’s appointment as director of the division last year drew some controversy, with Agriculture Commissioner Nikki Fried opposing the appointment. She argued that MacIver lacked the experience necessary for the post. MacIver has been a member of The Florida Bar for eight years.

MacIver, who at the time was the head of the local Federalist Society, told DeSantis and the Cabinet in September that his goal would be to hire “the correct ALJs who have the correct judicial philosophy,” one that he called “apolitical.” The Federalist Society in Florida and nationally is perhaps the most-prominent conservative legal organization.

“The Legislature should be able to look to both the courts and the administrative courts and say I can write a law … and there aren’t going to be creative ways to try to redraft that,” MacIver said.