IN THE SUPREME COURT OF FLORIDA. Case No.: SC Lower Tribunal Case No.: 1D

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No.: SC Lower Tribunal Case No.: 1D WAKULLA COMMERCIAL FISHERMEN'S ASSOCIATION, INC., and RONALD FRED CRUM, Petitioners, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Respondents. PETITIONERS BRIEF ON JURISDICTION Petitioning for Discretionary Jurisdiction Review of a decision by the District Court of Appeal, First District of Florida RONALD A. MOWREY Florida Bar No RICK A. SAVAGE Florida Bar No MOWREY & MITCHELL, P.A. 515 North Adams Street Tallahassee, Fla Telephone: (850) Facsimile: (850) ATTORNEYS FOR PETITIONERS

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE... 1 STATEMENT OF FACT... 2 SUMMARY OF ARGUMENT... 4 JURISDICTIONAL STATEMENT... 5 ARGUMENT I 5 II. III. 9 The District Court s decision it expressly declared a law of statutory significance valid... The District Court s decision expressly construed a provision of the state and federal constitution... 7 The District Court s decision expressly and directly conflicts with a decision of the Florida Supreme Court... CONCLUSION CERTIFICATE OF COMPLIANCE WITH RULE 9.210(a)(2) CERTIFICATE OF SERVICE... 11

3 APPENDIX State Cases i TABLE OF AUTHORITIES Advisory Op. To Att y General - Limited Marine Net Fishing, 620 So. 2d 997, 999(Fla. 1993)...5,9,10 Airboat Ass n of Florida v. Fla. Game & Freshwater Fish Comm n, 498 So. 2d 629 (Fla. 3d DCA 1986)...4,6 Caribbean Conservation Corp., Inc. V. Florida Fish and Wildlife Conservation Comm n, 838 So. 2d 492, 501 (Fla. 2003)...8 J.B. v. Fla. Dept t of Children & Family Serv., 768 So. 2d 1060, (Fla. 2000)...9 State v. Leavins, 599 So. 2d 1326, 1336 (Fla. 1 st DCA 1992)...10 Wakulla Commercial Fishermen s Assoc., Inc. v. Florida Fish and Wildlife Conservation Comm n, 2007 WL , 32 Fla. L. Weekly D427 (Fla. 1st DCA 2007)...1,6,8,9,10 Whitehead v. Rogers, 223 So. 2d 330 (Fla. 1969)...6 Florida Constitution & Statutes

4 Art. I, 9, Fla. Const....8 Art. V, 3(b), Fla. Const....7 Art. V, 3(b)(3), Fla. Const....5 Art. X, 16, Fla. Const...2,4,5,7,9,10 iii

5 Florida Administrative Code Fla. Admin. Code R. 68B , 5 Fla. Admin. Code R. 68B ,4,5,7 Fla. Admin. Code R. 68B ,5,10 Florida Rules of Civil Procedure Fla. R. App. P (a)(2)(A)(i)...4,5,7 Fla. R. App. P (a)(2)(A)(ii)...4,9 Fla. R. App. P (a)(2)(A)(iii)...5 Fla. R. App. P (a)(2)(A)(iv)...5,10 United States Constitution U.S. Const. Amend. V, U.S. Const....8

6 iii

7 STATEMENT OF CASE This petition seeks Supreme Court review of a decision of the First District Court of Appeal, affirming, by a two-to-one vote, a summary judgment entered by the Second Judicial Circuit of Florida. The case was originally brought by Petitioners in order to enjoin the implementation of commercial net mesh regulations due to conflict with multiple provisions of the Florida Constitution. In Circuit Court, both Petitioners and Respondent filed motions for summary judgment, and submitted contesting affidavits as to the existence and nonexistence of a rational basis for the disputed rules. A non-evidentiary hearing was held, after which the Circuit Court entered a final summary judgment in favor of Respondent based solely upon a Fish and Wildlife Conservation Commission (FWCC) employee s affidavit testimony that he believed there existed a rational basis for the reduced net mesh restrictions. The issue was taken up on appeal to the First District Court of Appeal. The District Court affirmed, in a two-to-one decision, the lower court s order based solely upon the disputed affidavit testimony of the FWCC employee. See Wakulla Commercial Fishermen s Assoc., Inc. v. Florida Fish and Wildlife Conservation Comm n, 2007 WL , 32 Fla. L. Weekly D427 (Fla. 1st DCA 2007) (attached hereto as Appendix A). In his dissent, Chief Judge Browning noted the chilling effect on due process that would result from the majority s decision See id. at 2. Petitioner s moved for rehearing, which

8 was subsequently denied. A notice to invoke discretionary jurisdiction of this Court was filed on April 13, STATEMENT OF FACT The impetus of this action has its origins in the adoption of the Marine Net Limitation Amendment to the Florida Constitution, Art. X, 16, Fla. Const. This provision provides that, No gill nets or other entangling nets shall be used in any Florida waters. Over the years, Respondent, and its predecessor agency, has attempted to define proscribed gill and entangling nets by the characteristics of fishing gear, their use and resulting catch. One of the characteristics that Respondent uses to define a gill or entangling net is the size of the meshes of fishing nets. In 2005, Respondent sought to implement Art. X, 16, Fla. Const., by amending Fla. Admin. Code R. 68B to make it a criminal offense to use most commercial fishing nets with mesh greater than two inches stretched. The reduced mesh restrictions were implemented in July 2005, in spite of the fact that Respondent had not engaged in any testing, scientific or otherwise. Prior to the implementation of the new restrictions, Petitioners and other representatives of the commercial fishing industry, expressed a strong belief that smaller meshed nets, such as the proposed two inch mesh net, would dramatically gill and entangle more fish than larger mesh nets. Though Respondent rejected any suggestion to 2

9 delay the effectiveness of the mesh size reduction, Respondent nonetheless agreed to join Petitioners in a statewide study of the effect of the two inch mesh net on the marine resources when compared to a larger mesh net. The procedure for the study was established by Respondent, and a state marine biologist monitored and recorded the results of the tests. A three inch mesh net, deemed illegal by Respondent, and the two inch mesh net tested were identical in every characteristic except for mesh size. One net was deployed, followed instantly by the other, and both were retrieved immediately thereafter in order to limit the amount of time that fish could become entangled in either net. The study was prematurely terminated by Respondent when Petitioners filed for a temporary injunction of enforcement of the two inch mesh rule. Nonetheless, the conclusions of the study published by Respondent clearly indicated that the two inch mesh net gilled and entangled significantly more fish than the illegal larger mesh net. Further, the two inch mesh net caught and gilled almost exclusively juvenile fish that had not yet spawned and were illegal to sell, while the fish caught by the larger mesh net were almost all marketable, adult fish. In spite of its own data, Respondent determined that the two inch mesh net was not a gill or entangling net, but that larger mesh net would remain a gill/entangling net as set forth in its rules. Petitioners continued their challenge of Respondent s arbitrary and unconstitutional mesh restrictions. SUMMARY OF ARGUMENT 3

10 The District Court expressly declared Fla. Admin. Code R. 68B , 68B , and 68B valid. Though the challenged laws are agency rules, the Respondent s unique constitutional status furnishes such rules legislative authority. See Airboat Ass n of Florida v. Fla. Game & Freshwater Fish Comm n, 498 So. 2d 629 (Fla. 3d DCA 1986). Thus, this Court has discretionary jurisdiction to review to review the District Court s decision. Fla. R. App. P (a)(2)(A)(i). In reaching its decision, the District Court expressly construed Art. X, 16, Fla. Const., interpreting the constitutional limitation on gill and entangling nets as a proscription on commercial fishing nets with a mesh sizes larger than two inches stretched. The District Court s interpretation of the constitutional provision is absolutely inconsistent with the plain language of the amendment, thereby frustrating its original purpose. This express construction of Art. X, 16 Fla. Const., combined with the District Court s construction of Due Process, also brings this case within this Court s discretionary jurisdiction. Fla. R. App. P (a)(2)(A)(ii). Finally, the District Court s decision comes into express and direct conflict with the Supreme Court Opinion that Art. X, 16, Fla. Const., would solely act to protect marine life to unnecessary killing, overfishing, and waste. Advisory Op. To Att y General - Limited Marine Net Fishing, 620 So. 2d 997, 999 (Fla. 1993). This express and direct conflict is also grounds for the Supreme Court to grant discretionary review. Fla. R. App. P (a)(2)(A)(iv). 4

11 JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review the District Court s decision because the District Court expressly declared a law of statutory significance valid; the decision expressly construes provisions of the state and federal constitutions; and the decision expressly and directly conflicts with a decision of this Court on the same point of law. See Art V, 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(i), and (iii), and (iv). ARGUMENT I. The District Court s decision expressly declared a law of statutory significance valid. The commercial net regulations challenged by Petitioners, Fla. Admin. Code R. 68B , 68B-4.002, and 68B outline permitted fishing gear to catch mullet, the FWCC definition of a gill/entangling net, and reduced mesh size restriction for commercial fishing nets. Though these laws consist entirely of administrative rules, the Respondent s unique constitutional status and exclusive authority to adopt rules to regulate life, Whitehead v. Rogers, 223 So. 2d 330 (Fla. 1969), make these regulations tantamount to a legislative act. See Airboat Ass n of Florida v. Fla. Game & Freshwater Fish Comm n, 498 So. 2d 629 (Fla. 3d DCA 1986). In determining the validity of such hybrid laws, the District Court attempted to apply the rational basis standard. See Wakulla Commercial Fishmermen s Assoc., Inc, at 5

12 1-2. On the merits of a single affidavit of an FWCC employee offered in support of Respondent s motion for summary judgment, the District Court determined a rational basis existed for the challenged rules and that such rules were valid. Id. Judge Brown expressed his concern over the majority s decision by noting, The majority presents only a portion of the facts that are necessary for the proper disposition of this appeal...if agencies are not required to justify their alleged rational basis at an evidentiary hearing when that basis is refuted, as here, this court is preparing fertile field for the growth of imperious agencies, with all of the mischief it entails. Id. at 3. Judge Brown further recognized that the majority s decision ignored the affidavits submitted by Petitioners which, clearly refutes and makes an issue of the existence of any rational basis, relied on by the trial court and the majority. Id. Though jurisdiction of this Court extends only to the narrow class of cases enumerated in Art. V, 3(b), Fla. Const., this case falls within those narrow classes. Given the unique legislative nature of Appellee s rules, the Supreme Court has discretionary jurisdiction to review the decision of the District Court that expressly declares valid these laws of statutory significance. Fla. R. App. P (a)(2)(A)(i). II. The District Court s decision expressly construed a provision of the state and federal constitution By determining the validity of the challenged rules, particularly the challenged two inch uniform mesh restriction, the First District Court of Appeals expressly construed 6

13 provisions of the state and federal constitutions. Article X, 16, Fla. Const., provides that, No gill nets or other entangling nets shall be used in any Florida waters. Yet, the Constitution fails to define what is, and what is not, a gill or entangling net. Respondent has taken it upon itself to define what is a gill and entangling net, and thus what is prohibited by the Constitution. In so doing, Respondent unilaterally determined that a net with meshes greater than two inches stretched would be a proscribed gill or entangling net pursuant to Art. X, 16, Fla. Const. Fla. Admin. Code R. 68B In its decision, the District Court upheld the validity of Respondent s determination and thus expressly construed Art. X, 16 Fla. Const., to proscribe nets with meshes larger than two inches, regardless of whether or not said nets actually gill or entangle fish. See Wakulla Commercial Fishmermen s Assoc., Inc, at 1-2. Language concerning maximum or minimum net mesh size is notably absent from the Net Limitation Amendment. Though required when interpreting a constitutional provision, neither the majority of the District Court nor the trial court ever mentioned an examination of the explicit language of the constitutional provision or any attempt to ascertain whether the framer s of the Net Limitation Amendment intended for the provision to be construed in such a manner. See Caribbean Conservation Corp., Inc. v. Florida Fish and Wildlife Conservation Comm n, 838 So. 2d 492, 501 (Fla. 2003). As the language of the Constitution only seeks to proscribe gill and other entangling nets, the 7

14 District Court s construction of the constitutional amendment may improperly frustrate intent of its framers and people who adopted it. See id. at 501. Further, the majority of the District Court expressly determined that an agency can meet the burden of the rational relation test by merely submitting an employee affidavit, whether refuted or not. See Wakulla Commercial Fishmermen s Assoc., Inc., at 2. Allowing this practice expressly construes the Due Process provisions of the state and federal constitution. Art. I, 9, Fla. Const.; U.S. Const. Amend. V, U.S. Const. Though Due Process is meant to guarantee every citizen the right to an adequate legal procedure for grievances, See J.B. v. Fla. Dep t of Children & Family Serv., 768 So. 2d 1060, (Fla. 2000), all challenges against government historically adjudicated under the rational basis test will be subject to summary judgment so long as the governmental entity submits an employee affidavit testifying that its law is reasonable. Recognizing the faultiness of the majority s Due Process construction, Judge Brown noted, If agencies are not required to justify their alleged rational basis at an evidentiary hearing when that basis is refuted, as here, this court is preparing fertile field for the growth of imperious agencies, with all of the mischief it entails. See Wakulla Commercial Fishmermen s Assoc., Inc., at 3. These interpretations of the state and federal constitutions bring this case within the Supreme Court s discretionary jurisdiction. Fla. R. App. P (a)(2)(A)(ii). III. The District Court s decision expressly and directly conflicts with a decision 8

15 of the Florida Supreme Court. Prior to the adoption of Art. X, 16, Fla. Const., the Attorney General sought this Court s opinion as to the validity of the proposed Net Limitation Amendment. Advisory Op. To Att y General - Limited Marine Net Fishing, 620 So. 2d 997(Fla. 1993). After carefully evaluating the language of the amendment this Court determined that, the sole purpose of the amendment is to protect certain types of marine life from unnecessary killing, overfishing and waste. Id. at 999. While the District Court recognized that the protection of marine resources is a legitimate state interest, State v. Leavins, 599 So. 2d 1326, 1336 (Fla. 1st DCA 1992), it ignored sworn affidavits and evidence that the two inch mesh nets dramatically gill very large numbers of non-juvenile fish, which could lead to the eradication of the species. The District Court referenced Respondent s tests, which showed that the reduced mesh size nets primarily caught, by gill and entanglement, unmarketable, juvenile fish, which had to wastefully discarded pursuant to the Fla. Admin. Code R. 68B See Wakulla Commercial Fishmermen s Assoc., Inc., at 2. The District Court s decision upholding the reduced mesh restriction implementation of Art. X, 16, Fla. Const., though admitting to the wasteful and destructive effects of such a net, is in direct and express conflict with the protective purposes of Net Limitation Amendment set forth by this Court. Advisory Op. To Att y General, 620 So. 2d at 699. This express and direct conflict is grounds for this Court to review the lower court s decision pursuant to its 9

16 discretionary jurisdiction. Fla. R. App. P (a)(2)(A)(iv). CONCLUSION Based on the foregoing, Petitioners respectfully request that this Court accept discretionary jurisdiction in this case and review the decision of the District Court. 10

17 Respectfully submitted this day of April, CERTIFICATE OF COMPLIANCE RONALD A. MOWREY Florida Bar No Rick A. Savage Florida Bar No MOWREY & MITCHELL, P.A. 515 North Adams Street Tallahassee, Florida Telephone: (850) Facsimile: (850) ATTORNEYS FOR PETITIONERS I HEREBY CERTIFY that the foregoing brief was typed in Times New Roman 14 pt type, in compliance with Fla. R. App. P (a)(2). RONALD A. MOWREY CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to Jonathon A. Glogau, Office of the Attorney General, PL-01 The capitol, Tallahassee, Florida and Fred McCormack, Esq., Fred McCormack, LLC, 411 East College Avenue, Tallahassee, Florida on this day of April, RONALD A. MOWREY J:\OPEN\Wakulla Fishermen v. FWCC Injunction\Supreme Court Writ of Cert 2007\Pleadings\jursidictional brief.wpd

18 APPENDIX A

19 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA WAKULLA COMMERCIAL NOT FINAL UNTIL THE TIME FISHERMEN'S ASSOCIATION, EXPIRES TO FILE MOTION FOR INC., and RONALD FRED CRUM, REHEARING AND DISPOSITION THEREOF IF FILED Appellants, v, CASE NO. 1D FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee. / Opinion filed February 2, 2007 An appeal from the Circuit Court for Leon County. Janet E. Ferris, Judge. Ronald A. Mowrey, of Mowrey & Biggins, P.A., Tallahassee, for Appellants. Charlie Crist, Attorney General, and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, for Appellee, and Fred McCormack of Fred McCormack, LLC, Tallahassee, for Amicus Curiae, The Coastal Conservation Association, d/b/a The Coastal Conservation Association-Florida. DAVIS, J. Wakulla Commercial Fishermen's Association, Inc., and Ronald Fred Crum (Appellants), filed an action challenging the constitutional validity of three rules adopted by the Florida Fish and Wildlife Conservation Commission (Appellee). Appellants and Appellee file separate motions for summary judgement with supporting affidavits. Finding that a rational basis supports the three challenged rules, the trial court denied. Appellants motion for summary judgment and granted Appellee's motion for

20 summary judgment. Having considered de novo the record and the arguments, we conclude that summary judgment was properly entered in favor of Appellee, and we affirm. Summary judgment is proper if no genuine issue of material fact exists and the movant is entitled to a judgment as a matter of law. ~ Volusia CountY v. Aberdeen at Ormond Beach. L.P., 760 So. 2d 126, 130 (Fla. 2000). Because Appellee's actions are not reviewable under the Administrative Procedures Act, a rule adopted by Appellee is "tantamount to a legislative act." Airboat Ass n of Fla., Inc. v. Fla. Game & Fresh Water Fish Comm'n, 498 So. 2d 629, 631(Fla. 3d DCA 1986). Appellee is vested with the exclusive legislative authority to adopt reasonable rules to regulate marine life in this state, and the legislature is constitutionally prohibited from adopting statutes in conflict with such rules. Whitehead v. Rogers, 223 So. 2d 330 (Fla. 1969); State ex rel. Griffin v. Sullivan, 158 Fla. 870,30 So. 2d 919 (1947); Price v. City of St. Petersburg, 158 Fla. 705,29 So. 2d 753 (1947). Appellee's rules come before the court with a strong presumption of validity and must be upheld if they are rationally or reasonably related to a legitimate state interest. This Court has previously determined that the protection of marine resources is a legitimate state interest. State v. Leavins, 599 So. 2d 1326, 1336 (Fla. 1 st DCA 1992). The three challenged rules are Florida Administrative Code Rules 68B , 68B-4.002, and 68B Respectively, these rules: (1) criminalize the use of nets with meshes which, when stretched, are greater than two inches; (2) define entangling nets, which, along with gill nets, are prohibited by Article X, Section 16 of the Florida Constitution, as any net which entangles or ensnares saltwater finfish,

21 shellfish, or other marine animals in the meshes or in the pockets of the net (the only difference between this definition and the constitutional definition being the rule's addition of the phrase "or in the pockets"); and (3) lists the gear that is allowed to be used for harvesting striped or silver mullet, and proscribes the use of any harvesting gear not included in the list. Because the challenged rules do not involve a suspect class or a fundamental right, they are reviewed under the rational basis test. Under the rational basis test, the validity of the rules must be upheld if "any state of facts may be conceived to justify [them]." McElrath v: Burley, 707 So. 2d 836, 839 (Fla. 1st DCA 1998)(quoting Schwarz v.kogan, 132 F.3d 1387, 1393 (11th. Cir. 1998). Whether Appellee chose the best method to protect marine resources is not an appropriate judicial inquiry under the rational basis standard. Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So. 2d 774, 787 (Fla. 2004). Thus, the only questions before the trial court were: (1) whether there is a rational basis for defining nets with meshes greater than two inches as constitutionally prohibited gill or entangling nets (68B ), adopting the constitutional definition by rule (68B-4.002), and not allowing such a net to be used in the mullet fishery (68B ); and (2) whether there is any state of facts to prove that these rules could further the goal of protecting marine resources. Appellants argue that recent research indicates that nets with two-inch meshes gill a significant number of non-usable juvenile fish, which could lead to eradication of the species, whereas nets with larger meshes gill fewer fish -- and the ones which are gilled by the large meshes are older, commercially viable fish. Because two-inch

22 nets kill juvenile fish, Appellants argue that these three rules operate together to violate the Florida Constitution's ban on gill and entangling nets, which ban exists to "protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste." Art. X, 16(a), Fla. Const. Appellee, on the other hand, presented expert testimony that the mullet population remains healthy and has actually increased since the implementation of the two-inch net mesh limitation. This testimony, which was not rebutted, is sufficient to establish a rational basis for Appellee's adoption of the challenged rules as a means of furthering the goal of protecting marine resources. Because there was an uncontradicted rational basis to support the challenged rules, the trial court properly granted summary judgment in favor of Appellee. Accordingly, the judgment of the trial court is AFFIRMED. LEWIS, J., CONCURS; BROWNING, C.J., DISSENTS WITH WRITTEN OPINION.

23 BROWNING, C.J., dissents with written opinion. Because the trial court and majority correctly state the legal principles governing the entry of a summary judgment, but fail to properly apply those principles to the record facts of this case that present a genuine issue of fact, I respectfully dissent. The majority presents only a portion of the facts that are necessary for the proper disposition of this appeal, a reversal. The record reveals unrebutted expert testimony that the use of the two-inch net results in netting significantly more juvenile fish and less marketable adult fish than a three-inch mesh net, and that if continued, this practice will eventually eliminate and annihilate the mullet resource. Also, the record contains expert opinion testimony on the ultimate issue that no rational basis exists for the Appellee's adoption of the two-inch mesh requirement. In the face of this unchallenged testimony from two expert witnesses, it is inconceivable to me that an affidavit containing an allegation that the fish population has increased provides a rational basis that supports the entry of summary judgment here. Such a conclusion can be reached only by concluding for summary judgment purposes that the two affidavits of the Appellee's experts are not credible, and it is well-known that questions of credibility cannot be resolved by summary judgment. By so doing, the trial court reversibly erred, and this court should reverse as the precedents alluded to in the majority opinion require. Moreover, this case can be affirmed only by disregarding the mandate of section , Florida Statutes (2005), which provides:

24 Opinion on ultimate issue. -Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact. Two of Appellee's experts unequivocally testified there is no rational basis for the two-inch mesh requirement. This clearly refutes and makes an issue of the existence of any rational basis, which by necessity includes the rational basis found by the trial court and the majority. Finally, I am concerned about the precedential impact of the majority opinion on the relationship of average citizens, such as Appellants, with governmental agencies in the future. If agencies are not required to justify their alleged rational basis at an evidentiary hearing when that basis is refuted, as here, this court is preparing a fertile field for the growth of imperious agencies, with all of the mischief it entails. For these reasons, I dissent.