IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC BRIAN MEATON

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC Petitioner, BRIAN MEATON vs. CITY OF ST. PETERSBURG, FLORIDA Respondent. \ JURISDICTIONAL BRIEF JAMES A. SHEEHAN, ESQUIRE JAMES A. SHEEHAN P.A. Attorney for Petitioner 170 Giralda Blvd NE St. Petersburg, FL FBN: Ph. (727) Fax (727)

2 TABLE OF CONTENTS Questions Presented Whether The Lower Court s Ruling That The City Could Conduct 2 Further Hearings In This Case Is In Direct Conflict With Decisions Of Other District Courts Of Appeal And The Supreme Court. 2

3 TABLE OF CITATIONS Table of Cases Bd. of County Comm. of Brevard v. Snyder, 627 So.2d 469 (Fla. 1993). 7 Board of County Commissioners v. Dusseau, 725 So.2d 1169 (Fla. 3d DCA 1998) 5 Broward County v. G.B.V. Int l LTD, 787 So. 2d 838 (Fla. 2001) 6,7 City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982) 7,8 City of Kissimmee v. Grice 669 So.2d 307 (Fla. 5 th DCA 1996) 8 City of Miami v. Menarez, 546 So.2d 771 (3d DCA 1989) 8 Crowder v. Barbati, 4DO (Fla. 4 th DCA 7/16/08) 4 Dusseau v. Metropolitan Dade County, 794 So.2d 1270 (Fla. 2001) 5 Florida Power and Light v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000) 6 Goodyear Tire and Rubber Company v. Schalmo, 2DO (Fla. 2d DCA 7/11/08) 4 Haines City Community Development v. Heggs 658 So.2d 523, 530 (Fla. 1995) 6 Metropolitan Dade County v. Dusseau 826 So.2d 442 (Fla. 3d DCA 2002) 5 Pro-Art Dental Lab v. Strategic Group, LLC, SCO (Fla. 7/10/08) 4 Tamiami Trail Tours Inc v. Railroad Commission, 174 So.2d 451 (Fla. 1937) 6,7 ii 3

4 Tynan v. Department of Highway Safety and Motor Vehicles, 909 So.2d 991 (Fla. 5 th DCA 2005) 3 West v. Board of County Commissioners, Monroe County, 373 So.2d 83, 87 (Fla. 3d DCA 1979). 7 iii 4

5 STATEMENT OF FACTS AND OF THE CASE The essential facts for the purposes of this brief on jurisdiction are as stated in the decision of the Second District Court of Appeal: Meaton was terminated in 2003; the Civil Service Board upheld that termination; the first Petition For Writ of Certiorari was filed; circuit judge, Judge Demers, held that the Board s findings of fact did not constitute just cause as a matter of law and remanded the case to the Board for action consistent with this order and opinion. The City filed a Petition For Writ of Certiorari from that decision, which was denied. On remand, a new Board at the urging of the City decided to have a new hearing causing Meaton to file a mandamus action in circuit court. Mandamus was denied, the court ruling however that the Board could not hold a new hearing or discard the findings of fact of the old Board, but could listen to the tapes of the original hearing and make additional findings. The new Board opted to do so and entered a second Order upholding the termination with additional findings of fact. A Petition for Writ of Certiorari was filed in the circuit court and that court again granted the petition and quashed the Order of the Board, Judge DeMers stating that the Board departed from the essential requirements of the law by holding another hearing and entering new findings since it could not observe the demeanor of the witnesses and determine credibility firsthand by 5

6 listening to the tapes. The court went on to state that it cannot directly order that Meaton be reinstated with back pay but that it is inconceivable that the City gets the second bite at the proverbial apple The City filed a Petition For Writ of Certiorari from the second Order of Judge DeMers to the Second District Court of Appeal, and that Petition was again denied. However, in denying the most recent petition the Second District paved the way for the City to conduct, five years after Meaton s dismissal, yet another hearing regarding the termination: Our denial of the City s petition should, however, not be understood as manifesting our approval of the circuit court s comments about the appropriateness of further proceedings before the Board. This appeal only concerns the specific language of the Second District s opinion relating to the further proceedings before the Board. SUMMARY OF THE ARGUMENT Because the argument itself is so brief, Petitioner dispenses with the Summary of The Argument. ARGUMENT I The Lower Court s Ruling That The City Could Conduct Further Hearings In This Case Is In Direct Conflict With Decisions Of Other District Courts Of Appeal And The Supreme Court. 6

7 To begin, this case only addresses the situation where both parties have had a full hearing before the Civil Service Board and the issue on appeal is whether the findings of fact of the Board constituted just cause as a matter of law. 1 Judge DeMers, in a sixteen page opinion, ruled that the findings of fact of the Board did not constitute just cause as a matter of law and remanded the case back to the Board with instructions for action consistent with this order and opinion. The problem that this Petition addresses began after that first opinion of Judge DeMers was entered on January 13, 2005 (Cir. Ct. Case No AP-88B). 2 When the case went back to the Board, the City argued that it was entitled to a new hearing and the Board agreed. That prompted the mandamus action resulting in a circuit court order denying mandamus but allowing a limited second hearing; a subsequent Board hearing just listening to tapes and making additional findings of fact; a new Board order upholding the termination; the second petition for certiorari; a second order 1 The Petitioner is not taking the position that a new hearing is never appropriate. In Tynan v. Department of Highway Safety and Motor Vehicles, 909 So.2d 991 (Fla. 5 th DCA 2005)-a case cited by Judge Canady in his opinion Tynan had been precluded from putting on certain witnesses for various reasons. The court ruled that she was entitled to put them on and that there should be a new hearing. Those facts don t exist in this case. 2 It actually began when the Petition For Certiorari from that Order filed by the City was denied by the Second District. 7

8 by a three judge panel of the circuit court; and the subsequent Petition and Order from the Second District Court of Appeal. It is Petitioner s position in this appeal that the Civil Service Board had a ministerial duty to reinstate Petitioner with back pay. This is consistent with the law; it does not render the work of the first Board, which deliberated some fifteen hours, meaningless; it does not render the analysis and Order of Judge DeMers in the first Petition meaningless; and it puts or should have put an appropriate end to the litigation. There are legions of cases where an appellate court remands the case back to the lower court to take action consistent with this opinion. Crowder v. Barbati, 4DO (Fla. 4 th DCA 7/16/08); Goodyear Tire and Rubber Company v. Schalmo, 2DO (Fla. 2d DCA 7/11/08); Pro-Art Dental Lab v. Strategic Group, LLC, SCO (Fla. 7/10/08). The question in this case is what happens when the evidentiary hearing is closed, findings of fact are made, and the circuit court finds as a matter of law that the findings of fact do not constitute just cause and remands the case for action consistent with this opinion? Do the findings of fact get tossed out? Does the opinion of the circuit court get tossed out? And does everything start over as the Second District opinion seems to suggest? 8

9 In Dusseau v. Metropolitan Dade County, 794 So.2d 1270 (Fla. 2001), the Supreme Court wrote a lengthy opinion quashing the decision of the Third District in Board of County Commissioners v. Dusseau, 725 So.2d 1169 (Fla. 3d DCA 1998) and remanding the case back to the circuit court. In Metropolitan Dade County v. Dusseau, 826 So.2d 442 (Fla. 3d DCA 2002), the third district again quashed the opinion of the circuit court because it failed to follow the mandate of the Supreme Court: Upon the issuance of a mandate from an appellate court, the lower court s role becomes purely ministerial and its function is limited to obeying the appellate court s order or decree. A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape, or form. 444). There is no difference between the Civil Service Board in this case and the circuit court in Dusseau: neither can alter or modify the mandate of an appellate court. The Civil Service Board should have followed the mandate of the circuit court and issued a new order finding just cause and reinstating Petitioner with back pay which is the appropriate remedy. The Second District s opinion essentially voids everything that happened at the first hearing and allows the Board to conduct as many hearings on this matter as it chooses. This is an unreasonable interpretation because it violates the rule of law in Dusseau, supra, and because it allows 9

10 litigation to continue unabated into the future: Mr. Meaton was fired five years, two hearings, one mandamus action and four appeals ago. The larger problem in this case is that there are no defined parameters for first tier certiorari and the Second District cited the general black letter law of certiorari, which does not apply. The court used the quote from this court s decision in Tamiami Trail Tours Inc v. Railroad Commission, 174 So.2d 451 (Fla. 1937), and also cited Broward County v. G.B.V. Int l LTD, 787 So. 2d 838 (Fla. 2001) which contains the same quote: When the order is quashed, as it was in this case, it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order not been entered. The appellate court has no power when exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration, nor to direct the respondent to enter any particular order or judgment Broward 844. Tamiami Trails is a common law certiorari case and the Broward County decision is a second tier certiorari case, which is now the old common law certiorari. 3 3 See Haines City Community Development v. Heggs 658 So.2d 523, 530 (Fla. 1995) for a lengthy discussion of common law certiorari. In that case the court stated: However, certiorari in circuit court to review local administrative actions is not truly common law certiorari because the review is of right. See also, Florida Power and Light v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000); 10

11 There is another substantial distinction as well. Broward County is a zoning case and Tamiami Trails involved a denial of a certificate of public convenience and necessity. There is a separation of powers issue when the court is directing the local government how to conduct its affairs; Bd. of County Comm. of Brevard v. Snyder, 627 So.2d 469, 471 (Fla. 1993). Perhaps in zoning cases and cases involving certificates of public convenience and necessity there is a rationale for coming back again and again with new facts. However, this is an employee discharge case. The facts are the facts. There should be no coming back again and again. There is supposed to be finality to these types of hearings. The employee is charged; he or she has a hearing; the Civil Service Board decides the facts; each party has a right of appeal and that s it (or should be it) case closed! There is no logic or the fairness in the process suggested by the Second District s opinion. 4 The controlling decision is City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla. 1982), an employment case, where the circuit court reinstated a wrongfully discharged employee. In Vaillant, the city was trying to get a second appeal before the Fourth District and both the Fourth District 4 In fact, the failure to provide a hearing within a reasonable time is a due process violation; West v. Board of County Commissioners, Monroe County, 373 So.2d 83, 87 (Fla. 3d DCA 1979). 11

12 and the Supreme Court, in upholding the circuit court decision, said the city had its appeal in the circuit court. It was not entitled to another one. Ironically, Vaillant, is the decision that created the first tier-second tier dichotomy and it was principally about not only restricting appellate rights but putting an end to litigation. The Second District s ruling turns that rationale upside down. Vaillant is often cited in second tier zoning cases. The undersigned is aware of no employment case like this one, which cited Vaillant, and concluded that the circuit court did not have authority to reinstate a public employee with back pay. On the contrary, in the case of City of Miami v. Menarez, 546 So.2d 771 (3d DCA 1989), the Third Circuit held that a circuit court acting in its appellate capacity in a certiorari proceeding could order reinstatement of a public employee who was denied due process. 5 CONCLUSION For the reasons stated herein, the undersigned requests this court to take jurisdiction of this case and to reverse the decision of the Second District Court of Appeals only as it relates to the Civil Service Board s right 5 In City of Kissimmee v. Grice 669 So.2d 307 (Fla. 5 th DCA 1996) the circuit court had ordered the employee reinstated and the fifth district after remanding the case in dicta noted that the circuit court should consider its limited authority on certiorari review. However, the court went on to say that as a practical matter the quashing of the order of termination would lead to the same result as that required by the court s order [reinstating the employee]. Grice did not cite the Vaillant decision. 12

13 to conduct further evidentiary hearings. This is an extremely important case because the Second District opinion potentially applies to all classified city and county employees subject to discipline in the state of Florida and there needs to be some clarification on the parameters of first tier certiorari as it relates to those types of cases. Respectfully Submitted, CERTIFICATE OF SERVICE James A. Sheehan Attorney for Petitioner FBN: I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Pamela Cichon, Assistant City Attorney, P.O. Box 2842, St. Petersburg, Florida on this 29 th day of September, James A. Sheehan, Esquire 13

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