DAVID ANSGAR NYBERG AND RICHARD CHARLES GASTON, APPELLANTS,
v.
KENNETH R. SNOVER AND HARRY K. SINGLETARY, JR., APPELLEES
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Appellants challenged a trial court's sua sponte transfer of their declaratory judgment action from Leon County to Marion County based on the "sword-wielder" exception to Florida's venue rules. The court reversed, holding that the sword-wielder doctrine did not apply and that plaintiffs have the prerogative to choose venue in the county where a state agency has its official headquarters.
The court reversed the transfer order, holding that the "sword-wielder" exception did not apply because the complaint did not allege a direct and imminent threat to constitutional rights. The court held that plaintiffs retain the prerogative to choose venue in the county where a state agency has its official headquarters, and the trial court lacks authority to mandate application of the sword-wielder doctrine or to waive the state agency's venue privilege.
[1] An action against a state agency or officer must ordinarily be brought in the county where the agency has its official headquarters.
[2] The "sword-wielder" doctrine applies only where direct judicial protection is sought from an unlawful invasion of a constitutional right directly threatened in the county…
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Join FLexlaw to unlock all legal intelligence“applies only where direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, directly threatened in the county where the suit is instituted”
Defines the scope of the sword-wielder exception to venue rules
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Join FLexlaw to unlock all legal intelligenceAppellants Nyberg and Gaston filed a declaratory judgment action against state officers Snover and Singletary. At least one appellant was incarcerated…
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SMITH, Judge.
Appellants appeal the trial court's order, sua sponte, transferring venue of their declaratory judgment action from Leon County to Marion County, where at least one of the appellants is incarcerated, pursuant to the “sword-wielder” exception to the state s common law venue privilege. We reverse.
Ordinarily, an action against a state agency or officer must be brought in the county where the agency has its official headquarters. Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1977).
An exception to this general rule is the “sword-wielder” doctrine, which “applies only where direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, directly threatened in the county where the suit is instituted.” Florida Public Service Commission v. Triple “A” Enterprises, 387 So. 2d 940, 942 (Fla.1980).
The test is whether the state is the original sword-wielder, and the plaintiffs suit a shield against the state’s thrust. If so, a suit may be maintained in the county where the blow has been or is about to be struck. Florida Public Service Commission v. Triple “A”, 387 So. 2d at 942, citing Department of Revenue v.
First Federal Savings and Loan Association of Ft. Meyers, 256 So. 2d 524, 526 (Fla. 2d DCA 1971).
However, where the state’s action does not amount to an unlawful invasion of a constitutional right which is being directly and immediately threatened, the sword-wield exception will not be applied. Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So. 2d 940 (Fla.1980); Department of Revenue v.
First Federal Savings & Loan Association of Ft. Meyers, 256 So. 2d 524 (Fla. 2d DCA 1971); and Dowdy v. Lawton, 72 So. 2d 50 (Fla.1954).
An examination of appellant’s complaint reveals that it does not allege the state’s direct and imminent threat to their constitutional rights, and the state’s alleged action does not rise to the level allowing application of the sword-wielder exception.
Moreover, it is the plaintiff’s prerogative to make the initial choice of venue in accordance with the applicable venue statute. Chrysler Credit Corp. v. Laliberty, 506 So. 2d 67, 68 (Fla. 1st DCA 1987).
Contrary to the trial court’s construction, there appears to be no authority for the proposition that application of the sword-wielder doctrine is mandatory, so that a plaintiff must choose the county where the blow has been, or is about to be struck, rather than bring suit in the county where the agency has its official headquarters (in this case Leon County).
Nor do we find authority for the trial court to waive in behalf of the state agency its venue privilege of being sued in the county in which it has its official headquarters. For these reasons, the trial court’s order transferring venue was error. REVERSED and REMANDED for further proceedings consistent with this opinion.
BOOTH and ALLEN, JJ., concur.
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Dep't OF Cmty. Affairs v. Holmes Cnty., 668 So. 2d 1096 (Fla. 1st DCA 1996)…atens an individual’s constitutional rights. In that limited circumstance, an individual may bring suit in the county where the alleged wrong occurs. Florida Public Service Comm’n v. Triple “A” Enterprises, Inc., 387 So. 2d at 942; Nyberg v. Snover, 604 So. 2d 894 (Fla. 1st DCA 1992). The “sword-wielder” exception does not apply in suits seeking injunctive relief against political funding decisions. Chiles v. Children A B C D E and F, 589 So. 2d 260, 263 n. 4 (Fla.1991). The Plaintiff Counties are not “indivi…
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The Sch. Bd. OF Osceola Cnty. v. State Bd. OF Educ., 903 So. 2d 963 (Fla. 5th DCA 2005)…ly where a state agency directly threatens an individual’s constitutional rights. In that limited circumstance, an individual may bring suit in the county where the alleged wrong occurs. Triple “A” Enters., Inc., 387 So. 2d at 942; Nyberg v. Snover, 604 So. 2d 894 (Fla. 1st DCA 1992). OCSB is a county school board. It is not “an individual” within the meaning of the “sword-wielder” exception whose constitutional rights have been directly threatened by the State Board’s actions. See Dep’t of Cmty. Affairs v. H…
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The Levy Cnty. Sch. Bd. v. Bowdoin, 607 So. 2d 479 (Fla. 1st DCA 1992)…ught against a state agency or subdivision,1 venue appropriately lies in the county where the agency or subdivision maintains its principal headquarters. Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 363-64 (Fla.1977); Nyberg v. Snover, 604 So. 2d 894 (Fla. 1st DCA 1992). The venue provisions of Chapter 47, Florida Statutes, do not abrogate this common-law privilege. Revell v. Paschal, 564 So. 2d 218, 219 (Fla. 4th DCA 1990). When, however, a suit involves two defendants residing in different cou…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)
- Fla. Pub. Serv. Comm'n v. Triple "A" Enters., Inc., 387 So. 2d 940 (Fla. 1980)
- Dep't OF Revenue v. First Fed. Sav. & Loan Ass'n OF Fort Myers, 256 So. 2d 524 (Fla. 2d DCA 1971)
- Dowdy v. Lawton, 72 So. 2d 50 (Fla. 1954)
- Chrysler Credit Corp. v. Laliberty, 506 So. 2d 67 (Fla. 1st DCA 1987)