Photo: Mark Foley
Politics and law in Florida
A potentially precedent-setting legal decision goes unexplained, and the case dissolves amid a scandal involving the prosecutor.
A little over a year ago, Chris Dorworth made history. The legislator-turned-lobbyist became the first private citizen indicted for violating Florida's Sunshine Law, which is meant to ensure government leaders make decisions in public. Prosecutors accused Dorworth of acting as a conduit between two board members of metro Orlando's toll road authority as part of an effort to oust the agency's executive director.
One of the board members, civil engineer Scott Batterson, was convicted of two bribery-related charges and sentenced to 7½ years in prison, though he is appealing his conviction. The other, Florida Hospital growth strategist Marco Pena, pleaded guilty to a misdemeanor Sunshine Law violation, paying a $500 fine and court costs.
The case against Dorworth, whose clients included a developer planning a housing subdivision near a future toll road interchange, was dismissed before it made it to trial. A county court judge in Orlando ruled that private citizens can't be charged with a crime under the Sunshine Law because doing so would violate their First Amendment right to free speech.
Jeff Ashton, the state attorney for Orange and Osceola counties, immediately vowed to appeal. Allowing private citizens to shuttle back and forth among government leaders to share intentions and strategies would undermine Florida's Sunshine Law, Ashton argued. "The entire state will benefit from this issue being further studied and resolved through the appellate process," he announced within hours of the trial court's decision.
Lobbyists from Miami to Tallahassee watched closely. The issue of how to reconcile a private individual's right to free speech with the public's interest in a transparent government was potentially precedent-setting - and could have posed a threat to the way lobbying is conducted in Florida.
The case likely to ascend the appellate ranks, perhaps even making it before the Florida Supreme Court. Instead, it was snuffed out before it even left Orlando.
On Aug. 24, the three Circuit Court judges who had been considering the appeal for months sided with the county court and upheld the dismissal.
The ruling itself wasn't necessarily a surprise. How the judges delivered it, however, raised eyebrows.
The appellate judges chose not to issue a written opinion explaining their thinking. Instead, they released only a three-word statement known as a "per curiam affirmed" (PCA) decision.
The lack of a written opinion left unclear whether they agreed that the First Amendment always trumps Florida's Sunshine Law or whether there were other issues in this case that might open the door to similar prosecutions in the future.
PCAs are common in appellate rulings. But lawyers and former judges say judges generally use them in cases with well-established precedent that don't need further legal clarification.
"Not every appeal needs or merits a written opinion," says Nicholas Shannin, an Orlando appellate attorney. "But when a case involves a novel issue interpreting public policy and the Sunshine Law, that is the type of case where one would hope for a written opinion, not a PCA."
A case in which judges are considering a new legal issue is "not an appropriate case for a PCA," adds Wendy Loquasto, an appellate attorney in Tallahassee. "I'm not sure why you wouldn't write an opinion." Through a court spokeswoman, all three judges declined to discuss why they chose not to write an opinion.
Belvin Perry, the former chief judge for the Orange-Osceola circuit, believes the judges' rationale may have been logistical - the circuit courts are so underfunded by the Florida Legislature, he says, that judges may feel they don't have time to write appellate opinions.
But the case had been saturated with politics from the beginning. Ashton, one of central Florida's highest-ranking Democrats, was prosecuting Dorworth, one of the region's most prominent Republicans, who had been in line to become Speaker of the Florida House of Representatives before he unexpectedly lost re-election. The three circuit court judges were all appointed by Republican governors - one each by Jeb Bush, Charlie Crist and Rick Scott. The county court judge who initially threw out the charge was also appointed by Scott.
The lack of a written opinion made it more difficult for Ashton's office to appeal to a higher court. Some appellate lawyers say he still had several legal options available to continue pressing the case. But Ashton chose to surrender - two days after the appellate ruling came down, his office announced that it would not file any further motions or make any attempt to appeal. The case was finished.
Ashton's decision to abandon the case came as he was mired in a personal scandal - one that Dorworth and his allies had been busy inflaming.
Just days earlier, the 58-yearold married father of seven, who has three young children with his current wife and four adult children from previous marriages, had been exposed as a member of Ashle Madison, the website aimed at men and women looking to cheat on their spouses. Ashton's personal information was included in the membership data stolen from the website by hackers and posted online. The revelation forced Ashton to publicly apologize to his wife and children. He said he regretted "giving ammunition to those who seek to discredit the work our office does."
Ashton's use of Ashley Madison was first reported by the East Orlando Post, a website owned by a Republican political operative who had been sympathetic to Dorworth in the past. The site once described Ashton's attempted prosecution of Dorworth as "bizarre, seemingly unfair and legally indefensible."
After the story was posted, Dorworth's lead attorney in the Sunshine Law case, Richard Hornsby, sent a document containing information on Orlando-area Ashley Madison users - including Ashton - to other local reporters. Dorworth himself ridiculed Ashton on Facebook as a "pervert."
Brook Hines, a Democratic strategist, says she suspects Ashton's involvement in the Ashley Madison site was likely unearthed by Dorworth or his supporters and leaked in order to "put pressure on Ashton to back off."
Jacob Engels, the Republican operative who owns the East Orlando Post, says Dorworth loyalists didn't feed him the scoop. But he agrees that the scandal prompted Ashton to tap out because, Engels says, Ashton no longer had the moral credibility needed for the case.
Ashton did not respond to interview requests and would not answer questions submitted in writing. His office would not directly address why it chose to stop contesting the case, but Ashton's spokeswoman, Angela Starke, says the Ashley Madison controversy had no bearing on the decision to give up the case.
Ashton's chief investigator, Richard Wallsh, notes that the decision leaves room for other prosecutors around Florida to pursue similar charges in the future. "The Legislature is on notice that the Sunshine Law may need to be amended to make specific provision for such prosecutions in the future," Wallsh says.
For his part, Dorworth says he doubts the scandal prompted Ashton to give up, though he says the case was "an obviously political prosecution" and an "unconstitutional witch hunt."
"Charging somebody with a crime for voicing their opinion to public officials is straight out of the old Soviet 'communist bloc' playbook," Dorworth says.