IN THE SUPREME COURT OF FLORIDA Case No. SC

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC MIKE HARIDOPOLOS, in his official capacity as the Florida Senate President, Petitioners, v. 1st DCA Case No. 1D L.T. Case No. 09-CA-4534 CITIZENS FOR STRONG SCHOOLS, INC.; FUND EDUCATION NOW; EUNICE BARNUM; JANIYAH WILLIAMS; JACQUE WILLIAMS; SHEILA ANDREWS; ROSE NOGUERAS; and ALFREDO NOGUERAS, Respondents. / RESPONDENTS BRIEF ON JURISDICTION JODI SIEGEL JON L. MILLS NEIL CHONIN Boies Schiller & Flexner Southern Legal Counsel, Inc. 100 SE Second Street 1229 NW 12th Avenue Miami, Fl Gainesville, Florida TIMOTHY MCLENDON DEBORAH CUPPLES P.O. Box SW 13th St, G-327 Gainesville, FL Gainesville, FL 32608

2 Table of Contents Table of Contents... 2 Table of Citations... 3 Jurisdictional Statement... 4 Statement of Case and Facts... 4 Summary of Argument... 5 Argument... 6 I. THIS COURT HAS DISCRETIONARY JURISDICTION BASED ON THE FIRST DCA S DECISION THAT EXPRESSLY CONSTRUED A PROVISION OF THE FLORIDA CONSTITUTION... 6 II. IT IS QUESTIONABLE WHETHER THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE FIRST DCA S CERTIFIED QUESTION... 7 III. THIS COURT SHOULD ACCEPT DISCRETIONARY JURISDICTION... 9 Conclusion Certificate of Service Certificate of Compliance

3 Table of Citations CASES Armstrong v. City of Tampa, 106 So. 2d 407 (Fla. 1958)... 6 Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)... 7 Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832 (Fla. 2007)... 8, 9 Haridopolos, et al. v. Citizens for Strong Schools, Inc., 78 So. 3d 605 (Fla. 1st DCA 2011)... 4, 6-9 Haridopolos, et al. v. Citizens for Strong Schools, Inc WL (Fla. 1st DCA 2011)... 7, 8 FLORIDA CONSTITUTION Art. V, 3(b), Fla. Const Art. V, 3(b)(3), Fla. Const , 10 Art. V, 3(b)(4), Fla. Const.... 4, 5, 7, 10 Art. IX, 1, Fla. Const , 9, 10 FLORIDA RULES Fla. R. App. P (a)(2)(A)(ii) Fla. R. App. P (a)(2)(A)(v)... 4, 5 3

4 Jurisdictional Statement Respondent agrees that this Court has discretionary jurisdiction under Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P (a)(2)(A)(ii), which provide that this Court may review decisions that expressly construe a provision of the Florida Constitution. Respondent believes it is questionable whether this Court has discretionary jurisdiction under Art. V, 3(b)(4), Fla. Const. and Fla. R. App. P (a)(2)(A)(v), which provide that this Court may review decisions that pass upon a certified question to be of great public importance. Statement of Case and Facts Respondents do not dispute Petitioner s Statement of the Case and Facts. However, Respondents believe it is important to highlight the procedural posture of this case. The trial court denied Petitioners motion to dismiss. As the First DCA noted: No appeal was taken from the denial of the petitioners motion to dismiss the amended complaint, nor could any appeal have been taken from that interlocutory ruling. Haridopolos, et al. v. Citizens for Strong Schools, Inc., 78 So. 3d 605, 608 (Fla. 1st DCA 2011). With no right to appeal, Petitioners instituted the present prohibition proceeding [in the First DCA] in an effort to stymie further proceedings in the circuit court. Id. The circuit court has had no opportunity to establish the factual 4

5 context. The case comes to this Court with the allegations in the Amended Complaint that for the present proceedings must be taken as true. Summary of Argument Respondent agrees that this Court has discretionary jurisdiction under Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P (a)(2)(A)(ii), which provide that this Court may review decisions that expressly construe a provision of the Florida Constitution. Respondent believes it is questionable whether this Court has discretionary jurisdiction under Art. V, 3(b)(4), Fla. Const. and Fla. R. App. P (a)(2)(A)(v), which provide that this Court may review decisions that pass upon a certified question to be of great public importance, because the First DCA certified a question which it did not actually decide. This Court should accept discretionary jurisdiction under Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P (a)(2)(A)(ii), for two important reasons: 1) to provide guidance to discourage the improper use of writs of prohibition, and 2) to determine that Article IX, Section 1 of the Florida Constitution is justiciable. 5

6 Argument I. THIS COURT HAS DISCRETIONARY JURISDICTION BASED ON THE FIRST DCA S DECISION THAT EXPRESSLY CONSTRUED A PROVISION OF THE FLORIDA CONSTITUTION. The jurisdiction of the Florida Supreme Court is set forth in the Florida Constitution. Art. V, 3(b), Fla. Const. Of relevance here is that the Constitution grants the Supreme Court discretion to review any decision of a district court of appeal that... expressly construes a provision of the state or federal constitution. Art. V, 3(b)(3), Fla. Const. See also Fla. R. App. P (a)(2)(A)(ii) (same). There must be an actual construction of a constitutional provision, meaning that a judge must undertake to explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision. It is not sufficient merely that the trial judge examines into the facts of a particular case and then apply a recognized, clear-cut provision. Armstrong v. City of Tampa, 106 So. 2d 407, 409 (Fla. 1958). Eight of the fifteen judges sitting en banc concluded that the circuit court has jurisdiction to grant declaratory relief, and therefore denied the writ of prohibition. Haridopolos, et al. v. Citizens for Strong Schools, Inc., 78 So. 3d 605, 613, 615 (Fla. 1st DCA 2011). In doing so, the opinion by seven judges construed Article IX, Section 1 of the Florida Constitution as providing standards by which to measure the adequacy of the public school education provided by the state. Id. at 6

7 612 (quoting Bush v. Holmes, 919 So. 2d 392, 403 (Fla. 2006)). The concurring opinion also construed Article IX, but concluded that the revised language of Article IX did not provide measurable goals. Id. at 614. However, it concluded that that the trial court had jurisdiction to address the allegations in the complaint and therefore concurred in the decision to deny the writ of prohibition. Id. at 615. As Judge Padovano noted, the First DCA s plurality opinions both expressly construe the state constitution, albeit for the limited purpose of resolving the jurisdictional issue presented by the petition for writ of prohibition. Haridopolos, et al. v. Citizens for Strong Schools, Inc., 2011 WL , at *16 (Fla. 1st DCA 2011) (Padovano, J., concurring). II. IT IS QUESTIONABLE WHETHER THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE FIRST DCA S CERTIFIED QUESTION. This Court has jurisdiction to review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance. Art. V, 3(b)(4), Fla. Const. In order for the Supreme Court to have discretionary jurisdiction based on a certified question, there are three prerequisites that must be met. First, the district court of appeal must have passed upon the question certified by it to be of great public importance. Second, the district court of appeal must have reached a decision. Third, the question must be certified by a majority 7

8 decision of the district court. See Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832, 833 (Fla. 2007). In response to the motion for rehearing and clarification before the First DCA, Respondents were of the view that the First DCA s decision met the jurisdictional requirements for jurisdication in this Court. However, in reviewing Judge Padavano s concurring opinion denying the motion, Respondents now agree that the certified question in the plurality opinion is ineffective to establish a basis for the exercise of discretionary jurisdiction in the Florida Supreme Court. Haridopolos, 2011 WL , at *16. It seems that the First DCA did not pass upon the question it certified to be of great public importance. Instead, the plurality opinion determined that circuit courts have the power to grant declaratory relief, but it was uncertain as to whether and do not decide that the trial court has any ability to grant relief beyond that point. 78 So. 3d at 613. Then, in an apparent attempt to obtain guidance on a question it did not decide, it certified a question on which it did not pass. See id. As regards the second factor, the seven judges of the plurality and the one concurring judge of the First DCA clearly reached a decision on the merits of the petition by finding that the trial court has jurisdiction to decide the case and thereby denied the writ of prohibition. A majority of judges ruled that the trial court has jurisdiction to determine whether the legislature has fulfilled its 8

9 constitutional duties and can issue some form of declaratory relief. However, the decision on the merits is different than the issue raised in the certified question. With respect to the third factor, a majority of the judges participating in the case must agree to certify the question. Floridians, 967 So. 2d at 833. In the present case, fourteen of the fifteen judges (plurality and dissenting opinions) agreed to certify the question to the Florida Supreme Court. Because a majority of the judges participating in the case have agreed to certify the question, the third requirement is met. III. THIS COURT SHOULD ACCEPT DISCRETIONARY JURISDICTION. This Court has discretionary jurisdiction to review the First DCA s decision as it expressly construed a provision of the Florida Constitution. Respondents encourage this Court to exercise its jurisdiction for two important reasons: 1) to provide guidance to discourage the improper use of writs of prohibition, and 2) to determine that Article IX, Section 1 of the Florida Constitution is justiciable. This Court should accept jurisdiction to clarify that writs of prohibition should be discouraged and are improper to be used as a couched attempt at an interlocutory appeal where none is authorized. As the plurality of the First DCA concluded, if and when [petitioners] suffer an adverse judgment, plenary review is available. 78 So. 3d at 611. The plurality opinion further stated that Petitioners are seeking to derail proceedings in the trial court. Accordingly, if this Court 9

10 exercises jurisdiction, Respondents believe it should address the proper uses of writs of prohibition. This Court should accept jurisdiction for another important reason to determine that Article IX, Section 1 of the Florida Constitution is justiciable and sets forth judicially ascertainable standards. However, Respondents emphasize that the legal and factual issues have not been developed. Thus, delving further into defining the standards should first be presented to the circuit court and a factual record developed for context, and then brought up on appeal. While this Court is competent to answer the question that the First DCA attempted to certify, and give authoritative interpretation to the meaning of Article IX, Section 1, Respondents believe that the question is best left to be answered in the first instance by the trial court, and then reviewed on appeal with a full record. Conclusion For the reasons stated, this Court has jurisdiction under Art. V, 3(b)(3), Fla. Const., but probably does not have jurisdiction under Art. V, 3(b)(4), Fla. Const. Respondents encourage this Court to exercise its jurisdiction for two important reasons: 1) to provide guidance to discourage the improper use of writs of prohibition, and 2) to determine that Article IX, Section 1 of the Florida Constitution is justiciable. 10

11 Respectfully Submitted, /s/ Jodi Siegel JODI SIEGEL, Fla. Bar No NEIL CHONIN, Fla. Bar. No Southern Legal Counsel, Inc NW 12th Avenue Gainesville, Florida (352) (352) (facsimile) JON L. MILLS, Fla. Bar No Boies Schiller & Flexner 100 SE Second Street Miami, Fl (352) TIMOTHY MCLENDON, Fla. Bar No P.O. Box 2099 Gainesville, FL (352) (352) (Facsimile) DEBORAH CUPPLES, Fla. Bar No SW 13th St, G-327 Gainesville, FL (352) ATTORNEYS FOR RESPONDENTS 11

12 Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail on this 19th day of April, 2012, to: Leah Marino, Fla. Bar No marino-leah@flsenate.gov Deputy General Counsel The Florida Senate, Office of the President Suite 409, The Capitol 404 South Monroe Street Tallahassee, FL Raoul G. Cantero, Fla. Bar No raoul.cantero@whitecase.com David P. Draigh, Fla. Bar No ddraigh@whitecase.com White & Case LLP Southeast Financial Center, Suite South Biscayne Boulevard Miami, FL Fax: George T. Levesque, Fla. Bar No george.levesque@myfloridahouse.gov Don Rubottom, Fla. Bar No don.rubottom@myfloridahouse.gov Teresa Ward, Fla. Bar No teresa.ward@myfloridahouse.gov Office of the General Counsel Florida House of Representatives 422 The Capitol Tallahassee, FL Fax:

13 The Honorable Jackie Fulford Second Judicial Circuit Leon County Courthouse Tallahassee, Florida /s/ Jodi Siegel JODI SIEGEL ATTORNEYS FOR RESPONDENTS Certificate of Compliance I hereby certify that the foregoing brief complies with the font requirement of Fla. R. App. P (a)(2), and is submitted in Times New Roman 14 point font. /s/ Jodi Siegel JODI SIEGEL ATTORNEYS FOR RESPONDENTS 13