Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CLERK OF THE CIRCUIT COURT ) & COMPTROLLER OF COLLIER ) COUNTY, ) ) Appellant/Petitioner, ) ) v. ) Case Nos. 2D19-2368 ) 2D19-2620 JANE DOE, minor, and JANE DOE, ) parent, ) CONSOLIDATED ) Appellees/Respondents. ) ___________________________________) Opinion filed March 27, 2020. Appeal from and Petition for Writ of Certiorari to the Circuit Court for Collier County; Leigh Frizzell Hayes, Judge. Anthony P. Pires, Jr. of Woodward, Pires & Lombardo, P.A., Naples, for Appellant. Fred W. Baggett and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for Amicus Curiae The Florida Association of Court Clerks. Dan R. Stengle and Benjamin A.A. Russell of Associates & Bruce L. Scheiner, Fort Myers, for Appellees. Theresa L. Prichard, Associate Director and General Counsel, and Jennifer L. Dritt, Executive Director, Tallahassee, for Amicus Curiae Florida Council Against Sexual Violence. BADALAMENTI, Judge. In this consolidated opinion, we have for our review an appeal (2D19- 2368) and a related petition for writ of certiorari (2D19-2620) challenging the trial court's nonfinal order denying the Clerk of the Circuit Court and Comptroller of Collier County's ("the Clerk") motion to dismiss Jane Doe's1 negligence complaint on sovereign immunity and judicial immunity grounds. After careful review, we reverse the nonfinal order and hold that the Clerk does not owe a duty of care to Jane Doe pursuant to Florida Rule of Judicial Administration 2.420(d)(1)(B)(xiii) or section 119.071(2)(h)(1)(b), Florida Statutes (2017). Because we reverse the denial of the Clerk's motion to dismiss on this basis, we need not reach the Clerk's petition for writ of certiorari challenging the trial court's denial of its motion to dismiss on judicial immunity grounds. Accordingly, the petition is dismissed. Taking as true the facts set forth in the complaint, as we must, Jane Doe, Minor, was a victim of a crime in which her identity was to be kept confidential from public disclosure pursuant to sections 92.56, 119.071(2), and 119.0714(1)(h), Florida Statutes (2017). Jane Doe, Minor's first and last names were identified on a court document filed in the sexual assault criminal case in which she was the victim as follows: "On or about August 16, 2017, Defendant publicly revealed Plaintiff JANE DOE MINOR'S identity by publishing Jane Doe's name in an 'Amended First Appearance 1"Jane Doe, Minor" and Jane Doe's parent and natural guardian, "Jane Doe, Parent," filed this complaint against the Clerk. For simplicity, we will collectively refer to the plaintiffs as "Jane Doe." -2- Court Order' on its website without redacting Plaintiff JANE DOE MINOR'S first and last name." Jane Doe alleged that the Clerk's failure to redact her name from that published court document "caused [her] severe emotional and mental harm requiring a physician's care for treatment of the same." Jane Doe alleged that the Clerk's "actions in revealing" Jane Doe, Minor's identity to the public "were negligent and in derogation of the prohibitions and mandates of sections 92.56, 119.07(2), and 119.0714(1)(h), Florida Statutes." The Clerk filed a motion to dismiss the complaint and argued, in part, that the alleged negligent act of failing to redact Jane Doe, Minor's identity from a court document "is a function undertaken by the [C]lerk for the judiciary specifically and for the public generally," which thus shields the Clerk from liability under the sovereign immunity doctrine. More broadly, it argued that it did not owe a common law or statutory duty of care to Jane Doe, Minor. The Clerk further contended that the complaint has "not alleged and cannot allege any special duty owed by the Clerk to Jane Doe, Minor different from the duty owed [to] the general public, as no such special duty exists in Florida." The Clerk thus concluded that Jane Doe failed to allege a prima facie case for negligence, mandating dismissal of the complaint. 2 2As we will explain, whether the Clerk owes a duty of care to a plaintiff is a separate question from whether the Clerk is immune from suit. See Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 932 (Fla. 2004) ("If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached."). Here, the Clerk and the trial court conflated the two issues, as is common. See, e.g., City of Dunedin v. Pirate's Treasure, Inc., 255 So. 3d 902, 904-05 (Fla. 2d DCA 2018) ("The parties conflate the issues of tort liability and sovereign immunity. As noted earlier, the City claims entitlement to sovereign immunity because it owes no duty to Pirate's Treasure. However, there is a significant distinction 'between a lack of liability under established tort law and the presence of sovereign immunity. . . . [T]he absence -3- The trial court denied the Clerk's motion to dismiss in a written, nonfinal order. It first held3 that the Clerk owed a duty of care to Jane Doe, Minor, because she is part of a specific class of individuals—victims of sexual assault—that the legislature has chosen to protect by prohibiting the release of their identies to the public. The trial court reasoned that the duty arose from the operation of rule 2.420(d)(1)(iii)'s 4 mandate to maintain the confidentiality of information contained within a court record that protects the information of minor victims of sexual offenses, coupled with section 119.071(2)(h)(1)(b)'s directive that "any information that may reveal the identity of a person who is a victim of any sexual offense" is confidential. The trial court concluded that "the Clerk had no discretion, and was under a ministerial duty and obedience to [r]ule 2.420(d)(1)(xiii) and [section] 119.07(2)(h)(1)(b) to redact identifying information of the minor Plaintiff." It similarly determined that the Clerk was not entitled to sovereign immunity from liability because rule 2.420(d)(1)(iii) and section 119.07(2)(h)(1)(b) create a special duty of care to protect Jane Doe, Minor's identifying information. The Clerk filed an appeal of the nonfinal order denying its motion to dismiss on sovereign immunity grounds as a matter of law and a petition for writ of certiorari as to the trial court's denial of its motion to dismiss the complaint on judicial immunity grounds. of a duty of care between the defendant and the plaintiff results in a lack of liability, not application of immunity from suit.' " (alteration in original) (quoting Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009))). 3Although the trial court's analysis here was included under its judicial immunity analysis, whether the Clerk owes a duty of care to Jane Doe is relevant to both the sovereign immunity and judicial immunity analyses. 4The trial court's order contains an obvious scrivener's error. It cites to Florida Rule of Judicial Administration 2.420(d)(1)(xiii), rather than 2.420(d)(1)(b)(xiii). -4- "In order to establish that a defendant is liable for the tort of negligence, the claimant must establish that the defendant owed [the plaintiff] a duty of care, which it breached, thereby causing the claimant harm." Florez v. Broward Sheriff's Office, 270 So. 3d 417, 420 (Fla. 4th DCA 2019). "If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached." Pollock, 882 So. 2d at 932. Moreover, in the milieu of analyzing a negligence claim brought against an otherwise immune sovereign, our analysis as to whether a government agency had a legal duty of care owed to the plaintiff is "conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit." Pirate's Treasure, Inc., 255 So. 3d at 904 (quoting Wallace 3 So. 3d at 1044). We now address the threshold question of governmental duty of care. Our supreme court has made clear that a governmental duty of care in tort arises from statute or underlying common law. Trianon Park Condo. Ass'n v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985) ("[F]or there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct."); Dudley v. City of Tampa, 912 So. 2d 322, 325 (Fla. 2d DCA 2005) ("There can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances." (quoting Henderson v. Bowden, 737 So. 2d 532, 535 (Fla. 1999))); see also Dep't of Children & Family Servs. v. Chapman, 9 So. 3d 676, 689-93 (Fla. 2d DCA 2009) (discussing Trianon Park and the historical development of Florida's governmental liability law). Thus, in the absence of a statute or common law creating a governmental -5- duty of care, an individual cannot pursue a cause of action for negligence against a governmental entity. See Dudley, 912 So. 2d at 325. And a statute that confers discretionary power for a governmental entity to enforce laws for the general public does not equate to a cause of action for individual citizens. See Trianon Park Condo. Ass'n, 468 So. 2d at 917 ("For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care. . . . Further, legislative enactments for the benefit of the general public do not automatically create an independent duty to either individual citizens or a specific class of citizens."). With these principles in mind, we turn to whether the trial court erred by determining that the Clerk owed a duty of care to Jane Doe, Minor under the facts alleged in the complaint. In reviewing this nonfinal order, our precise, narrow focus is to review whether the trial court erred by determining that rule 2.420(d)(1)(B)(xiii) and section 119.071(2)(h)(1)(b) impose a legal duty of care on the Clerk to redact Jane Doe, Minor's name from the court document prior to its publication on the circuit court's publicly accessible website.5 See Trianon Park Condo. Ass’n, 469 So. 2d 917.6 To provide context to our analysis, both rule 2.420(d)(1)(B)(xiii) and section 119.071(2)(h)(1)(b) implement article I, section 24(a) of the Florida Constitution. See State v. Wooten, 260 So. 3d 1060, 1069 (Fla. 4th DCA 2018); Palm Beach Cty. Sheriff's Office v. Sun-Sentinel Co., 226 So. 3d 969, 972 (Fla. 4th DCA 2017). This 5We review de novo the trial court's purely legal determination that the Clerk owed a legal duty to Jane Doe to redact her name from the court document. See Pirate's Treasure, Inc., 255 So. 3d at 905. 6As an initial matter, we note that the parties do not contend that there is a common law duty of care asserted that is applicable to the Clerk under the specific facts alleged in the complaint. -6- constitutional provision grants "[e]very person . . . the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf." The general purpose of Chapter 119, known as the Public Records Act, is to "open public records so that Florida's citizens can discover the actions of their government." Palm Beach Cty. Sheriff's Office, 226 So. 3d at 972. But "[a]ccess to judicial branch records is governed by the rules and decisions of the Florida Supreme Court, not chapter 119, Florida Statutes." Wooten, 260 So. 3d at 1069. Accordingly, "[t]he Florida Supreme Court implemented [article I, section 24(a)] by enacting what is now [R]ule 2.420." Id. at 1071. The rule governs public access to judicial branch records and provides that "[t]he public shall have access to all records of the judicial branch of government" except in limited circumstances. See Fla. R. Jud. Admin. 2.420(a). Turning to the language of the provisions cited by the trial court, section 119.071(2)(h) provides that "[a]ny information that may reveal the identity of a person who is a victim of any sexual offense" is "confidential and exempt" from public inspection. Section 119.0714(1)(h), a related provision cited by Jane Doe in the complaint, provides that "[n]othing in [chapter 119] shall be construed to exempt from [public inspection] a public record that was made part of a court file and that is not specifically closed by order of court, except . . . [c]riminal intelligence information or criminal investigative information that is confidential and exempt" as provided in s[ection] 119.071(2)(h). And rule 2.420(d)(1)(B)(xiii) explains that "[t]he clerk of the court shall designate and maintain the confidentiality of any information contained within a court record," including "[p]rotected information regarding victims of child abuse or -7- sexual offenses," citing to sections 119.071(2)(h) and 119.0714(1)(h). Fla. R. Jud. Admin. 2.420(d)(1)(B)(iii). Section 119.071 and rule 2.420 set forth, among other things, a restriction on the release of identifying information of victims of sexual assault to the public. And rule 2.420 governs the responsibility and duties of the Clerk in designating and maintaining confidential information that is contained within court filings. But rule 2.420 is exactly that—a rule promulgated by our supreme court. It cannot prescribe a governmental duty of care in tort. See Trianon Park Condo. Ass'n, 468 So. 2d at 917 (explaining that governmental duties of care arise only from common law or statute); Dudley, 912 So. 2d at 325 (same); see also State v. J.A., 367 So. 2d 702, 703 (Fla. 2d DCA 1979) ("Substantive law prescribes duties and rights under our system of government, and the legislature is responsible for enacting such law. Procedural law concerns the means and methods to apply and enforce those duties and rights, and our supreme court determines procedural law through the promulgation of rules."). As it is obvious that rule 2.420(d)(1)(B)(xiii) is an invalid source of a legal duty owed to Jane Doe, Minor, by the Clerk, any reliance on this rule by the trial court was error as a matter of law. See Trianon Park Condo. Ass'n, 468 So. 2d at 917; Dudley, 912 So. 2d at 325. As to any statutory basis for a legal duty of care owed by the Clerk here, section 119.071(2)(h) does not impose a duty of care on the Clerk to redact Jane Doe's identifying information in documents filed by the court because Chapter 119 does not govern access to judicial branch records in the first instance. See Wooten, 260 So. 3d at 1069. It therefore cannot create a duty upon the Clerk in its actions relating to those -8- judicial branch records. See id.; see also Times Pub. Co. v. Ake, 660 So. 2d 255, 257 (Fla. 1995) ("[T]he clerks of the circuit courts, when acting under the authority of their article V powers concerning judicial records and other matters relating to the administrative operation of the courts, are an arm of the judicial branch and are subject to the oversight and control of the Supreme Court of Florida, rather than the legislative branch."). This is grounded in fundamental principles of separation of powers, as the Clerk is acting within its constitutional authority as an arm of the judicial branch. See Wooten, 260 So. 3d at 1069. Accordingly, for the reasons explained, the trial court erred by determining that section 119.071 and rule 2.420 created a legal duty of care in tort owed to Jane Doe in the cause of action set forth in the complaint. See Holodak v. Lockwood, 726 So. 2d 815, 817 (Fla. 4th DCA 1999) (concluding that the plaintiffs failed to prove that the clerk owed them a statutory or common-law duty of care in the plaintiffs' negligence suit against the clerk). In conclusion, Jane Doe's complaint failed to set forth a statutory or common law authority creating a legal duty of care owed to Jane Doe as set forth in the complaint. Because there can be no governmental liability without an applicable duty of care, the trial court erred by denying the Clerk's motion to dismiss Doe's complaint on this basis. See Pirate's Treasure, 255 So. 3d at 905-06 (holding that the trial court erred in denying the City of Dunedin's motion to dismiss a negligent misrepresentation claim against it because the City of Dunedin did not owe a common law or statutory duty of care to the plaintiff). In case number 2D19-2368, we reverse the trial court's order denying the Clerk's motion to dismiss on sovereign immunity grounds to the extent that it determined that the Clerk owed a legal duty pursuant to rule 2.420(d)(1)(B)(xiii) and -9- section 119.071(2)(h)(1)(b). On remand, the trial court shall dismiss Jane Doe's complaint without prejudice to her right to file an amended complaint. See World Class Yachts, Inc. v. Murphy, 731 So. 2d 798, 800 (Fla. 4th DCA 1999). In case number 2D19-2620, we dismiss the Clerk's petition for writ of certiorari to review the trial court's denial of its motion to dismiss on judicial immunity grounds. See Moore v. Dep't of Corr., 833 So. 2d 822, 824-25 (Fla. 4th DCA 2002) (declining to reach issue of whether governmental agency was protected by quasi- judicial immunity because it determined that the governmental agency did not owe a duty of care to the plaintiff in her negligence claim). We conclude by noting that we are mindful of the important concerns set forth by amicus curiae in its thoughtful brief. Our decision today is no reflection as to the seriousness of the harm asserted by Jane Doe in her complaint, nor should it be construed, in any way, as a minimization of the great importance of protecting victims of crimes. Reversed and remanded; petition dismissed. NORTHCUTT and CASANUEVA, JJ., Concur. - 10 -