                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                      NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Petitioner,                      DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D13-4937

ZOLTAN BARATI and
MOTOROLA, INC.,

      Respondents.

_____________________________/

Opinion filed October 7, 2014.

Prohibition - Original Jurisdiction.

Pamela Jo Bondi, Attorney General, Russell S. Kent, Special Counsel, and William
E. Foster, Tallahassee, for Petitioner.

David W. Moyé, Tallahassee, for Respondent Zoltan Barati.

Brandice Dickson and Brian A. Newman of Pennington, P.A., Tallahassee, for
Respondent Motorola.

William W. Large, Florida Justice Reform Institute, Tallahassee; John T. Boese,
pro hac vice and Kayla Stachniak Kaplan, pro hac vice of Fried, Frank, Harris,
Shriver & Jacobson, LLP, Washington, DC, for Amicus Curiae The Florida
Justice Reform Institute in support of Petitioner.

Gary M. Farmer, Jr., Mark S. Fistos, and Gary M. Farmer, Sr. of Farmer, Jaffe,
Weissing, Edwards, Fistos, Lehrman, P.L., Ft. Lauderdale, for Amicus Curiae
Florida Justice Association in support of Respondent, Zoltan Barati.
VAN NORTWICK, J.

      The State files a petition for writ of prohibition seeking to prohibit the trial

court from holding a hearing on a motion to strike a notice of dismissal filed by

respondent Zoltan Barati. For the reasons that follow, the petition for a writ of

prohibition is denied as premature.

      In September 2009, Barati filed a qui tam action against Motorola, Inc.,

pursuant to the Florida False Claims Act, section 68.081 et seq., Florida Statutes.

Barati alleged that Motorola had contracted with the Florida Department of Law

Enforcement (FDLE) to produce a fingerprint identification system and, according

to the complaint, Motorola was unable to produce a system satisfying all of the

requirements of the contract. The complainant further alleges that, despite its

failure to satisfy the requirements of the contract, Motorola was paid under the

contract and FDLE contracted with another vendor to secure a working system.

      The Florida False Claims Act authorizes a private person or the State to

initiate a civil action against a person or company who knowingly presents a false

claim to the State for payment. The private citizen who brings an action, i.e., the

“relator,” sues on behalf of himself and the State. Such an action is called a qui

tam action from the Latin phrase: “qui tam pro domino rege quam pro se ipso in

hac parte sequitur.” Black’s Law Dictionary translates the phrase as: “who as

well for the king as for himself sues in this matter.” The qui tam complaint is filed

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under seal and is not immediately served on the defendant, so that the Department

of Legal Affairs, on behalf of the State, may investigate the allegations made in the

complaint and decide if it wishes to become a party to the action. If it does, then

the State takes over primary responsibility for the action; but if it declines then “the

person who initiated the action has the right to conduct the action.” §§ 68.083(2),

(3) and (6), and 68.084(1) and (3), Fla. Stat. The State may later be permitted to

intervene after initially declining to do so, but only “upon showing of good cause.”

§ 68.084(3), Fla. Stat. The Florida False Claims Act specifically provides that a qui

tam action shall be governed by the Florida Rules of Civil Procedure.                 §

68.083(2), Fla. Stat.

      After being served a copy of the qui tam complaint and relevant materials,

the State of Florida conducted an investigation, pursuant to section 68.083(3),

Florida Statutes. The State declined to join the qui tam action, which Barati

thereafter prosecuted for approximately three and a half years. Without formally

intervening in the cause, the Attorney General, on behalf of the State, filed a notice

of voluntary dismissal of the action on July 18, 2013. The State asserted in its

notice that it had the unilateral right to dismiss the action on authority of section

68.084(2) (a), notwithstanding any objections that Barati may have.




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       Barati thereafter moved to strike the notice of voluntary dismissal arguing

inter alia that dismissal did not occur automatically, as the State was suggesting.

The motion to strike was set for hearing to be held on October 14, 2013.

       The State then filed in this court an emergency petition for a writ of

prohibition arguing that the circuit court lost jurisdiction upon the filing of the

notice of voluntary dismissal by the State. By order dated October 3, 2013, this

court denied the petition as premature. The order, in pertinent part, stated:


       The petition for writ of prohibition is denied as premature. See
       Campbell v. Lungstrum, 732 So. 2d 437 (Fla. 1st DCA 1999)
       (denying prohibition relief for failure to show that the jurisdictional
       argument being presented had first been presented to the trial court of
       its consideration); Tabb ex rel. Tabb v. Fla. Birth-Related
       Neurological Injury Comp. Ass’n, 880 So. 2d 1253, 1257 (Fla. 1st
       DCA 2004) (quoting Sun Ins. Co. v. Boyd, 105 So. 2d 574, 575 (Fla.
       1958)) (“a tribunal always has jurisdiction to determine its own
       jurisdiction.”).

On remand, the State moved to cancel the hearing previously set for October 14,

2013, on Barati’s pending motion to strike the notice of voluntary dismissal.    In

that motion to cancel hearing, the State set forth extensive argument as to why it

believed the circuit court no longer had jurisdiction under Florida False Claims

Act.

       The circuit court denied the motion without addressing the arguments raised

by the State in its motion to cancel the hearing or otherwise addressing its

jurisdiction. The order provided:

                                          4
            THIS MATTER came before the Court on the Motion by the
      State of Florida, Department of Legal Affairs to cancel the hearing
      scheduled for October 14, 2013. Having considered the Motion and
      being otherwise fully advised in the premises,
            It is hereby ORDERED and ADJUDGED as follows:
            1. The Attorney General's Motion is DENIED.
            DONE and ORDERED in Chambers, Tallahassee, Leon County
      Florida this 11th day of October, 2013.

Thus, the hearing on the motion to strike was to be held as previously scheduled.

      The instant emergency petition for a writ of prohibition was immediately

filed in this court upon the denial of the State’s motion to cancel the hearing.

Barati was ordered to show cause why prohibition should not be granted. In his

response, Barati argued inter alia that the instant petition for a writ of prohibition

is premature. At oral argument before this court Barati suggested, as did the

Attorney General, that this court should consider the issue of whether the trial

court was immediately divested of jurisdiction to further proceed in the case upon

receipt of the Attorney General’s notice of dismissal.         We must decline that

invitation as we lack the constitutional authority to do so.

      Prohibition is “an extraordinary writ by which a superior court may prevent

an inferior court or tribunal, over which it has appellate and supervisory

jurisdiction, from acting outside its jurisdiction.” Mandico v. Taos Construction,

Inc., 605 So. 2d 850, 853-54 (Fla.1992); see Southern Records & Tape Serv. v.

Goldman, 502 So. 2d 413, 414 (Fla.1986); English v. McCrary, 348 So. 2d 293,

296 (Fla. 1977); State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 503-
                                           5
04, 192 So. 175 (1939). The writ is very narrow in scope and operation, and it

must be employed with caution and utilized only in emergency cases to prevent an

impending injury where there is no other appropriate and adequate legal remedy.

Mandico, 605 So. 2d at 853-54.        There is no precedent for using this writ as a

means of considering a matter not ripe for review.

      The circuit court’s order denying the motion to cancel the hearing does not

rule on the question of whether the circuit court has jurisdiction. That is, the order

denying the request to cancel the hearing was not a substantive order on the

question of jurisdiction. In setting a hearing, and then refusing to cancel it, the

circuit court merely has preserved for itself the opportunity to rule explicitly on the

question of its jurisdiction at a later point. After all, the purpose of the hearing is to

rule on the motion to strike the notice of voluntary dismissal; that motion to strike

is still pending. As is the case in other circumstances where it is asserted that a

court lacks jurisdiction, a court is allowed to proceed until it determines for itself

whether it has jurisdiction. “[A] tribunal always has jurisdiction to determine its

own jurisdiction.” Sun Ins. Co. v. Boyd, 105 So. 2d 574, 575 (Fla. 1958); see Tabb

ex rel. Tabb v. Fla. Birth-Related Neurological Injury Compensation Ass’n, 880

So. 2d 1253, 1256-1257 (Fla. 1st DCA 2004).

      Simply asserting a claim that jurisdiction does not exist does not make it so.

A trial court must rule on such assertion.         As we explained in Campbell v.

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Lungstrum, 732 So. 2d 437 (Fla. 1st DCA 1999), this court will not issue a writ of

prohibition when the “petitioner has failed to show that the jurisdictional argument

being presented to this court has first been presented to the trial court for its

consideration.” By allowing argument on its own jurisdiction, the trial court did

not implicitly assert it possessed jurisdiction other than that necessary to decide the

preliminary question of whether it possessed the jurisdiction to determine its

jurisdiction. Similarly, this court, by hearing argument on the propriety of the

issuance of a writ of prohibition, has not implicitly determined that a writ is

appropriate in this case. In fact, quite the opposite is true.

      Because the trial court has not considered the merits of the State’s notice of

dismissal or the Relator’s motion to strike the motion to dismiss, if we were to

address the question of whether the State can unilaterally dismiss the instant qui

tam proceeding, or whether the circuit court immediately was divested of

jurisdiction upon filing of the notice of dismissal, this court would be rendering an

advisory opinion. Under the Florida Constitution, only the Florida Supreme Court

has the jurisdiction to issue advisory opinions. Art. V., §3(b)(10), Fla. Const.; see

Fla. House of Representatives v. League of Women Voters, 118 So. 3d 198, 207

(Fla. 2013). Thus, were this court to consider the merits of the notice to dismiss

prior to an explicit ruling from the trial court on the scope of its jurisdiction, this

court would be acting unconstitutionally. As a court of limited jurisdiction, this

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court, in the words of Justice Stevens, should not place “a higher value on the

rendition of a volunteered advisory opinion than on the virtues of judicial

restraint.” Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472

U.S. 445, 462, 105 S. Ct. 2768, 2777, 86 L. Ed. 2d 356 (1985) (Stevens, J.,

concurring in part and dissenting in part).

      Until the trial court specifically rules on its jurisdiction, any proceeding in

this court to review the lower court’s jurisdiction is premature and hence beyond

our jurisdiction. Accordingly, the petition for a writ of prohibition is DENIED.

BENTON, J., CONCURS, AND THOMAS, J., DISSENTS WITH WRITTEN
OPINION.




                                          8
THOMAS, J. Dissenting.

      I respectfully dissent. Because the Attorney General’s dismissal of this

action deprived the trial court of jurisdiction, we should grant the writ of

prohibition.

      The action here was filed in 2009. Under section 68.084(2)(a), Florida

Statutes (2009), the Legislature has granted the Attorney General the sole power to

dismiss a qui tam action: “The department [of Legal Affairs] may voluntarily

dismiss the action notwithstanding the objections of the [relator].” (Emphasis

added.) There is no time limitation or other substantive limitation whatsoever on

the Attorney General’s authority to control qui tam litigation.          The Attorney

General has the unfettered power to prosecute or dismiss such an action, and is the

real party in interest, regardless of her decision to intervene. United States ex. rel.

Milam v. Univ. of Texas M.D. Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir.

1992); United States ex. rel. Dimartino v. Intelligent Decisions, Inc., 308 F. Supp.

2d1318, 1322, n.8 (M.D. Fla. 2004).            Because the Attorney General has the

unfettered authority to dismiss qui tam litigation, her voluntary dismissal here

divested the trial court of jurisdiction to take any further action in this matter, even

assuming the Florida Rules of Civil Procedure control, because, as unequivocally

held by the Florida Supreme Court in Pino v. Bank of New York, 121 So. 3d 23,




                                           9
32 (Fla. 2013), “[i]t is well accepted that the effect of a plaintiff’s voluntary

dismissal under rule 1.420(a)(1) is jurisdictional.” (Emphasis added.)

      The majority opinion’s refusal to grant the writ contradicts the plain text of

the qui tam statute and the decision in Pino, and allows the trial court to conduct a

hearing on a matter over which it has no jurisdiction. Further, the majority opinion

allows the trial court to conduct a hearing which violates the strict separation of

powers requirement of Article II, section three of the Florida Constitution and

conflicts with the supreme court’s holding in Avatar Development Corporation v.

State, 723 So. 2d 199, 201 (Fla. 1998), because the trial court’s action here to

consider the relator’s motion to strike the Attorney General’s dismissal improperly

interferes with the Executive Branch’s sole authority to prosecute qui tam litigation

on behalf of the State of Florida.

      Federal courts have duly noted that to allow courts to interfere with the

government’s power to prosecute and control qui tam actions by requiring “good

cause” before dismissal, where the Attorney General has declined to intervene,

would put the similar federal statute on “constitutionally unsteady ground.” See

United States ex. rel. Ridenour v. Kaiser-Hill Co. LLC, 397 F.3d 925, 934-35 (10th

Cir. 2005), cert. den., 546 U.S. 816 (2005). Unlike the Florida qui tam statute, the

federal provision specifically authorizes a judicial hearing before the government

may dismiss the action, but even under this language, courts have recognized that

                                         10
the federal government possesses nearly an “unfettered right to dismiss a qui tam

action.” Swift v. United States, 318 F.3d 250, 253 (D.C. Cir. 2003).

      Prohibition is precisely the correct remedy to avoid this type of jurisdictional

error which improperly cabins prosecutorial discretion and thereby violates

Article II, section three. See State v. Bloom, 497 So. 2d 2 (Fla. 1986). I would

grant the petition for writ of prohibition to preclude further action by the trial court

in this matter.




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