IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA. Case No. SC R.H., G.W., T.L., juveniles, Petitioners, vs.

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1 Electronically Filed 03/14/ :35:25 PM ET RECEIVED, 3/14/ :38:34, Thomas D. Hall, Clerk, Supreme Court IN THE DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA Case No. SC R.H., G.W., T.L., juveniles, Petitioners, vs. STATE OF FLORIDA, Respondent. BRIEF OF RESPONDENT ON JURISDICTION ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PAMELA JO BONDI ATTORNEY GENERAL RICHARD L. POLIN Fla. Bar No NICHOLAS A. MERLIN Florida Bar No Office of the Attorney General 444 Brickell Avenue, #650 Miami, Florida (305) Ext. 631 (305) (Fax) Primary: Secondary:

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 1 WHETHER THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY DECLARED A STATE STATUTE CONSTITUTIONAL SUCH THAT THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE INSTANT CASE PURSUANT TO FLA. CONST. ART. V, 3, AND FLA. R. APP. P CONCLUSION... 5 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS... 6 i

3 CASES TABLE OF CITATIONS PAGE G.W. v. State, 106 So. 3d 83 (Fla. 3d DCA 2013)... 2 Soverino v. State, 356 So. 2d 269 (Fla. 1978)... 2 Walker v. State, 501 So. 2d 156 (Fla. 1st DCA 1987)... 2 FLORIDA RULE OF APPELLATE PROCEDURE Fla. R. App. P , 2 Fla. R. App. P FLORIDA CONSTITUTION Article V, 3, Fla. Const.... 1, 2 FLORIDA STATUTES , Fla. Stat.... 2, 3 ii

4 STATEMENT OF THE CASE AND FACTS The opinion of the Third District Court of Appeal, a copy of which is appended to the Petitioners Brief on Jurisdiction, outlines the relevant facts at this stage of the proceeding. SUMMARY OF ARGUMENT Respondent acknowledges that this Court has discretion to exercise jurisdiction to review the instant case under Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P (a)(2)(A)(i), but submits that this Court should deny review. ARGUMENT WHETHER THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY DECLARED A STATE STATUTE CONSTITUTIONAL SUCH THAT THIS COURT HAS DISCRETIONARY JURISDICTION TO REVIEW THE INSTANT CASE PURSUANT TO FLA. CONST. ART. V, 3, AND FLA. R. APP. P The Florida Constitution provides that this Court [m]ay review any decision of a district court of appeal that expressly declares valid a state statute Art. V, 3(b)(3), Fla. Const. Similarly, pursuant to the Florida Rules of Appellate Procedure, [t]he discretionary jurisdiction of the supreme court may be sought to review decisions of district courts of appeal that expressly declare valid a state statute. Fla. R. App. P (a)(2)(A)(i). In the instant case, the Third District Court of Appeal s decision below found that the Petitioners were not part of a suspect class and that the rational basis 1

5 test was applicable. The Third District conclude[d] that there is no constitutional infirmity to section (2)(c), and affirm[ed] the adjudication of delinquency in each of the consolidated appeals, as well as the orders placing R.H and T.L. in community control programs. G.W. v. State, 106 So. 3d 83 (Fla. 3d DCA 2013). Respondent acknowledges that this Court has discretionary jurisdiction to review the instant case under Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P (a)(2)(A)(i), but submits that this Court should deny review in this case. First, although this decision does uphold the validity of a statute, there is no conflict among any of the district courts of appeal on this point. Further, the First District Court of Appeal has upheld a prior version of this statute, which was similar, but applied only to those offenders who were not subject to the discipline of the school. See Walker v. State, 501 So. 2d 156 (Fla. 1st DCA 1987). In Walker, the court held that the statute the defendant was convicted under did not violate equal protection and was not constitutionally vague. Id. at 157. The court further held that the statute was reasonably related to legitimate state interests of maintaining and protecting the integrity of the schools setting and the standing of teachers as role models. Id. Likewise, in Soverino v. State, 356 So. 2d 269 (Fla. 1978), this Court upheld the statute for assault or battery on law enforcement officers (BOLEO) against an equal protection challenge, explaining in pertinent part: 2

6 Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public. Thus, contrary to appellant s assertion that the legislature has created an elite class of untouchables, in reality it merely has passed a law which fosters the public safety and welfare. Id. at The instant statute, (2), Fla. Stat., is similar because it requires a defendant to know[] or [have] reason to know the identity or position or employment of the victim. Id. Unlike the BOLEO statute, there is no requirement under (2) that the school official be engaged in the course and scope of their duties, although there is such a requirement for sports officials under (3), during or immediately after an athletic contest. The Legislature has determined that there is a zero tolerance policy for crimes and victimization related to the students and staff of schools. In addition, the Legislature has found that since a school employee under subsection (2) is not necessarily equipped to respond to assaults or batteries committed against them, they are more vulnerable and in need of more protection. Thus, the statute does not require that a school employee under subsection (2) be in the performance of a legal duty when the battery occurs, only the fact that a defendant has knowledge. This is unlike a sports official, who has a temporary function at an athletic event. 3

7 The suggestion by the Petitioners that a school employee under subsection (2) is required to be in the performance of a legal duty defeats that purpose, as an employee may be subject to retaliation at any hour, inside or outside of school, whether it stems from issues about an instructor s teaching or a student s poor mark in class. As such, the district court s decision, finding that the Petitioners were not part of a suspect class; that the rational basis test was applicable; and that the statute is constitutional was correct, and this Court should therefore decline to exercise its discretionary jurisdiction. 4

8 CONCLUSION Based on the foregoing reason, the State respectfully requests this Honorable Court decline to exercise jurisdiction. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ Richard L. Polin Bureau Chief Fla. Bar No /s/ Nicholas A. Merlin NICHOLAS A. MERLIN Florida Bar No Attorney for Appellee, State of Fla. Office of the Attorney General 444 Brickell Avenue, #650 Miami, Florida (305) Ext. 631 (305) (Fax) Primary: Secondary: 5

9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief was ed to Assistant Public Defender Michael T. Davis, Esquire, at appellatedefender@pdmiami.com, and ed to mdavis@pdmiami.com, this 14th day of March, /s/ Nicholas A. Merlin NICHOLAS A. MERLIN CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I HEREBY CERTIFY that this Answer Brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). /s/ Nicholas A. Merlin NICHOLAS A. MERLIN 6