A subordinate judge who issued an opinion that was critical of his Gov. Ron DeSantis-appointed supervisor was sanctioned and suspended last Wednesday.
Administrative Law Judge (ALJ) John Van Laningham called out Division of Administrative Hearings Chief Judge and Director John MacIver in the footnotes of a decision. Van Laningham accused the DeSantis appointee of making improper “ex parte communications” in a case concerning a horse racing-and-betting track.
The supervising judge, MacIver, was strong-armed into office by the governor in February over the GOP-controlled Florida legislature’s surprisingly strong disapproval.
“I’ve talked to a lot of folks in the process, and there are a couple of areas where there was some concern,” said State Sen. Ed Hooper, a Republican. “I just didn’t have a level of comfort bringing that confirmation forward, because that has my name on it.”
Reporting at the time suggests that MacIver’s perceived deficiencies–and “concern” expressed by the Florida Senate–were his seven years’ worth of time spent as a lawyer and his lack of courtroom experience. Other concerns, however, sprung up as well. Per an article in the Tampa Bay Times:
[W]hat MacIver lacked in experience, he made up for in connections. Most of his time as a lawyer has been spent working for former Gov. Rick Scott or DeSantis, and he’s a chapter president of the Federalist Society, whose conservative judicial philosophy is shared by DeSantis.
During his interview with DeSantis and the Cabinet, MacIver raised eyebrows by repeating Federalist Society talking points and mentioning stripping away powers the administrative judges have held for decades.
In 2019, MacIver told DeSantis that his goal would be to hire “the correct [Administrative Law Judges] who have the correct judicial philosophy,” which he described as “apolitical.” At the time, MacIver led his local chapter of the Federalist Society, the most prominent and influential conservative legal organization in the country.
DeSantis eventually appointed MacIver anyway.
Van Laningham’s footnotes cut to the quick of MacIver’s own stated reason for being in charge of the obscure but powerful state agency.
According to ALJ Van Laningham, MacIver began reviewing other judges’ orders and commenting on them before they took effect–an extraordinary turn of events which suggests the Federalist Society’s MacIver has made good on his promises.
According to the Tampa Bay Times, MacIver has been engaged in such a review since he was appointed by DeSantis last October.
ALJ Van Laningham called attention to MacIver’s comments by writing that they “are, or might be, ex parte communications prohibited by” Florida law. The legalese term “ex parte” is Latin for “one-sided” and generally refers to communications between a judge and only one party to a case or controversy.
The Florida law on point reads, in relevant part:
34-17.016 Ex Parte Communications.
(1) A Commission member shall not initiate nor consider any ex parte communication relative to the merits of a pending referral proceeding by:
(a) A public employee or official engaged in prosecution or advocacy in connection with the matter;
(b) A party to the proceeding or any person who, directly or indirectly, would have a substantial interest in the proposed action of the Commission, or his or her authorized representative or counsel; or
(c) A referring agency or any other individual who has personal knowledge of the facts underlying the proceeding, or his or her authorized representative or counsel. Nothing in this subsection shall apply to advisory staff members who do not testify on behalf of the Commission in the proceeding or shall prohibit Commission members who are contacted by any of the above persons from referring them to Commission staff or the Commission Advocate.
Van Laningham, the ALJ, added that he was simply “erring on the side of caution” by putting his criticism in the footnotes of the horse track decision and said “any party desiring to rebut this communication shall be allowed to do so in accordance with” the relevant statute.
After that order was issued, however, Van Laningham was slapped with charges of “insubordination and misconduct.” His five-day suspension took effect last Wednesday. But the administrative law judge, a 20-year veteran known for his caustic orders, intends to fight the sanctions.
“[The department’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,” Van Laningham’s attorney Daniel Bean wrote.
“It is highly concerning that [the department] appears to take the position that an [Administrative Law Judge] is prohibited from exercising his independent decision-making authority to analyze and interpret a statute and determine its applicability,” Bean continued.
Administrative Law Judge Li Nelson, who co-authored the suspension recommendation, cast aspersions about Van Laningham’s true motivations, doubting “his assertion that he truly believed Judge MacIver’s comments to be ex parte communications.”
“There was no intent to attack the director’s practice,” Jackie Van Laningham, the judge’s daughter, an attorney who works for Bean, said in a statement. “We’ll move forward, but obviously our position is there was no misconduct or insubordination and no directive or order that was violated.”
[image via Joe Raedle/Getty Images]
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