IN THE SUPREME COURT OF FLORIDA. Case No. SC Petition for review of District Court of Appeal Case No. 1D BEVERLY ROGERS, et al.

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1 IN THE SUPREME COURT OF FLORIDA Case No. SC Petition for review of District Court of Appeal Case No. 1D BEVERLY ROGERS, et al., Petitioners, v. GLENDA E. HOOD, as Secretary of State for the State of Florida, et al. Respondents. RESPONDENTS JURISDICTIONAL ANSWER BRIEF CHARLES J. CRIST, JR. ATTORNEY GENERAL LEAH L. MARINO Assistant Attorney General Florida Bar No: OFFICE OF THE ATTORNEY GENERAL Pl-01, The Capitol Tallahassee, FL

2 (850) Counsel for Respondent TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. THIS COURT SHOULD DECLINE TO EXERCISE ITS DISCRETIONARY JURISDICTION IN THIS CASE... 3 II. III. THE FIRST DISTRICT S DECISION DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS... 5 THE FIRST DISTRICT S DECISION DOES NOT CONFLICT WITH DECISIONS OF THIS COURT OR OTHER DISTRICT COURTS OF APPEAL... 5 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9

3 TABLE OF AUTHORITIES CASES Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998)... 6,7 Chiang v. Wildcat Groves, Inc., 703 So. 2d 1083 (Fla. 2d DCA 1997)... 8 Davidson v. Iona-McGregor Fire Prot. & Rescue District, 674 So. 2d 858 (Fla. 2d DCA 1996)... 8 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 7,8 Michel v. Douglas, 464 So. 2d 545 (Fla. 1985)... 5,6 Ralph v. City of Daytona Beach, 471 So. 2d 1 (Fla. 1983)... 8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 Rogers v. Hood, 906 So. 2d 1220 (Fla. 1st DCA 2005)... passim Samuels v. King Motor Co. of Ft. Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001)... 8 Shevin v. Bryon, Harless, Schaffer, Reid & Associates, 379 So. 2d 633 (Fla. 1980)...3,45,6 Times Publ g Co., Inc. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990)... 5,6 STATUTES , Fla. Stat...1,2,3,9 ii

4 CONSTITUTIONS Article 1, Section 24, Fla. Const....1,2,3,9 iii

5 STATEMENT OF THE CASE AND FACTS Petitioners statement of the case and facts recites facts not present within the four corners of the First District s opinion. These facts cannot be considered by this Court for purposes of jurisdictional review and must be disregarded. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). The following paragraphs summarize the facts as contained within the four corners of the decision below. Petitioners are registered Florida voters who maintain that election officials in certain Florida counties possess stocks of unused or unvoted punch card ballots from the 2000 presidential election. Petitioners assert that the unused ballots have great historical value and wish to have them delivered to a law library for further study. Rogers v. Hood, 906 So. 2d 1220, (Fla. 1st DCA 2005). To gain access to the unused ballots, Petitioners sought a declaratory judgment that the items are public records under article I, section 24 of the Florida Constitution, and chapter 119 of the Florida Statutes. Petitioners also sought a declaration that section , Florida Statutes (2003), governing retention and destruction of certain election materials, violates article 1, section 24 of the Florida Constitution. On Respondents motion for final judgment of dismissal, the circuit court concluded that the unused ballots are not public records, and that the Legislature has made a determination as to how such items may be disposed by the 1

6 enactment of section The circuit court also concluded that article I, section 24 has no application in this case, Petitioners did not identify any other constitutional or statutory provision providing them with any rights regarding the ballots, and that Petitioners had not stated a cause of action and had failed to allege standing. Rogers, 906 So. 2d at The First District affirmed the circuit court s ruling in its entirety, holding that the unused ballots are not public records because they do not perpetuate, communicate or formalize knowledge and are no different from blank paper held in a government office. Id. at SUMMARY OF ARGUMENT This Court should decline to exercise its discretionary jurisdiction in this case because (1) the issue of whether unused ballots from the 2000 presidential election are public records was properly decided by the district court, and (2) Petitioners have not demonstrated the importance of this case. The Court correctly upheld the constitutionality of section , Florida Statutes, and properly construed article I, section 24 of the Florida Constitution. The First District s decision does not expressly affect a class of constitutional or state officers. The decision below holds that the unused ballots from the 2000 presidential election are not public records. The decision merely applies relevant law to determine whether certain items are subject to Florida s 2

7 Sunshine Law. The First District s decision does not conflict with decisions of this Court or other district courts of appeal. The decisions cited by Petitioners are either factually distinguishable from the decision below or allege conflict with dicta. ARGUMENT I. THIS COURT SHOULD DECLINE TO EXERCISE ITS DISCRETIONARY JURISDICTION IN THIS CASE Although the First District s decision provides a basis for the exercise of this Court s discretionary jurisdiction, 1 this Court should decline to exercise its discretion in this case. The issue of whether the unused ballots from the 2000 presidential election are public records was properly decided by the district court. The First District s decision is thorough, well-reasoned, and correctly applies the relevant Florida statutory and constitutional provisions. The unused ballots at issue in this case do not constitute public records under this Court s settled precedent. See Shevin v. Byron, Harless, Schaffer, Reid & Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980) (a public record is any material 1 The First District s decision expressly upholds the constitutionality of section , Florida Statutes, Rogers, 906 So. 2d at 1223 ( Because the unused ballots are not public records, section is not unconstitutional when viewed in light of article 1, section 24. ), and construes article I, section 24 of the State Constitution. 3

8 prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type. ). Moreover, as the First District correctly acknowledged, even if some strained argument could be made that they are [public records], the Legislature, by providing for the retention or destruction of unused ballots in a law enacted well before July 1, 1993 [section ], has exempted these ballots from article I, section 24. Rogers, 906 So. 2d at Additionally, Petitioners have not demonstrated the importance of this case so as to necessitate this Court s jurisdiction. As the First District noted, and contrary to Petitioners lengthy discussion in its jurisdictional brief, the importance of the unused ballots is not before the court. Rogers, 906 So. 2d at 1224 ( The question of whether these ballots, as artifacts of the 2000 presidential election, have historical, sociological, or political import is not before us, and could never be before a court. This is a pure policy determination, better left in the hands of the legislative branch or the executive branch. ). The decision below is a straightforward analysis of whether certain items are public records under Florida law. The historical significance of the items in question has no bearing on the legal import of the case. 4

9 II. THE FIRST DISTRICT S DECISION DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OR STATE OFFICERS Petitioners assert that the decision below expressly affects a class of constitutional officers by holding that any individual supervisor may decide to keep the ballots, or to turn them over to appellants or, presumably, to any other party. Rogers, 906 So. 2d at This, however, is not the holding of the decision below. The decision below holds merely that the unused ballots are not public records pursuant to applicable law. See id. The statement relied upon by Petitioners is simply a comment by the district court, in dicta, as to the role of election supervisors in relation to the Secretary of State. The holding of the decision below does not expressly affect a class of constitutional or state officers. III. THE FIRST DISTRICT S DECISION DOES NOT CONFLICT WITH DECISIONS OF THIS COURT OR OTHER DISTRICT COURTS OF APPEAL Petitioners claim that the First District s decision conflicts with cases holding similar ministerial materials to be public records. See Times Publ g Co., Inc. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990); Michel v. Douglas, 464 So. 2d 545 (Fla. 1985); Shevin v. Bryon, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633 (Fla. 1980). However, in each of these cases the record at issue was more than an unused piece of paper. In Times Publishing, for example, one 5

10 of the records at issue was a set of lease documents. The Second District found the lease documents constituted public records only after they were exhibited to city officials as part of the bargaining process, where the documents were revised as a result of the mutual negotiations between the parties. 558 So. 2d at 494. In Michel, the court answered whether hospital employee personnel records, which clearly contain completed forms and the like, were public records. 464 So. 2d at 546. Likewise, in Shevin, the records at issue, letters, memoranda, resumes, and travel vouchers, were made or received by a government employee in the course of business and intended as final evidence of the knowledge to be recorded. 379 So. 2d at 640. The unused ballots in this case are nothing more than a stack of papers delivered to an agency waiting to be used. By their very nature, they cannot intend to perpetuate, communicate, or formalize knowledge of any type. Shevin, 379 So. 2d at 640. Petitioners also allege conflict with Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998). In that case, a university on-campus bookstore circulated blank forms to various university instructors. The forms were to be filled in by the instructors so as to identify the course taught by each instructor and which textbooks students would be required to obtain for each course. A competitor off-campus bookstore alleged that the 6

11 completed book selection documents were public records. The district court agreed, holding that the completed forms are public records. Id. at 228 (emphasis added). The district court explained that the forms are completed on behalf of the universities by instructors in connection with university business, and that the forms are prepared for the purpose of communicating knowledge to the oncampus bookstore so that the proper books will be made available to the persons who need them. Id. at 229. Booksmart does not conflict with the decision below because the ballots below are unused and thus do not meet the criteria for what constitutes a public record under Florida law. Finally, Petitioners allege the decision below is contrary to established precedent on the standard to be applied on a motion to dismiss. The holding of the decision below, however, does not in any way address the standard to be applied on a motion to dismiss. 2 In fact, the First District states that the final judgment here resulted from appellees motion to dismiss and, accordingly, all well-pled factual matters in the amended complaint must be taken as true. Rogers, 906 So. 2d at This is the same principle espoused in the cases cited by Petitioners for 2 The Florida Supreme Court only has jurisdiction to review a district court s decision when that decision expressly and directly conflicts with a decision of another district court or the supreme court on the same question of law. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). 7

12 conflict. See Samuels v. King Motor Co. of Ft. Lauderdale, 782 So. 2d 489 (Fla. 4th DCA 2001); Davidson v. Iona-McGregor Fire Prot. & Rescue Dist., 674 So. 2d 858 (Fla. 2d DCA 1996); Chiang v. Wildcat Groves, Inc., 703 So. 2d 1083 (Fla. 2d DCA 1997); Ralph v. City of Daytona Beach, 471 So. 2d 1 (Fla. 1983). CONCLUSION For the foregoing reasons, Respondents respectfully request that this Court decline to exercise its jurisdiction in this case. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL LEAH L. MARINO Assistant Attorney General Florida Bar No OFFICE OF THE ATTORNEY GENERAL PL-01, The Capitol Tallahassee, FL (850)

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing has been furnished by U.S. Mail, postage prepaid, this day of October, 2005, to: Gary M. Farmer, Jr., Esq., Freedland, Farmer, Russo & Sheller, P.A., 2665 Executive Park Drive, Suite 3, Weston, Florida LEAH L. MARINO Florida Bar No: CERTIFICATE OF COMPLIANCE Pursuant to Fla. R. App. P (a)(2), I certify that this computer-generated brief is prepared in Times New Roman 14-point font and complies with the font requirement of Rule 9.210, Florida Rules of Appellate Procedure. LEAH L. MARINO Florida Bar No: