Judge’s ruling favors Reams

“ The failure to provide an opportunity to be heard for these many months violated the Due Process Clause.”             -Federal District Judge Robert Hinkle

Lazaro Aleman
ECB Publishing, Inc.

In the case of suspended Jefferson County Clerk of Court Kirk Reams versus Governor Rick Scott and Florida Senate President Joe Negron, the federal judge who heard the lawsuit last month finally issued his written ruling on Tuesday, Nov. 6.
In the 13-page order granting Reams summary judgment against the two defendants, Federal District Judge Robert Hinkle, of the U.S. District Court for the Northern District of Florida, clearly lays down his position front and center in the first paragraph.
“This case presents a question under the Due Process Clause: whether an elected state official who has a property or liberty interest in his position may be suspended for more than a year without being afforded any opportunity to be heard,” Hinkle writes. “The answer is no.”
The judge notes that in Florida, a clerk of court may be removed from office with cause via a two-step process that involves suspension by the Governor and removal or reinstatement by the Senate.
Gov. Rick Scott suspended Reams on Oct. 18, 2017, following a Florida Department of Law Enforcement (FDLE) investigation that resulted in two charges against Reams.
The first was that Reams had
See REAMS page 3
misused his official position to enter the courthouse after hours “to engage in inappropriate conduct with a paramour.”
The second was that Reams “allowed the paramour unauthorized access to, and use of, a county laptop computer.”
The suspension, the judge underscores, occurred after the relationship between Reams and the paramour had ended.
“Indeed, she provided the information that led to the FDLE investigation,” Hinkle writes.
The judge doesn't dispute the right of the Governor and Senate to suspend or remove Reams from office. The court's issue is that Reams was never afforded an opportunity to defend himself, neither before or after the suspension.
“So,” writes the judge, “the status is this: Mr. Reams, an elected official who could be removed only for cause, has been suspended for more than a year based on allegations of misconduct, without being afforded any opportunity at all to be heard.”
The judge in the text of his ruling delves into the Due Process Clause in the 14th Amendment and whether it's applicable to Reams. The clause prohibits a state from depriving a person of life, liberty or property absent due process.
The legal question the judge asks is, did Reams have “a property interest” in his position as clerk, or “a liberty interest in defending against the Governor's allegations.”
In his exploration of the subject, the judge looks to case law and previous court rulings and determines that Reams does have property interest in his position as a clerk, a finding that the two defendants don't dispute.
The judge in his exploration next moves to the question of the liberty interest and whether it applies in Reams' case.
He concludes: “Mr. Reams’s suspension, together with the public airing of the allegations against him, deprived him of liberty, regardless of whether the suspension also deprived him of property.”
The due process clause, the judge continues, does not prevent a state from depriving a person of property or liberty. The state, however, must provide due process in connection with the deprivation, he writes.
The judge's conclusion: “The State of Florida has deprived Mr. Reams of his position for now more than a year. He has had no opportunity to be heard. He could easily have been provided an opportunity to be heard long ago—by the Governor, and also by the Senate. The failure to provide an opportunity to be heard for these many months violated the Due Process Clause. It is as straightforward as that.”
The judge finds the defendants' many arguments to the contrary to be incorrect and not worthy of discussion. A few, however, he proceeds to controvert.
One is that Reams was only suspended, not removed. Hence, goes the argument, he was not deprived of his constitutionally property interest. Nonsense, says the judge in so many words, citing legal precedent.
The defendants also err, the judge finds, when they argue that the state's suspension-and-removal procedure was in place prior to Reams taking the job, that he was aware of it, and that in taking the job he was subject to the procedure.
“The defendants,” writes the judge, “say they complied with state law and that this entitles them to prevail. But compliance with state law of course does not excuse a violation of the US Constitution.”
Likewise, the judge finds, the defendants fare no better with their more charitably cast assertion that “compliance with the pre-established procedures for suspending and terminating an employee constitutes all the process that is due.”
States the judge, “The procedure due Mr. Reams is established by the Due Process Clause, not by state law.”
The judge goes on to refute and dismiss several others of the defendants' assertions, including the one that Reams had in effect delayed the hearing when he filed the federal lawsuit in March 2018, days after the Senate adjourned and months after a jury had acquitted him of the misappropriation of the government computer.
“The assertion fails on the facts and the law,” the judge writes.
States the judge further down in the order, “The defendants’ assertion also does not square with the law. Mr. Reams was entitled to an opportunity to be heard at a reasonable time and in a reasonable manner. When the state denied him that right, he was entitled to seek redress in federal court, as he did. The state was not entitled to retaliate against Mr. Reams for filing this action. Indeed, the state’s assertion that it can prolong Mr. Reams’s suspension because he filed this lawsuit comes dangerously near an additional constitutional violation.”
The judge comes down on the Governor in particular: “The Governor says he did all he was required to do – that he was not required to provide an opportunity to be heard before the suspension, that his role ended at that point, and that the responsibility for the further delay rests with the Senate. But the Governor initiated the process that deprived Mr. Reams of his property and liberty without the constitutionally required due process of law. More importantly, the Governor is the state official who can set it right—who can withdraw the suspension at the stroke of a pen, or who can afford Mr. Reams an opportunity to be heard on whether the suspension should continue.”
The bottom line, the judge rules, is that Reams' right to due process was violated when he was denied an opportunity to be heard before or promptly after his suspension.
Hinkle orders that by Nov. 30, the Governor must vacate his order suspending Reams unless the Governor has afforded Reams a hearing or the Senate has either reinstated or removed him following an appropriate hearing.
The judge adds the caveat that his order does not speak to the substantive grounds of the suspension, which it leaves to the Governor and Senate to decide.
States the order, “Whether Mr. Ream's conduct warranted suspension, and whether the conduct warrants termination, are questions of state law, not at issue in federal litigation.”
Attorney David Collins, who represents Reams, characterized the judge's order as “a much bigger victory” than he had expected.
“This is a scorching order against the Governor and the Senate,” Collins said last week.