LITTLEJOHN Contract Illegal?; Waives Jury Trial, Attorney Fees
A $108,000+ contract for consulting on "mobility" waives our Nation's Oldest City's right to jury trial and right to attorney fees.
Once again, City of St. Augustine City Attorney ISABELLE CHRISTINE LOPEZ has failed to do her job, agreeing to the "form and legal sufficiency" a contract that waived our City's right to jury trial and to seek attorney fees under Florida civil procedure and appellate rules.
The late U.S. Supreme Court Chief Justice William Rehnquist said our right to jury trial is a "bulwark against oppression."
The Seventh Amendment to our United States Constitution mandates:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common l
Article I, Section 24 of our Florida Constitution states:
SECTION 22. Trial by jury.—The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
Our Florida Rules of Civil Procedure state:
1.430 Demand for Jury Trial, Waiver
(a) Right Preserved. The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.
The only "waiver" recognized in the rule is by failing to ask for a jury trial in a responsive pleading.
Disdaining, disrespecting and disregarding the fundamental right to jury trial, which Chief Justice William Rehnquist said our right to jury trial is a "bulwark against oppression," on April 22, 2016, City of St. Augustine City Manager JOHN PATRICK REGAN, P.E. and City Attorney ISABELLE CHRISTINE LOPEZ compliantly waived the right to jury trial in the LITTLEJOHN ENGINEERING ASSOCIATES contract for mobility planning.
REGAN and LOPEZ also waived the right to seek attorney fees in the event of litigation.
Every single draft of the contract contained the obnoxious provision -- five of them, and the signed final copy, too. Commissioners were not told of the waiver.
Leaving a mess behind with an unbalanced advisory committee and no public comment allowed at its initial meeting, REGAN is gone for a month-long trip to the Iberian peninsula with his family. Text messages to REGAN about this and other subjects have not been answered.
It is a contract violation of public policy, and void ab initio for any government to waive its right to jury trial and right to seek attorney fees. See Restatement of Contracts, 2d, Sec. 178 (Contract violation of public policy); U.S. Const., Amendment VII, Florida Constitution, Article I, Sec, 22; Florida .CivP. 1.430.
The right to trial by jury is considered fundamental. See Torres-Arboledo v. State, 524 So. 2d 403, 411 n.1 (Fla.), 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988) (and cases collected).
Corporate contractual waivers of jury trial in a civil case are both valid and enforceable. See Central Inv. Associates, Inc. v. Leasing Service Corp., 362 So. 2d 702 (Fla. 3d DCA 1978); Palomarez v. Ocean Bank of Miami, 574 So. 2d 1159 (Fla. 3d DCA 1991); Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla. 5th DCA 1992).
But whoever heard of a government being asked to waive -- and waiving -- its right to jury trial?
It was 26 years ago that Department of Labor Associate Chief Administrative Law Judge James L. Guill and I published an article in the American Bar Association's Judges' Journal -- "The Downwide to Alternative Dispute Resolution" -- inter alia warning of jury trial waivers, mandatory arbitrary arbitration provisions and other cramdown alternative dispute resolution provisions violating peoples' rights. But Judge Jim Guill and I never anticipated a government would agree to waive the rights of We, the People to jury trials. This is sickening.
Even former City Attorney RONALD WAYNE BROWN became sensitized to the issue, crossing out arbitration provisions. His inept understudy, ISABELLE CHRISTINE LOPEZ, is not up to the job.
The rubber-stamping, thoughtless, reckless, reckless pro-corporate bias in City Hall is a stench in the nostrils of our City.
City Commission has the right to cancel the Littlejohn contract with 45 days notice.
It should. Then let's renegotiate. We deserve a better deal.
LITTLEJOHN is a part of S&ME, an 1100-employee firm with locations in 30 places in the United States, one of the Nation's 100 largest design firms: here's the S&ME press release announcing their merger: