IN THE SUPREME COURT OF FLORIDA. Appellant, SC Case No. SC04-9

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1 IN THE SUPREME COURT OF FLORIDA ATTORNEY GENERAL CHARLES J. CRIST JR., v. Appellant, SC Case No. SC04-9 BRAULIO L. BAEZ, Chairman, and J. TERRY DEASON, LILA A. JABER, RUDOLPH RUDY BRADLEY, and CHARLES DAVIDSON, Commissioners, as and constituting the FLORIDA PUBLIC SERVICE COMMISSION, an agency of the STATE OF FLORIDA, et al., Appellees. VERIZON FLORIDA INC. S RESPONSE TO ATTORNEY GENERAL S MOTION TO RELINQUISH JURISDICTION BUT MAINTAIN STAY Pursuant to Rule 9.300, Florida Rules of Appellate Procedure, Appellee Verizon Florida Inc. (Verizon) files this Response to the Motion of Attorney General Charles J. Crist, Jr. To Relinquish Jurisdiction But Maintain Stay (Motion To Relinquish Jurisdiction). I. INTRODUCTION AND BACKGROUND This appeal arises from the Order on Access Charge Petitions, Order No. PSC FOF-TL, rendered by the Florida Public Service Commission (Commission) on December 24, That Order approved the petitions of Verizon, BellSouth and Sprint (collectively, the Incumbents) to reform their respective intrastate network access and basic local telecommunications rates in accordance with Section , Florida Statutes.

2 On January 7, 2004, the Attorney General filed a Notice of Appeal with this Court seeking a reversal of the Commission s Order. The Attorney General s Notice of Appeal automatically stayed the Commission s Order 1 and divested the Commission of jurisdiction to enter an order affecting the subject matter of the appeal. 2 The following day, January 8, 2004, the Attorney General filed a Motion for Reconsideration with the Commission requesting that it reconsider its decision and deny the Incumbents Petitions. That same day, January 8, 2004, the Attorney General filed the Motion to Relinquish Jurisdiction, requesting that this Court maintain the automatic stay while allowing the Commission to rule on the Motion for Reconsideration. As discussed below, the Attorney General s Motion to Relinquish Jurisdiction should be denied because it violates the Florida Rules of Administrative and Appellate Procedure. II. THE MOTION TO RELINQUISH JURISDICTION SHOULD BE DENIED The Florida Rules of Administrative and Appellate Procedure afford a party a clear and limited choice of remedies. On one hand, a party may seek reconsideration of a Commission s order and file a motion, thereby foregoing the automatic stay. 3 On the other hand, a party may file a notice of appeal, thereby abandoning its motion for reconsideration 1 Rule 9.310(b)(2), Florida Rules of Appellate Procedure (The timely filing of a notice of appeal shall automatically operate as a stay pending review when the state, any public officer acting in an official capacity, board, commission, or other public body seeks review). 2 Rule 9.110(b), Florida Rules of Appellate Procedure (The Court s jurisdiction is invoked by filing a notice of appeal). 3 A motion for reconsideration does not automatically stay the effectiveness of a final order. Rule (1)(c), Florida Administrative Code. However, a party may seek a discretionary stay from the Commission pending its decision on the motion for reconsideration. See, e.g., In re Application for a Rate Increase for Silver Springs Shores Division in Marion by General Development Utilities, Inc., 1993 Fl. PUC Lexis 1363 (October 21, 1993) (Granting Motion for Reconsideration and Emergency Motion for Stay Pending Reconsideration). 2

3 in favor of the automatic stay. 4 The Attorney General did not elect either of the remedies contemplated by the Rules of Administrative and Appellate Procedure. Rather, he took deliberate action to divest the Commission of jurisdiction, and, the very next day, requested that this Court relinquish jurisdiction to the Commission. This legal ploy is improper under the Florida Rules of Appellate Procedure, and should not be countenanced by this Court. Rule 9.600(b), Florida Rules of Appellate Procedure, permits an appellate court to relinquish jurisdiction to allow the lower tribunal to proceed with certain specifically stated matters: If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pendency of the appeal. (Emphasis added). The Courts have narrowly construed this Rule as an extraordinary remedy to be used only for an exceptional purpose: When a notice of appeal has been timely filed[,] jurisdiction of the cause then vests absolutely in the appellate Court until such appeal has been finally disposed of by affirmance, reversal, or dismissal; subject only of course, to a mere temporary relinquishment of jurisdiction for some specified exceptional purpose... 5 The purpose of the Rule is to promote judicial efficiency and prevent unnecessary 4 See Rule 9.020(h)(3) (If a notice of appeal is filed prior to the entry of an order disposing of a motion for reconsideration, the motion for reconsideration is deemed abandoned). 5 Tel Service Co., v. General Capital Corp, 212 So. 2d 369, 382 (Fla. 2d DCA 1968) (emphasis added). 3

4 delay. The Committee Notes attending the rule make this clear: [Subsection (b)] allows for continuation of various aspects of the proceeding in the lower tribunal, as may be allowed by the court, without a formal remand of the cause. This rule is intended to prevent unnecessary delays in the resolution of disputes. 6 That is why appellate courts will not release jurisdiction to the lower tribunal unless the moving party overcomes the presumption that equity and judicial efficiency are best served by leaving jurisdiction with the appellate court: [W]here a party seeks relinquishment of jurisdiction to the trial court for further proceedings during the pendency of an appeal from a final order, the burden is on the moving party to show entitlement to relief. Jurisdiction may be relinquished to the trial court to proceed with specifically stated matters. The presumption is, however, that judicial economy would be best served by leaving jurisdiction in the appellate court until issuance of a mandate. A party wishing to overcome that presumption and obtain a relinquishment of jurisdiction must show entitlement to that relief by informing this court of the specific nature of the proceedings it seeks to have conducted in the trial court. 7 In the instant case, the Attorney General s Motion to Relinquish Jurisdiction should be denied because the Attorney General has failed to prove that returning jurisdiction to the Commission would prevent unnecessary delay. To the contrary, the Attorney General has admitted that he intentionally filed the Motion for Reconsideration after filing a notice of appeal because he wanted to delay the implementation of the Commission s Order while the Commission decided his Motion for Reconsideration. 6 (Emphasis added). 7 Lurie v. Auto-Owners Ins. Co., 605 So. 2d 1023, 1025 (1992) (citations omitted; italicized emphasis in original; underlined emphasis added). 4

5 The Attorney General relies on three cases in support of his position. His reliance on these cases is misplaced. The cases he cites each involved exceptional circumstances arising after the filing of the notice of appeal that the interests of justice and judicial efficiency demanded be handled by the lower tribunal. See Lelekis v. Liles, 240 So. 2d 478 (Fla. 1970) (involving the interpretation of a zoning ordinance amended during the course of the appeal); D Agostino v. Peoples Water and Gas Company, 78 So. 2d 739 (Fla. 1955) (involving a dispute over attorney s fees and substitution of counsel that arose during the course of the appeal); and Northeast Polk County Hospital District v. Snively, 162 So. 2d 657 (Fla. 1964) (involving legislation enacted during the course of the appeal). Accordingly, the cases cited by the Attorney General are not analogous to this case, and therefore are inapposite here. In cases that are comparable to the instant case, the appellate courts have refused to relinquish jurisdiction. For example, in Taylor v. Dick Carroll Goodyear, 630 So. 2d 122 (Fla. 1 st DCA 1994), the appellate court decided not to relinquish jurisdiction where appellant filed motion for reconsideration with the lower tribunal after filing notice of appeal. Significantly, the Attorney General has not cited, nor was Verizon able to find, a single Florida case in which the appellate court relinquished jurisdiction so that the lower court could decide a motion for reconsideration. The Attorney General s reliance on equitable arguments is equally misplaced. First, as stated above, an automatic stay was not the only stay available to the Attorney General; he could have sought a discretionary stay from the Commission. Second, the Commission could have decided a motion for reconsideration before the Incumbents 5

6 adjusted rates, because the Incumbents can only implement the new rates on 45-days notice. 8 Third, ratepayers are protected from irreparable injury in any event, because the Incumbents are required to post a bond or corporate undertaking to lift the automatic stay. 9 Fourth, ratepayers are not at risk of suffering irreparable injury because they will benefit from rate rebalancing and will not drop off the network after rates are rebalanced. 10 In light of the foregoing, the Attorney General cannot now seek reconsideration before the Commission, because he voluntarily divested the Commission of jurisdiction when he filed his notice of appeal. III. CONCLUSION For the foregoing reasons, this Court should deny the Attorney General s Motion to Relinquish Jurisdiction. DATED: January 22, 2004 By ELIZABETH B. SANCHEZ Florida Bar No North Franklin Street, FLTC0007 Tampa, Florida Tel: Fax: Attorney for Verizon Florida Inc. 8 Section (2), Florida Statutes. 9 Rule (3), Florida Administrative Code. 10 See Commissions Order (Order No. PSC-1469-FOF-TL) at page 30. 6