Invoking "the Rule" in Administrative Proceedings: Florida Industrial Power Users Group v. Art Graham.

• Author: Dailey, Virginia

Referred to simply as "the rule," the Florida Evidence Code allows a party to request a court to exclude a witness from the courtroom to prevent the witness from hearing the testimony of other witnesses. (1) "Witness sequestration is designed to ensure fairness at trial by avoiding 'the coloring of a witness's testimony by that which he has heard from other witnesses who have preceded him on the stand.'" (2)

The rule of witness sequestration has roots dating back to the days of the Bible. In the biblical story, two elders lusted after the beautiful Susanna and propositioned her. When she declined their proposition, the men publicly accused her of having an adulterous meeting in her husband's garden with another man. Daniel challenged the accusations of the two men, saving her from conviction:

"Are you such fools, you sons of Israel? Have you condemned a daughter of Israel without examination and without learning the facts?" ... And Daniel said to them, "Separate them far from each other, and I will examine them."

And when they were separated from each other he summoned one of them and said, ... "Now then, if you really saw her tell me this: Under what tree did you see them being intimate with each other?" He answered, "Under a mastic tree.. "

Then he put him aside and commanded them to bring the other, and he said to him, ..."Now then, tell me under what tree did you catch them being intimate with each other?" He answered, "Under an evergreen oak.. "

Then all the assembly shouted loudly and blessed God.... And they rose against the two elders, for out of their own mouths Daniel convicted them of bearing false witness .... (3)

The story of Susanna has been cited numerous times by courts in support of the importance of sequestration of witnesses: to prevent falsification and to uncover fabrication that has already taken place.

Witness sequestration has been part of the common law in Florida for more than a century. (4) It was codified as part of the Florida Evidence Code in 1990 in F.S. [section]90.616. However, the rule is not absolute; Florida courts have broad discretion as to when witness sequestration should be granted. The right of witness sequestration "is subject to the trial court's sound discretion." (5) The court will generally evaluate whether the complaining party is prejudiced by the presence of the witness. (6)

Sequestration of Witnesses in Administrative Proceedings

The rules of evidence do not strictly apply in Florida administrative proceedings. Dating back to the early days of administrative law in Florida, the formalities of court proceedings are loosened in administrative proceedings. (7) Administrative proceedings "are not controlled by strict rules of evidence and procedure." (8)

As early as 1966, appellate courts gave wide discretion to administrative agencies in evaluating whether to impose witness sequestration. Sauls v. DeLoach, 182 So. 2d 304, 305 (Fla. 1st DCA 1966), involved an appeal of an agency order to deny re-employment to a junior college professor. The professor argued that the agency violated his rights by denying his request to sequester a witness. (9) The appellate court rejected the professor's argument, holding that the agency could have found that the violation of the rule of witness sequestration did not prejudice the professor's rights, and, thus, there was competent substantial evidence supporting the agency's decision. The court stated: "It is fundamental that the strict rules of evidence followed in formal court actions do not govern in proceedings before administrative bodies." (10)

Instant Case: Public Service Commission Denied Party's Request for Witness Sequestration

Florida Industrial Powers Users Group v. Graham, 209 So. 3d 1142 (Fla. 2017), stemmed from a petition filed by Florida Power and Light (FPL) for approval of a contractual arrangement relating to the Cedar Bay Power Plant. FPL sought approval from the Public Service Commission to purchase the Cedar Bay Power Plant so it could terminate its existing power purchase agreement with Cedar Bay. (11) The Florida Industrial Power Users Group (FIPUG) and the Office of Public Counsel (OPC) both intervened in the proceedings in opposition to FPL's petition. (12) Extensive discovery was conducted in the proceedings. Shortly before the opening of the evidentiary hearing, FPL and OPC filed a motion for approval of a settlement agreement; FIPUG objected to the...