IN THE SUPREME COURT OF FLORIDA CASE NO: SC04- EDNA DE LA PENA, Petitioner, vs. SUNSHINE BOUQUET COMPANY and HORTICA, Respondents.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO: SC04- EDNA DE LA PENA, Petitioner, vs. SUNSHINE BOUQUET COMPANY and HORTICA, Respondents. PETITIONER S BRIEF ON JURISDICTION Richard Zaldivar, Esquire Jay M. Levy, Esquire RICHARD E. ZALDIVAR, P.A. JAY M. LEVY, P.A SW Third Avenue 9130 South Dadeland Boulevard Suite 300 Two Datran Center, Suite 1510 Miami, Florida Miami, Florida Telephone No.: (305) Telephone No: (305) Facsimile No.: (305) Facsimile No: (305)

2 TABLE OF CONTENTS ITEM PAGE I. Preliminary Statement II. III. IV. VI. Statement of the Case...2 Jurisdictional Point on Appeal...3 Summary of Argument...4 Argument THE DECISION OF THE DISTRICT COURT OF APPEAL DEFINING THE POWERS OF A JUDGE OF COMPENSATION CLAIMS EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS VI. VII. Conclusion Certificate of Service...7 VIII. Certificate of Type Size...7 i

3 TABLE OF CITATIONS ITEM PAGE Cases Jones v. Chiles, 638 So.2d 48 (Fla. 1994)...4 Spradley v. State, 293 So.2d 697 (Fla. 1974)...5 Statutes 20.04, Fla.Stat...3, , Fla.Stat...3, (1)(a), Fla.Stat (2)...4 Other Authorities Article V, 3(b)(3), Fla.Const...passim Fla.R.App.Pro (a)(2)(A)(iii)...3 ii

4 IN THE SUPREME COURT OF FLORIDA EDNA DE LA PENA vs. Petitioner, CASE NO: SC04- L.T. CASE NO: 3D Petitioner s Brief on Jurisdiction SUNSHINE BOUQUET COMPANY and HORTICA, Respondents. I Preliminary Statement Petitioner seeks to invoke the discretionary jurisdiction of this Court on the grounds that the decision of the District Court of Appeal expressly affects a class of constitutional or state officers. Article V, 3(b)(3), Fla.Const. Petitioner Edna De La Pena, plaintiff and appellant below, shall be referred to as Claimant. Respondent Sunshine Bouquet Company, defendant and appellee below, shall be referred to as Employer. Respondent Hortica, defendant and appellee below shall be referred to as Carrier. Jointly Respondents will be referred to as E/C. The letter A shall represent the Appendix of Petitioner. The term independent medical examination shall be referred to by the letters IME. The term Judge of Compensation Claims 1

5 shall sometimes be referred to by the letters JCC. II Statement of the Case On June 24, 2003, the JCC entered an order which granted Claimant s motion for an IME to be conducted by Dr. Barry Burak. When E/C failed to comply with this order, Claimant filed a Petition for Rule Nisi in Circuit Court pursuant to (1), Fla.Stat. to enforce the order. The Circuit Court directed E/C to show cause why the petition should not be granted. E/C responded and argued that an IME was not a benefit and therefore the Circuit Court lacked jurisdiction to enforce the order. The Circuit Court denied the Petition for Rule Nisi and instructed Claimant to select another doctor to perform the IME. Claimant s motion for rehearing was denied and she appealed to the District Court of Appeal, Third District, which affirmed the decision (A. 1-2). In its opinion, the District Court determined that an order appointing an IME physician was interlocutory in nature and not subject to enforcement by the Circuit Court, and that the JCC had the power to enforce interlocutory orders (A. 2). Claimant s Motion for Rehearing was denied by the District Court (A. 3). Petitioner now seeks to invoke this Court s jurisdiction on the grounds that the decision of the District Court of Appeal expressly affects a class of constitutional or 2

6 state officers. Article V, Section 3(b)(3), Fla. Const. III Jurisdictional Point on Appeal WHETHER THE DECISION OF THE DISTRICT COURT OF APPEAL DEFINING THE POWERS OF A JUDGE OF COMPENSATION CLAIMS EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS? VI Summary of the Argument Judges of Compensation Claims fall under the Department of Management Services (1)(a), Fla. Stat. The Department of Management Services is one of the executive departments of Florida government , 20.22, Fla. Stat. For this reason a Judge of Compensation Claims is a state officer within the meaning of Article V, Section (3)(b)(3), Fla. Const.. The decision below defined the authority of a Judge of Compensation Claims to include the power to enforce interlocutory orders. For this reason, the decision rendered by the District Court of Appeal below is one which affects a class of state officers. This Court has discretionary jurisdiction over the instant case pursuant to Article V, Section (3)(b)(3), Fla. Const. and Fla.R.App.Pro (a)(2)(A)(iii). 3

7 V Argument THE DECISION OF THE DISTRICT COURT OF APPEAL DEFINING THE POWERS OF A JUDGE OF COMPENSATION CLAIMS EXPRESSLY AFFECTS A CLASS OF CONSTITUTIONAL OR STATE OFFICERS Judges of Compensation Claims are nominated by a statewide nominating commission who select a list of three (3) people from which the governor appoints one to conduct Chapter 440 proceedings (2), Fla. Stat. In Jones v. Chiles, 638 So.2d 48 (Fla. 1994), this Court held that a Judge of Compensation Claims is an executive branch official. 1 Consequently a Judge of Compensation Claims is a state officer for purposes of Article V, 3(b)(3), Fla.Const. In its opinion below, the District Court of Appeal expressly held: The Circuit Court has jurisdiction to enforce a final compensation order of a judge of compensation claims (1)9, Fla. Stat. (1998); North Shore Medical Center 1 Since this Court decided Jones, the Office of Judge of Compensation Claims has been moved to the Department of Management Services from the now abolished Department of Labor and Employment Security (1)(a), Fla. Stat. (2003). The Department of Management Services is one of the executive departments of Florida Government , 20.22, Fla. Stat. (2004). For this reason, Jones is still valid since the Department of Labor and Employment Security was also an executive department. 4

8 v. Capua, 634 So.2d 1141 (Fla. 3DCA 1994). However interlocutory orders, such as the one at issue here, are matters which properly belong before the judge of compensation claims who has the power to enforce his or her own interlocutory orders , Fla. Stat. (1998) (Emphasis added) By this language the District Court of Appeal has decided the scope of the authority of each Judge of Compensation Claims in Florida, a class of state officers. For this reason the decision of the District Court below expressly affects a class of state officers. In Spradley v. State, 293 So.2d 697 (Fla. 1974) this Court considered its jurisdiction for discretionary review of a District Court of Appeal decision on the grounds that it expressly affects a class of constitutional or state officers. There this Court held: A decision which affects a class of constitutional or state officers must be one which does more than simply modify or construe or add to the case law which comprises much of the substantive and procedural law of the State. Such cases naturally affect all classes of constitutional or state officers, in that the members of these classes are bound by the law the same as any other citizen. To vest this Court with certiorari jurisdiction, a decision must Directly and, in some way, Exclusively affect the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers. Id. at

9 (Emphasis Added). The instant opinion rendered by the District Court below is a decision which affects a class of constitutional or state officers as defined by this Court in Spradley. Here, the District Court of Appeal has determined the powers of the Judges of Compensation Claims and indicates these judges have the power to enforce interlocutory orders without any need to apply to the Circuit Court for enforcement of such orders. Consequently this Court has jurisdiction under Article 5, 3(b)(3), Fla. Const. because the decision of the District Court of Appeal below expressly affects a class of state officers. VI Conclusion Based upon the foregoing cases and arguments, Petitioner Edna de la Pena, respectfully request that this Court exercise its discretionary jurisdiction over the instant cause on the grounds of the decision of the District Court of Appeal below expressly effects a class of constitutional or state officers. Richard E. Zaldivar, Esquire RICHARD E. ZALDIVAR, P.A SW Third Avenue Suite 300 Miami, Florida, & 6

10 JAY M. LEVY, P.A South Dadeland Boulevard Two Datran Center - Suite 1510 Miami, Florida Telephone No.: (305) Facsimile No.: (305) BY: JAY M. LEVY, ESQUIRE FL. BAR NO: VII Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing instrument was mailed to Daniel L. Koch, Esquire, HERZFELD & RUBIN, 80 SW 8th Street, Suite 1920, Miami, Florida, 33130, this 26th day of May, Attorneys for Petitioner VII Certificate of Type Size and Format I hereby certify that this brief was prepared in 14 point Times New Roman in Word Perfect 6.0 format. 7

11 Attorneys for Petitioner 8