IN THE SUPREME COURT OF FLORIDA. CASE NO. SC Lower Tribunal Case No. 3D SENATOR ALEX DIAZ DE LA PORTILLA, Petitioner,

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower Tribunal Case No. 3D SENATOR ALEX DIAZ DE LA PORTILLA, Petitioner, v. FLORIDA ELECTIONS COMMISSION, Respondent. ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PETITIONER S JURISDICTIONAL BRIEF BENEDICT P. KUEHNE Florida Bar No SALE & KUEHNE, P.A. 100 S.E. 2 STREET, SUITE 3550 MIAMI, FLORIDA Tel.: Fax: ben.kuehne@lawyers.com Counsel for Petitioner Sen. Diaz de la Portilla

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 STATEMENT OF THE ISSUES... 4 SUMMARY OF THE ARGUMENT... 4 ARGUMENT THE DISTRICT COURT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH OTHER APPELLATE DECISIONS ON THE SAME QUESTIONS OF LAW?... 6 CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE AND STYLE i-

3 TABLE OF AUTHORITIES Bay Bank & Trust Co. v. Lewis, 634 So. 2d 672 (Fla. 1 st DCA 1994)... 8 Bolt v. Smith, 594 So. 2d 864 (Fla. 5 th DCA 1992)... 8 Fischer v. Knuck, 497 So. 2d 240 (Fla. 1986)... 8 Holmes v. Goldstein, 650 So. 2d 87 (Fla. 4 th DCA 1995)... 8 Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995)... 6 McGann v. Florida Elections Commission, 803 So. 2d 763 (Fla. 1 st DCA 2001)... 5, 6 McKay v. McKay, 488 So. 2d 898 (Fla. 3d DCA 1986)... 8 Sen. Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913 (Fla. 3d DCA 2003)... 1, 5, 7 Southern Coatings, Inc. v. City of Tamarac, 840 So. 2d 1109 (Fla. 4th DCA 2003)... 8 Stimpson Computing Scale Co., Inc. v. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987) ii-

4 STATEMENT OF THE CASE AND FACTS 1 This discretionary review proceeding arises from an administrative prosecution brought by the Florida Elections Commission against State Senator Alex Diaz de la Portilla, resulting in the assessment of $311,000 in fines for violations of Florida's campaign financing law. The appellate court found insufficient evidence to support the adverse administrative findings on all but 17 allegations, and remanded the case for a renewed determination of the amount of the fine. The case began with the October 29, 1999 announcement of a vacancy in State Senate District 34 in Miami-Dade County. The election timetable was short. A first primary was scheduled December 14, 1999, some six weeks after the vacancy was announced. At that time, Senator Diaz de la Portilla was a state representative. He resigned his seat in the House of Representatives and qualified for the election for the State Senate seat. Three other candidates qualified. Because all four candidates were Republicans, this meant that all 1 The facts are adapted from the appellate opinion. Sen. Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913 (Fla. 3d DCA 2003). -1-

5 registered voters were eligible to participate in the election. In January 2000, a complaint was made to the Florida Elections Commission that the Diaz de la Portilla campaign ("Campaign") had violated Florida's campaign financing law. See ch. 106, Fla. Stat. (1999). The Elections Commission found probable cause and instituted proceedings against Sen. Diaz de la Portilla. Soon thereafter, the Campaign filed amended treasurer's reports disclosing a significant number of previously unreported contributions and expenditures. The case proceeded to a hearing before an administrative law judge. The main disputed issue before the administrative judge was whether there had been any willful violation of the law by then-candidate Diaz de la Portilla personally. The campaign treasurer testified he had devised a system for photocopying all contribution checks, and for recording all expenditures. He had used this system successfully in the past. He turned the responsibility over to campaign volunteers, who failed to follow the instructions. The treasurer spent his time campaigning, spent little time in the office, and failed to supervise those who were handling the funds. He took responsibility for the incomplete reports. The administrative law judge was satisfied the under-reporting of -2-

6 contributions and expenditures had been neither premeditated nor intentional on the candidate's part. However, the administrative law judge concluded the candidate bore responsibility under the provisions of chapter 106. The administrative law judge found 309 violations of chapter 106. He recommended a fine of $79,500. The Elections Commission adopted the administrative law judge's findings of fact and adopted his conclusions of law with modifications. The Commission ruled that the findings supported the existence of 311 violations of chapter 106. The Commission increased the civil penalty to $1,000 per count, for a total of $311,000. Sen. Diaz de la Portilla appealed to the Third District, which concluded, among other findings, that Sen. Diaz de la Portilla could not be held responsible for the failures of his campaign treasurer, when the treasurer had devised a system to comply with the campaign reporting requirements. Accordingly, the evidence was not sufficient to support the bulk of the violations, although the Third District upheld seventeen violations of the Senator s failure to report campaign loans and the failure of political advertisements to have required disclaimers. The appellate court also found -3-

7 that a member of the Elections Commission harbored an undisclosed conflict that required her disqualification. The court remanded the case to the Elections Commission for a renewed determination of the amount of the fine, based solely on the counts for which the evidence was sufficient. STATEMENT OF THE ISSUES Does the district court s decision expressly and directly conflict with other appellate decisions on two questions of law concerning (1) the method of determining the allowable number of counts in an administrative proceeding, and (2) the allowable remedy for an administrative officer s refusal to disqualify herself for an undisclosed conflict of interest. SUMMARY OF THE ARGUMENT The decision of the Third District expressly and directly conflicts with other appellate decisions on the same two questions of law. Both questions are vitally important in the context of administrative decision making. The first question involves the allowable number of counts in an administrative complaint, with the appellate court approving a standardless cumulation of multiple charges under identical circumstances in which another appellate court required a reversal for the failure to specify multiple counts. -4-

8 The second question asks whether an administrative decision on liability can be upheld if a member of the administrative tribunal who cast the deciding vote harbored an undisclosed conflict of interest. Because controlling law mandates that such a conflict-laden vote is tainted and therefore void, the administrative decision must be remanded for a new proceeding on liability. ARGUMENT THE DISTRICT COURT S OPINION EXPRESSLY AND DIRECTLY CONFLICTS WITH OTHER APPELLATE DECISIONS ON THE SAME QUESTIONS OF LAW? The Third District s decision creates express and direct conflict with other appellate decisions on two important questions of law warranting review and resolution by this court pursuant to the authority of Article V, Section 3(b)(3) of the Florida Constitution, and Rule 9.030(a)(2)(A)(iv) of the Florida Rules of Appellate Procedure. A. Determination of the Number of Counts. The appellate court s decision is in direct conflict with McGann v. Florida Elections Commission, 803 So. 2d 763, 766 (Fla. 1 st DCA 2001), as recognized in the appellate opinion. The appellate court refused to apply -5-

9 the controlling McGann decision because the administrative ruling was made several months before McGann was announced. Sen. Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d 913, 924 (Fla. 3d DCA 2003). The McGann court held the Florida Elections Commission must use a separately numbered paragraph for each violation on which the Commission seeks to impose a fine. The FEC did not do that in this case, instead merely alleging that Sen. Diaz de la Portilla violated nine statutes on a given number of separate occasions, giving no date, time, or place for separate or multiple counts. This deficiency expressly violates the McGann rule, but was disregarded by the appellate court because the McGann issue had not been raised at the outset of the administrative proceedings in view of the fact that McGann was not decided until after the administrative law judge announced his findings. The appellate court s refusal to apply McGann to the appeal was based on its statement that had the case proceeded after McGann, the matter could have been corrected by allowing the Commission to replead its counts in proper form. Id. The appellate court s failure to follow McGann on the identical point of -6-

10 law creates an express and direct conflict, essentially defining two different administrative charging rules depending on whether the administrative proceedings predate or follow McGann. Because Florida administrative agencies are obligated by principles of due process to provide notice of the specific charges, see Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995), an administrative law judge cannot be allowed to find multiple convictions for a single charged statutory violation, no matter if the trial came before or after McGann. This serious conflict, creating a two-tiered administrative justice system, warrants review and reconciliation by this court. In order to promote uniformity and fundamental fairness to persons subject to administrative charges, all administrative rulings must adhere to the McGann decision defining the allowable number of counts. Because the Third District did not, discretionary review is needed. B. Remedy for a Refusal to Disqualify an Administrative Officer. The appellate court held that a member of the Florida Elections Commission who operated under an undisclosed conflict of interest was required to disqualify herself from participation in the administrative decision -7-

11 making. Sen. Diaz de la Portilla v. Florida Elections Commission, 857 So. 2d at Yet, the appellate court nonetheless upheld a number of violations found to exist by the FEC even though the disqualified commissioner participated in the voting on those violations, and actually case the deciding vote. Had the conflicted commissioner not participated, the resulting FEC decision would have been a tie vote, meaning no violation would have been found. The appellate court s failure to order a reversal of the entire administrative decision and a remand for a new proceeding before a properly qualified FEC without the participation by conflicting lobbyists, creates an express and direct conflict on this vitally important question of law. A disqualified officer is not authorized to participate in any substantive decision relating to the case for which disqualification is mandated. See Southern Coatings, Inc. v. City of Tamarac, 840 So. 2d 1109 (Fla. 4th DCA 2003). This rule applies to administrative matters in a pending case. See McKay v. McKay, 488 So. 2d 898 (Fla. 3d DCA 1986) (disqualification extends to judge acting in an administrative capacity). Fundamentally, except for mere ministerial acts, Fischer v. Knuck, 497 So. 2d 240 (Fla. 1986), orders subsequently entered by a disqualified judge are void. Stimpson -8-

12 Computing Scale Co., Inc. v. Knuck, 508 So. 2d 482, 484 (Fla. 3d DCA 1987); Bolt v. Smith, 594 So. 2d 864 (Fla. 5 th DCA 1992). As the Fourth District succinctly explained in Holmes v. Goldstein, 650 So. 2d 87, 88 (Fla. 4 th DCA 1995), In a word, both sides in the present case were entitled to impartiality. Decisions of administrative agencies are entitled to the very same requirement of neutrality and impartiality. See Bay Bank & Trust Co. v. Lewis, 634 So. 2d 672 (Fla. 1 st DCA 1994). Sen. Diaz de la Portilla has been denied society s expected guarantee of impartiality by reason of an approval of a finding of liability based on the participation of a conflict-laden commissioner whose vote decided the administrative charges. The FEC s tainted administrative decision must be vacated in its entirety to conform to the prevailing rule governing disqualification of administrative officers. To hold otherwise, as the Third District did, creates a conflicting administrative rule of procedure permitting the subjective decision making of officials based on personal bias. The effect of such a rule is the promotion of biased, personal-driven administrative decisions. The participation of lobbyists in the FEC s decision making process is suspect enough, but the controlling influence of one who -9-

13 harbors a personal bias relegates the work of the FEC to something akin to an arbitrary and capricious results oriented panel with a decidedly political agenda. The appellate court s decision, by validating the tainted order of an administrative agency, fails to recognize the injustice which results from an order upholding liability decisions based on the deciding vote of a biased administrative official. The conflict in decisions is real and palpable, and the repercussions are dramatic. This court should grant discretionary review in order to resolve this conflict among appellate decisions. CONCLUSION For the reasons set out in this brief, the court should grant discretionary review because of the express and direct conflict among appellate decisions on the same questions of law. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed and faxed this 17th day of December 2003, to: John J. Rimes III Senior Assistant Attorney General PL-01, The Capitol Tallahassee, Florida Telephone: Fax:

14 Eric M. Lipman Florida Elections Commission 107 West Gaines Street, Suite 224 Tallahassee, Florida Telephone: Fax: CERTIFICATE OF TYPE SIZE AND STYLE This brief complies with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. It is printed in Arial 14-point proportional font typeface. Respectfully submitted, SALE & KUEHNE, P.A. Bank of America Tower, Suite S.E. 2 nd Street Miami, Florida Telephone: (305) Fax: (305) ben.kuehne@lawyers.com By: BENEDICT P. KUEHNE Florida Bar No

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FLORIDA ELECTIONS COMMISSION, PETITIONER, v. STATE OF FLORIDA ~ f 1 UG 26 i!.rci 10: II FLORIDA ELECTIONS COMMISSION JEFFREY D. PORTER, RESPONDENT. ----------------------------~/ FINAL ORDER.. - ' l ',